U.S. Department of Transportation National Environmental Policy Act
Categorical Exclusion (CE) Survey Review

November 27, 2012

This report was prepared pursuant to section 1318(a)(2) of the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21), P.L. 112-141, 126 Stat. 405 (2012).

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Table of Contents

• Background
  • Use of CEs in Transportation Projects Since 2005
  • Number and Proportion of CEs Used
  • Types of CE actions
  • Requests Previously Received by the Secretary for New CEs
  • Requests for New CEs from Secretary's October 2012 Survey Responses
  • Next Steps Regarding Designating New CEs Through Rulemaking
• Appendix A.   MAP-21 Section 1318 Categorical Exclusion Survey
• Appendix B.   Actions Requested as New CEs in Survey

Background

Section 102(2)(C) of the National Environmental Policy Act (NEPA), 49 U.S.C. 4321-4347, requires Federal agencies to prepare for every major Federal action significantly affecting the quality of the environment a detailed statement of the environmental impacts of the proposal. The Council on Environmental Quality (CEQ) NEPA implementing regulations require each Federal agency to identify in their NEPA procedures a list of actions that do not individually or cumulatively have significant environmental effects, and to provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect (40 CFR 1507.3(b)(2)(ii)), 40 CFR 1508.4).

The Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) have issued a joint NEPA implementing procedures at 23 CFR Part 771 that includes a list of categorical exclusions (CEs) at 23 CFR 771.117. The FHWA and FTA regulations designate two general types of CEs – (1) those actions that only need a record in the project file that confirms the action fits the CE description and normally do not require additional approval by the FHWA or FTA (designated in 23 CFR 771.117(c) and referred to as “c-list” or “listed CEs”), and (2) those additional actions that require the FHWA or FTA approval, as applicable, after consideration of documentation demonstrating that CE criteria are satisfied and significant environmental effects will not result from the action (designated in 23 CFR 771.117(d) and referred to as “d-list” or “documented CEs”).

Under the provisions of 23 CFR 771.117(d), the FHWA and FTA may determine whether actions not specifically described in either the c-list or in the d-list examples meet CE criteria. The items listed in the d-list are examples of actions that could be processed as CEs if the actions are shown to meet the CE criteria in project documentation, which is reviewed and approved by the FHWA or FTA. The list of examples are the types of actions that do not result in significant effects and typically can be categorically excluded through documentation showing that there is no potential for significant environmental impacts to result from the action.

Regarding project documentation for CEs, the expectation is for c-list actions to be documented with a description of the project or activity sufficient to show that the action fits within the listed CE action in regulation and that no unusual circumstances (how FHWA/FTA address extraordinary circumstances) exist that would make the application of the CE improper. For projects processed as documented CEs, the expectation is for documentation to demonstrate that the project meets all criteria for a CE, and any conditions specified in regulation for the CE being applied.

In processing both types of CEs, reviewers must consider whether unusual circumstances exist that require appropriate environmental studies to determine if the CE classification is proper, or whether the preparation of an Environmental Assessment (EA) or Environmental Impact Statement (EIS) is appropriate instead of the CE determination. Examples of unusual circumstances include significant environmental impacts, substantial controversy on environmental grounds, significant impact on properties protected by section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act, and inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to environmental aspects of the action (23 CFR 771.117(b)).

The majority of the projects undertaken by State departments of transportation (SDOTs) and transit authorities are processed as CEs. The role of CEs for highway projects continues to expand given funding constraints that are shifting the focus of transportation programs from major new construction to maintaining and improving the functionality of the existing infrastructure. Many of the current and programmed transportation projects are facility reconstruction, bridge replacement, and facility operational improvements, such as adding turning lanes or reconfiguring interchanges/intersections. For transit projects, CEs continue to be the most common form of NEPA approval. Most of FTA's program is funded through formula funds, which are generally for system enhancements (e.g., vehicle and equipment purchases and rehabilitation, maintenance, and facility construction and rehabilitation, including stations). Generally, these projects have minimal environmental impacts and are likely to be categorically excluded from preparation of an EA or EIS.

Use of CEs in Transportation Projects Since 2005
This survey review of CE usage and CE requests by grantees and other stakeholders is required by MAP-21. Section 1318(a) of MAP-21 directs the Secretary to (1) survey the use by the Department of CEs in transportation projects since 2005, (2) publish a review of the survey that includes a description of the types of actions categorically excluded and any requests previously received by the Secretary for new CEs, and (3) solicit requests for new CEs from SDOTs, transit authorities, metropolitan planning organizations (MPOs), or other government agencies.

To comply with this requirement, the FHWA and FTA reviewed the CEs proposed in the FHWA and/or FTA CE rulemakings since 2005 and in the Department's review of regulations in 2011. The rulemakings proposing CE actions were documented as part of Notices of Proposed Rulemaking (NPRMs), as agency comments on these rulemakings, and as final rules associated with these NPRMs, as applicable (72 Fed. Reg. 44038, Aug. 7, 2007, FTA-2006-26604 and 77 Fed. Reg. 15310, Mar. 15, 2012, Docket No. FTA-2011-0056). In addition, as a part of the assessment of Federal regulations in response to the President's Executive Order (EO) 13563 (Improving Regulation and Regulatory Review, January 18, 2011), the Department received requests for new CEs as documented in the Retrospective Review and Analysis of Existing Rules (Department of the Transportation, August 2011). Also, in September 2012, the Secretary sent a solicitation to SDOTs, transit authorities, MPOs, local public agencies, and federally-recognized Tribes asking for actions they request for consideration as new CEs through rulemaking. This survey review captures the results of these activities.

The MAP-21 survey asked SDOTs, transit authorities, MPOs, and federally-recognized Tribes to provide information on:

• CEs processed as a part of the NEPA for transportation projects since 2005;
• Types of actions categorically excluded;
• Requests previously received by the Secretary of Transportation for new CEs that are not currently in regulation; and
• Requests for new CEs.

The Secretary of Transportation sent the invitation to participate in the survey electronically to 1,511 individuals from SDOTs, transit authorities, MPOs, and federally-recognized Tribes. The survey period ran from September 5, 2012, through October 9, 2012. Responses were collected online and through email. Respondents were encouraged to provide electronic documents and other materials to supplement their answers.

Five hundred twenty-two (522) individuals responded to the survey questionnaire. Local public agencies represented the largest group of respondents, with transit authorities, MPOs, and SDOTs comprising the next three largest groups (Table 1). The “other” agency category includes responses from the American Association of State Highway and Transportation Officials (AASHTO) and a railroad. The SDOT respondents represented 40 States, the District of Columbia, and Puerto Rico.

Table 1: Survey responses, by organization type

*There were multiple respondents to the survey from some SDOTs for a total of 53 SDOT responses from 40 states, the District of Columbia and Puerto Rico.

Number and Proportion of CEs Used
SDOTs reported that most of their transportation projects were processed as CEs. The results indicate that SDOTs process considerably more CEs annually than the other agency types surveyed. Transit authorities, MPOs, and federally-recognized Tribes reported, on average, fewer than 10 actions processed as CEs annually while SDOTs reported processing an average of 343 actions as CEs. The survey results indicate that CEs constitute 90 to 99 percent of the NEPA decisions in the transportation programs for a majority of SDOTs and transit authorities.

Types of CE actions
Tables 2 and 3 provide an overview of survey responses by category of CE action and denote the frequency of use by identifying actions that are among the 10 most frequent actions for SDOTs and transit authorities. The survey asked respondents to identify their top 10 documented CEs from the list of examples and provided a blank box to enable respondents to enter a documented CE that was not on the list. Most responses from individual respondents were from the list of examples, however some respondents provided examples of documented CEs within their top 10 that were not on the list. The frequency of any documented CE example provided by respondents in the blank box was insufficient to make the overall top 10 list for SDOTs and transit authorities. There were 15 examples provided in individual responses in the blank box that are not included below because they were similar to existing CEs or are rare actions.

Table 2. Highway/Transit Transportation Actions Processed as Listed (c-list) Categorical Exclusions

*Based on results from the survey questionnaire to identify top 10 CE actions.

Table 3. Highway/Transit Transportation Actions Processed as Documented (d-list) Categorical Exclusions

*Based on results from the survey questionnaire to identify top 10 CE actions.

Requests Previously Received by the Secretary for New CEs
The Secretary received requests for new CEs as a result of various Federal Register notice actions. In August 2007, the FHWA and FTA published an NPRM (72 Fed. Reg. 44038, Aug. 7, 2007) to propose new CE actions as directed in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1248, 2005). On February 16, 2011, (76 Fed. Reg. 8940) the Office of the Secretary published a notice requesting comments on an implementation plan in response to EO 13563 (Improving Regulation and Regulatory Review) on regulations, including DOT environmental regulations. FTA published an NPRM in March 2012, (77 Fed. Reg. 15310, Mar. 15, 2012), proposing to define CE actions that only pertain to FTA actions. Commenters on these notices made suggestions for new CEs. Requests for CEs that came from these solicitations are listed below in Table 4, along with the source of the suggestion and its date.

Table 4. Actions Suggested as New Categorical Exclusions Since 2005

Requests for New CEs from Secretary's October 2012 Survey Responses
As a result of the Secretary's survey questionnaire, included in Appendix A, 117 survey respondents suggested a total of 266 different actions for new CEs (Table 5). SDOTs provided the largest number of requested new CEs. Many actions suggested for new CEs were similar both within and among organization types.

Table 5: Number of requested CEs, by organization type

*The total number of requested CEs (343) is greater than the total number of requested new CEs (266) due to the fact that some respondents across organization types suggested the same actions for consideration as CEs in the future.

The requested actions covered a wide range of activities, including those related to the following (in order of frequency):

• Safety and operations (39 proposed actions)
• Maintenance and preservation actions (23)
• Bridges (18)
• Activities within existing right-of-way or urban areas (17)
• Railroads (16)
• Transit (15)
• Rehabilitation and reconstruction (12)
• Environmental mitigation (12)
• Bicycle and pedestrian facilities (10)
• Utilities, lighting, and signage (10)
• Actions consistent with existing plans or land use and those approved by other agencies (10)
• Culverts and waterways (6)
• Acquisitions (6)
• Excess right-of-way (6)
• Activities with limited Federal involvement/funding (5)
• Activities under a certain size/cost threshold (4)
• Alternative energy (3)
• Parking (3)
• Geotechnical work (3)
• Aesthetic treatments (3)
• Ferries (2)
• Other (46)

The complete list of requested CEs is included in Appendix B. Except in a few instances, responses did not indicate whether the requested actions were for listed or documented CEs.

Next Steps Regarding Designating New CEs through Rulemaking
Section 1318(b) of MAP-21 requires the Secretary to issue an NPRM to propose as new CEs those CEs identified through the survey review, or received in the survey solicitation request, to the extent that they meet the CE criteria in 23 CFR 771.117(a) and 40 CFR 1508.4. To meet this requirement, the FHWA and FTA, on the Secretary's behalf, will evaluate and determine which of these requested CEs are not otherwise duplicative, meet regulatory requirements, and can be substantiated as recommended by the CEQ Final Guidance for Federal Agencies and Departments on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act (75 Fed. Reg. 75628, Dec. 6, 2010).

If potential new CEs are identified in this evaluation, then the FHWA and FTA will develop a draft NPRM to propose new CEs through rulemaking. After appropriate coordination within the Federal Government an NPRM would be published in the Federal Register. The notice would contain a description of each action proposed as a new CE, whether the action would be a listed or documented CE, information on where the administrative record supporting the proposed CE designation can be viewed, and a request for comments on the proposal. A comment period would be identified in the notice and an electronic docket established for the submittal of comments through the Internet. After the close of the comment period, all comments submitted would be reviewed and considered in the process of drafting a final rule, if establishing the new CEs is determined appropriate at that time.

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Appendix A: MAP-21 Section 1318 Categorical Exclusion Survey

INSTRUCTIONS

Thank you for agreeing to complete the following survey based on your agency's experience.

INSTRUCTIONS: Section 1318 of MAP 21 provides, in part, that the Secretary (DOT) shall:

1. survey the use by the Department of categorical exclusions in transportation projects since 2005;
2. publish the review of the survey that includes a description of:
   1. the types of actions categorically excluded, and
   2. any requests previously received by the Secretary for new categorical exclusions.
3. solicit requests from State departments of transportation, transit authorities, metropolitan planning organizations, and other government agencies for new categorical exclusions.

The survey should take no more than approximately 120 minutes to complete, and should take less time depending on whether you are willing to provide supplementary information. Responses regarding past categorical exclusions (CEs) should be limited to the period since 2005.

Please email categorical.exclusion@dot.gov if you have questions or comments.

OMB CONTROL NUMBER: 2125-0632. This agency is required to display the OMB Control Number and inform respondents of its legal significance in accordance with 5 CFR 1320.5(b).

General Information

1. Please identify the name of your organization and the State in which you work.

Name (first, last): ________________________________

Organization: ________________________________

Position: ________________________________

State: ________________________________

Point of Contact Work Email Address: ________________________________

Point of Contact Phone Number: ________________________________

2. How many actions does your agency conduct that are processed annually as CEs?

Exact Number (if known): _______

Approximate Number: _______

3. And what proportion of your agency's program is processed as CEs? An estimate is acceptable.

Proportion (%): _______

Survey Questions

4. Does your agency have forms, checklists, or standardized templates for documenting actions processed as CEs?

Yes ____

No ____

5. Please send any forms or templates you might have to categorical.exclusion@dot.gov.

Check this button if you intend to email forms or templates to categorical.exclusion@dot.gov, otherwise click “Next.”

6. How does your agency assess that the CE class of action is appropriate (if your agency routinely makes this type of assessment)? Check all that apply.

___  The action appears on a list of CEs in regulation

___  The action appears in a prior agreement with a State of Federal agency

___  A project description is necessary to evaluate a proposed action

___  My agency consults with State and/or Federal environmental professionals to assess whether the CE class of action is appropriate

___  My agency does not routinely make this type of assessment

___  Other (please specify): ________________________________

7. Please select up to 10 types of categorical exclusions most frequently processed by your agency.

___  Activities which do not involve or lead directly to construction, such as planning and technical studies; grants for training and research programs; research activities as defined in 23 U.S.C. 307; approval of a unified work program and any findings required in the planning process pursuant to 23 U.S.C. 134; approval of statewide programs under 23 CFR part 630; approval of project concepts under 23 CFR part 476; engineering to define the elements of a proposed action or alternatives so that social, economic, and environmental effects can be assessed; and Federal aid system revisions which establish classes of highways on the Federal aid highway system.

___  Approval of utility installations along or across a transportation facility.

___  Construction of bicycle and pedestrian lanes, paths, and facilities.

___  Activities included in the State's highway safety plan under 23 U.S.C. 402.

___  Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the land transfer is in support of an action that is not otherwise subject to FHWA review under NEPA.

___  The installation of noise barriers or alterations to existing publicly owned buildings to provide for noise reduction.

___  Landscaping.

___  Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices where no substantial land acquisition or traffic disruption will occur.

___  Emergency repairs under 23 U.S.C. 125.

___  Acquisition of scenic easements.

___  Determination of payback under 23 U.S.C. 156 for property previously acquired with Federal aid participation.

___  Improvements to existing rest areas and truck weigh stations.

___  Ridesharing activities.

___  Bus and rail car rehabilitation.

___  Alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons.

___  Program administration, technical assistance activities, and operating assistance to transit authorities to continue existing service or increase service to meet routine changes in demand.

___  The purchase of vehicles by the applicant where the use of these vehicles can be accommodated by existing facilities or by new facilities which themselves are within a CE.

___  Track and rail bed maintenance and improvements when carried out within the existing right of way.

___  Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site.

___  Promulgation of rules, regulations, and directives.

___  Deployment of electronics, photonics, communications, or information processing used singly or in combination, or as components of a fully integrated system, to improve the efficiency or safety of a surface transportation system or to enhance security or passenger convenience. Examples include, but are not limited to, traffic control and detector devices, lane management systems, electronic payment equipment, automatic vehicle locaters, automated passenger counters, computer-aided dispatching systems, radio communications systems, dynamic message signs, and security equipment including surveillance and detection cameras on roadways and in transit facilities and on buses.

___  Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g., parking, weaving, turning, climbing).

___  Highway safety or traffic operations improvement projects including the installation of ramp metering control devices and lighting.

___  Bridge rehabilitation, reconstruction or replacement or the construction of grade separation to replace existing at-grade railroad crossings.

___  Transportation corridor fringe parking facilities.

___  Construction of new truck weigh stations or rest areas.

___  Approvals for disposal of excess right of way or for joint or limited use of right of way, where the proposed use does not have significant adverse impacts.

___  Approvals for changes in access control.

___  Construction of new bus storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not inconsistent with existing zoning and located on or near a street with adequate capacity to handle anticipated bus and support vehicle traffic.

___  Rehabilitation or reconstruction of existing rail and bus buildings and ancillary facilities where only minor amounts of additional land are required and there is not a substantial increase in the number of users.

___  Construction of bus transfer facilities (an open area consisting of passenger shelters, boarding areas, kiosks and related street improvements) when located in a commercial area or other high activity center in which there is adequate street capacity for projected bus traffic.

___  Construction of rail storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not inconsistent with existing zoning and where there is no significant noise impact on the surrounding community.

___  Acquisition of land for hardship or protective purposes.

___  Other (please specify): ________________________________

8. Would you like to propose any actions as new CEs, especially for new c-list CEs (actions that normally do not require any further NEPA approvals) including any that currently require documentation (d-list)?

Yes ____

No ____

Please identify the additional actions that you would like to propose as CE actions. ________________________________

9. Substantiation of newly proposed CE actions require a description to ensure that the category is limited to actions that have been shown not to have individual or cumulatively significant impacts. Please identify criteria that characterize the types of action that, based on experience, do not cause significant environmental impacts.

Please provide representative examples of the types of activities the proposed CE action(s) would cover. Finally, please provide examples of CE documentation on previously implemented actions, statements from professional staff, or expert opinion regarding the significance of the impacts of the CE. Also, please inform us if your proposed CE(s) has been recognized by other Federal agencies.

Click here for example information on materials that could be used to substantiate new CE action(s) and here for the Council on Environmental Quality's guidance on what constitutes substantiation information.

___  Please check this button if you intend to email information (to categorical.exclusion@dot.gov) that will substantiate your proposed CE action(s).

10. Has your agency proposed any new CEs to USDOT since 2005?

Yes ____

No ____

If yes, please identify the new CE(s) your agency has proposed to USDOT since 2005, and indicate whether your agency still believes the CE(s) is needed. ________________________________

11. Does your agency track the number of CEs and amount of time required to complete the documentation for each action processed as a categorical exclusion?

Yes ____

No ____

If yes, please describe the mechanism(s) used to track each action. If not, who in your organization would be available to provide input on whether and how such a tracking system would be helpful and what it should include? ________________________________

12. Does your agency require or offer training related to NEPA reviews?

Yes ____

No ____

13. What type of training related to NEPA reviews does your agency require or offer? Please select all that apply.

___  General NEPA and Project Development Training

___  Advanced NEPA and Project Development Training

___  Section 4(f)

___  Impacts to wetlands

___  Impacts to historic and archaeological resources

___  Impacts to threatened and endangered species

___  Brownfields and other hazardous waste sites

___  Public involvement

___  Stormwater

___  Environmental justice

___  Social impacts

___  Water quality

___  Coastal zones or barriers

___  Visual impacts

___  Other (please specify): ________________________________

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Appendix B: Actions Requested As New CEs in Survey Questionnaire

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