Wisconsin Legislature: Trans 400.07(2)(a)2.

(a) The department’s selected course of action.

(b) The selected action’s environmental effects.

(d) Mitigation measures selected.

(e) Reason for rejection of suggested reasonable mitigation measures.

(24) “Reevaluation” means the review of an approved draft or final environmental document, including DEIS, FEIS, ROD, EA, FONSI, ER, and CE, to assess whether there have been changes in the proposed action, the applicable laws, regulations, or policies, the affected human environment, the anticipated environmental impacts, or the proposed mitigation measures.

(25) “Scoping” means an early, open process with the public and public agencies for identifying the anticipated range of issues for a proposed action.

(26) “Significant effects” means considerable and important impacts of department actions on the quality of the human environment.

(27) “SEE” or “system-plan environmental evaluation” means a conceptual environmental evaluation, that shall be considered the “detailed statement” required by statute commonly known as“environmental impact statement,” developed as an integral element of a system plan that contemplates that if the plan recommendations are implemented, there will be subsequent project or site-specific environmental reviews. A SEE also serves as the LEIS regarding reports or recommendations on legislation required to implement the plan.

(28) “System plan” means a plan which identifies transportation facility or service needs for a statewide system. The needs are identified conceptually without addressing specific design and locational details.

(29) “Tiering” means the coverage of general matters in a broad EIS with subsequent narrower statements or environmental analyses which incorporate by reference the general discussion of the EIS.

(30) “WEPA” means the Wisconsin environmental policy act, s. 1.11, Stats.

History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; am. (7) and (12), Register, February, 1999, No. 518, eff. 3-1-99; CR 16-069: am. (3) to (5), (10), r. (15), cr. (22m), am. (24) Register October 2019 No. 766, eff. 11-1-19.

Trans 400.05 Federal regulations adopted. References throughout this chapter to federal regulations and orders are hereby adopted by the department and are attached hereto in appendix 1: 23 CFR 771.115, 771.116, 771.117, and 771.118, April 1, 2015; 40 CFR 1500.4, 1500.5, 1506.8, and 1508.4, July l, 2015; 49 CFR 266.19, October 1, 2014; and the United States department of transportation federal aviation administration order 5050.4B, chapters 6, 7, and 9, April 28, 2006.

History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; am. Register, February, 1999, No. 518, eff. 3-1-99; CR 16-069: am. Register October 2019 No. 766, eff. 11-1-19.

Trans 400.06 Policy.

(1) The department shall strive to protect and enhance the quality of the human environment in carrying out its basic transportation mission and shall consider pertinent environmental factors consequential to any proposed actions. The policy expressed in this section and the procedures defined in this chapter shall be implemented as an integrated process beginning during the initial planning stage for department action.

(2) The department acknowledges WEPA as a legal obligation shared by all divisions of the department to evaluate and be aware of environmental consequences of proposed actions.

(3) Alternative courses of action shall be evaluated and decisions on proposed actions shall be made in the best overall public interest consistent with state and federal statutes and regulations. Decisions on proposed actions shall be based upon a balanced consideration of the findings of the environmental document, public comments, and the need for safe and efficient transportation consistent with local, state and national environmental goals.

(4) Public involvement, interagency coordination and consultation, and a systematic interdisciplinary approach to analysis of the issues shall be essential parts of the environmental process for proposed actions.

(5) Measures necessary for the mitigation of adverse environmental impacts of proposed actions shall be part of the development and evaluation of alternatives.

(6) The department shall implement procedures to make the WEPA process more useful to decision makers and the public by reducing paperwork and reducing delay utilizing the means for achieving these goals as specified in the rules of the United States council on environmental quality at 40 CFR 1500.4 and 1500.5, which are attached hereto in appendix 1. Environmental documents shall be concise, clear, and to the point and emphasize real environmental issues and alternatives.

(7) In carrying out its responsibility under s. 1.11, Stats., the department shall substantially follow the guidelines issued as rules by the United States council on environmental quality and federal transportation agencies.

History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; CR 16-069: am. (5), (6) Register October 2019 No. 766, eff. 11-1-19; correction in (1) made under s. 35.17, Stats., Register October 2019 No. 766.

Trans 400.07 Action designation and environmental documentation.

(1) The designations, EIS and CE shall be used to categorize department actions. Actions designated EIS actions shall be considered major actions, and actions designated CE shall be considered categorical exclusions. An EA and an ER describe procedures to be followed to categorize department actions. The EA process yields a determination whether an action requires an EIS or a finding of no significant impact. The ER process confirms whether an action falls within a categorical exclusion or requires further evaluation and documentation.

(2) Actions and procedures designated EIS, EA or ER shall require the following environmental documentation:

(a) EIS or LEIS. An EIS action is a major action. An LEIS may be prepared for a major and significant new proposal.

1. An environmental impact statement, or EIS, shall be prepared for major actions.

2. A legislative environmental impact, or LEIS, may be prepared when a major and significant new proposal consists of a report or recommendation of the department on a proposal for legislation initiated by the department that is not within the scope of any categorical exclusion.

(b) EA, SEE or screening sheet. An EA is a procedure followed for an action for which the significance of the environmental impact is not clearly established. An EA, SEE or screening sheet may be used as follows:

1. An EA shall be prepared for those project actions for which the significance of the environmental impact is not clearly established. If it is concluded from the analysis in the EA that the action is a major action, an EIS shall be prepared. If it is concluded from the analysis in the EA that the action is not a major action, the EA shall be revised to constitute a FONSI, and the FONSI shall serve as the environmental document. The FONSI shall be prepared only after

availability of the EA for public, and cooperating and participating agency, review and comment and the incorporation of any appropriate revisions resulting from the public involvement process. Where a permit will be required or other agency coordination is specifically required by law, the FONSI may serve as the vehicle for such permit or coordinating agency approval.

2. A SEE may be prepared in the case of proposals contained in system plans, if it is concluded they are major and significant new proposals. If it is concluded from an analysis of the system plan that it does not contain any major and significant new proposals, a clear statement of that determination may be incorporated within the system plan or as a separately identifiable and retained record of the department’s determination.

3. In the case of reports or recommendations of the department on proposals for legislation initiated by the department, if it is concluded from the screening sheet they contain major and significant new proposals, an LEIS may be prepared. If it is concluded from the screening sheet that they do not contain any major and significant new proposals or are within the scope of any categorical exclusion, a clear statement of that determination may be included on the screening sheet.

(c) ER. An ER is a procedure followed for an action that is likely to fit the criteria for a conditional categorical exclusion in 23 CFR 771.117 (d), 23 CFR 771.118 (d), or federal aviation administration order 5050.4B, chapter 6, paragraph 605, or otherwise requires coordination with or concurrence of another agency. An environmental report, or ER, shall be prepared to demonstrate whether the proposed action does fit the criteria or conditions for approval as a categorical exclusion and has been properly coordinated with other agencies having jurisdiction by law over specific activities. The ER shall serve as the department’s record of coordination with other agencies having jurisdiction over specific activities, including the following activities:

1. Construction-related activities including, but not limited to, stream crossings, fills in wetlands and temporary structures in or over streams or wetlands.

2. Defined land use acquisition including, but not limited to, the acquisition of agricultural lands, historic or archeological sites, and state, county or national forest lands.

History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; am. (1), (2) (intro.), (a), (b) and (c) (intro.), Register, February, 1999, No. 518, eff. 3-1-99; CR 16-069: am. (2) (intro.), (b) 1., (c) (intro.) Register October 2019 No. 766, eff. 11-1-19.

Trans 400.08 Categorization of department actions.

(1) Based on federal regulations and past experience with analysis of similar actions the following are categorized as EIS, EA, ER or CE:

(a) EIS — Environmental Impact Statement. The following are examples of department major actions that normally require the preparation of an environmental impact statement:

1. ‘Highways and transit.’

a. Construction of a new controlled access freeway.

b. Construction of a new highway project of 4 or more lanes on a new location.

c. Construction or extension of a fixed transit facility, such as rapid rail, light rail, commuter rail, or bus rapid transit that will not be located within an existing transportation right-of-way.

d. New construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility.

2. ‘Airports.’

a. Unconditionally approving or funding the first airport layout plan or airport location for a new commercial service located in a metropolitan statistical area.

b. Unconditionally approving or funding a new runway to accommodate air carrier aircraft at a commercial service airport located in a metropolitan statistical area.

3. ‘Railroads.’

a. Construction of a new major railroad.

b. Construction of new major facilities to handle freight, maintenance or passengers.

Note: The federal highway administration regulations at 23 CFR 771.115 (a) and federal aviation administration order 5050.4B, chapter 9, paragraph 903, identify types of federally funded actions which normally require the preparation of an environmental impact statement.

(b) EA — Environmental Assessment. EA procedures apply to actions for which the significance of the environmental impacts is not clearly established and require the preparation of an environmental assessment to make that determination.

1. ‘Highways and transit.’ In addition to actions the department determines to meet the criteria for an EA action under this chapter, the department may apply EA procedures to the highway and transit actions generally identified in 23 CFR 771.115 (c).

2. ‘Airports.’ In addition to actions the department determines to meet the criteria for an EA action under this chapter, the department may apply EA procedures to actions generally identified in federal aviation administration order 5050.4B.

3. ‘Administrative facilities.’ Examples of department actions regarding administrative facilities to which EA procedures normally apply are: construction of a new or replacement administrative building, including an office building, state patrol academy, driver licensing and testing station, state patrol communications building, or other similar facility, at a new location.

4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of the following grants by the department:

a. Financial grant for railroad construction action that may require an EIS.

b. Financial grant for construction of new port facilities.

c. Financial grant for construction of a new disposal facility for harbor dredge material.

d. Financial grant for dredging of material for the purpose of expanding an existing harbor.

e. Financial grant for disposal of contaminated harbor dredge material into a new disposal facility.

5. ‘Policy, contract, standard and specification changes.’ Examples of department actions regarding policy, contract, standard, and specification changes to which EA procedures normally apply are:

a. Change in policy for nonhighway use of highway right-of-way or non-railroad use of railroad right-of-way by utility companies, or for access to public roads or private residential or commercial driveways or farm crossings.

b. Change in policy for transport of hazardous cargo, such as explosives, hazardous wastes, toxins, radioactive material, or any other similar cargo.

c. Change in policy for the maintenance program relating to the use of deicing materials, or to the use of pesticides, herbicides or insecticides within the right-of-way, or to the use of cutback asphalt or creosoted ties, or other similar materials.

d. Change in policy for acquisition of scenic easements.

6. ‘System planning.’ Publication or adoption of a system plan. Preparation of a SEE or EA for a system plan is discretionary.

(c) CE — Categorical Exclusions. CE actions are categorically excluded from the requirement to prepare environmental documentation because, based on past experience with similar actions, they do not involve significant environmental impacts. They are actions which do not induce significant impacts to planned growth or land use for the area, do not require the relocation of significant numbers of people, do not have a significant impact on any natural, cultural, recreational, historic or other resource, do not involve significant air, noise, or water quality impacts, do not have significant impacts on travel patterns, and do not otherwise, either individually or cumulatively, have any significant environmental impacts.

1. ‘Highways, transit, and rail.’ In addition to actions the department determines to meet the criteria for a CE action under this chapter, the department may classify as CE actions those highway, transit, and rail actions identified in 23 CFR 771.116 (c), 23 CFR 771.117 (c), and 23 CFR 771.118 (c).

2. ‘Airports.’ In addition to actions the department determines to meet the criteria for a CE action under this chapter, the department may classify as CE actions those airport actions identified in federal aviation administration order 5050.4B.

3. ‘Administrative facilities.’ Examples of department actions regarding administrative facilities that are classified as CE actions are: minor construction or expansion of an airport facility, such as a runway, taxiway, apron, service or entrance road, or passenger handling or parking facility.

4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of grants by the department.

a. Financial grant for repair or modification of existing facilities in locations below ordinary high water mark that are within an area designated by a bulkhead line, a lake bed grant, or a submerged lands lease.

b. Financial grant for maintenance dredging of navigable waterway.

c. Financial grant for disposal of contaminated dredge material at existing approved disposal facilities.

(d) ER — Environmental Report. ER actions require documentation with an environmental report. The environmental report shall demonstrate that the action meets the criteria for a categorical exclusion by demonstrating that specific conditions or criteria for the action have been addressed and that significant environmental effects will not result.

1. ‘Highways, transit, and rail.’ In addition to actions the department determines to meet the criteria for an ER action under this chapter, the department may apply ER procedures to the highway, transit, and rail actions identified in 23 CFR 771.116 (d), 23 CFR 771.117 (d) and 23 CFR 771.118 (d).

2. ‘Airports.’ In addition to actions the department determines to meet the criteria for an ER action under this chapter, the department may apply ER procedures to actions identified in the federal aviation administration order 5050.4B.

3. ‘Administrative facilities.’ Examples of department actions regarding administrative facilities to which ER procedures normally apply are: extensive remodeling, expansion or modification of an administrative building, including an office building, state patrol academy, driver licensing and testing station, state patrol communications building, or other similar facility, which either substantially increases the capacity of the facility or substantially changes its use.

4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of the following grants by the department.

a. Financial grant for repair or modification of existing port facilities in locations below the ordinary high-water mark that are not within an area designated by a bulkhead line, a lake bed grant, or a submerged lands lease.

b. Financial grant for repair of an approved disposal facility for contaminated dredge material.

c. Financial grant under the transportation economic assistance program for the construction of a local transportation facility.

5. ‘Policy, contract, standard and specification changes.’ Examples of department actions regarding policy, contract, standard, and specification changes to which ER procedures normally apply are:

a. Change in policy on artificial lighting for highways and airports.

b. Change in policy for planting and landscaping on transportation corridors.

c. Processing a contract change for significant changes in design.