Agency Contact Person:
Daniel Scudder
State of Wisconsin Department of Transportation
Division of Transportation Systems Development
4802 Sheboygan Avenue Room 451
Madison, Wisconsin 53707
Phone Number: 608-267-3615
Place Where Comments Should Be Submitted and Deadline: Comments may be submitted to the agency contact person listed above or through the Legislature’s Administrative Rules website http://docs.legis.wisconsin.gov/code until the deadline given in the forthcoming notice of public hearing. TEXT OF PERMANENT RULE
SECTION 1. Trans 400.03 (note) is created to read:
Trans 400.03 Applicability. (note) The Wisconsin Environmental Policy Act (WEPA), s. 1.11 of the statutes, requires environmental documentation for major department actions that significantly affect the quality of the human environment. The National Environmental Policy Act (NEPA) and its implementing regulations similarly require environmental documentation for major federal actions, such as a federal agency approving the use of federal funds or issuing a permit for department actions. For department actions that require federal approval, the department prepares the required environmental documentation. Where NEPA applies to a department action, WEPA typically also applies. The intent of this chapter is to implement WEPA regulations that are consistent with NEPA and its implementing regulations for all department actions to which these laws apply. SECTION 2. Trans 400.04 (3) (note) is created to read:
Trans 400.04 (3) (note) The specific versions of federal regulations and federal agency orders as referenced throughout this chapter are adopted in s. Trans 400.05 and are reproduced at appendix 1 to this chapter. SECTION 3. Trans 400.04 (3) is amended to read:
Trans 400.04 (3) "Categorical exclusion" means an action which meets the definition of the term in the guidelines published by the United States council on environmental quality as a federal rule in 40 CFR 1508.4, July 1, 1990, and the rule published jointly by the federal highway administration and urban mass transit administration of the United States department of transportation and in 23 CFR 771.117, April 1, 1991, or the procedures published by 23 CFR 771.118, or chapter 6 of order 5050.4B of the federal aviation administration of the United States department of transportation as order 5050.4A, chapter 3, paragraph 23, October 8, 1985, or other actions of the department for which neither an EA, EIS nor other environmental documentation is required by this rule. SECTION 4. Trans 400.04 (4) is amended to read:
Trans 400.04 (4) "Cooperating agency" means any Native American tribe, or any local, state, or federal agency, other than the lead or transportation agency, which has jurisdiction by law over the proposed action or which has special expertise with respect to any relevant environmental effect generated by the proposed action or alternative.
SECTION 5. Trans 400.04 (5) is amended to read:
Trans 400.04 (5) "Department" means the Wisconsin department of transportation or a local agency when acting under the direction of the department.
SECTION 6. Trans 400.04 (10) is amended to read:
Trans 400.04 (10) "ER" or "environmental report" means a brief document used internally by the department to demonstrate a proposed action fits the criteria or conditions for approval as a categorical exclusion in 23 CFR 771.117 (d), April 1,1991, or has met the review criteria of paragraph 23.a. of chapter 3 of federal aviation administration order 5050.4A of October 8, 1985, under s. Trans 400.08 (1) (d) or has been properly coordinated with other agencies having jurisdiction by law over specific activities. SECTION 7. Trans 400.04 (15) is repealed.
SECTION 8. Trans 400.04 (22m) is created to read:
Trans 400.04 (22m) "Participating agency" means any Native American tribe or any local, state, or federal agency, other than the lead agency, with an interest in the project. "Participating agency" includes cooperating agencies but does not include nongovernmental organizations or other private entities.
SECTION 9. Trans 400.04 (24) is amended to read:
Trans 400.04 (24) "Reevaluation" means the review of a DEIS or FEIS an approved draft or final environmental document to assess whether there have been significant changes in the proposed action, the affected human environment, the anticipated environmental impacts, or the proposed mitigation measures.
SECTION 10. Trans 400.05 of the administrative code is amended to read:
Trans 400.05 Federal regulations adopted. Federal regulations, 23 CFR 21771.115, 771.117, 771.119(a) and 771.123(a), April 1, 1998, adopted jointly by the federal highway administration and urban mass transit administration of the United States department of transportation, and its federal aviation administration order 5050.4A, chapter 3, paragraphs 20, 21, 22, and 23, October 8, 1985, pursuant to 40 CFR 1508.4, July 1, 1998, as approved by the United States council on environmental quality, and 40 CFR 1506.8 and 1508.17 References throughout this chapter to federal regulations and orders are to the following specific versions, which are hereby adopted by the department and are attached hereto in appendix 1: 23 CFR ss. 771.115, 771.117, and 771.118, April 1, 2015; 40 CFR ss. 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. SECTION 11. Trans 400.05 (note) is repealed.
SECTION 12. Trans 400.06 (5) is amended to read:
Trans 400.06 (5) Measures necessary to avoid, minimize and to mitigate for the mitigation of adverse environmental impacts of proposed actions shall be part of the development and evaluation of alternatives.
SECTION 13. Trans 400.06 (6) is amended to read:
Trans 400.06 (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, July 1, 1990, that which are attached hereto in appendix 1. Environmental documents shall be concise, clear, and to the point and emphasize real environmental issues and alternatives. SECTION 14. Trans 400.07 (2) (intro.) is amended to read:
Trans 400.07 (2) (intro.) Except for actions designated CE actions which do not require any environmental documentation, actions Actions and procedures designated EIS, EA or ER shall require the following environmental documentation:
SECTION 15. Trans 400.07 (2) (b) 1. is amended to read:
Trans 400.07 (2) (b) 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(See PDF for image) 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.
SECTION 16. Trans 400.07 (2) (c) (intro.) is amended to read:
Trans 400.07 (2) (c) (intro.) 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), April 1, 1998 23 CFR 771.118 (d), or federal aviation administration order 5050.4A, chapter 3, paragraph 23.a., October 8, 1985, 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: SECTION 17. Trans 400.08 (1) (a) (intro.) is amended to read:
Trans 400.08 (1) (a) EIS − Environmental Impact Statement. The federal highway administration regulations at 23 CFR 771.115(a) April 1, 1998, federal aviation administration order 5050.4A, chapter 3, paragraph 21, October 8, 1985, identify types of federally funded actions which require the preparation of an environmental impact statement. The following are examples of department major actions that normally require the preparation of an environmental impact statement: SECTION 18. Trans 400.08 (1) (a) (note) is repealed.
SECTION 19. Trans 400.08 (1) (a) 1. c. is amended to read:
Trans 400.08 (1) (a) 1. c. New construction Construction or extension of a fixed rail transit facilities including facility, such as rapid rail, light rail, commuter rail, and automated guideway transit or bus rapid transit that will not be located within an existing transportation right−of−way.
SECTION 20. Trans 400.08 (1) (a) 2. a. is amended to read:
Trans 400.08 (1) (a) 2. a. First time Unconditionally approving or funding the first airport layout plan approval or airport location approval for a new commercial service airport located in a standard metropolitan statistical area.
SECTION 21. Trans 400.08 (1) (a) 2. b. is amended to read:
Trans 400.08 (1) (a) 2. b. Federal financial participation in, or airport layout plan approval of, Unconditionally approving or funding a new runway capable of handling to accommodate air carrier aircraft at a commercial service airport located in a standard metropolitan statistical area.
SECTION 22. Trans 400.08 (1) (a) 3. (note) is amended to read:
Trans 400.08 (1) (a) 3. (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. The federal railroad administration regulation at 49 CFR 266.19, October 1, 1997, generally identifies actions that do not require an environmental impact statement. SECTION 23. Trans 400.08 (1) (b) (intro.) is amended to read:
Trans 400.08 (1) (b) (intro.) 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. The federal highway administration regulations at 23 CFR 771.115(c) April 1, 1998, and the federal aviation order 5050.4A, chapter 3, paragraph 22, October 8, 1985 identify the types of federal actions that require the preparation of an environmental assessment. Examples of the department’s actions that are required to follow the EA procedure are as follows: SECTION 24. Trans 400.08 (1) (b) 1. is repealed and recreated to read:
Trans 400.08 (1) (b) 1. ‘Highways and transit.’ In addition to actions the department determines 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). SECTION 25. Trans 400.08 (1) (b) 2. is repealed and recreated to read:
Trans 400.08 (1) (b) 2. ‘Airports.’ In addition to actions the department determines 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.
SECTION 26. Trans 400.08 (1) (b) 3. is amended to read:
Trans 400.08 (1) (b) 3. Administrative facilities. Construction 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.
SECTION 27. Trans 400.08 (1) (b) 5. (intro.) is amended to read:
(See PDF for image)Trans 400.08 (1) (b) 5. (intro.) Policy, contract, standard, and specification changes. Examples of department actions regarding policy, contract, standard, and specification changes to which EA procedures normally apply are:
SECTION 28. Trans 400.08 (1) (c) (intro.) is renumbered Trans 400.08 (1) (d)
(intro.) and amended to read:
Trans 400.08 (1) (d) (intro.) ER − Environmental Report. ER procedures apply to actions identified in 23 CFR 771.117(d), April 1, 1998, and federal aviation administration order 5050.4A, chapter 3, paragraph 23a., October 8, 1985. 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. Examples of ER actions to which ER procedures apply are as follows: SECTION 29. Trans 400.08 (1) (c) 1. is repealed and recreated to read:
Trans 400.08 (1) (c) 1. ‘Highways and transit.’ In addition to actions the department determines meet the criteria for a CE action under this chapter, the department may classify as CE actions those highway and transit actions identified in 23 CFR 771.117 (c) and 23 CFR 771.118 (c). SECTION 30. Trans 400.08 (1) (c) 2. is repealed and recreated to read:
Trans 400.08 (1) (c) 2. ‘Airports.’ In addition to actions the department determines 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.
SECTION 31. Trans 400.08 (1) (c) 3. is renumbered Trans 400.08 (1) (d) 3. and amended to read:
Trans 400.08 (1) (d) 3. Administrative facilities. Extensive 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.
SECTION 32. Trans 400.08 (1) (c) 4. is renumbered 9 Trans 400.08 (1) (d) 4.
SECTION 33. Trans 400.08 (1) (c) 5. is renumbered Trans 400.08 (1) (d) 5., and Trans 400.08 (1) (d) 5. (intro.), as renumbered, is amended to read:
