Chapter Trans 400

Trans 400.03 Trans 400.03 Applicability.

Trans 400.03(1) (1) The provisions of this chapter shall apply to all department actions which may affect the quality of the human environment.

Trans 400.03(2) (2) Where another state or federal agency has concurrent responsibility with the department for a proposed EA action, a joint environmental assessment, or EA, may be prepared with the other agency if the EA meets the requirements of this chapter. The department shall make an independent judgment on the need for an environmental impact statement, or EIS, in accordance with this chapter.

Trans 400.03(3) (3) Where a proposed action involves another state or federal agency approval or decision, and it has been determined that an EIS shall be prepared in accordance with NEPA or WEPA, the WEPA requirement for an EIS under this chapter may be waived if:

Trans 400.03(3)(a) (a) A joint EIS is prepared; or

Trans 400.03(3)(b) (b) After review of the other state or federal EIS by the department, it appears that the requirements as to content of the EIS prescribed in s. 1.11, Stats., and this chapter have been met, and the EIS was developed and prepared through appropriate participation by the department with the other agencies in a coordinated effort to satisfy the requirement of NEPA and WEPA.

Trans 400.03(4) (4) If the joint EIS under sub. (3) appears to comply with the requirements of WEPA and this chapter, public hearings shall be held in accordance with this chapter unless they are held in Wisconsin by the lead agency with effective participation by the department.

Trans 400.03(5) (5) The department may accept certification of compliance by a county, city, village or town with any environmental laws applicable to improvements under the jurisdiction of the local government for which reimbursement is sought from the department through the local roads improvement program in s. 86.31, Stats.

Trans 400.03 Note Note: The Wisconsin Environmental Policy Act (WEPA), s. 1.11, Stats., 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.

Trans 400.03 History History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; am. (2), Register, February, 1999, No. 518, eff. 3-1-99.

Trans 400.04 Trans 400.04 Definitions. In this chapter:

Trans 400.04(1) (1) “Access roads” means the various, incidental, public roads that provide service and access to state parks, national and state forests, and state institutions.

Trans 400.04(2) (2) “Alternatives” means other reasonable actions or activities which may achieve the same or altered purpose of the proposed action including the alternative of taking no action.

Trans 400.04(3) (3) “Categorical exclusion” means an action which meets the definition of the term in 40 CFR 1508.4, and in 23 CFR 771.116, 23 CFR 771.117, 23 CFR 771.118, or chapter 6 of order 5050.4B of the federal aviation administration of the United States department of transportation, or other actions of the department for which neither an EA, EIS nor other environmental documentation is required by this rule.

Trans 400.04 Note 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.

Trans 400.04(4) (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.

Trans 400.04(5) (5) “Department” means the Wisconsin department of transportation or a local agency when acting under the direction of the department.

Trans 400.04(6) (6) “DEIS” or “draft environmental impact statement” means the preliminary version of an EIS.

Trans 400.04(7) (7) “EA” or ‘‘environmental assessment” means a concise, comprehensive document containing an analysis of a proposed action to determine the significance of the action’s environmental effects and whether or not the action constitutes a major action.

Trans 400.04(8) (8) “Environmental effect” or “environmental impact” means a beneficial or adverse influence resulting from an action of the department. The term includes ecological, aesthetic, historic, cultural, economic, social or health effects.

Trans 400.04(9) (9) “EIS” or “environmental impact statement” means a written report containing an analysis of a proposed major action and its alternatives to identify and address their effects on the quality of the human environment.

Trans 400.04(10) (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 under s. Trans 400.08 (1) (d) or has been properly coordinated with other agencies having jurisdiction by law over specific activities.

Trans 400.04(11) (11) “FEIS” or “final environmental impact statement” means the final version of an EIS.

Trans 400.04(12) (12) “FONSI” or ”finding of no significant impact” means an approved, completed EA containing a finding that the proposed action is not a major action.

Trans 400.04(13) (13) “Human environment” means the natural or physical environment and the relationship of people with that environment.

Trans 400.04(14) (14) “Joint lead agency” means the department together with any local, state or federal agency having equal responsibility for the preparation, content and processing of an environmental document for a proposed action.

Trans 400.04(16) (16) “Lead agency” means the local, state or federal agency preparing or having taken primary responsibility for preparing the environmental document for a proposed action.

Trans 400.04(17) (17) “LEIS” or “legislative environmental impact statement” means a written report containing an analysis to identify and address the effects on the quality of the human environment of a department-initiated report or recommendation on a proposal for legislation.

Trans 400.04(18) (18) “Major action” means an action that will have significant effects on the quality of the human environment. It does not include actions whose significance is based only on economic or social effects.

Trans 400.04(19) (19) “Major and significant new proposal” means a new proposal developed by the department which, if legislatively authorized and funded, may significantly affect the quality of the human environment and represents a significant departure from, or expansion of, the department’s existing responsibilities by substantially expanding or substantially reducing total resources allocated to any existing programs.

Trans 400.04(20) (20) “Mitigation” means avoiding, minimizing, rectifying, reducing, eliminating or compensating for adverse environmental effects of a proposed action.

Trans 400.04(21) (21) “NEPA” means the national environmental policy act, 42 USC 4321, et seq.

Trans 400.04(22) (22) “Notice of availability,” “notice of intent,” “notice of opportunity for public hearing” or “notice of public hearing” means a class 1 notice as defined in ch. 985, Stats.

Trans 400.04(22m) (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.

Trans 400.04(23) (23) “ROD” or “record of decision” means a public record which identifies:

Trans 400.04(23)(a) (a) The department’s selected course of action.

Trans 400.04(23)(b) (b) The selected action’s environmental effects.

Trans 400.04(23)(c) (c) Alternatives to the action that were considered.

Trans 400.04(23)(d) (d) Mitigation measures selected.

Trans 400.04(23)(e) (e) Reason for rejection of suggested reasonable mitigation measures.

Trans 400.04(24) (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.

Trans 400.04(25) (25) “Scoping” means an early, open process with the public and public agencies for identifying the anticipated range of issues for a proposed action.

Trans 400.04(26) (26) “Significant effects” means considerable and important impacts of department actions on the quality of the human environment.

Trans 400.04(27) (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.

Trans 400.04(28) (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.

Trans 400.04(29) (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.

Trans 400.04(30) (30) “WEPA” means the Wisconsin environmental policy act, s. 1.11, Stats.

Trans 400.04 History 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 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.

Trans 400.05 History 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 Trans 400.06 Policy.

Trans 400.06(1) (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.

Trans 400.06(2) (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.

Trans 400.06(3) (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.

Trans 400.06(4) (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.

Trans 400.06(5) (5) Measures necessary for the mitigation of adverse environmental impacts of proposed actions shall be part of the development and evaluation of alternatives.

Trans 400.06(6) (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.

Trans 400.06(7) (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.

Trans 400.06 History 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 Trans 400.07 Action designation and environmental documentation.

Trans 400.07(1) (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.

Trans 400.07(2) (2) Actions and procedures designated EIS, EA or ER shall require the following environmental documentation:

Trans 400.07(2)(a) (a) EIS or LEIS. An EIS action is a major action. An LEIS may be prepared for a major and significant new proposal.

Trans 400.07(2)(a)1. 1. An environmental impact statement, or EIS, shall be prepared for major actions.

Trans 400.07(2)(a)2. 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.

Trans 400.07(2)(b) (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:

Trans 400.07(2)(b)1. 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.

Trans 400.07(2)(b)2. 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.

Trans 400.07(2)(b)3. 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.

Trans 400.07(2)(c) (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:

Trans 400.07(2)(c)1. 1. Construction-related activities including, but not limited to, stream crossings, fills in wetlands and temporary structures in or over streams or wetlands.

Trans 400.07(2)(c)2. 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.

Trans 400.07 History 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 Trans 400.08 Categorization of department actions.

Trans 400.08(1) (1) Based on federal regulations and past experience with analysis of similar actions the following are categorized as EIS, EA, ER or CE:

Trans 400.08(1)(a) (a) EIS — Environmental Impact Statement. The following are examples of department major actions that normally require the preparation of an environmental impact statement:

Trans 400.08(1)(a)1. 1. ‘Highways and transit.’

Trans 400.08(1)(a)1.a. a. Construction of a new controlled access freeway.

Trans 400.08(1)(a)1.b. b. Construction of a new highway project of 4 or more lanes on a new location.

Trans 400.08(1)(a)1.c. 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.

Trans 400.08(1)(a)1.d. d. New construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility.

Trans 400.08(1)(a)2. 2. ‘Airports.’

Trans 400.08(1)(a)2.a. a. Unconditionally approving or funding the first airport layout plan or airport location for a new commercial service located in a metropolitan statistical area.

Trans 400.08(1)(a)2.b. b. Unconditionally approving or funding a new runway to accommodate air carrier aircraft at a commercial service airport located in a metropolitan statistical area.

Trans 400.08(1)(a)3. 3. ‘Railroads.’

Trans 400.08(1)(a)3.a. a. Construction of a new major railroad.

Trans 400.08(1)(a)3.b. b. Construction of new major facilities to handle freight, maintenance or passengers.

Trans 400.08 Note 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.

Trans 400.08(1)(b) (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.