Chapter Trans 400

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.

Trans 400.08(1)(b)1. 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).

Trans 400.08(1)(b)2. 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.

Trans 400.08(1)(b)3. 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.

Trans 400.08(1)(b)4. 4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of the following grants by the department:

Trans 400.08(1)(b)4.a. a. Financial grant for railroad construction action that may require an EIS.

Trans 400.08(1)(b)4.b. b. Financial grant for construction of new port facilities.

Trans 400.08(1)(b)4.c. c. Financial grant for construction of a new disposal facility for harbor dredge material.

Trans 400.08(1)(b)4.d. d. Financial grant for dredging of material for the purpose of expanding an existing harbor.

Trans 400.08(1)(b)4.e. e. Financial grant for disposal of contaminated harbor dredge material into a new disposal facility.

Trans 400.08(1)(b)5. 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:

Trans 400.08(1)(b)5.a. 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.

Trans 400.08(1)(b)5.b. b. Change in policy for transport of hazardous cargo, such as explosives, hazardous wastes, toxins, radioactive material, or any other similar cargo.

Trans 400.08(1)(b)5.c. 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.

Trans 400.08(1)(b)5.d. d. Change in policy for acquisition of scenic easements.

Trans 400.08(1)(b)6. 6. ‘System planning.’ Publication or adoption of a system plan. Preparation of a SEE or EA for a system plan is discretionary.

Trans 400.08(1)(c) (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.

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

Trans 400.08(1)(c)2. 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.

Trans 400.08(1)(c)3. 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.

Trans 400.08(1)(c)4. 4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of grants by the department.

Trans 400.08(1)(c)4.a. 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.

Trans 400.08(1)(c)4.b. b. Financial grant for maintenance dredging of navigable waterway.

Trans 400.08(1)(c)4.c. c. Financial grant for disposal of contaminated dredge material at existing approved disposal facilities.

Trans 400.08(1)(d) (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.

Trans 400.08(1)(d)1. 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).

Trans 400.08(1)(d)2. 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.

Trans 400.08(1)(d)3. 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.

Trans 400.08(1)(d)4. 4. ‘Financial assistance.’ This provision applies to issuance as well as acceptance of the following grants by the department.

Trans 400.08(1)(d)4.a. 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.

Trans 400.08(1)(d)4.b. b. Financial grant for repair of an approved disposal facility for contaminated dredge material.

Trans 400.08(1)(d)4.c. c. Financial grant under the transportation economic assistance program for the construction of a local transportation facility.

Trans 400.08(1)(d)5. 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:

Trans 400.08(1)(d)5.a. a. Change in policy on artificial lighting for highways and airports.

Trans 400.08(1)(d)5.b. b. Change in policy for planting and landscaping on transportation corridors.

Trans 400.08(1)(d)5.c. c. Processing a contract change for significant changes in design.

Trans 400.08(1)(d)5.d. d. Major change in design standards or construction specifications.

Trans 400.08(2) (2) In addition, the following actions and activities of the department are categorized as CE actions:

Trans 400.08(2)(a) (a) Activities exempt by statute or approved as categorical exclusions by the United States council on environmental quality pursuant to 40 CFR 1508.4.

Trans 400.08(2)(b) (b) Enforcement activities.

Trans 400.08(2)(c) (c) Emergency activities to protect public health, safety and the human environment.

Trans 400.08(2)(d) (d) Ancillary activities which are part of a routine series of related department actions.

Trans 400.08(2)(e) (e) Actions which individually or cumulatively do not significantly affect the quality of the human environment and do not involve unresolved conflicts in the use of available resources.

Trans 400.08(2)(f) (f) The budget request of the department as a whole submitted to the department of administration and legislature pursuant to s. 16.42, Stats.

Trans 400.08(2)(g) (g) Proposals for enabling or conforming legislation that are required to be enacted to comply with federal law or federal standards as the department is authorized by ss. 20.395 (9) (qx), 84.01 (15), 84.015 and 84.03 (1), Stats., as a matter of federal preemption, but only to the extent so required and no further.

Trans 400.08(2)(h) (h) Reports or recommendation on proposals for legislation for which the department has performed or caused to be performed a SEE as an integral part of system plans.

Trans 400.08(2)(i) (i) Budget requests associated with implementation of a system plan for which a SEE has been completed.

Trans 400.08(2)(j) (j) Reports or recommendations on revenue proposals.

Trans 400.08(2)(k) (k) Expenditure or appropriation requests involving only an existing department program, except requests that constitute major and significant new proposals.

Trans 400.08(2)(L) (L) Reports or recommendations on proposals for legislation that have not been initiated by or sponsored by the department.

Trans 400.08(2)(m) (m) Budgetary proposals submitted in response to a request by the governor, the legislature, legislative committees, or individual legislators.

Trans 400.08(2)(n) (n) Reports or recommendations on proposals for legislation that relate to the level of transportation aids payments to local units of government, including mass transit aids.

Trans 400.08 History History: Cr. Register, April, 1992, No. 436, eff. 5-1-92; r. and recr. (1), am. (2) (intro.) and (a), Register, February, 1999, No. 518, eff. 3-1-99; CR 16-069: am. (1) (a) (intro.), 1. c., 2. a., b., (b) (intro.), r. and recr. (1) (b) 1., 2., am. (1) (b) 3., cr. (1) (b) 5. (intro.), renum. (1) (c) (intro.) to (1) (d) (intro.) and am., r. and recr. (1) (c) 1., 2., renum. (1) (c) 3., 4. to (1) (d) 3., 4. and am. 3., renum. (1) (d) (intro.) to (1) (c) (intro.) and am., r. and recr. (1) (d) 1., 2., renum. (1) (d) 3., 4. to (1) (c) 3., 4. and am. 3., am. (2) (a), (f) Register October 2019 No. 766, eff. 11-1-19; correction in (1) (c) 4. a. made under s. 35.17, Stats., Register October 2019 No. 766.

Trans 400.09 Trans 400.09 Scoping.

Trans 400.09(1) (1) As part of system plan development process, the department may perform SEE scoping. This scoping is to identify the issues to be addressed, alternatives to be analyzed, and the affected public or agencies involved in the system plan development. No scoping is required for reports or recommendations on proposals for legislation, LEIS’s, or ER or CE actions.

Trans 400.09(2) (2) For actions requiring an EIS or EA procedures, the department shall determine by means of scoping, insofar as possible at the time that a proposed action is approved for planning, development or implementation, the probable action designation, environmental review and agency coordination that will be required. If a decision to prepare an EIS is made, the department shall inform the public and affected agencies by publishing a notice of intent in the Wisconsin administrative register and a local newspaper of general circulation. The notice of intent shall include: