STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER AMENDING PERMANENT RULE
The Wisconsin Department of Transportation proposes an order to:
Create ss. Trans 400.03 (note), 400.04 (3) (note), (22m), 400.10 (4) (a) 1g., 400.11 (7) (b), (8), 400.12 (4) (b), 400.13 (1) (am), (3), 400.14 (3); amend ss. Trans 400.04 (3), (4), (5), (10), (24), 400.05, 400.06 (5), (6), 400.07 (2) (intro), (2) (b) 1., (2) (c) (intro), 400.08 (1) (a) (intro), (1) (a) 1. c., (1) (a) 2. a., (1) (a) 2. b., (1) (a) 3. (note), (1) (b) (intro), (1) (b) 3., (1) (b) 5. (intro), (2) (a), (2) (f), 400.09 (4) (e), 400.10 (4) (a) 5., (5) (intro), 400.11 (2), (4), (5) (a), (5) (c), 400.12 (3) (a), (4) (title), 400.13 (1) (b) (intro), (2) (a), 400.14 (1) (a), (2) (a); repeal ss. Trans 400.04 (15), 400.05 (note), 400.08 (1) (a) (note), 400.11 (1) (b) 1. to 4., (3) (b) 1. to 4., (5) (b) 1. to 5., 400.13 (1) (a); repeal and recreate ss. Trans 400.08 (1) (b) 1., (1) (b) 2., (1) (c) 1., (1) (c) 2., (1) (d) 1., (1) (d) 2., 400.10 (3) (c); renumber and amend ss. Trans 400.08 (1) (c) (intro), (1) (c) 3., (1) (d) 5. (intro), (1) (d) (intro), (1) (d) 3., 400.10 (4) (a) 1., 400.11 (b) (intro), (3) (b) (intro), (5) (b) (intro), (7), 400.12 (4), and to renumber ss. Trans 400.08 (1) (c) 4., (1) (c) 5., (1) (d) 4.
The Statement of Scope for this Permanent Rule, SS 060-16, was approved by the Governor on July 11, 2016, published in Register No. 727A3 on July 18, 2016, and approved by Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., as required by s. 227.135 (2), Stats, on August 1, 2016. The analysis below was prepared by the Department. ANALYSIS
Statutes Interpreted: Section 1.11, Stats. Explanation of Agency Authority: Section 1.11, Stats., directs the Department to prepare a detailed statement to be included in every recommendation or report on proposals for major Department actions that significantly affect the quality of the human environment. Section 85.16 (1) authorizes the secretary to “make reasonable and uniform orders and rules deemed necessary to the discharge of the powers, duties and functions vested in the department.” Similarly, and subject to certain conditions and limitations, s. 227.11 (2), Stats., authorizes agencies to promulgate rules to interpret the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute. Related Statute or Rule: No additional statutes or rules than those identified.
Plain Language Analysis: Chapter Trans 400 implements the Wisconsin Environmental Policy Act (WEPA), s. 1.11, Stats., by establishing the policy and procedures by which the Department will evaluate and consider the environmental effects of its major actions. Local units of government must also follow ch. Trans 400 when undertaking local projects with state or federal funding under s. 86.31, Stats. To maximize availability of federal funds, ch. Trans 400 was written to parallel the National Environmental Policy Act (NEPA) regulations promulgated by various federal agencies. Recent updates to federal law, rules and guidance, including updates to the federal transportation funding bill MAP-21 and the Federal Highway Administration’s and Federal Transit Administration’s NEPA regulations and guidance, have incorporated provisions that are intended to streamline and allow innovation in the environmental review process. As a result, ch. Trans 400 potentially imposes more restrictive procedural requirements on the Department than state statute or federal laws. The proposed updates would incorporate recent federal streamlining provisions to re-establish consistency between federal and state rules for environmental documents related to transportation. The proposed updates also consolidate references to federal rules and policies to improve readability and reduce future rulemaking efforts to keep specific citations current. In addition, this rulemaking addresses non-substantive errors and provisions that may be perceived as internally inconsistent in the current rule.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: WEPA, as implemented through ch. Trans 400, applies to all major Department actions. To ensure the availability of federal funds and other federal approvals, Department actions must also follow NEPA. Like WEPA, NEPA imposes a broad mandate to consider environmental impacts of major actions, but does not prescribe many procedural specifics. As such, various federal agencies have promulgated rules and guidance that establish federal NEPA procedural requirements. Most relevant for the department, these agencies include the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), the Federal Aviation Administration (FAA), and the Federal Railroad Administration (FRA). The President’s Council on Environmental Quality (CEQ) also promulgates general NEPA regulations, found at 40 CFR Parts 1500 to 1508. The CEQ’s regulations apply to all federal agency actions, such as approving the use of federal funds on state-administered transportation projects. The most substantive regulations that impact Department highway project development are the regulations found at 23 CFR §§ 771.101 to 771.139 (FHWA’s NEPA regulations). Although promulgated under the FHWA heading, these regulations apply to all U.S. DOT highway and public transportation projects. FHWA’s NEPA regulations are also intended to incorporate the general CEQ regulations. Chapter Trans 400 was written to closely parallel FHWA’s NEPA regulations to ensure department actions meet both state and federal requirements. Over the years, both FHWA’s NEPA regulations and ch. Trans 400 have been updated to incorporate new policies or new directives from Congress. Recently, Congress approved significant changes to U.S. DOT’s environmental review process as part of the most recent federal surface transportation funding bill, the Moving Ahead for Progress in the 21st Century Act (MAP-21), P.L. 112-141, 126 Stat. 405-986 (2012). These changes are intended to streamline the environmental review process for transportation projects by reducing required processes, accelerating project delivery and encouraging innovative project development approaches. These changes to the NEPA regulations greatly benefit many projects using federal funds or otherwise requiring federal approval, but are not reflected in Wisconsin’s ch. Trans 400 WEPA regulations. This inconsistency between federal and State regulations results in additional cost and time for many State projects being evaluated under WEPA. Comparison with Rules in Adjacent States: Neighboring states either follow federal NEPA regulations when seeking federal approval and/or funding, or have adopted potentially more restrictive environmental regulations as a matter of that state’s preferred policy. Illinois, Iowa, and Michigan do not have state-level environmental policy acts like WEPA. Minnesota does have a state-level environmental policy act like WEPA, found at Minn. Stat. ss. 116D.01 to 116D.06. Unlike Wisconsin’s ch. Trans 400, Minnesota’s implementing rules apply generally to all state agencies. Minnesota’s rules are found at Minn. Admin. R. ch. 4410. The Michigan DOT’s EIS guidance is available here (accessed Sep. 15, 2016):
The President’s Council on Environmental Quality (CEQ) has compiled a list of other states with NEPA-like state environmental policy acts, available at:
Summary of the Factual Data and Analytical Methodologies: By better aligning ch. Trans 400 with newly enacted federal laws, the Department and local transportation authorities will be able to capture the streamlining and efficiencies intended with those federal law changes. The Department expects reduced review time and process, with benefits that will vary by each agency action, depending on the circumstances of that action and the extent to which new streamlined procedures apply. Analysis Regarding Rule’s Effect on Small Businesses: Because this rule does not add any regulatory requirements for small businesses, the proposed rule updates will not have an economic impact on small businesses under s. 227.24 (3m), Stats. Effect on small business: The Department anticipates no effect on small businesses as a result of this rule. The agency contact person listed below is also the small business regulatory coordinator for this proposed rule. This proposed rule, fiscal estimate, and other related documents may be viewed at https://docs.legis.wisconsin.gov/code. Agency Contact Person:
Jay Waldschmidt
State of Wisconsin Department of Transportation
Division of Transportation Systems Development
4822 Madison Yards Way, Room 512
Madison, Wisconsin 53705
Phone Number: 608-267-9806
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, 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. 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 771.116, 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.
