West Texas Legislative Summit

ENVIRONMENTAL ISSUES

Environmental Regulations Affecting Transportation Carlos Swonke Director, Environmental Affairs DivisionTxDOT

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National Environmental Policy Act

The National Environmental Policy Act (NEPA) establishes the decision-making process that FHWA/TxDOT must follow prior to the construction of transportation projects using Federal funding or requiring Federal approval.

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Environmental Program at TxDOT

Planning Environmental Design Right-of-way Construction

NEPA Document Review and Approval

• Environmental Impact Statements

• Environmental Assessments

• Categorical Exclusions

Other Permits and Approvals (to name a few)

• Endangered Species Act

• Clean Water Act

• National Historic Preservation Act

• Migratory Bird Treaty Act

• Fish and Wildlife Coordination Act

• Clean Air Act

• Resource Conservation and Recovery Act

• Executive Orders

• Environmental Justice• Floodplain Management• Protection of Wetlands

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NEPA Assignment

FHWA can “assign” to TxDOT responsibility for compliance with NEPA and other federal environmental laws

Program authority comes from MAP-21, Section 1313Surface Transportation Project Delivery Program

TxDOT will assume legal responsibility and liability for environmental documents and decisions

TxDOT will assume legal responsibility and liability for environmental documents and decisions Categorical Exclusion determinations Environmental Assessment approvals Environmental Impact Statements approvals

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NEPA Assignment

What changes under NEPA Assignment?

Federal Highway Administration (FHWA) TxDOT – Review and Approval under National Environmental Policy Act (federally funded projects)

TxDOT - Review and Approval for submittal to FHWA

Benefits: Accelerated document approvalExpedited decision-making Ownership/responsibility

Compliance with all Environmental Laws, Regulations, and Policies Remains the same

TimelinePreparation of application began in June 2013Application was submitted to FHWA on May 26, 2014NEPA Assignment MOU signed December 16, 2014

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NEPA Assignment

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Still early but,…Review and approval time for projects processed as Environmental Assessment are trending lower by nearly half

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Other Laws – Clean Water Act (Section 404)

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Section 404 of the Clean Water Act – requires a permit for the placement of fill into waters of the U.S.

Border Highway West (El Paso)

Fill in arroyo (0.03 ac.) to extend culvert

Permit triggers reviews by State Historic Preservation Office

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State Highway 151 at Loop 1604 (San Antonio)

Construction of an underpass, San Antonio

Received concurrence from US Fish and Wildlife Service (USFWS) that project activities “may affect but are not likely to adversely affect” karst invertebrate species

During the first five months of construction, 25 karst features were found

One feature contained Cicurina venii, a federally listed spider

It was the 2nd specimen ever collected, known only from one other location

Other Laws – Endangered Species Act

Endangered Species Act – intended to protect species and the ecosystems upon which they depend

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State Highway 151 at Loop 1604

Project activities halted as consultation with USFWS was reinitiated

Using geophysics, underground features were able to be identified

To lessen the impacts on karst invertebrates, the project was redesigned as an overpass

TxDOT received a Biological Opinion and an Incidental Take Statement from USFWS and project construction resumed after 25 months.

Case Study, continued

Other Laws – Endangered Species Act

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Migratory Bird Treaty Act – protects ~2,000 species of birds, their nests and eggs

IH 20 at FM 1187 (Parker County)

Bridge structure widening as a part of intersection improvements

Project construction was unable to avoid nesting season, so contractor was instructed to take measures to prevent birds from nesting

Contractor attempted to remove nests before they became “active” by MBTA standards

Preventative measures were not effective

Concerned citizen contacted TxDOT and USFWS regarding possible MBTA violation

Case Study

Nest removal, nest disturbance (noise), vegetation clearing, and direct mortality of migratory bird eggs or young can result in a Migratory Bird Treaty Act violation.

Swallow nests on a bridge

Swallow nests

Other Laws – Migratory Bird Treaty Act

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IH20 at FM 1187 (Parker County)

TxDOT assessment of project confirmed active nests

Contractor instructed to stop implementing measures to prevent birds from nesting, as nests were established and active

USFWS Law Enforcement investigated but did not pursue action

All project activity within an established 100 foot buffer of the nesting area ceased and cannot resume until all the nests become inactive.

Swallow nests can remain active through September

Case Study, continued

Other Laws – Migratory Bird Treaty Act

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Environmental Regulations Affecting Transportation

Carlos Swonke

Director, TxDOT Environmental Affairs Division

512.416.2734

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Questions?