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  • Disclaimer: Any opinions, findings, and recommendations expressed in the group area discussions are solely those of the authors and do not necessarily reflect the views of the United States Government, the Department of Transportation, or the Federal Highway Administration.
Post
Edited: 4/24/2012 8:35 AM

Does FHWA NEPA apply?

Here's the situation:  A CE re-paving project (with an FHWA funding nexus) is being constructed.  The ESA is covered under a programmatic BO.  During construction, the contractor inadvertently crushes a culvert.  The culvert is temporarily repaired under the current contract, but needs more work.  A decision is made to fully replace the culvert the following year.  The culvert replacement work will be done under a different project name and contract.  No FHWA funds or approvals will apply to the future culvert replacement project.  This work is exempt from U.S. Army Corps permitting.

Does FHWA NEPA apply to the future culvert replacement project?  Is the culvert replacement project related to the original project in such a way that contracting out the culvert replacement as a separate project constitutes NEPA segmentation?
2011-08-03 21:03:55
Posted: 4/24/2012 8:35 AM
Since the argument could be made that the culvert reconstruction project would not be necessary "but for" the damage caused by the FHWA-funded paving job this is an interesting issue.  My own interpretation would be that this is not sufficient to automatically federalize the culvert job, but interpretations in each State DOT and Division office could vary. The best advice, already given, is to discuss this with the State DOT environmental manager and/or the Division Office and do what they say.  Even if it is federalized, a project with this limited scope that you already know has no USACE permitting requirements would only require a simple CE to process. 

The only qusetion I might ask is if the culvert itself is historic.  If a previous federal project inadvertantly damaged an historic property, I would expect that any work necessary to repair the culvert should have either been an add-on to the original federal-aid project or be handled as a new federal project.
8/11/2011 9:36 AM
Posted: 4/24/2012 8:35 AM
Steve from Pittsburgh
My recommendation would be to coordinate this with your state DOT Environmental Manager, as well as the FHWA environmental staff representative from your regional office of FHWA.  Document the meeting, telephone call, or field view and move ahead as directed. 
8/10/2011 4:30 PM
Posted: 4/24/2012 8:35 AM
programmatic categorical exclusion under maintenance

environment.fhwa.dot.gov/projdev/docuceda.asp

Document a pce and put it in the file and move on.
8/10/2011 1:42 PM
Posted: 4/24/2012 8:35 AM
Susan Jaworski
These are tough and each situation is unique.  If there are no federal funds, no permitting requirements, no biological or cultural resources triggers, no connection to the previous project (e.g. has independent utility), does not require FHWA (or in some areas a state DOT) permit/approval, does not require any other federal agency approval/concurrence/etc, then it would not have a federal nexus most of the time.   However, it would help to receive some clarification due to the quantity of variables involved.

Would this project have independent utility from the original project (with the FHWA nexus)?  If it wasn't for the circumstances from the original project, would this current project still be needed?  What is the Purpose and Need for the current state-funded project?  If there is not a defined independent utility, then there may be a federal nexus.

Even though only state funds are being used for the culvert replacement, is the jurisdictional authority (e.g. State DOT, County, etc) the same as the first project?  If not, would any type of access permit or approval be needed from either the State DOT or FHWA for access within the ROW?  In some cases (varies from state to state and region to region), this may also provide federal nexus. 
8/10/2011 1:29 PM
Posted: 4/24/2012 8:35 AM
Curious, in at least some regions of the U.S. an "intermittent creek" would still be jurisdictional. 

Nonetheless, if Indirect and Cumulative Impacts must be assessed under NEPA, it certainly does seem that even an unintended impact ocurring from a Fed-Aid project, would have to somewhere account for even an after-the-fact impact that is certainly a much more DIRECT result of the project.
8/10/2011 1:21 PM
Posted: 4/24/2012 8:35 AM
My original question had to do with whether there is an FHWA nexus for NEPA.  As I have said, the Corps is not taking jurisdiction.  It is a 3 foot culvert that passes an intermittent creek, so no, no birds are in the structure.  The culvert replacement project will be done with state only dollars.  The question really gets down to whether the previous FHWA-funded project that inadvertently crushed a piece of culvert (which was temporarily repaired) is a NEPA nexus to the culvert replacement project - yes or no?  There is no other potential NEPA nexus.
8/9/2011 1:31 PM
Posted: 4/24/2012 8:35 AM
So no stream running through the culvert?  Are there any birds nesting in the structure, like swallows or phoebes?
8/9/2011 1:07 PM
Posted: 4/24/2012 8:35 AM
The Corps has determined that the culvert replacement work does not impact jurisdictional waters.
8/8/2011 1:49 PM
Posted: 4/24/2012 8:35 AM
its exempt from Corps permitting because there is no impact to a jurisdictional water???  or is the work categorically excluded (a Nationwide permit)?
8/8/2011 10:34 AM
Posted: 4/24/2012 8:35 AM
Which circuit court are you in?  The interpretation may be different depending on where you are.  If you are in the 10th Circuit Court, you could make an argument that the projects are seperate based on the case law in that circuit.  In the 9th Circuit Court is it more likely that they would indicate that these are tied projects based on their case law.  It might be good to get a read from FHWA Legal for your particular situation.
8/4/2011 3:40 PM
Posted: 4/24/2012 8:35 AM
If it was understood to be a temporary fix under the contract enabled by the FHWA-authorized CE, I'm not sure why the eventual permanent fix (and related effects) wouldn't have been vetted in some form of after-the-fact reevaluation.

So is the permanent fix really exempt from USACE permitting?  Or is it categorically authorized by the USACE, but exempt from a PCN?  There IS a difference and it is important, either way, that the Corps in consulted with, in case an unrecognized Section 7 issue exists

If there is no other lead federal agency for the action (i.e., culvert replacement), the proponent may very well have to coordinate directly with USFWS to avoid an unlawful taking under ESA Section 9.
8/4/2011 1:17 PM
Posted: 4/24/2012 8:35 AM
If all dterminations are that no federal nexus is present then no NEPA is required. That's a determination only the feds can make.
8/4/2011 1:14 PM
Posted: 4/24/2012 8:35 AM
My opinion is that NEPA does not apply for FHWA. There is no federal funding and FHWA does not need to approve anything. The corp is not involved but what about the FWS regarding the existence of T and E species?
8/3/2011 11:35 PM