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Tennessee Environmental Procedures Manual

Chapter 6: Prepare Environmental Documentation

6.4 Environmental Impact Statement (EIS)

6.4.1 Overview of the EIS Process

When a proposed action is likely to have a significant impact on the environment, an EIS must be prepared. The purpose of the EIS is to provide full and open evaluation of environmental issues and alternatives, and to inform decision-makers and the public of reasonable alternatives that could avoid or minimize adverse impacts and enhance the quality of the environment.

As discussed in Chapter 3, Section 3.2, Project Initiation and Determination of Class of Action, a provision of SAFETEA-LU now requires TDOT to initiate the environmental review process by sending a notification letter to FHWA prior to the issuance of the Notice of Intent (NOI). The notification letter informs FHWA of the type of work, termini, length and general location of the proposed project, together with a statement of any federal approvals anticipated to be necessary for the proposed project. The timing of the notification is flexible and occurs when the project is sufficiently defined and the project sponsor (TDOT) is ready to proceed with the NEPA phase.

As soon as practical after the decision has been made to prepare an EIS, the TDOT Environmental Division planner or the consultant prepares a NOI with assistance from the FHWA. The FHWA reviews the NOI and submits it for publication in the Federal Register. Guidelines for preparation of the NOI are in the Technical Advisory, located in Appendix D [pdf 201 kb] of this manual. A more recent document entitled, Federal Register Document Drafting Handbook (October 1998 revision) provides detailed instruction on preparing Notices for the Federal Register. The document, along with more recent supplements, can be found at http://www.archives.gov/federal-register/write/handbook/ .

When the NOI is published, TDOT also publishes a similar announcement in local newspapers and sends a package of information to federal, state and local government agencies with possible interest in the project as well as organizations and individuals that may be interested. This package may be referred to as the early or initial coordination package or a scoping information package.

The NOI initiates the early agency coordination and public involvement process that provides information for the definition of alternatives, issues and impacts. This is also called "scoping," a term with specific meaning under the CEQ regulations. Scoping is described in Chapter 4, Section 4.2.2.

The EIS is prepared in two stages - Draft and Final - both of which are official documents with specific status under CEQ regulations. The Draft EIS or DEIS provides the opportunity for government agencies and the public to review a proposed project, its alternatives, the purpose and need of the project, the affected environment, the environmental consequences of the proposed action, and potential mitigation measures. The Final EIS or FEIS is prepared after the circulation and comment period for the DEIS, the evaluation of comments received, and the identification of the preferred alternative. The FEIS is circulated for review, after which FHWA will issue a Record of Decision or ROD, which describes the basis of FHWA's decision, identifies alternatives that were considered, and confirms the specific mitigation measures that are to be incorporated into the project.

6.4.2 Preparation of the DEIS

The FHWA Technical Advisory presented in Appendix D [pdf 201 kb] of this manual contains substantial detail on the format and content of an EIS. The following sections summarize the format and content and the process by which the DEIS is reviewed and approved for circulation and public comment.

6.4.2.1 Format and Content of DEIS

The Technical Advisory contains a recommended format for all EISs. This format is used for both a DEIS and an FEIS. For consistency with the CEQ regulations, the following 12 sections should be included in an EIS:

  • Cover
  • Summary
  • Table of Contents
  • Purpose and Need for Action
  • Alternatives
  • Affected Environment
  • Environmental Consequences
  • List of Preparers
  • List of Agencies, Organizations and Persons to Whom Copies of the Statement are Sent
  • Comments and Coordination
  • Index
  • Appendices

Descriptions of the sections are provided below.

Cover

The Technical Advisory specifies that an EIS should have a cover sheet that includes the following items. See Appendix F [pdf 627 kb] for a sample EIS cover page.

  • EIS number (assigned by FHWA); 
  • Name of the project to include Route, Termini, City or County and State;
  • Identify that it is a Draft Environmental Impact Statement (or Final or Supplemental EIS, as appropriate);
  • Statement of Applicable Federal Regulation: 42 U.S.C. 4332 (2) (c);
  • Name of Federal Lead Agency (FHWA);
  • Name of State Lead Agency (TDOT);
  • Names of Cooperating Agencies; and
  • One paragraph abstract of the DEIS/FEIS.

The Technical Advisory also requires the following items, which are generally shown on the title/signature page that is placed immediately inside the cover.

  • Signature line for FHWA and date;
  • Signature line for TDOT and date;
  • Names, addresses, and telephone numbers of the FHWA and TDOT persons to contact for additional information on the DEIS/FEIS; and
  • Date, name and address for submittal of comments on the DEIS.

See Appendix F [pdf 627 kb] for a sample EIS title/signature page.

Summary

The summary, or executive summary, is placed after the document cover. The summary should include the following:

  • A brief description of the project;
  • A description of major actions proposed by other government agencies in the same geographic area;
  • A summary of all reasonable alternatives considered; 
  • A summary of major environmental impacts, beneficial and adverse;
  • Any areas of controversy;
  • Any unresolved issues with other agencies; and
  • A list of other federal actions likely to be required for the project (such as permits, land transfers, Section 106 MOA, etc.).

Statute of Limitations:  The summary should also include a statement regarding the statute of limitations on filing claims that challenge permits, licenses, or approvals issued by federal agencies for certain  transportation capital projects. The following paragraph is a sample of the language that may be used, as suggested in the FHWA Memorandum of December 1, 2005, "Interim Guidance on the Use of 23 USC §139(1) Limitation on Claims Notices":

FHWA may publish a notice in the Federal Register, pursuant to 23 USC §139(l), indicating that one or more Federal agencies have taken final action on permits, licenses, or approvals for the subject transportation project. If such notice is published, claims seeking judicial review of those Federal agency actions will be barred unless such claims are filed within 180 days after the date of publication of the notice, or within such shorter time period as is specified in the Federal laws pursuant to which judicial review of the Federal agency action is allowed. If no notice is published, then the periods of time that otherwise are provided by the Federal laws governing such claims will apply.

Environmental Commitments Green Sheet:  TDOT also requires that a list of the environmental commitments that have been identified in the DEIS be included at the end of the summary. Standard requirements of the TDOT Standard Specifications for Road and Bridge Construction should not be included in this section. It should capture commitments that specific or unique to this project, so that during subsequent project phases (design, right-of-way, construction, and maintenance), these commitments will not be lost.   To increase the visibility of the environmental commitments section, it must be printed on green paper.

Table of Contents

The table of contents follows the summary. The table of contents should include major sections of chapters, a list of figures or exhibits, a list of tables, and the titles of appendices.

Purpose and Need Chapter

The EIS Purpose and Need chapter is one of the most important elements of the project, and needs to be well documented in the EIS. Guidance for preparing Purpose and Need chapters is contained in Section 2.3.1 of this manual. The discussion should be clear and specific, and support the need for the project. Some of the common needs are transportation demand, safety, legislative direction, consistency with adopted transportation plans, modal interrelationships, system linkages, and the condition of the existing facility.

The DEIS Purpose and Need chapter forms the basis of the no-build alternative discussed in the Alternatives chapter of the DEIS and will assist in the identification of reasonable alternatives and the selection of the preferred alternative.

While not detailed in the Technical Advisory, this chapter generally provides the following type of information, in addition to a discussion of the purpose of and need for the project:

  • Concise definition of the project;
  • Description of the project setting or study area;
  • Discussion of the background of the project and related projects;
  • Identification of the project's consistency with other plans;
  • Discussion of the project's logical termini and independent utility; and
  • A list of federal and state actions that would be required for the project.
Alternatives Chapter

The EIS Alternatives chapter identifies and describes the alternatives that are under consideration in the DEIS, discusses how they were selected and refined to represent a reasonable range of alternatives for the action, and demonstrates how they meet the purpose and need of the project. The alternatives discussed in this chapter of the DEIS will provide a clear basis for choice among the options.

For alternatives identified early in project development and found not to be reasonable (i.e., would not meet the purpose and need for the project or would have unacceptable consequences), the chapter should briefly explain why these alternatives were dismissed from further consideration (23 CFR 771.123 (c)).

In the DEIS stage, all reasonable alternatives should be discussed at a comparable level of detail. At this stage there is no requirement for a preferred alternative to be identified prior to the publication of the DEIS, but according to 40 CFR 1502.14 (e), if the agency has officially identified its preferred alternative(s), the DEIS must state that and explain why the alternative is preferred. The other viable alternatives must still be evaluated sufficiently.

The following range of alternatives should be considered when determining reasonable alternatives:

  • No-Action or No-Build Alternative. This alternative must be addressed in the EIS. It may include short-term minor reconstructions such as safety upgrades or maintenance projects. While it may not meet the purpose and need of the project, it serves as a benchmark against which to measure or compare the impacts of the other alternatives.
  • Transportation System Management (TSM) Alternative. This alternative would include design options such as high-occupancy vehicle (HOV) lanes, ridesharing, or signal synchronization to enhance the operation of the existing facility. The alternative should be included where applicable. If it is dismissed from further consideration because it would not meet the project's purpose and need, that decision should be explained.
  • Mass Transit Alternative. This alternative could include vanpools, bus systems and rail systems, and is typically considered for urban areas. Consideration of this alternative may be accomplished by referring to the regional or area transportation plan or by an independent analysis during early project development.
  • Build Alternative(s). Both improvements to existing roadways and roadways on new locations should be evaluated. A representative number of reasonable alternatives must be presented and evaluated in the DEIS, as required by 40 CFR 1502.14 (a). The Technical Advisory advises that where a large number of reasonable alternatives exist, only a representative number of the most reasonable alternatives, covering the full range of options, must be presented.

Each alternative should be briefly described using text, tables and figures, as appropriate. The discussion should identify the alternative's termini, location, costs, and project concept (such as number of lanes, median width, turn lanes, location of intersections and access control). The description of the alternatives should also include any specific features of the alternative that would be useful to the comparison of alternatives, such as number of structures and stream crossings or tunnels.

Graphics showing the location of the alternatives in the project area and the typical section(s) are helpful to readers in understanding the project.

The chapter should state that the final decision on the preferred alternative will be made after the alternatives' impacts and comments on the DEIS have been fully evaluated and the public has had the opportunity to comment, even if an agency preferred alternative has been officially identified by TDOT.

Affected Environment Chapter

This chapter provides a concise description of the existing social, economic and natural environmental character of the project area, to set the stage for the evaluation of impacts.

The description of the existing environment should provide a single description of the general project area rather than separate descriptions for the individual alternatives.

The characteristics of the project area that are generally described include, but are not necessarily limited to, the following:

  • Land Uses and Land Use Plans
  • Social Characteristics
  • Economic Characteristics
  • Farmlands
  • Transportation
  • Air Quality
  • Noise
  • Water Resources/Quality
  • Wetlands
  • Secondary & Cumulative Impacts
  • Floodplains
  • Wildlife and Vegetation
  • Soils and Geology
  • Threatened and Endangered Species
  • Wild and Scenic Rivers
  • Historic Resources
  • Archaeological Resources
  • Visual Character
  • Hazardous Materials

The specific characteristics and issues include those that were identified during early coordination and scoping.

The discussions for individual topics should be limited to data, information, issues, and values that have a bearing on possible impacts, mitigation measures, and on the selection of an alternative. The amount of data and analysis is commensurate with the importance of the impact.

Tables, figures, and photographs should be used to give a clear understanding of the area. Sensitive locations and features should be labeled on figures and briefly described in the text. The specific locations of archaeology sites and threatened and endangered species should not be shown on report graphics.

Environmental Consequences Chapter

This EIS chapter describes the probable impacts of all of the alternatives under consideration to the affected environment and documents the methodologies used in the evaluations and analyses. The impact assessment should identify both beneficial and adverse impacts as well as indirect and cumulative impacts. Refer to Section 5.1, Types of Impacts, for a description of impact types. The EIS Environmental Consequences chapter also describes the measures proposed to mitigate adverse impacts. The information is used to prove a basis for comparison of the no-build and the build alternatives.

The Technical Advisory offers two principal formats for organizing the Environmental Consequences chapter - by alternatives or by impacts. A chapter organized by alternatives would discuss the impacts and mitigation measures separately for each alternative. This organization might be more useful or understandable when the DEIS addresses numerous alternatives or where the impacts are substantially different for the various alternatives. A chapter organized by impacts would be more useful where there are few alternatives and/or the impacts are similar among the alternatives. Regardless of the organization of the chapter (by alternatives or by impact category), the impact assessment should relate to the social, economic and environmental characteristics described in the Affected Environment chapter.

Figures and tables are helpful in illustrating the comparison of impacts among the various alternatives. Individual tables may be used to present impacts such as relocations, noise impacts, historic/archaeological impacts, etc. Use of a summary matrix of impacts at the beginning or end of the chapter provides a concise, side-by-side comparison of alternatives for each impact category.

The following information should be included in the DEIS for each reasonable alternative:

  • A summary of studies undertaken, any major assumptions made; and supporting information on the validity of the methodology if it is not generally accepted as state-of-the art;
  • Sufficient supporting information or results of analysis to establish the reasonableness of the conclusions on the impacts;
  • A discussion of potential mitigation measures; and
  • A discussion, evaluation and resolution of important issues on each alternative.

The authors of the DEIS should take care not to use loosely the words "significant" or "significantly" when describing levels of effect. The terms have particular meaning when used in the NEPA process. CEQ states that "significantly" as used in NEPA requires consideration of context and intensity (40 CFR 1508.27). If an impact is determined to be significant, the determination must be supported by factual information.

Potentially significant impacts most commonly encountered by transportation projects are listed below. It is important to note that this list is not all inclusive; there may be other impact areas that should be included for a specific project:

  • Land use
  • Farmland
  • Social conditions
  • Community impacts
  • Relocations
  • Economic conditions
  • Environmental Justice Pedestrians and bicyclists
  • Air quality
  • Noise
  • Water quality
  • Permits
  • Wetlands
  • Wildlife
  • Floodplain
  • Wild and Scenic Rivers
  • Threatened or endangered species
  • Historic and archaeological resources
  • Parks and recreation areas
  • Hazardous waste sites
  • Visual quality
  • Energy
  • Construction-related
  • Indirect and cumulative impacts

The technical studies and other impact analyses needed for the DEIS are described in Chapter 5, Impact Analysis, of this manual.

Even though the Technical Advisory lists this chapter separately from the Affected Environment chapter, there is a trend toward combining Affected Environment and Environmental Consequences into a single chapter, so that the existing conditions, potential impacts and mitigation measures for each impact type can be discussed together. See Section 6.6, Improving the Quality of NEPA Documents, for an example of an alternative outline of an EIS, with a combined Affected Environment/Environmental Consequences chapter.

Comments and Coordination

This chapter summarizes the early coordination or scoping process, agency and community meetings, and the key issues and pertinent information and comments received from agencies and the public through these efforts. Copies of pertinent correspondence with each cooperating agency, other agencies, organizations and the public are included in a Coordination Appendix, and are referenced in the DEIS chapters where appropriate.

Under NEPA, FHWA is not considered a commenter when it is the lead federal agency for the project. FHWA comments and letters on the NEPA documentation are not included in the DEIS or FEIS according to Section V.J.2 of the Technical Advisory (see Appendix D [pdf 201 kb] of this manual).

List of Preparers

CEQ regulations (40 CFR 1502.17) require that the EIS provide the names of those persons primarily responsible for preparing the DEIS documentation or substantial background studies. This list includes TDOT, other state agencies, and consultant staff persons who made a substantial contribution to the preparation of the documentation or studies. The list should also include the FHWA person(s) primarily responsible for preparation or review of the DEIS. For each person, the section should provide a very brief summary of their qualifications including educational background and professional experience as well as their area of responsibility in the EIS. The information may be presented in a table format, and may be in either a chapter or an appendix.

List of Agencies, Organizations and Persons to Whom Copies of the Statement are Sent

This section of the DEIS may be either a chapter or an appendix. It contains the names of all agencies, organizations and individuals who are sent a copy of the DEIS (40 CFR 1502.10).

Index

An optional element of the DEIS is the index. The index lists the subjects alphabetically, with page numbers where each of the subjects are found. According to the CEQ's Forty Most Asked Questions, Question 26a, an EIS index should have a level of detail sufficient to focus on areas of the EIS that are of reasonable interest to any readers. It is not restricted to the most important topics, nor does it have to identify every conceivable term or phrase in the EIS.

Appendices

The DEIS may include one appendix or several. The intent of the appendix is to incorporate material that provides greater detail than the summaries contained in the DEIS main text. The Technical Advisory states that the appendices should:

  • Consist of material prepared specifically for the EIS;
  • Consist of material that substantiates an analysis fundamental to the EIS;
  • Be analytical and relevant to the decision to be made; and
  • Be circulated with the EIS even if they are bound separately from the DEIS. Other reports and studies referred to in the DEIS should be readily available for review or for copying at a convenient location.

TDOT requires that the following material be included in appendices to the DEIS.

  • Initial Coordination Responses;
  • Section 106 Coordination (correspondence regarding Section 106 with SHPO, other consulting parties and Native American Tribes); and
  • Biological Assessment and/or ecological response letters.

Other technical information may be included in the appendices for the specific project.

TDOT is in the process of developing an EIS standard format, similar to the form-like template that has been developed for EAs, as described above in Section 6.2.3.2.

6.4.2.2 DEIS Review and Approval Process

The initial draft of the DEIS is prepared by the TDOT Environmental Division planner and/or a consultant. The initial internal review of the DEIS is conducted within the TDOT Environmental Division. Table F-2 in Appendix F is a checklist that must be used when preparing and submitting EIS documents for review prior to the document being submitted to FHWA. A completed copy of the EIS Checklist must be signed by the Consultant Project Manager or the TDOT Project Manager responsible for the EIS. The completed checklist must be submitted to the Environmental Division NEPA Documentation Office Planner along with the EIS document. This checklist contributes to TDOT's Environmental Document Quality Assurance Process, described later in Section 6.6.2.

Following revisions based on Environmental Division reviews, the revised DEIS may be circulated to other divisions within TDOT, including Project Planning, Roadway Design, and Structures. During the review process, TDOT's Civil Rights Office is sent a copy of the DEIS to review for compliance with Title VI of the Civil Rights Act of 1964. A quality check of the revised DEIS will be conducted by TDOT Environmental Division staff before the DEIS is submitted to the FHWA Division Office for review.

The revised DEIS is sent to FHWA for review, comment and approval. If the earlier draft was not sent to other TDOT divisions, the DEIS should be sent to them for review. The copies sent to FHWA and the TDOT Civil Rights Office should be accompanied by the Conceptual Stage Relocation Plan.

The TESA Concurrence Point 3 is held at this point to allow the cooperating agencies and participating agencies the opportunity to review the DEIS document and determine its adequacy prior to approval and circulation. (See Section 4.5, Tennessee Environmental Streamlining Agreement, for a discussion of the concurrence points.)

Following the review of all comments received, the DEIS is revised and submitted to FHWA for approval. Once FHWA has approved the DEIS and the appropriate FHWA Division representative has signed and dated the cover page, copies of the approved DEIS are printed and distributed. TDOT also signs and dates the approved DEIS cover.

6.4.2.3 DEIS Distribution and Circulation Process

Notice of Availability

Copies of the signed DEIS, along with a transmittal letter, are sent under FHWA's signature to the Environmental Protection Agency (EPA) Office of Federal Activities (see 40 CFR 1506.9). Upon receipt of the DEIS copies, the Office of Federal Activities EIS Filing Section prepares a Notice of Availability of the DEIS for publication in the Federal Register. EPA assigns a unique identifier number to each EIS, different from the FHWA identifier number. This number will be used for the FEIS and any other correspondence with EPA or publication in the Federal Register pertaining to the project.

The Notice of Availability contains the name of the project, the locations where copies may be obtained or reviewed, the date by which comments should be received, and the address of the person to whom comments are to be sent. The minimum time frame for comment is 45 days, as set forth in 23 CFR 771.123(i).

Notices of Availability are generally published only on Fridays in the Federal Register. A DEIS must be in the hands of EPA by the end of the preceding week before the notice can be published on the following Friday. At the same time as the publication in the Federal Register, TDOT should publish a notice of availability in local newspapers.

Circulation of DEIS

FHWA's NEPA regulations, 23 CFR 771.123 (g) state that the DEIS must be made available to the public and transmitted to agencies for comment no later than the time the document is filed with EPA. It also lists the types of agencies and persons that should be sent a copy of the DEIS:

  • Public officials, interest groups, and members of the public known to have an interest in the proposed action or the DEIS;
  • Federal, state and local agencies expected to have jurisdiction or responsibility, or interest or expertise in the action; or
  • State and federal land management entities that may be significantly affected by the proposed action or any of the alternatives.

TDOT's initial coordination list references (for each specific agency) the number of copies of the DEIS that must be sent.

The Technical Advisory specifies the number of copies of the DEIS that are distributed to EPA and the Department of the Interior as follows (unless the agency has indicated a different number of copies to the FHWA Division Office):

  • EPA Headquarters - Five copies to the following address (the address has changed since the Technical Advisory was issued; the current address is listed below):
    U.S. Environmental Protection Agency
    Office of Federal Activities
    EIS Filing Section
    Mail Code 2252-A, Room 7241
    Ariel Rios Building (South Oval Lobby)
    1200 Pennsylvania Avenue, NW
    Washington, DC 20460
    For all deliveries by courier, including express delivery services other than the U.S. Postal Service, please use 20004 as the Zip Code
  • EPA Regional Office (Atlanta) - Five copies to the following address (the current address is listed below):
    U.S. Environmental Protection Agency
    Environmental Assessment Office
    EIS Review Section
    61 Forsyth Street, SW
    Atlanta, GA 30303
  • Department of the Interior - 12 copies to the following address (the current address is listed below.):
    U.S. Department of Interior
    Office of Environmental Planning and Compliance
    Main Interior Building, MS 2342
    1849 C Street, NW
    Washington, D.C. 20240

A transmittal letter is prepared to accompany the single copy or copies of the DEIS that are sent to government agencies, groups and individuals. While it is not required, the use of a mail merge program to personalize each transmittal letter is recommended. With the exceptions listed below, the transmittal letters are printed on Division letterhead, and are signed by the designated Environmental Division representative. A sample letter is in Appendix F [pdf 627 kb] of this manual.

The transmittal of copies of the DEIS to the Advisory Council on Historic Preservation and EPA is the responsibility of the FHWA Division Office. The transmittal letters are printed on FHWA letterhead and signed by an FHWA representative.

The planner provides to the FHWA Division Office a copy of the transmittal letters and the distribution list along with FHWA's copies of the DEIS. A sample letter is included in Appendix F [pdf 627 kb].

A DEIS is widely circulated to government agencies and the public. One to two hundred copies of the document may be produced for the initial round of distribution, and for later requests. Copies of the DEIS and any separate appendices are placed in libraries in the counties and cities where the project is located, and at the appropriate TDOT regional office. An electronic copy of the DEIS should also be submitted to the TDOT website manager, who will place the DEIS on TDOT's website.

6.4.2.4 DEIS Public Hearing

23 CFR 771.111(h) requires states to develop procedures approved by the FHWA to carry out public involvement and public hearings for the federal-aid highway program. Among other requirements, this legislation requires that "one or more public hearings or the opportunity for hearings be held by the state highway agency at a convenient time and place for any Federal-aid project which requires significant amounts of right-of-way, substantially changes the layout or functions of connecting roadways or of the facility being improved, has a substantial adverse impact on abutting property, otherwise has a significant social, economic, environmental or other effect, or for which the FHWA determines a public hearing is in the public interest." 

TDOT's policy is to hold one or more public hearings for a DEIS. This hearing is termed by TDOT as a "NEPA Public Hearing."  The intent of this hearing is to present the plans for the project and obtain public input on the project, its alternatives, and its environmental impacts. 23 CFR 771.123 (h) requires that the DEIS be available at least 15 days before the public hearing. A NOA must be placed in a newspaper similar to a public hearing notice or accompanying the public hearing notice and advising where the DEIS is available for review, how copies may be obtained, and where comments shall be sent.

23 CFR 771.111(h) provides a listing of information that should be explained, as appropriate at the public hearing:

  • Purpose of and need for the project, and its consistency with local plans;
  • Alternatives and major design features;
  • Impacts of the project;
  • Relocation assistance program and right-of-way acquisition process; and
  • TDOT's procedures for receiving public comments, both oral and written.

TDOT policy provides for one or more court reporters to be present at the public hearing(s) to record public comments. Written comments submitted at the hearing(s) or during the comment period are incorporated into a public hearing transcript, which is made available for public review in the same locations where copies of the DEIS were placed.

6.4.2.5 Public and Agency Comments on DEIS

23 CFR 771.123 (i) requires at least a 45 day comment period for a DEIS; the 45 day clock starts with the date of the NOA. Section 6002 (139 g 2) of SAFETEA-LU requires that the comment period for a DEIS may not be more than 60 days from the NOA, unless (i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or (ii) the deadline is extended by the lead agency for good cause. (For all other comment periods for agency or public comments in the environmental review process, a period of no more than 30 days from availability of the materials on which comment is requested.)  If an individual or agency requests additional time after the official comment period ends, TDOT shall advise FHWA of the request.

Following the close of the public/agency comment period and receipt of the public hearing transcript, the comments made at the hearing(s) and those made in writing are summarized in a comment summary. This summary is prepared by TDOT Environmental Division staff or a consultant. TDOT provides a copy of the hearing summary, which includes the public hearing transcript(s) and all written comments to FHWA.

TDOT also determines how the comments will be resolved and prepares a response to each comment or category of comments. A summary of the comments and how the comments were resolved will be included in the FEIS.

6.4.2.6 Selection of Preferred Alternative

The comments from agencies and the public are used by TDOT to help select the preferred alternative to be carried forward into the FEIS. The DEIS may have addressed only the no-build and a single build alternative, in which case TDOT must make only one decision, whether or not to proceed with the proposed action. If the DEIS included evaluation of a Transportation System Management or TSM alternative and/or more than one build alternative, then the decision is more complicated. TDOT will first make the decision whether to build or not build. If the decision is to build, then TDOT must evaluate and determine which of the TSM or build alternatives will be the preferred alternative.

The decision on the preferred alternative is made by TDOT, with full consideration paid to public comments and environmental impacts as well as constructability and funding issues. The Environmental Division prepares a memo for TDOT management that summarizes the issues and provides guidance for the selection of an alternative. TDOT management then holds a meeting with the division directors or other appropriate staff, at which time a decision is made.

CEQ requires that the FEIS identify the agency's preferred alternative in the Alternatives Chapter (40 CFR 1502.14(e)). The agency's preferred alternative is the one that the agency believes will fulfill its "statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors." The concept of the agency's preferred alternative is different from the "environmentally preferable alternative," although in some cases they may be one in the same. (See CEQ's Forty Most Asked Questions, Question 4a, reprinted in Appendix B [pdf 1.50 MB] of this manual).

The environmentally preferable alternative is the alternative that promotes the national environmental policy as expressed in NEPA Section 101. This is the alternative that "causes the least damage to the biological and physical environment; it also means the alternative that best protects, preserves and enhances historic, cultural and natural resources." (Forty Questions, 6a).

The TESA Concurrence Point 4 occurs during this step (See Section 4.5, Tennessee Environmental Streamlining Agreement, for a discussion of the concurrence points). Based on output from Concurrence Point 3, along with any issues, concerns and/or opportunities identified during the public hearings, the TDOT Environmental Division planner prepares and forwards to the TESA agencies a Preferred Alternative and Mitigation Package. The package may include the following information:

  • Preferred Alternative and Mitigation Summary that describes the various elements of the preferred alternative, describes the various elements of the proposed mitigation, and includes a map locating the elements of the preferred alternative and mitigation;
  • Narrative describing the various elements of the preferred alternative;
  • Rationale for recommending the preferred alternative; and
  • Summary of major public and agency issues and how they were addressed.

The participating agencies are asked to reviewed and concur with the proposed preferred alternative and preliminary mitigation, within 45 days of their receipt of the package (with an additional 15 day extension, if requested). Based on the output of Concurrence Point 4, the TDOT Environmental Division planner prepares the FEIS.

6.4.3 Final Environmental Impact Statement (FEIS) Process

6.4.3.1 FEIS Purpose

The FEIS is prepared as a revision of the DEIS, to address substantive comments on the DEIS and to identify the preferred alternative. Possible responses can include: modifying the alternatives; conducting additional analysis; making factual corrections, and/or explaining why comments do not warrant further agency response. Additional environmental and engineering studies may need to be completed on the preferred alternative to resolve substantive comments raised during the review of the DEIS.

The FEIS describes the mitigation measures that are to be incorporated into the proposed action, and documents compliance, to the extent possible, with all applicable environmental laws and Executive Orders, or provides reasonable assurances that their requirements can be met. If significant issues remain unresolved, the FEIS must identify those issues and the consultation efforts undertaken to resolve them (23 CFR 771.125 (a)).

6.4.3.2 FEIS Format and Content

The FHWA offers three variations of the format and content of the FEIS, which are summarized below and described in more detail in Appendix D [pdf 201 kb]:

  • Traditional FEIS (format same as DEIS);
  • Condensed FEIS (incorporates the bulk of the DEIS by reference); and
  • Abbreviated FEIS (appropriate when only minor corrections are needed to the DEIS and when comments do not require a response).

The traditional approach is the most commonly used approach. Under this approach, the FEIS uses the same format as the DEIS while addressing the substantive comments. The FEIS also updates the DEIS with respect to:

  • Public involvement and agency coordination activities completed during and after circulation of the DEIS;
  • Modifications to the preferred alternative;
  • Changes in the assessment of alternatives as the result of additional engineering or environmental studies;
  • Final mitigation measures;
  • Final Section 4(f) evaluation;
  • Fully executed MOA in appendix, as needed;
  • Environmental findings, such as wetlands or floodplain findings, if applicable; and
  • Cover sheet changed to reflect that the document is an FEIS.

Discussed below are some specific additions, by chapters, that must be addressed in the FEIS:

Alternatives Chapter

The FEIS must identify the preferred alternative and should discuss the basis for its selection. If the preferred alternative is modified after the DEIS, the FEIS should clearly identify the changes and discuss the reasons why any new impacts are not significant.

Environmental Consequences Chapter

The FEIS must discuss the impact and mitigation measures of the preferred alternative. This discussion may require that additional information be gathered to firm up the mitigation measures or elaborate on impacts, or address issues raised in the comments on the DEIS. The FEIS should also identify any new impacts and their significance resulting from modifications to the preferred alternative as well address substantive new circumstances that may have arisen since the circulation of the DEIS. The FEIS must also identify those unresolved issues with other agencies.

List of EIS Recipients

The FEIS should identify those entities that submitted comments on the DEIS, and those receiving copies of the FEIS.

Comments and Coordination Chapter

The FEIS should discuss the public involvement activities held during the comment period, including descriptions of notices and hearings, if held. The chapter should include a copy of substantive comments from the USDOT Secretary, cooperating agencies, and other commenters on the DEIS. If there are large numbers of comments, the comments may be summarized (an acceptable method is to group the comments by category, such as neighborhood concerns, ecological issues, historic issues, etc). An appropriate response should be provided for each substantive comment. When the DEIS text is revised to reflect the comment, the response should indicate where revisions are made. The response should adequately address the issue or concerns raised, or explain why the comment warrants no further response.

The Comments and Coordination chapter should also document compliance with requirements of all applicable environmental laws, Executive Orders and other related requirements. Where possible, all environmental issues should be resolved before the FEIS is submitted. When disagreement exists after the DEIS, coordination should be undertaken with the agencies to resolve the issue. In the event the issue cannot be resolved, the FEIS should explain the remaining unresolved issue, what steps have been taken to try to resolve it, and the positions of the respective agencies.

If any important issues raised on the preferred alternative remain unresolved, the FEIS must identify those issues and the consultation and other efforts made to resolve them.

6.4.3.3 FEIS Review and Approval Process

The review and approval process for the FEIS is the same as that described above for the DEIS (Section 6.4.2.2).

6.4.3.4 FEIS Distribution and Circulation Process

Notice of Availability

Copies of the signed FEIS, along with a transmittal letter, are sent under FHWA's signature to the EPA Office of Federal Activities. Upon receipt of the FEIS copies, the Office of Federal Activities EIS Filing Section prepares a Notice of Availability of the FEIS for publication in the Federal Register. EPA uses the unique identifier number assigned at the time the DEIS Notice of Availability was published.

The publication of the notice in the Federal Register initiates the minimum 30 day review period, before which the Record of Decision (ROD) may be issued by the FHWA.

Distribution of FEIS

The FEIS must be transmitted to any persons, organizations or agencies that made substantive comments on the DEIS or requested a copy. The transmission must be no later than the time the document is filed with the EPA.

TDOT's initial coordination list includes (for each specific agency) the number of copies of the FEIS that must be sent.

The Technical Advisory specifically lists the number of copies of the FEIS that should be sent to EPA and to DOI:

A transmittal letter is prepared to accompany each individual or group of copies of the FEIS that are sent to government agencies, groups and individuals. While it is not required, the use of a mail merge program to personalize each transmittal letter is recommended. With the exceptions listed below, the transmittal letters are printed on TDOT Environmental Division letterhead and signed by the designated TDOT Environmental Division manager.

The transmittal of copies of the FEIS to the Advisory Council on Historic Preservation and the EPA is the responsibility of the FHWA Division Office. The transmittal letters are printed on FHWA letterhead and are signed by an FHWA representative.

A copy of the transmittal letters and the distribution list are provided to the FHWA Division Office.

TDOT must also publish a NOA in local newspapers, indicating how copies may be obtained, locations where copies are available, and contact information for submitting comments. Copies of the FEIS are placed in libraries in the counties and cities where the project is located, and at the appropriate TDOT regional office. An electronic copy of the FEIS should also be submitted to the TDOT website manager, who will place the document on TDOT's website.

No public hearing is required for the FEIS.

6.4.4 Record of Decision (ROD)

6.4.4.1 ROD Purpose

As 23 CFR 771.126(e) explains, the FEIS is not an Administrative Action and does not commit FHWA to approve any future grant request to fund the preferred alternative. To obtain final approval of the proposed action under NEPA, FHWA must indicate its acceptance in the form of a concise public Record of Decision or ROD (40 CFR 1505.2). The signed ROD constitutes environmental clearance for the project under NEPA, meaning that TDOT can proceed with right-of-way acquisition and final design of the project.

6.4.4.2 ROD Format and Content

While the ROD cross-references and incorporates by reference the FEIS, the ROD must explain the basis of the FHWA's decision on the project as completely as possible. Additionally the following issues should be specifically addressed in the ROD:

  • Where the selected alternative is different from the environmentally preferable alternative, the ROD should clearly state the reasons for not selecting the environmentally preferable alternative (40 CFR 1505.2 (b);
  • If lands protected by Section 4(f) are a factor in the selection of the preferred alternative, the ROD should state how the Section 4(f) lands influenced the decision; and
  • If significant impacts are expected, the ROD must explain the merits of the proposed action warranting the impacts.

The Technical Advisory states that the following key items must be addressed in the ROD:

  • Decision: Identify the preferred alternative (incorporation of information in the FEIS by reference is recommended to reduce detail and repetition);
  • Alternatives Considered: Describe each alternative considered briefly and explain the balancing of values, which formed the basis for the decision. Identify the important factors used in the decision-making process and provide justification for weighting of the values. Such values may include social, economic, environmental, cost-effectiveness, safety, traffic, service, community planning;

    This section must identify the environmentally preferable alternative. If this alternative is not the preferred alternative, the section must clearly state the reasons for not selecting it;
  • Section 4(f): Summarize the basis for any Section 4(f) approvals where applicable;
  • Measures to Minimize Harm: Describe the specific measures adopted to minimize harm and identify standard measures such as erosion control. State whether all practicable measures to minimize harm have been incorporated into the decision and, if not, why such measures were not included;
  • Monitoring/Enforcement Program: Describe any monitoring or enforcement program that has been adopted for specific mitigation measures, as outlined in the FEIS; and
  • Comments on FEIS: Identify all substantive comments received on the FEIS and provide appropriate responses.

6.4.4.3 Approval of ROD and Distribution

TDOT prepares the ROD with assistance from the FHWA. By law, FHWA cannot sign the ROD any sooner than 30 days after publication of the NOA of the FEIS in the Federal Register, or 90 days after the publication of the NOA of the DEIS, whichever is longer (23 CFR 771.127 (a)).

6.4.4.4 Revised ROD

A revised ROD should be prepared in the following situations (23 CFR 771.127 (b)):

  • If FHWA and TDOT subsequently chose to approve an alternative that was not identified as the preferred alternative but was fully evaluated in the FEIS; or
  • If a subsequent change is made to the mitigation measures or findings discussed in the ROD.

A revised ROD is subject to review by the FHWA offices that reviewed the FEIS. To the extent possible, the ROD should be distributed to all persons, organizations, and agencies that received a copy of the FEIS. No public hearing or NOA is required.

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