Revised Programmatic Executive Order 11990 (EO 11990) Wetland Finding

AGENCY:

Federal Highway Administration (FHWA), New York Division Office, DOT.

ACTION:

Notice and request for comments.

Finding:

In accordance with EO 11990, and based on the following procedures, the FHWA NYDO finds that this programmatic wetland finding may be applied to any Federal-aid project classified as a Categorical Exclusion (CE) with an approved US Corps of Engineers (COE) permit (excluding Nationwide Permit 23) and/or a project classified as a CE that impacts isolated wetlands for which:

1. There will be no practicable alternative to the proposed construction in wetlands;

2. The proposed project will include all practicable measures to minimize harm to the involved wetlands which may result from such use;

3. The project will be developed in accordance with the procedure for a public involvement/public hearing program approved by FHWA pursuant to 23 CFR 771.111(h)(1); and

4. The project CE documentation shall demonstrate that avoidance and minimization issues are discussed and described for each wetland. The following information shall be documented in the New York State Department of Transportation (NYSDOT) project file:

a. Approximate wetland size;

b. Area of impact including temporary and permanent impacts;

c. Type of wetland, including the function and value of the wetland;

d. Any plan sheets that show the location of the wetland and the project boundaries.

Any Federal-aid transportation project requiring an Environmental Assessment (EA) or Environmental Impact Statement (EIS) that may impact wetlands shall require an individual wetland finding.

SUMMARY:

The NYDO is advising the public that it has made a programmatic EO 11990 Wetland Finding for Federally Aided Highway Projects classified as CEs under 23 CFR 771.117 with approved COE permits (excluding those projects that require Nationwide Permit 23). The Nationwide Permit 23 is issued only if it has been determined by FHWA that a project will not have significant impacts and that the project is to be classified as a CE; therefore, FHWA must review the wetlands impacts of a project prior to making this decision.

The programmatic EO 11990 evaluation and wetland finding has been prepared for transportation improvement projects which require a COE Section 404 Permit (both Nationwide adn Individual) and those that impact isolated wetlands. It satisfies the requirements of EO 11990 and US Department of Transportation (DOT) Order 5660.1A for all projects that meet the applicability criteria listed. No individual wetland findings will thus be required for such projects.

Background:

EO 11990, issued on May 24, 1977, requires each Federal agency to develop procedures for Federal actions whose impact is not significant enough to require the preparation of an EIS under Section 102(2)(c) of the National Environmental Policy Act (NEPA), as amended. The EO states that each Federal agency “shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds:

(1) That there is no practicable alternative to such construction, and (2) that the proposed;

(2) Action includes all practicable measures to minimize harm to wetlands which may result from such use.

The US DOT Order 5660.1A states, “In carrying out any activities (including small scale projects which do not require documentation) with a potential effect on wetlands, operating agencies should consider the following facts * * *” this rquires USDOT agencies to consider the effects on wetlands for all projects (including categorical exclusions).

Federal-aid applicants consider these effects during the NEPA evaluation process and further consider these effects through the wetland permitting process and associated meetings with resource agencies (COE, EPA, FWS, NYDEC). The NYSDOT and FHWA routinely evaluate practicable avoidance alternatives or options. If avoidance alternatives are not practicable, then practicable measures to minimize harm are considered and included in the project.

The DOT Order 5660.1A requires USDOT agencies to make a formal wetland finding for major projects. The NYSDOT will make a formal wetland finding for all EAs and EISs. This formal wetland finding will be made in the Final EA/Finding of No Significant Impact or Final EIS/Record of Decision.

There will be a 45-day public comment period starting the day of publication and prior to the issuance of the Programatic Agreement.

FOR FURTHER INFORMATION CONTACT:

Erika Thompson, Environmental Program Coordinator, Federal Highway Administration, New York Division Office, Leo W. O'Brien Federal Building 7th Floor, Albany, NY 12207 (e-mail Erika.Thompson@fhwa.dot.gov or telephone 518-431-4125 x 255).