West Texas Legislative Summit ENVIRONMENTAL ISSUES Environmental Regulations Affecting Transportation Carlos Swonke Director, Environmental Affairs Division TxDOT

West Texas Legislative Summit 2 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.

West Texas Legislative Summit 3 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

West Texas Legislative Summit 4 NEPA Assignment  FHWA can “assign” to TxDOT responsibility for compliance with NEPA and other federal environmental laws  Program authority comes from MAP-21, Section 1313 Surface Transportation Project Delivery Program  TxDOT will assume legal responsibility and liability for environmental documents and decisions  Categorical Exclusion determinations  Environmental Assessment approvals  Environmental Impact Statements approvals

West Texas Legislative Summit 5 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 approval Expedited decision-making Ownership/responsibility Compliance with all Environmental Laws, Regulations, and Policies Remains the same Timeline Preparation of application began in June 2013 Application was submitted to FHWA on May 26, 2014 NEPA Assignment MOU signed December 16, 2014

West Texas Legislative Summit NEPA Assignment 6 Still early but,… Review and approval time for projects processed as Environmental Assessment are trending lower by nearly half

West Texas Legislative Summit Other Laws – Clean Water Act (Section 404) 7 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

West Texas Legislative Summit 8 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 2 nd 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

West Texas Legislative Summit 9 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

West Texas Legislative Summit 10 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

West Texas Legislative Summit 11 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

West Texas Legislative Summit Environmental Regulations Affecting Transportation Carlos Swonke Director, TxDOT Environmental Affairs Division Questions?