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21st Century Operations Using 21st Century Technologies

Rural Interstate Corridor Communications Study
Report to States
Appendix A

7.0 Environmental Considerations

This section presents various regulatory and permitting requirements for construction in each Corridor with respect to environmental disruptions and the recommended and/or mandated treatments that should be considered during construction of HST backbone infrastructure.

Trenching and other excavation required for duct bank installation tends to create vegetation disturbance and generally produces large amounts of sediment in runoff that eventually makes its way to local streams and rivers. Strict mitigation is required to control this runoff. Directional boring produces manageable amounts of runoff, but such runoff is heavily silt laden. State DOTs have policies regarding the treatment of runoff from construction sites for protection of waterways. Generally, sediment fencing and ditch checks are required if the disruption to the surface vegetation is significant. Other environmental issues to consider include the disturbance of wetland areas and the timing of construction activities that may interfere with nesting periods of certain bird species.

Federal Government regulation will apply to all Corridors. These include:

Section 10/404 and 103 permits from U.S. Army Corps of Engineers may be required.

Section 10 of the Rivers and Harbors Act governs placement of structures in navigable waters and covers issues such as location of federal navigation channels, access of adjacent users to their waterfront, and safe navigation.

Section 404 of the federal Clean Water Act ensures that any fill placed in the waters of the U.S. (wetlands are also considered waters of the U.S.) will not harm the quality of the water or the plants and animals in it, including impacts to wetlands, eelgrass, shellfish, sediment transport, and water quality.

If a project will alter more than five acres of land, a National Pollution Discharge Elimination System (NPDES) Construction Storm Water General Permit is required.

State and federal regulatory agencies have made a significant effort in recent years to develop permits that have similar review thresholds and resource definitions. This effort has resulted in a more streamlined review process. For example, federal agencies now usually require minimal review of impacts that have already been conditioned and mitigated by the state permitting process. For projects of little or no environmental impact, the permitting process is minimal. These and other environmental considerations are discussed below.

Obtaining permits and performing environmental assessments can take from several months to several years and a State's regulatory process will need to be taken into consideration when developing project budgets and schedules. If extensive mitigation measures need to be taken during construction, these should be factored into the budget and schedule as well. The schedules noted in Section 5 should be adjusted to reflect unusually long permitting and clearance processes.

7.1 I-20 Corridor

States along the I-20 Corridor have enacted regulations for the protection of the environment during the construction process. In Louisiana, the Department of Environmental Quality (LDEQ) provides the overall environmental monitoring and permitting function within the state. In Mississippi, the Department of Environmental Quality (MDEQ) provides the overall environmental monitoring and permitting function within the state. In Alabama, the Department of Environmental Management (ADEM) provides the overall environmental monitoring function within the state.

7.1.1 Environmental Permitting

States along the I-20 Corridor have similar environmental review and permitting processes. Each state adheres to the Federal review NEPA process which includes the following permits at a minimum:

  • Construction Storm Water Discharge Permit
  • Section 401 water quality certification
  • Federal Coastal Zone Management (CZM) consistency concurrence
  • Section 10/404 permit issued by the U.S. Army Corps of Engineers

7.1.2 Corridor Considerations

Erosion control and storm water management measures are required on all construction projects in States along the I-20 Corridor. In Louisiana, if more than more than one-half acre of soil will be disturbed, a Notice of Intent (NOI) detailing how the contractor will manage runoff to prevent water pollution is required. Alabama requires silt fencing and other erosion control measures if more than one acre of soil is disturbed. Directional boring is generally allowed under streams or wetlands, however, a minimum of four feet of clearance is required below the bottom of a stream bed.

Each state along the I-20 Corridor maintains a list of endangered and threatened species. These lists will require careful consideration. PCB contamination has been confirmed in the Calhoun, Alabama area.

States along this Corridor have similar requirements in their Utility Accommodation Policies for aesthetic considerations for scenic strips, overlooks, rest areas, recreation areas, public parks, and historic sites. In general, surface or aerial installations are discouraged or in some areas prohibited. New underground facilities can only be constructed if they will not require extensive removal or alteration of trees.

7.2 I-90 Corridor

States along the I-90 Corridor have well defined regulations concerning the protection of environment during the construction process. In Minnesota, the environmental review process is detailed under the Minnesota Environmental Review Program (MERP), while permitting is handled by the Minnesota Department of Natural Resources (MDNR). In South Dakota, the Department of Environment and Natural Resources (DENR) provides the overall environmental monitoring and permitting function within the state. Within the DENR "One Stop Permitting" is provided by the Division of Environmental Services (DES). In Iowa, the Department of Natural Resources (DNR) provides the overall environmental monitoring function within the state. In both South Dakota and Iowa, the NEPA environmental review process is used.

7.2.1 Environmental Permitting Process

In Minnesota, the installation of privately owned conduits or communication towers on the right of way that would destroy a wetland is prohibited unless a permit is obtained from the DNR. The MERP requires projects to undergo review prior to obtaining approvals and permits. The program assigns a Responsible Governmental Unit (RGU) to conduct the review. The program has no enforcement authority. Rather, the review is a source of information and must be integrated with other permitting and approval processes to protect the environment. When completed, the review gives government units information to determine whether the project is environmentally acceptable and what mitigation measures are needed. Projects are screened for their potential to have significant environmental impacts. The MERP works in conjunction with the Minnesota Pollution Control Agency (MPCA) and the Minnesota Board of Water and Soil Resources to ensure that the permitting process helps to protect Minnesota's environment. The following permits are required by all States along this Corridor:

  • Construction Storm Water Discharge Permit
  • Section 401 water quality certification
  • Federal Coastal Zone Management (CZM) consistency concurrence
  • Section 10/404 permit issued by the U.S. Army Corps of Engineers

In addition, local permissions, other state statutory considerations, and federal permits must be taken into consideration.

7.2.2 Corridor Considerations

Erosion control and storm water management measures are required on all construction projects in all States along the I-90 Corridor. The contractor is responsible for providing erosion control and storm water management measures to protect all restored areas upon completion of the project until the replacement vegetation is established.

Each state along the I-90 Corridor maintains a list of endangered and threatened species. In Iowa nine species of freshwater mussels are protected in the Mississippi River and other freshwater rivers. In southern Iowa the Indiana bat is protected. In Minnesota several species of migrating turtles are protected and greater prairie chicken nesting areas are protected. In South Dakota, the Topeka Shiner (fish) is protected in waterways. In Wisconsin, the Butler's Garter Snake and the Karner Blue Butterfly are protected. Also many species of protected migrating birds cannot be disturbed in spring.

The States along the I-90 Corridor have similar requirements in their Utility Accommodation Policies for aesthetic considerations for scenic strips, overlooks, rest areas, recreation areas, public parks, and historic sites. These policies are in place to maintain and enhance the visual qualities along State freeway corridors. Utility installations (above ground) are not allowed adjacent to areas of scenic enhancement and natural beauty. Exceptions may be made if:

  • Underground installation is not technically feasible
  • Underground installation is unreasonably costly
  • The aesthetic quality of the lands being traversed is not impaired
  • Extensive removal or alteration of trees or vegetation is not required
  • The design and materials of above ground facilities is compatible with the scenic quality of the I-90 Corridor and blends in with the ground contours and scenery

Trees, wildflowers, and other vegetation should be maintained along the I-90 Corridor. This includes the planting of new trees if the project allows it. New underground facilities can only be built if they will not require extensive removal or alteration of trees.

7.3 I-91 Corridor

Both Vermont and Massachusetts have well defined regulations concerning the protection of environment during the construction process. The Massachusetts Department of Environmental Protection (MassDEP) is the primary environmental permit issuing agency in Massachusetts. However, any project that requires a state environmental permit or that will be constructed with state funds must be reviewed under the Massachusetts Environmental Policy Act (MEPA) Unit to ensure compliance with the requirements of the MEPA law. In Vermont, the Agency of Natural Resources (ANR) and the Department of Environmental Conservation (DEC) are primarily charged with project review, the issuance of environmental permits, and the administration of environmental regulations.

7.3.1 Environmental Permitting Process

In general, the Commonwealth of Massachusetts requires the following construction certifications and environmental permits:

  • Secretarial Certificate issued by the Massachusetts Environmental Policy Act (MEPA) Unit
  • Order of Conditions issued by the local Conservation Commission
  • 401 Water Quality Certification issued by the Massachusetts Department of Environmental Protection (MassDEP)
  • Chapter 91 license issued by MassDEP
  • Federal consistency concurrence issued by the Massachusetts Office of Coastal Zone Management (CZM)
  • Section 10/404 permit issued by the U.S. Army Corps of Engineers

In addition, local permissions, other state statutory considerations, and federal permits must be taken into consideration.

A MEPA review gives state permitting agencies and the public an opportunity to comment on a proposal while it is still in the planning stages, so that environmental concerns and permitting problems can be brought to the applicant's attention and remedied before significant investment is made into a proposal that may require considerable alteration to meet permitting requirements. Anyone proposing a state permitted or state funded project that has potential impacts above certain thresholds is required to file an Environmental Notification Form (ENF) with the MEPA Unit. If significant environmental problems are identified at the ENF stage, or if the project impacts are such that it is automatically required, the MEPA Unit may determine that an Environmental Impact Report (EIR) is necessary. In addition, certain projects, generally those with significant environmental impacts, may be reviewed under the federal National Environmental Policy Act (NEPA). Analysis of alternatives and impacts are conducted through the preparation of an Environmental Impact Statement (EIS). MEPA and the lead federal permitting agency make every effort to combine the reviews into a single process.

Concurrent with or right after the MEPA review, a Notice of Intent (NOI) should be filed with the town or city's Conservation Commission, which administers the Massachusetts Wetlands Protection Act. The Conservation Commission will issue an Order of Conditions, which specifies construction methods that will avoid or minimize and mitigate damage to wetland areas. Either the applicant or people that object to the Orders can appeal local Orders to MassDEP. MassDEP will consider the issues raised by the appeal and issue a Superseding Order of Conditions.

The State of Vermont uses a statewide land use planning tool commonly referred to as Act 250. Act 250 establishes a mechanism for review of certain land use activity at the state level. Specifically, Act 250 complements existing local zoning and subdivision control legislation, and ultimately requires development projects meeting certain criteria to gain state approval, in addition to that normally required at the local level before being carried out. Act 250 establishes a permitting process that requires a developer to demonstrate that a proposed development project meets ten specified criteria, as part of an effort to "ensure economic growth without environmental catastrophe."

While primarily aimed at controlling subdivision development, Act 250 does come into play on this type of project because it is "construction for a governmental purpose which disturbs more than 10 acres, or is part of a larger project that will involve more than 10 acres of land". The applicant will be required to demonstrate compliance with the following Act 250 criteria:

  • The project will not result in undue water or air pollution. This criterion deals with water and air pollution generally and such specific matters relating to water pollution as:
    • Headwaters;
    • Waste disposal (including wastewater and storm water);
    • Water Conservation;
    • Floodways;
    • Streams;
    • Shorelines; and
    • Wetlands.
  • The project will not cause unreasonable soil erosion or affect the capacity of the land to hold water.
  • The project will not cause unreasonably dangerous or congested conditions with respect to highways or other means of transportation.
  • The project will not create an unreasonable burden on the municipality in providing governmental services.
  • The project will not have an undue adverse effect on aesthetics, scenic beauty, historic sites, or natural areas, and will not imperil necessary wildlife habitat or endangered species in the immediate area.
  • The project will conform with the Capability and Development Plan which includes the following considerations:
    • The impact the project will have on the growth of the town or region;
    • Primary agricultural soils;
    • Productive forest soils;
    • Earth resources;
    • Extraction of earth resources;
    • Energy conservation;
    • Private utility services;
    • Costs of scattered developments;
    • Public utility services;
    • Development affecting public investments; and
    • Rural growth areas.

7.3.2 Corridor Considerations

In recent years the Wetlands Protection Act has been revised to include the Rivers Protection Act. In most communities, an area 200 feet wide on each side of a river is specially protected to limit impacts to resources such as water supplies, storm damage and flood control, and fisheries. In densely developed areas, the protected river corridor is 25 feet wide. The Act is administered by the local Conservation Commission along with its Wetlands Protection Act responsibilities.

If a construction project requires dredging more than 100 cubic yards of material, or will result in the loss of more than 5,000 square feet of wetlands, alter any salt marsh, or will discharge dredged material or fill to an Outstanding Resource Water (which includes public water supplies, Areas of Critical Environmental Concern (ACECs), and certified vernal pools) a 401 Water Quality Certification for dredging is required from MassDEP. Conditions of the Certification may include requirements to use silt curtains, "environmental buckets" for certain sediment types, dewatering methodologies, and time-of-year restrictions to protect spawning fish.

To place structures in the water and on adjacent land, and to allow dredging to take place, a license must be obtained under the Public Waterfront Act (Chapter 91). The Chapter 91 or Waterways program regulates activities on filled and flowed tidelands of the Commonwealth. To comply, an engineer will have to prepare stamped drawings of the project layout, which will eventually be filed at the Registry of Deeds along with the deed to the property. Because tidelands are "public trust" lands, (i.e., they are owned in common by the citizens of the state), public benefits must be offered in exchange for private use of this land. The license itself will include conditions that ensure that public benefits, such as public walkways, are constructed.

The Massachusetts also requires a Federal Consistency Review by CZM. Any project that requires a federal permit must be consistent with state coastal policies, as administered by CZM. CZM has worked with both the Corps and the U.S. Environmental Protection Agency (EPA) to develop general permits for projects of minimal environmental impact. If a project is eligible for one of these general permits, it does not generally have to undergo a separate CZM federal consistency review.

Each state along the I-91 Corridor maintains a list of endangered or threatened species. In Massachusetts, it is the Division of Fisheries and Wildlife (MassWildlife). In Vermont it is the Vermont Department of Fish and Wildlife. In all, these lists contain over 80 threatened or endangered species. Massachusetts conforms to the Massachusetts Endangered Species Act (MESA).