Chapter 5 - Stakeholder Management

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Chapter 5 - Stakeholder Management

The project development process requires the design team to coordinate their proposed solutions with numerous stakeholders throughout the life of the project. The performance of timely stakeholder coordination is invaluable as it can return critical information and offer unique perspectives that assist in identifying challenges and potential solutions and attainment of project buy-in and approvals when required. DelDOT describes its stakeholder coordination process as stakeholder management in recognition of the proactive approach the project team should adopt. This manual separates stakeholder management into four distinct components:

  • Identify stakeholders – The first step is to identify the people, groups, or organizations that could be impacted by or have an interest in the project. Each project will have a unique set of stakeholders that must be identified.
  • Plan stakeholder management – The next step in the stakeholder management process is to develop appropriate management strategies to effectively engage stakeholders throughout the project development process. This requires analyzing each stakeholder’s individual needs, interests, interdependencies, influence, and potential impact on project success.
  • Stakeholder engagement – Once a management plan has been created, the project team can implement their plan and begin communicating and working with the project stakeholders to meet their needs/ expectations, address issues as they occur, and foster a cooperative and engaging rapport.
  • Monitor stakeholder engagement – The final step is to monitor the effectiveness of the project’s stakeholder management and to make adjustments as needed to ensure effective coordination.

This chapter categorizes several common groups of project stakeholders and highlights DelDOT’s preferred stakeholder management practices and procedures. In many cases, DelDOT has created subject matter expert sections to help facilitate coordination with the stakeholders identified within this chapter. The design team is encouraged to coordinate their external stakeholder management activities through the subject matter expert support groups referenced throughout the chapter.

Project coordination will often times require the design team to provide digital design data information. Before providing this information, an electronic release form must be signed by all parties as described in Section 5.10.

5.1 Public Engagement

Section currently under development.

5.2 Coordination with Municipalities

Section currently under development.

5.3 Environmental

All transportation projects will inherently affect the environment in which they are constructed. Accordingly, numerous agencies have been established, laws passed, and regulations adopted to govern a project’s potential impacts. A partial list of protected resources is provided in Section 5.3.2.2. This section establishes the processes and procedures that DelDOT employs to ensure that the State’s transportation needs are met in a way that minimizes impacts to the surrounding environment.

Assessing an action’s environmental effect is a complex task due to the intricacies involved with evaluating resource impacts and because the governing regulations and their associated interpretations are continuously evolving. To meet these challenges, DelDOT provides an Environmental Stewardship section which is staffed with subject matter experts who work to achieve DelDOT’s goal of minimizing the environmental impacts of the State's transportation system. The section ensures that DelDOT projects and maintenance activities account for and take actions that protect, restore, mitigate for, and enhance the environment. The group also maintains and manages DelDOT’s relationships with the governing agencies to expedite the environmental coordination process. The Environmental Stewardship section’s specific role on an individual project will vary based on the project’s scope of work as well as what assignments have been delegated by DelDOT through professional service tasks. The activities that are normally overseen by this section within the project development process include, but are not limited to the following:

  • Provide recommendations for proper assessment surveys (e.g., wetland delineations, architectural, and archeological surveys).
  • Jointly assess a project’s level of environmental impacts with the design team.
  • Perform coordination with applicable resource agencies including routine communications and establishing project-specific meetings when needed.
  • Provide recommendations on ways to mitigate impacts to environmental resources.
  • Administer the NEPA process. See Section 5.3.2 for additional information.
  • Secure necessary project permits. See Section 5.3.3 for additional information.

Assessing a project’s potential environmental impact should be performed as early as feasible in the project development process. This assessment is ideally performed during the project initiation phase as part of a project’s initial scoping which is discussed in additional detail in Section 3.6. The design team should coordinate with the Environmental Stewardship section during this early phase to discuss the infrastructure deficiencies being addressed and the current vision of the project’s purpose and need and associated scope before proceeding too far into the project development process. The Environmental Stewardship section can provide insight and recommendations into any technical studies that may be required which will help inform the project’s scoping process. Determining and addressing environmental-related issues at this early stage through minor alignment shifts or other means will save time, reduce coordination efforts, and minimize potential future delays at later project stages.

The environmental coordination process will culminate in the creation of various deliverables that will memorialize the coordination process depending upon the task being undertaken and the funds being used. Deliverables created through the environmental coordination process include, but is not limited to, the following:

  • Technical reports – These will vary based on the project’s scope and potential impacts and could include wetland delineations, noise studies, archelogy reports, or other similar findings documents. Technical reports could include Planning and Environmental Linkage studies (PELs) which are further discussed in Section 5.3.1.
  • NEPA document – NEPA documents are discussed in more detail in Section 5.3.2.
  • Project permits – Project permits are discussed in more detail in Section 5.3.3.
  • Environmental Compliance (EC) plan sheets – The EC sheets are intended to highlight water, wetland, and natural feature compliance issues but are used for 106 commitments when appropriate. This deliverable is included within the project plans.
  • Environmental Statement – An environmental statement is provided for all advertised DelDOT contracts and all IDIQ contract work order locations. The statement is used to specify environmental compliance commitments, restrictions, and substantive permit and/or memorandum of agreement (MOA) special conditions.

5.3.1 Planning and Environmental Linkage (PEL)

Planning and environmental linkage (PEL) strategies represent an integrated approach to transportation decision-making that consider environmental, community, and economic goals early in the transportation planning process, and then uses that information, analysis, and products developed to inform the environmental review process. As the name implies, the goal of PEL is to connect the analyses used to develop an agency’s planning deliverables discussed in Section 2.1 to the NEPA process so as to develop a more seamless decision-making process that minimizes duplication of effort, promotes environmental stewardship, and streamlines project delivery.

Transportation agencies can create PEL studies that document the project level planning and environmental analysis that has been conducted prior to the formal start of the NEPA process. Completed PEL studies are intended to be appended or incorporated by reference to a project’s formal NEPA document. Any PEL study incorporated by reference must be reasonably available for inspection by potentially interested persons within the time allowed for comment. When completed properly, the PEL study will reduce the unnecessary recreation of information that is more appropriately developed as part of the initial planning process. PEL studies are typically created through a collaborative effort involving transportation planners, NEPA practitioners, resource agencies, and the public. Performing a PEL study may be especially beneficial when multiple projects with potentially overlapping boundaries are planned so project study and planning efforts can be coordinated. PEL studies may be pursued on a project-by-project basis at the discretion of the design team in consultation with DelDOT’s Environmental Stewardship section.

5.3.2 National Environmental Policy Act (NEPA) Process

The National Environmental Policy Act (NEPA) ensures that actions that are performed by federal agencies or that utilize federal funds examine and consider the potential environmental effects of the proposed action. NEPA demands that agencies utilize a systematic interdisciplinary approach to balance infrastructure need with potential effects to the human and natural environment to reach a decision that is in the best overall public interest. The goal of NEPA is that all environmental investigations, reviews, and consultations be coordinated as a single and collaborative process and that compliance with all applicable environmental requirements be reflected in an environmental review document. NEPA requires a procedural process be performed and in and of itself does not mandate particular results or substantive outcomes. A project’s proposed purpose and need, scope, and potential resource impact will determine the level of analysis required.

The Council of Environmental Quality (CEQ) was established under NEPA to advise the President, develop environmental policies, and to oversee the implementation of NEPA. 40 CFR 1500 are the regulations that implement NEPA across the federal government and further requires that each federal agency adopt regulations that implement NEPA for their agency. The United States Department of Transportation’s (US DOT’s) regulations are implemented through 23 CFR 771.

In general, DelDOT will coordinate and complete the NEPA process with the Federal Highway Administration (FHWA) providing varying levels of input based on the class of action. It is DelDOT’s goal to conduct the NEPA process in an inclusive manner which allows the active participation of individuals, businesses, interest groups, resource agencies, and affected constituencies. The NEPA process should be made transparent by providing public knowledge of the final decisions and the process used.

The NEPA process includes the following key elements:

  • Identifying the project’s purpose and need, as well as a range of alternatives to consider.
  • Determining and documenting the foreseeable social, economic, and environmental impacts of the proposed transportation improvement. Resources to be considered are described in additional detail in Section 5.3.2.2. This task may require the completion of environmental Stewardship or related engineering studies.
  • Coordinating with appropriate governing agencies.
  • Informing decision-makers and the public of the project’s scope and potential impacts (both positive and negative).
  • Mitigating for inescapable environmental effects of a proposed action. These measures are to be incorporated into the action and documented in the environmental review document.
  • Documenting the analysis and decisions made.

The NEPA document should be written to:

  • Tell the story of the project development process.
  • Be readily understandable to all audiences, including those without technical expertise.
  • Provide key information in an easy-to-use format. This includes using concise writing, effective visual graphics, and utilizing appendices for supporting information.
  • Focus significant issues and to discuss issues in proportion to their significance.
  • Demonstrate how the action will meet the pertinent legal requirements.
  • Identify methodologies used in the analysis.
  • Describe impacts associated with the action as well as all project commitments made.

5.3.2.1 Classes of Actions

Transportation projects vary in type, size and complexity, and potential to affect the environment. To account for this variability, 23 CFR 771.115 defines three classes of actions that prescribe the level of documentation required in the NEPA process. The classes of actions are determined by the level and significance of impact of the associated action. The design team must advise the Environmental Stewardship section of any changes to a project’s scope which could have the potential to affect the class of action of the project. The three classes of action are:

  1. A categorical exclusion (CE),
  2. An environmental assessment (EA), and
  3. An environmental impact statement (EIS).

The determination of the significance of an impact is a function of both context and intensity. Context requires that the significance of an action must be analyzed in several contexts such as society as a whole, the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. Intensity refers to the severity of the proposed impact.

It is noted that 23 CFR 771.115 allows a programmatic approach or agreement be made for any class of action.

5.3.2.1.1 Categorical Exclusions (CEs)

Categorical Exclusions (CEs) are defined in 23 CR 771.117(a) as actions that do not individually or cumulatively have a significant environmental effect. CEs do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts. Though the documentation required for a CE is less strenuous than the other defined classes of actions, almost all CEs will require some level of resource impact evaluation and agency coordination.

DelDOT and the FHWA maintain a programmatic agreement which establishes the responsibilities and obligations of both agencies to process and document CEs for Federal-aid highway projects. The programmatic agreement streamlines projects with minimal environmental impacts by authorizing DelDOT to determine and document whether these projects qualify for a CE on behalf of FHWA pursuant to 23 CFR 771.117(g).

Department Resources
FHWA Programmatic Agreement Regarding CEs
DelDOT NEPA Categorical Exclusion Guidebook
CE Checklist Template FHWA Approval
CE Checklist DelDOT Approval

The current programmatic agreement and associated documentation can be accessed at the following locations:

The programmatic agreement defines three available paths to a CEs approval:

  1. Appendix A lists actions that qualify for a CE in accordance with 23 CFR 771.117(c). Approval of these activities is delegated to DelDOT’s Environmental Stewardship Manager and do not normally require any further NEPA approvals by the FHWA provided that the action meets the following conditions:
    1. Meets the definition of a CE,
    2. Does not exceed the thresholds provided in Section IV(A)(1)(b) of the programmatic agreement, and
    3. Does not include any unusual circumstances which would make CE approval inappropriate in accordance with 23 CFR 771.117(b).
  2. Appendix B lists actions that qualify for a CE in accordance with 23 CFR 771.117(d). These actions require that DelDOT certify to the FHWA and provide appropriate documentation demonstrating that the project meets the definition of a CE. The FHWA has sole approval authority over these actions. The documentation submitted to the FHWA is to include this CE Checklist Form.
  3. Actions outside of those listed in Appendix A and B or which exceed the threshold requirements provided in Section IV(A)(1)(b) of the programmatic agreement may still be processed as a CE. In these cases, DelDOT will certify to the FHWA and provide appropriate documentation demonstrating that the project meets the definition of a CE and that the action does not involve unusual circumstances that warrant the preparation of an EA or EIS. The FHWA has sole approval authority over these actions. The documentation submitted to the FHWA is to include this CE Checklist Form.

    4. Under the conditions of the programmatic agreement, the FHWA is obligated to provide timely advice, technical assistance, and review of certified actions as requested.

    5.3.2.1.2 Environmental Impact Statement (EIS)

    An environmental impact statement (EIS) is to be prepared for projects that have significant environmental impacts. Examples of transportation actions that normally require an EIS are listed in 23 CFR 771.115(a). EISs require the performance of a formal scoping process in accordance with 23 CFR 771.123. The scoping process will be used to identify the project’s purpose and need, the range of alternatives and impacts, and the significant issues to be prioritized and addressed in the EIS. The EIS must evaluate all reasonable alternatives to the proposed action and document the reasons why other alternatives, which may have been considered, were eliminated from detailed study. The EIS must summarize the studies, reviews, consultations, and coordination required by environmental laws or executive orders to the extent appropriate. A recommended format for an EIS is included in 40 CFR 1502.10; however, FHWA’s current policy on EISs encourages deviations from 40 CFR 1502.10 if it conveys information more effectively. An EIS must be completed within two-years of its start in accordance with 40 CFR 1501.10 and must be limited to 150 pages in length, in accordance with 40 CFR 1502.7.

    The EIS process will ultimately culminate in approval of a combined Final EIS/ Record of Decision (ROD) (see 23 CFR 771.124) or a standalone ROD (see 23 CFR 771.127). When performed, EISs should be developed using a tiered approach as discussed in 23 CFR 771.111(g) and 40 CFR 1502.20. EISs are rarely performed for transportation projects in Delaware. All Final EIS/ Record of Decision documents are to be posted to the project’s website until the project is constructed and open for operation.

    5.3.2.1.3 Environmental Assessment (EA)

    An environmental assessment (EA) is performed in consultation with the administering federal agency for actions which cannot be classified as either a CE (see Section 5.3.2.1.1) or an EIS (see Section 5.3.2.1.2) and the level of environmental impact is unclear. An EA must be completed within one-year of its start in accordance with 40 CFR 1501.10 and must be limited to 75 pages in length, in accordance with 40 CFR 1502.5(f). The process for conducting an EA is described in detail in 23 CFR 771.119. EAs require consultation with interested agencies and other stakeholders as well as public involvement. If at any point during the EA process, the administering federal agency or DelDOT determines that the action is likely to have a significant impact on the environment, the preparation of an EIS as described in Section 5.3.2.1.2 will be required. If no significant impact is discovered during the EA process, DelDOT must provide the EA documentation to the administering agency and recommend the issuance of a Finding of No Significant Impacts (FONSI), which would serve as the project’s environmental documentation. EAs are rarely performed for transportation projects in Delaware. All final FONSI documents are to be posted to the project’s website until the project is constructed and open for operation.

5.3.2.2 Protected Resources

Protected resources, for the purpose of this manual, are defined as elements or features that contribute to the human and built environment or the natural environment and which are protected in some capacity by law, regulation, or other policy. This section is not intended to be an all-encompassing list of protected resources that must be considered during the project development process. The design team should work with DelDOT’s Environmental Stewardship section to identify protected resources within a project’s vicinity and to determine the need and timing for any field or baseline studies to be completed as part of the environmental screening process.

Impacts to protected resources must be evaluated as part of the project development process. 40 CFR 1508.1 defines impacts as “changes to the environment from the proposed action that are reasonably foreseeable” and establishes three different categories of impacts:

Department Resources
Public Involvement Policy
  1. Direct effects, which are caused by the action and occur at the same time and place as the action.
  2. Indirect effects, which are caused by the action but occur later in time or are farther removed in distance from the action.
  3. Cumulative effects, which are caused by the incremental effects of the action when added to the impacts of other past, present, and future reasonably foreseeable actions regardless of what agency or person undertakes such actions. Cumulative effects can result from individually minor but collectively significant actions taking place over time.

The design team should work with the Environmental Stewardship section to establish the environmental mitigation and subsequent commitments for a project. Typically, a project’s environmental commitments are agreed upon between DelDOT and the regulatory agencies during the NEPA process and in compliance with state and federal requirements. A project’s mitigation should follow the sequencing order established in 40 CFR 1508.1(s) which includes the following:

  • Avoiding the impact altogether by not taking a certain action or parts of an action. This could include alignment shifts, grade changes or alternate locations of facilities to avoid protected resources.
  • Minimizing impacts by limiting the degree or magnitude of the action and its implementation. Minimization measures could include alignment shifts or design measures to reduce the footprint of an impact; time of year construction restrictions to avoid endangered species habitat during breeding season; or landscaping to serve as a visual screen.
  • Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
  • Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
  • Compensating/ Mitigating for the impact by replacing or providing substitute resources or environments. This could include adding to public parks and recreation areas to replace lost facilities or constructing wetland mitigation sites.
5.3.2.2.1 Human and Built Environment

Human and built environment resources are elements that are a direct result of some form of human intervention or creation and are therefore not naturally occurring. Performing public outreach during the planning and project development process is an integral part of assessing a planned action’s effect on the human and built environment and also in evaluating measures to avoid, minimize or mitigate the effect. DelDOT’s required level of public involvement during the project development process is detailed in DelDOT Policy Implement O-003 entitled Public Involvement Policy and is discussed in more detail in Section 5.1.

Unmarked human burial and human skeletal remains found during either the design or construction phases are to be handled in accordance with 7 Del. C Chap 54. No further disturbance of skeletal remains shall commence until coordination with the Cultural Resources staff within DelDOT’s Environmental Stewardship section has been performed.

5.3.2.2.1.1 Environmental Justice

The concept of environmental justice, commonly referred to as EJ, has existed in statute since the passage of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Environmental justice is a recognition that government programs, policies, and activities can disproportionately affect minority and low-income populations. Achieving environmental justice is important as it ensures full and fair participation by all potentially affected communities in the development, construction, operation, and maintenance of transportation facilities.

Executive Order 12898 was issued in 1994 to direct federal agencies to the greatest extent practicable, to identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations. The executive order requires each federal agency to develop an agency-wide environmental justice strategy to implement the goals of the executive order requirements. US DOT issued its environmental justice strategy in 1995 and the FHWA issued its own order in 1998 (Order 6640.23). US DOT and FHWA continuously review and update their environmental justice policies.

Environmental justice requires that agencies identify, evaluate, and then address actions that could lead to an inequitable distribution of benefits and burdens. DelDOT’s process for identifying environmental justice communities is documented within its DelDOT NEPA Categorical Exclusion Guidebook.

5.3.2.2.1.2 Historic Preservation
Department Resources
DelDOT NEPA Categorical Exclusion Guidebook

Numerous statutes exist to preserve historic and archeological resources. The most comprehensive of which is the National Historic Preservation Act of 1966 which includes Section 106 (54 U.S.C. 306108). Section 106 requires federal agencies to consider the effects of their undertakings on historic properties and affords the Advisory Council on Historic Preservation (ACHP) reasonable opportunity to comment on such undertakings. The regulations implementing Section 106 are contained in 36 CFR 800 and establishes procedures for how federal agencies meet their statutory responsibility. The 36 CFR 800 regulations require the agency responsible for the undertaking to consult with the State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), representatives of local government, and additional interested parties. The goal of the consultation process is to identify historic properties potentially affected by an undertaking, assess its effects on the properties, and seek ways to avoid, minimize, or mitigate these effects.

The proposed use of land from an historic resource on or eligible for the National Register will additionally require an evaluation and approval under Section 4(f) of the DOT Act of 1966. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Section 4(f) also applies to all archeological sites on or eligible for the National Register and which warrant preservation in place in accordance with 23 CFR 774.11(f). A 4(f) property will only be approved for use if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or there is only a de minimis impact as defined by 23 CFR 774.17. Additional statutes and related regulations regarding historic preservation are included in Table 5.3.2.2.1.2.

Table 5.3.2.2.1.2 – Additional Statutes Regarding Historic Preservation
Title Reference
American Antiquities Act of 1906 54 U.S.C. 320301 – 320303
Archeological Resources Protection Act of 1979 54 U.S.C. 312501 – 312508 and 23 U.S.C. 305
Native American Grave Protection and Repatriation Act of 1990 25 U.S.C. 3001 – 3013
Native American Graves Protection and Repatriation Act Regulations – Disposition of Culturally Unidentifiable Human Remains 43 CFR Part 10
Determination of Eligibility for Inclusion in the National Register of Historic 36 CFR 63
National Historic Landmarks Program 36 CFR 65
5.3.2.2.1.3 Publicly Owned Parkland and Other Publicly Owned Recreational Areas

Publicly owned parkland and recreational areas open to the public are protected under Section 4(f) of the DOT Act of 1966, which also includes wildlife and waterfowl refuges. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Coordination with the official or officials that own or administer (official with jurisdiction) the property is required in accordance with 23 CFR 774.5(b). A 4(f) property will only be approved for use if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or there is only a de minimis impact as defined by 23 CFR 774.17.

Recreational areas that received funding assistance through the Land and Water Conservation Fund (LWCF) Act of 1964 are additionally protected by Section 6(f) of the act. Section 6(f) contains strong provisions to protect federal investments but does allow for some flexibility. The regulatory requirements for 6(f) properties are contained in 36 CFR 59. Land that is proposed to be converted to another use must meet the conversion requirements of 36 CFR 59.3 to be considered.

5.3.2.2.1.4 Air Quality

The most comprehensive legislation related to air quality is the Clean Air Act of 1967, which has been amended many times since its initial adoption. The Clean Air Act defines the Environmental Protection Agency’s (EPA’s) responsibilities for protecting and improving the nation’s air quality as well as the stratospheric ozone layer to protect human health and the environment. The Clean Air Act established six criteria pollutants (carbon monoxide (CO2), lead (Pb), nitrogen dioxide (NO2), ozone (O3), particulate matter (PM–10 and PM2.5), and sulfur dioxide (SO2)) and required the creation of national ambient air quality standards (NAAQS) for those pollutants. The Clean Air Act also requires that each state develop and maintain a State Implementation Plan (SIP) that identifies and commits to attaining and then maintaining the NAAQs. In Delaware, the Delaware Department of Natural Resources and Environmental Control (DNREC) is responsible for preparing and updating the SIP in accordance with the procedures contained in 7 DE Admin. Code § 1132.

The Clean Air Act establishes three designations for areas based on ambient air quality conditions observed for the NAAQS criteria pollutants. These designations are instrumental in establishing a state DOT’s responsibilities under the Clean Air Act. The three designations established by the Clean Air Act are as follows:

  • Nonattainment area, which is any geographic region of the United States which has a pollutant that exceeds the established NAAQS.
  • Maintenance area, which is any geographic region of the United States previously designated as nonattainment and subsequently redesignated to attainment.
  • Attainment area, which is any geographic area where air pollution levels consistently stay below the established NAAQS and which are not considered Maintenance areas.

The EPA maintains a database of nonattainment areas for the criteria pollutants online in what is called the Green Book. Currently, New Castle County is designated as moderate – nonattainment for 8-hour Ozone O3.

The regulations implementing the Clean Air Act for transportation plans, programs, and projects are contained in 40 CFR 93. 40 CFR 93 works in combination with 23 CFR 450 to effectively integrate the transportation planning and air quality planning processes with the goal of reducing the severity and number of violations of the NAAQS. Under the regulations, a state’s transportation activities must conform to the SIP which means the actions cannot cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any other required interim emission reduction or milestone in any nonattainment or maintenance area.

The responsibility for ensuring conformity to the SIP is delegated to the Metropolitan Planning Organizations (MPOs) in accordance with 23 CFR 450 and 7 DE Admin. Code § 1132. Additional information on the federal planning standards is contained in Section 2.1. Projects that are not exempt from conformity in accordance with 40 CFR 93.126 and that are found to be in violation of conformity standards may have federal funds withheld. The air quality analysis required during the project development process will vary considerably in content and level of detail from one project to another based on the project scope, size, geographic location, background conditions, and anticipated impacts.

5.3.2.2.1.5 Noise

The primary federal statutes governing highway traffic noise are the 1970 Federal-aid Highway Act and the Noise Control Act of 1972. The FHWA developed the procedures contained within 23 CFR 772 for abatement of highway traffic noise and construction noise in accordance with these governing statutes. In addition, DelDOT maintains Policy Implement D-03 entitled Noise Policy Implement which prescribes DelDOT’s procedures for noise studies and noise abatement measures for transportation projects defined as a Type I Project by the policy to help protect the public's health, welfare and livability, to supply noise abatement criteria, and to establish requirements for information to be shared with local officials.

Noise levels are protected at the state level as well by 7 Del. C Chap 71 with the implementing regulations being contained in 7 DE Admin. Code § 1149. 7 DE Admin. Code § 1149 (4.2.4) includes specific provisions for construction noise. Additionally, municipalities or counties may have more restrictive protections for noise. DelDOT projects are additionally bound to the requirements contained in State Bond Bill epilogue language. Policy Implement X-XX entitled Construction Night Work describes DelDOT’s policy for notifying and obtaining approvals for when DelDOT reasonably expects the use of night work for any of its construction activities. Section 5.1 includes additional information on the procedures to be used when a project is considering the use of night work.

5.3.2.2.1.6 Hazardous Material
Department Resources
Noise Policy Implement

The federal statues pertaining to hazardous waste sites are contained in Table 5.3.2.1.6. Additionally, 7 Del. C Chap 63 and 7 DE Admin. Code § 1302 contain Delaware’s regulations governing hazardous waste. Hazardous waste sites pose liability and long-term maintenance and cost challenges in addition to the environmental factors that must be considered. Discovery of hazardous waste has the potential to delay project development or stop construction until long, complex, and costly process of investigation, coordination, and analysis produces acceptable measures to control, contain, treat, monitor, and dispose of the hazardous material. Accordingly, all reasonable efforts should be made during the planning and design phases to find and prepare mitigation strategies for known or suspected hazardous material sites.

Table 5.3.2.2.1.6 – Additional Statutes Regarding Hazardous Material
Title Reference>
Resource Conservation and Recovery Act of 1976 42 U.S.C. 6901 — 6992k
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 Documents/General/Manual Development/42 U.S.C. 9601 et seq. 42 U.S.C. 9601 et seq.
Superfund Amendments and Reauthorization Act of 1986 42 U.S.C. 9671—9675
The Brownfields Utilization, Investment and Local Development (BUILD) Act 2018 83 FR 29782
5.3.2.2.1.7 Land Use

The conversion of land to provide transportation facilities is generally considered an irreversible commitment as land dedicated to transportation is rarely changed to other uses during the life of the highway facility. Accordingly, government performed activities affecting transportation facilities have potential to have large effects to the immediate and surrounding land uses. The project team should assess an activity’s potential effects to the surrounding land use as part of their evaluation of an action’s impacts to the human and built environment. This assessment will require reviewing local and regional development trends and any pertinent state and/or local government plans or policies for land use and growth in the area to ensure consistency. Where possible, the distinction between planned and unplanned growth should be identified.

5.3.2.2.1.8 Right-of-Way

The human and built environment will be impacted by the size and level of right-of-way acquisitions that an action requires. For example, right-of-way effects on the human and built environment can range from small area temporary construction easements to total property acquisitions for permanent inclusion in operational right-of-way requiring property owner relocations. The DelDOT and FHWA Programmatic Agreement establishes acquisition thresholds which would preclude DelDOT from approving the action without additional FHWA involvement. The primary statute governing right-of-way acquisition and relocation assistance is the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. This Act requires that relocation assistance be made available to all displaced persons without discrimination, so that they do not suffer a disproportionate burden as a result of a project designed for public benefit. The regulations implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act are contained in 49 CFR 24. Additional information about DelDOT’s right-of-way process is contained in Section 5.5.

5.3.2.2.1.9 Other Social Impacts

Additional impacts which could affect the social fabric and quality of life for the community surrounding a proposed project must also be considered. A project and its social effects could be considered beneficial or adverse depending on the existing community and its values as well as the scope of work proposed. The following are among the social impacts that should be evaluated:

Department Resources
FHWA Programmatic Agreement Regarding CEs
  • Community cohesion – Impacts to community cohesion would include altering connectivity by separating, splitting, or isolating neighborhoods or communities. However, actions also have the potential to create new connections as well. Indicators of community cohesion may include observable interactions between individuals/groups or shared attitudes and beliefs.
  • Safety – Impacts to overall public safety include any project specific impacts of the action relating to the safety of motorists, bicyclists, pedestrians and all multi-modal users.
  • Economic – Impacts to the local or regional economy would include evaluating an action’s effect to future developments, tax revenues and public expenditures, employment opportunities, and retail sales. Additionally, changes in access control should also be evaluated due to its potential wide-reaching economic effects.
  • Access to services – Impacts to access to services would include actions that would create, remove, or alter travel patterns to services that include, but are not limited to, shopping areas, school districts, emergency services, churches, recreation area, or libraries. Access to services should be evaluated for all modes of transportation including multimodal and transit.

Performing the social impact assessment can be conducted through a combination of desktop reviews, field investigations, and coordination with local stakeholders. Identified social impacts should be evaluated to ensure environmental justice as discussed in Section 5.3.2.2.1.1.

5.3.2.2.2 Natural Environment

Natural environmental resources are elements or features within our environment that exist independent of human intervention. Natural environment resources are an integral part of our ecosystem as well as culture. The development of a well-justified purpose and need statement is imperative when effects to the natural environment are proposed. 23 CFR 777 establishes the policy and procedures for evaluating and mitigating adverse environmental impacts to wetlands and other natural habitat resulting from actions of Federal-aid projects.

Many natural environmental resources are protected under Section 4(f) of the DOT Act of 1966. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Coordination with the official with jurisdiction or officials that own or administer the property is required in accordance with 23 CFR 774.5(b). A 4(f) property will only be approved for use if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or there is only a de minimis impact as defined by 23 CFR 774.17. DNREC maintains several programs that protect the natural, scenic, or open-space values of real property which may create 4(f) implications. These programs include the follow:

  • Conservation easements – 7 Del. C Chap 69 authorizes DNREC to enter into voluntary nonpossessory agreements with landowners to place development restricts on their property.
  • Nature preserves – 7 Del. C Chap 73 authorizes DNREC to acquire and hold property in trust for the benefit of the people. Property cannot be acquired through exercise of the power of eminent domain under this program.
  • Open space program – 7 Del. C Chap 75 authorizes DNREC to acquire open space or to encourage the dedication of currently open space lands to private land preservation organizations. Property cannot be acquired through exercise of the power of eminent domain under this program.

A common mitigation strategy that DelDOT and other agencies use to provide compensatory mitigation are mitigation banks. A mitigation bank is a wetland, stream, aquatic resource, or other natural habitat that has been restored, created, enhanced, or in exceptional circumstances, preserved, expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources. DelDOT will prioritize the creation of on-site mitigation but will use off-site project specific mitigation sites or mitigation banks when deemed necessary. DelDOT’s Environmental Stewardship section is tasked with planning, protecting, creating, monitoring, and tracking the Department’s mitigation and mitigation bank sites.

5.3.2.2.2.1 Water Quality

The nation’s transportation infrastructure plays a prominent and unique role in managing and affecting water quality. Transportation owners are tasked with conveying drainage runoff within their facilities and typically the surrounding land uses as well. Additionally, transportation assets usually comprise a significant portion of the land within a watershed and therefore contribute directly to the watershed’s overall water quality.

The comprehensive federal law establishing water quality policy is the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.). The Clean Water Act significantly reorganized and expanded upon the Federal Water Pollution Control Act of 1948. The Clean Water Act created national water quality criteria recommendations for pollutants in surface waters, required that all discharges of dredged or fill material into a water of the United States be regulated, and made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. The EPA’s National Pollutant Discharge Elimination System (NPDES) permit program is tasked with permitting the nation’s point source discharges while the United States Army Corps of Engineers permits discharges of dredged or fill material into a water. A point source discharge is considered any discrete conveyance such as a pipe or a man-made ditch. Additional information about obtaining water quality standards on a project level is provided in Section 4.8 and Section 4.9.

Additional federal water quality legislation includes the Safe Drinking Water Act of 1974 (42 U.S.C. 300 Part F) and the National Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et. seq.). The Safe Drinking Water Act provides additional protections for the country’s drinking water supply while the National Wild and Scenic Rivers Act creates additional protections for designated rivers to preserve their outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations. The National Wild and Scenic Rivers Act safeguards the special character of these rivers, while also recognizing the potential for their appropriate use and development. The act encourages river management that crosses political boundaries and promotes public participation in developing goals for river protection. In Delaware, there are nearly 100 miles of Wild and Scenic Rivers which includes the White Clay Creek.

Water quality is protected at the state level as described below:

5.3.2.2.2.2 Fish and Wildlife

The nation’s fish and wildlife are protected by numerous federal statutes. The legislation that shaped the current protection policy to protect fish and wildlife was the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). The act was passed by congress in recognition that our nation’s rich natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people”. The Endangered Species Act creates a coordinated program to conserve imperiled species and the ecosystems upon which they depend through an interagency consultation process. The program is administered by the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). The USFWS has primary responsibility for terrestrial and freshwater organisms, while the responsibilities of NMFS are mainly marine wildlife such as whales and anadromons fish such as salmon. The regulatory requirements implementing the Endangered Species Act are contained in 50 CFR 402.

The Endangered Species Act allows the overseeing regulatory agency to list a species as either “endangered” or “threatened” thereby establishing protections for the species of fish, wildlife, or plant. The USFWS and NMFS will additionally designate “critical habitat” at the time of listing, when appropriate. Actions proposed by an agency must be reviewed to determine the presence or absence of listed and proposed threatened or endangered species and designated and proposed critical habitat in the project area. When a listed or proposed species or a designated or proposed critical habitat may be present in the project area, a biological assessment must be prepared in accordance with 50 CFR 402.12 to evaluate the potential effects of the action on the listed and proposed species and designated and proposed critical habitat and to determine whether any such species or habitat are likely to be adversely affected by the action. Actions prohibited by the act must be coordinated and ultimately permitted through interagency coordination.

There are several other federal statutes that protect the nation’s fish and wildlife in addition to the Endangered Species Act. A brief discussion of the most pertinent protections is provided below:

  • Magnuson-Stevens Fishery Conservation and Management Act of 1976 – This is the primary law governing marine fisheries management in federal waters of the United States. The law is intended to prevent overfishing, rebuild overfished stocks, increase long-term economic and social benefits, and ensure a safe and sustainable supply of seafood. Under the law, congress has established the Essential Fish Habitat (EFH) mandate which requires consultation be performed when a federal activity occurs in an area that could affect essential fish habitat. The statute is codified in 16 U.S.C. 1801 et seq.
  • Fish and Wildlife Coordination Act of 1934 – Legislation enacted to protect fish and wildlife when federal actions result in the control or modification of a natural stream or body of water. The statute is codified in 16 U.S.C. 661 et seq.
  • Migratory Bird Treaty Act of 1918 – This law makes it illegal to take possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. The statute is codified in 16 U.S.C. 703.
  • The Bald and Golden Eagle Protection Act of 1940 – This law makes it illegal for anyone to take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof. The statute is codified in 16 U.S.C. 668 et seq.
  • Marine Mammal Protection Act of 1972 – This law prohibits, with certain exceptions, the creation of adverse effects to marine mammals in waters of the United States. The statute is codified in 16 U.S.C. 1361 et seq..

DNREC is empowered under 7 Del. C § 102 to protect, manage, and conserve all forms of wildlife in the State of Delaware. Under their authority, DNREC has established additional state-listed endangered species in 7 DE Admin. Code § 3900 (16.0) as well as incorporated several of the federal protections into state law as well.

5.3.2.2.2.3 Wetlands

Wetlands are delicate natural resources which serve many important and beneficial functions for people, fish, and wildlife. Wetlands improve water quality, store flood waters, maintain surface water flow during dry periods, and create diverse creature habitat. Wetlands with a continuous surface connection to a waterbody are protected under the federal Clean Water Act which is described more fully within Section 5.3.2.2.2.1. Additional federal protections may be provided for wetlands in coastal environments through the Coastal Zone Management Act of 1972 and the Coastal Barriers Resources Act of 1982 which are described in more detail in Section 5.3.2.2.2.4. Additionally, Executive Order 11990 and DOT Order 5660.1A direct federal agencies to avoid new construction in wetlands unless there is no practicable alternative to the construction and the proposed action includes all practicable measures to minimize harm to the wetlands.

At the state level, wetlands are protected by the Delaware Wetlands Act (7 Del. C Chap 66) and the Delaware Subaqueous Lands Act (7 Del. C Chap 72). The administrative code implementing these regulations are contained in 7 DE Admin. Code § 7502 and 7 DE Admin. Code § 7504, respectively.

It is especially necessary to evaluate impacts to wetlands based on their quality and the severity of the impact based on their complex function. Simply evaluating the impact in terms of acres or square footage does not provide sufficient information upon which to determine the degree of actual impact on the wetland ecosystem.

5.3.2.2.2.4 Coastal Locations

Delaware has an extensive coastline that is protected at both the federal and state level. The two pertinent federal laws establishing protections for coastal locations are the Coastal Barriers Resources Act of 1982 and the Coastal Zone Management Act of 1972. The Coastal Barriers Resources Act protects features within locations designated as “coastal barrier units” by prohibiting the expenditure of federal funds to develop these sensitive areas. Coastal barriers are considered landscape features that protect the mainland from the full force of wind, storm surges, or other tidal energy. The Coastal Zone Management Act encourages states to develop their own coastal management program to protect, restore, and establish preservation and development responsibilities through financial incentives. States that have an approved coastal management program are permitted to review federal actions within the coastal area to ensure the action is consistent with the State’s coastal management program. The Coastal Barriers Resources Act is codified in 16 U.S.C. 3501 et seq. and the Coastal Zone Management Act is codified in 16 U.S.C. 1451 et seq. DNREC oversees Delaware’s Coastal Management Program.

At the state level, 7 Del. C Chap 68 provides authority to the DNREC to enhance, preserve, and protect the public and private beaches of the State and 7 Del. C Chap 70 empowers DNREC to permit industrial development within the State’s coastal zone. 7 DE Admin. Code § 5102 is the regulations implementing DNREC’s authority under 7 Del. C Chap 68 while 7 DE Admin. Code 101 is the regulations implementing DNREC’s authority under 7 Del. C Chap 70. Additionally, Delaware Executive Order No. 42 requires that state agencies provide an opportunity for one another, federal agencies, and other interested parties to review and comment on proposed actions which may be of more than local interest.

5.3.2.2.2.5 Floodplains

Floodplains are areas of land adjacent to a waterbody that help mitigate the effects of flooding during an event by capturing and holding excess water. Executive Order 11988 directs federal agencies to avoid encroachments into floodplains unless there is no practicable alternative. FHWA’s procedures implementing Executive Order 11988 are contained in 23 CFR 650 subpart A. Encroachment, as defined by 23 CFR 650, is an action occurring within the 100-year floodplain limits as delineated in the National Flood Insurance Programs (NFIP) maps or by information developed by DelDOT if NFIP maps are not available.

5.3.2.2.2.6 Farmland

The Farmland Protection Policy Act of 1981 was created to minimize the extent to which federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses. Under the act, protected farmland includes:

  1. Prime farmland that has the best combination of physical and chemical characteristics for producing food, feed, fiber, forage, oilseed, and other agricultural crops with minimum inputs of fuel, fertilizer, pesticides, and labor, and without intolerable soil erosion.
  2. Unique farmland, other than prime farmland that is used for production of specific high-value food and fiber crops.
  3. Farmland other than prime or unique farmland that has been determined by the appropriate state or local government with concurrence from the Secretary of Agriculture to be farmland of statewide or local importance.

Under the act, land subject to the requirements of the act does not need to be currently used for cropland. Instead, it can include forestland, pastureland, cropland, or other land, but not water or land already in or committed to urban development. The regulations implementing the statute are contained in 7 CFR 658.

3 Del. C Chap 9 permits the State of Delaware to acquire, maintain, and enforce agricultural land preservation easements. The administrative code implementing these regulations is contained in 3 DE Admin. Code § 701.

5.3.2.2.2.7 Forestland

There are no nationally protected forestlands in the State of Delaware; however, 3 Del. C Chap 9 authorizes the State to create protections for forestlands. The administrative code implementing these regulations is contained in 3 DE Admin. Code § 702.

5.3.2.3 Re-Evaluation

The FHWA may review DelDOT’s environmental document prior to granting any new approval related to an action in accordance with 23 CFR 771.129. A re-evaluation may be required if there are changes to the proposed action that could potentially result in significant new effects to the environment, unanticipated impacts become known, applicable regulations have changed, or there is a lapse in time from the approval of the decision document. When necessary, supplemental EISs are to be completed in accordance with 23 CFR 771.130.

5.3.3 Project Permitting

Section currently under development.

5.4 Utilities

Section currently under development.

5.4.1 Utility Coordination Process

Section currently under development.

5.4.2 Locating Existing Utilities

Section currently under development.

5.4.3 Conflict Assessment

Section currently under development.

5.4.4 Utility Company Reimbursement

Section currently under development.

5.4.5 Utility Coordination Deliverables and Approvals

Section currently under development.

5.5 Right-of-Way

Section currently under development.

5.6 Railroad

Section currently under development.

5.7 Developer Coordination

Section currently under development.

5.8 Finance

Section currently under development.

5.8.1 Project Cost Increases

Section currently under development.


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