NEPA and FHWA Project Development

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NEPA and FHWA Project Development

• Lamar S. Smith, Team Leader
• Project Development Environmental Review

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How Has the Process Evolved?
SAFETEA ?
1966 DOT Act
1998 TEA-21
1990 ISTEA
1971 FaHA
1956 FaHA
2000
1950
1960
1990
1970
1980
1978 CEQ
1990 CAAA
1969 NEPA
1966 NHPA
1987 FHWA/FTA
1971 CWA
1973 ESA
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Federal Environmental Laws and Executive Orders
Affecting Transportation
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NEPA

• Declare a national policy to encourage productive
  and enjoyable harmony between man and his
  environment
• prevent or eliminate damage to the environment,
  
• stimulate the health and welfare of man,
• enrich understanding of natural resources
  important to the nation
• Use all practical means and measures to
• foster and promote the general welfare
• create and maintain conditions under which man
  and nature exist in productive harmony
• fulfill social, economic, and other
  requirements of present and future generations of
  Americans

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Federal Responsibility

• Trustees of the environment
• Assure safe, healthful, productive, esthetically
  and culturally pleasing surroundings
• Attain widest range of benefit without
  degradation or undesirable and unintended
  consequences
• Preserve important historic, cultural, and
  natural aspects
• Achieve balance between population and resource
  use
• Enhance the quality of the environment

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Decisionmaking Framework

• Systematic and interdisciplinary approach
• Environment given appropriate consideration with
  economic and technical considerations
• Include in proposals, a detailed statement on
• environmental impacts of the action
• adverse impacts which cannot be avoided
• alternatives to the proposed action
• consequences of taking the proposed action
• Consult with Federal agencies and involve the
  public

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NEPA Implementation
CEQ Regulations 40 CFR 1500-1508
NEPA
CEQ Implementation
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Elements of the NEPA Process

• Federal Decisionmaking
• Alternatives analysis
• Impacts evaluation
• Mitigation avoid, minimize, and compensate
• Public involvement
• Interagency coordination
• Process and documentation
• Inform decisions of non-Federal entities

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CEQ Regulations

• Implement action forcing provisions of NEPA
• Comply with procedures and achieve goals
• Better decisions not just better documents
• Integrate NEPA with planning other processes
• Encourage and facilitate public involvement in
  decisionmaking
• Reasonable alternatives
• Avoidance and minimization of adverse impacts
• Reduce paperwork and delay

40 CFR 1500 - 1508
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NEPA Jurisprudence

• Procedural not substantive - process not decision
• Considerable deference given to the lead agency
• Hard look" at significant environmental impacts
• Inform decisionmakers
• Reasoned decision
• Inform the public

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NEPA Implementation
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FHWA Project Decisionmaking

• Project Development Process
• 23 USC 109(h) Standards
• Project decisionmaking
• NEPA implementation
• 23 CFR 771
• Transportation planning process provides
  essential information

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23 USC 109 (h)

• Standards
• (h) assure that possible adverse economic,
  social, and environmental effects have been fully
  considered
• final decisions on the project are made in the
  best overall public interest
• taking into consideration the need for fast,
  safe and efficient transportation, public
  services, and the costs of eliminating or
  minimizing such adverse effects and

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FHWA Regulations

• Environmental investigations, reviews, and
  consultations be coordinated as a single process
• Compliance with all applicable requirements be
  reflected in the environmental document
• Alternatives be evaluated and decisions be made
  in the best overall public interest considering
• Public involvement, systematic and
  interdisciplinary approach essential to project
  development
• Incorporate measures to mitigate adverse effects

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Project Development

• Early and continuous interagency coordination
• Meaningful evaluation of alternatives
• avoidance of commitments before improvement
  is fully evaluated
• logical termini, independent utility, not
  restrict consideration of alternatives
• State public involvement and hearing procedures
• Final design, property acquisition, construction
  
• shall not proceed prior to CE, FONSI or ROD
• NEPA approval constitutes acceptance of the
  general project location and concepts

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• Endangered Species Act Section 7
• Civil Rights Act
• Executive Order 12898 (Environmental Justice)
• Section 4(f) of USDOT Act (49 USC 303) - Parks,
  recreation, etc
• Clean Air Act
• Safe Water Drinking Act
• Clean Water Act 404(b)(1)
• Farmland Protection Policy Act
• National Historic Preservation Act
• Floodplains

• Economic, Social, and Environmental Effects (23
  USC 109(h)) analysis
• Public involvement, interagency coordination
• Tribal consultation
• Location, design, and engineering
• Uniform Relocation Assistance and Real Property
  Acquisition Policies Act of 1970
• Noise Standards
• Public Hearing Requirements
• Americans with Disabilities Act

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Applicants Responsibility

• Detailed statements for a major Federal action
  funded under a program of grants to States shall
  not be deemed legally insufficient solely by
  reason of having been prepared by a State agency
  or official, if
• agency or official has statewide jurisdiction and
  has the responsibility for such action
• Federal official furnishes guidance and
  participates in such preparation
• official independently evaluates statement prior
  to its approval adoption

NEPA 102(d) Amended
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Transportation Project Development
System, coordination, conformity, project
purpose, need and alternatives
Planning
Needs, alternatives, impacts, public / agency
coordination, documentation
NEPA
NEPA Approval Location, design concept
acceptance and environmental decisions
Final Design
Post NEPA Project Development Activities
Right-of-Way
Construction
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Elements of the NEPA Process

• Alternatives analysis based on Purpose and Need
• Impact analysis
• Mitigation
• Public involvement
• Interagency coordination
• Documentation

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NEPA Process
Planning / pre-NEPA
Proposed Action
Coordination and Analysis
YES
NO
Significant Impact ?
Unknown
Significant impact
Listed CE
Documented CE
Environmental Assessment
Notice of Intent Scoping Process
Draft EIS
Coordination and analysis as needed
No significant impacts
Public Comment
Document appropriately
Final EIS
Finding of No Significant Impact (FONSI)
Record of Decision (ROD)
Agency Action
Agency Action
Agency Action
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Purpose and Need

• Inform decisions
• Provides critical foundation for alternative
  decisions
• Basis for reasonable alternatives, evaluations,
  and comparisons
• Validates reasons for going forward with Federal
  action
• Basis for dismissal of no-action

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Alternatives Analysis

• Varies with Class of Action CE, EA, EIS
• Rigorous and objective evaluation in the EIS
• Reasonable range of alternatives
• Reasonable number of alternatives
• Must include no-action or no-build
• Build alternatives representative number
• improve existing
• new location
• Modal and operational (where appropriate)
• TSM alternatives, transit
• Avoidance and minimization

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FHWA Policy on Alternatives

• Alternatives be evaluated and decisions made in
  the best overall public interest considering
• the need for safe and efficient transportation
• social, economic, and environmental impacts
• National, state, and local environmental goals
• Ensure meaningful evaluation of alternatives
• Logical termini
• Independent utility
• Restrict consideration of alternatives for
  reasonably foreseeable improvement

23 CFR 771.105(b) and 23 CFR 771.111(f)
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Environment

• NEPA
• Natural and physical environment and
• relationship of people with that environment
• 40 CFR 1508.14
• 23 U.S.C 109 (h)
• Social, economic, and environmental effects
• manmade and natural resources
• public facilities and services

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Resources

• Communities, housing, businesses
• Land use
• Wildlife, habitat, endangered species
• Waters of the U.S. including wetlands
• Historic properties and districts
• Parklands and recreation areas
• Agricultural land
• Air quality (local and air basin)

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Direct Impacts

• Caused by the action and occur at the same time
  and place.
• (40 CFR 1508.8)

Direct Environmental Impacts
Project Action
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Indirect Impacts

• Caused by the action and are later in time or
  farther removed in distance, but are still
  reasonably foreseeable
• Growth inducing and other effects on air and
  water and other natural systems, including
  ecosystems, related to induced changes
• in the pattern of land use, and
• population density or growth rate
• (40 CFR 1508.8)

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Indirect Impacts
Indirect Environmental Impacts
Project Action
Related Actions

• Alter behavior and function of affected
  environment caused by encroachment
• Project-influenced effects
• Effects related to project-influenced development

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Cumulative Impacts

• Result from incremental impacts of the action
  when added to other past, present, and reasonably
  foreseeable future actions, regardless of agency
  or person that undertakes other actions
• Can result from individually minor but
  collectively significant actions taking place
  over a period of time
• 40 CFR 1508.7

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Cumulative Impacts
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Resource Impact Continuum
Past, present and future cumulative affects
Project Impacts
Indirect Impacts
Resource size, function, quality, and condition
over time
Present
Past
Future
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Reasonably Foreseeable

• Not required to engage in speculation or
  contemplation
• Possible but not probable effects may be excluded
  from NEPA analysis
• Reasonably foreseeable events, although
  uncertain, must be probable or likely
• Consider the likelihood of impacts
• Based on informed judgment

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Context
Intensity

Significant Impact
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Context

Context
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Mitigation of Impacts

• CEQ defines mitigation as
• avoidance, minimization, and compensation

Direct Environmental Impacts
Project Action
Avoid and minimize
compensate
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FHWA Mitigation Policy

• 23 CFR 771.105(d)
• Measures necessary to mitigate adverse impacts
  will be incorporated into the action and are
  eligible for Federal funding when the
  Administration determines that
• (1)  The impacts actually result from the
  Administration action and
• (2)  The proposed mitigation represents a
  reasonable public expenditure after considering
  the impacts of the action and the benefits of the
  proposed mitigation measures.

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Considerations

• Modifying the proposed project
• Adding additional avoidance or minimization
  measures
• Providing compensatory mitigation for affected
  resources
• Identifying mitigation measures other parties can
  implement

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Alternatives, Impact and Mitigation Analysis

Floodplains
Neighborhood
Industrial Site
Route 104
Wetland
Historic Site
Route 100
Route 200
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Implementation Responsibility

• Implement mitigation measures stated as
  commitments in environmental documents
• Responsibility of the Applicant
• FHWA will ensure compliance through project
  management
• Formal monitoring plan may be established
  (recommended where sensitive resources are
  impacted)

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Coordination and Involvement

• Prior to concluding an EIS, the responsible
  Federal official must
• consult with and obtain the comments of any
  Federal agency with jurisdiction by law or
  special expertise with the impacted resources
• provide copies of statement to Federal, State
  and local agencies and the public

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Public Involvement - FHWA

• Coordination of public involvement activities and
  hearings with entire NEPA process
• ... Early and continuous opportunities for the
  public to be involved in the identification of
  social, economic, and environmental impacts
• via State public involvement procedures and
  requirements for public hearings

23 CFR 771.111
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Interagency Coordination

• Early and continuous participation in the NEPA
  process
• Special expertise and information
• Scoping agreements and understanding
• Establish timeframes
• Consultation and permitting
• Adoption of NEPA documents

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Scoping

• Continuation of early involvement with affected
  agencies and interested public
• Formally associated with EIS process
• Invite participation
• Determine the scope of the study
• Determine important vs minor issues
• Allocate assignments if appropriate
• Identify other studies in area
• Agree on timing of activities

40 CFR 1501.7 CEQ Scoping Guidance
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NEPA Process
Planning / pre-NEPA
Proposed Action
Coordination and Analysis
YES
NO
Significant Impact ?
Unknown
Significant impact
Listed CE
Documented CE
Environmental Assessment
Notice of Intent Scoping Process
Draft EIS
Coordination and analysis as needed
No significant impacts
Public Comment
Document appropriately
Final EIS
Finding of No Significant Impact (FONSI)
Record of Decision (ROD)
Agency Action
Agency Action
Agency Action
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Categorical Exclusion

• CEQ - actions which do not individually or
  cumulatively have a significant effect on the
  human environment
• FHWA - actions which meet the CEQ definition and,
  based on past experience with similar actions, do
  not involve significant environmental impacts
• Neither an EA nor EIS is required
• 40 CFR 1508.4
• 23 CFR 771.117(a)

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Categorical Exclusions

• 23 CFR 771.117(c) - actions that meet the
  criteria for CEs
• - Normally require no further approvals
• Notify FHWA project is a c-list action
• Reference the regulation
• 23 CFR 771.117(d) - additional actions that meet
  the criteria for a CE may be designated as CEs
  only after Administration approval
• FHWA individual project approval required based
  on submitted documentation

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Environmental Assessment

• Document prepared for an action
• where the significance of the social, economic,
  and environmental impacts are not clearly
  established
• Concise public document
• Briefly provide evidence and analysis
• Include brief discussions of
• Not contain long descriptions or detailed data
• Not mini EISs

23 CFR 771.115(c) 40 CFR 1508.9
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FONSI

• Finding Of No Significant Impact
• Document that briefly presents why the action
  does not have a significant impact
• Includes and references the EA
• Approved by FHWA Division
• Need not be circulated
• Notice of availability
• sent to affected agencies
• sent to Statewide clearinghouse (EO 12372)
• published in local newspaper (recommended)
• Available upon request by the public

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NEPA Process
Planning / pre-NEPA
Proposed Action
Coordination and Analysis
YES
NO
Significant Impact ?
Unknown
Significant impact
Listed CE
Documented CE
Environmental Assessment
Notice of Intent Scoping Process
Draft EIS
Coordination and analysis as needed
No significant impacts
Public Comment
Document appropriately
Final EIS
Finding of No Significant Impact (FONSI)
Record of Decision (ROD)
Agency Action
Agency Action
Agency Action
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EIS

• Environmental impacts of the proposed action
• Unavoidable adverse environmental impacts
• Alternatives to the proposed action
• Irreversible and irretrievable commitments of
  resources
• Relationship between short term uses and
  maintenance and enhancement of long term
  productivity

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Adequate Evaluation

• More than a list of resources and potential
  project impacts
• Examine resources over time - past, present, and
  future
• Determine growth associated with project
• Consider the indirect reasonably foreseeable
  impacts of the project
• Reasonable analysis
• Hard look

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EIS Document Contents

• Summary
• Purpose and Need
• Alternatives
• Affected Environment - Existing Setting
• Social, economic and natural environmental
• Environmentally Sensitive Features
• Environmental Consequences
• Probable Environmental Impacts and Mitigation
• Comments and coordination

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Final EIS Additions

• Preferred alternative and basis for decision
• Alternatives not preferred and reason why
• Mitigation and enhancement measures
• Major unresolved issues and approach to resolve
  them
• Coordination, comments, and responses
• Final 4(f) and other findings

23 CFR 771.125(a)(1)
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HQs Prior Concurrence

• Inadequate coordination w/government agencies
• Inadequate discussion of social, economic, and
  environmental impacts
• Impacts are unusually great
• National policy issues
• Major unresolved issues
• Agency opposition on environmental grounds

23 CFR 771.125(c)
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FHWA Legal Sufficiency

• Review
• Legal requirements have been met
• Document and process is defensible
• Document was properly developed
• Answers questions that can be reasonably asked
• FEIS discussion is adequate

23 CFR 771.125(b)
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EPA 309 Review

• Rating environmental impacts
• LO - lack of objections
• EC - environmental concerns
• EO - environmental objections
• EU - environmental unsatisfactory
• Rating adequacy of the impact statement
• 1 - adequate
• 2 - insufficient information
• 3 - inadequate

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CEQ Referral Procedure

• When a Federal agency determines the project is
  environmentally unsatisfactory
• CEQ acts as arbitrator or otherwise rules on the
  dispute
• Specific time periods are mandated
• Referral must occur within 25 days of FEIS
  availability notice
• 40 CFR 1504

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Record of Decision

• Incorporate by reference and cross reference FEIS
• Decision - identify selected alternative
• Alternatives considered
• Discuss values considered and basis of decision
• Identify environmentally preferred
  alternative(s)
• Section 4(f) - summarize basis of approval
• Measures to minimize harm - describe mitigation
• Monitoring or enforcement program included
• Comments on FEIS - substantive comments and
  responses

40 CFR 1506.9 23 CFR 771.125(g)