Indirect and Cumulative Impacts A Federal Perspective

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Indirect and Cumulative Impacts A Federal
Perspective

• Lamar S. Smith, CEP
• Federal Highway Administration
• Office of Project Development and Environmental
  Review

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Federal Initiatives

• FHWA Guidance January 31, 2003
• EO Indirect and Cumulative Impact Workgroup
  activities
• Draft Baseline Report March 15, 2005
• FHWA Indirect and Cumulative Impact Workshop
• CEQ Guidance on the Consideration of Past Actions
  in Cumulative Impact Analysis June 24, 2005

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Federal Guidance and ...
FHWA Guidance
Baseline Report
FHWA Position Paper
EPA 309 Guidance
EO WG
1992
1999
2005
1997
2003
CEQ Guidance
CEQ Handbook
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FHWA 2003 Interim Guidance

• Discuss and clarify terms, with examples
• Focus on NEPA requirements and FHWA policy
• Integrates guidance and relevant case law
• Reminder on the CEQ available or incomplete
  information provision
• Emphasis on focused coordination and
  communication during project development
• Discussion of reasonable mitigation
• Overview of related requirements
• Existing training and guidance

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Executive Order 13274Environmental Stewardship
andTransportation Infrastructure Project Reviews
Indirect and Cumulative Impacts Work Group
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Executive Order 13274
Environmental Stewardship and Transportation
Infrastructure Project Reviews
... to enhance environmental stewardship and
streamline the environmental review and
development of transportation infrastructure
projects
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The EO Task Force

• Secretary of Agriculture
• Secretary of Commerce
• Secretary of Transportation (Chair)
• Secretary of the Interior
• Secretary of Defense
• Administrator of the Environmental Protection
  Agency
• Chairman of the Advisory Council on Historic
  Preservation
• Chairman of the Council on Environmental Quality

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EO Task Force Goals

• Promote environmental stewardship of the
  Nationals transportation system and expedite
  environmental reviews of priority projects
• Formulate and implement policy and procedures to
  ensure completion of reviews in timely and
  environmentally sensitive manner
• Advance environmental stewardship through
  cooperative actions in planning and project
  development
• Designate priority projects that should receive
  expedited agency reviews

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Task Force Activities

• Priority Projects
• Task Force level Champions
• Oversight, project reports and status
• Best practices
• Interagency Workgroups
• Identify barriers to timely and effective
  completion of the NEPA process
• Suggest potential solutions to improve
  coordination, integration, and environmental
  stewardship

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Interagency Workgroups

• Purpose and Need (and Alternatives)
• Planning Integration
• Indirect and Cumulative Impacts
• For more information
• www.fhwa.dot.gov/stewardshipeo/

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Workgroup Activities

• Identify problems, challenges, individual agency
  perspectives, and needs
• Position Paper or Work Plan
• Background
• Review of the issues focus areas
• Identify existing and potential problems
• Determine agencies needs
• Present recommendations for consideration of the
  Task Force

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Why Indirect and Cumulative Impacts ?

• Numerous statutes require consideration of
  indirect and cumulative impacts
• Differences in the requirements
• Complicated and complex issues
• Potential source of disagreement and delay in the
  environmental review process
• Thinking, understanding and interests vary
• Better and focused coordination and collaboration
  will improve environmental stewardship and
  project streamlining

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Indirect and Cumulative Impact Workgroup

• Federal Highway Administration (Chair)
• Federal Transit Administration
• Federal Aviation Administration
• Environmental Protection Agency
• US Fish and Wildlife Service
• US Forest Service
• Advisory Council on Historic Preservation
• Council on Environmental Quality (Chair)
• US Army Corps of Engineers
• National Oceanic Atmospheric Administration

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Workgroup Focus

• Terminology and related responsibilities
• NEPA and other requirements
• Approaches, techniques and methods for analysis
• Level of detail for analysis and documentation
• Availability of information
• Mitigation requirements and responsibilities

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Interagency Recommendations

• Clarify mitigation requirements
• Develop enhanced coordination model
• Compile and distribute existing references
• Determine existing training opportunities,
  identify gaps and needs
• Evaluate analysis tools and best practices
• Improve understanding of the relationship of
  transportation and land use

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Task Force Request

• Prepare Baseline to
• Provide information to help practitioners advance
  the state of the practice
• Develop policy-level recommendations to
  strengthen transportation decision making

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Draft Baseline Report

• Document legal requirements related to analysis
  and mitigation
• Relevant laws, regulations, EOs, and case law
• Determine current state of the practice
• Based on research and practitioner interviews
• Case studies
• Identify lessons learned and opportunities
• Compile existing guidance and training
• Assess guidance, training, and policy needs
• Develop additional recommendations

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Background

• Major Requirements
• National Environmental Policy Act (NEPA)
• Clean Water Act, Section 404
• Endangered Species Act
• National Historic Preservation Act, Section 106

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NEPA Indirect Effects

• Caused by the action occurring later in time or
  farther removed, but still reasonably foreseeable
• Includes effects of induced growth and changes in
  land use patterns or growth

Direct Impacts
Proposed Action
Indirect Impacts
Related Action
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NEPA Cumulative Impacts

• Result from incremental impacts of the action
  added to other past, present, and reasonably
  foreseeable future actions (regardless of who
  undertakes those actions)
• Can result from individually minor
• but collectively significant actions

Proposed Action
Impacts
Impacts
Past Actions
Cumulative Impact on a Resource
Other Present Actions
Impacts
Impacts
Future Actions
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Legal Requirements

• 40 laws, regulations, and Executive Orders
• General NEPA, EO 12898
• Transportation TEA-21, 23 CFR 771
• Air, land, and water CAA, CWA 404, EO 11990
• Wildlife ESA
• Cultural NHPA Section 106
• Health and Safety

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Legal Review

• 30 Cases USDOT, USACE, USFS, DOI ...
• Kleppe v. Sierra Club
• Glouchester County Concerned Citizens v.
  Goldschmidt
• Sierra Club v. Marsh
• Fritiofson v. Alexander
• Laguna Greenbelt v. US DOT
• Carmel by the Sea v. US DOT

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Case Law

• Basic NEPA standards
• Deference
• Requirement to analyze impacts
• Extent of consideration
• Defined reasonably foreseeable
• Indirect selling points
• Crystal ball forecasting

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State of the Practice

• Consideration of these effects are often limited
• Evolving toward a greater appreciation of
  indirect cumulative effects in decision making
• Characterized by uncertainty

Uncertainties over impacts to analyze and
methods to use
Confusion over requirements
Lack of rigorous analysis, in many cases
Interagency disagreements
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Sources of Disagreement

• Methods and analytic issues
• Analysis boundaries
• Level of detail
• Availability of
  Information
• Significance of
  impacts and
  mitigation

What are the indirect or cumulative effects?
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Sources of Disagreement

• Questions about causality
• Cause of land use change, or response to planned
  growth?
• The role of transportation agencies in mitigation
• Who is responsible?
• Who should be / is responsible?
• Are transportation funds appropriate?

Land Use / Development
Transportation Action
Some of the most contentious issues are often
related to induced land use changes
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Existing Guidance and Training

• Guidance and training is available
• Recently available and may not be readily
  accessible to those who need it
• Need for additional guidance and training
• Tailored to transportation
• Include case studies
• Highlight differences in
  indirect and cumulative
  impact analysis

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Case Studies

• Highlight useful practices
• Address indirect and cumulative impacts at
  various levels
• Planning-level efforts
• Project-level analysis
• Area-wide (ecosystem-level) mitigation

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Lessons Learned

• No one size fits all
• Each project has unique issues, geographic and
  temporal boundaries, need for analysis ....
• Importance of clear documentation
• Delineate analysis and conclusions for both
  indirect and cumulative impacts
• Make clear to decisionmakers, the public, and
  resource agencies

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Opportunities to Enhance Coordination and
Decision Making

• Early coordination and scoping
• Agree on critical issues important resources
  most likely affected, appropriate boundaries, and
  methodologies
• Coordination with local governments
• Facilitate solutions and improve decisions,
  environmental stewardship and
  mitigation

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Opportunities to Enhance Coordination and
Decision Making

• Use of GIS and modeling tools
• Use of experts panels

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Opportunities to Enhance Coordination and
Decision Making

• Consideration of impacts earlier in
  transportation planning to help avoid and
  minimize effects
• Area-wide, watershed and ecosystem-level
  mitigation approaches

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Recommendations

• Outreach and information sharing
• Practitioner oriented guidance and training
• New approaches for consensus building

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Recommendations

• Outreach and Information Sharing
• Share baseline information (laws and regulations,
  case law, guidance documents, training programs)
• Implement a coordinated communication effort from
  DOT headquarters offices to field offices
• Recognize exemplary practices

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Recommendations

• Practical guidance and training
• Develop and package a compilation of best
  practice case studies
• Develop more specific national-level guidance,
  including specific steps, samples of available
  techniques, and checklists
• Develop and implement workshops for Federal
  agency field staff, project sponsors, and
  consultants

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Recommendations

• Approaches for Consensus Building
• Develop enhanced coordination model
• Identify approaches for integrating analysis into
  planning processes
• Identify methods to address impacts in tiered
  environmental documents
• Facilitate interagency discussion on mitigation
  to develop common ground and agreement on the
  role of transportation agencies in mitigation of
  impacts

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Next Steps

• Outreach and Information Sharing
• Ongoing
• Practitioner-Oriented Guidance and Training
• Future
• New Approaches for Consensus Building
• Ongoing

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Get Involved!

• Available at http//www.fhwa.dot.gov/stewardshipe
  o/icireport.htm
• Send comments to projectstreamlining_at_ost.dot.gov
• Please help !

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FHWA Indirect and Cumulative Impact
WorkshopHighlights
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Goals and Objectives

• Improve analysis and discussion
• Understanding and application of terms
• Overview of NEPA and other requirements
• Distinguish between indirect and cumulative
  future land use impacts
• Improve discussion of land use change, future
  activities and potential impacts
• Emphasize and improve coordination
• Reasonable Mitigation

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Importance of Analysis

• Compliance
• Understanding impacts of project decisions
• Influence decision and alternative selection
• Inform local interests and authorities
• Address concerns and expectations
• Satisfy reasonableness and hard look standard
• Scope of analysis includes direct, indirect and
  cumulative impacts

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CEQ Guidance June 24, 2005 Guidance on the
Consideration of Past Actions in Cumulative
Effects Analysis
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CEQ Guidance

• Guidance
• NEPA is forward looking and focused on the
  potential impacts of proposed action
• Review of past actions is required to the extent
  that it informs agency decision making on the
  proposed action

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CEQ Guidance

• Discussion
• Agencies should be guided by the scoping process
  scope and significant issues
• Ensure information is useful to decision makers
• Reduce extraneous background data
• Begin with direct and indirect impacts
• Not required to list or catalogue individual past
  actions

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CEQ Guidance

• Tools for NEPA Practitioners
• Scoping to focus on significant impacts
• Incomplete and unavailable information
• Programmatic NEPA analysis or planning study
• Environmental management systems - confirm
  assumptions, track performance, increase
  confidence
• Use effects of past actions to predict indirect
  effects

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