FHWA NEPA Principles and Process

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FHWA NEPA Principles and Process

• Susan Haupt
• Oregon Department of Transportation

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Objectives

• Provide brief introduction to NEPA
• Provide a general overview of the FHWA NEPA
  Classes of Actions, associated processes,
  triggers, and documentation requirements

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What is NEPA?

• National Environmental Policy Act of 1969 (NEPA)
• Primary purpose
• Ensure consideration of environmental impacts
  prior to taking action
• prevent or eliminate damage to the environment,
• stimulate the health and welfare of man,
• enrich understanding of natural resources
  important to the nation

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What does NEPA require?

• NEPA requires a prescribed process, including
  public involvement and scientific analysis in
  order to reach an environmentally informed
  decision.
• NEPA requires full disclosure about major actions
  taken by Federal agencies, including alternatives
  to the actions, impacts, and possible mitigation.

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When does NEPA apply?

• NEPA applies to the actions of Federal Agencies
• What constitutes a Federal action?
• Federal Funding (full or partial)
• Federal Permit
• Federal Approval
• Federal Land (impact to or use of)

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FHWA NEPA Nexus

• FHWA funds (entire or partial, even 1.00!)
• FHWA approval
• Where there is a FHWA nexus, the FHWA NEPA
  process will be followed.
• Note It is generally ODOT practice to implement
  FHWA NEPA process on projects for which federal
  funds may be identified or pursued in the future.
  However, if there is no FHWA nexus, then FHWA
  programmatic agreements do not apply to the
  action!

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Multiple Federal Agencies Involved

• Potential lead agencies shall determine which
  agency shall be the lead agency and which shall
  be cooperating agencies. (40 CFR 1501.5)
• Federal, state, or local agencies may act as
  joint lead agencies to prepare an Environmental
  Document. (40 CFR 1501.5)
• Lead (and joint lead) agencies identify and
  invite other agencies to be cooperating and/or
  participating (SAFETEA-LU 6002)

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Lead and Cooperating Agencies

• Lead agencies (at least one Federal)
• Sponsoring agency
• Cooperating agencies may be
• Federal agencies with jurisdiction by law
  (mandatory) or special expertise (optional)
• State and local agencies
• Federally recognized Tribes

40 CFR 1508.5 1508.16
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SAFETEA-LU 6002

• Establishes an environmental review process for
  transportation projects developed as
  Environmental Impact Statements.
• Creates a new category of involvement in the
  environmental review process termed
  participating agency

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Participating Agencies

• Federal, state, tribal, regional, and local
  government agencies that may have an interest in
  the project should be invited to serve as
  participating agencies
• Participate in the development of
• Project Coordination Plan
• Purpose and need statement
• Range of alternatives
• Methodologies and level of detail required for
  the analysis of the alternatives (SAFETEA-LU
  6002)

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Potentially Interested Agencies may Include

• FEDERAL
• U.S. Fish and Wildlife Service (ESA)
• National Marine Fisheries Service (ESA)
• U.S. Army Corps of Engineers (Sec. 404 CWA)
• STATE
• Department of Fish and Wildlife (Oregon TE
  species)
• Department of State Lands (Removal Fill Law)
• Department of Environmental Quality (NPDES)
• State Historic Preservation Office (Sec. 106)
• Department of Land Conservation and Development
  (Statewide planning goals)
• LOCAL GOVERNMENT
• TRIBES

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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

23 CFR 771.105 Policy
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Subject Areas Considered

• Biological Resources
• Wetlands
• Water Quality
• Archaeological Resources
• Historic Properties
• Land Use
• Socioeconomics
• Parks and Recreation
• Air Quality

• Hazardous Materials
• Floodplains
• Hydraulics
• Geology and Soils
• Noise
• Energy
• Right of Way
• Traffic
• Visual

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FHWA NEPA Process Umbrella

• 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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FHWA NEPA

• 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

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Project Development
System considerations, coordination, conformity,
project need,
Planning
Need, alternatives and impact analysis, public /
agency coordination, documentation (CE, EA/FONSI,
EIS/ROD)
NEPA
NEPA Approval Location, design concept acceptance
Final Design
Post NEPA Project Development Activities
Right-of-Way
Construction
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NEPA Classes of Actions

• Class 1 Environmental Impact Statement (EIS)
• major federal actions significantly affecting
  the quality of the human environment (40 CFR
  1502.3)
• Actions that significantly affect the
  environment (23 CFR 771.115)
• Class 2 Categorical Exclusion (CE)
• Actions which do not individually or cumulatively
  have a significant effect on the human
  environment and for which, therefore, neither an
  EA or EIS is required. (23 CFR 771.115 (b))
• Class 3 Environmental Assessment (EA)
• Actions for which the significance of the
  environmental impacts is not clearly established.
  For such projects, an EA is required to determine
  the appropriate environmental document
  required.(23 CFR 771.115 (c))

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What Informs NEPA Classification?

• Environmental Scoping to determine
• Context and intensity of the proposed action and
  potential impacts
• Applicable Environmental regulations and
  implications
• Potential controversy
• Overall complexity

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Categorical Exclusions

• Although CE projects are exempt from the
  requirement to prepare an EA or an EIS, all other
  applicable environmental regulations must be
  complied with, and
• Documentation supporting the CE is required
• Impacts must be avoided
• Unavoidable impacts must be minimized
• Measures to mitigate unavoidable adverse impacts
  must be incorporated

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Categorical Exclusion Actions

• Do not
• induce significant impacts to planned growth or
  land use for the area
• require the relocation of significant numbers of
  people
• have a significant impact on any natural,
  cultural, recreational, historic or other
  resource
• involve significant air, noise, or water quality
  impact
• have significant impacts on travel patterns and
  do not otherwise, either individually or
  cumulatively, have any significant environmental
  impacts. (23 CFR 771.117(a))

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Categorical Exclusions

• A specific list of FHWA CEs normally not
  requiring further NEPA approval by FHWA is set
  forth in 23 CFR 771.117(c).
• When appropriately documented, additional
  projects may also qualify as CEs pursuant to 23
  CFR 771.117(d).

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Categorical Exclusions Actions

• Actions which normally would be classified as a
  CE but involve unusual circumstances will require
  appropriate environmental studies to determine if
  the CE classification is proper.
• (23 CFR 771.117(b))

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unusual circumstances include

• Significant environmental impacts
• Substantial controversy on environmental grounds
  
• Significant impact on properties protected by
  Section 4(f) of the DOT Act or section 106 of the
  National Historic Preservation Act or
• Inconsistencies with any Federal, State, or local
  law, requirement or administrative determination
  relating to the environmental aspects of the
  action. (23 CFR 771.117(b))

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Environmental Assessments

• Document
• prepared for an action where the significance
  of the social, economic, and environmental
  impacts are not clearly established

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Environmental Assessments

• Lead Agencies shall consult with interested
  agencies on scope of the project in order to
• Determine the potential impacts
• Identify alternatives and measures that might
  mitigate averse impacts
• Identify other environmental review and
  consultation requirements that should be
  conducted concurrently with the EA process
• (23 CFR 771.117(b))

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Environmental Assessments

• The EA should document compliance, to the extent
  possible, with all applicable environmental laws
  and executive orders, or provide reasonable
  assurance that such requirements can be met
• If no significant impacts are identified, the
  applicant shall provide a copy of the Revised EA
  to FHWA and recommend a Finding of No Significant
  Impact (FONSI)

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Finding of No Significant Impact

• A document which briefly presents why an action
  does not have a significant impact
• It must include and reference the environmental
  assessment
• If significant impacts are identified
• CEQ QA 37A
• 40 CFR 1508.13

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Notice of Intent (NOI)

• Announces agencys intent to prepare an EIS
• Initiates the scoping process for the EIS
• Lead agency must prepare the NOI and publish it
  in the Federal Register
• Should announce the intent to prepare an EIS by
  appropriate means at the local level
• Should include logistic information for public
  and interagency scoping meetings

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Environmental Impact Statement

• Required for major federal actions
  significantly affecting the quality of the human
  environment
• (40 CFR 1502.3)
• Actions that significantly affect the
  environment (23 CFR 771.115)

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Environmental Impact Statement

• Major Federal Action (40 CFR 1508.18) includes
  actions with effects that may be major and which
  are potentially subject to Federal control and
  responsibility
• Significantly (40 CFR 1508.27) requires
  consideration of context and intensity
• Affecting (40 CFR 1508.3 and 1508.8) may or will
  have a direct,indirect,cumulative or beneficial
  effect on
• the Quality of the Human Environment (40 CFR
  1508.14) the quality of the natural, physical
  environment and the relationship of people with
  that environment

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FHWA actions normally requiring an EIS

• New controlled access freeway.
• Highway project of four or more lanes on new
  location.
• New construction or extension of fixed rail
  transit facilities (e.g., rapid rail, light rail,
  commuter rail, auto-mated guideway transit).
• New construction or extension of a separate
  roadway for buses or high occupancy vehicles not
  located within an existing highway facility.

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EIS Process

• Scoping, Early Coordination
• Notice of Intent (NOI)
• Prepare and circulate Draft EIS (DEIS)
• Comment period/Public Hearing
• Final EIS (FEIS)
• ROD

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Draft EIS

• The initial draft of the study documentation that
  is presented to the public for review and
  comment.
• Shall evaluate all reasonable alternatives
  considered

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EIS Document Includes

• Summary
• Purpose and Need
• Alternatives
• Affected Social, economic and natural Environment
• Environmental Consequences
• Impacts and Mitigation

• Comments and coordination
• List of Preparers
• Index
• Appendix

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Draft EIS Process
Early coordination, NOI, scoping process
State DOT prepares DEIS with FHWA assistance
FHWA Division circulates document
Make available for public review and comment
EPA - availability notice in the Federal
Register
Other Agencies for comment
Receive Comments
45 day minimum
Public Hearing
FEIS Process
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Final EIS

• After circulation of a draft EIS and
  consideration of comments received, a final EIS
  shall be prepared

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Final EIS shall

• Identify the preferred alternative
• Summarize public involvement and discuss
  substantive comments received on the draft EIS
  and responses
• Describe the mitigation measures that are to be
  incorporated into the proposed action.
• Document compliance, to the extent possible, with
  all applicable environmental laws and Executive
  Orders, or provide reasonable assurance that
  their requirements can be met.

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Final EIS Process
DEIS Process
State DOT Prepares EIS
HQ Prior Concurrence (if applicable)
Legal Sufficiency Review
FHWA Division Administrator approves
EPA for notice in the Federal Register
Make available for public review
Other agencies for comment
DEIS Commentors
30 day minimum
Receive Comments
Prepare ROD
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Legal Review and Adequacy

• Adequacy is based on
• Hard Look
• Reasonableness
• Not arbitrary and capricious
• Full disclosure

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Record of Decision

• Incorporate by reference and cross reference the
  FEIS
• Decision - identify selected alternative
• Alternatives considered
• Discuss values considered and basis of decision
• Identify environmentally preferred
  alternative(s)

40 CFR 1506.9 23 CFR 771.125(g)
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Record of Decision

• 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)
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NEPA Shelf Life

• Before you take further action on a draft or
  final environmental document or NEPA decision,
• you should coordinate with your local liaison and
  FHWA to
• ensure that the documentation you have is still
  valid and can be built upon, and that you will
• you will not be required to pursue additional
  analysis before taking further action.

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Questions?

• Susan Haupt [phone]
• susan.haupt_at_odot.state.or.us