Improving the Quality of NEPA Documentation

1. Improving the Quality of NEPA Documentation Lamar S. Smith, CEP Team Leader, FHWA HQ, Project Development and Environmental Review

2. Or “If you always do what you always did, you will always get what you always got.”

3. “If you always do what you always did,you will always get what you always got.” Yogi Berra J. Moms Mabley Sir Michael Latham Tim Haugh

4. Hey, what’s the purpose and need? It’s in there somewhere, keep looking! FHWA 2008 Environmental Conference

5. Quality Document Initiative FHWA 2008 Environmental Conference

6. Improving the Quality of Environmental Documents Chapter 1. Introduction Chapter 2. Core Principles for Improving the Quality of NEPA Documents Chapter 3. Content and Process Chapter 4. Advanced and Specialized Techniques Chapter 5. Legal Sufficiency of NEPA Documents Chapter 6. Achieving Continuous Improvement Resources FHWA 2008 Environmental Conference

7. Improving NEPA Quality • Follow the 3 Core Principles • Tell the story • Keep the document brief • Ensure legal requirements • Use the scoping process effectively • Consider circulation of the Summary instead of the entire EIS • Incorporate data by reference FHWA 2008 Environmental Conference

8. Core Principles • Tell the “story” of the project so that the reader can easily understand • the purpose and need for the project • how each alternative would meet the project goals • strengths and weaknesses associated with each alternative • environmental impacts of the proposal FHWA 2008 Environmental Conference

9. Plots and Sub-Plots • Essential elements of NEPA • Purpose and need • Consideration and analysis of alternatives • Impact analysis • Avoidance, minimization of harm (mitigation) • Public involvement • Interagency coordination • Decision FHWA 2008 Environmental Conference

10. Compliance Story Elements • Include relevant regulatory considerations and decision influences in analysis • Section 4(f), Section 404, LEDPA, Section 106, and Section 7, etc. • Remember - not all resources have an equal weight • Some requirements constrain choice among alternatives • Document the process, not just the outcome FHWA 2008 Environmental Conference

11. And Always • Write clearly - use simple, plain language • To write clearly you must think clearly • Explain the problem and why people should care • Make the reader a character in the story • Organize the document to tell a story FHWA 2008 Environmental Conference

12. CEQ “Environmental impact statements shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements, which will be based upon the analysis and supporting data from the natural and social sciences and the environmental design arts.” FHWA 2008 Environmental Conference

13. Core Principle • Keep the Document Brief • Clear and concise writing • Select an easy-to-use format • Use effective graphics and visual elements • Discuss issues and impacts in proportion to their significance • Use “documentation” effectively FHWA 2008 Environmental Conference

14. CEQ EISs • Analytic rather than encyclopedic • Impacts discussed in proportion to significance • Only brief discussion of other than significant issues • Only enough discussion to show why more study is not warranted • Concise and no longer than absolutely necessary to comply with NEPA • Length varies, first with potential environmental problems and then with project size FHWA 2008 Environmental Conference

15. Where Do We Go From Here? When you arrive at a fork in the road, take it. Yogi Berra FHWA 2008 Environmental Conference

16. EIS Compliance Appendices and Technical Reports ADMINISTRATIVE RECORD

17. What Can We Do? “We can't solve problems by using the same kind of thinking we used when we created them.” Albert Einstein FHWA 2008 Environmental Conference

18. Environmental Impact Statement Document Appendices, Technical Reports, etc. Compliance (Documentation) ADMINISTRATIVE RECORD

19. Environmental Impact Statement Document Appendices & Technical Reports Additional Documentation Administrative Record FHWA 2008 Environmental Conference

20. Use of the Summary • If the EIS is unusually long, the agency may circulate the summary, • The entire statement shall be furnished to: • federal agency with jurisdiction by law or special expertise • the applicant, if any • any person, organization, or agency requesting entire EIS • in the case of a final EIS, any person, organization, or agency which submitted substantive comments on the draft FHWA 2008 Environmental Conference

21. Documentation Format • EIS (or EA) • Technical Reports for major environmental analysis and compliance requirements • Appendices: 404(b)(1), Section 4(f), ESA, etc. • Public comment and agency responses • Agency comments and responses • Public hearing and meeting transcripts • Correspondence FHWA 2008 Environmental Conference

22. Document Format • Purpose and need • Project study area (affected environment) and environmental impacts of important resources • Alternatives • development and screening • including avoidance, minimization (mitigation) • Public comments and agency coordination • including regulatory compliance (reference documentation in appendices) • Comparison and selection of alternatives • evaluating, reasoning, explaining, deciding FHWA 2008 Environmental Conference

23. TA 6640.8a “The use of technical reports for various subject areas would help reduce the size of the documents.” FHWA 2008 Environmental Conference

24. Appendices • Material prepared in connection with NEPA analysis • Distinct from material which is not so prepared and is incorporated by reference • Consists of material which substantiates analysis fundamental to the EIS • Analytic and relevant to the decision • Some may be circulated with EIS document others made available on request FHWA 2008 Environmental Conference

25. Incorporation by Reference • Incorporate material into an EIS to cut down on bulk without impeding agency and public review • Cite incorporated material and briefly describe its content • No material may be incorporated by reference unless it is reasonably available for inspection FHWA 2008 Environmental Conference

26. Core Principles • Ensure the document meets legal requirements … … in a way that is easy to follow for regulators and technical reviewers FHWA 2008 Environmental Conference

27. Legal Sufficiency Review • Degree of litigation risk in every EIS … … extent and type of controversy, objection, resources, project, location, regulatory requirements, etc. • Base line level of adequacy is expected • All final EISs (and final Section 4(f) evaluations) are reviewed for legal sufficiency • FHWA is responsible as lead Federal Agency • NEPA process and other requirements and documentation are defensible FHWA 2008 Environmental Conference

28. Legal Review • Project and documents developed properly • Answers substantive questions that reasonably could be asked • Evidence of compliance with substantive requirements • Evidence of hard look and reasoned decision-making FHWA 2008 Environmental Conference

29. Legal Sufficiency • Adequate and reasonable discussion of • purpose and need • alternatives development and analysis (including logical termini and independent utility) • scope of analysis and boundaries • compliance with procedural and substantive requirements • interagency coordination, public involvement FHWA 2008 Environmental Conference

30. Developing Documentation • Know when to seek legal advice and/or involve an attorney in the project • Know and look for warning signs • Consider earlier attorney involvement and review • Time to involve legal counsel varies depending on the situation … … but always at key stages in the project development process FHWA 2008 Environmental Conference

31. Scoping • Use the scoping process effectively • Focus on key issues • Tailor the appropriate level of detail • Participants awareness • Agree on methodology FHWA 2008 Environmental Conference

32. CEQ Policy “Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork --even excellent paperwork -- but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” FHWA 2008 Environmental Conference

33. FHWA Philosophy “FHWA subscribes to the philosophy that the goal of the NEPA process is better decisions and not more documentation. Environmental documents should be concise, clear, and to the point, and should be supported by evidence that the necessary analyses have been made. They should focus on the important impacts and issues with the less important areas only briefly discussed.” FHWA 2008 Environmental Conference