National Environmental Policy Act

1. National Environmental Policy Act How does it effect the job of Project Leader?

2. This Presentation will look at three aspects of NEPA at ODOT • The Act itself, what does it say? • FHWA’s NEPA regulations • ODOT’s new directions with NEPA • Your questions about the process

3. Asking Questions • Please, ask clarifying questions as I go along. • There will be a question and answer period at the end for more philosophical questions, comments, digging deeper into various topics. • Jot down notes about issues as I go.

4. NEPA--The Act • Passed by Congress in 1969 • Title I--Congressional declaration of the national environmental policy • Title II--Established Council on Environmental Quality--CEQ--created in the Executive Office of the President

5. Title I--Section 101 • Establishes the goal posts • Notice these words--trustee of the environment, assure all Americans, widest range of beneficial uses without degradation, preserve, achieve a balance, enhance..resources. • All to benefit--all responsible

6. Title I--Section 102 • All agencies in the Federal Government • Utilize a systematic and interdisciplinary approach • For actions significantly effecting the environment---a detailed statement of the environmental impacts, and alternatives to the proposed action.

7. Title I--Section 102 continued • Work of putting together the EIS can be done by the applicant, but the Act specifically says the Federal agency can not be relieved of the responsibility for the scope, objectivity, and content of the entire statement.

8. Title 1--Section 103 • Directs all federal agencies to bring their regulations into compliance with the Act

9. Title I--Section 104 and 105 • NEPA does not relieve the agency of any other obligations. • NEPA obligations are in addition to other obligations.

10. Title II • Requires an annual report on the Environmental “state of the nation” • In addition to ecological environments, it includes Urban and suburban environments • Creates CEQ--whose job it is to analyze and interpret environmental trends and to recommend national policies to promote improvement of the quality of the environment.

11. Title II • Consults with a Citizens’ Advisory Committee on Environmental Quality • Has representatives of science, industry, agriculture, labor, conservation organizations, and State and local governments, etc. • The council’s scope is considered international in nature

12. What Defines ODOT’s NEPA Process • CEQ’s Regulations 40 CFR 1500-1508 • FHWA and FTA Regulations 23 CFR 771 • FHWA Technical Guidance T 6640.8A • FHWA Several other topical guidance's • Regulations, policies, and guidance's from all other agencies that issue permits, regulate a resource, or have commenting authority.

13. CEQ Regulations • Is the principal description of the NEPA process • Scoping, Public Involvement, Alternative analysis, DEIS, hearing, FEIS, specific reviews. • Timelines, format for the EIS down to the chapter headings and appendices.

14. NEPA at FHWA • Spelled out in the Code of Federal Regulations---CFR 23 Part 771 • Puts the Transportation twist on the basic CEQ guidelines • “This regulation sets forth all FHWA, UMTA, and Department of Transportation (DOT) requirements under NEPA for the procession of highway and urban mass transportation projects.”

15. 771 • All environmental requirements to be reflected in the NEPA document to the fullest extent possible. • Public involvement and a systematic interdisciplinary approach be essential parts of the development process • Measures to mitigate incorporated into the project, but represent a reasonable public expenditure.

16. 771 • Applies to federally funded projects only, BUT…… • If a project requires a federal permit such as a 404 wetlands permit, it would require environmental documentation under the permitting agency’s environmental law, and if therefore “federalized”

17. So What does the Project Leader have to do? • Develop the project under the NEPA framework: • Coordinate early with other agencies • Develop the project within a public involvement process • Insure that the public involvement process includes minorities and low income people in the effected area, that the solutions equally meet their needs, and that the impacts are not disproportionate to the benefits.

18. Project Leader Continued • Consider all reasonable alternatives • Eliminate alternatives using a sound list of criteria and goals for the project • Respond to protected resources with designs that: • Avoid, minimize, or mitigate, in that order • Work with planners to get land use actions completed before the FEIS or REA. • Work with regulating agencies, designers, and environmental staff to come up with cost effective mitigation measures if they are required.

19. Tips for PLs • As soon as you are assigned a project, involve a Region Environmental coordinator in the project, regardless of how small the job. • Make sure that you go over the scope of the project with the REC and/or Env. Project Manager • Get estimates of work items, timelines, any odd contingencies on time of work. (both noise and biology are restricted in times of the year they can do certain work.)

20. Tips for PLs • Communicate, communicate, communicate!!! • Keep whole team informed of developments in the design and any changes, e-mail is okay for this communication. • There can be many unforeseen interactions among engineering and environmental disciplines. Late projects usually are born out of these unforeseen conflicts.

21. Tips for PLs • The law of unintended consequences is out there, and it is trying to get you. • Arm yourself with information. • How many would be willing to take a 3 Day NEPA course?? • Get your team to help you with a strategy. • If nothing is working, go up a step and call an environmental supervisor. We want you to succeed with the project!!

22. Class 2 projects • While class 2 projects do not require an EIS or EA, they do require documentation( Part 3 of the prospectus) and permits. • They may require extensive research in one of more areas

23. Class 2 Potential “Potholes” • All of the following things can lead to a need for a permit or clearance: • Guardrail flares, posts • Paving or widening a shoulder • Maintaining or effecting a clear zone • Doing work over or in water • Placing a workzone in the right-of-way

24. Class 2 Potential “Potholes” • Doing work beyond the pavement on Forest Service or BLM easement. • Doing work past certain times of day (noise), or the year (T&E). Effecting the roadway runoff near water quality limited streams. • Placing survey monuments in protected areas. • Maintaining historic structures or landscaping near historic properties. Sidewalks in historic areas or places eligible for record

25. Process is being challenged • Process as it currently sits if very complex, and has redundancies. • Doesn’t have satisfactory conflict resolution processes so projects can be stuck for years if agencies become polarized. • Attempted “fixes” didn’t fix the problems--ISTEA, NEPA/404 merger

26. New Attempts to Fix • TEA-21--Directs FHWA and other agencies to “streamline” the process. • Oregon HB 2680--Examine state and federal laws on land use and environment and recommend ways to reduce the cost of compliance • New efforts by Sen. Ron Wyden to create “one-stop shop” for permits and compliance

27. Permits--Second Bite of the Apple NEPA Planning Permits Purpose and Need Mode Specific Location Specific Design Purpose and Need Mode Gen. Location Purpose and Need (Again!) Specific Mitigation Agreement of several commenting agencies

28. Wetlands--Army Corps of Engineers 404 permit DEQ EPA DLCD Coastal Zone 404 Permit SHPO NMFS ODFW USFW

29. NEPA/404 Merger We have attempted to combine the process We have been only partially successful 404 law allows them to opt out. Merger only built on a MOU. NEPA + 404 NEPA + 404

30. Consequences for Project Development • Late discovery or involvement of a wetland because of a design change can ‘kick in’ a lengthy and complicated process. • Very difficult and may not be possible to maintain the project schedule. • If these types of changes are contemplated during late stages, the whole team should be involved in evaluating and committing to the course of action.

31. Other Federal Agencies • Have their own NEPA processes, criteria for Class 2 actions. • We want them to adopt our NEPA documentation, which they can • BUT, they can always opt out and do their own, then we are in their process, not FHWA’s. • Typically, other federal processes allow more appeals than FHWA’s.

32. Other Federal Agencies that send us into NEPA regardless of funding. • Forest Service and BLM, 50% of the state • Corps of Engineers • Federal Transit Administration • Rarely, Department of Housing and Urban Development • NMFS and USFW

33. What are some of the new ideas to make this smoother. • Environmental Streamlining • Takes lots of forms • Would like a more programmatic approach with research reserved for items over a certain threshold. NMFS is open to the concept, USFW so far is not. • Would like to renegotiate, fine tune the 404/NEPA merger. There is some movement in that direction.

34. What are some of the new ideas to make this smoother? • NEPA/Planning Initiative--Put more of the NEPA process earlier in planning since resource agencies are most concerned about the larger effect of Land Use Planning, and the transportation project as an implementation of land use they don’t like. • Would allow resource agencies to enter the discussion when the broader land use questions are being asked and answered.

35. Questions and Comments form the Audience. It’s your turn now!