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SAFETEA-LU Environmental Provisions

SAFETEA-LU Environmental Provisions. Presentation Purpose. Provide an overview of major environmental provisions in SAFETEA-LU, the new surface transportation reauthorization law Explain the schedule for implementation of new regulations and guidance.

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SAFETEA-LU Environmental Provisions

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  1. SAFETEA-LU Environmental Provisions

  2. Presentation Purpose • Provide an overview of major environmental provisions in SAFETEA-LU, the new surface transportation reauthorization law • Explain the schedule for implementation of new regulations and guidance. • Highlight opportunities for input into rulemaking. • Identify further training and outreach events.

  3. Environmental Provisions in SAFETEA-LU • Environmental Review Process • Limitation on Lawsuits • Section 4(f) • Interstate 4(f) Exemption • Delegation to State DOTs • Context Sensitive Solutions • Environmental Review of ITS Deployments • Environmental Considerations in Planning

  4. Environmental Review Process (§6002)

  5. Applicability • Establishes new environmental review process for highways, transit, and multimodal projects • Mandatory for EISs, optional for EAs • Highway and transit EISs for which the NOI was published after 8/10/05 must follow new process • Projects with earlier NOIs may be advanced under prior law • Defined as including the process for and completion of any environmental permit, approval or study required for a project under any other Federal law than NEPA.

  6. Participating Agencies • Creates a new category of “participating agencies” • USDOT must invite all agencies with interest in project to be “participating agencies”. • If invited, Federal agencies must accept, unless they respond in writing that they: • Have no jurisdiction or authority with respect to the project ; • Have no expertise or information relevant to the project ; and • Do not intend to submit comments.

  7. Purpose and Need • Must provide “opportunity for involvement” by agencies and the public in defining P&N. • Decision on P&N is made by lead agency. • Applies to its study only. • Goals in P&N may include: • Achieving objective in a transportation plan • Supporting local land use and growth objectives • Serving national defense, security needs.

  8. Alternatives • Range of Alternatives: • Similar to P&N – after providing “opportunity for involvement,” lead agency makes decision • Methodologies and Level of Detail: • Lead agency decides, in collaboration with participating agencies • Preferred Alternative • May be developed to higher level of detail than other alternatives

  9. Coordination Plan/Deadlines • Requires development of a coordination plan: • Must be established by lead agency (USDOT). • Must address agency, public coordination. • May be incorporated into inter-agency MOU. • May be program-wide or project-specific. • May include a project schedule, in consultation with participating agencies. • Maximum 60 days for DEIS comments, 30 days for all other comment periods • Longer time periods may be set by USDOT, “for good cause.”

  10. Issue Resolution • Specifies a process for resolving interagency disagreements • Lead agency must provide information about: • Environmental and socio-economic resources • General locations of alternatives • Participating agencies must identify any “issues of concern” – which are issues that could: • Substantially delay approval • Result in denial of permit • Issue resolution process can be invoked by project sponsor or Governor

  11. Funding of Agency Positions • Early funds to expedite the review process are available by State request and U.S. DOT approval. They may be used for the following: • Planning activities prior to the review process • Dedicated staffing • Training of agency personnel • Information gathering and mapping • Development of programmatic agreements

  12. §6002 - Implementation Actions • Guidance is currently being drafted by team of FHWA representatives from Division Offices, HQ and Resource Centers. • Anticipate completion and distribution in March 2006

  13. Limitation on Lawsuits §6002(a) • Applies to decisions by any Federal agency approving a highway or transit project. • Bars lawsuits unless filed within 180 days after Federal Register notice of decision • Each Federal agency decision is a separate action; may have separate 180-day periods. • FHWA issued“Interim Guidance on the Use of 23 USC § 139(l) Limitation on Claims Notices” on December 1, 2005. • http://www.fhwa.dot.gov/hep/intgui_limclms.htm • Sample forms provided with guidance

  14. Section 4(f) (§6009)

  15. De Minimis Impacts (§6009(a)) • For historic properties: “no adverse effect” or “no historic properties affected” under Section 106 of NHPA • For park, recreation area, or wildlife and waterfowl refuge - use of the Section 4(f) resource, does not adversely affect the activities, features, and attributes that qualify the resource for protection • Includes consideration of impact avoidance, minimization, and mitigation or enhancement measures, • Agencies with jurisdiction must concur in writing with determination

  16. Historic Properties • SHPO and/or THPO written concurrence in Section 106 “no adverse effect" or "no historic properties affected“ • SHPO and/or THPO is informed of FHWA’s intent to make de minimis impact finding based on the Section 106 concurrence • FHWA has considered the views of the consulting parties in Section 106 consultation

  17. Parks, Recreation Areas, … • 4(f) use, after mitigation / enhancement, does not adversely affect Section 4(f) activities, features and attributes • Officials with jurisdiction are informed of FHWA’s intent to make de minimis impact finding based on written concurrence • Public has been given an opportunity to review and comment on the effects to the Section 4(f) resource

  18. De minimis Impacts • All classes of action – CE, EA, EIS • Individual resources - not project basis • Impact after mitigation or enhancement • Section 4(f) process complete upon making the finding • Alternatives analysis not required and 4(f) process complete upon the finding • Division Administrator’s authority • Division office makes the finding

  19. De Minimis Impacts (§6009(a)) • Public Review Process • For historic properties: no additional public notice or opportunity for review and comment • For parks, recreation area, or wildlife and waterfowl refuges: information supporting the finding should be included in the appropriate NEPA document prepared for the project. • For those actions that do not routinely require public review and comment (e.g., certain CEs) a separate public notice and opportunity for review and comment will be necessary.

  20. §6009 - Implementation Actions • FHWA/FTA issued “Guidance for Determining De Minimis Impacts to Section 4(f) Resources” on December 13, 2005 • http://www.fhwa.dot.gov/hep/guidedeminimis.htm • Feasible and Prudent Regulation • OMB review initiated May 1, 2006 • NPRM expected in July, 2006 • Section 6009 Implementation Study • First FHWA quarterly report

  21. Bardwell’s Ferry Bridge, Massachusetts Prudent and Feasible Standard (§6009(b)) • U.S. DOT is to conduct a rulemaking within one year to clarify the 4(f) standard of “prudent and feasible” for alternatives • Rule is to clarify the application of the legal standards to a variety of different types of transportation programs and projects

  22. Implementation Study • First 3 years of Section 6009 implementation (8/10/08), update by 3/1/2010 • Independent review by TRB • Study plan, methodology, and associated conclusions • Processes and resulting efficiencies • Number, location, size, and cost of projects with de minimis impact findings • Post-construction effectiveness of mitigation

  23. Data To Date (June 2006) • 39 FHWA Divisions reporting • 16 States made de minimis findings on 47 projects since September 2005 • 84de minimis impact findings (or proposed findings) • 75 Historic sites • 8 Parks • 1 Historic Park

  24. Post Guidance Questions • What are the similarities and differences between the de minimis impact provision and the Net Benefit Programmatic? • Under what circumstances would one apply but not the other?

  25. Net Benefit to a Section 4(f) Property • Nationwide programmatic Section 4(f) evaluation (programmatic evaluation) • Use of the Section 4(f) property will result in a net benefit to the property

  26. Net Benefit - De minimis Impact • 4(f) evaluation vs. finding • Range of effects vs. impact threshold • Public involvement vs. opportunity for public review and comment • Similar coordination and agreement essential • No legal sufficiency review or DOI coordination

  27. Other Post Guidance Issues • What would be considered the opportunity for public review and comment with CEs? • How much documentation is necessary? • Is a separate document or section of the NEPA document required for de minimis impacts and approvals? • Is “legal sufficiency” review required?

  28. Interstate 4(f) Exemption (§6007)

  29. Exempts the Interstate Highway System from consideration as an historic site subject to Section 4(f) requirements • U.S. DOT may make exceptions for individual elements • A State may continue to perform maintenance work on those elements • Exceptions consistent with those being developed under the Sec. 106 administrative exemption for the Interstate System

  30. §6007 - Implementation Actions • Guidance issued by FHWA on January 13, 2006 • http://www.fhwa.dot.gov/hep/interstate4f.htm • Federal Register notice of preliminary list of exceptional elements (June 2006) • 152 elements in 37 states • Landmark bridges to uniquely engineered segments • 94 bridges • 13 tunnels • 31 highway segments • 16 rest areas or parks

  31. Delegation to State DOTs -(§6004 and §6005)

  32. Categorical Exclusion Delegation (§6004) • U.S. DOT may delegate responsibility for categorical exclusion (CE) determinations to States • States can also assume Federal responsibilities for other environmental reviews for projects classified as CEs • May not include delegation of consultation with Federally recognized Indian tribes

  33. Categorical Exclusion Delegation (§6004) • The delegation to the State is governed by a Memorandum of Understanding (MOU) • Up to three years, but is renewable • Subject to public comment and preview • U.S. DOT will monitor State compliance with the MOU • U.S. DOT may terminate if State is not adequately carrying out the responsibilities

  34. Surface Transportation Project Delivery Pilot Program (§6005) • U.S. DOT may assign certain responsibilities under NEPA and other environmental laws to a State for highway projects • Up to five States may participate (including Alaska, California, Ohio, Oklahoma, and Texas) • Does not cover conformity determination or responsibilities of U.S. DOT with regard to statewide or metropolitan planning • U.S. DOT will conduct semi-annual audits during the first two years and annual audits thereafter • U.S. DOT will submit annual reports to Congress

  35. §6004 & §6005 – Implementation Actions • §6004 guidance is currently being developed • Will include a MOU template • NPRM outlining application requirements for §6005 has been developed and is under review by OMB • Anticipate Federal Register publication in late Spring • FHWA is developing guidance for other aspects of the §6005 program where rulemaking is not required. • Anticipate completion in May 2006

  36. Context Sensitive Solutions (§6008) • In developing design criteria for the National Highway System, U.S. DOT must consider Context Sensitive Solutions • Specifically, consider these documents: • “Eight Characteristics of Process to Yield Excellence and the Seven Qualities of Excellence in Transportation Design” • “Flexibility in Highway Design” • Useful Resource: • http://www.contextsensitivesolutions.org/

  37. ARTIMIS, Cincinnati, Ohio Environmental Review of ITS Deployments (§6010) • Sets forth a U.S. DOT rulemaking process to establish Categorical Exclusions from the environmental review process for activities that support the deployment of Intelligent Transportation System (ITS) activities • U.S. DOT must also develop a nationwide programmatic agreement to ensure compliance with National Historic Preservation Act regulations

  38. Environmental Considerations in Planning - §6001

  39. STATEWIDE AND METROPOLITAN TRANSPORTATION PLANNING FACTORS • Support economic vitality; • Increase safety of transportation system; • Increase security of transportation system; • Increase accessibility and mobility of people and freight; • Protect and enhance the environment; • Enhance integration and connectivity of transportation system; • Promote efficient system management and operation; and • Enhance preservation of existing transportation system.

  40. Planning for SAFETEA-LU: Key Planning Provisions Planning Factors • Environment • Consistency of Plan with planned growth and development • Expands previous planning factor related to the environment • Adds “promot(ing) consistency between transportation improvements and State/local planned growth and economic development”

  41. Planning for SAFETEA-LU: Key Planning Provisions Planning Factors • Transportation Security • Stand alone planning factor • Signals increase in importance from prior legislation • Security planning includes: • increased modal coordination • vulnerability assessments • ITS (mostly highways) • surveillance equipment (mostly transit)

  42. Planning for SAFETEA-LU: Key Planning Provisions Planning Factors • Safety • Stand alone planning factor • Strategic Highway Safety Plan (SHSP) • Includes policies, priorities, and strategies to improve the safety of the transportation system • States are required to develop the SHSP after consultation with stakeholders, including MPOs and RPOs • Goals and objectives of approved SHSPs must be reflected in state and metro transportation plans

  43. Planning for SAFETEA-LU: Key Planning Provisions Public Participation Plan • MPOs must develop and utilize a "Participation Plan“ • developed "in consultation with all interested parties". • provides reasonable opportunities for interested parties to comment on the content of plans, TIPs • To the maximum extent possible MPOs and States must: • Publish or make available for public view transportation plans, STIPs and TIPs • Example: Metropolitan Transportation Commission, Oakland ,CA http://www,mtc,ca.gov/funding/fms_intro.htm • Hold public meetings at convenient and accessible times and locations • Employ visualization techniques to describe Plans, STIPs, and TIPs • Visualization techniques can vary • Example: San Diego Association of Governments (SANDAG), CA http://www.sandag.org/index.asp?classid=21&fuseaction=home.classhome

  44. Planning for SAFETEA-LU: Key Planning Provisions Transportation Plan Consultation • MPO shall consult, as appropriate, with State and local agencies responsible for: • Land use management • Natural Resources • Environmental Protection • Conservation • Historic Preservation • For Statewide plans, States must also consult with Tribal agencies with similar jurisdiction • This consultation shall involve comparison with State conservation plans or maps, if available; or comparison to inventories of natural or historic resources, if available.

  45. Comparing Plans Land development proposal Land Use System Road improvement proposal Transportation System Wetlands identification Water Resources System Other Natural, Cultural Resource Systems Habitat or historic places to preserve

  46. Mitigation • Long-range transportation plans must include a discussion of potential environmental mitigation activities and potential locations to carry them out • Must be developed in consultation with Federal, State and Tribal wildlife, land management, and regulatory agencies

  47. Planning for SAFETEA-LU: Key Planning Provisions Conformity • New grace period for conformity lapse = 12 months • Update of conformity cycles = at least every 4-years • Conformity redetermination on existing plans and TIPs within 2 years of certain action on SIP • Options to shorten time horizon for conformity demonstration • TCM substitution easier

  48. FHWA/FTA NOTICE OF PROPOSED RULEMAKING (NPRM) ON STATEWIDE AND METROPOLITAN TRANSPORTATION PLANNING • Published in the June 9, 2006 Federal Register (pages 33509-33560). • Available via the following two web-links: http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-5145.htm or http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5145.pdf • NPRM based largely on revised statutory language resulting from SAFETEA-LU. • NPRM comment period runs through September 7, 2006.

  49. Outreach and Training Opportunities • Re:NEPA SAFETEA-LU Topic Area • http://nepa.fhwa.dot.gov • FHWA’s Successes in Stewardship 2006 Newsletter • February http://environment.fhwa.dot.gov/strmlng/newsletters/feb06nl.asp • Julyhttp://environment.fhwa.dot.gov/strmlng/newsletters/jul06nl.asp • CTE Telecast from November 2005 • http://www.itre.ncsu.edu/cte/techtransfer/teleconferences/webcast.asp?ID=38

  50. Additional Resources • FHWA web site for SAFETEA-LU: http://www.fhwa.dot.gov/safetealu/index.htm • FHWA Planning, Environment, & Realty (HEP): http://www.fhwa.dot.gov/environment/index.htm

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