U.S. Department of Transportation Federal Highway Administration SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy.

U.S. Department of Transportation

Federal Highway Administration

SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act:

A Legacy for Users

SAFETEA-LU Environmental

Provisions

SAFETEA-LU Environmental

Provisions

SAFETEA-LU



SAFETEA-LUSafe, Accountable, Flexible, Efficient Transportation Equity Act::

A Legacy for Users

Presentation PurposePresentation 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.

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A Legacy for Users

Environmental Provisions in SAFETEA-LU

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




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Environmental Review Process (§6002)

Environmental Review Process (§6002)

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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.

ApplicabilityApplicability

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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 ; andDo not intend to submit comments.

Participating Agencies

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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.

Purpose and Need

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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

Alternatives

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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.”

Coordination Plan/Deadlines

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Specifies a process for resolving interagency disagreements Lead agency must provide information about:

Environmental and socio-economic resourcesGeneral locations of alternatives

Participating agencies must identify any “issues of concern” – which are issues that could:

Substantially delay approvalResult in denial of permit

Issue resolution process can be invoked by project sponsor or Governor

Issue Resolution

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Funding of Agency PositionsFunding 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

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§6002 - Implementation Actions§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

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Limitation on Lawsuits §6002(a)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

http://www.fhwa.dot.gov/hep/intgui_limclms.htm

http://www.fhwa.dot.gov/hep/intgui_limclms.htm




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Section 4(f) (§6009)

Section 4(f) (§6009)

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De Minimis Impacts (§6009(a))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

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Historic PropertiesHistoric Properties

1) SHPO and/or THPO written concurrence in Section 106 “no adverse effect" or "no historic properties affected“

2) SHPO and/or THPO is informed of FHWA’s intent to make de minimis impact finding based on the Section 106 concurrence

3) FHWA has considered the views of the consulting parties in Section 106 consultation

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Parks, Recreation Areas, …Parks, Recreation Areas, …

1) 4(f) use, after mitigation / enhancement, does not adversely affect Section 4(f) activities, features and attributes

2) Officials with jurisdiction are informed of FHWA’s intent to make de minimis impact finding based on written concurrence

3) Public has been given an opportunity to review and comment on the effects to the Section 4(f) resource

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De minimis ImpactsDe 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

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De Minimis Impacts (§6009(a))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.

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§6009 - Implementation Actions§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/guidedeminim

is.htm

Feasible and Prudent Regulation OMB review initiated May 1, 2006 NPRM expected in July, 2006

Section 6009 Implementation Study First FHWA quarterly report

http://www.fhwa.dot.gov/hep/guidedeminimis.htm

http://www.fhwa.dot.gov/hep/guidedeminimis.htm

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Prudent and Feasible Standard (§6009(b))

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

Bardwell’s Ferry Bridge, Massachusetts

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Implementation StudyImplementation 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

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Data To Date (June 2006)Data To Date (June 2006)

39 FHWA Divisions reporting 16 States made de minimis findings on

47 projects since September 2005 84 de minimis impact findings (or

proposed findings) 75 Historic sites 8 Parks 1 Historic Park

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Post Guidance QuestionsPost 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?

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Net Benefit to a Section 4(f) Property

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

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Net Benefit - De minimis Impact 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

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Other Post Guidance IssuesOther 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?




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Interstate 4(f) Exemption (§6007)

Interstate 4(f) Exemption (§6007)

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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

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§6007 - Implementation Actions§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

http://www.fhwa.dot.gov/hep/interstate4f.htm




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Delegation to State DOTs -

(§6004 and §6005)

Delegation to State DOTs -

(§6004 and §6005)

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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

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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

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Surface Transportation Project Delivery Pilot Program (§6005)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

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§6004 & §6005 – Implementation Actions

§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

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Context Sensitive Solutions (§6008)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/

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Environmental Review of ITS Deployments (§6010)

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 ARTIMIS, Cincinnati, Ohio

U.S. DOT must also develop a nationwide programmatic agreement to ensure compliance with National Historic Preservation Act regulations




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Environmental Considerations in Planning - §6001

Environmental Considerations in Planning - §6001

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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.

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• 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”

Planning for SAFETEA-LU: Key Planning Provisions

Planning Factors

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• 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)


Planning Factors

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• 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


Planning Factors

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• 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


Public Participation Plan

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• 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.


Transportation Plan Consultation

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Comparing PlansComparing Plans

Land Use System

Transportation System

Water Resources System

Other Natural, Cultural Resource Systems

Land development proposal

Road improvementproposal

Wetlandsidentification

Habitat or historic places to preserve

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MitigationMitigation 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

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• 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


Conformity

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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.

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/06-5145.htm

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5145.pdf

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Outreach and Training Opportunities

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

July http://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



http://environment.fhwa.dot.gov/strmlng/newsletters/jul06nl.asp

http://environment.fhwa.dot.gov/strmlng/newsletters/jul06nl.asp

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Additional ResourcesAdditional 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

http://www.fhwa.dot.gov/safetealu/index.htm

http://www.fhwa.dot.gov/environment/index.htm

http://www.fhwa.dot.gov/environment/index.htm

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FHWA HQ Points of ContactFHWA HQ Points of Contact

Section Leads 6001, 6002: Pamela Stephenson (202-366-2062) 6004: Owen Lindauer (202-366-2655) 6005: Ruth Rentch (202-366-2034) 6007: MaryAnn Naber (202-366-2060) 6009: Lamar Smith (202-366-8994) 6010: Aung Gye (202-366-2167)

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Planning Questions?Robert Ritter

Federal Highway [email protected]

202-493-2139

Charles GoodmanFederal Transit [email protected]

202-366-1944

Federal Transit Administration

U.S. Department of Transportation Federal Highway Administration SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy.

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