Highway Engineering Handbook PDF

 Source: HIGHWAY ENGINEERING HANDBOOK CHAPTER 1 ENVIRONMENTAL ISSUES* Darryl Shoemaker, Ph.D., Jack Allen, Margaret Ballard, Stephen David, a...

 Source: HIGHWAY ENGINEERING HANDBOOK CHAPTER 1 ENVIRONMENTAL ISSUES* Darryl Shoemaker, Ph.D., Jack Allen, Margaret Ballard, Stephen David, and George Eliason HDR Engineering, Inc. Minneapolis, Minnesota Environmental issues play a major role in the planning, design, construction, and reha- bilitation of highways. Indeed, their prominence has grown as the public has become increasingly informed on environmental issues and associated requirements. This chap- ter provides an overview to lend guidance in understanding environmental issues, and information to aid in the process of effectively addressing the various requirements in this area. It begins with an overall review of the numerous federal laws and regula- tions that must be considered. A thorough discussion is provided of the requirements of the National Environmental Policy Act and the preparation of environmental impact statements. Information is presented on the important topics of storm water pollution prevention and lead-based paint removal and containment. The chapter concludes with a discussion of resource recovery and the use of waste material, including the recycling of hazardous wastes. 1.1 FEDERAL LAWS AND REGULATIONS Federal environmental laws and regulations may affect planning, design, construction, and rehabilitation of the infrastructure. The objective of environmental legislation is to protect the health and welfare of the general public. Primary legislation has been developed by the federal government, and the authority for implementing the laws has been given to various federal agencies. State-level environmental legislation has, in general, followed or expanded upon federal objectives and programs. Increasingly, states are being given powers to implement federal programs. This has led to further state involvement in promulgating laws, regulations, and judicial interpretations. Federal legislation, and, therefore, requirements for compliance, have been steadily evolving. The information in this section is intended to provide the highway engineer and other interested parties with a basic understanding of the legal framework in which *Revised and updated from “Environmental Issues” by Cheryl Bly Chester, P.E., Chap. 1 in the First Edition. 1.1 Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.2 CHAPTER ONE environmental compliance requirements were developed, what they are intended to address, and how to find current information on the constantly changing federal, state, and local agency regulations specific to a proposed project. Federal laws are codified in the U.S. Code (USC) and are enacted by Congress. Federal regulations are codified in the Code of Federal Regulations (CFR). Department of Transportation regulations are codified in Title 23 CFR-DOT regulations. The environmental regulations discussed in this chapter are found in Title 40 CFR-EPA regulations. Executive orders are issued by the President of the United States to mandate policy on specific issues. A few executive orders relevant to highway engineering have been included in this discussion. Executive orders designate the implementing agency, which generally responds by promulgating guidelines or issuing directives to address the stated policy. Table 1.1 indicates the environmental laws discussed in this chapter, the USC designations that apply, and which federal agency has the implementing authority. 1.1.1 National Environmental Policy Act (NEPA) The National Environmental Policy Act (NEPA) of 1970 (with amendments) is the most important environmental legislation to be considered by highway engineers when planning or implementing highway projects. NEPA applies to all federal government agencies and the programs and projects that they manage, permit, or fund. NEPA mandates that the environmental implications of all federally funded programs or projects be evaluated and disclosed to the public. The purpose, foundation, and major provisions of NEPA are discussed in the following paragraphs. Implementing procedures are dis- cussed in Art. 1.2. The purpose of NEPA is “to declare a national policy which will encourage produc- tive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” Under Title I, Section 101, of NEPA, Congress declares that it is the “…policy of Federal Government, in cooperation with State and local governments, and other con- cerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations.” Section 101 also states that this policy should be “consistent with other essential considerations of national policy.” NEPA, Title I, Section 102, states that, among other things, “a systematic and inter- disciplinary approach” should be utilized to ensure “the integrated use of the natural and social sciences and the environmental design arts in planning and decision making.” A major provision of NEPA under Title I, Section 102(2)(C), sets forth requirements for environmental impact statements (EISs), which are required for every federal project “significantly affecting the quality of the human environment” to determine and document that the purpose of NEPA is fulfilled. NEPA, Title I, Section 102(2)(C) and Section 1508, established the framework for the guidelines and requirements for what federal agencies must do to comply with the procedures and achieve the goals of NEPA. Section 1508 emphasizes that federal agencies shall: Interpret and administer the policies, regulations, and public laws of the United States in accordance with the policies set forth in NEPA and in these regulations. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.3 TABLE 1.1 Summary of Environmental Laws, USC Designators That Apply, and Implementing Authority National Environmental Policy Act, 1970 (42 USC §4321 et seq.)—Executive Office of the President, Council on Environmental Quality Clean Air Act (42 USC §7401 et seq.)—U.S. Environmental Protection Agency (EPA) Noise Control Act, amended 1978 (42 USC §§4901–4918)—U.S. EPA Clean Water Act, 1977 (33 USC §1251 et seq.)—U.S. EPA, Army Corps of Engineers Safe Drinking Water Act (SDWA; 42 USC §300)—U.S. EPA Resource Conservation and Recovery Act (RCRA), 1974, amended 1984 (42 USC §6901 et seq.)— U.S. EPA Toxic Substances Control Act (TSCA), 1976–1986 (15 USC §2601 et seq.)—U.S. EPA Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 1980 (42 USC §9601 et seq.)—U.S. EPA Superfund Amendments and Reauthorization Act (SARA), 1986 (42 USC §6991 et seq.)—U.S. EPA Intermodal Surface Transportation Efficiency Act (ISTEA), 1991 (23 USC §109, Section 1038)—U.S. Department of Transportation (DOT) Farmland Protection Policy Act, 1981 (73 USC §4201 et seq.)—U.S. Department of Agriculture Floodplain Management, 1977, Executive Order 11988 Federal Coastal Zone Management Act, 1984 (16 USC §§1451–1464)—U.S. Department of Commerce Wild and Scenic Rivers Act (16 USC §§1271–1287)—U.S. Department of the Interior (DOI) Protection of Wetlands, 1977, Executive Order 11990 Fish and Wildlife Coordination Act (16 USC §§661–666)—U.S. DOI, Fish and Wildlife Service Federal Endangered Species Act (ESA) (16 USC §£1531–1543)—U.S. DOI, Fish and Wildlife Service Department of Transportation Act, Section 4(f) [49 USC §1653(f)]—U.S. DOT Rivers and Harbor Act, 1899 (33 USC §401, et seq.) National Historic Preservation Act (16 USC §470 et seq.)—Advisory Council on Historic Preservation Historic Sites and Buildings Act of 1935 (16 USC §£461–471) Protection and Enhancement of the Cultural Environment, 1971, Executive Order 11593 Reservoir Salvage Act, 1960 (16 USC §469) The Archaeological and Historical Preservation Act, 1974 (16 USC §469) Archaeological Resources Act, 1979 (16 USC §470 et seq.) Native American Grave Protection and Repatriation Act of 1990 Land and Water Conservation Fund Act of 1965, Secion 6(f) Federal Cave Resources Protection Act of 1998 Considering Cumulative Effects under the National Environmental Policy Act, 1997 Guidelines, Executive Office of the President, Council on Environmental Quality Native American Religious Freedom Act, 1978 (42 USC Section 1996) Uniform Relocation Assistance and Real Properties Acquisition Act of 1970 Federal Actions to Address Environmental Justice, Minority Populations and Low-Income Populations, Executive Order 12898 Migratory Birds, Executive Order 13186 Invasive Species, Executive Order 13112 Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.4 CHAPTER ONE Implement procedures to make the NEPA process more useful to decision makers and the public; to reduce paperwork and the accumulation of extraneous background data; and to emphasize real environmental issues and alternatives. Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses. Integrate the requirements of NEPA with other planning and environmental review procedures required by law or by agency practice so that all such procedures run concurrently rather than consecutively. Encourage and facilitate public involvement in decisions which affect the quality of the human environment. Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment. Use all practicable means, consistent with the requirements of the act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment. When an EIS is warranted, it must identify adverse environmental effects that cannot be avoided, along with any irreversible and irretrievable commitments of resources that would be involved if the proposal is implemented. Alternatives to the proposal should also be identified. The EIS must evaluate and show the relationship between local short-term uses of the environment and the maintenance and enhancement of future environmental productivity. The Council on Environmental Quality (CEQ) is established as an environmental advisory body under Title II of NEPA. The CEQ’s primary mandate is to oversee federal efforts in complying with NEPA. CEQ regulations set forth procedures and considerations for preparing several environmental documents, including: Conducting investigations and studies relating to environmental quality Documenting changes in the national environment and their causes Reporting at least annually to the President on the state of the environment Making and furnishing studies as requested by the President Each federal agency has set forth its procedures for implementing CEQ require- ments and guidelines. The Federal Highway Administration (FHWA) regulations for implementing NEPA are set forth under 23 CFR 771, and the Department of Transportation’s NEPA procedures are set forth in Order 5610.1C. Important aspects of NEPA are public involvement and agency coordination. In accordance with CEQ regulations, each agency must make diligent efforts to involve the public and other agencies in preparing and implementing its NEPA procedures. Public involvement is discussed in Part 771.111 of the Federal Highway Administration NEPA regulations. The following documents are frequently referred to: Notice of intent (NOI) Environmental assessment (EA) Draft environmental impact statement (DEIS) Final environmental impact statement (FEIS) Finding of no significant impact (FONSI) Record of decision (ROD) Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.5 1.1.2 Clean Air Act (CAA) In 1970, the Clean Air Act (CAA) provided the nation with a new approach to controlling air quality over the then existing Air Quality Act of 1967. The CAA established a national policy “to protect and enhance the quality of the Nation’s air resources so as to promote public health and welfare and the productive capacity of its population” [42 USC, §1857(b)(1) 1970]. The CAA was amended in 1977, and was significantly amended again in 1990 with the enactment of the 1990 Clean Air Amendments (CA 90). CA 90 included provisions for stricter mobile source emissions (specifically, tailpipe emissions), as well as emissions linked to stationary sources such as hazardous or toxic pollutants. The U.S. Environmental Protection Agency (EPA) has overall administrative authority for the implementation of CAA requirements. Every state must promulgate regulations by developing state implementation plans (SIPs). According to CAA pro- visions, federal facilities must comply with the SIP of the state in which they are located. The CAA provides for the U.S. EPA to establish primary and secondary national ambient air quality Standards (NAAQSs). The goal of the primary standards is to protect public (human) health. Secondary standards are set with the intent of pro- tecting the public welfare. These secondary standards consider deterioration of or harm to vegetation (including crops), visibility, aesthetics, and property. Many states’ SIPs have set air quality goals that exceed federal requirements and carry their own set of penalties and fines for noncompliance. The 1970 contains several provisions that deal with air pollution created directly or indirectly by highway construction and use. Current provisions of CAA and CA 90 relevant to highway engineering are Titles I (Attainment and Maintenance of NAAQS), II (Mobile Sources), and VII (Enforcement). Title I addresses air pollution control requirements for “nonattainment areas,” which are those metropolitan areas in the United States that have failed to meet NAAQSs. Because ozone is the most wide- spread pollutant in nonattainment areas, the requirements focus on controlling the volatile organic compounds (VOCs) and nitrogen oxides that contribute to ground- level ozone formation. Title II deals with revised tailpipe emission standards for motor vehicles, requiring automobile manufacturers to reduce carbon monoxide, hydrocarbon, and nitrogen oxide emissions. Provisions for enforcement under Title VII include fines and terms of imprisonment. Federal violations prosecuted by EPA may result in civil penalties of up to $25,000 per day and criminal enforcement if the violator fails to abate on notice [42 USC §7413(b)]. If a SIP does not demonstrate sufficient progress in achieving compliance with NAAQSs in a nonattainment area, EPA may prepare an implementation plan of its own and/or impose construction bans on stationary sources and/or withhold EPA-approved federal funds (such as transportation improvement grants) targeted for the state. Transportation Conformity. CA 90 required EPA to promulgate rules to ensure that federal actions do not impede a state’s efforts to attain or maintain compliance with ambient air quality standards. These Transportation Conformity rules published under 40 CFR 93, Subpart A of the Code of Federal Regulations, address this requirement with respect to federal actions, including funding or approvals, that involve highway projects in nonattainment areas and in maintenance areas, which are areas that were previously designated as nonattainment. These rules require that federally funded or approved projects must be reviewed to ensure that they do not exacerbate violations of NAAQS in nonattainment areas, and do not cause new violations in maintenance areas. Under the Transportation Conformity rules, a project may be required to include a “hot-spot” dispersion analysis for carbon monoxide (CO) or particles under 10 microns (
m) in diameter (PM10), and may be required to include an analysis of project impact on regional emissions budgets. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.6 CHAPTER ONE 1.1.3 Noise Control Act (NCA) The Noise Control Act (NCA) was enacted to control noise emissions that result from human activity. Among the objectives of NCA are two that are relevant to highway engineering: (1) developing state and local programs to control noise, and (2) controlling the sources of noise of surface transportation and construction activities. Under the 1978 amendments to NCA, greater responsibility for noise control was delegated to state and local agencies. The NCA also created the Environmental Protection Agency’s Office of Noise Abatement and Control (ONAC). ONAC promulgated regulations to implement the NCA; they exist in 40 CFR Parts 201 through 211. Noise limits for motor vehicles involved in interstate commercial activities exist in 40 CFR Part 202. Noise emissions from construction equipment and compressors are regulated by 40 CFR 204. Noise limits and measurement procedures for trucks over 10,000 lb and motorcycles exist in 40 CFR 205. Budget cuts during the 1980s eliminated ONAC. While implementation and enforce- ment of some of the act’s goals has declined since ONAC was closed, other agencies and federal programs implement many of the Act’s goals. Control of highway noise is largely limited to the Federal Highway Administration (FHWA) and state and local agencies. FHWA regulations in 23 CFR 772 explain the high- way noise abatement program, and include the FHWA Noise Abatement Criteria (NAC). The NAC include maximum allowable highway noise levels for a variety of land uses. Highway construction and expansion projects have the potential to facilitate increased traffic noise levels. Therefore, when highway noise levels approach or exceed the NAC, or when a highway’s noise significantly increases above existing noise levels, the noise miti- gation measures must be evaluated. FHWA allows individual states to define “approach” and “significant increase.” Typically, “approach” means within 1 or 2 dB and “significant increases” are typically defined as increases of 10 or 15 dB above existing noise levels. 1.1.4 Legislation to Protect Freshwater Sources Clean Water Act (CWA). The Clean Water Act (CWA), which was enacted in 1977 as amendments to the Federal Water Pollution Control Act of 1972, constitutes the principal water pollution control program in the United States. The purpose of CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The aspect of CWA that most influences the design, construction, or rehabilitation of highways is the mandate that the EPA (or the implementing state agency) develop a permit program “for the discharge of any pollutant, or combination of pollutants to the Nations waters.” Waters of the United States have been defined in 40 CFR 122.2 as navigable waters, tributaries of navigable waters, and wetlands, including those adjacent to waters of the United States. The requirement in CWA to establish a permitting program has led to development of the National Pollutant Discharge Elimination System (NPDES) (42 USC §§1251–1389). Two types of permitted discharges are especially important to the highway engineer: (1) discharges due to highway and related construction activities, and (2) discharges due to storm water runoff from highways and related facilities. Specific procedures to comply with NPDES permitting requirements are addressed in Art. 1.3. Another provision of the CWA that affects highway planning decisions is the “404” permit process, applicable to the protection of national wetlands. The Army Corps of Engineers is responsible for implementing the regulations and issuing these permits. CWA water quality goals and standards may also influence highway plan- ning, design, construction, and rehabilitation decisions. Some regulations promulgated as a result of CWA, and the areas that they cover, are as follows: Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.7 40 CFR §§100–149, water programs and enforcement 40 CFR §122, wastewater discharges of waste to land and waters (federal permits) 40 CFR §§122–124, storm water runoff regulations Safe Drinking Water Act. The Safe Drinking Water Act was enacted at the end of 1974 to protect the nation’s drinking water supply and protect public health through appropriate water treatment technologies. The act establishes maximum contaminent levels (MCLs), or standards for the maximum safe levels of specific constituents in potable water. Most important to highway engineers is the provision of this act that mandates protection of sources of drinking water. 1.1.5 Legislation to Control Hazardous and Nonhazardous Waste Resource Conservation and Recovery Act (RCRA). The Resource Conservation and Recovery Act (RCRA) was enacted in 1974, and amended in 1984, to address growing concerns related to solid waste disposal, both hazardous and nonhazardous. RCRA is the foundation of the hazardous waste management system in the United States. RCRA requires states to develop their own EPA-approved hazardous waste management plans and encourages options other than landfill disposal for final disposition of hazardous waste. A major objective of RCRA is to conserve and protect environmental resources, including the land resource that is lost to other uses when it is filled with solid waste. RCRA established: A system for defining hazardous waste A method to determine whether hazardous waste has been generated Guidelines on how to store, handle, or treat hazardous waste Standards for proper disposal of waste Methods to track hazardous waste to its ultimate disposition Resource recovery, which is an important research area mandated by RCRA, covers several materials used in highway construction, such as recycled glass, scrap tires, and recycled construction materials. Some hazardous materials can be treated and recycled for use in highway construction. RCRA also covers issues of “use constituting disposal” for projects that seek to use embankments or road subbase as disposal areas for hazardous waste, if suitability can be demonstrated. Some of the research and demonstration projects in the area of resource recovery that are applicable to highways are discussed in Art. 1.5. Toxic Substances Control Act (TSCA). The Toxic Substances Control Act (TSCA) sets the policy for researching and testing suspected toxic substances to evaluate persis- tence in the environment and the effect on exposed humans (acute toxicity levels and/or carcinogenic effects). This act also regulates toxic substances not regulated by RCRA such as asbestos-containing materials (ACM) and polychlorinated biphenyls (PCBs). Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was passed in 1980. It established national policy and procedures for identifying and cleaning up sites that are found to be contaminated with hazardous substances, along with procedures for containing and removing releases of hazardous substances. CERCLA was amended and expanded by the Superfund Amendments and Reauthorization Act (SARA) of 1986. CERCLA established a hazard ranking system. Sites with the highest ranking have been placed on the National Priorities List (NPL) and are eligible for money from the fund established for the environmental cleanup under CERCLA. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.8 CHAPTER ONE CERCLA provides for “joint and several liability,” which means that any party identified as responsible for contamination of a site is considered equally responsible for cleanup costs with all other parties identified, and can be held 100 percent financially responsible in the event that other parties do not pay. Recovering costs from nonpaying parties is then the burden of the paying party and is pursued through the judicial system. Potentially responsible parties (PRPs) may be current or past owners and/or operators of a site where hazardous substances have been released, or persons who arranged for disposal or treatment of hazardous substances at the site. In addition, any person who knowingly accepted hazardous substances for transport to the site may be considered a PRP. Liability under CERCLA may also be retroactive to an era when the practices leading to the contamination were accepted industry standards. Petroleum is excluded from CERCLA unless mixed with other hazardous substances, and then the entire mixture is considered hazardous. Provisions have been established under SARA for an Underground Storage Tank Trust Fund that will address petroleum releases. Another environmental concept mandated by CERCLA is “cradle-to-grave” responsibility for hazardous substances. Liability for a hazardous substance begins when it is accepted on the site or formulated at the site and continues even after it is disposed off-site at a legally permitted facility. CERCLA is important to the highway planning process primarily in the acquisition of right-of-way. Accepting financial liability for contaminated property may adversely affect the economic analysis of a project and therefore its financial feasibility. In addition, if significant cleanup must take place before highway construction can begin, substantial delays to the project can be anticipated. Contaminated properties identified during route planning can be grave hindrances to project development and may be the crucial element in selecting alternative routes. Careful evaluation of the nature and extent of the contami- nation as well as the cleanup alternatives, costs, schedule, and ongoing liability is warranted on all sites with an identified release within the planned right-of-way purchase. Superfund Amendments and Reauthorization Act of 1986 (SARA). Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), Emergency Planning and Community Right-to-Know (Public Law 99-499, Title III; 42 USC §11001), estab- lished mandatory federal standards for community right-to-know programs and for reporting toxic chemical release by manufacturers under Section 313 of USC §11001. Intermodal Surface Transportation Efficiency Act (ISTEA). Section 1038 of the Intermodal Surface Transportation Efficiency Act (ISTEA) addresses the use of recycled paving materials. Section 1038(a) states, “a patented application process for recycled rubber shall be eligible for approval under the same conditions that an unpatented process is eligible for approval.” The subsection also provides that the U.S. EPA shall evaluate the human health and environmental impacts of asphalt pavement that contains recycled rubber, determine the percentage of the pavement that can practicably be composed of recycled rubber and the comparative performance of such pavement, and conduct a study of the uses and performance of recycled materials in highways to determine the environmental impacts and benefits of recycling such materials as reclaimed asphalt and asphalt containing recycled glass and/or plastic. The study must contain an economic cost-benefit analysis and an estimate of the environmental savings in terms of reduced air emissions, conserva- tion of natural resources, and reduced landfill waste. Section 205(b) of the National Highway System Designation Act of 1995 amends Section 1038 by striking subsection (d) eliminating the crumb rubber mandate and all associated penalties. Another section amended ISTEA in order to call for tests and specifications for the appropriate use of “crumb rubber modified” (CRM) asphalt. The use of waste tire rubber continues to be an initiative in FHWA research. Among the many additional environmental actions that influence how federal roadway and related projects proceed through the NEPA process is the authorizing legislation. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.9 ISTEA was almost revolutionary in the broadness of how it looked at surface transporta- tion, and the substantive role it played in regard to metropolitan planning organizations, localities, and states. ISTEA covered the period from 1992 through 1997, with $155 billion. It restructured the Federal Aid Highway program, and placed the emphasis on maintenance rather than wholesale expansion of the highway network. In creating the Surface Transportation Program, ISTEA brought a new level of flexibility to highway and transit projects, both capital and operating. Transportation Equity Act (TEA) for the 21st Century. Enacted June 9, 1998, as Public Law 105-178, TEA-21 authorized the federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998–2003. (The TEA-21 Restoration Act, enacted July 22, 1998, provided technical corrections.) The authoriza- tion level increased to $218 billion. TEA-21 built upon ISTEA, allowing new initiatives, strengthening safety, and encouraging flexibility in how to maximize performance of the transportation system. Examples of the broadened approved funding range from new funds for Park Service transportation projects to moneys for Intelligent Vehicle Systems. The U.S. DOT is preparing for reauthorization of TEA-21, which expires September 30, 2003, and expects continued innovations in financing, project stream- lining, safety and mobility improvements, and intermodal opportunities. National Highway System Designation Act of 1995. Public Law 104-59, 109 Stat. 588, requires the Secretary of Transportation to continue to improve and make future modi- fications to the national highway system, which is limited to 155,000 mi, with a caveat to increase or decrease the total mileage 15 percent. States are permitted to request proposed connections to the system, and connections for intermodal terminals are auto- matically eligible for NHS funding. 1.1.6 Legislation to Govern Special Land Use Farmland Protection Policy Act (FPPA). The Farmland Protection Policy Act (FPPA) of 1981 (73 USC §4201 et seq.) requires that the lead agency on a project evaluate the effects a federal project may have on farmland before that agency can approve any action that may result in the conversion of farmland from agricultural use to nonagricultural use. If there are adverse effects, then alternatives to lessen them or eliminate them must be considered in the evaluation. Floodplain Management. Executive Order 11988, Floodplain Management (May 24, 1977), directs all federal agencies to discourage development within floodplains and to avoid long- and short-term modification of floodplains. Attachment 2 of DOT Order 2610.1C, Section 11, Floodplain Management Evaluation, provides for NEPA compliance related to floodplains and refers to DOT Order 5650.2, Floodplain Management and Protection, for compliance criteria. Federal Coastal Zone Management Act. The federal Coastal Zone Management Act of 1972 (16 USC §§1451–1464) provides for states with coastlines to develop and implement federally approved coastal zone management programs (CZMPs). Once a state has an approved management program, federal projects or federally permitted development affecting the coastal zone must conform to the requirements of the state program “to the maximum extent practicable.” A determination of consistency with the approved CZMP is required from the state before federal approval can be granted. DOT Order 5610.1C, which sets forth the federal agency’s procedures for complying with NEPA, covers coastal zones in Attachment 2 under subsection 12(d). Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.10 CHAPTER ONE 1.1.7 Legislation to Protect Natural Resources and Recreation Lands Federal Wild and Scenic Rivers Act. The federal Wild and Scenic Rivers Act (16 USC §§1271–1287) provides that selected rivers that meet specified requirements and their immediate environments shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. If a selected river is placed in the Wild and Scenic River System, no such designated river, or proposed designated river, may be degraded in its wild and scenic value by a federal project or agency. Any proposed federal con- struction projects on the river or in its immediate environment must be brought before Congress with an explanation of how the act will continue to protect the river despite the proposed construction activity. Protection of Wetlands. Executive Order 11990, Protection of Wetlands (May 24, 1977), directs all federal agencies to refrain from assisting in or giving financial support to projects that encroach upon public or private wetlands unless the agency determines that there are no practicable alternatives to such construction and that the proposed action includes all practicable measures to minimize harm to wetlands that may result from such use. As mentioned under the Clean Water Act subsection 101(4)(f), the Corps of Engineers is given permit authority to protect or receive resource compensation for wetland impacts. DOT Order 5610.1C, which sets forth the federal agency’s procedures for complying with NEPA, covers wetlands in Attachment 2 under subsection 12, Considerations Relating to Wetlands or Coastal Zones. Fish And Wildlife Coordination Act. The Fish and Wildlife Coordination Act (16 USC §§661–666) requires coordination and consultation among (1) the agency proposing the highway project, (2) the U.S. Fish and Wildlife Service of the Department of the Interior, and (3) the state agency responsible for protecting wildlife resources whenever the waters of any stream or other body of water are proposed to be impounded, diverted, or otherwise modified. Full consideration and evaluation of the cost and benefit on a resource and public welfare scale must be performed including proposed mitigation measures for potential impacts. Federal Endangered Species Act. The Federal Endangered Species Act of 1973 (16 USC §§1531–1543) provides a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. It also provides a program for the conservation of such endangered and threatened species. Section 7 requires each federal agency, in consultation with, and with the assistance of, the Secretary of the Interior, to ensure that actions authorized, funded, or carried out by such agency do not jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species unless such agency has been granted an exemption for such action. For federal highway projects, a request is made to the Fish and Wildlife Service regarding whether any species listed or proposed as endangered are present in the project area. If so, a biological assessment must be completed and reviewed by the Fish and Wildlife Service. The Fish and Wildlife Service will make a determination as to the impacts on critical habitat or on the species itself and whether the impacts can be mitigated or avoided. In order to proceed with a project where impacts to endangered species have been identified, an exemption from the Endangered Species Act must be obtained. The Department of Transportation Act, Section 4(f). One significant environmental provision appears in the Department of Transportation Act, which established the Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.11 Department of Transportation and mandated its mission. This is Section 4(f), which is a duplication of the language under Section 138 of the Federal-Aid Highway Act (23 USC §138). The provision states that “…the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site…unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.” According to regulations set forth in 23 CFR 771, a Section 4(f) evaluation must be prepared when a project will require the use of 4(f) land. The EIS process generally incorporates this evaluation. The final evaluation must include sufficient information to support a determination that the requirements of the act have been met. Section 4(f) is relevant only when there is actual taking or use of land from a federal park or site that is included in the National Register of Historic Places. The Advisory Council on Historic Preservation’s procedures (36 CFR 800) must also be complied with when a project involves historic resources. Rivers and Harbor Act. The Rivers and Harbor Act (33 USC 401 et seq.) was enacted in 1899 and later amended to protect navigation and the navigable capacity of the nation’s waters. The two provisions of the act most significant to highway projects proposed in or around U.S. harbors or rivers are: Section 9, which requires a permit for the construction of bridges or causeways across navigable waters of the United States Section 10, which requires a permit for various types of work performed in navigable waters including stream channelization, excavation, and filling As stated under the Clean Water Act, the Army Corps of Engineers has permitting and enforcement jurisdiction for construction activities performed in a stream or on the shore of waters of the United States. American Heritage Rivers. Executive Order 13061, Federal Support of Community Efforts Along American Heritage Rivers (September 11, 1997), has three objectives: natural resource and environmental protection, economic revitalization, and historic and cultural preservation. Proposed federal projects should not conflict with the Community Action Plan of an American Heritage River. Land and Water Conservation Fund Act of 1965, Section 6f. 16 USC 460-4 to -11, Public Law 88-578, protects public recreational land developed using federal funds under this act. Replacement lands converted to nonrecreational uses must be approved by the Secretary of the Interior. Invasive Species. Executive Order 13112, February 3, 1999, makes the National Invasive Species Council within the U.S. Department of the Interior responsible for ensuring appropriate planning and curbing of nonnative species in particular ecosystems. This includes avoiding introducing such species, as well as detecting and restoring habitat conditions that have been invaded. Migratory Birds. The Migratory Bird Treaty Act, 16 USC 703-711, and Executive Order 13186, January 10, 2001, call for each federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations to develop and Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.12 CHAPTER ONE implement a Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife Service that shall promote the conservation of migratory bird populations. In addition, federal agencies shall design and accommodate population conservation principles and measures. 1.1.8 Legislation to Protect Historical and Cultural Resources National Historic Preservation Act. The purpose of the National Historic Preservation Act is to protect the historical and cultural foundations of the nation. The act provides for review by the Advisory Council on Historic Preservation (ACHP) of federal projects that may affect a historic site. The act mandates (in Section 106) that federal agencies take into account the effect of an undertaking on a property which is included in, or eligible for inclusion in, the National Register of Historic Places. Impacts on historic and culturally significant sites are considered in the EIS process under NEPA and implemented under DOT Order 5610.1C, Attachment 2, Section 5, entitled Properties and Sites of Historic and Cultural Significance. The National Historic Preservation Act has itself not been a significantly contro- versial statute in highway projects with the exception of the rehabilitation or replacement of historic bridges. Also, it is important to note the quasi-environmental implications: “…any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking…shall take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register.” In 1992, Public Law 102-575 amended the NHPA and affected the way Section 106 is carried out. The Advisory Council on Historic Preservation adopted new regulations in June 1999. Several key changes included additional public involvement, additional agency compliance, and more precise coordination with Native Americans and tribes. Native American Graves Protection and Repatriation Act (NAGPRA). Public Law 101-601, enacted on November 16, 1990, allows tribes and Native Hawaiian organiza- tions and Alaskan villages to request “repatriation” of human remains. This act generally applies to agencies that manage land or are responsible for archeological collections. Historic Sites and Buildings Act. The Historic Sites and Buildings Act of 1935 (16 USC §§461–471) authorized the Historic American Buildings Survey, the Historic American Engineering Record, and the National Survey of Historic Sites. It authorized the establishment of national historic sites and the designation of national historic landmarks. It also mandated and encouraged interagency, intergovernmental, and interdisciplinary efforts for the preservation of cultural resources. Protection and Enhancement of the Cultural Environment. Executive Order 11593, Protection and Enhancement of the Cultural Environment (May 13, 1971), directs federal agencies to ensure the preservation of cultural resources in federal ownership. Each agency must also institute procedures to ensure that federal projects and programs contribute to the preservation and enhancement of non-federally owned sites that are of cultural signif- icance. Each federal agency must provide for recording of National Register properties that will be unavoidably altered or destroyed as a result of federal action. The DOT regulations, under Order 5610.1C, address EIS procedures for historic and culturally significant sites under Section 5, Properties and Sites of Historic and Cultural Significance. Reservoir Salvage Act and the Archaeological and Historical Preservation Act. The Reservoir Salvage Act of l960 (16 USC §469) provided for the recovery and preservation Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.13 of historical and archaeological data that might be lost or destroyed as a result of the con- struction of dams, reservoirs, and attendant facilities. This act was amended by the Archaeological and Historical Preservation Act of 1974 (also known as the Moss-Bennett Act) to include all proposed federal construction projects that threaten the loss or destruc- tion of significant scientific, historic, or archaeological data. The act requires that the proposing agency notify the secretary of the interior of the threat. The federal agency may undertake the survey or recovery of data, or it may request that the secretary of the interior do so. If the agency itself undertakes the survey and recovery of data, it must provide the secretary of the interior with a report. The FHWA historic preservation procedures under the National Historic Preservation Act (Section 106) provide similar protection, and so this act is not applied if federal funding or other involvement is used in a highway project. Archaeological Resources Act. To protect archaeological resources on public lands, the Archaeological Resources Act requires the issuance of permits in order to excavate or remove any archaeological resources. Unauthorized activities are punishable by fine, imprisonment, or both. Rules and regulations concerning this act are printed under 43 CFR 7. American Indian Religious Freedom Act (AIRFA). Known as 42 USC 1996, Public Law 95-341, and passed in 1978, this act acknowledges prior infringement on the right of freedom of religion for Native Americans, as well as establishes a policy of protecting and preserving the inherent right of the individual Native Americans to believe and exercise their traditional religions. 1.1.9 Context-Sensitive Design According to the FHWA, following the substantial completion of the U.S. Interstate System, the transportation focus for many states has shifted to congestion management and system preservation projects that involve existing facilities. Most of these existing facilities are substantially developed, and transportation improvement projects will affect this development. Working with community stakeholders to preserve and enhance the human and natural environment thus becomes a significant component of these projects. To best address the challenges of these projects, many state transportation agencies and professional organizations are interested in implementing a context-sensitive design (CSD) approach for project development. With this goal in mind the National Highway System Designation Act (Section 109 of Title 23, USC) was enacted in November 1995. The relevant portion of that policy is: A design for new construction, reconstruction, resurfacing…restoration, or rehabilita- tion of highway on the National Highway System (other than a highway also on the Interstate System) may take into account…[in addition to safety, durability and economy of maintenance]… A. the constructed and natural environment of the area; B. the environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity; and C. access for other modes of transportation. Five pilot states were selected: Connecticut, Kentucky, Maryland, Minnesota, and Utah to implement the CSD approach in conjunction with the FHWA. Principles for CSD can be found on the FHWA web site at www.fhwa.got.gov/csd/principles. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.14 CHAPTER ONE 1.1.10 Legislation to Protect Persons and Minorities Title VI of the Civil Rights Act of 1964. This act (42 USC 2000d et seq.) was arguably the most instrumental in obtaining a voice for minorities as related to federal capital programs. It prohibits discrimination on the basis of race, color, and national origin in projects or programs receiving federal financial assistance. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Public Law 91-646 provides benefits and protection for persons whose real property is acquired or who would be displaced from acquired property because of a project or program that receives federal funds. A displaced person may be an individual, family, business, farm, or nonprofit organization. Just compensation is required, and many guidelines exist for ensuring fair treatment. Environmental Justice. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations (February 11, 1994), was created to provide guidance on identifying and addressing disproportion- ately high and adverse human health and environmental impacts on low-income and minority populations. The U.S. DOT issued DOT Order 5680.1 on April 15, 1997, to ensure that each modal agency within the DOT complies with this executive order. 1.1.11 Economic and Social Effects In addition to the legislation relating to special land uses discussed above, as well as that involving cultural resources and general concerns for the environment, a focus on federal projects as a cumulative experience is evident. While the FHWA Technical Advisory has noted that both secondary and cumulative effects must be addressed in environmental documents, additional guidance continues to emerge. Cumulative Effects. Considering Cumulative Effects under the National Environmental Policy Act (January 1997) by the Council on Environmental Quality provides general principles and methods for the analysis of cumulative effects. While CEQ stresses that this handbook represents neither formal guidance nor legally binding recommenda- tions, the handbook does offer a primer on the complex issue of cumulative effects. 1.1.12 Additional Information Sources The volume of new federal environmental legislation has been escalating annually and can be expected to continue to do so as the environmental field matures. Even legal analysts sometimes have difficulty keeping abreast of all the changes; the highway engineer and other interested parties should defer to legal counsel for advice on the legis- lation applicable to a particular project and information on the implications of the latest proposed legislation, as well as current applicable state and local laws and regulations. 1.2 NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) The National Environmental Policy Act (NEPA) goals have been created to ensure that governmental actions promote the general welfare of people and fulfill the social, Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.15 economic, and environmental requirements of present and future generations. Executive Order 11991 (May 24, 1977) directed the Council on Environmental Quality (CEQ) to issue regulations to federal agencies for implementing NEPA. CEQ regulations were published on November 29, 1978. In response to the CEQ regula- tions, the U.S. Department of Transportation (U.S. DOT) issued DOT Order 5610.1C on October 1, 1979. The DOT order supplements the CEQ regulations and establishes general procedures and requirements for the consideration of environmental impacts by agencies within DOT. Supplementary guidance and procedures for federal highway projects have been issued by the Federal Highway Administration (FHWA). The purpose of Order 5610.1C is to establish procedures for consideration of envi- ronmental impacts in decision making on proposed U.S. DOT actions. It provides environmental impact information to the public in the form of environmental impact statements, assessments, or findings of no significant impact. The order implements the mandate of NEPA, as defined and elaborated upon by CEQ regulations, within the programs of the U.S. DOT. The intent is to provide for a single process, set forth under this order, to meet requirements for environmental studies, consultations, and reviews in as many projects as possible. It is U.S. DOT policy to integrate national environmental objectives. Through its missions and programs, DOT aims to: Restore or enhance environmental quality to the fullest extent practicable Preserve the natural beauty of the countryside and preserve public park and recreation lands, wildlife and waterfowl refuges, and historic sites; and to preserve, restore, and improve wetlands Improve the urban physical, social, and economic environment (e.g., increase access to opportunities for disadvantaged persons) Utilize a systematic, interdisciplinary approach in planning that may have a positive impact on the environment FHWA regulatory procedures are contained in 23 CFR 771, and further guidance is provided in FHWA Technical Advisory T6640.8A. Title 23 CFR 771 embodies most of the requirements of other federal laws and regulations to which the lead agency on a federal action must conform before obtaining various approvals for federal highway projects. The requirements for environmental documents under NEPA also include subjects in other areas of environmental legislation and implementing regulations. Laws and regulations regarding air, noise, water, historic preservation, parklands, the coastal zone, farmlands, hazardous wastes, wildlife, plants, and social conditions must be closely followed to meet the expressed public policy. An outline of the steps in the NEPA process is presented in Table 1.2. Each step is discussed in detail in subsequent articles of this chapter. Figure 1.1 illustrates the environmental review process. 1.2.1 Proposal Highway and related projects are usually initiated by either state or local agencies. If federal funding or approval will be required, the project is considered a federal action under NEPA. For highway projects, formal approval by the FHWA is required under any of the following conditions: Federal funds will be used for engineering, construction, or acquisition of right-of-way. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.16 CHAPTER ONE TABLE 1.2 Outline of Steps in the Federal Highway Administration (FHWA) and National Environmental Policy Act (NEPA) Process Step Description Proposal The requirements of NEPA are initiated when a project or pro- gram (an “action” under NEPA) is proposed that is either con- ducted, sponsored, funded, assisted, or approved by a federal agency. A proposal under NEPA does not exist until a goal has been established and the proposing agency has begun taking steps toward deciding among different methods to achieve the goal. Categorical exclusion After the proposal is made, the proposing agency must evaluate whether the action is categorically excluded. A categorical exclusion (CE) is a category of actions that do not individually or cumulatively have a significant effect on the environment. Categorical exclusions are set forth in 23 CFR 771.117. Environmental assessment If the action is not categorically excluded, the agency may prepare an environmental assessment (EA) for projects that do not clearly require an EIS (see below). An EA should be a concise report that provides information and analysis for determining whether an action will or will not have signifi- cant environmental effect. Finding of no significant impact If the EA findings indicate that no significant adverse environ- mental effects will result from implementation of the proposed action, then a finding of no significant impact (FONSI) is pre- pared and issued by FHWA. If an EA determines that environ- mental impacts may result from the action, the environmental impact statement (EIS) process is initiated. Notice of intent The first filing in the EIS process, published by the proposing agency in the Federal Register, is the notice of intent (NOI). The NOI is a public notice that an EIS will be prepared. Scoping After the NOI is filed, the scoping process begins. Scoping determines the scope of issues to be addressed in an EIS and identifies issues to be addressed in an EIS. Draft EIS Once the scope of the EIS has been established, preparation of the draft EIS (DEIS) begins. Final EIS After completion of the formal comment period, the agencies prepare the final EIS (FEIS). Record of decision If the FEIS is approved, a record of decision (ROD) is filed and the proposing agency can move forward with the action. The ROD is a formal, written statement, required under NEPA, wherein a federal lead agency must present the basis for its decision to approve a selected project alternative, summarize mitigation measures incorporated into the pro- ject, and document any required Section 4(f) approval. Revisions will be made to interstate highways. This does not include modifications of a facility or a new structure over or under an interstate highway or the construction over an interstate highway. Modifications will be made on noninterstate access-controlled highways so that access control will be affected or right-of-way previously financed with federal funds will be either disposed of or relinquished. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.17 FIGURE 1.1 Overview of NEPA environmental review process. (From R. E. Bass and A. I. Herson, Mastering NEPA: A Step-by-Step Approach, Solano Press Books, Point Arena, Calif., 1993, with permission.) It should not be assumed, however, that lack of federal funding necessarily means no federal involvement. Certain federal approvals and permits may still be required. For example, an Army Corps of Engineers Section 404 permit is required for any dredging or fill operations in navigable waters. If the proposal involves a federal action, a determination is also made regarding compliance with NEPA and other environmentally related federal requirements. This Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.18 CHAPTER ONE determination will indicate which of the related federal requirements are involved and whether the project: Requires preparation of an EIS (environmental impact statement) Is a CE (categorical exclusion) Requires preparation of an EA (environmental assessment) For federal actions, the selection of the type of environmental document to prepare for a project must be made in consultation with the FHWA transportation engineer. For those projects that are not exempt (see Article 1.2.2), a preliminary environmental evaluation would be helpful to provide the basic information needed at this stage of project development. The purpose of this initial evaluation is to determine the type of environmental document appropriate for the project and to begin to understand envi- ronmental resources and project issues such as: Whether additional alternatives should be studied to avoid or minimize significant environmental impacts The amount of time and resources likely to be needed to perform and document environmental studies, including time and resources for conforming to special-purpose environmentally related requirements Necessary mitigation measures, a range of costs, and an estimate of the time needed to negotiate with permitting agencies Whether the project has unusual problems or issues that are controversial, and therefore whether it may require legal review 1.2.2 NEPA Exempt Actions NEPA provides for certain specific actions to be exempt from the environmental review process as described in the following paragraphs. Categorical Exclusions. The NEPA regulations under 40 CFR 1508.4 provide for each responsible agency to identify types of federal actions under its purview that rou- tinely do not individually or cumulatively carry significant environmental impacts. These projects, designated as categorical exclusions (CEs), are exempt from the requirements to prepare an environmental assessment (EA) or an EIS. The intent of this provision is to reduce paperwork, delays, and expense on federal actions that are relatively small and occur often enough that the environmental effects are known and predetermined as not significant. FHWA sets forth highway-related actions that are CEs in two groups. The first group, CEs with no impacts, is found in 23 CFR 771.117(c) and is listed in Table 1.3. The second group, CEs that generally have no significant environmental impact except under certain circumstances, is found in 23 CFR 771.117(d). A CE determination sup- ported by documentation that specific criteria for the CEs are satisfied, and that signif- icant environmental impacts will not result, is recommended by the proposing agency to FHWA. The determination is documented upon FHWA approval. Table 1.4 illus- trates such projects. Federal actions, including CEs, must comply with a number of environmentally related federal laws. Compliance may require added studies and documentation. The CE determination for a federal highway or related action will be made by the FHWA trans- portation engineer. When satisfied that the project meets the exclusion criteria and that other environmentally related requirements have been met, the FHWA transportation engineer Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.19 TABLE 1.3 Categorical Exclusions Defined by the FHWA 1. Activities that do not involve or lead directly to construction 2. Approval of utility installations along or across a transportation facility 3. Construction of bicycle and pedestrian lanes, paths, and facilities 4. Activities included in the state’s highway safety plan under 23 USC §402 5. Transfer of federal lands pursuant to 23 USC §317 when the subsequent action is not an FHWA action 6. Installation of noise barriers or alterations to existing publicly owned buildings to provide for noise reduction 7. Landscaping 8. Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices where no substantial land acquisition or traffic disruption will occur 9. Emergency repairs under 23 USC §125 10. Acquisition of scenic easements 11. Determination of payback under 23 CFR §480 for property previously acquired with federal- aid participation 12. Improvements to existing rest areas and truck weigh stations 13. Ride-sharing activities 14. Bus and railcar rehabilitation 15. Alterations to facilities or vehicles in order to make them accessible for elderly and handi- capped persons 16. Program administration, technical assistance activities, and operating assistance to transit authorities to continue existing service or increase service to meet routine changes in demand. 17. Purchase of vehicles by the applicant where the use of these vehicles can be accommodated by existing facilities or by new facilities which themselves are within a categorical exclusion 18. Track and railbed maintenance and improvements when carried out within the existing right- of-way 19. Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site 20. Promulgation of rules, regulations, and directives Source: Adapted from 23 CFR 771.117(c). will indicate approval by signing the CE form. A copy of any documentation required to back up this determination should be sent to the FHWA transportation engineer. In many cases, FHWA has reached agreement with a proposing agency on the treatment of very routine, repetitive projects with little or no environmental impact implications. Such projects may be processed on a programmatic CE basis if certain specified conditions are met. Use of this programmatic process is subject to annual review. A CE classification does not exclude a project from the requirements of federal environmentally related processes. These requirements must be met before FHWA will make the exclusion determination. Express Statutory Exemptions. Congress has the authority to override NEPA requirements. Congress may, at its discretion, exempt a specific federal project or program from NEPA through legislation. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.20 CHAPTER ONE TABLE 1.4 Project Types Categorical Exclusion (CE) / Subject to FHWA Approval 1. Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or auxiliary lanes 2. Highway safety or traffic operations improvement projects, including the installation of ramp metering control devices and lighting 3. Bridge rehabilitation, reconstruction, or replacement or the construction of grade separation to replace existing at-grade railroad crossings 4. Transportation corridor fringe parking facilities 5. Construction of new truck weigh stations or rest areas 6. Approvals for disposal of excess right-of-way or for joint or limited use of right-of-way, where the proposed use does not have significant adverse impacts 7. Approvals for changes in access control 8. Construction of new bus storage and maintenance facilities in areas used predominately for industrial or transportation purposes where such construction is not inconsistent with existing zoning and located on or near a street with adequate capacity to handle anticipated bus and sup- port vehicle traffic 9. Rehabilitation or reconstruction of existing rail and bus buildings and ancillary facilities where only minor amounts of additional land are required and there is not a substantial increase in the number of users 10. Construction of bus transfer facilities (an open area consisting of passenger shelters, board- ing areas, kiosks, and related street improvements) when located in a commercial area or other high-activity center in which there is adequate street capacity for projected bus traffic 11. Construction of rail storage and maintenance facilities in areas used predominatly for indus- trial or transportation purposes where such construction is not inconsistent with existing zoning and where there is no significant noise impact on the surrounding community 12. Acquisition of land for hardship or protective purposes Source: Adapted from 23 CFR 771.117(d). Statutory Conflicts. If Congress passes legislation relevant to an action that is in direct conflict with requirements in NEPA, the action could be exempt from NEPA on the basis of statutory conflicts. This may occur if legislation requires an agency to act within a time frame that would preclude the NEPA process. Emergency Actions. Emergency projects such as road repair following a flood are statutorily exempt under 23 CFR 771.1179. Emergency repair applies to work necessary to reopen a road or bridge as a result of a slide or slipout or other storm damage. The regula- tions define emergency as a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. Emergency includes such occurrences as fire, flood, or earthquake or other soil or geologic movements, as well as such occurrences as riot, accident, or sabotage. Depending on the nature and extent of the emergency, FHWA may modify or waive certain environmental requirements as long as the emergency response is directly related to controlling the effects of the emergency. 1.2.3 Public Involvement Under the CEQ regulations, public involvement is an essential element of the NEPA process, and the proposing agency must make sincere efforts to encourage and provide Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.21 for early and continuing public participation in the decision-making process [40 CFR 1506(a)]. Opportunities for public involvement are provided at several stages during the development of NEPA documents, such as the notice of intent (NOI), the scoping process, public contribution and comments on EAs, and public comment periods on the draft final EIS. Opportunities for the public to review and comment on documents occur when a notice of availability is published. A notice of availability is a formal public notice under NEPA announcing the availability of a completed EA, DEIS, or FEIS. Such notice is to be published in local newspapers or other local print media, provided to the state clearinghouse as applicable, presented in special newsletters, pro- vided to community and business associations, placed in legal postings, and presented to interested Native American tribes, if appropriate. For an EIS, publication of such notice is also required in the Federal Register. Notices and other public announce- ments regarding the project should be sent individually to anybody expressing an interest in a specific action. Early incorporation of public input on project alternatives and issues dealing with social, economic, and environmental impacts helps in deciding whether to prepare an EA or an EIS, the scope of the document, and the important or controversial issues related to the project or program. When impacts involve the relocation of individuals, groups, or institutions, special notification and public participation efforts should be undertaken. Early and ongoing public involvement will result in fewer court challenges, gain a greater number of cooperating agencies, build consensus earlier, screen out inap- propriate alternatives, and determine whether a FONSI or an EIS needs to be prepared. The proposing agency must provide for one or more public hearings or the oppor- tunity for hearings to be held at a convenient time and place for federal actions that require significant amounts of right-of-way acquisition, substantially change the layout or function of connecting roadways or of the facility being improved, have substantial adverse impact on abutting properties, or otherwise have a significant social, economic, or environmental effect [23 CFR 771.111(h)(2)(iii)]. During public hearings, the public should receive information on the project’s purpose and reason and be told how it is integrated with local planning goals. The public should be provided with information on the major design features of the project, potential impacts, and available alternatives under consideration. Processes of special interest to the public, such as relocation procedures and right-of-way acquisition, should be carefully explained, as should the agency’s procedures and timing for receiving oral and written public comments [23 CFR 771.111(h)(2)(v)]. The public comment period for a draft EIS is at least 45 days, except in rare circumstances determined by the Environmental Protection Agency (EPA). Public hearings must be documented, including providing FHWA with a copy of the transcript from the hearing. Under the Freedom of Information Act (5 USC §552), an agency must make docu- mentation, including interagency comments, available to the public at no cost. 1.2.4 Environmental Assessment Purpose. An environmental assessment (EA) is conducted for a project that is not a CE and does not clearly require an EIS. The purpose of the EA is to determine whether or not an EIS is needed. It does so by identifying environmental impacts of the project and the significance of these impacts. The EA process includes studies and procedures required by environment-related laws and regulations. In preparing an EA, coordination at the earliest appropriate time with local, regional, state, and federal agencies having jurisdictional authority regarding the project is desirable. It can serve to focus, at an early stage, on the environmental issues deserving study, evaluate their potential impact, begin to identify alternatives and measures that might mitigate adverse environmental impacts, and eliminate study and discussion of nonpertinent Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.22 CHAPTER ONE issues. At any point during the EA process, FHWA can determine that the preparation of an EIS is required. However, if the EA concludes that there will be no significant impact, a finding of no significant impact (FONSI) will be made by FHWA. Format of an Environmental Assessment. The contents of an EA are determined through agency and public scoping, preliminary gathering of data, and field review. These steps will identify potentially affected resources and what level of analysis may be necessary. They will also identify those resources that are clearly not affected and those without the potential for significant adverse effect. This will allow for effective and efficient use of staff and resources. The EA should be a concise document, including only that background data and technical analysis needed to support succinct discussions of the alternatives and their impacts. The discussion must be focused on substantiating whether the proposed pro- ject will have a significant effect on the environment. It is not necessary to discuss those impacts where the effect is not significant. The following elements should be included in an EA document: Cover sheet Table of contents Purpose and need for action Alternatives Environmental setting, impacts, and mitigation Section 4(f) evaluation if applicable EA revisions (after formal agency and public comment) Comments and coordination Appendices Before beginning the EA document, project sponsors should confer with the FHWA to ensure that the most recently adopted document guidelines are followed. Purpose and Need for Action. The purpose and need for the project should be succinctly explained at the beginning of the EA. The need for the project is based on an objective and analytical evaluation of current information and future anticipated conditions. Statements regarding the need for the project should be, to the extent feasible, quantifiable. Table 1.5 shows various types of information related to need for highway projects. Project Description and Alternatives. The project description should be written in clear, nontechnical language. A glossary or footnotes should be used to define or explain technical terms. Exhibits are also essential for a clear understanding of the project features. The description of the project should include the scope of the project; location and limits; major design features; typical sections (where appropriate); a location map (district, regional, county, or city map showing state highways, major roads, and well- known features to orient the reader to the project location); a vicinity map (detailed map showing project limits and adjacent facilities); current status of the project including integration into regional transportation plans, regional transportation improvement programs, congestion management plans, and the state transportation improvement program; proposed construction date; funding source; and the status of other projects or proposals in the area. For projects involving more than one type of improvement, the major design features of each type should be included. For instance, Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.23 TABLE 1.5 Basic Information Requirements to Establish Need for Highway Projects Project issue Information requirements Capacity problems (1) Hours of congestion being experienced and reasons for congestion; (2) present and projected average daily traffic (ADT), peak-hour volumes (PHV), and level of service; (3) basis for projected ADT, e.g., development in areas served by facility, traffic diver- sion, or increasing recreational traffic Safety problems (1) Personal injury and fatality rates vs. statewide rates; (2) reasons why accidents are happening (e.g., poor geometrics, turning movements, lack of merg- ing or weaving distance, curves, lack of shoulders); (3) safety benefits of the project Operational deficiencies (ramp Explicit description of the problem(s), such as exces- metering and auxiliary lane projects) sive demand or steep grades Structural deficiencies (1) Results of field survey or report on condition of pavement, bridges, drainage capacity, etc.; (2) main- tenance cost vs. statewide rate for the same type of facility System continuity Description of how the project is an invaluable link to a larger transportation system a freeway widening may also involve a median barrier, ramp metering, sound barriers, and park-and-ride lots. The project will also include necessary borrow or disposal sites, as well as detours and contractor equipment yards. Alternatives to the project, including the no-project option and nonhighway alter- natives, are also to be discussed in this section. Project alternatives can be classified into two types: viable, and those studied but no longer under consideration. Viable alternatives are to be described in detail to compare their effectiveness against the pro- posal in meeting the project purpose and need, potential impacts, and cost. Alternatives no longer under consideration should be explained briefly. The EA may present this in two ways: (1) It may discuss the preferred alternative and identify other alternatives considered, or (2) if a preferred alternative has not been identified, simply present the alternatives under consideration. The EA does not need to evaluate in detail all reasonable alternatives for the project, but may be prepared for one or more “build” alternatives. Environmental Setting, Impacts, and Mitigation. The setting should be written in a clear manner. Visual displays can be used to eliminate verbiage and clearly describe the setting. Most of the setting will be written after the impacts have been identified to focus on the appropriate details for impact evaluation. Beyond the general contextual background, discussion should include only that portion of the setting that is affected. For example, if there are no effects on riparian habitat, then the setting would not include a description of riparian habitat beyond that needed for background information. The EA should list technical studies or backup reports used in making the assessment and indicate where reports are available. It is not intended that each item be supported by detailed studies or discussion, but only that there be enough information in the EA to allow a reasonable determination regarding degree of impact. The evaluation should be completed to assess the effects of the proposal and of viable alternatives to the proposed project as described. If more than one alternative is involved, the evaluation discussion Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.24 CHAPTER ONE must identify the alternative(s) associated with each specific impact being discussed. The following subject areas, while not comprehensive, should be considered and either dis- cussed or set aside as not being significant issues (list taken from FHWA TA T6640.8a): 1. Land use impacts 2. Farmland impacts 3. Social impacts 4. Relocation impacts 5. Economic impacts 6. Joint development 7. Considerations relating to pedestrians and bicyclists 8. Air quality impacts 9. Noise impacts 10. Water quality impacts 11. Permits 12. Wetland impacts 13. Water body modification and wildlife impacts 14. Floodplain impacts 15. Wild and scenic rivers 16. Coastal barriers 17. Coastal zone impacts 18. Threatened or endangered species 19. Historic and archeological preservation 20. Hazardous waste sites 21. Visual impacts 22. Energy 23. Construction impacts 24. Relationship of local short-term uses versus long-term productivity 25. Irreversible and irretrievable commitment of resources Mitigation measures proposed are to be clearly identified as mitigation measures. Proposed measures are to be presented as commitments and not just actions that could or should be done. As part of the proposal, they should be included in the project description. Examples of impacts and related mitigation common to highway-related projects are as follows: Erosion and siltation. Many projects have cut or fill slopes that require mitigation of potential erosion. Mitigation measures should be spelled out. An example would be seeding and mulching, placing of straw, or other deterrents to slope erosion. Siltation of streams is also a concern. Use of special dams, catch basins, or siltation fences to prevent silt from getting into streams should be mentioned. Hazardous waste. If any initial studies or preliminary environmental evaluations identify known or potential hazardous waste sources, alternatives to avoid the site must be explored. If the site cannot be avoided, an assessment including sampling and possibly a characterization of the problem should be conducted. Findings and Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES ENVIRONMENTAL ISSUES 1.25 recommendations are to be discussed. If a hazardous waste site is identified (through information referenced to the address of the site or the county assessor’s number), specify the type of regulatory actions it is subject to and any environmental databases or lists that it appears on along with regulatory identification number. Floodplains. If the project involves several encroachments, the description can include a discussion of the potential flood risks and floodplain impacts with a summary for each encroachment placed in an appendix. Floodplain impacts include the support of probable incompatible floodplain development and impacts on natural and benefi- cial floodplain values. Discussion should include measures to minimize floodplain impacts and restore and preserve floodplain values impacted by the action. Air quality. When a project warrants a quantified air quality study, a carbon monoxide air quality study should be performed. This may vary from an extensive study with a formal report to a brief investigation with an informal memo to the file. The results of an air study may be presented here in their entirety, if one page, or summarized if lengthy. Quantified microscale results are frequently required. Noise. A noise study is often needed for highway projects. The results should be summarized. Both existing and projected exterior noise levels at sensitive receptors should be tabulated for each alternative. If there are no sensitive receptors in the area of impact (e.g., undeveloped or rural areas), it may be adequate to state this fact without preparing a formal noise study and report. A noise study is not required for projects unrelated to traffic noise such as lighting, signing, landscaping, or safety. Mitigation, such as berms or noise walls (see Chap. 9), should be proposed when the predicted traffic noise levels approach or exceed the FHWA noise abatement criteria, or when predicted levels substantially exceed existing levels (23 CFR 772). Where mitigation is not proposed, the reasons must be given. Acceptable reasons include frequent access openings that negate attenuation, cost out of proportion to the benefits, aesthetics, and local opposition. Historic sites. The effects, as described in 36 CFR 800, of the various alternatives on historic properties need to be explicitly stated. If there are no effects, include a statement that FHWA determined that the project will have no effect on historic properties. If there are effects but they are not adverse, any specific data leading to that finding should be stated. Documentation of public involvement efforts must be included along with consultation with the Advisory Council on Historic Preservation (ACHP) if it has occurred. If the effect is adverse, describe surveys undertaken, the number and type of historic properties to be affected, and the proposed treatment of these properties. A Section 4(f) evaluation is to be included as a separate section in the EA if there will be involvement with a Section 4(f)-protected resource. Comments and coordination. This section should summarize the early and continu- ing coordination efforts with agencies and the public, summarize the key issues and pertinent information received through these efforts, and list the agencies and members of the public consulted. Determining Significance under NEPA. The EPA regulations define significance within the project context and impact intensity. The context is the setting (physical, social, political, and geographic) within which the proposed project should be considered. Under the regulations, several potential contexts must be considered for the assessment of resources. These include society as a whole, an affected region, affected interests, or a locality. Typically, for a site-specific action, local effects rather than global determine likelihood of significance. Downloaded from Digital Engineering Library @ McGraw-Hill (www.digitalengineeringlibrary.com) Copyright © 2004 The McGraw-Hill Companies. All rights reserved. Any use is subject to the Terms of Use as given at the website.  ENVIRONMENTAL ISSUES 1.26 CHAPTER ONE Significance also varies with the setting of the proposed action. For instance, noise increases in an undeveloped area may be evaluated to be of less significance than in an urban area because there are fewer affected receptors. In addition, both short- and long- term effects are relevant in determining context. Intensity refers to the severity of an impact. Measures of intensity vary according to resource type. Factors to consider in determining intensity are as follows: Impacts may be both beneficial and adverse. A significant effect may exist even if the federal agency believes that on balance the effect will be beneficial. The degree to which the proposed action may affect public health or safety. Unique characteristics of the geographic area such as proximity to historic or cultur- al resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or eco- logically critical areas. The degree to which the effects on the quality of the human environment may be highly controversial. The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipat