Managing Expectations through NEPA
Toronto, Canada

– Peer Roundtable Report –

Managing Expectations through NEPA

I. Summary

The two-hour peer roundtable focused on the opportunities that the National Environmental Policy Act (NEPA) process has to offer, particularly with the streamlining opportunities in the Safe, Accountable, Flexible Efficient Transportation Equity Act — A Legacy for Users (SAFETEA-LU) Section 6002 Environmental Review Process provisions and new FTA guidance on integrating New Starts and NEPA. Participants and audience members discussed NEPA experiences and analyzed needs to improve how NEPA can support decision-making in the project development process.

The session contained two presentations; however it was centered on open discussion rather than organized into a presentation with questions and answers following. The panelists used examples from their own experience to address the issues raised at the roundtable. Pamela Burford and Nat Bottigheimer spoke from the perspective of project sponsors. Audience members also asked questions and participated in the discussions.

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II. Presentations and Discussion

1. Introduction—Diana Mendes
   Senior Vice President of DMJM Harris, an AECOM Company
   Vice Chair of APTA Policy and Planning Committee
   
   Diana Mendes served as the facilitator of the roundtable and gave a brief introduction to the session. Ms. Mendes described the roundtable format and introduced the three panelists. She expressed that the goal of the roundtable was to develop an action list to support better utilization of the environmental review process under NEPA and to support sound project development decisions.
   
   Ms. Mendes spoke about using NEPA as a tool to promote effective decisionmaking, rather than as a document developed to justify decisions after the fact. She also remarked how SAFETEA-LU Section 6002 has significantly changed the face of environmental review under NEPA for the first time in several decades. Ms. Mendes encouraged using the session as an open forum for discussion, rather than a series of presentations with question and answers from the audience. She presented some questions to encourage discussion, including:
   • How do you think we can make better use of the NEPA process to promote effective decisionmaking?
   • Whose expectations drive the NEPA process? Does this change for multi-modal projects?
   • How do you achieve a balance between Federal and local interests during the NEPA process?
   • What have been your experiences integrating NEPA and New Starts requirements?
   • What aspects of new processes under 6002 have had the biggest effect on how you are approaching projects, and why?
2. Multi-Modal NEPA for Transit and Highway: Marriage, Divorce, and Just Living Together — Donald Emerson
   Principal Consultant, Strategic Consulting, PB
   
   Donald Emerson gave a presentation titled "Multi-Modal NEPA for Transit and Highways: Marriage, Divorce, and Just Living Together." It focused on the challenges and opportunities of multi-modal NEPA.
   
   Multi-modal NEPA can arise with shared rights-of-way (ROW), parallel routes that serve the same travel markets, or if one mode offers mitigation to the other. While FHWA and FTA have joint regulations for NEPA, the agencies apply the process differently, and have certain cultural and programmatic differences that can create challenges when NEPA is undertaken in a multi-modal way. The number of multi-modal situations is growing, which creates opportunities for transit.
   
   FTA and FHWA approach multi-modal NEPA in one of three ways:
   • A single merged NEPA process— "marriage" — which extends from scoping through the record of decision (ROD), and often includes interagency agreements.
   • Merged processes initially, then split apart—"divorce"—where the agencies begin the NEPA process as a joint effort, perhaps through the Draft Environmental Impact Statement (EIS), and then complete the process separately, perhaps with a separate Final EIS and ROD for each mode.
   • Separate but coordinated processes—"just living together"—Agencies conduct scoping through ROD separately, but collaborate and share information throughout the NEPA process. One mode tends to dominate decisionmaking in these scenarios.
   Emerson cited some of the advantages and disadvantages of each approach, noting that none of them is necessarily best; the right choice depends on the needs of each case. All three approaches are more effective when agencies think through and commit to an overall strategy, so agencies can understand their roles in the process and reconcile their differences early in NEPA.
   
   Question from audience: Is there a procedural requirement to split at a certain point in the process?
   
   Donald Emerson (DE): No. In the I-70/East Line project in Denver, the initial Notice of Intent was published describing a joint effort ("marriage"). When FTA and FHWA decided to split their processes prior to Draft EIS development, they had to reissue the NOI to account for the separate EIS. In this case, deciding to split caused delays because the Purpose and Need Statement was developed under the joint process, and it no longer described the separate needs for each project adequately. However, for the I-15/South Light Rail Transit (LRT) in Salt Lake City, agencies planned ahead to split after the DEIS, with the highway and transit projects then proceeding through NEPA at their own pace. Neither mode held up the other's ability to advance its project.
   
   Diana Mendes (DM): During the planning for a multi-modal project to improve access from the central business district (CBD) to the airport in New Orleans, Louisiana, the sponsoring agencies put the issue of how to proceed with the environmental documentation out for public comment as part of the scoping process. Options under consideration were conducting a single combined NEPA process and document for both roadway and transit improvements, or conducting separate review processes and documents, one for the roadway improvements and another for the transit improvements. While this issue might not be of great concern to the general public, the comment period allowed the resource and regulatory agencies to provide recommendations on how to proceed. The Notice of Intent identified both options so that the sponsoring agencies had the flexibility to proceed either way.
   
   Pamela Burford (PB): Coordination in the NEPA process includes many shades of grey. Not only are there differences in process and culture between transit and highway agencies, but among Federal and state agencies.
   
   DE: For the I-75 Northwest project in Atlanta, Georgia DOT was advancing a HOV lane project in the median of an expanded Interstate. The highway and transit agencies came together to develop a multi-modal DEIS that evaluated a Bus Rapid Transit (BRT) alternative including stations along the highway, rather than simply running buses along an HOV lane.
   
   Question from audience: Can you decide early on? Can you use alternatives analyses to decide how to proceed, and then split processes between agencies?
   
   PB: The alternatives analysis process is the unsung hero to make decisions like these. However, we must be aware of level-of-design issues. FHWA determines a high level of project detail in the EIS, while FTA develops most of its details in the final design process.
   
   DM: Try to confront issues head-on. The opportunity to make project changes in scope or potential design modifications becomes more limited over time. As a project proceeds, modifications and mitigation opportunities can become more limited and more expensive, so it is better to resolve issues earlier in the project development process as soon as they can be surfaced. At the beginning of the project development process, agencies have the most resources at their disposal, including time, to confront issues and make important decisions. Streamlining is not meant to be a way to defer issues and deal with details later, but rather surface issues and address them with enough detail needed to make informed decisions regarding impacts and costs.
   
   It is important to always be mindful of the outcomes, and not just the process. Develop a vision and focus on outcomes, then use the environmental review process afforded under NEPA to figure out how to achieve that vision and make it the best possible solution. The Alternatives Analysis process can be invaluable in helping to articulate the vision. To use both the Alternatives Analysis and environmental review process to maximum advantage, agencies should strive to be realistic when setting goals and timelines. While a two-year schedule may be an admirable goal to complete an EIS, it is often not realistic, as the national average for an FTA EIS has been three and a half years, and the national average for an FHWA EIS has been close to five years.
   
   
3. Adventures in Environmental Streamlining—Diana Mendes Senior Vice President of DMJM Harris, an AECOM Company Vice Chair of APTA Policy and Planning Committee
   
   Diana Mendes gave a presentation titled "Adventures in Environmental Streamlining." Ms. Mendes focused on streamlining opportunities outlined in SAFETEA-LU.
   
   Section 6002: Environmental Review Process
   SAFETEA-LU Section 6002 provisions work in tandem with existing NEPA regulations. Section 6002 applies to all EISs. For environmental assessments (EA), FTA has not elected to apply the 6002 provisions, while FHWA applies 6002 to EAs on a case by case basis. For many projects, the provisions of 6002 are perceived to offer opportunities to streamline the environmental review process. Because of this, some projects that could have been grandfathered from Section 6002 because their NOI had been issued prior to the enactment of SAFETEA-LU have still elected to proceed under SAFETEA-LU because of the perceived process benefits. These relate to agency roles and responsibilities, Section 4(f) De Minimis impacts, and the 180-day statute of limitations.
   
   Agency Roles and Responsibilities
   Section 6002 redefines agency roles. More responsibility has shifted to project sponsors, and the requirements for early agency coordination have been increased, allowing project sponsors to flag issues earlier in the process and giving them more decisionmaking authority. For example, Section 6002 allows project sponsors to perform analyses to a higher level of detail for the preferred alternative in order to develop mitigation or comply with other environmental laws. However, agencies must be careful not to let such enhanced analyses preclude consideration of a range of alternatives during environmental review under the NEPA process, or to prejudice selection of the preferred alternative.
   
   Section 6009: De Minimis Impacts
   Section 6009 on de minimis impacts on parks, recreation areas, wildlife and waterfowl refuges, and historic sites refines the Section 4(f) process to reduce redundant work with the Section 106 process. Section 6009 applies to small impacts of protected resources under Section 4(f), such as increasing access to parkland. Section 6009 streamlines the number of alternatives required. It has saved time and aided project implementation while protecting resources.
   
   180-Day Statute of Limitations
   A statute of limitations applies to decisions by any Federal agency approving or permitting a highway or transit project and bars lawsuits unless filed within 180 days after the Federal Register notice of decision. The statute applies to common FTA decisions, including NEPA findings such as a Record of Decision, Section 4(f), project-level air quality conformity, and Section 106.
   
   Question from audience: What if a project must be reopened to complete an EA or supplemental EIS? Does the 180-day clock restart?
   DM: The 180-day clock is on the publication of the decision in the Federal Register. If you reopen a Federal decision, you restart the 180-day clock for that decision. This can be seen as a major incentive to get the decision right the first time.
   
   Comment from audience: A workshop with case studies on the practicalities of 6002 would be helpful.
   
   
4. Panel Member Statements and Answers to Questions
   
   Nat Bottigheimer (NB): The Washington Metropolitan Area Transit Authority (WMATA) is transitioning from construction to operations, and not adding much additional transit capacity. One area of growth is the Columbia Pike streetcar, which is a $200 million project sponsored by Arlington County. Although the project is funded without Federal assistance, project sponsors decided to complete the NEPA process anyway. This project is a good example of the importance to decide early on who will sponsor a project and how it will be funded. For them, NEPA acted as an insurance policy.
   
   DM: Does the NEPA process focus the discussion and bring people together?
   
   NB: In the Columbia Pike streetcar case, NEPA was used to preserve the option of Federal funding, though there were other ancillary benefits. We needed to prove that more people were benefited than impacted by the transit project, and NEPA helped in the decisionmaking. WMATA is trying to assess benefits by hosting more charrettes to obtain greater feedback from the public.
   
   PB: If you cannot articulate the benefits of a project you should not bother scoping it, because you will be stopped in your tracks. NEPA can be your friend. NEPA can even act as a suit of armor, as you are taking a thoughtful, measured approach required by law. But you must involve people who support the project. Be innovative and step outside of the advocacy group box. Seek out labor unions, environmental groups, businesses and other groups you might not generally think of and identify how they may benefit from the project.
   
   Comment: Agencies are coming to the table with different goals, values, resources, and expectations. It is important to spend time at the beginning of the process to discuss these differences, and to be able to describe intended outcomes. Alternatives analysis may help enhance coordination. We need a cultural shift away from treating NEPA as "after the fact" documentation and towards NEPA as an ongoing decisionmaking process with many stakeholders. Lead the process; don't be lead by it. Think of NEPA as a tool rather than a requirement, and use it to see the big picture. It also matters to have a solid foundation through local and regional planning that integrates NEPA. NEPA should not be a substitute for planning, as it is unrealistic to use such a cumbersome set of tools in planning.
   
   Comment: We also need to improve NEPA/106 and NEPA/404 merger processes to work out differences in interpretation and align the processes better.
   
   Question from audience: How do Public-Private Partnerships (PPP) work in the NEPA process?
   
   DM: A lesson learned from Design-Build is to determine project details before turning a project over to a contractor. Otherwise the contractor may resolve issues in ways that do not align with agency needs, or can erode the perceived schedule and budget benefits of design build by causing change orders.
   
   Comment: Design-Build and PPP are iterative processes that require communication and coordination.
   
   Comment: Transit agencies are getting contractors involved earlier in the planning process for PPPs so they are part of NEPA, design, etc. Each project is unique and needs/issues must be discussed early on with all stakeholders. Think about project development as an integrated process.

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III. Recommended Action Plan

• Conduct workshops on Section 6002 implementation. Include both practical implementation—how to achieve success; and cultural shift - how agencies change the way they do business at the project and agency level.
• Improve integration of NEPA into project development. Define NEPA role. Are we asking too much of the process? Improve definition of Alternatives Analysis as part of the decisionmaking process.
• Determine how to articulate project benefits in the NEPA process.
• Match the procedural tool to the decision (both Alternatives Analysis and NEPA).
• Determine: How many futures can we define? How to articulate forecasting to the public? How to define futures within the agency? Better definition yields a better process.
• Integrate NEPA and PPP or design-build as alternatives in project delivery. Can agencies approach PPP in NEPA in the same way as other project delivery methodologies?
• Integrate project planning and delivery. Determine how to model project planning and delivery so they work with the agency to fulfill project and system needs.
• Align environmental silos (Sections 106 and 404) in a more comprehensive and consistent process.

IV. For More Information

The FHWA Environmental Review Toolkit has a wealth of resources on environmental streamlining, project development, historic preservation, and environmental competency building. http://www.environment.fhwa.dot.gov/index.asp View the new page on SAFETEA-LU Environmental Provisions at http://www.environment.fhwa.dot.gov/strmlng/es2safetealu.asp.

List of Roundtable Speakers

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