Welcome to FHWA and FTA’s National Online Dialogue webpage for MAP-21’s Section 1305 rulemaking on expanding the use of Programmatic Approaches in environmental decision-making!
MAP-21 Section 1305 requires FHWA and FTA to initiate a rulemaking to allow for the use of programmatic approaches that are consistent with the National Environmental Policy Act (NEPA) and other applicable laws to conduct environmental reviews. FHWA and FTA are conducting outreach to these stakeholders through a national online dialogue and targeted listening sessions. Following completion of the outreach process, the Agencies will initiate a Notice of Proposed Rulemaking that provides interested parties with the opportunity to comment on proposed new and/or modified Agency regulations.
What’s New
- Please be sure to register for our upcoming National Online Dialogue kickoff webinars! See “Upcoming Webinars” to register.
- The National Online Dialogue goes live on April 9 and will be available until May 16.
Upcoming Webinars
- April 23, 12:30-1:30 p.m. – National Online Dialogue kickoff webinar – CLICK TO REGISTER
- April 29, 3:30-4:30 p.m. – National Online Dialogue kickoff – Tribal Partners & Stakeholders – CLICK TO REGISTER
Background
Read about Existing Programmatic Approaches
Read about Future/Potential Programmatic Approaches
General: Use and Scope of Programmatic Agreements
The Federal Highway Administration (FHWA) and Federal Transit Administration (FTA), hereafter referred to as the “Agencies,” are engaging interested parties in a discussion on the use of programmatic approaches to conduct environmental reviews, as required by Section 1305 of the Moving Ahead for Progress in the 21st Century Act (MAP-21; 23 U.S.C. 139(b)(3)). Section 1305 requires the Agencies to initiate a rulemaking to allow for the use of programmatic approaches that are consistent with the National Environmental Policy Act (NEPA) and other applicable laws to conduct environmental reviews. The Agencies must consult with relevant Federal agencies and State resource agencies, State departments of transportation, Indian tribes, and the public on the appropriate use and scope of programmatic approaches. Section 1305 includes a list of considerations to address in the rulemaking, including emphasizing the importance of collaboration, promoting transparency, and ensuring the use of accurate and timely information.
The Agencies are conducting outreach to these stakeholders through a national online dialogue and targeted listening sessions. Following completion of the outreach process, the Agencies will initiate a Notice of Proposed Rulemaking that provides interested parties with the opportunity to comment on proposed new and/or modified Agency regulations.
Programmatic approaches establish procedures for handling environmental consultation, review, and compliance requirements that eliminate repetitive discussions of the same issues and focus on issues ripe for analysis at each level of review. Programmatic approaches promote efficiency and provide regulatory consistency by standardizing requirements and procedures for complying with one or more Federal laws. Programmatic approaches provide a number of other benefits, including: (1) improved environmental outcomes; (2) promotion of interagency cooperation; (3) more effective use of limited staff and resources; and (4) clarification of roles and responsibilities.
The Agencies see benefits to expanding programmatic approaches. Although State Departments of Transportation (DOTs) and FHWA have extensive experience with the successful implementation of programmatic approaches to conduct environmental reviews, transit agencies and FTA have not used the approaches as widely due to challenges involved in negotiating agreements with numerous project sponsors across varying jurisdictions. The Agencies intend to develop a rulemaking that encourages expanding the use of existing approaches and developing additional innovative programmatic approaches. Whether initiated by transportation agencies or resource agencies, the development of programmatic approaches has the potential to benefit all.
In order to facilitate the outreach discussion, the Agencies compiled a list of existing examples and potential new example ideas for programmatic approaches, and have developed a series of questions to seek input from interested parties regarding programmatic approaches.
Existing Programmatic Approaches
Overview: The Agencies see benefits to continuing and expanding the use of programmatic approaches. Although State DOTs and FHWA have extensive experience with the successful implementation of programmatic approaches to conduct environmental reviews, transit agencies and FTA have not used the approaches as widely due to difficulties involved in negotiating agreements with numerous project sponsors across varying jurisdictions. The Agencies intend to develop a rulemaking that encourages expanding the use of existing approaches and developing additional innovative programmatic approaches. Whether initiated by transportation agencies or resource agencies, the development of programmatic approaches has the potential to benefit all.
Examples of Programmatic Approaches:
1. Nationwide Program-level Analysis or Agreement
This approach analyzes or programmatically addresses a program, category of activity, or type of impact at a national scale. The most notable existing examples of nationwide programmatic approaches focus on Section 106 of the National Historic Preservation Act (36 CFR part 800) and Section 4(f) of the Department of Transportation Act (23 CFR part 774), including:
- Advisory Council on Historic Preservation’s (ACHP) Program Comment for Streamlining Section 106 Review for Actions Affecting Post-1945 Concrete and Steel Bridges and Culverts (77 FR 68790 (Nov. 16, 2012)): The approved program comment, in accordance with ACHP regulations, waives case-by-case Section 106 review on common mid-20th century concrete and steel bridges and culverts that lack distinctive treatments, have little value for preservation in place, and are not located within historic districts. FHWA estimates that this program comment excludes almost 200,000 bridges and culverts from individual reviews. For more information about the Program Comment please visit: http://www.environment.fhwa.dot.gov/histpres/program_comment.asp
- FHWA Programmatic Section 4(f) Evaluations (23 CFR 774.3(d)): The programmatic evaluations can be used in place of individual evaluations for highway projects where uses are considered minor. To date, there are five programmatic evaluations that have been approved for use nationwide: Independent Walkway and Bikeways Construction Projects; Historic Bridges; Minor Involvements with Historic Sites; Minor Involvements with Parks, Recreation Areas and Waterfowl and Wildlife Refuges; and Net Benefits to a Section 4(f) Property. More information about FHWA’s Programmatic Section 4(f) evaluations is available at: http://www.environment.fhwa.dot.gov/4f/4fnspeval.asp
- Other Program Alternatives Allowed Under the Section 106 Regulations: These include standard treatment measures or prototype Programmatic Agreements.
2. Adoption and Incorporation by Reference of Federal Agency Analysis
It is allowable practice for several Federal agencies that permit, fund, or authorize a single project to collectively achieve compliance with NEPA by developing a single NEPA document. Under existing practice, it is also possible for an agency to achieve NEPA compliance by adopting another agency’s NEPA document.
A Federal agency could streamline its process by incorporating by reference another Federal agency’s impact-level analysis in complying with a Federal environmental statute, provided that the Federal agency addresses any additional requirements unique to that agency.
3. Statewide and Multi-State Programmatic Agreements
This approach uses consultation, coordination, or permitting programmatically for specified actions within a single State or with a regional focus. FHWA funds or authorizes numerous projects with potential impacts on listed salmon, eulachon, green sturgeon, and marine mammals. Individual formal consultations involve costly and complex biological assessments that can take 3 to 5 months to prepare and 200 days to receive the Biological Opinion.
Oregon’s Programmatic ESA Consultation on the Federal Aid Highway Program for NMFS trust species is an example of a statewide approach. Oregon’s programmatic formal consultation now enables 95 percent of Federal Aid project consultations to be completed within 15 to 30 days, with certain categories of adverse effect projects only requiring FHWA review, with annual monitoring and reporting to NMFS. More information about the Oregon Programmatic is available at: http://www.oregon.gov/ODOT/HWY/GEOENVIRONMENTAL/Pages/fahp.aspx
An example of a regional approach is FHWA’s Indiana bat conservation strategy and ESA consultation with FWS, which includes 25 States. This approach, which is currently in development, attempts to accelerate project delivery by providing standardized guidance in determining which projects “may affect” and are “not likely to adversely affect” the Indiana bat; and developing a framework for formal consultation for the category of projects that are “likely to adversely affect” the bat.
In areas where State DOTs and resource agencies have existing Statewide or Multi-State Programmatic Agreements in place, a transit agency could use (formally or informally) that Programmatic Agreement. FTA and the transit agency could work with States, MPOs, or resource agencies to develop similar agreements, amend existing agreements to become parties, or otherwise determine whether existing practices can be used in transit projects, either formally or informally. It may be necessary to ensure that the original agreement includes terms allowing other agencies to use the agreement.
4. Batched Analysis
Under this approach, a group of separate, but similar, actions can achieve environmental compliance by grouping them together. For example, when a State DOT needs to replace seven different culverts in five different tidal tributaries to the Chesapeake Bay, FHWA could use a batched analysis. Although the seven culvert replacements are separate projects in somewhat disparate locations, they can be batched in one environmental review process if the effects are similar, e.g. a single ESA Section 7 consultation for their effects on Atlantic sturgeon.
5. Tiered Documents
In CEQ’s NEPA regulations, “’tiering’ refers to the coverage of general matters in broader environmental impacts statements . . . with subsequent narrower statements or environmental analyses . . . incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared” (40 CFR 1508.28). Related analyses or determinations under other environmental laws, such as Section 106, Section 4(f) or other resource categories, should be conducted as appropriate, depending on the tiering stage.
For transportation projects, a Tier I Environmental Impact Statement (EIS) may evaluate broad issues such as mode (light rail, street car, or bus for transit projects) or a general alignment/corridor. The Tier I EIS may make broad determinations under resource categories regarding areas of impact, and initial consultation may result in general concurrence or mitigation measures, but detailed project-level impacts are evaluated later in the Tier II analysis (or analyses). In cases of large corridors, for example, the Tier I EIS could identify the general alignment of a preferred alternative corridor after considering numerous corridors, and the subsequent Tier II analysis would evaluate in more detail the environmental impacts of the preferred alternative corridor (or segments of the larger corridor that have logical termini). In the Tier II analysis, specific avoidance alternatives within the corridor are evaluated to avoid, minimize, and mitigate for project-level impacts.
Future/Potential Programmatic Approaches
Overview: The Agencies see benefits to expanding the use of programmatic approaches. The Agencies intend to develop a rulemaking that encourages expanding the use of existing approaches and developing additional innovative programmatic approaches. In addition to continuing to use and expand the use of existing approaches, the development of new and innovative approaches has the potential for greater participation and efficiencies. Although State DOTs and FHWA have extensive experience with the successful implementation of programmatic approaches to conduct environmental reviews, transit agencies and FTA have not used the approaches as widely due to difficulties involved in negotiating agreements with numerous project sponsors across varying jurisdictions. Whether initiated by transportation agencies or resource agencies, the development of programmatic approaches has the potential to benefit all.
Examples of New Programmatic Approaches
1. Nationwide Program-level Analysis or Agreement
This approach analyzes or programmatically addresses a program, category of activity, or type of impact at a national scale. The most notable existing examples of nationwide programmatic approaches focus on Section 106 of the National Historic Preservation Act (36 CFR part 800) and Section 4(f) of the Department of Transportation Act (23 CFR part 774). Other potential new applications of this approach include:
- FTA Programmatic Section 4(f) Evaluations: Programmatic evaluations under this example would be applied in a similar manner to the FHWA Programmatic Section 4(f) Evaluations described above. FTA does not currently have any Section 4(f) Programmatic Evaluations, but could benefit from crafting an agreement for visual impacts to historic resources, specifically, and/or adopting the programmatic evaluations developed by FHWA.
2. Incorporation by Reference of State Analyses
In cases where States have environmental impact assessment laws and an evaluation has been completed for a project under that State environmental impact assessment process, the Agencies could incorporate it by reference by following the Council on Environmental Quality’s (CEQ) requirements for this practice (40 CFR 1502.21).
The Agencies first would evaluate the State-level environmental review document to determine if it meets the Agencies’ standards under NEPA. If so, the Agency would provide a summary of the State-level document and indicate how the State document meets NEPA documentation standards. This summary would be attached to the State environmental document and provided for public availability/review/comment, as appropriate, in accordance with the FHWA/FTA’s NEPA implementing procedures (23 CFR part 771).
By fully (or partially) incorporating by reference a State’s environmental impact assessment, the Agencies could expedite environmental reviews, and ultimately, project delivery. For example, the California Environmental Quality Act (CEQA) is a rigorous environmental impact assessment law. In the event that a project sponsor in California may not have anticipated seeking FHWA or FTA funds and completed environmental review under CEQA, the CEQA document could be incorporated by reference by the applicable Federal agency if Federal funds are sought after completion of the CEQA environmental review, and the Federal agency’s NEPA implementing procedures are satisfied.
3. Reliance on State Analysis (Impact Level)
There may be certain instances where the Agencies could rely on a State’s analysis for a specific impact, thereby expediting environmental reviews.
For example, the Agencies may rely on the findings and determination from a consultation that occurred between a State agency and the State Historic Preservation Officer (SHPO) on the effects of a potential Federal undertaking on a historic property that occurred prior to the Agency’s involvement without re-initiating Section 106 consultation. The Agency would review the documentation and project information to ensure the findings and basis for the findings are accurate, and would inform the SHPO that the Agency concurs with the findings and intends to rely on the findings unless the SHPO objects to doing so. As long as there are no changes in the project as coordinated previously or resources were not missed, and the SHPO does not object, the Agency then could adopt the State’s impact analysis on historic properties. It may still be necessary, however, to notify other consulting parties (including tribes) from the original analysis that the Agencies are now involved in the project development process.
Another idea may be to allow the Agencies to rely on approaches contained in an existing State, local, or private Habitat Conservation Plan (HCP). HCP coverage areas may be at the regional, State, county, local, or watershed level and are coordinated with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS). Federal transportation projects that occur within an HCP coverage area and conform to the HCP requirements could experience an expedited Section 7 consultation under the Endangered Species Act (ESA). The improved efficiency would result from an abbreviated Biological Assessment, which references analysis contained within the HCP, and a streamlined review process due to application of previously approved best management practices, impact minimization and mitigation measures.
4. Statewide and Multi-State Programmatic Agreements
This approach uses consultation, coordination, or permitting programmatically for specified actions within a single State or with a regional focus. In areas where State DOTs and resource agencies have existing Statewide or Multi-State Programmatic Agreements in place, a transit agency could use (formally or informally) that Programmatic Agreement. FTA and the transit agency could work with States, MPOs, or resource agencies to develop similar agreements, amend existing agreements to become parties, or otherwise determine whether existing practices can be used in transit projects, either formally or informally.
5. Batched Analysis
Under this approach, a group of separate, but similar, actions can achieve environmental compliance by grouping them together. For example, when a State DOT needs to replace seven different culverts in five different tidal tributaries to the Chesapeake Bay, FHWA could use a batched analysis. Although the seven culvert replacements are separate projects in somewhat disparate locations, they can be batched in one environmental review process if the effects are similar, e.g. a single ESA Section 7 consultation for their effects on Atlantic sturgeon.
Similar to above, a transit agency could “adopt” this type of batched analysis, with FTA encouraging the practice by making it clear in regulation that it would accept the practice and analysis for purposes of its own NEPA reviews.
6. Regional/Statewide Effects Analysis
This approach involves the analysis of the effects of or on multiple transportation projects in a geographic area or corridor. Examples include:
- Regional cumulative effects analysis: A regional framework for evaluating the cumulative effects of multiple transportation projects could be developed in the planning stage and referenced in subsequent NEPA documents.
- Climate Impacts Vulnerability Assessment: Regional or statewide vulnerability assessments could be conducted to analyze the impacts of extreme weather events and projected climate impacts on transportation infrastructure. The assessment could then be referenced in subsequent NEPA documents.
- Ecological Approach/Regional Ecosystem Framework (REF): This involves the integration of transportation and conservation planning across agency boundaries, defining ecological resources of highest concern, and consideration of ecosystem-based mitigation. This approach can result in the development of a REF that jointly establishes and prioritizes conservation goals and opportunities. An example of this approach is the existing Houston-Galveston Area Council’s Eco-Logical project that developed an REF to help agencies assess environmental impacts of proposed infrastructure projects and to enhance multi-agency understanding of critical resource-protection areas. For additional information about the Houston-Galveston Area’s Eco-logical project please visit, http://www.h-gac.com/community/environmental-stewardship/eco-logical/default.aspx.
7. Tiered Documents
In CEQ’s NEPA regulations, “’tiering’ refers to the coverage of general matters in broader environmental impacts statements . . . with subsequent narrower statements or environmental analyses . . . incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared” (40 CFR 1508.28). Related analyses or determinations under other environmental laws, such as Section 106, Section 4(f) or other resource categories, should be conducted as appropriate, depending on the tiering stage.
For transportation projects, a Tier I Environmental Impact Statement (EIS) may evaluate broad issues such as mode (light rail, street car, or bus for transit projects) or a general alignment/corridor. The Tier I EIS may make broad determinations under resource categories regarding areas of impact, and initial consultation may result in general concurrence or mitigation measures, but detailed project-level impacts are evaluated later in the Tier II analysis (or analyses). In cases of large corridors, for example, the Tier I EIS could identify the general alignment of a preferred alternative corridor after considering numerous corridors, and the subsequent Tier II analysis would evaluate in more detail the environmental impacts of the preferred alternative corridor (or segments of the larger corridor that have logical termini). In the Tier II analysis, specific avoidance alternatives within the corridor are evaluated to avoid, minimize, and mitigate for project-level impacts.
Tiering is not a new programmatic concept or practice, but in certain circumstances, tiering could be useful to eliminate repetitive discussions and focus on the issues ripe for analysis at each level of review. A similar process involves a robust planning effort and the linking of the results of that planning with NEPA.