A wide range of Federal environmental laws may apply to highway projects performed by Public-Private Partnerships. A Summary of Environmental Laws Affecting Transportation can be found at http://www.fhwa.dot.gov/environment/env_sum.htm. NEPA is the overarching Federal law that applies to Federal projects. It directs Federal agencies, when approving projects or issuing permits to conduct environmental reviews to consider the potential impacts on the environment by their proposed action. NEPA requires the preparation of an environmental document that assesses the environmental impacts of the proposal. If the impact of the project is "significant," then the Federal agency responsible for the project must prepare an Environmental Impact Statement (EIS). Depending on the type, size and location of the project, an EIS can be quite involved and require consultation with many affected groups. For information on how to participate in the environmental process, see FHWA's website on Public Involvement at http://www.fhwa.dot.gov/environment/pubinv2.htm and FHWA Publication Public Involvement Techniques for Transportation Decisionmaking at http://www.fhwa.dot.gov/reports/pittd/cover.htm.
In addition to NEPA, many other environmental laws may apply. The following are the key environmental laws applying to Federal-aid highway projects:
• Clean Air Act: requires DOT to ensure that Federal funding and approval goes to those transportation activities that are consistent with air quality goals. This requirement is met by a conformity determination demonstrating that the total emissions projected for a long-range transportation plan or transportation improvement program are within the emissions limits ("budgets") established by the air quality plan or State Implementation Plan, and that transportation control measures are implemented in a timely fashion. The Clean Air Act also requires a demonstration that highway projects will not cause new air quality violations in areas that are already out of compliance.
• Clean Water Act: requires a Section 404 permit whenever a project discharges dredged or fill material into certain bodies of water and wetlands. Where applicable, it also may require a National Pollutant Discharge Elimination System (NPDES) permit for any pollutants discharged into navigable waters of the U.S. Permits for stormwater runoff for construction projects of a certain size are also required.
• Endangered Species Act: requires Federal agencies to ensure that their actions will not likely jeopardize the continued existence of any threatened or endangered species and will not adversely modify any critical habitat. The Act also establishes a consultation process with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to coordinate decisions on Federal actions relative to the requirements of the Act.
• Section 4(f) of the DOT Act: prohibits the use of publicly owned land from a park, recreation area, wildlife and waterfowl refuge or significant historic properties by a transportation project unless there is no other feasible and prudent alternative.9
• National Historic Preservation Act: requires consultation with the Advisory Council on Historic Preservation when a project will affect an historic property.
Completing the environmental analysis, assessments, documentation and obtaining the necessary permits and approvals can take time. If a necessary environmental approval is not granted pursuant to one of these laws, then the project will not be able to move forward without some modification of the project. Delays caused by the environmental reviews can be significant, particularly on controversial projects where public opposition is strong. For highway projects requiring EISs, the median time for the NEPA process is over five years.
For the past several years, the FHWA has embarked on an effort to streamline the application of environmental laws to highway projects. Recently, these efforts have been given greater prominence by the President's Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews. These efforts are more specifically described in sections 2.2 and 2.3 of the Annual Report to Congress dated December 2004, which can be found at http://www.fhwa.dot.gov/stewardshipeo/annualreport04.htm.
As part of its environmental streamlining efforts and oversight responsibilities, the FHWA has sought to clarify some of the environmental laws that frequently apply to highway projects and to make them more efficient. We have attempted to eliminate duplication, clarify standards, and more clearly define roles of various public agencies reviewing and approving environmental assessments. For example:
• Integrating the Transportation Planning and NEPA Processes. Federal law requires State and local governments to conduct a transportation planning process to set the stage for future development of transportation projects. Much of the data and decisionmaking by State and local governments overlap with work that will need to be performed during the NEPA process. To take advantage of the work products and planning decisions made during the transportation planning processes, the FHWA has issued guidance on how to integrate planning products and decisions into any NEPA analysis that is subsequently conducted. A copy of this guidance can be found at http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/aa5aec9f63be385c852568cc0055ea 16/9fd918150ac2449685256fb10050726c?OpenDocument.
• Clarifying Responsibility for Determining Project Purpose and Need. Determining the purpose and need for a project is a critical component of the NEPA analyses. The project alternatives to be analyzed in the NEPA process will be based on the purpose and need statement, and the environmental analysis will flow from those. If the purpose and need is not properly presented, then it could result in an environmental analysis that is misdirected and wasteful. Yet because of the various Federal agencies participating in the NEPA process for a highway project, the determination of purpose and need at times has been influenced by goals or perspectives unrelated to transportation. In a letter to DOT Secretary Mineta, the Chairman of the President's Council on Environmental Quality (CEQ) made clear that the DOT should be afforded substantial deference by other agencies in determining the purpose and need for a transportation project. The guidance contained in the Chairman's letter makes it easier to avoid extended disputes over the correct project purpose and need. For a copy of the CEQ letter, see http://environment.fhwa.dot.gov/guidebook/Gconnaughton.htm. For further guidance on purpose and need statements, see http://environment.fhwa.dot.gov/guidebook/Gjoint.htm and http://environment.fhwa.dot.gov/guidebook/vol2/doc7d.pdf.
• Avoiding Unnecessary Delays Under the Endangered Species Act (ESA). The Endangered Species Act (ESA) requires Federal agencies to consult with the FWS or the NMFS to ensure that actions they authorize, fund or carry out will not jeopardize the continued existence of endangered or threatened species and will not adversely modify critical habitat. If a Federal agency determines that a project may affect a listed species, formal consultation is required unless the agency determines and the FWS or NMFS concurs as a result of a biological assessment or through informal consultation activities that the project is not likely to adversely affect such species. The ESA sets forth a specific "consultation" process for the dialogue between the FWS/NMFS and the Federal agency taking the action, including time frames for the steps in the consultation process, which can be quite lengthy. In an effort to clarify the respective responsibilities of the FWS and FHWA in the consultation process and to find ways to more quickly reach resolution of issues, FHWA and FWS issued a joint agency agreement on the consultation process required under the ESA. This joint agreement clarified the respective responsibilities of both FWS and FHWA to meet the time frames for consultation set forth in the ESA regulations. In addition, it established elevation procedures for issues that are not readily resolved within the consultation time frames. A copy of the Joint Agreement can be found at http://www.fhwa.dot.gov/environment/ecosystems/esalegalemail.htm.
• Clarifying the Application of Section 4(f). Section 4(f) of the DOT Act of 1966 prohibits the approval of transportation projects 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 of National, State, or local significance as so determined by such officials unless there is a determination by FHWA that "no feasible and prudent alternative" exists and the project includes "all possible planning to minimize harm." Numerous court cases interpreting Section 4(f) have created confusion as to when it applies and, in some parts of the country, have issued strict interpretations of the law that has limited flexibility in project implementation. This has made Section 4(f) difficult to apply. In March 2005, the FHWA published a revised Section 4(f) policy paper that provides updated and detailed guidance to clarify when and how to apply the provisions of Section 4(f) on FHWA projects that propose to use Section 4(f) land or resources. For a copy of the Section 4(f) Policy Paper, see http://environment.fhwa.dot.gov/projdev/4fpolicy.htm.
While we believe these initiatives and other environmental streamlining activities will help make compliance with environmental laws less complicated and more efficient, we also realize that the environmental review process can be very complex. Therefore, we encourage the private sector to work with the States in navigating the environmental requirements. For more general information on environmental streamlining, see http://environment.fhwa.dot.gov/strmlng/index.asp.
Title VI of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109-59, 119 Stat. 1144, addresses Planning and Project Development including a number of changes aimed at streamlining the environmental review process. Sections 6002, 6003, 6004, 6005, 6007, 6009, and 6010 address the following topics: a new environmental review process, State assumption of categorical exclusions, a pilot delegation of the environmental responsibilities for Recreational Trails and Transportation Enhancement projects, and changes associated with Section 4(f) requirements to address "de minimis" impacts and standards for "prudent and feasible" alternatives.
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9 Section 4(f) of the Department of Transportation Act of 1966 has been codified at 49 U.S.C. 303 and 23 U.S.C. 138.