REEVALUATIONS OF NEPA DOCUMENTS
Requested by:
American Association of State Highway
and Transportation Officials (AASHTO)
Standing Committee on Environment
Prepared by:
ICF Consulting
Fairfax, VA
March 2008
The information contained in this report was prepared as part of NCHRP Project 25-25, Task 28, National
Cooperative Highway Research Program, Transportation Research Board.
Acknowledgements
This study was requested by the American Association of State Highway and Transportation Officials
(AASHTO), and conducted as part of National Cooperative Highway Research Program (NCHRP)
Project 25-25. The NCHRP is supported by annual voluntary contributions from the state Departments of
Transportation. Project 25-25 is intended to fund quick response studies on behalf of the AASHTO
Standing Committee on Environment. The report was prepared by ICF International. The study Principal
Investigators were Matthew Barkley and John Hansel of ICF International. The work was guided by a
task group chaired by Alfredo Acoff (Alabama DOT), Jonathon Cox (Georgia DOT), Keith Hall
(Connecticut DOT), John Mettille (Kentucky DOT), Steve Reed (New Mexico DOT), Andrea Stevenson
(Ohio DOT), Lamar Smith (U.S. DOT), and Danna Powell (NCHRP). The project was managed by
Christopher Hedges, NCHRP Senior Program Officer.
Disclaimer
The opinions and conclusions expressed or implied are those of the research agency that performed the
research and are not necessarily those of the Transportation Research Board or its sponsors. This report
has not been reviewed or accepted by the Transportation Research Board’s Executive Committee or the
Governing Board of the National Research Council.
CONTENTS
EXECUTIVE SUMMARY
1
1
2
INTRODUCTION
1.1
Overview and Purpose
2
1.2
Research Methodology
3
1.3
Report Organization
4
2 REEVALUATION REGULATORY FRAMEWORK AND LEGAL
CONSIDERATIONS
5
2.1
Summary of Reevaluation Regulations, Policy, and Guidance
5
2.2
Reevaluation Case Law
7
3
STATUS OF THE REEVALUATION PROCESS
9
3.1
Summary of State DOT Survey Responses
9
3.2
Best Practices
11
3.3
Challenges and Areas for Improvement
14
4 RECOMMENDED GUIDANCE AND PROCESSES FOR CONDUCTING
REEVALUATIONS
16
4.1
Projects With Categorical Exclusion Designations
16
4.2
Projects With Completed Environmental Assessments
17
4.3
Projects With Completed Environmental Impact Statements
17
5
CONCLUSIONS
20
APPENDIX A: COURT CASE SUMMARIES
21
APPENDIX B: SURVEY QUESTIONS FOR STATE DOTS
35
APPENDIX C: SAMPLE REEVALUATION FORMS
36
APPENDIX D: SAMPLE REEVALUATION OF A FINAL ENVIRONMENTAL
IMPACT STATEMENT
60
REFERENCES
77
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EXECUTIVE SUMMARY
Since the enactment of the National Environmental Policy Act (NEPA), federal agencies have
consistently been encouraged to complete environmental impact analyses as early as possible in their
project planning processes. FHWA has clearly tried to follow this mandate, but because its project
development process can frequently span several years and contain multiple decision points, the initial
NEPA document can become outdated or stale in its ability to support subsequent decisions. For
example, changes can occur over time in the design of the project, the environmental requirements
applicable to the project, or within the environment in which the project will be located. Consequently,
FHWA and the state transportation agencies (hereafter state DOTs) who partner with FHWA in the
preparation of NEPA documents must frequently check to see if an aging NEPA document remains
current in light of a pending project development decisions. FHWA refers to these checks as
reevaluations.
Although FHWA has established a requirement to reevaluate its NEPA documents, it has provided little
guidance to its field offices or the state DOTs on how to satisfy this requirement. Accordingly, questions
have arisen on how well this decentralized approach to reevaluations is working across the states. This
study was designed to review current performance, identify problems as well as best practices, and
provide any process recommendations, if applicable.
The study found that most of the twenty-seven state DOTs that responded to the survey are not
experiencing significant problems in conducting reevaluations. Where problems have existed, several
state DOTs worked closely with their FHWA Division Offices to develop solutions. These solutions have
frequently included agreed upon forms and formats for conducting and documenting reevaluations as well
as the establishment of maximum timeframes, such as one year, after which a new reevaluation would be
necessary. Several examples of these best practices are provided in this study and most are readily
available on state DOT websites. Consequently, any state DOT or FHWA office that continues to
experience reevaluation problems can find a variety of successful approaches. Most importantly, close
coordination and consultation between a state DOT and its FHWA Division Office coupled with staff
training on conducting reevaluations appear to be the key ingredients to effectively streamlining and
completing the reevaluation process.
One very important reason for getting reevaluations right, especially written reevaluations, is that they can
save FHWA and state DOTs time and money, as demonstrated by recent federal court decisions. The
courts continue to view revaluations for environmental impact statements (EIS) as an effective tool for
determining and documenting why an existing NEPA document remains valid and does not need to
undergo potentially costly and time consuming supplementation. The federal courts, however, have also
been clear in reminding federal agencies that reevaluations are not NEPA documents, but rather decision
documents on whether or not an EIS requires supplementation. Consequently, an agency can neither use
a reevaluation in an attempt to remedy any gaps in the impact analysis that should have been addressed in
the original NEPA document, nor offer to do a reevaluation as a defense to postponing a challenge to a
completed NEPA document, such as a final EIS.
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1 INTRODUCTION
1.1
Overview and Purpose
A reevaluation is an analysis of the changes in a project or existing environment at specified times in the
Project Development Process (PDP).1 The PDP includes multiple decision points such as final design,
right-of-way acquisition, and bid letting. Each of these decision points requires the state DOTs and
FHWA to reevaluate the NEPA document, NEPA decision, and potentially any related environmental
studies. Reevaluations need to be performed when and anytime there has been little activity on a project
or prior to requesting FHWA to take an action.2
Reevaluations can serve as an efficient and effective means for evaluating design changes or addressing
circumstances that develop after a NEPA decision is rendered. However, if the requirements and intent of
the reevaluation process are not properly understood and managed, reevaluations also can create
challenges for state DOTs as they strive to deliver projects on budget and on schedule.
In an effort to prevent delays, many state DOTs initiate the NEPA process and corresponding
environmental studies as early as possible during the planning stage of project development. The NEPA
process, environmental studies, and an initial design are often completed long before the project will go to
construction. As time passes, changes in land use, threatened and endangered species, historic properties,
environmental laws and regulations, and other resource areas can occur. The public’s perception of
environmental issues, industry standards, and methods for conducting environmental analyses can also
change. A reevaluation can be an effective means for evaluating such changes and can assist state DOTs
in determining if additional NEPA documentation and environmental studies are required.
Typically, the NEPA process for a transportation project relies on conceptual level design and
engineering data. Once environmental studies are complete and a NEPA decision is rendered, detailed
final design and engineering data are developed. Differences often occur between the conceptual design
evaluated in the environmental studies and NEPA process and the post-NEPA process final design and
engineering phase of a project. A reevaluation provides an effective means for evaluating the design
changes relative to previous environmental analyses conducted pursuant to NEPA.
Aside from design changes, other changes can lead to reevaluations of NEPA documents and supporting
studies. For example, NEPA documents and corresponding environmental studies are required to address
the full length and scope of a proposed action, which often require years to fund and construct.3 During
this time, changes can occur in terms of land use, project design, or even in the funding mechanism itself.
For example, a project may be developed and the initial segment constructed through a traditional funding
mechanism and the standard design-bid-build process. However, tolling and use of a design-build process
may provide a means to accelerate construction of other segments of the project. Use of tolling can result
in the need for additional analyses of impacts associated with environmental justice, light, air quality or
noise depending on the specific project location and means for collecting tolls.
1
Draft: Reevaluation of Environmental Documents: FHWA Office of NEPA Facilitation in conjunction with an
unknown FHWA Division Office. Posted on the RE: NEPA website on August 5, 2002 as a reply to the
“Reevaluation Process 23 CFR 771.129” thread.
2
Lamar Smith’s August 30, 2006 reply to the FONSI Reevaluation thread included under NEPA Process and
Evaluation heading on the RE: NEPA website (http://nepa.fhwa.dot.gov/ReNEPA/ReNepa.nsf/home). Retrieved on
October 26, 2006.
3
23 CFR 771.111(f)(1-3)
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In addition to tolling and other innovative financing options, many state DOTs are using the design-build
method of project delivery to reduce project costs and to complete projects faster. The design-build
project delivery method can result in substantial deviations from the design concepts analyzed in the
NEPA/environmental process. Reevaluations provide a means for addressing these types of changes and
ensuring environmental compliance.
Many factors influence the level of detail and types of analyses required for a reevaluation. Likewise,
different state DOTs and FHWA Divisions employ different policies, procedures, and processes for
completing reevaluations. The purpose of this study is to identify and expand upon state DOT and FHWA
Division “Best Practices,” and recommend guidance to more universally establish and apply more
systematic and standardized reevaluation processes. Standardized processes and guidelines can reduce
uncertainty and inter-agency review times while minimizing disagreements over content.
1.2
Research Methodology
This research was conducted in four steps: a literature review, a review of current case law, an e-mail
survey of state DOTs, and interviews with state DOT and FHWA staff. These research steps were
conducted in sequential order, with overlap between some steps.
1.2.1
Literature Review
We reviewed federal policies, regulations, and available guidance related to NEPA reevaluations and the
reevaluation process. Materials reviewed included:
•
Council on Environmental Quality Executive Office of the President (CEQ) Regulations for
Implementing the Procedural Provisions of the National Environmental Policy Act, 40 CFR
1500-1508
•
CEQ Memorandum, “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations”
(1992)
•
FHWA Environmental Impact and Related Procedures, 23 CFR 771
•
FHWA Technical Advisory T 6640.8A (1987)
•
FHWA Guidance Memo, “Project Development and Documentation Overview” (1992)
•
FHWA Draft Guidance Document, “Reevaluation of Environmental Documents” (2002)
•
SAFETEA-LU Environmental Review Process, Final Guidance, FHWA (2006)
•
FHWA Re: NEPA Website: Questions/Comments and Responses related to NPEA Reevaluations
(2001-2007)
1.2.2
Recent Case Law Review
In conjunction with the literature review described above, we also conducted a review of recent case law
related to reevaluations. We used the Lexis® service offered by LexisNexis to search state and federal
cases decided between January 2000 and October 2007. Using different combinations of specific
reevaluation terms and by varying the search criteria, we identified twenty different cases that were
potentially relevant to reevaluations. We reviewed these twenty cases and identified twelve of them in
which a reevaluation was either a substantive issue or affected the outcome. Appendix A of this study
contains a summary of each of these twelve cases.
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1.2.3
Survey of State DOTs
A survey request was e-mailed to all DOTs in early September 2007 with a due date of two weeks from
receipt. The state DOT contacts with primary NEPA responsibility were identified from a directory on
the website for the AASHTO Center for Environmental Excellence. A follow up e-mail request was sent
to the non-responding states with a due date of October 1, 2007. By the conclusion of the survey period,
responses were received from twenty-seven states. Appendix B of this study contains a list of the survey
questions.
1.2.4
Follow-up Activities with State DOT and FHWA Staff
After reviewing the responses to the survey, telephone interviews were conducted with twelve of the
responding state DOTs. The twelve were selected on the basis of survey responses that contained
information on relevant subjects such as problems being experienced, unique approaches to conducting
reevaluations, or possible best practices.
Following the telephone interviews with state DOTs, environmental staff in six FHWA Division Offices
were interviewed. The six were selected based upon their close involvement with and expertise on
reevaluations, as recommended by the interviewed state DOTs. An additional interview was
subsequently conducted with an FHWA Headquarters expert on reevaluations.
1.3
Report Organization
The remainder of this report is organized in four sections. Sections 2 establishes the reevaluation
regulatory framework and legal considerations; Section 3 describes the current state of the reevaluation
process including challenges and best practices; and Section 4 recommends reevaluation guidance and
processes for conducting reevaluations. Section 5 is a discussion of general conclusions. The appendices
contain summaries of recent federal court cases involving reevaluations, the survey questions, samples of
reevaluation forms and formats used by several state DOTs, and pertinent reference materials on
reevaluations.
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2 REEVALUATION REGULATORY FRAMEWORK AND LEGAL
CONSIDERATIONS
2.1
Summary of Reevaluation Regulations, Policy, and Guidance
The National Environmental Policy Act (NEPA) established the nation’s policy on environmental
protection and created the Council on Environmental Quality (CEQ). The NEPA process is intended to
help federal officials make decisions that are based on an understanding of environmental consequences,
and take actions that protect, restore, and enhance the environment [40 CFR 1500.1(c)]. CEQ issued
“Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act” (40
Code of Federal Regulations [CFR] 1500–1508) pursuant to NEPA. CEQ’s regulations provide the
direction to achieve the purpose of NEPA [40 CFR 1500.1(c)].
2.1.1
CEQ’s NEPA Regulations
From a broad perspective, CEQ’s NEPA-implementing regulations instruct federal agencies on how to
comply with NEPA primarily for those actions that require an environmental impact statement. The
regulations also require federal agencies to adopt their own procedures to supplement the NEPA
regulations, as necessary. At a more detailed level, CEQ’s regulations define timelines, establish content
requirements, and describe specific types of actions and the associated levels of environmental reviews.
In terms of reevaluations, the CEQ regulations do not specifically reference this practice. Rather, CEQ’s
regulations define when an agency shall supplement an Environmental Impact Statement (EIS). The
requirement for supplementing an EIS, as presented in CEQ’s NEPA regulations, establishes a
management need for the concept and practice of NEPA reevaluations and, therefore, this CEQ
prescription provides valuable insight into the purpose behind conducting a reevaluation. Section 1509.9
of CEQ’s regulations discusses draft, final, and supplemental [environment impact] statements. The
following language prescribes when an agency must supplement an EIS:
§1502.9(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact statements if:
(i)
(ii)
The agency makes substantial changes in the proposed action that are relevant to
environmental concerns; or
There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action and its impacts.
Through this language, CEQ established two situations that require a federal agency to add to its
environmental analysis: 1) when substantial changes are made to the proposed action causing new or
different environmental impacts; or 2) when new environmental data or circumstances arise and are
related to impacts associated with the proposed action. Although not explicitly stated in the above CEQ
provision, in order for federal agencies to meet its intent, they must have in place a management process
or tool that periodically reassess the impacts of a proposed action and the environment in which the action
would occur. This management need establishes the basis for the FHWA reevaluation process.
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2.1.2
FHWA Regulations (23 CFR 771)
In response to CEQ’s NEPA regulations, FHWA established its own agency-specific NEPA procedures in
1987. FHWA’s regulations, titled “Environmental Impact and Related Procedures” apply to FHWA and
the Federal Transit Administration (FTA). Unlike CEQ’s regulations, FHWA’s regulations use the term
“reevaluation” and describe reevaluations as follows.
§771.129: Reevaluations
(a) A written evaluation of the draft EIS shall be prepared by the applicant in cooperation with the
Administration if an acceptable final EIS is not submitted to the Administration within 3 years from the
date of the draft EIS circulation. The purpose of this evaluation is to determine whether or not a
supplement to the draft EIS or a new draft EIS is needed.
(b) A written evaluation of the final EIS will be required before further approvals may be granted if major
steps to advance the action (e.g., authority to undertake final design, authority to acquire a significant
portion of the right-of-way, or approval of the plans, specifications and estimates) have not occurred
within three years after the approval of the final EIS, final EIS supplement, or the last major
Administration approval or grant.
(c) After approval of the EIS, FONSI, or CE designation, the applicant shall consult with the
Administration prior to requesting any major approvals or grants to establish whether or not the
approved environmental document or CE designation remains valid for the requested Administration
action. These consultations will be documented when determined necessary by the Administration.
Consistent with CEQ regulations, FHWA’s procedures discuss specific procedures for reevaluating draft
and final EISs. FHWA’s procedures also address when a supplemental EIS is or is not required.
However, Categorical Exclusion (CE) and Finding of No Significant Impact (FONSI) designations apply
to the vast majority of state DOT transportation improvement projects. The procedures for reevaluating
the applicability of CE and FONSI designations are less straightforward lacking specific time frames and
definition. As described in subparagraph (c) above, the applicant (state DOT) shall consult with FHWA
prior to requesting any major approvals to determine if the previously approved environmental document
remains valid. According to the regulations, FHWA must decide when such consultation should be
documented.
In the Federal Register of August 7, 2007 and on page 44039, FHWA and FTA published proposed
changes to their
NEPA procedures. A minor change was proposed to the above section on
reevaluations and this change would reorder the paragraphs so that the current last paragraph (c) would be
moved to the first paragraph of the section. The purpose for this re-ordering is to place a stronger
emphasis on the need to perform timely reevaluations of all NEPA documents and to differentiate when
consultation with FHWA is required from the need for a written reevaluation.
2.1.3
FHWA Technical Advisory T 6640.8A
In October 1987, FHWA published a Technical Advisory (TA) document T 6640.8A. The TA provides
guidance to FHWA personnel and applicants on the preparation and processing of environmental (e.g.
NEPA) and Section 4(f) documents. Although focused on reevaluations for Draft and Final EISs,
FHWA’s TA does provide guidance in terms of reevaluation content which can be applied to a
reevaluation of any type of NEPA document. The TA indicates that a reevaluation should, “focus on the
changes in the project, its surroundings and impacts, and any new issues identified since the draft EIS” [or
other environmental decision such as a CE designation or FONSI determination]. FHWA’s TA also
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suggests that “field reviews, additional studies (as necessary), and coordination (as appropriate) with
other agencies should be undertaken and the results included in the written evaluation.” However, the TA
does not prescribe a specific format for reevaluations and leaves room for interpretation on important
reevaluation issues such as level of detail, agency consultation requirements, and public involvement.
However, this lack of specificity also allows considerable flexibility for the state DOTs to work with
FHWA to satisfy the requirements on a case-by-case basis considering the context of each situation.
2.1.4
FHWA Project Development and Documentation Overview
In 1992, FHWA published a document titled, “Project Development and Documentation Overview”. In
this document, FHWA defined reevaluation as…“an assessment of any changes which may have
occurred in either the project's concept or the affected environment, and a determination of what effects
these changes might have on the validity of the environmental documentation.” Consistent with
§771.129(c), this document also reiterated that reevaluation requirements apply to all levels of NEPA
documentation not just EISs. However, like FHWA’s TA, this document does not provide additional
guidance on how to conduct reevaluations, content requirements, or roles and responsibilities.
The References section at the end of this study contains additional information on the FHWA regulations,
policies, and guidance related to reevaluations.
2.2
Reevaluation Case Law
A summary of each of the twelve most relevant cases is included in Appendix A of this study. Ten of
these cases involved litigation over federal highway projects; one involved a U. S. Forest Service timber
sale; and the other was filed against the U. S. Army Corps of Engineers over a dredging project. The six
cases in which the federal government prevailed are presented first in Appendix A and in chronological
order from the most recent to the oldest. The six cases in which the federal government did not prevail
follow and are presented in a similar chronological sequence.
We noted several common themes from this case law review:
•
Although reevaluations are not a component of the CEQ regulations, the courts continue to view a
reevaluation as a legitimate tool for determining whether or not an existing NEPA document
needs to be supplemented. Consequently, a properly completed reevaluation serves an important
role in an agency’s administrative record by documenting the reconsideration of environmental
impacts and changed circumstances.
•
Unlike an environmental impact statement, an environmental assessment, or a categorical
exclusion designation, a reevaluation is not a NEPA document. Consequently, a reevaluation
cannot be a substitute for a NEPA document and present information and analysis that should
have been in the original or a supplemental NEPA document.
•
For a reevaluation to be viewed as acceptable by a court, it must have been completed in
accordance with the federal agency’s procedures for completing reevaluations.
•
A reevaluation must take a “hard look” at any changed circumstances or new information before
reaching its conclusion.
•
A reevaluation must be completed prior to a project decision being made and not subsequent to
that decision and in anticipation of litigation.
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•
The government cannot successfully postpone a challenge to the adequacy of an existing NEPA
document on the basis that the document will be the subject of a reevaluation because the judicial
review of the reevaluation is limited to the actions taken in reevaluating the existing document.
•
A supplemental EIS is required when new circumstances present a seriously different picture of
the environmental impact of the proposed project from what was previously envisioned.
Plaintiff’s burden is to demonstrate how a revised design would result in substantial changes in
environmental impacts.
•
The FHWA regulations do not require that an EIS be supplemented every three years but that a
reevaluation of the EIS must be conducted every three years.
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3 STATUS OF THE REEVALUATION PROCESS
3.1
Summary of State DOT Survey Responses
As was indicated above in the description of the research methodology, twenty-seven state DOTs
responded to the e-mail survey. Following is a summary of the states’ responses to each survey question.
Do you have a formal process in place for conducting reevaluations of NEPA documents?
Eleven states said they do not have a process in place and rely on the FHWA regulatory provisions.
Sixteen states replied that they do have a process in place. The majority of these sixteen states post their
process on their agency’s websites and as part of their NEPA implementation guidance and training
manuals.
Do you have guidance and/or do you conduct training on reevaluating NEPA documents and the
reevaluation process?
Twenty states do not conduct training on reevaluations and seven said that they do. When training is
provided on conducting reevaluations, this training is normally a small component of a state DOT’s
comprehensive NEPA implementation training.
Who is responsible for identifying the need for a reevaluation?
With the exception of CA, all of the state DOTs responded that any decision reached is done in
consultation with FHWA. CA independently makes this decision based on a delegation from FHWA.
CA senior environmental planners perform this function.
Ten states responded that they rely on district or regional offices to formulate the recommendation to
FHWA, and fifteen states specifically involve environmental staff in a lead role.
What criteria are used to determine whether a reevaluation is needed?
Almost all of the responding states rely solely on the FHWA criteria contained in 23 CFR 777.129.
However, three state DOTs reevaluate after a one year period expires between major project phases, and
one state DOT uses a six month period.
When a reevaluation occurs, who determines the need for any additional environmental studies,
inter-agency coordination and/or public involvement?
Again, with the exception of CA, all of the other states responded that these determinations are made in
consultation with FHWA and with FHWA having the deciding role. CA now independently makes these
determinations based on a delegation from FHWA. CA senior environmental planners perform this
function.
Unlike the decentralized responsibility for determining the need for a reevaluation, these additional
analyses determinations are more frequently centralized at the state DOT’s headquarters office. Also,
although environmental staffs are consulted, they are not as frequently in the lead role. In nine states,
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environmental staffs play a lead role, but in the majority of the state DOTs, project engineers and other
supervisory staff are the key decision makers for such determinations.
What environmental resources or other factors typically require additional studies, coordination,
or public involvement?
The most commonly stated factor was a change in alignment. Regulatory changes were the second most
frequently mentioned factor.
In terms of environmental resources that typically require additional studies, cultural resources were the
most frequently mentioned; they were mentioned by ten states. New endangered species listings were
next with eight states so responding. Wetlands determinations ranked third with four states listing them.
The need to further study these types of site specific resources logically follows from alignment changes.
No state DOTs indicated that completing additional public involvement was a common occurrence in its
reevaluation process. States tend to review on a case by case basis the status of any public concerns as
part of a reevaluation but rarely initiate additional public involvement for NEPA implementation
purposes. Rather, state DOTs inform the public of the results of a reevaluation through any remaining
public involvement processes that they normally conduct as part of right of way acquisition or final
design.
Approximately what percentage of your projects requires reevaluation? Of those projects
reevaluated, approximately what percentages are for projects where the NEPA document being
reevaluated is: (a) a categorical exclusion, (b) an environmental assessment, or (c) an
environmental impact statement?
Four states were not able to provide data. Of the twenty-three state DOTs that did provide some data or
estimates, four indicated that less than one percent of their projects require a reevaluation while another
four states said one hundred percent of their projects do. Another two states were at the ninety-five
percentile. Thirteen of the twenty-three reporting states were below the twenty-five percentile.
For those states with the highest percentages of projects requiring reevaluations, the reason given for
these high numbers during the follow up interviews was the occurrence of substantial project delays due
to lack of funding. Smaller projects can move up and down the priority list from budget year to budget
year until a budget fit is found. Larger more costly projects are broken into logical phases and funded in
stages over many years.
The NEPA document cited most frequently as needing reevaluation was the categorical exclusion. Seven
states so reported. This follow s from the year to year budget juggling that a smaller project may
undergo. Another six states stated that there was no percentage difference between categorical exclusions,
EAs, or EISs. Four states indicated that EISs were their most frequently reevaluated NEPA document.
How is a completed reevaluation documented? What is the typical level or amount of
documentation, i.e., a one-pager, a less than 10 page analysis, or a more lengthy analysis?
The NEPA document that is most likely to be reevaluated with a one pager is a categorical exclusion. As
expected, the number of pages necessary to reevaluate an EA or an EIS can vary considerably based upon
the magnitude of the changes. EA reevaluations were generally noted to be less than ten pages and EIS
reevaluations were over ten pages. Seven State DOTs indicated that they have developed standard forms
or formats for documenting their reevaluations.
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Do you track your revaluations in a management system and, if so, how is this done?
There was almost an even split between the states. Fourteen states tracked reevaluations in a management
system and thirteen did not.
What role do reevaluations play in tracking environmental commitments?
Five states indicated that reevaluations did not play any role in tracking environmental commitments.
The most frequent response was that reevaluations serve as a cross check on the status of commitments
which are primarily tracked in more comprehensive project management databases.
In addition to updating a project’s NEPA compliance status, have you experienced any other
project management or implementation benefits from your agency’s reevaluation process? If so,
please describe them.
Sixteen states responded that they had not experienced any other benefits. Of the states reporting
benefits, these benefits included: keeping the public up to date on the project; keeping the agency up to
date on public opinion; prompting intra-departmental coordination on commitment status; assisting in
permit compliance; identifying inefficiencies in the original NEPA analyses; and allowing mitigation
measures and design features to be more specifically tailored to a better understanding of a project’s
impacts.
Has your agency encountered any problems in conducting reevaluations? If so, please describe
them.
Two thirds of the responding states or eighteen said that they were not encountering any problems. From
those states reporting problems, the cited problems included: inconsistent practices between state-level
district office staff and FHWA personnel; inability to readily reach agreement with FHWA on the need
for a reevaluation and its content; rapidly changing guidance and regulations; determining the optimum
point in the design phase to initiate a reevaluation, e.g., 30% design completion; different requirements
between CEQ and FHWA on when to supplement an EIS; reevaluation review times causing project
delays; project changes being made late in project development or not timely communicating changes to
the environmental review team.
Has your agency been able to develop any practices or procedures that overcome encountered
problems? If so, please describe them in detail so that they may be considered for inclusion as best
practices.
Twelve states did not offer any practices or procedures and these states were generally the ones reporting
no problems in conducting reevaluations. A discussion of the reported best practices follows immediately
below is section 3.2.
3.2
Best Practices
Best practices were identified from a review of the state DOT survey responses, a review of the NEPA
guidance posted on state DOT websites, and interviews with state DOT and FHWA staff. The resulting
groupings of best practices address problems with the timely initiation of reevaluations by state DOT’s,
inconsistent approaches between a state DOT’s regions or districts, project delays due to lengthy review
times, and disagreements between state DOTs and FHWA on the need for and content of written
reevaluations.
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3.2.1 Timeliness
In terms of the timely initiation of reevaluations, several states use computer based scheduling software to
remind project managers when a reevaluation deadline is approaching. Reevaluation completion dates are
also entered and automatically shared with other project management and budgeting systems.
Additionally, to provide as much lead time as possible for completing either a complex reevaluation or a
supplemental NEPA document, a few states have established a one year reevaluation requirement as
opposed to the FHWA’s three year period. (One state DOT employs a six-month standard.) This one
year review is applied to all NEPA documents and not just EISs,
Unlike a calendar date standard, the timely initiation of reevaluations caused by project changes can be
more difficult to address in that project changes do not lend themselves to an automated approach.
Rather, project changes must be communicated as soon as possible by the design and engineering staffs to
the state DOT staff responsible for completing reevaluations. Staff training that emphasizes early
communication is one approach that some states have taken. The “NEPA once and done” mentality is
specifically countered. One interviewed state promotes early intra-office coordination and
communication of project changes by emphasizing the time savings and workload benefits of properly
completed reevaluations. That is, a concise revaluation is a proven tool that can reasonably eliminate the
much larger investment of time and work involved in the alternative approach, i.e., supplementing the
existing NEPA document.
3.2.2 Consistency
The problem of inconsistent preparation of reevaluations between a state DOT’s district offices is being
addressed in a variety of ways. The most common approach is through training and written guidance on
how to document a reevaluation. The former is normally conducted as part of a state DOT’s staff NEPA
training and the latter is posted on NEPA websites. A few of the responding states have gone farther and
developed standard formats and forms for documenting reevaluations. Several examples are contained in
Appendix C of this study. Interviewed state staff consistently cited the development of these types of
reporting formats as their most successful approach in achieving consistent and high quality
reevaluations. An important and additional benefit of achieving consistency in the preparation of
reevaluations is that the subsequent review and comment periods, especially at the FHWA Division level,
can be minimized.
The most standardized reevaluation process that was identified from the responding states is an almost
paperless one that uses standard forms and formats. To the maximum extent possible, all
communications and reevaluation documents are exchanged electronically both between the state DOT’s
offices and with the FHWA Division Office. This paperless approach has been operating successfully
now for several years.
3.2.3 Streamlining
Several approaches were identified that result in either reducing the amount of paperwork required for a
reevaluation or eliminating FHWA’s review of the reevaluation. For example, the exchange and review
of reevaluation paperwork between FHWA and a state DOT has been reduced by regularly including
project reevaluations on the agenda of quarterly or other regularly scheduled meetings between the state
and its FHWA Division Office. The state DOT prepares a list of the projects to be addressed at the
meeting; the project changes are detailed; and the state recommends its position on whether or not a
written reevaluation should be submitted to FHWA or a supplemental NEPA document initiated. For
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those project changes that FHWA concurs do not need a written revaluation, the minutes of the quarterly
meeting reflect this along with the state’s rationale. The minutes are provided to the FHWA Division
Office and serve as the state’s documentation of the completed consultation.
Two different methods have been used to eliminate FHWA review of reevaluations of projects that have
categorical exclusion designations. One is through the preparation of a programmatic categorical
exclusion by the state DOT and FHWA. As long as any project change continues to meet the established
criteria for the programmatic exclusion, the project change need not be reviewed by FHWA. Rather, the
state DOT documents that the programmatic exclusion still applies.
The second method is the development of an inter-agency agreement between the state DOT and the
FHWA which contains specific delegations for reevaluations. These agreements have also been limited
to projects with categorical exclusion designations and allow a state DOT to reevaluate them without
consulting FHWA.
Under both types of delegations, the FHWA Division Office conducts process reviews to determine
whether the delegations are being appropriately implemented by the state DOT. Interviewed Division
Office staff indicated that these process reviews have found satisfactory implementation. Perhaps
because of this satisfactory implementation, SAFETEA-LU in Section 6004 codified a state DOT’s
ability to assume responsibility for categorical exclusions after entering into a memorandum of
understanding with FHWA and with FHWA in a programmatic monitoring role. Consequently, for those
state DOTs that reported that a high percentage of their categorical exclusion projects require
reevaluations, pursuing this new delegation authority could be a time saving benefit to them.
A final streamlining practice is to streamline the content and size of reevaluation documents. Standard
forms can help in this regard. But for valid reasons, these forms work best for the reevaluation of projects
with categorical exclusion designations and EAs. As expected, the state DOTs indicated that the
reevaluation of final EISs result in the most lengthy reevaluations. Additionally, extensive revaluation
documentation may solely by its appearance raise the question of whether this new documentation should
be included in a supplemental NEPA document as opposed to a FHWA reevaluation. One responding
state DOT indicated that it has placed a major effort on reducing the size of its EIS reevaluations and
especially through the use of reader friendly tables and matrices that can more clearly demonstrate the
absence of both new impacts as well as any major increased impacts between the original project and the
reevaluated project. A standard outline is used for the reevaluation and it is designed to accommodate the
addition of future reevaluations, if needed. See Appendix D of this study for an example.
3.2.4 Interagency Disagreements
Although the occurrence of disagreements between a state DOT and its FHWA Division Office over the
need for or the content of reevaluations was not frequently raised in the state DOTs’ survey responses, it
did surface in a few of the phone interviews. The complaints focused on allegations that FHWA either
was consistently asking for more documentation for submitted reevaluations or was being unpredictable
in terms of what documents would suffice.
However, these types of disagreements were not a problem in most responding state DOTs and because
several practices have been developed to avoid them. These practices all evolve around promoting
effective interagency communication and coordination. For example, some state DOTs requested their
FHWA Division Office staff to review and comment on their draft reevaluation guidance and forms
before issuance. In at least one instance, the guidance was jointly issued. Similarly, some joint training
has been held on reevaluations.
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3.3
Challenges and Areas for Improvement
State DOTs identified the lack of funding as the largest cause of delays in moving projects forward to
construction. Consequently, as compared to projects on which project development work is ongoing,
these delayed projects can become subject to more expansive reevaluations when eventually submitted to
FHWA for each major approval. At a minimum, a consultation is required for these non-EIS projects and
occurs between the state DOT and FHWA Division as part of the state DOT’s request for a major
approval. The purpose of the consultation is to establish whether or not the approved environmental
document or categorical exclusion designation remains valid. Documentation of this reevaluation may be
required by FHWA on a case by case basis. It does not follow, however, that when a state DOT is
advised by FHWA that the state need not send in documentation, that the state DOT need not document
its project files in some manner. The court decisions are clear that an administrative record must exist as
to what factors and impacts were reevaluated and include a decision rationale. A resulting challenge for
state DOTs is to ensure that it has adequate, internal, reevaluation documentation for those projects on
which FHWA has advised that a consultation is sufficient. It follows then that more state DOTs should
consider, through the development of forms or formats, standardizing their documentation requirements
for all reevaluations, regardless of FHWA’s consultation provision.
Compared to delayed projects with categorical exclusion designations, the reevaluation of delayed
projects that are the subject of completed final EISs is clearly a much more time consuming and complex
task from an analytical perspective. EIS projects are normally a state DOT’s largest construction projects
and, therefore, can be greatly affected by budget constraints. Consequently, state DOTs frequently
request funds for these projects in logical phases as funding becomes available. At the same time,
because of the larger size of these EIS projects, changes in alignments or design can have much greater
ripple affects in terms of conducting both new impact analysis and comparative impact analysis, i.e.,
comparing the old project’s impacts to either the revised project’s impacts or changes that have occurred
in the affected environment. Additionally, because of their larger study areas, resource changes within
the study area are much more likely over time. Keeping track of these changing components can be a
challenge let alone analyzing their impact implications.
Consequently, state DOTs need to have management and intra-office communication tools in place that
keep track of changing components on a timely basis and alert all appropriate staff of the changes. This is
especially true for project areas experiencing rapid economic and population growth. State DOTs should
not simply fall back on the three year revaluation standard that applies to inactive EIS projects as their
management benchmark. That standard, as a worst case standard, only requires more thorough FHWA
documentation, i.e., a “written” reevaluation, because the probability of project or environmental changes
is much higher after such a long period of project inactivity. The purpose of the revaluation remains the
same, to establish whether the approved EIS remains valid for the current project and project area, but the
requirement dictates a “written” reevaluation.
Accordingly, more frequent reviews of inactive EIS projects should be considered by all state DOTS,
such as the one-year review conducted by a few state DOTs. This one-year review can provide more lead
time in the event the need for either additional field studies or a supplemental EIS is identified.
Additionally, if project development work on the project is expected to remain on hold, the reevaluation
need not be extensive at this point. It can just keep track of changes and postpone further study of those
changes in a manner that better fits the project development schedule.
Just as the courts recognize reevaluations as a legitimate tool in deciding whether or not an existing
NEPA document requires supplementation, they similarly recognize that a reevaluation is not a NEPA
document. A revaluation, no matter how through its analysis, cannot take the place of a supplemental EIS
when one is required. Consequently, state DOTs and FHWA staff can face very difficult calls in
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determining when an extensive reevaluation with a variety of new studies should be converted into a
supplement. This difficulty can be minimized the more lead time that exists in that the option of
supplementing is more doable.
There appear to be at least two governing principles to date. First, FHWA regulations state that if the
reevaluated impacts are less than those previously analyzed, a supplement is not required. Second, the
courts have stated that if the revaluation addresses a significant impact(s) that should have been addressed
in the original NEPA document, then a supplement is required to fill that gap(s).
The results of the telephone interviews in particular showed that a “NEPA once and done mentality” still
exists among some state DOT staff. The e-mail surveys showed that approximately one-half of the
responding state DOT s have neither supplemented the FHWA guidance on reevaluations nor provided
training on completing reevaluations. This is true even though a few of these states indicated that their
FHWA Division offices were either asking for more documentation or raising concerns about inconsistent
implementation between state staff. Given the progress that some state DOTs have made, other states
could easily borrow from these approaches, especially in terms of the available reporting formats.
A final challenge relates to state DOTs allocating the sufficient time and resources necessary to efficiently
conduct reevaluations. For example, twenty of the twenty-seven responding states DOTs indicated that
they had not conducted staff training on conducting reevaluations. Also, although projects with
categorical exclusion designations appear to be the project type most frequently subject to revaluation,
procedures for reducing FHWA’s review and its review time of the more complex categorical exclusions
known as “(d) list categorical exclusions”,4 such as through programmatic categorical exclusions and
interagency agreements, have not been fully taken advantage of by state DOTs.
4
23 CFR 117(d)
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4 RECOMMENDED GUIDANCE AND PROCESSES FOR CONDUCTING
REEVALUATIONS
The following guidance primarily addresses recommended processes and decision criteria or factors to be
applied in the completion of reevaluations. The guidance does not discuss the content of reevaluations in
terms of their scope or identifying the need for new studies because our research did not find any major
misunderstandings or implementation problems with these aspects of reevaluations. This result is not
surprising since changes in project concepts, environmental resource data, and applicable regulations are
not unique to reevaluations, but can and do occur during the initial preparation of a NEPA document and
especially a lengthy environmental impact statement. NEPA practitioners, therefore, have become
accustomed to responding to these changing circumstances at all points in the NEPA process.
4.1
Projects With Categorical Exclusion Designations
State DOTs should consider creating a distinct process for projects with categorical exclusion
designations. This is recommended because this class of projects appears to be subject to the greatest
number of reevaluations; their reevaluations are the least complex; they require the least amount of lead
time; and established and time saving procedures exist that can eliminate FHWA’s review times by
delegating approval authority to state DOTs.
A project with a categorical exclusion designation needs to be reevaluated prior to requesting a major
approval from FHWA to address the changes made to the project or that occur within the project’s
affected environment. These reevaluations should be coordinated and managed around the two most
relevant project events that are within the state DOT’s control, i.e., initiating project changes and
submitting approval requests to FHWA. Consequently, whenever a design or alignment change is made
to a project with an initially completed categorical exclusion, this new project information needs to be
communicated by the design/engineering staff to the environmental staff along with a request to
coordinate the preparation of a reevaluation. A short, standard form should be used to document the
scope and results of the reevaluation. (See Appendix C for examples.) Not only should the project
change be addressed in the reevaluation at this time but also any known changes to the project’s affected
environment.
For projects that are in line to be the subject of a major approval request, the state DOT should establish
with its FHWA Division a cut off date for an acceptable categorical exclusion or its most recent
reevaluation. For example, at the time of submitting the request, the agencies may establish as a standard
policy that the exclusion or its reevaluation may not be more than six to twelve months old. The shorter
time frame would be applicable to project areas or counties experiencing rapid growth and frequent
changes to the affected environment. Whereas the longer period would apply in relatively stable areas or
counties, such as remote rural areas Consequently, as approval requests are scheduled for preparation at
the state DOT, environmental staff would be informed well in advance of the planned submittal date and
would check on the date of the last reevaluation or initial categorical exclusion, as applicable. For
projects that need a current reevaluation but have never been reevaluated because they have not been
changed, the focus of the reevaluation would be any possible changes in the resource status of the affected
environment.
In order to eliminate any FHWA review time currently involved in these categorical exclusion
reevaluations, state DOTs should consider incorporating into their NEPA procedures one or more of the
following streamlining approaches. As some state DOTs have done, a programmatic categorical
exclusion could be prepared with the assistance and concurrence of FHWA. As long as any changes to
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the project or its affected environment stay within the bounds or criteria established for the programmatic
exclusion, the project would retain its exclusion status under the programmatic exclusion. Normally
FHWA Division Offices do not require to be consulted on projects changes under this programmatic
approach, but the state DOT remains responsible for documenting its rationale for the exclusion’s
remaining applicability.
A second approach is for a state DOT to negotiate a memorandum of agreement with FHWA for the
purpose of being delegated the authority for determining and reevaluating, as necessary, its “(d) list”
categorical exclusion designations. Thirdly, state DOTs may want to discuss with FHWA the pros and
cons of entering into a memorandum of understanding (MOU) with FHWA under the authority of Section
6004 of SAFETEA-LU. This is a relatively new authority under which a state DOT can accept the legal
responsibility for categorical exclusion designations. Whether such a MOU would provide net benefits to
a state DOT would depend upon its volume of projects with categorical exclusion designations; how often
they require reevaluation; and FHWA’s remaining role in these projects’ reevaluations.
4.2
Projects With Completed Environmental Assessments
As in the reevaluation of any project, the reevaluation of a project that was the subject of an EA and a
Finding of No Significant Impact (FONSI) must initially focus on any changes that may have occurred to
the project, its affected environment, and the regulations applicable to the project’s development.
Identified changes should then be listed and analyzed in terms of whether or not a significant impact may
now exist. Red flags that the FONSI may no longer be applicable would include the identification of
increased adverse impacts to one or more resources covered in the original EA, especially Section 4(f)
resources, or the identification of an entirely new and major, adverse impact, e.g., a previously adversely
affected species is now listed as endangered or wetlands are now extensively and adversely impacted
when none were previously.
It is recommended that the second focus of an EA reevaluation process address the question of whether or
not the EA needs to be amended, even though a finding of no significant may still be applicable in the
view of the state DOT and FHWA. The purpose of or possible need for an amendment is to inform other
agencies and the public of the changed impacts and provide them the opportunity to review and comment
on these changes as well as the pending FHWA FONSI determination. Red flags or factors that state
DOTs should consider as especially relevant to a decision to amend include the identification of a newly
affected public; a new or lingering controversy; a different mix or picture of the adverse environmental
impacts; or new project mitigation whose effectiveness is unproven
4.3
Projects With Completed Environmental Impact Statements
The amount of time and effort required to complete the reevaluation of a project with a completed EIS
can vary substantially. The determining factor appears to be whether or not, after the completion of the
EIS, the project development process continues to move forward with the ongoing project work and
analyses providing a readily available and current source of project status information that accommodates
the documentation of a concise reevaluation. This is true even in the case where the three-year
requirement is triggered for a written revaluation.
Based on the above factor, a three-year, required written revaluation report on a draft EIS can often be
relatively easy to prepare because the project development process is normally ongoing between the draft
and final EIS stages. Furthermore, any resulting project or impact changes can be identified and analyzed
in the development of the final EIS, which is a full disclosure document.
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Should the results of the revaluation of a draft EIS cause a state DOT to seriously consider the need for a
supplemental draft EIS, the applicable provisions of the CEQ and FHWA regulations that address when a
draft EIS should be supplemented must be initially reviewed. These provisions are contained in the
References section of this study with the CEQ provision on page 73 followed by the FHWA provision on
page 74.
It is also recommended that in deciding whether or not to prepare a supplemental draft EIS, consideration
be given to the guidance used by Environmental Protection Agency (EPA) reviewers when commenting
on and rating other agencies’ draft EISs.
EPA states in its guidance to its reviewers that a draft EIS should be supplemented when it receives
EPA’s lowest numerical rating which is a 3. This rating applies when the reviewed draft EIS “does not
adequately assess the potentially significant environmental impacts of the proposal, or the reviewer has
identified new, reasonably available, alternatives, that are outside of the spectrum of alternatives analyzed
in the draft EIS, which should be analyzed in order to reduce the potentially significant environmental
impacts. The identified additional information, data, analyses, or discussions are of such a magnitude that
they should have full public review at a draft stage. This rating indicates EPA’s belief that the draft EIS
does not meet the purpose of NEPA and/or the Section 309 review, and thus should be formally revised
and made available for public comment in a supplemental or revised draft EIS.” 5
For final EISs, the completion of a required, three-year written revaluation can necessitate the longest
lead time in order to adequately complete any new studies or, more importantly, to supplement the
existing EIS, whenever the reevaluation determines that need. Again, this depends on whether the project
development process has been actively progressing or stalled.
It is recommended that reevaluation processes for final EISs be conducted more frequently than those for
other NEPA documents, since the potential costs, measured in both time and money, of overlooking or
missing a project change or a new impact are much greater. As for all projects, state DOT final EIS
reevaluation processes should include the same early internal communication and coordination systems
for alerting appropriate staff to project changes but should be expanded to include automatic re-look
periods, such as the one year period used by several states.
This one year re-look need not meet the requirements of a full written reevaluation either in terms of its
content or the need for FHWA concurrence. For example, it could initially avoid field studies and start
with an office review of all project changes; recent global regulatory changes that might affect the
adequacy of the existing data or analyses; the past year’s new listings for resources such as cultural
resources, endangered species, and various state resource inventories; the age of any wetland
determinations; and the project’s permitting status. If this office review does not identify any
reevaluation concerns and the project is not predicted to move forward for a major approval or grant
request within the next twelve months, this re-look could conclude with either a decision for no
immediate action or, if applicable, a “to do” list of items to be addressed in the next re-look or
reevaluation. On the other hand, if there are reevaluation concerns or a supplemental NEPA document is
clearly needed, the required additional studies and analysis can be then be scheduled to coincide with the
project’s remaining funding and development schedule. However, as an exception to a limited re-look
approach, if a one year review is being conducted on a final EIS that is also at one of its three year
5
U.S. Environmental Protection Agency’s Environmental Impact Statement Rating System Criteria. Posted on the
following website:EPA Home, Compliance and Enforcement, National Environmental Policy Act (NEPA), EPA
Comments on Environmental Impact Statements (http://www.epa.gov/compliance/nepa/comments/ratings.html).
Retrieved on December 30, 2007.
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anniversary intervals, a written revaluation and not a shortened re-look would be required, per the FHWA
NEPA procedures.
When a reevaluation is conducted, it must be done so within its legitimate bounds. The review of the
court decisions on reevaluations indicates that reevaluations can neither be used to fill gaps in the existing
NEPA document nor can they serve as the supplemental document for new information. A reevaluation
is not a NEPA document but only an agency decision document on whether or not a new or supplemental
NEPA document is needed.
The reevaluation decision for a final EIS in terms of whether a supplemental EIS is needed should
consider the CEQ and FHWA regulatory provisions referenced above. Additionally, it is recommended
that the following three standards be given great weight when making this decision. The first and most
straight forward is the possible selection of a project alternative that was not analyzed in the FEIS. The
second is the identification of a significant impact not previously analyzed in the FEIS, whether a new
impact or an omitted one. Third, just as a revaluation finding of decreased, adverse impacts can be the
basis for not supplementing, a finding of increased adverse impacts can be the basis for supplementing.
This third standard is clearly more subjective than the first two but it is relevant in light of both court
decisions that have concluded that a supplemental EIS is required when new circumstances present a
seriously different picture of the environmental impacts of a proposed project from what were previously
envisioned; and the major emphasis within the CEQ regulations on the need for public involvement and
inter-agency review of potentially significant environmental impacts.
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5 CONCLUSIONS
The courts continue to recognize that when a federal agency timely conducts a reevaluation and in
accordance with its established procedures, a reevaluation is a legitimate process for determining whether
a supplemental NEPA document is required. Accordingly, a reevaluation is a significant time and cost
saving tool when compared to moving directly into the preparation of a supplemental environmental
impact statement or amended environmental assessment.
The courts have also recognized that a revaluation is not a NEPA document. Consequently, an agency
cannot use a reevaluation in an attempt to remedy any gaps in impact analysis that should have been
addressed in the original NEPA document, or offer to do a reevaluation as a defense for postponing a
challenge to the original NEPA document.
Although existing FHWA requirements and guidance on conducting reevaluations are very limited,
approximately two-thirds of the state DOTs that responded to this study’s survey indicated that they were
not experiencing any problems conducting reevaluations. This result appears to occur either because
these states have comparatively smaller reevaluation workloads, or over time have developed, in
consultation with their FHWA Division Offices, effective practices for overcoming any reoccurring
problems. These established practices are available and are worthy of consideration and tailored
implementation by those state DOTs and FHWA Divisions that may currently experience problems with
the volume, timing, or scope of their reevaluations.
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APPENDIX A: COURT CASE SUMMARIES
A summary of each of the twelve most relevant cases that we found is included below. We used the
Lexis® service offered by LexisNexis to search state and federal cases decided between January 2000 and
October 2007. Each case summary focuses on the aspects of the case that relate to NEPA reevaluations,
and the summary does not address in any detail other environmental laws or claims that may also have
been litigated.
Ten of these cases involved litigation over federal highway projects; one involved a U. S. Forest Service
timber sale; and the other was filed against the U. S. Army Corps of Engineers over a dredging project.
The six cases in which the federal government prevailed are presented first and in chronological order
from the most recent to the oldest. The six cases in which the federal government did not prevail follow
and are presented in a similar chronological sequence.
.
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CASES IN WHICH THE FEDERAL GOVERNMENT PREVAILED
William Ware and Carol Caul, Plaintiffs, v. United States Federal Highway Administration, et al.,
Defendants
United States District Court for the Southern District of Texas, Houston Division
2006 U.S. Dist. LEXIS 15285
Decided: March 15, 2006
The plaintiffs filed this suit over a highway construction project located near their home. After the
construction of the IH-610 “Rehabilitation Project” began, the plaintiffs sued state and federal highway
agencies alleging that the revised and higher elevation of reconfigured lanes and connectors would greatly
increase noise levels at nearby homes and parks.
In 1992, FHWA approved the IH-610 project as a Categorical Exclusion (CE) under NEPA. In 2001,
TXDOT issued a Reevaluation for the project and concluded that although the project had changed, a CE
still applied and no additional environmental studies were needed. Both the 1992 CE and the 2001
Reevaluation included a noise-impact study. In 2004, TXDOT submitted another Reevaluation after
notifying FHWA of a miscalculation in the earlier noise impact studies done for the project. The new
study found that while noise levels would be higher than originally projected, they would not cause a
significant environmental impact with adequate mitigation. The plaintiffs challenged this no significant
environmental impact finding and argued that the project should not have been approved as a CE and thus
violates NEPA and the Administrative Procedures Act.
The 2001 Reevaluation compared the current project to the 1992 CE report and found that the project
changes did not result in significant environmental impacts. This Reevaluation included a noise analysis
which concluded that the predicted impacts would require noise abatement measures. TXDOT concluded
from the 2001 Reevaluation that the CE remained valid and FHWA agreed. The 2004 Reevaluation
refers to the 2001 Reevaluation in all areas except for the section on noise. In the 2004 Reevaluation, the
noise impacts were determined to be above the levels predicted in the original CE and 2001 Reevaluation.
TXDOT evaluated noise abatement measures and concluded that a noise-barrier wall remained the only
feasible and reasonable alternative. This 2004 Reevaluation concluded that revisions to the 1992 CE were
not necessary and FHWA agreed.
At issue in this case was whether a CE was the appropriate NEPA documentation. Although the newly
projected increase in noise levels varied from four to nine decibels at fourteen receivers tested in the
project area, the District Court concluded that FHWA’s CE decision is entitled to substantial deference,
and that plaintiffs failed to offer evidence that the increased noise levels constituted a significant
environmental impact that would require different treatment under NEPA. The 2001 and 2004
Reevaluations served an important role in the administrative record of the case by documenting the
reconsideration of environmental impacts in light of changes to the project over approximately 12 years.
The court denied the plaintiffs’ motion for a preliminary injunction.
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Florida Keys Citizens Coalition, Inc.; Sierra Club, Inc.; and Friends of the Everglades, Plaintiffs, v.
United States Army Corps of Engineers; United State Department of Transportation; Federal
Highway Administration; United States Environmental Protection Agency; United States Fish and
Wildlife Service; National Oceanic and Atmospheric Administration, Defendants, and Florida
Department of Transportation, Defendant – Intervenor.
United States District Court for the Southern District of Florida, Miami Division
374 F. Supp. 2d 1116; U.S. Dist. LEXIS 16837; 18 Fla. L. Weekly Fed D 759
Decided: April 8, 2005
In March of 1992, FHWA issued a FEIS for improvements along a 20.6 mile stretch of highway US-1,
running from its southern terminus on Key Largo in Monroe County, Florida to a northern terminus just
south of Florida City in Miami-Dade County. The FEIS preferred alternative consisted of a four-lane
divided roadway with associated improvements. In December of 2003 and over some nine years of a
difficult permitting process, FDOT downsized the project to a two-lane configuration to reduce wetland
impacts but included a northbound shoulder with the capability of serving as an extra lane during
emergencies.
FHWA and FDOT considered the revised, two-lane project as consisting of mainly safety improvements
and prepared a categorical exclusion for these revisions. FHWA and FDOT also completed a
Reevaluation that eliminated the accommodation of growth as one of the project’s purposes and
concluded that a smaller project within the same approved footprint and with less environmental impact
did not require SEIS. Plaintiffs filed for an emergency injunction and argued that the revised project
required a second EIS or at least a supplement to the first.
The District Court agreed with FHWA indicating that FWWA’s actions were consistent with its NEPA
regulations both with respect to the categorical exclusion provision for highway safety improvements and
the provision for reevaluations. Moreover and specific to the Reevaluation, the court noted that other
courts have specifically approved the use of reevaluations and that in this case, FHWA carefully and
adequately considered the Reevaluation, including all new pertinent information and studies regarding the
redesigned project. Although plaintiffs had demonstrated the existence of new information, they had not
met their burden of demonstrating how the new design would result in substantial changes in
environmental impacts. The District Court found FHWA’s position compelling, i.e., simple reductions in
project size do not warrant the time and expenditure necessary to prepare a SEIS.
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West Alabama Quality of Life Coalition, Plaintiff, v. United States Federal Highway
Administration, et al., Defendants
United States District Court for the Southern District of Texas, Houston Division
302 F. Supp. 2d 672; 2004 U.S. Dist. LEXIS 1752
Decided: February 9, 2004
The West Alabama Quality of Life Coalition filed a motion for a preliminary injunction to halt a
construction project on US 59/Spur 527 that was scheduled to begin on February 13, 2004. The plaintiff
contended that FHWA and TXDOT failed to comply with NEPA, the National Historic Preservation Act,
and the Administrative Procedures Act by failing to analyze all impacts of a revised traffic plan and
failing to complete public involvement on a new construction plan. The Defendants contended that they
were in full compliance and submitted a partial administrative record which included the 1985 FEIS, July
1991 EA, 1997 revised EA, 1998 FONSI, 2002 Reevaluation, and January 2004 Supplemental Report.
The Spur 527 project is a component of the “Southwest Freeway Project” to reconstruct US 59. This
reconstruction project was approved in October 1985 based on an EIS completed earlier the same year.
This EIS provided no specific plans regarding the reconstruction of Spur 527 at US 59. In 1991, TXDOT
prepared an EA for the specific plans in this area. The project received considerable comments in
opposition to proposed elevated HOV lanes. As a result, TXDOT prepared a revised EA in September
1997 identifying HOV lanes at the same grade as Spur 527 and requiring reconstruction of this area. The
EA stated the construction would not detour a significant amount of traffic onto neighborhood streets and
provided a letter from the Texas State Historic Preservation Officer that the project would not have an
adverse impact on historic properties in the area. On February 25, 1998, FHWA approved the design with
a finding of no significant impact.
The project was to be completed in three phases. In 2002, TXDOT submitted to FHWA a Reevaluation
of the EA to address further design considerations for Phase 2. FHWA agreed with TXDOT that no
further environmental documentation or public involvement was required due to the design modifications.
In 2004, after further modifications to the traffic control plan, TXDOT prepared a Supplemental Report
concluding that the revised traffic control plan was still consistent with a finding of no significant impact.
FHWA argued that the traffic control plan is part of final design activities and is specifically mitigation
for potential harmful effects. FHWA cited 23 CFR §771.113(a) which states that “final design
activities… shall not proceed until” NEPA is completed. The court agreed that FHWA was not required
to analyze the final traffic control plan in an EA or an EIS, i.e., traffic control plans fall within final
design activities and are not required to be analyzed in an EA or EIS. Therefore, the District Court
concluded that the Agency’s decision cannot be arbitrary, capricious, or an abuse of discretion.
NCHRP Project 08-36, Task 35
24
Highway J Citizens Group, Plaintiff-Appellant, v. United States Department of Transportation;
Federal Highway Administration; Wisconsin Department of Transportation, Defendants-Appellees
United States Court of Appeals for the Seventh Circuit
349 F.3d 938; 2003 U.S. App. LEXIS 22705
Decided: November 5, 2003
After the U.S. District Court for the Eastern District of Wisconsin denied plaintiff’s motion to enjoin
defendants from proceeding with the Ackerville Bridge Project, the Citizens Group appealed and asked
the Circuit Court among other things for a permanent injunction to prevent the opening of the bridge and
require FHWA to complete an EIS for it. The Citizens Group claimed an EIS was required for the Bridge
because the Bridge’s construction could affect groundwater contaminated by a nearby former landfill and
thereby jeopardize uncontaminated private water supply wells.
WDOT and FHWA had prepared a draft EA in 1999 and it did not address the leaching landfill because
groundwater had been identified at depths of 30 feet which was well below the expected excavation for
the bridge pilings. After a resident submitted comments and expressed concern about the groundwater
contamination from the landfill at a public meeting on the draft EA, FHWA responded to these comments
in the final EA and specifically addressed whether this concern warranted the preparation of an EIS.
FHWA concluded an EIS was not necessary based on the fact that the contamination was well below the
excavation limits and the project had no potential to encounter the contaminated groundwater. FHWA
signed the FONSI on April 25, 2000.
Approximately nine months later, in February 2001, WDOT’s design consultant issued a report officially
stating that the pilings would extend below the groundwater level. Over the course of the next year and a
half, WDOT, Wisconsin Department of Natural Resources, Wisconsin Department of Health and Family
Services, and USEPA all provided documented analysis and discussion that the pilings would not affect
the contaminated groundwater in a way that would harm currently uncontaminated private water supply
wells.
In the review of the administrative record, the Circuit Court determined that FHWA fulfilled the
requirement of taking a “hard look” at the environmental consequences and through consultations with
expert agencies demonstrated that the project did not have significant effects that would require an EIS.
The court further pointed out that a WDOT reevaluation memo was timely, occurring both before
construction was allowed to start and some eighteen months before FHWA knew it was being sued. The
court also noted that FHWA regulation 23 CFR §771.129(c) requires that any major changes made after
approval of the FONSI be evaluated to determine if the approved environmental document remains valid.
If not, a supplement is required. In this case, FHWA re-evaluated the effects of the piling depth and
determined that the approved EA/FONSI remained valid.
NCHRP Project 08-36, Task 35
25
William Norton, Plaintiff, v. Federal Highway Administration and New York State Department of
Transportation, Defendants
United States District Court for the Western District of New York
2006 U.S. Dist. LEXIS 17350
Decided: August 8, 2002
The plaintiff contended that FHWA and NYDOT violated NEPA by preparing a Supplement EIS (SEIS)
without first issuing a Notice of Intent (NOI). The affected project was the proposed expansion and
upgrade of U.S. Route 219 between Springville, NY and Salamanca, NY. The plaintiff asked for a
declaration of the violation and an order to require the filing of a NOI and the preparation of SEIS.
FHWA had prepared a DEIS and the Notice of Availability appeared in the Federal Register on June 5,
1998. Mr. Norton filed comments that the DEIS incorrectly discussed the eligibility of the Ira Norton
Farmstead for listing on the National Register of Historic Places. Approximately three years later, in
August 8, 2001, NYDOT notified the plaintiff that technical studies of alternatives to avoid the Ira Norton
Farmstead were still underway.
The District Court cited the FHWA regulations found at 23 CFR 771.129 that requires a reevaluation to
be conducted to determine if a SEIS is required when three years pass after the DEIS is prepared and the
FEIS has not been completed. The District Court determined that the regulations do not require that a
SEIS be filed within three years of the DEIS, but only a written evaluation prepared to determine whether
a SEIS or a new DEIS is required. The defendants were still incorporating the information regarding the
Ira Norton Homestead into the administrative process and had no duty under the regulation to publish a
NOI or prepare a SEIS at the time of the case. The District Court, therefore, dismissed the case stating
that the action was not yet ripe for judicial review.
NCHRP Project 08-36, Task 35
26
Route 9 Opposition Legal Fund, et al., Plaintiffs, v. U.S. Department of Transportation, et al.,
Defendants
United States District Court for the Northern District of West Virginia, Martinsburg Division
213 F. Supp. 2d 637; 2002 U.S. Dist. LEXIS 14261; 33 ELR 20008
Decided: August 2, 2002
In December 1993, FHWA and WVDOT issued a DEIS for the construction of a new 4.6 mile dual lane
section of WV 9, originating at the Charles Town, West Virginia Bypass and terminating at the West
Virginia-Virginia state line. Approximately seven years later, in October 2000, the FEIS was released.
During that period, two Reevaluations were conducted for the DEIS and both concluded that there was no
need to supplement the DEIS.
Plaintiffs challenged both the adequacy of the FEIS and FHWA’s failure to supplement the DEIS. The
District Court dismissed both complaints. Regarding the need for a supplemental DEIS, the Court
indicated that the standard in the Fourth Circuit is that a “supplemental EIS is required only when new
circumstances present a seriously different picture of the environmental impact of the proposed project
from what was previously envisioned”. The court noted that FHWA had completed two Reevaluations of
the DEIS in accordance with its regulations and found that there was no new information requiring a
supplemental. Three of the four pieces of new information alleged by the plaintiffs had been reviewed by
FHWA as part of its Reevaluations and reasonably determined by it to be either inapplicable to the project
or already adequately covered in the DEIS. The fourth piece of alleged new information, a referenced
article, had not been provided by the plaintiff to FHWA and the District Court agreed with FHWA’s
position that FHWA could not do a supplemental EIS based on information not brought to its attention
before its decision.
NCHRP Project 08-36, Task 35
27
CASES IN WHICH THE FEDERAL GOVERNMENT DID NOT PREVAIL
South Carolina Wildlife Federation; South Carolina Coastal Conservation League and Audubon
South Carolina, Plaintiffs, vs. South Carolina Department of Transportation; Tony L. Chapman,
Acting Executive Director, South Carolina Department of Transportation; Federal Highway
Administration; and Robert L. Lee, Division Administrator, Federal Highway Administration,
Defendants.
United States District Court For the District Of South Carolina, Charleston Division
485 F. Supp. 2d 661; 2007 U.S. Dist. LEXIS 30251
Decided : April 16, 2007
The lawsuit arose over the planned construction of the Briggs-DeLaine-Pearson Connector which would
connect the towns of Rimini and Lone Star, South Carolina. The length of the proposed connector was
approximately ten miles with a three mile-long bridge through the Upper Santee Swamp.
The DEIS for the project was issued in October 2001 and the FEIS in December 2002. The ROD
followed in June 2003. The plaintiffs included among its claims that the FEIS was not adequate.
Defendants argued that this claim was premature and not ripe for review because the defendants still had
to conduct a reevaluation of the FEIS.
The District Court did not accept defendants’ position noting that any judicial review after a reevaluation
would be limited to the actions taken in reevaluating the FEIS. The District Court explained that the
FHWA regulations on reevaluations do not require defendants to develop a new EIS but only to consider
the environmental impacts caused by any changes to the project that have occurred since the FEIS was
issued. Because the plaintiffs’ claim addressed the adequacy of the full scope of the completed FEIS, it
was ripe for the court’s review.
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28
Natural Resources Defense Council, Inc.; Raritan Baykeeper, Inc.; Andrew Willner; and
Greenfaith, Plaintiffs v. United States Army Corps of Engineers, New York District, Defendant
U.S. District Court for the Southern District of New York
399 F. Supp. 2d 386; 2005 U.S. Dist. LEXIS 15969
Decided: August 5, 2005
In February 2004, EPA added Newark Bay to the Diamond Alkali Superfund Site and ordered a Remedial
Investigation/Feasibility Study (RI/FS) to determine the nature and extent of contamination in the Bay
and evaluate possible cleanup options. Shortly thereafter, the U.S. Army Corps of Engineers (COE)
proceeded with a project to deepen shipping channels in the New York-New Jersey Harbor through
dredging and blasting the Harbor floor and without supplementing its EIS for this project. The plaintiffs
maintained that the COE did not give adequate consideration to how the dredging would affect and be
coordinated with the RI/FS and that a SEIS was necessary.
The District Court indicated that the plaintiff’s burden is to establish that there is a substantial possibility
that the action may have significant new impacts and not that it clearly will have such impacts. The COE,
on the other hand, must demonstrate that it gave a sufficiently “hard look” at the significance of the new
circumstances created by the RI/FS before it approved dredging without a SEIS. The District Court
employed the following two standards for determining if an agency’s decision not to supplement an EIS
is arbitrary and capricious:
•
•
Did the agency take a hard look at the possible effects of the proposed action?
If the court is satisfied that the agency took a hard look, was its decision based on
a
“searching and careful” inquiry and did it consider all relevant factors and evaluate the
significance or lack of significance of the new information?
The COE defended its decision not to supplement on the basis that EPA had stated during a meeting that
the dredging project would not delay or prevent an effective cleanup. The District Court, however,
concluded that simple, conclusory statements of “no impact” are not enough to fulfill an agency’s duty
under NEPA, even if they come from another agency with expertise.
The COE further maintained that the designation of Newark Bay as a Study Area under CERCLA is a
change in legal status of the Bay, which is not recognized as triggering the need for a SEIS. Since the
legal status of the Bay is a policy determination and not a scientific or empirical one, the COE argued that
its brief dismissal of the issue was sufficient to constitute a hard look. The District Court did not accept
this argument and stated that the presence of sampling activities in the Bay for the RI/FS is a real,
physical change. The COE did not take this change into consideration before awarding the dredging
contract even though there may be significant new environmental consequences, which could be
considered indirect or cumulative effects.
The court’s decision was that the COE failed to take a hard look at the significance of the new
circumstances created by the RI/FS before it approved dredging without a SEIS. The new circumstances
were described as the potential impacts of dredging on the RI/FS and methods of coordination with EPA
that might reduce those impacts, if any. The District Court held that it was arbitrary and capricious for
the COE to decide that it was not required to prepare a SEIS. The District Court did not conclude,
however, that the change required a SEIS but emphasized it is possible that after the COE does take a
hard look, it may be justified in finding that no SEIS is required.
In explaining its decision, the District Court clarified that an agency does not have to supplement an EIS
every time there is new information. Rather, if the new information provides a seriously different picture
NCHRP Project 08-36, Task 35
29
of the environmental landscape, then another hard look is necessary. If the new information is patently
insignificant, an agency can meet its obligations under NEPA with only the most cursory look at the
significance of the new information. If it is simply irrelevant, the agency can give no consideration. In
all cases, the assessment of the significance of new information must be considered prior to the agency’s
decision and not as part of a litigation response.
NCHRP Project 08-36, Task 35
30
Wayne Senville; Donald Horenstein; Vermont Public Interest Research Group, Inc.; Friends of the
Earth, Inc.; Sierra Club, Inc.; and Conservation Law Foundation, Plaintiffs, v. Mary E. Peters in
her official capacity as Administrator of the Federal Highway Administration (FHWA), and
Patricia A. McDonald in her official capacity as Secretary of the Vermont Agency of
Transportation (VTrans), Defendants.
United States District Court for the District of Vermont
327 F. Supp. 2d 335; 2004 U.S. Dist. LEXIS 8312; 58 ERC (BNA) 2129
Decided: May 10, 2004
This case examines Segments A-B of the Chittenden County Circumferential Highway (CCCH) project
located in northwest Vermont, a four-lane limited access highway.
The project was designated as a demonstration project under Section 131(f) of the Surface Transportation
Assistance Act of 1982 which delegated responsibility for environmental documentation to the state of
Vermont. The Vermont Agency of Transportation (VTrans), with assistance from FHWA, prepared a
DEIS that was published in August, 1985, a FEIS was published the following year, and the ROD was
issued on November 5, 1986. In September, 1991, FHWA authorized construction for Segments C-F. In
late 1998, VTrans began a reevaluation of Segments A-B in preparation for construction of those
segments, and in 1999, VTrans concluded that the 1986 FEIS remained adequate and a SEIS was not
required.
With a new authorization of federal funding needed, a federal EIS had to be in place. In 2001, FHWA
determined that they could not use the 1986 FEIS and ROD for future phases of the project, because they
did not approve those documents. FHWA adopted the 1986 FEIS in July 2002 under the provisions of 40
C.F.R. §1506.3. It also decided to reevaluate Segments A-F and issued a reevaluation EA in August 2002
with a final revised reevaluation (FREA) issued May 9, 2003. The FREA concluded that changes to the
project and the environment since the 1986 FEIS did not result in any additional or new significant
environmental impacts. A ROD was issued on August 22, 2003 that adopted the 1986 FEIS.
Plaintiffs’ claims included that the 1986 FEIS was not adequate and that a supplemental EIS was needed.
The District Court agreed that the 1986 FEIS was inadequate; the FEIS did not discuss cumulative
impacts; its examination of secondary impacts was cursory; and it did not provide adequate justification
for use of Section 4(f) properties. The District Court then indicated that the FREA’s analysis of induced
growth was dismissive and its conclusion that relocated growth would have an insignificant impact on
inner cities and outlying towns not supported. A hard look at the impacts of induced growth had not
been undertaken and particularly when the issue was not part of the original EIS which at the time of this
case was over seventeen years old.
The Court also found that FHWA violated NEPA by preparing an EA to determine whether an SEIS was
necessary without analyzing alternatives to the project. The FREA’s alternatives analysis only discussed
the changes to the selected alternative; it dismissed the other alternatives discussed in the 1986 FEIS as
not meeting the purpose and need for the project. The Court noted that the EPA, in urging FHWA to
issue a supplemental EIS, stated that alternative modes of transportation appear to be available that were
not in 1986. This new information was not evaluated by FHWA.
The Court found that FHWA violated NEPA, CEQ, and FHWA regulations in approving Segments A-B
of the CCCH and enjoined defendants from construction until they complied with NEPA.
NCHRP Project 08-36, Task 35
31
The Piedmont Environmental Council and Sierra Club, Plaintiffs v. United States Department
of Transportation, et al., Defendants
United States District Court for the Western District of Virginia, Charlottesville Division
159 F. Supp. 2d 260; 2001 U.S. Dist. LEXIS 12612
Decided: August 21, 2001
The plaintiffs brought nine counts against the defendants alleging various violations of NEPA and
Section 4(f), including reevaluation as a post-hoc rationalization, failure to supplement the
environmental impact statement (EIS) after substantial changes in the project, and deficiencies in the
final environmental assessment (EA) and EIS.
In 1991, the Virginia Department of Transportation (VDOT) submitted a final EA to the FHWA who
issued a FONSI for widening Route 29 around the City of Charlottesville. However, Albemarle
County recommended that a comprehensive study of the corridor be completed before proceeding
with the widening project. A DEIS was approved by FHWA in 1990. In 1993, FHWA approved the
FEIS and issued a ROD. In 1995, a FONSI was issued for changes to the bypass termini after an EA
determined that modifications to the bypass termini did not present significant environmental impacts.
In 1995 and 1996, several changes to the design of the bypass were proposed, and VDOT and FHWA
determined that they needed to reevaluate the previous environmental documents. In 2000, FHWA
signed and approved a Reevaluation that determined that an SEIS was not needed.
The Court initially found that the Reevaluation and revised ROD were not post hoc justifications, but
were a proper means of addressing the significance of changes made to the project. The Reevaluation
(which was begun in 1996 and completed in 2000) assessed various changes to the bypass design that
occurred after the FEIS was filed in 1993 and found that none of the changes met the threshold for
requiring new or supplemental filings under NEPA. The Reevaluation explained the review process
undertaken prior to the final decision and was conducted prior to that decision. Therefore, it was not
a post-hoc rationalization, as the plaintiff argued.
The Court noted that not every new circumstance that arises during the course of a project requires
the completion of a SEIS. A SEIS is only required for significant changes that were not previously
evaluated in the EIS. The new circumstance must present a seriously different picture of the
environmental impact of the proposed project from what was previously envisioned. NEPA also
requires an EA or other environmental study if the significance of a change or new information is
uncertain. In order to make the initial determination about whether a change or new information
meets the threshold of significance or uncertainty, an agency may use non-NEPA documents such as
the Reevaluation.
The Court determined that the bypass’ impact on the South Fork Rivanna Reservoir was the only
issue that neither the FEIS nor the EA considered adequately. Although the Reevaluation discussed
the bypass project’s effects on the Reservoir and the mitigation efforts in place to address those
impacts more fully than did the FEIS and EA, the District Court found that the defendants’ use of the
Reevaluation to address issues that should have been included in its original NEPA documents was an
improper post hoc justification. Therefore, the Court enjoined the defendants from taking further
action on the bypass project until a supplemental EIS is completed.
NCHRP Project 08-36, Task 35
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North Carolina Alliance for Transportation Reform, Inc. and Friends of Forsyth County, Plaintiffs,
v. U.S. Department of Transportation; Federal Highway Administration; North Carolina
Department of Transportation, Defendants
151 F. Supp. 2d 661; 2001 U.S. Dist. LEXIS 11120
United States District Court for the Middle District of North Carolina
Decided: June 4, 2001
Plaintiffs alleged that the construction of the Western Section of the Winston-Salem Northern Beltway in
Winston-Salem, North Carolina violated NEPA because defendants failed to supplement the FEIS after
the May 8, 1996 announcement that Forsyth County’s Transportation Improvement Program (TIP) had
fallen out of conformity with the Clean Air Act (CAA).
On June 24, 1992, NCDOT published a DEIS for the Western Section project. On March 29, 1996,
NCDOT published the FEIS, and only one day later, on May 7, 1996, FHWA issued the ROD. The
following day, FHWA announced that the TIP for the Winston-Salem metropolitan area no longer
conformed to the requirements of the CAA. However, funding for the Western Section was allowed to
continue because the NEPA process had been completed with the issuance of the ROD.
After the lawsuit was filed and in response to it, FHWA decided to reopen the NEPA process to consider
whether new or supplemental analysis and documentation were warranted. Consequently, plaintiffs’
action to enjoin construction of the project became moot. Plaintiffs responded, however, with a request
for an award of attorney’s fees and expenses.
The District Court noted that the Fourth Circuit has developed a two-part test for determining whether an
agency must prepare a supplemental EIS: 1) the courts must determine whether the agency took a hard
look at the new information and 2) if they agency did take a hard look, they must determine whether the
agency’s decision not to prepare a supplemental EIS was arbitrary or capricious.
The Court concluded that defendants had not taken a hard look since defendants offered no explanation
for the failure to supplement the FEIS after the announcement of non-conformity in May 1996. Given the
criticism the analysis received from EPA for using outdated computer modeling, the Court found that the
need for a supplemental analysis should have been readily apparent to FHWA following the nonconformity announcement. The Court, consequently, awarded the plaintiffs their attorney’s fees and
expenses
NCHRP Project 08-36, Task 35
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Idaho Sporting Congress Inc., and The Ecology Center, Plaintiffs, v. United States Forest Service,
Defendant, and Intermountain Forest Industry Association, Boise Cascade Corporation, and
Evergreen Forest Products, Inc. – Intervenors
United States Court of Appeals for the Ninth Circuit
222 F.3d 562; 2000 U.S. App. LEXIS 20690; 51 ERC (BNA) 1728
Decided: June 5, 2000
The Idaho Sporting Congress (ISC) appealed the District Court’s denial of its motion for preliminary
injunction to prevent the U.S. Forest Service (FS) from proceeding with several timber sales and
associated commercial logging in the Payette National Forest. ISC included among its claims that the
EAs and EISs prepared by the FS did not comply with NEPA.
The FS had initially settled with ISC by agreeing to write supplemental information reports (SIRs) that
would examine whether further environmental review and documentation were required. FS completed
the SIRs and concluded that the original EAs and EISs were adequate and that there was no need to revise
its decision.
The District Court had held that the FS is permitted under NEPA to use a process such as a SIR, instead
of a supplemental EA or EIS. The Circuit Court disagreed with this interpretation and found two
problems with the FS’use of a SIR. First, the issue in dispute was not the presence of new information
but the adequacy of the initial EAs and EISs. Because these documents had been found to be inadequate,
a SIR cannot be used to present information and analysis that was required in the original NEPA
documents. Second, if a reevaluation determines that a supplement is required, it has to be done prior to a
decision, not as a justification for the completed decision and certainly not after an agency has proceeded
with its action. In this case, the FS completed the SIRS in response to the litigation and without
reopening either its decision making or its administrative appeal processes.
The Circuit Court noted that because NEPA and the CEQ regulations are silent on the issue of how
agencies are to determine the significance of new information, SIRs and other forms of reevaluations have
been recognized and used by several federal agencies for the purpose of determining whether new
information or changed circumstances require the preparation of a supplemental EA or EIS. Revaluations
are not NEPA documents, and, therefore, they cannot substitute for the information required in one or be
used to correct deficiencies in the original EA or EIS. Once an agency determines that new information is
significant, it must prepare a supplemental EA or EIS.
The Circuit Court remanded the case to the District Court with instructions to grant a preliminary
injunction pending a final determination of the merits of ISC’s claims.
NCHRP Project 08-36, Task 35
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APPENDIX B: SURVEY QUESTIONS FOR STATE DOTS
Below is a list of the survey questions that were sent to all of the State DOT contacts via email.
1. Do you have a formal process in place for conducting reevaluations of NEPA documents? If so,
please describe it or indicate how we can access or obtain it.
2. Do you have guidance and/or do you conduct training on reevaluating NEPA documents and the
reevaluation process? If so, please describe or indicate how we can access or obtain the information.
3. Who is responsible for identifying the need for a reevaluation?
4. What criteria are used to determine whether a reevaluation is needed?
5. When a reevaluation occurs, who determines the need for any additional environmental studies, interagency coordination and/or public involvement?
6. What environmental resources or other factors typically require additional studies, coordination, or
public involvement?
7. Approximately what percentage of your projects requires reevaluation? Of those projects reevaluated,
approximately what percentages are for projects where the NEPA document being reevaluated is: (a) a
categorical exclusion, (b) an environmental assessment, or (c) an environmental impact statement?
8. How is a completed reevaluation documented? What is the typical level or amount of documentation,
i.e., a one-pager, a less than 10 page analysis, or a more lengthy analysis?
9. Do you track your revaluations in a management system and, if so, how is this done?
10. What role do reevaluations play in tracking environmental commitments?
11. In addition to updating a project’s NEPA compliance status, have you experienced any other project
management or implementation benefits from your agency’s reevaluation process? If so, please describe
them.
12. Has your agency encountered any problems in conducting reevaluations? If so, please describe them.
13. Has your agency been able to develop any practices or procedures that overcome encountered
problems? If so, please describe them in detail so that they may be considered for inclusion as best
practices.
NCHRP Project 08-36, Task 35
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APPENDIX C: SAMPLE REEVALUATION FORMS
NCHRP Project 08-36, Task 35
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State of Alaska Department of Transportation & Public Facilities
Statewide Design and Engineering Services
Environmental Re-Evaluation Checklist
NCHRP Project 08-36, Task 35
37
State of Alaska Department of Transportation & Public Facilities
Statewide Design & Engineering Services
ENVIRONMENTAL RE-EVALUATION CHECKLIST
Project Name:
Project Number (State/Federal):
Date:
Document Type and Approval Date:
Re-Evaluation Number:
Date of Last Re-Evaluation:
The purpose of this re-evaluation is to ensure the conclusions of the original environmental document or
subsequent re-evaluation remain valid.
I.
Proposed Action
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
1. Have changes occurred in the project scope since approval of the original
environmental document or subsequent environmental re-evaluation?
2. Has there been a change in the project design parameters since the original
environmental document or subsequent environmental document was approved?
3. Describe changes:
II.
Purpose and Need
4. Has there been a change in the project purpose and need from that described in the
approved environmental document or subsequent environmental document?
5. Describe changes.
III.
Environmental Consequences
Identify (yes or no) if there have been any changes in project impacts from those
identified in the original environmental document or subsequent re-evaluations. For
each “yes,” describe the magnitude of the change and potential for significant impact.
1. Has there been a change in the affected environment within or adjacent to the
project area that could affect any of the impact categories (i.e. new legislation,
transportation infrastructure, or protected resources)?
2. Describe changes.
A. Right-of-Way Impacts
1. Have the right-of-way requirements changed?
2. Have the project’s effects on minorities or disadvantaged persons or those
disproportionately affected changed? (E.O. 12898)
3. Describe changes.
Environmental Re-Evaluation Checklist
1
Checklist Revised 10/15/04
Project Name:
Date:
B. Social Impacts
1. Would there be any changes in the neighborhoods or community cohesion for the
various social groups as a result of the proposed action?
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
2. Are there any changes in travel patterns and accessibility (such as vehicular,
commuter, bicycle, or pedestrian)?
3. Are there any changes to the impacts on school districts, recreation areas, churches,
businesses, police and fire protection, etc.? Include the direct impacts and the
indirect impacts that may result from the displacement of households and
businesses.
4. Are there any changes to the effects of the project on the elderly, handicapped,
nondrivers, transit-dependent, minority and ethnic groups, or the economically
disadvantaged?
5. Describe changes.
C. Economic Impacts
1. Are there any changes in the economic impacts of the action on the regional and/or
local economy, such as the effects of the project on development, tax revenues and
public expenditures, employment opportunities, accessibility, and retail sales?
2. Are there any changes in the potential impacts of the proposed action on established
businesses or business districts, or changes in any opportunities to minimize or
reduce such impacts by the public and/or private sectors?
3. Describe changes.
D. Local Land Use and Transportation Plan
1. Have there been changes in the local land use or transportation plan?
2. If yes, is the project consistent with the changes to the local transportation land use
plan?
3. Would project changes induce adverse secondary and cumulative effects?
4. Describe changes.
E. Cultural Resources Impacts
1. Are there changes in the project’s effect on cultural resources?
2. Has there been a change in the status of National Register-listed eligible, or
potentially eligible, sites in the project area?
3. Describe changes.
Environmental Re-Evaluation Checklist
2
Checklist Revised 10/15/04
Project Name:
Date:
F. Wetlands Impacts
(If yes, resource coordination required)
1. Are there changes in project scope or design that affect the wetland impacts?
2.
3.
4.
5.
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
Acres (original/proposed):
Fill quantities (original/proposed:
Dredge quantities (original/proposed):
Describe any changes from the original environmental document and subsequent
environmental re-evaluations.
G. Fish and Wildlife Impacts
1. Are there changes in the effects on fish and wildlife resources?
2. Do project changes require consultation with NMFS per Essential Fish Habitat
(EFH) regulations?
3. Has there been a change in the effects on wildlife resources?
4. Does the project affect bald eagles or golden eagles?
5. Describe changes.
H. Threatened and Endangered Species (T&E) Impacts
1. Has there been a change in status of listed T&E species directly or indirectly
affected by the project?
2. Describe changes.
I. Water Body Involvement
1. Have there been any changes in the project’s effects on water bodies? If yes,
complete 2-4 and describe in 5.
2.
3.
4.
5.
Does the project affect a navigable water body (as listed by USCG)?
Does the project affect navigable waters of the U.S. (as defined by the Corps)?
Does the project affect a Catalogued Anadromous Fish Stream (41.14.870)?
Describe changes.
J. Alaska Coastal Management Program (ACMP)
1. Are there changes that affect the standards of the ACMP?
2. Are there changes to a local coastal management district that affect the consistency
finding?
3. If yes to #2, is the project consistent with local coastal management policies?
4. Describe changes.
Environmental Re-Evaluation Checklist
3
Checklist Revised 10/15/04
Project Name:
Date:
K. Hazardous Waste
1. Have there been any changes in the status of known or potentially contaminated
sites along the corridor?
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
2. If buildings or residences are relocated, have they been evaluated for hazardous
waste, such as asbestos?
3. Describe changes.
L. Air Quality Conformity
1. Does the project as proposed affect a nonattainment area, which will require a
revised conformity determination?
2. Describe changes.
M. Floodplains Impacts
1. Have there been changes in the project effects on a regulatory floodway?
2. Does the project remain consistent with local flood protection standards and E.O.
11988?
3. Have there been changes in the status of local flood hazard ordinances?
4. Describe changes.
N. Noise Impacts
1. Has there been a change in noise sensitive receivers/land uses adjacent to the
proposed project?
2.
3.
4.
5.
6.
7.
Has there been a substantial change in vertical or horizontal alignment?
Has the number of through lanes or the project itself created a noise impact?
Has a noise analysis demonstrated potential noise impacts?
Are there feasible and reasonable measures that can reduce impacts?
Do changes in the project require a local noise permit?
Describe changes.
O. Water Quality Impacts
1. Does the project now involve a public or private drinking water source?
2. Would project changes affect the potential discharge of storm water into Waters of
the U.S.?
3. Does the project affect a designated impaired water body? (If yes, complete “a”.)
Environmental Re-Evaluation Checklist
4
Checklist Revised 10/15/04
Project Name:
Date:
O. Water Quality Impacts
a. List names and locations.
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
4. Will the project now involve a municipal separate storm sewer system (MS4)
NPDES permit, or will runoff be mixed with discharges from an NPDES permitted
industrial facility?
5. Describe changes.
P. Permits and Authorizations
1. Are there any changes in the status of the following permits and authorizations?
a. Corps, Section 404/10
b. Coast Guard, Section 9
c. Department of Natural Resources (DNR), Title 41
d. Flood Hazard
e. ADEC 401
f.
ADEC Storm Water Plan
g. DNR, ACMP
h. Other. If yes, list.
2. Describe changes.
IV.
Construction Impacts
Have the following potential construction effects changed:
1. Construction timing commitments?
2.
3.
4.
5.
6.
7.
8.
Temporary degradation of water quality?
Temporary stream diversion?
Temporary degradation of air quality?
Temporary delays and detours of traffic?
Temporary impacts on businesses?
Other construction impacts, including noise?
Describe changes.
Environmental Re-Evaluation Checklist
5
Checklist Revised 10/15/04
Project Name:
V.
Date:
Section 4(f)/6(f)
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
N/A
YES
NO
1. Has there been a change in status of Section 4(f) properties affected by the proposed
action?
2. Would the project “use” property from Section 4(f) properties?
3. Has there been a change in status in Section 6(f) properties affected by the proposed
action?
4. Is the use of 6(f) property a conversion of use per Section 6(f) of the LWCFA?
If yes to any of the above, attach appropriate Section 4(f) and Section 6(f)
documentation.
VI.
Comments and Coordination Conducted for the Re-Evaluation
1. Has public/agency coordination occurred since the environmental document was
approved or since the last re-evaluation?
2. Describe comments and coordination efforts taken for this project since approval of
the environmental document or re-evaluation. Discuss pertinent issues raised by the
public and government agencies. Attach applicable correspondence and responses.
VII.
Changes in Environmental Commitments or Mitigation Measures
1. Have there been any changes in the environmental commitments or mitigation?
2. Describe changes.
VIII. Environmental Re-Evaluation
1. The conclusions and commitments of the original environmental document approval
or subsequent re-evaluation remain valid. If no, go to #2.
2. The changes in the project scope, environmental consequences, or public
controversy require a new, supplemental environmental document or EIS. No. 2
requires prior consultation with the FHWA area liaison and environmental
specialist.
Environmental Re-Evaluation Checklist
6
Checklist Revised 10/15/04
Project Name:
Date:
Prepared by: _______________________________________________
Environmental Analyst or Team Leader
Date:
Approved by: ______________________________________________
Regional Environmental Coordinator
Approved by: ______________________________________________
FHWA Area Liaison
Date:
Date:
Copy: Design Manager
Environmental Re-Evaluation Checklist
7
Checklist Revised 10/15/04
State of California NEPA/CEQA Re-Validation Form
NCHRP Project 08-36, Task 35
45
NEPA/CEQA RE-VALIDATION FORM
DIST./CO./RTE.
Enter District, County & Route (State projects) or the County & Route (Local projects) here.
PM/PM
Enter the beginning and ending postmiles here (State projects).
E.A. or Fed-Aid Project No.
Enter the Expenditure Authorization (State projects) or Federal Aid Project # (Local projects) here.
Other Project No. (specify)
Enter any other project number here, and specify the type.
PROJECT TITLE
Enter project title here.
ENVIRONMENTAL
APPROVAL TYPE
Enter type of original environmental document/CE Determination here.
DATE APPROVED
Enter date that environmental document/CE Determination was originally approved here.
REASON FOR
CONSULTATION
(23 CFR 771.129)
DESCRIPTION OF
CHANGED CONDITIONS
Check reason for consultation:
Project proceeding to next major federal approval
Change in scope, setting, effects, mitigation measures, requirements
3-year timeline (EIS only)
Briefly describe the changed conditions or new information on page 2. Append continuation
sheet(s) as necessary. Include a revised Environmental Commitments Record (ECR) when
applicable.
NEPA CONCLUSION - VALIDITY
Based on an examination of the changed conditions and supporting information: [Check ONE of the two statements below,
regarding the validity of the original document/determination (23 CFR 771.129). If document is no longer valid, indicate whether
additional public review is warranted and whether the type of environmental document will be elevated.]
_____ The original environmental document or CE remains valid. No further documentation will be prepared.
_____ The original document or CE is no longer valid; further documentation has been
and
is included on the continuation sheets
or
or will be
prepared
will be attached.
_____ (Yes/No) Additional public review is warranted (23 CFR 771.111(h)(3))
_____ (Yes/No) Supplemental environmental document is needed.
_____ (Yes/No) New environmental document is needed. (If “Yes,” specify type: ________________)
CONCURRENCE WITH NEPA CONCLUSION
I concur with the NEPA conclusion above.
__________________________________
Signature: Environmental Branch Chief
_________
Date
______________________________ __________
Signature: Project Manager/DLAE
Date
CEQA CONCLUSION : (Only mandated for projects on the State Highway System.)
Based on an examination of the changed conditions and supporting information, the following conclusion has been reached
regarding appropriate CEQA documentation: (Check ONE of the four statements below, indicating whether any additional
documentation will be prepared, and if so, what kind. If additional documentation is prepared, attach a copy of this signed form and
any continuation sheets.)
_____
Original document remains valid. No further documentation is necessary.
_____
Only minor technical changes or additions to the previous document are necessary. An addendum has been
prepared and is
included on the continuation sheets or
will be attached. It need
or will be
not be circulated for public review. (CEQA Guidelines, §15164)
_____
Changes are substantial, but only minor additions or changes are necessary to make the previous document
adequate. A Supplemental environmental document will be prepared, and it will be circulated for public review.
(CEQA Guidelines, §15163)
_____
Changes are substantial, and major revisions to the current document are necessary. A Subsequent
environmental document will be prepared, and it will be circulated for public review. (CEQA Guidelines, §15162)
(Specify type of subsequent document, e.g., Subsequent FEIR:)
________________________________________________
CONCURRENCE WITH CEQA CONCLUSION
I concur with the CEQA conclusion above.
__________________________________ _________
Signature: Environmental Branch Chief
Date
Page 1 of ____
__________________________________ __________
Signature: Project Manager
Date
Revised 06/13/07
NEPA/CEQA RE-VALIDATION FORM
CONTINUATION SHEET(S)
Address only substantial changes or substantial new information since approval of the original document
and only those areas that are applicable. Use the list below as section headings as they apply to the
project change(s). Use as much or as little space as needed to adequately address the project
change(s) and the associated impacts, minimization, avoidance and/or mitigation measures, if any.
Changes in project design, e.g., substantial scope change; a new alternative; change in project
alignment.
Changes in environmental setting, e.g., new development affecting traffic or air quality;
Changes in environmental circumstances, e.g., a new law or regulation; change in the status of a
listed species.
Changes to environmental impacts of the project, e.g., a new type of impact, or a change in the
magnitude of an existing impact.
Changes to avoidance, minimization, and/or mitigation measures since the environmental
document was approved.
Changes to environmental commitments since the environmental document was approved, e.g.,
the addition of new conditions in permits or approvals. When this applies, append a revised
Environmental Commitments Record (ECR) as one of the Continuation Sheets.
Page 2 of ____
Revised 06/13/07
New Jersey Department of Transportation
Environmental Reevaluation
NCHRP Project 08-36, Task 35
48
NEW JERSEY DEPARTMENT OF TRANSPORTATION
ENVIRONMENTAL REEVALUATION
Route & Sec.:
Fed. Project.
No.:
Local Rd.
Name:
NJDOT Job
No.:
Municipality:
County:
Environmental Document Type &
Approval Date:
Section
4(f):
NJDOT Project
Manager:
Date of
Previous
Reevaluation:
Type of
Authorization
Requested:
A. Changes to the project since approval of the environmental document:
Has there been a change in:
1. Design / Scope
No Yes Has there been a change in:
No Yes
2. Right-of-Way
a. Project Limits
3. Public Opinion
b. Roadway Work
4. Regulations, Rules, Laws
c. Structure Work
5. Land Use
d. Pavement Width
6. Section 4(f)
e. Alignment
7. Other (Permits, Section 106,
etc.)
f. Drainage Type
g. Access
h. Other Project Features
Describe any items checked •YES• above and comment on current public reaction.
March 21, 2008
C:\DOCUMENTS AND SETTINGS\15744.ICF-HQ\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK189\NJENVIROMENTAL REEVALUATION FORM 6-16-05.DOC
B. Environmental Documentation: (Indicate response with a yes, no or
N/A)
1. NEPA document still valid without additional documentation.
2. NEPA document still valid, supplemental documentation completed.
3. New NEPA document required.
4. Project subject to Army Corps of Engineers Nationwide Permit # 23.
FHWA concurrence with this reevaluation required.
5. Project complies with E.O. 11988 Floodplain. (For construction only)
6. Project complies with E.O. 11990 Wetlands. (For construction only)
Comments:
C. FHWA Consultation: Consultation required if any items in Table A are marked
YES unless project still meets a Certified CED definition. Use in
determining need for FHWA concurrence of Environmental
Reevaluation
FHWA person consulted:
D. FHWA Concurrence of Environmental Reevaluation is
required because
Date
(Yes No)
Items 2, 3, or 4 in Part B were checked YES
Consultation in Part C requires it
On the basis of this reevaluation, there are no significant changes in the proposed
project’s scope, right of way, affected environment or anticipated impacts since
approval of the environmental document.
March 21, 2008
C:\DOCUMENTS AND SETTINGS\15744.ICF-HQ\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK189\NJENVIROMENTAL REEVALUATION FORM 6-16-05.DOC
E. Submitted
for
Approval:
Project Manager, Division of Project Management
Date
Environmental Team Leader,
Bureau of Environmental Project Support
Date
F. Approved
by:
G. Concurrence:
Not required
for certified
CED’s
Manager, Bureau of Environmental Project Support
Date
(FOR) - Division Administrator, Federal Highway
Administration
Date
March 21, 2008
C:\DOCUMENTS AND SETTINGS\15744.ICF-HQ\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK189\NJENVIROMENTAL REEVALUATION FORM 6-16-05.DOC
Washington State Department of Transportation/Federal Highway
Administration Environmental Reevaluation/Consultation Form
NCHRP Project 08-36, Task 35
52
Environmental Reevaluation/Consultation Form
23 CFR §771.129
Washington State Department of Transportation/Federal Highway Administration
REGION/MODE
SR
PROJECT PROGRAM#
FEDERAL AID #
PROJECT#
PROJECT TITLE, ENVIRONMENTAL DOCUMENT TYPE & DATE APPROVED:
REASON FOR CONSULTATION:
DESCRIPTION OF CHANGED CONDITIONS:
HAVE ANY NEW OR REVISED LAWS OR REGULATIONS BEEN ISSUED SINCE APPROVAL OF THE LAST ENVIRONMENTAL DOCUMENT THAT AFFECTS THIS
PROJECTS? YES ( ) NO ( ) (If yes explain, use additional sheets if necessary)
WILL THE CHANGED CONDITIONS AFFECT THE FOLLOWING DIFFERENTLY THAT DESCRIBED IN THE ORIGINAL ENVIRONMENTAL DOCUMENT. (If yes, attach a
detailed summary addressing the impacts and mitigation)
YES
NO
YES
NO
1)
THREATENED or ENDANGERED SPECIES
( )
( )
5) HAZARDOUS WASTE SITES
( )
( )
2)
PRIME and UNIIQUE FARMLAND
( )
( )
6) HISTORIC or ARCHAEOLOGICAL SITES
( )
( )
3)
WETLANDS
( )
( )
7) 4 (f) LANDS
( )
( )
4)
FLOODPLAINS
( )
( )
8) 6 (f) LANDS
( )
( )
WILL THESE CHANGES RESULT IN ANY CONTROVERSY? YES ( ) NO ( ) (If yes explain)
Environmental Procedures Manual M 31-11.01
April 2007
Exhibit 411-8, Page 1 of 2
WILL THESE CHANGES CAUSE ADVERSE IMPACTS IN THE FOLLOWING AREAS:
(If yes address comments below)
YES
NO
YES
NO
1)
AIR QUALITY
( )
( )
7)
WATER QUALITY
( )
( )
2)
NOISE
( )
( )
8)
VISUAL QUALITY
( )
( )
3)
LAND USE
( )
( )
9)
NATURAL RESOURCES and ENERGY
( )
( )
4)
TRAFFIC or TRANSPORTATION
( )
10) PUBLIC SERVICES and UTILITIES
( )
( )
5)
DISPLACEMENT
( )
( )
11) VEGETATION and WILDLIFE
( )
( )
( )
( )
12) RECREATION
( )
( )
13) SOCIAL IMPACTS
( )
( )
( )
(business or residence)
6)
ECONOMIC GROWTH and DEVELOPMENT
COMMENTS:
CONCLUSIONS and/ or RECOMMENDATIONS:
I concur with the conclusions and recommendations above
Region / Mode Official
FHWA Official
Date
Date
Environmental Procedures Manual M 31-11.01
April 2007
Exhibit 411-8, Page 2 of 2
Florida Department of Transportation Project Reevaluation
NCHRP Project 08-36, Task 35
55
SAMPLE
Florida Department of Transportation
PROJECT REEVALUATION
I. GENERAL INFORMATION (originally approved document)
a. Reevaluation Phase :
b. Document Type and Date of Approval :
c. Project Numbers : _________________________________ _______________
ETDM
Federal Aid
Financial Project ID
d. Project Local Name, Location and Limits :
e. Segments of Highway Being Advanced :
f. Name of Analyst(s) :
II. CONCLUSION AND RECOMMENDATION
The above environmental document has been reevaluated as required by 23 CFR 771
or the Project Development and Environment Manual of FDOT, and it was determined that
no substantial changes have occurred in the social, economic, or environmental effects of
the proposed action that would significantly impact the quality of the human environment.
Therefore, the original Administration Action remains valid.
It is recommended that the project identified herein be advanced to the next phase of
project development.
REVIEWER SIGNATURE BLOCK
District Environmental Management Office Engineer
___ / ___ / ___
Date
On (date) consultation between (FHWA or lead agency representative’s name and the
District representative’s name) took place. This resulted in a determination that no major
changes have taken place on this project since the last major approval and that the project
may move forward. Note: This is a sample text and is to be used only to document
consultation results when the written reevaluation has not been requested by the
appropriate lead agency. If a formal submittal is requested, use the CONCURRENCE
BLOCK shown below.
III. FHWA (or lead federal agency) CONCURRENCE BLOCK (if required)
Federal Highway Administration, Division Administrator
___ / ___ / ___
Date
FIGURE 13.3 Suggested Project Reevaluation Format
01-31-07
PART 1, CHAPTER 13
13-10
IV. CHANGES IN IMPACT STATUS OR DOCUMENT COMPLIANCE
YES / NO
COMMENTS
A. NATURAL ENVIRONMENT
1. Air Quality
2. Coastal and Marine
3. Contamination Sites
4. Farmlands
5. Floodplains
6. Infrastructure
7. Navigation
8. Special Designations
9. Water Quality/Quantity
10. Wetlands
11. Wildlife and Habitat
[
[
[
[
[
[
[
[
[
[
[
]
]
]
]
]
]
]
]
]
]
]
[
[
[
[
[
[
[
[
[
[
[
]
]
]
]
]
]
]
]
]
]
]
B. CULTURAL IMPACTS
1. Historic/Archaeological
2. Recreation Areas
3. Section 4(f) Potential
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[
[
[
[
[
[
[
[
[
[
[
[
C. COMMUNITY IMPACTS
1.
2.
3.
4.
5.
6.
Aesthetics
Economics
Land Use
Mobility
Relocation
Social
]
]
]
]
]
]
]
]
]
]
]
]
D. OTHER IMPACTS
1. Noise
2. Construction
[ ]
[ ]
[ ]
[ ]
FIGURE 13.3 Suggested Project Reevaluation Format (continued)
01-31-07
PART 1, CHAPTER 13
13-11
V. EVALUATION OF MAJOR DESIGN CHANGES AND REVISED DESIGN
CRITERIA (e.g., Typical Section Changes, Alignment Shifts, Right of Way Changes, Bridge
to Box Culvert, Drainage Requirements, revised design standards).
VI. MITIGATION STATUS AND COMMITMENT COMPLIANCE
VII. PERMITS STATUS
FIGURE 13.3 Suggested Project Reevaluation Format (concluded)
01-31-07
PART 1, CHAPTER 13
13-12
Exhibit 20-D Status of Environmental Certification
STATUS OF ENVIRONMENTAL CERTIFICATION
Financial Project ID
Proposal/Contract ID
Federal Aid No.
Project Description
This project is a Categorical Exclusion under 23 C.F.R. 771.117:
This project is a Type 1 Categorical Exclusion under (23 CFR
771.117(c)) effective November 27, 1987 as determined on
_____________, and the determination remains valid.
This project is a Programmatic Categorical Exclusion per FHWA, FTA,
and FDOT Agency Operating Agreement executed on January 15,
, and the determination
2003 as determined on
remains valid.
The environmental document for this project was a (check one):
A Type 2 Categorical Exclusion under 23 C.F.R. 771.117(d) approved
on
,
A Finding of No Significant Impact under 23 C.F.R. 771.121 approved
on
, or
A Final Environmental Impact Statement under 23 C.F.R. 771.125
approved on
.
A reevaluation in accordance with 23 C.F.R. 771.129 was (check one):
______
Approved on _____________________
______
Not required.
Signature:
Date:
Environmental Administrator
Exhibit 20-D from Plans Preparation Manual, Volume I, Chapter 20, Plans Processing
and Revisions
FIGURE 13.4 Status of Environmental Certification
01-31-07
PART 1, CHAPTER 13
13-13
APPENDIX D: SAMPLE REEVALUATION OF A FINAL ENVIRONMENTAL
IMPACT STATEMENT
NCHRP Project 08-36, Task 35
60
U. S. DEPARTMENT
OF TRANSPORTATION
Federal Highway
Administration
228 Walnut Street, Room 508
Pennsylvania Division
Harrisburg, PA 17101-1720
January 20, 2006
In reply refer to:
HEV-PA.1
Bucks County, Pennsylvania and
Burlington County, New Jersey
Pennsylvania Turnpike/Interstate 95
Interchange Project
NEPA Reevaluation
Mr. M. G. Patel, P.E.
Chief Engineer for Highway Administration
Pennsylvania Department of Transportation
Harrisburg, Pennsylvania
Dear Mr. Patel:
The FHWA has reviewed the written reevaluation of the final
Environmental Impact Statement prepared for the referenced
project. This reevaluation (enclosed) was written consistent
with FHWA regulation 23 CFR 771.129(c). The reevaluation is a
good example of a concise NEPA document and may be considered a
best practice. Upon review and consideration of the documentation
included within and referenced, the FHWA finds that a
supplemental EIS is not warranted to address any modifications in
impacts due to final design or regulatory changes. Please
proceed with final design and right-of-way.
Sincerely yours,
/s/ David W. Cough
James A. Cheatham
Division Administrator
Enclosures
cc:
Al Jansen, P.E., Pennsylvania Turnpike Commission
approved FEIS
Re-eval No.1 1-1...
Figure 1 - FEIS
Elements.pdf
Figure 2A - Design
Sec..pdf
PTC-I95 Interchange
NEPA Reevaluation lt
ec:
Brian Hare, P.E., PennDOT, BOD
Jeff Davis, P.E., PTC
S:\FY2006\Jan\PTC-I95 NEPA Reeval.dss.doc
Figure 2B - Design
Sec..pdf
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
Final Environmental Impact Statement Re-evaluation No. 1
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
January 12, 2006
1.0
INTRODUCTION
The Federal Highway Administration (FHWA) approved the Final Environmental Impact
Statement (FEIS) for this project on June 9, 2003. The FHWA signed the Record of Decision
(ROD) for the project on December 31, 2003. The ROD identified Project Alternative 1 as the
Selected Alternative for the Pennsylvania Turnpike (I-276)/ Interstate 95 (I-95) Interchange
Project. Project Alternative 1 consists of the combination of Modified Plaza West, Single Loop A
Interchange, and Delaware River Bridge South alternatives. Project Alternative 1 was identified
as the Recommended Preferred Alternative in the Draft Environmental Impact Statement /Draft
Section 4(f) Evaluation (DEIS) and as the Preferred Alternative in the Final Environmental
Impact Statement /Final Section 4(f) Evaluation (FEIS).
This environmental re-evaluation summary identifies the design changes and associated
environmental impacts between what was approved in the FEIS and plans presented for the
individual design sections of the project. This FEIS Re-evaluation No.1 has been prepared in
advance of the scheduled preliminary right-of-way acquisitions for the project. It is anticipated
that an additional re-evaluation will occur in approximately six months to address any
environmental impact changes associated with the Design Field View (DFV) Submissions for
specific project design sections and for general utility relocations.
2.0
FINAL DESIGN OF PROJECT ALTERNATIVE 1 (SELECTED ALTERNATIVE)
During the FEIS phase of the project, the study area was divided into three separate project
elements: Toll Plaza, Interchange, and Bridge (see attached Figure 1). The Toll Plaza Element
would entail the construction of a new barrier toll plaza to serve as the eastern terminus of the PA
Turnpike toll collection system. The Interchange Element would contain a direct connection
between I-276 and I-95. The Bridge Element would involve the construction of a new Delaware
River Turnpike Bridge to accommodate predicted future traffic volumes. The division points
between the project elements were chosen so that elements would be independent but compatible
with one another in the development of conceptual engineering design. The FEIS identified
Project Alternative 1 as the Preferred Alternative. The Project Alternative 1 consisted of the
combination of Modified Plaza West, Single Loop A Interchange, and Delaware River Bridge
South alternatives.
Due to the large scale of the project, and for the purposes of design, the original project elements
used in the FEIS phase were further broken down into nine design sections (see attached Figures
Page 1
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
2A and 2B). The development of the nine design sections generally followed logical termini or
specific activities (i.e. overhead structures, widening, toll plazas, etc.). The project has been
divided into the following nine design sections:
•
Design of West Turnpike Widening Section, I-95-A
Section I-95-A includes reconstruction and widening of approximately 1.6 miles of the
Turnpike to six lanes from west of Street Road (PA 132) and Old Lincoln Highway to
just east of the Neshaminy Service Plazas. This design section contract also includes
widening and necessary reconstruction of the Turnpike bridges over the Norfolk
Southern Railroad, Street Road (PA 132), and Old Lincoln Highway. Lengthening and
reconstruction of the Interchange 351 ramp structures and adjustment of ramps over the
Turnpike is included.
•
Section I-95-B
Section I-95-B includes construction of a new mainline toll plaza, including tapered
roadway approaches, toll plaza modifications at Interchange 359, and improvements to
the PTC Trevose Maintenance Facility. The length of work for this section is
approximately 1.1 miles.
•
Design of Central Turnpike Widening Section, I-95-C
Section I-95-C includes reconstruction and widening of approximately 1.8 miles of the
Turnpike to six lanes from east of Galloway Road to near the west abutment of the bridge
over Neshaminy Creek. There are no major structures in this design section.
•
Design of Interchange Section, I-95-D
This design section includes reconstruction and widening of approximately 2.0 miles of
the Turnpike from just west of the Neshaminy Creek Bridge to just west of the BristolOxford Valley Road overpass, and reconstruction and widening of approximately 1.5
miles of existing I-95 from just north of the interchange ramp termini southward to a
point just north of the Route 413 Interchange ramps. The contract also includes all
interchange ramps associated with the Selected Alternative (Single Loop A).
•
Section I-95-E
This design section involves reconstruction and widening of approximately 1.2 miles of
the Turnpike to six through lanes plus auxiliary lanes from west of Oxford Valley Road
to the Delaware River Bridge. The contract includes reconstruction/widening of four
Turnpike structures, over Mill Creek, Interchange 358 ramps, Green Lane, and the Bristol
Industrial Terminal Railway. The contract also includes minor relocation of the
Interchange 358 ramps from the Turnpike to US Route 13, plus modification of the
Interchange 358 toll plaza and the approaches to the toll plaza modifications at
Interchange 359 (plaza design by the Section I-95-B designer).
Page 2
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
•
Design of I-95 South Widening Section, I-95-F
This design section consists of reconstruction and widening of approximately 1.2 miles of
I-95 to six through lanes plus auxiliary lanes from Neshaminy Creek north to the I-276/I95 Interchange. This section also involves modifications of the ramps for the existing I95/Route 413 Interchange. It also includes the design of a Park and Ride facility located
along Route 13 (SEPTA site) and a Park and Pool (non-transit Park & Ride) lot located
northeast of the I-95/I-276 Interchange.
•
Design of Overpass Structures, I-95-S
The specific structures over the PA Turnpike that are associated with this design section
include: Richlieu Road, Galloway Road, Hulmeville Road (PA 513), Bensalem
Boulevard, and Bristol-Oxford Valley Road. The design section also includes the Ford
Road structure over I-95.
•
Contract I-95-ITS
This contract includes the development of preliminary and final designs for Intelligent
Transportation Systems (ITS), roadway signs, and necessary roadway lighting for the I276/I-95 Interchange Project.
•
Delaware River Bridge
The execution of the design contract for the Delaware River Bridge will occur in 2012 or
later. The length of work for this section is approximately 0.7 miles along the PA
Turnpike and 1.2 miles along the NJ Turnpike Extension.
As these design sections proceed through preliminary design independently, it is anticipated that
re-evaluations will occur periodically based on the advancement of the individual design sections
(i.e. after the DFVs). Unless otherwise noted, this documentation of National Environmental
Policy Act (NEPA) re-evaluation will primarily address the design changes and associated
environmental impacts that have resulted from the preliminary design of sections I-95-S and I95-D.
2.1
Programming Status
2.1.1 Long Range Plan
The I-276/I-95 Interchange Project has been a part of the Delaware Valley
Regional Planning Commission’s (DVRPC) Long Range Plan throughout the
project’s environmental study and design stages.
The cost of designing and constructing the entire project, including the (Stage 2)
Delaware River Bridge, is currently estimated at $868.3 million. This cost is
included in the Draft Financial Plan for the project. The Draft Financial Plan also
shows the final construction contract for the Delaware River Bridge as advancing
Page 3
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
to construction in 2018. Assuming a two-year contract duration, the entire
project is projected to be complete in 2020.
2.1.2 Transportation Improvement Program (TIP)
Design, right-of-way, and partial construction of the project are included on the
current FY 2005-2008 DVRPC TIP as program item #13347, with total 4 year
funding of $269,614,000. Preparation of an updated TIP is currently underway
by DVRPC, utilizing projected annual funding needs for the project during future
fiscal years 2007-2010. The project is also included on the current Pennsylvania
Department of Transportation (PennDOT) Twelve Year Funding Program.
3.0
ENVIRONMENTAL UPDATE
Initial changes to the FEIS environmental impacts were a result of project activities since the
release of the ROD, such as the Jurisdictional Determination of wetlands and Waters of the U.S.,
the completion of Phase II archaeology studies, and various study area land use changes. These
changes were first documented at the time of the project’s Mitigation Report for the Selected
Alternative (January 2005). Table 1 compares the impacts previously presented in the FEIS to
those presented at the time of the mitigation report that were adjusted based on activities that
occurred since the release of the ROD. Resource categories where a change occurred included
wetlands, 100-year floodplains, perennial and intermittent streams, potential sensitive waste
sites, and archaeological resources. Changes in impacts are discussed in more detail in the
corresponding narrative sections that follow.
This FEIS re-evaluation (No.1) also addresses design changes that have resulted in minor
modifications to environmental impacts since the FEIS. Table 1 also identifies the change in
impacts as a result of the preliminary design associated with sections I-95-S and I-95-D.
Resource categories in which a change occurred resulting from preliminary design included:
commercial and residential displacements, and utility relocations. Impact differences between the
FEIS and preliminary design are discussed in more detail in the corresponding narrative sections
that follow. Narrative will not be provided regarding resources for which no change in impacts
is identified.
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Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
Table 1 – Summary and Comparison of Environmental Impacts
Impacts
FEIS
June 2003
Impacts
Mitigation Rpt
Jan. 2005
Impacts
Re-Eval. No. 1
Dec. 2005
Change in
Impacts
Wetlands (ac)
2.22
2.05
2.05
- 0.17
100 Year Floodplain (ac)
5.31
3.46
3.46
- 1.85
Perennial Stream Impacts (ft)
4115
5137
5137
+ 1022
Intermittent Stream Impacts (ft)
4924
17239
17239
+ 12315
14
14
14
No change
Forestland (ac)
25.92
25.92
25.92
No change
Rangeland (ac)
5.88
5.88
5.88
No change
Farmland (ac)
0
0
0
No change
Federal Threatened and Endangered
Species
1
1
1
No change
State Threatened and Endangered Species
11
11
11
No change
Environmental Issues
NATURAL ENVIRONMENT
Surface Water (crossings)
SOCIAL ENVIRONMENT AND COMMUNITY
Commercial Displacements
12
12
8
-4
Residential Property Displacements
12
12
13
+1
Institutional Property Displacements
2
2
2
No change
Public Facilities and Services
0
0
0
No change
Major Utility Relocations (PECO
Substations)
1
1
0
-1
Potential Sensitive Waste Sites
27
26
26
-1
54190
54190
54190
No change
29
6.9 to 8.6
29
6.9 to 8.6
29
6.9 to 8.6
No change
Potential Archaeological Resources Sites
4
0
0
-4
Eligible Historic Architectural Resources
0
0
0
No change
Section 4(f) Impacts to Individual Parks
and Historic Resources (parks/historic)
1/1
1/1
1/1
No change
Area of Section 4(f) Resource Impacts (ac)
0.174
0.174
0.174
No change
Noise:
Length of Proposed Noise Walls (ft)
Air Quality:
Sensitive Receptors
1 hr CO2 concentration range (ppm)
CULTURAL RESOURCES
Page 5
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
3.1
January 12, 2006
Natural Environment
3.1.1
Wetland Impacts
There have been no additional wetlands impacted by the preliminary design plans of
sections I-95-S and I-95-D. Wetland impacts were recalculated based on the results
of the Jurisdictional Determination (JD) conducted for the project. The U.S. Army
Corps of Engineers provided the final JD approval letter for the project study area on
June 7, 2005. Overall, the area of wetlands impacted by the Selected Alternative has
been reduced when compared to the impacts presented in the FEIS phase. The
reduction in impacts is a result of the U.S. Army Corps of Engineers (USACOE)
determination that some wetland areas identified in the FEIS were non-jurisdictional
and not regulated by the USACOE. Recalculated wetland impacts were presented in
the project’s Mitigation Report for the Selected Alternative (2005). A conceptual
wetland mitigation plan is currently being developed to address USACOE and
Pennsylvania Department of Environmental Protection (PADEP) compensatory
mitigation requirements. The proposed compensatory mitigation involves the
restoration of disturbed wetlands located on a PTC owned parcel within the project
study area. The proposed mitigation site will be evaluated under a separate NEPA
document.
3.1.2
100-Year Floodplain Impacts
There have been no additional floodplains impacted by the preliminary design plans
of sections I-95-S and I-95-D. However, floodplain impacts have been reduced when
compared to the impacts presented in the FEIS phase. This reduction is a result of recalculation of floodplain limits based on updated Federal Emergency Management
Agency Flood Insurance Rate Maps for Bucks County, PA (revised September 2003).
Recalculated floodplain impacts were presented in the project’s Mitigation Report for
the Selected Alternative (2005).
3.1.3
Perennial Stream Impacts
There have been no additional perennial streams impacted by the preliminary design
plans of sections I-95-S and I-95-D. However, perennial stream impacts have been
revised based on the results of the Jurisdictional Determination. Overall, the area of
perennial streams impacted by the Selected Alternative has increased when compared
to the impacts presented in the FEIS. The increase in impacts is related to additional
areas determined to be jurisdictional Waters of the U.S. and/or reclassification of
streams previously identified as intermittent in the FEIS. The current impacts
represent a net increase of 312 m (1022 ft) of perennial stream impact when
compared to the FEIS phase. Recalculated perennial stream impacts were presented in
the project’s Mitigation Report for the Selected Alternative (2005).
Page 6
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
3.1.4
January 12, 2006
Intermittent Stream Impacts
There have been no additional intermittent streams impacted by the preliminary
design plans of sections I-95-S and I-95-D. However, intermittent stream impacts
have been revised based on the results of the Jurisdictional Determination. Overall,
the area of intermittent streams impacted by the Selected Alternative has increased
when compared to the impacts presented in the FEIS. The increase in impacts is
related to additional areas determined to be jurisdictional Waters of the U.S. (i.e. for
the JD, the study area was re-delineated to include areas that would be considered
jurisdictional under the U.S. Army Corps of Engineers Philadelphia District’s
technical support document Clean Water Act Jurisdiction Over Streams and Ditches.
The application of this document resulted in the classification of numerous roadside
ditches in the study area as Waters of the U.S., and therefore, increased intermittent
stream impacts). The current impacts represent a net increase of 3,753 m (12,315 ft)
of intermittent stream impact when compared to the FEIS phase. Recalculated
intermittent stream impacts were presented in the project’s Mitigation Report for the
Selected Alternative (2005).
3.1.5
Threatened and Endangered (T&E) Species
Updated T&E information has been requested from the natural resource agencies in
letters dated June 23, 2005. To date, the project team has received response letters
from the Pennsylvania Game Commission (PGC) and the U.S. Fish and Wildlife
Service (USFWS). The PGC and the USFWS did not present any additional concerns
regarding the potential presence of T&E species and/or habitat from those concerns
previously expressed in the FEIS. Response letters from the Pennsylvania Department
of Conservation and Natural Resources (DCNR) and the Pennsylvania Fish and Boat
Commission (PFBC) are pending, however, it is not anticipated that the status of the
T&E species will change from those previously identified during the preparation of
the FEIS.
3.2
Social Environment and Community
3.2.1
Commercial Displacements
Re-alignment of the proposed interchange ramps (Ramp E) in Section I-95-D has
eliminated the need for a full right-of-way acquisition of the strip mall along Durham
Road, Bristol Township, as was anticipated in the FEIS. This reduced the overall
number of commercial displacements from twelve (12) to eight (8). The four
businesses that utilize the strip mall included La Casa Mia Family Restaurant, Take
Out Cold Beer and Pizza, Brenda’s Hair Shack, and C&C Berk Insurance.
Page 7
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
3.2.2
January 12, 2006
Residential Displacements
Design requirements associated with the New Falls Road Bridge over the PA
Turnpike in Section I-95-D determined that the existing intersection of Nebraska
Street and New Falls Road would be impacted by bridge construction. It was not
anticipated in the FEIS that the Nebraska Street and New Falls Road intersection
would be impacted. Based on the evaluation of Nebraska Street land use, which
includes a mix of residential and light industry uses, it was determined that the access
between New Falls Road and Nebraska Street should be maintained as to not divert
truck and/or equipment traffic through the residential neighborhood of Newportville.
Nebraska Street will need to be realigned to the southwest of the existing intersection
with New Falls Road, thereby requiring the acquisition of additional right-of-way.
The additional right-of-way acquisition would be a full parcel acquisition and
residential displacement for parcel #05-016-081. This increases the overall number of
residential displacements from twelve (12) to thirteen (13).
3.2.3
Major Utility Relocations
Design refinement of the interchange ramps in Section I-95-D determined that the
existing PECO substation along Durham Road would no longer be impacted by ramp
(Ramp E) construction. This decreases the overall number of major utility relocations
from one (1) to zero (0).
3.2.4
Potential Sensitive Waste Sites
Impacts to potential sensitive waste sites were re-evaluated based on land use changes
in the study area since the ROD. It was determined that two sites previously identified
in the FEIS phase of the project had undergone development changes. Those sites
were the former Youth Development Center (YDC) property located at the
intersection of I-276 and Richlieu Road, and the strip mall located at the intersection
of Bath Road and PA 413. The YDC property has been developed into a residential
community, and remediation for leaking underground storage tanks was completed on
the property. The aforementioned strip mall property was developed into a Wawa
convenience store/gas station. Because the Wawa site contains underground storage
tanks, the property has remained listed as a potential sensitive waste site. Therefore
impacts to potential sensitive waste sites have been reduced by one (1) (YDC
property) from 27 to 26. The re-evaluated potential sensitive waste impacts were
presented in the project’s Mitigation Report for the Selected Alternative (2005).
Page 8
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
3.2.5
January 12, 2006
Noise
There are no changes to noise impacts and noise abatement at this stage of final
design.
Noise studies in the FEIS phase were conducted using STAMINA 2.0/OPTIMA
models. Detailed noise analysis in final design will use the latest FHWA and
PennDOT guidelines and modeling techniques.
3.3
Cultural Resources
3.3.1
Archaeological Resources
During the FEIS evaluation phase, it was determined that four of the eight
archaeological resource sites identified within the Selected Alternative’s Area of
Potential Effect (APE) would be potentially impacted by the Selected Alternative.
Since the completion of the FEIS and ROD, and in compliance with the
Programmatic Agreement executed for the project, Phase II investigations were
completed at the seven archaeological sites in Pennsylvania and one site in New
Jersey. Based on the results of the Phase II investigations, it has been recommended
that three of the sites, the Moose Lodge Site (36Bu345), Mill Creek Site (36Bu347),
and the Black Ditch Park Site (36Bu348), all of which are in Pennsylvania, would be
eligible for listing in the National Register of Historic Places.
With the Phase II investigations allowing for a more accurate delineation of the
archaeological resource site boundaries, it has been determined that the Selected
Alternative will not impact the three sites eligible for listing in the National Register
of Historic Places. Therefore, impacts to archaeological resources have been reduced
from four (4) to zero (0).
Final concurrence with the Phase II Archaeological Investigation Reports by the
Pennsylvania and New Jersey State Historic Preservation Offices is pending.
4.0
OTHER
4.1
Traffic and Transportation
4.1.1
Other Programmed Projects
Additional planned projects that have the potential to affect study area roadways:
• Street Road E-ZPass Ramps Project - The Street Road (PA 132) E-ZPass ramps
will provide an eastbound off ramp and eastbound on-ramp to the PA Turnpike from
Street Road east of the US1 Interchange. Vehicles will enter/exit the Turnpike via the
Page 9
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
Neshaminy Service Plaza ramps. The ramps are PTC funded, with Bensalem
Township assuming the responsibility for traffic studies, design, permitting, right-ofway, utilities and construction activities. Design is underway and construction could
begin as early as late 2006. These planned improvements may affect design of the
proposed widening and reconstruction of the Turnpike under Design Section I-95-A.
• Galloway Road Improvements – Hulmeville Road (PA 513) to Bridgewater
Road. Provide a new 3-lane roadway from the intersection of Galloway Road &
Hulmeville Road to the intersection of Bridgewater Road & Byberry Road. Also,
provide improvements to the existing traffic signals at each end of the project.
Construction is due to occur in 2006. The planned improvements may affect local
traffic associated with the Galloway Road overpass of the Turnpike in Design
Section I-95-S.
4.2
Land Use and Development
4.2.1
Development
New developments in the study area include:
• Realen Homes residential development (Belmont Ridge) located on the former
Youth Development Center (YDC) property located at the intersection of I-276 and
Richlieu Road.
• Strip mall located at the intersection of Bath Road and PA 413 was developed into
a Wawa convenience store/gas station.
Since the ROD, final design activities have not advanced such to determine whether
there will be any substantive changes to Land Use and Development impacts.
5.0
CONCLUSION
Based on the information presented in this FEIS Re-evaluation No. 1, it has been determined that
the preliminary design associated with sections I-95-S and I-95-D to date does not result in any
significant additional adverse impacts when compared with the information presented in the
FEIS for the Selected Alternative. Minor design changes have occurred, and have been evaluated
as discussed previously. The preliminary design for sections I-95-S and I-95-D resulted in a
decrease in commercial displacements (-4) and utility relocations (-1), and an increase in
residential displacements (+1).
Additional changes to the FEIS environmental impacts (non-design related) were a result of
project activities since the release of the ROD, such as the Jurisdictional Determination of
wetlands and Waters of the U.S., the completion of Phase II archaeology studies, and various
study area land use changes. These changes were first documented in the project’s Mitigation
Report for the Selected Alternative (January 2005). Overall, the recalculation of impacts
Page 10
Pennsylvania Turnpike/Interstate 95 Interchange Project
Bucks County, Pennsylvania & Burlington County, New Jersey
Final Environmental Impact Statement Re-evaluation No. 1
January 12, 2006
presented at the time of the mitigation report showed a decrease in wetlands (-0.17 ac.),
floodplains (-1.85 ac.), and potential archeological resources (-4) and an increase in impacts to
perennial (+1022 ft.) and intermittent streams (+12315 ft.).
Because the scope of the project and the magnitude of the impacts have not changed with respect
to the preliminary design of the Selected Alternative, a supplemental EIS and/or additional
general public involvement activities are not warranted. However, the environmental impact
changes discussed herein have been communicated to the public officials and project Design
Advisory Committee (DAC), with whom the project team meets on a regular basis. As all
sections of the project proceed through final design, right-of-way, utility and construction,
additional reevaluations will be undertaken. The need for additional written reevaluation will be
determined as appropriate. This documentation of NEPA re-evaluation is being undertaken
consistent with 23 CFR 771.129(c).
Page 11
REFERENCES
Regulations and guidance reviewed include:
• 23 CFR 771
• 40 CFR 1500-1508
• CEQ Memorandum: Forty Most Asked Questions Concerning CEQ’s NEPA Regulations (1992)
http://ceq.eh.doe.gov/nepa/regs/40/40P1.HTM
•
FHWA Technical Advisory T 6640.8A (1987)
http://environment.fhwa.dot.gov/projdev/impTA6640.asp
•
FHWA Guidance Memo: “Project Development and Documentation Overview” (1992)
http://environment.fhwa.dot.gov/projdev/tdmpdo.asp
•
SAFETEA-LU Environmental Review Process Final Guidance, FHWA (2006)
http://www.fhwa.dot.gov/hep/section6002/index.htm
A. 23 CFR 771.129: Re-evaluations
(a) A written evaluation of the draft EIS shall be prepared by the
applicant in cooperation with the Administration if an acceptable final
EIS is not submitted to the Administration within 3 years from the date
of the draft EIS circulation. The purpose of this evaluation is to
determine whether or not a supplement to the draft EIS or a new draft
EIS is needed.
(b) A written evaluation of the final EIS will be required before
further approvals may be granted if major steps to advance the action
(e.g., authority to undertake final design, authority to acquire a
significant portion of the right-of-way, or approval of the plans,
specifications and estimates) have not occurred within three years after
the approval of the final EIS, final EIS supplement, or the last major
Administration approval or grant.
(c) After approval of the EIS, FONSI, or CE designation, the
applicant shall consult with the Administration prior to requesting any
major approvals or grants to establish whether or not the approved
environmental document or CE designation remains valid for the requested
Administration action. These consultations will be documented when
determined necessary by the Administration.
B. 40 CFR 1502.9 Draft, final and supplemental statements
Except for proposals for legislation as provided in Sec. 1506.8
environmental impact statements shall be prepared in two stages and may
be supplemented.
(a) Draft environmental impact statements shall be prepared in
accordance with the scope decided upon in the scoping process. The lead
agency shall work with the cooperating agencies and shall obtain
NCHRP Project 08-36, Task 35
77
comments as required in part 1503 of this chapter. The draft statement
must fulfill and satisfy to the fullest extent possible the requirements
established for final statements
[[Page 876]]
in section 102(2) (C) of the Act. If a draft statement is so inadequate
as to preclude meaningful analysis, the agency shall prepare and
circulate a revised draft of the appropriate portion. The agency shall
make every effort to disclose and discuss at appropriate points in the
draft statement all major points of view on the environmental impacts of
the alternatives including the proposed action.
(b) Final environmental impact statements shall respond to comments
as required in part 1503 of this chapter. The agency shall discuss at
appropriate points in the final statement any responsible opposing view
which was not adequately discussed in the draft statement and shall
indicate the agency's response to the issues raised.
(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental
impact statements if:
(i) The agency makes substantial changes in the proposed action that
are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its
impacts.
(2) May also prepare supplements when the agency determines that the
purposes of the Act will be furthered by doing so.
(3) Shall adopt procedures for introducing a supplement into its
formal administrative record, if such a record exists.
(4) Shall prepare, circulate, and file a supplement to a statement
in the same fashion (exclusive of scoping) as a draft and final
statement unless alternative procedures are approved by the Council.
C. CEQ Memorandum: Forty Most Asked Questions Concerning CEQ’s NEPA
Regulations (1992)
http://ceq.eh.doe.gov/nepa/regs/40/40P1.HTM
Question 32. Supplements to Old EISs. Under what circumstances do old EISs have to be
supplemented before taking action on a proposal?
Answer. As a rule of thumb, if the proposal has not yet been implemented, or if the EIS concerns
an ongoing program, EISs that are more than 5 years old should be carefully reexamined to
determine if the criteria in Section 1502.9 compel preparation of an EIS supplement.
If an agency has made a substantial change in a proposed action that is relevant to environmental
concerns, or if there are significant new circumstances of information relevant to environmental
NCHRP Project 08-36, Task 35
78
concerns and bearing on the proposed action or its impacts, a supplemental EIS must be prepared
for an old EIS so that the agency has the best possible information to make any necessary
substantive changes in its decisions regarding the proposal. Section 1502.9(c).
D. 23 CFR 771.130 Supplemental Environmental Impact Statements
(a) A draft EIS, final EIS, or supplemental EIS may be supplemented
at any time. An EIS shall be supplemented whenever the Administration
determines that:
(1) Changes to the proposed action would result in significant
environmental impacts that were not evaluated in the EIS; or
(2) New information or circumstances relevant to environmental
concerns and bearings on the proposed action or its impacts would result
in significant environmental impacts not evaluated in the EIS.
(b) However, a supplemental EIS will not be necessary where:
(1) The changes to the proposed action, new information, or new
circumstances result in a lessening of adverse environmental impacts
evaluated in the EIS without causing other environmental impacts that
are significant and were not evaluated in the EIS; or
(2) The Administration decides to approve an alternative fully
evaluated in an approved final EIS but not identified as the preferred
alternative. In such a case, a revised ROD shall be prepared and
circulated in accordance with Sec. 771.127(b).
(c) Where the Administration is uncertain of the significance of the
new impacts, the applicant will develop appropriate environmental
studies or, if the Administration deems appropriate, an EA to assess the
impacts of the changes, new information, or new circumstances. If, based
upon the studies, the Administration determines that a supplemental EIS
is not necessary, the Administration shall so indicate in the project
file.
(d) A supplement is to be developed using the same process and
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except
that scoping is not required.
(e) A supplemental draft EIS may be necessary for FTA major urban
mass transportation investments if there is a substantial change in the
level of detail on project impacts during project planning and
development. The supplement will address site-specific impacts and
refined cost estimates that have been developed since the original draft
EIS.
(f) In some cases, a supplemental EIS may be required to address
issues of limited scope, such as the extent of proposed mitigation or
the evaluation of location or design variations for a limited portion of
the overall project. Where this is the case, the preparation of a
supplemental EIS shall not necessarily:
(1) Prevent the granting of new approvals;
(2) Require the withdrawal of previous approvals; or
NCHRP Project 08-36, Task 35
79
(3) Require the suspension of project activities; for any activity
not directly affected by the supplement. If the changes in question are
of such magnitude to require a reassessment of the entire action, or
more than a limited portion of the overall action, the Administration
shall suspend any activities which would have an adverse environmental
impact or limit the choice of reasonable alternatives, until the
supplemental EIS is completed.
E. FHWA Technical Advisory T 6640.8A (1987)
http://environment.fhwa.dot.gov/projdev/impTA6640.asp
XI. REEVALUATIONS
A. Draft EIS Reevaluation
If an acceptable final EIS is not received by FHWA within 3 years from the date of the draft EIS
circulation, then a written evaluation is required to determine whether there have been changes in the
project or its surroundings or new information which would require a supplement to the draft EIS or a
new draft EIS (23 CFR 771.129(a)). The written evaluation should be prepared by the HA in consultation
with FHWA and should address all current environmental requirements. The entire project should be
revisited to assess any changes that have occurred and their effect on the adequacy of the draft EIS.
There is no required format for the written evaluation. It should focus on the changes in the project, its
surroundings and impacts, and any new issues identified since the draft EIS. Field reviews, additional
studies (as necessary), and coordination (as appropriate) with other agencies should be undertaken and the
results included in the written evaluation. If, after reviewing the written evaluation, the FHWA concludes
that a supplemental EIS or a new draft EIS is not required, the decision should be appropriately
documented. Since the next major step in the project development process is preparation of a final EIS,
the final EIS may document the decision. A statement to this fact, the conclusions reached, and
supporting information should be briefly summarized in the Summary Section of the final EIS.
B. Final EIS Reevaluation
There are two types of reevaluations required for a final EIS: consultation and written evaluation (23 CFR
771.129(b) and (c)). For the first, consultation, the final EIS is reevaluated prior to proceeding with major
project approval (e.g., right-of-way acquisition, final design, and plans, specifications, and estimates
(PS&E)) to determine whether the final EIS is still valid. The level of analysis and documentation, if any,
should be agreed upon by the FHWA and HA. The analysis and documentation should focus on and be
commensurate with the changes in the project and its surroundings, potential for controversy, and length
of time since the last environmental action. For example, when the consultation occurs shortly after final
EIS approval, an analysis usually should not be necessary. However, when it occurs nearly 3 years after
final EIS approval, but before a written evaluation is required, the level of analysis should be similar to
what normally would be undertaken for a written evaluation. Although written documentation is left to
the discretion of the Division Administrator, it is suggested that each consultation be appropriately
documented in order to have a record to show the requirement was met.
The second type of reevaluation is a written evaluation. It is required if the HA has not taken
additional major steps to advance the project (i.e., has not received from FHWA authority to
undertake final design, authority to acquire a significant portion of the right-of-way, or approval
of the PS&E) within any 3-year time period after approval of the final EIS, the final
supplemental EIS, or the last major FHWA approval action. The written evaluation should be
prepared by the HA in consultation with FHWA and should address all current environmental
requirements. The entire project should be revisited to assess any changes that have occurred and
their effect on the adequacy of the final EIS.
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There is no required format for the written evaluation. It should focus on the changes in the
project, its surroundings and impacts, and any new issues identified since the final EIS was
approved. Field reviews, additional environmental studies (as necessary), and coordination with
other agencies should be undertaken (as appropriate to address any new impacts or issues) and
the results included in the written evaluation. The FHWA Division Office is the action office for
the written evaluation. If it is determined that a supplemental EIS is not needed, the project files
should be documented appropriately. In those rare cases where an EA is prepared to serve as the
written evaluation, the files should clearly document whether new significant impacts were
identified during the reevaluation process.
XII. SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENTS (EISs)
Whenever there are changes, new information, or further developments on a project which result in
significant environmental impacts not identified in the most recently distributed version of the draft or
final EIS, a supplemental EIS is necessary (40 CFR 1502.9(c)). If it is determined that the changes or new
information do not result in new or different significant environmental impacts, the FHWA Division
Administrator should document the determination. (After final EIS approval, this documentation could
take the form of notation to the files; for a draft EIS, this documentation could be a discussion in the final
EIS.)
A. Format and Content of a Supplemental EIS
There is no required format for a supplemental EIS. The supplemental EIS should provide sufficient
information to briefly describe the proposed action, the reason(s) why a supplement is being prepared,
and the status of the previous draft or final EIS. The supplemental EIS needs to address only those
changes or new information that are the basis for preparing the supplement and were not addressed in the
previous EIS (23 CFR 771.130(a)). Reference to and summarizing the previous EIS is preferable to
repeating unchanged, but still valid, portions of the original document. For example, some items such as
affected environment, alternatives, or impacts which are unchanged may be briefly summarized and
referenced. New environmental requirements which became effective after the previous EIS was prepared
need to be addressed in the supplemental EIS to the extent they apply to the portion of the project being
evaluated and are relevant to the subject of the supplement (23 CFR 771.130(a)). Additionally, to provide
an up-to-date status of compliance with NEPA, it is recommended that the supplement summarize the
results of any reevaluations that have been performed for portions of or the entire proposed action. By this
inclusion, the supplement will reflect an up-to-date consideration of the proposed action and its effects on
the human environment. When a previous EIS is referenced, the supplemental EIS transmittal letter
should indicate that copies of the original (draft or final) EIS are available and will be provided to all
requesting parties.
B. Distribution of a Supplemental EIS
A supplemental EIS will be reviewed and distributed in the same manner as a draft and final EIS (23 CFR
771.130(d)). (See Section VII for additional information.)
F. FHWA Guidance Memo: “Project Development and Documentation Overview” (1992)
http://environment.fhwa.dot.gov/projdev/tdmpdo.asp
Reevaluation
The FHWA must assure that the environmental documentation for the proposed action (CE, EA/FONSI,
EIS/ROD) is still valid, prior to proceeding with major project approvals or authorizations. This is
accomplished through a reevaluation, which is an assessment of any changes which may have occurred in
either the project's concept or the affected environment, and a determination of what effects these changes
might have on the validity of the environmental documentation. Informal consultation between FHWA
and the State DOT may be acceptable, with appropriate documentation (e.g. a note to the file).
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In addition to this requirement for all levels of environmental documentation, there is a 3- year
validity period for EISs. If you have a Draft EIS, and an acceptable Final EIS is not submitted to
FHWA within 3 years from the date of the draft EIS circulation, a written reevaluation of the
Draft EIS shall be prepared prior to submission of the Final EIS. This evaluation must
demonstrate that the information presented in the Draft EIS is an accurate analysis of the
anticipated project impacts. For projects with an approved Final EIS, a written reevaluation is
required before further approvals are given if activities to advance the action, e.g., design, rightof-way, or construction, have not occurred within any 3-year time period.
G. 23 CFR 771.127 Record of decision.
(a) The Administration will complete and sign a record of decision
(ROD) no sooner than 30 days after publication of the final EIS notice
in the Federal Register or 90 days after publication of a notice for the
draft EIS, whichever is later. The ROD will present the basis for the
decision as specified in 40 CFR 1505.2, summarize any mitigation
measures that will be incorporated in the project and document any
required section 4(f) approval in accordance with Sec. 771.135(l).
Until any required ROD has been signed, no further approvals may be
given except for administrative activities taken to secure further
project funding and other activities consistent with 40 CFR 1506.1.
(b) If the Administration subsequently wishes to approve an
alternative which was not identified as the preferred alternative but
was fully evaluated in the final EIS, or proposes to make substantial
changes to the mitigation measures or findings discussed in the ROD, a
revised ROD shall be subject to review by those Administration offices
which reviewed the final EIS under Sec. 771.125(c). To the extent
practicable the approved revised ROD shall be provided to all persons,
organizations and agencies that received a copy of the final EIS
pursuant to Sec. 771.125(g).
H. SAFETEA-LU Environmental Review Process Final Guidance, FHWA, 2006
http://www.fhwa.dot.gov/hep/section6002/index.htm
5.1
5.1.1
Applicability Requirements
Question 8: Which projects must follow the environmental review process?
Answer: All transportation projects requiring an EIS for which the original Notice of Intent was
published in the Federal Register after August 10, 2005, must follow the procedures outlined in
Section 6002. A limited exception is addressed in Question 9 below.
USDOT also has the authority under Section 6002 to apply its requirements to certain classes of
projects or individual projects that are developed as environmental assessments (EAs). For EA
projects, the decision on the use of Section 6002 will be made by the FHWA Division Office or
FTA Regional Office, with the concurrence of the other lead agency(ies), on a case-by-case basis
for individual projects or classes of projects. The "default" assumption, which need not be
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documented outside this guidance, is that the Section 6002 environmental review process will
not be applied to EAs. The decision to apply Section 6002 to a particular EA or class of EAs
should depend on the benefits, in terms of expediting the EA process and stewarding the
environment that would result by following this process. A decision to follow these procedures
for an EA or class of EAs should be documented in the coordination plan or other project record.
At this time, USDOT does not intend to exercise the authority to apply the Section 6002 process
to CEs through this guidance.
Because this guidance was not available between August 10, 2005, and the date of this guidance,
lead agencies may have used procedures to comply with Section 6002 that differ in some detail
from the procedures contained in this guidance. In such cases, the Federal lead agency will
determine whether additional action is needed and practical in order to make the process
consistent with Section 6002.
5.1.2
Question 9: When can a State use its existing environmental review process instead of
SAFETEA-LU?
Answer: SAFETEA-LU permits States that "re-engineered" their environmental review process
to streamline transportation decision making under the provisions of §1309 of the Transportation
Equity Act for the 21st Century (TEA-21) to request a grandfathering exemption to continue
operating their program under those processes. States wishing to pursue this grandfathering
exemption should submit a request to the FHWA Office of Planning, Environment, and Realty
for review and approval by March 31, 2007. The request should provide supporting
documentation that the State's existing process was approved by the FHWA under TEA-21
§1309. An environmental review process approved by FHWA for this grandfathering treatment
must be used for the State's program as a whole or for a pre-approved class of projects, but
cannot be substituted for Section 6002 procedures on a project-by-project basis.
FTA did not approve any re-engineered streamlining processes during the lifetime of TEA-21.
Therefore, this SAFETEA-LU provision would apply only to an FTA project sponsored or cosponsored by a State DOT whose TEA-21 process has been officially accepted by FHWA.
5.1.3
Question 10: If a NEPA review for which the Notice of Intent was published prior to the
date of enactment of SAFETEA-LU (August 11, 2005) is being re-evaluated due to a 3year lapse in activity, or re-scoped for any reason, or if a supplemental EIS (SEIS) is
needed, must the SAFETEA-LU environmental review process be followed?
Answer: On a project for which the Notice of Intent was published in the Federal Register prior
to the enactment of SAFETEA-LU, the SAFETEA-LU environmental review process need not
be followed if:
1. a re-evaluation of the DEIS or FEIS is performed that results in a determination that an SEIS or
new EIS is not needed;
2. an SEIS as described in 23 CFR 771.130, that does not involve the reassessment of the entire
action, is needed; or
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3. an EIS that was under active development during the 8 months prior to August 11, 2005, is being
re-scoped due to changes in plans or priorities, even if a revised Notice of Intent is published.
"Active development" is evidenced by one or more of the following actions: documented
meetings with members of the public or other agencies, correspondence with other agencies, or
publication of project newsletters.
In all other cases of re-scoping or reassessing the entire action through an SEIS or new EIS, the
SAFETEA-LU environmental review process must be followed (except in States with an
approved TEA-21 procedure, as described in Question 9).
I. 23 CFR 771.125 Final Environmental Impact Statements
(a)(1) After circulation of a draft EIS and consideration of
comments received, a final EIS shall be prepared by the Administration
in cooperation with the applicant or, where permitted by law, by the
applicant with appropriate guidance and participation by the
Administration. The final EIS shall identify the preferred alternative
and evaluate all reasonable alternatives considered. It shall also
discuss substantive comments received on the draft EIS and responses
thereto, summarize public involvement, and describe the mitigation
measures that are to be incorporated into the proposed action.
Mitigation measures presented as commitments in the final EIS will be
incorporated into the project as specified in Sec. 771.109(b). The
final EIS should also document compliance, to the extent possible, with
all applicable environmental laws and Executive orders, or provide
reasonable assurance that their requirements can be met.
(2) Every reasonable effort shall be made to resolve interagency
disagreements on actions before processing the final EIS. If significant
issues remain unresolved, the final EIS shall identify those issues and
the consultations and other efforts made to resolve them.
(b) The final EIS will be reviewed for legal sufficiency prior to
Administration approval.
(c) The Administration will indicate approval of the EIS for an
action by signing and dating the cover page. Final EISs prepared for
actions in the following categories will be submitted to the
Administration's Headquarters for prior concurrence:
(1) Any action for which the Administration determines that the
final EIS should be reviewed at the Headquarters office. This would
typically occur when the Headquarters office determines that (i)
additional coordination with
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other Federal, State or local governmental agencies is needed; (ii) the
social, economic, or environmental impacts of the action may need to be
more fully explored; (iii) the impacts of the proposed action are
unusually great; (iv) major issues remain unresolved; or (v) the action
involves national policy issues.
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(2) Any action to which a Federal, State or local government agency
has indicated opposition on environmental grounds (which has not been
resolved to the written satisfaction of the objecting agency).
(3) Major urban mass transportation investments as defined by FTA's
regulation on major capital investment projects (49 CFR part 611).
(d) The signature of the FTA approving official on the cover sheet
also indicates compliance with 49 U.S.C. 5324(b) and fulfillment of the
grant application requirements of 49 U.S.C. 5323(b).
(e) Approval of the final EIS is not an Administration Action (as
defined in Sec. 771.107(c)) and does not commit the Administration to
approve any future grant request to fund the preferred alternative.
(f) The initial printing of the final EIS shall be in sufficient
quantity to meet the request for copies which can be reasonably expected
from agencies, organizations, and individuals. Normally, copies will be
furnished free of charge. However, with Administration concurrence, the
party requesting the final EIS may be charged a fee which is not more
than the actual cost of reproducing the copy or may be directed to the
nearest location where the statement may be reviewed.
(g) The final EIS shall be transmitted to any persons,
organizations, or agencies that made substantive comments on the draft
EIS or requested a copy, no later than the time the document is filed
with EPA. In the case of lengthy documents, the agency may provide
alternative circulation processes in accordance with 40 CFR 1502.19. The
applicant shall also publish a notice of availability in local
newspapers and make the final EIS available through the mechanism
established pursuant to DOT Order 4600.13 which implements Executive
Order 12372. When filed with EPA, the final EIS shall be available for
public review at the applicant's offices and at appropriate
Administration offices. A copy should also be made available for public
review at institutions such as local government offices, libraries, and
schools, as appropriate.
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