REEVALUATIONS OF NEPA DOCUMENTS -...

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.

NCHRP Project 25-25, Task 28

CONTENTS

EXECUTIVE SUMMARY 1

1 INTRODUCTION 2 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

NCHRP Project 25-25, Task 28

NCHRP Project 08-36, Task 35 1

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.


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)


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.


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.


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) 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 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.


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


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.


• 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.


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,


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.


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.


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


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.


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


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)


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


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.


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.


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.


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.


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.

.


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.


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.


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.


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.


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.


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.


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.


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


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.


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.


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.


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 non-conformity announcement. The Court, consequently, awarded the plaintiffs their attorney’s fees and expenses


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.


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, inter-agency 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.


APPENDIX C: SAMPLE REEVALUATION FORMS


State of Alaska Department of Transportation & Public Facilities Statewide Design and Engineering Services

Environmental Re-Evaluation Checklist

Environmental Re-Evaluation Checklist 1 Checklist Revised 10/15/04

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

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 N/A YES NO

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.

N/A YES NO

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)?


A. Right-of-Way Impacts N/A YES NO

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)


Project Name: Date:


B. Social Impacts N/A YES NO

1. Would there be any changes in the neighborhoods or community cohesion for the various social groups as a result of the proposed action?

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?


C. Economic Impacts N/A YES NO

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?


D. Local Land Use and Transportation Plan N/A YES NO

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 N/A YES NO

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?


Project Name: Date:


F. Wetlands Impacts (If yes, resource coordination required)

N/A YES NO

1. Are there changes in project scope or design that affect the wetland impacts?

2. Acres (original/proposed): 3. Fill quantities (original/proposed: 4. Dredge quantities (original/proposed): 5. Describe any changes from the original environmental document and subsequent

environmental re-evaluations.

G. Fish and Wildlife Impacts N/A YES NO

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 N/A YES NO

1. Has there been a change in status of listed T&E species directly or indirectly affected by the project?


I. Water Body Involvement N/A YES NO

1. Have there been any changes in the project’s effects on water bodies? If yes, complete 2-4 and describe in 5.

2. Does the project affect a navigable water body (as listed by USCG)? 3. Does the project affect navigable waters of the U.S. (as defined by the Corps)? 4. Does the project affect a Catalogued Anadromous Fish Stream (41.14.870)? 5. Describe changes.

J. Alaska Coastal Management Program (ACMP) N/A YES NO

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.

Project Name: Date:


K. Hazardous Waste N/A YES NO

1. Have there been any changes in the status of known or potentially contaminated sites along the corridor?

2. If buildings or residences are relocated, have they been evaluated for hazardous waste, such as asbestos?


L. Air Quality Conformity N/A YES NO

1. Does the project as proposed affect a nonattainment area, which will require a revised conformity determination?


M. Floodplains Impacts N/A YES NO

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 N/A YES NO

1. Has there been a change in noise sensitive receivers/land uses adjacent to the proposed project?

2. Has there been a substantial change in vertical or horizontal alignment? 3. Has the number of through lanes or the project itself created a noise impact? 4. Has a noise analysis demonstrated potential noise impacts? 5. Are there feasible and reasonable measures that can reduce impacts? 6. Do changes in the project require a local noise permit? 7. Describe changes.

O. Water Quality Impacts N/A YES NO

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”.)

Project Name: Date:


O. Water Quality Impacts N/A YES NO

a. List names and locations.

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?


P. Permits and Authorizations N/A YES NO

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.


IV. Construction Impacts Have the following potential construction effects changed:

N/A YES NO

1. Construction timing commitments?

2. Temporary degradation of water quality? 3. Temporary stream diversion? 4. Temporary degradation of air quality? 5. Temporary delays and detours of traffic? 6. Temporary impacts on businesses? 7. Other construction impacts, including noise? 8. Describe changes.

Project Name: Date:


V. Section 4(f)/6(f) 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 N/A YES NO

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 N/A YES NO

1. Have there been any changes in the environmental commitments or mitigation?


VIII. Environmental Re-Evaluation N/A YES NO

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.

Project Name: Date:


Prepared by: _______________________________________________ Date:

Environmental Analyst or Team Leader

Approved by: ______________________________________________ Date: Regional Environmental Coordinator

Approved by: ______________________________________________ Date: FHWA Area Liaison

Copy: Design Manager


State of California NEPA/CEQA Re-Validation Form

NEPA/CEQA RE-VALIDATION FORM

Page 1 of ____ Revised 06/13/07

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)

Check reason for consultation: Project proceeding to next major federal approval Change in scope, setting, effects, mitigation measures, requirements 3-year timeline (EIS only)

DESCRIPTION OF CHANGED CONDITIONS

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 or will be prepared and is included on the continuation sheets or 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

or will be prepared and is included on the continuation sheets or will be attached. It need 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 Signature: Project Manager Date

NEPA/CEQA RE-VALIDATION FORM

Page 2 of ____ Revised 06/13/07

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.


New Jersey Department of Transportation Environmental Reevaluation

March 21, 2008

C:\DOCUMENTS AND SETTINGS\15744.ICF-HQ\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLK189\NJENVIROMENTAL REEVALUATION FORM 6-16-05.DOC

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: No Yes

Has there been a change in: No Yes

1. Design / Scope

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


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:

Date

D. FHWA Concurrence of Environmental Reevaluation is required because

(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


E.

Submitted for

Approval: Project Manager, Division of Project Management

Date

Environmental Team Leader, Bureau of Environmental Project Support

Date

F.

Approved by:

Manager, Bureau of Environmental Project Support

Date

G. Concurrence: Not required

for certified CED’s

(FOR) - Division Administrator, Federal Highway Administration

Date


Washington State Department of Transportation/Federal Highway Administration Environmental Reevaluation/Consultation Form

Environmental Procedures Manual M 31-11.01 Exhibit 411-8, Page 1 of 2 April 2007

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 Exhibit 411-8, Page 2 of 2 April 2007

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 (business or residence)

( ) ( ) 11) VEGETATION and WILDLIFE ( ) ( )

6) ECONOMIC GROWTH and DEVELOPMENT

( ) ( ) 12) RECREATION ( ) ( )

13) SOCIAL IMPACTS ( ) ( ) COMMENTS:

CONCLUSIONS and/ or RECOMMENDATIONS: I concur with the conclusions and recommendations above Region / Mode Official FHWA Official Date Date


Florida Department of Transportation Project Reevaluation

01-31-07 PART 1, CHAPTER 13 13-10

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 13-11

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. Aesthetics [ ] [ ] 2. Economics [ ] [ ] 3. Land Use [ ] [ ] 4. Mobility [ ] [ ] 5. Relocation [ ] [ ] 6. Social [ ] [ ]

D. OTHER IMPACTS

1. Noise [ ] [ ] 2. Construction [ ] [ ]

FIGURE 13.3 Suggested Project Reevaluation Format (continued)

01-31-07 PART 1, CHAPTER 13 13-12

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 13-13

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, 2003 as determined on , and the determination 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


APPENDIX D: SAMPLE REEVALUATION OF A FINAL ENVIRONMENTAL IMPACT STATEMENT

U. S. DEPARTMENT 228 Walnut Street, Room 508

OF TRANSPORTATION Pennsylvania Division Harrisburg, PA 17101-1720

Federal Highway January 20, 2006 In reply refer to: Administration 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

Figure 2B - 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

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 Bristol-Oxford 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


• 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/I-95 Interchange. This section also involves modifications of the ramps for the existing I-95/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 I-276/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 I-95-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


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.

Page 4


Table 1 – Summary and Comparison of Environmental Impacts

Environmental Issues Impacts

FEIS June 2003

Impacts Mitigation Rpt

Jan. 2005

Impacts Re-Eval. No. 1

Dec. 2005

Change in Impacts

NATURAL ENVIRONMENT

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 Surface Water (crossings) 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 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 Noise: Length of Proposed Noise Walls (ft)

54190 54190 54190 No change

Air Quality: Sensitive Receptors 1 hr CO2 concentration range (ppm)

29

6.9 to 8.6

29

6.9 to 8.6

29

6.9 to 8.6 No change

CULTURAL RESOURCES

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

Page 5


3.1 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 re-calculation 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).

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3.1.4 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.

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3.2.2 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).

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3.2.5 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:

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• 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


Neshaminy Service Plaza ramps. The ramps are PTC funded, with Bensalem Township assuming the responsibility for traffic studies, design, permitting, right-of-way, 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).

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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


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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).


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


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


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


(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.


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).


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, right-of-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 Applicability Requirements

5.1.1 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


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 co-sponsored 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 3-year 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


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 [[Page 395]] 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.


(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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