National Environmental Streamlining Initiatives

Report-out from the
Environmental Protection Agency and the
Federal Highway Administration
Environmental Streamlining and Stewardship Workshop

Phoenix, Arizona
December 4 — 6, 2002

Prepared by:
Volpe National Transportation Systems Center

Prepared for:
Federal Highway Administration

TABLE OF CONTENTS

• EXECUTIVE SUMMARY
• SETTING THE CONTEXT
• ISSUE-BY-ISSUE
  • Topic 1: Resources, Workforce, and Training
  • Topic 2: NEPA Process — Federal Agency Roles
  • Topic 3: Integration of NEPA and Permitting Requirements: NEPA/404 Mergers New England
  • Topic 4: Recurring NEPA Process Issues
  • Topic 5: Indirect, Secondary, and Cumulative Impacts
  • Topic 6: Tiering
  • Topic 7: Air Toxics
• WORKSHOP COMMITMENTS
• APPENDIX A — WORKSHOP AGENDA
• APPENDIX B — QUESTIONNAIRE RESPONSES
• APPENDIX C — WORKSHOP PARTICIPANTS

EXECUTIVE SUMMARY

From December 4 — 6, 2002, the Federal Highway Administration (FHWA) sponsored the Environmental Protection Agency (EPA) and FHWA Environmental Streamlining and Stewardship Workshop in Phoenix, Arizona. Approximately 60 people participated in the workshop. The 36 EPA participants came from all 10 EPA Regions and Headquarters, and represented National Environmental Policy Act (NEPA) activities, wetlands and other programs. The 23 FHWA participants represented 9 of the EPA Regions, as well as Headquarters.

The purpose of this workshop was to identify and to build on successful streamlining practices that support both EPA's and FHWA's missions and address the challenges that effect and define mutually acceptable solutions to recurring and emerging issues. The intent was for participants to leave the workshop with a better understanding of each agency's definition of stewardship, clarification of the respective agency's capabilities to deliver meaningful solutions, and an improved understanding of how the two agencies can coordinate their activities. FHWA and EPA agreed on most issues and pledged to work together to resolve the issues that delay environmental reviews of surface transportation projects.

ESTABLISHING THE CONTEXT

Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21) established environmental streamlining as a primary focus for FHWA. Signed into law June 9, 1998, TEA-21 carried forward the environmental principals of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and provided tools to streamline the environmental review process in Section 1309. As a result of TEA-21, multiple agencies developed an interagency broad-based agenda to advance environmental streamlining for surface transportation projects. Having worked together on numerous collaborative efforts under ISTEA, FHWA and EPA initiated a series of streamlining summits in regional offices around the country very soon after TEA-21 enactment. The purpose of the summits was to bring state and Federal staff together to identify process improvements that not only saved time but also led to greater environmental protection. Some written agreements were either created or updated as a result of the summits. All of the summits served to lay the foundation for better working relationships.

Individually, EPA provided training to its Headquarters and field staffs on the provisions of Section 1309 and other parts of TEA-21 through written materials, national monthly conference calls and a national summit held in Chicago six months after enactment of TEA-21. In addition to participating in many of the streamlining summits, EPA Regional Administrators frequently placed streamlining on the agenda of their quarterly meetings so they could share information and identify issues for Headquarters staff to address nationally.

FHWA and FTA created an interagency workgroup to develop a team to carry forward the twin goals of environmental streamlining and environmental stewardship. EPA has played an active role in that group, identifying it as a streamlining priority. As a result of the workgroups' early efforts, an interagency memorandum of agreement was signed by seven agencies promising to work together to develop concurrent review processes; cross-train staff; identify best practices; and identify and meet information needs early. Since that MOU, EPA Headquarters and regions have actively engaged in assisting FHWA and FTA in developing training courses, an interagency dispute resolution process and interagency guidance on reimbursable agreements. EPA also has become more directly involved with state DOT partners at the request of FHWA, working more directly with states in individual project development and early identification of issues; providing more training opportunities; and direct technical assistance.

Two years after enactment of TEA-21, FHWA hosted a workshop, "National Environmental Streamlining Training Workshop" for the interagency partners in Saint Louis, MO. The purposes of the workshop was to cross-educate each other's staffs about the goals of streamlining; clarify agency missions, roles and responsibilities; and to refine the national action plan created by the interagency workgroup. At that time, the agencies began to discuss one-on-one national meetings with FHWA. The concept was to bring FHWA and FTA staff from the field and Headquarters together to identify outstanding issues and provide roadmaps for jointly developing solutions to address those issues. The FHWA/EPA workshop in Arizona was one such meeting convened to meet this commitment and the culmination of many years of collaboration between FHWA and EPA.

As the lead agency, FHWA has made significant strides towards being stewards of the environment while advancing environmental streamlining goals. During 2002, FHWA raised the visibility of environmental streamlining for its agency by adopting environmental stewardship and environmental streamlining as one of its three Vital Few Goals . FHWA developed a targeted performance-based agenda for action on a nationwide basis. These performance expectations focus on improving the quality and timeliness of the environmental review process and on clearly demonstrating environmental stewardship accomplishments.

On September 18, 2002 President Bush signed Executive Order (EO) 13274, "Environmental Stewardship and Transportation Infrastructure Project Review." The EO further heightened the visibility of environmental stewardship and streamlining and also created a sense of urgency. The Department of Transportation has convened an interagency task force to explore environmental stewardship opportunities, improve environmental review processes, and oversee specific projects on a priority list selected by the Secretary of Transportation. EPA is one of the agencies on the Executive Order Task Force. As of the date of this report, Secretary Mineta selected 13 projects for the priority list (10 are highway projects). Field staff involved in the priority projects are actively and urgently working to resolve outstanding issues. In April 2003, the EO Task Force established three work groups to focus on priority issues: Purpose and Need, Indirect and Cumulative Impacts, and Integrated Planning Obstacles and Opportunities.

The Council on Environmental Quality (CEQ) has recently established a task force to modernize NEPA. EPA is actively involved in this effort to review areas of interest, including information management, collaboration, categorical exclusions, scope of environmental assessments, and adaptive management. The CEQ task force is reviewing Federal and state practices to identify and disseminate information about successful practices.

SETTING THE AGENDA

Prior to the workshop, EPA and FHWA Headquarters collaboratively designed a questionnaire for field staff to identify issues and concerns related to the environmental review process of surface transportation projects. Field staff submitted a large sample of responses that headquarters' staff then analyzed. Together, EPA and FHWA developed an agenda to meet the needs of their agencies.

Respondents to the questionnaire raised seven topics. The following topics shaped the development of the workshop agenda:

Critical to the success of the workshop was an appropriate representation of agency staff. EPA participants represented both wetlands staff and NEPA activities staff. Staff representation from these two specializations was critical due to the close working relationships at the field level. The wetlands staff is responsible for reviewing permits for Section 404 of the Clean Water Act (i.e. wetlands). FHWA division and Headquarters' staff was in attendance. The geographic distribution of FHWA field staff was varied and represented states within 9 of the 10 EPA regions.

At the workshop, leadership from EPA and FHWA set the context for conducting this workshop by establishing a common understanding of each other's perspective on environmental stewardship and an assessment of environmental streamlining progress to date. Presentations by Fred Skaer (FHWA), Joseph Montgomery (EPA NEPA), and John Meaghar (EPA Wetlands) provided their agency's perspective of environmental streamlining and stewardship. These presentations identified existing opportunities to build stronger relationships between FHWA and EPA, as well as to illustrate past and current examples of interagency commitments to environmental streamlining and stewardship.

COMMITTING TO IMPROVE

Participants discussed a variety of examples where the two agencies have been making significant improvements in their collaborative efforts. There is a strong desire to continue building on achieved successes. Throughout the workshop, participants worked together to identify and explore the issues that influence working relationships. Considerable consensus was reached on the areas where improvement needs to be made, including: training, personnel allocation, early resource agency involvement, communication, and data sharing.

EPA's recurring issues centered on the desire for FHWA to take a strong Federal leadership role on environmental stewardship. For example, EPA would like FHWA to implement context sensitive design as a rule, not an exception.

EPA participants also expressed the following concerns:

• Lack of resource agency involvement in the early stages and throughout the process,
• Desire for data to be shared early in the process,
• Lack of knowledge by the EPA of the state's priorities and if/when/how they change,
• Need for greater education of the states and Metropolitan Planning Organizations (MPO) about the NEPA process, which contributes to NEPA being seen as a "clearance" hurdle and to inadequate analysis, and
• Lack of consistent approaches to the NEPA process.

FHWA concerns focused on realistic expectations and interagency cooperation. Noted in the discussion were the following:

• Requests for information relevant to decisionmaking,
• Realistic information requests based on the available data,
• Reasonable expectations of what FHWA can accomplish based on laws and regulations,
• Shared set of tools for environmental analysis, and
• Formal interagency cooperation in order to attain a more consistent process, while recognizing the regional differences in approach and expertise.

The following table documents the commitments made by the workshop participants to advance environmental stewardship and streamlining. Several task teams were established to further address specific issues, including: training topics, existing technology solutions, determination of when a project is federalized, mitigation banks credits, and shared visions and examples of where agencies worked well together. The task teams will subsequently produce a white paper on each issue.

Issue	Next Steps	Task Team and Members
Resources, Workforce, and Training	Establish a workforce-training group that will develop ideas for training, with an emphasis on cross training. Create a task team to summarize existing solutions and issues.	No one identified. Dominique Lueckenhoff (team leader), Susan Absher, Denise Rigney, Sandy Allen, Dan Johnson, Lamar Smith, and Naima Halim-Chestnut.
NEPA Process — Federal Agency Roles	Create task team to identify when a project is federalized. Create task team to write white paper on the areas of shared visions and examples of where agencies worked well together. Address the discrepancy between EPA and FHWA regarding consistency among EPA regions.	Lamar Smith (team leader), Joe Cothern, Butch Waidelich, and Dave Carlson. Stephanie Stoermer (team leader), Ben West, Denise Rigney, Steve Thomas, Dave Sullivan, and Dominique Lueckenhoff.
NEPA/404 Mergers	Assess how best to use credit in mitigation banks. Create a task team to work on use of credit from mitigation banks. Integrate technology into Section 404 decisionmaking and for improving the LEDPA selection. Publicize successful processes and methodologies (in addition to the November 2001 and February 2002 Successes in Stewardship Newsletters). Possibly conduct domestic scan tour across nation to learn more about NEPA/404 Merger Processes. Provide electronic versions of agreements as reference tools for states developing agreements. Determine how to address cumulative impacts on Section 404 protected resources.	Paul Garrett (team leader), Ann Roche, Yvonne Vallette, Dave Sullivan, Rob Ayers, someone from the EPA Region 3 office.
Purpose and Need Statement	Host focused annual meetings for the group Conduct regional meetings for people routinely involved in the purpose and need statement process Remove extraneous material from purpose and need statements Involve agencies early Provide interagency training opportunities
Alternative Analysis	Insert broader environmental concerns into planning Use tiered documents as a tool where appropriate Write tiering success stories Define what Federal agencies bring to the table Discuss the ratings of the alternatives
Scoping	Conduct scoping early, not at the last minute Foster openness and full disclosure Develop tools like a guide for citizens and a contact list Advocate the use of GIS Conduct annual meetings Develop a checklist
Level of Detail	Establish an interagency group that will develop a data needs assessment for NEPA documentation	No one identified.
Mitigation	Look not only at the watershed but also at the ecoregion/system level Advocate advanced mitigation, where possible Pool information when possible to identify and develop good mitigation sites Look for compensatory measures that also satisfy NEPA requirements
Indirect, Cumulative, and Secondary Impacts	Distribute the draft Questions and Answers on Indirect and Cumulative Impact Considerations in the NEPA Project Development Process for review and comment by field staff (FHWA) Release guidance on mitigation strategies for dealing with disturbances caused by increasing development, sprawl, and automobile usage (EPA) Discuss how to incorporate indirect and cumulative impact analyses into NEPA documents Assess how to communicate and document information in a way that is neither too broad nor too narrow Develop a case-by case approach to addressing direct, indirect, cumulative, and secondary impacts
Tiering Issues	Develop a defined process for tiering Conduct interagency training on tiering
Air Toxics and Greenhouse Gases	Partner on a variety of air toxics related efforts (EPA and FHWA) Conduct additional research on air toxic impacts at the micro scale level. Develop the research methodology needed to provide more data on the subject Integrate NEPA and air quality regulations Ensure that NEPA procedures reflect current Air Quality regulations Collaborate on the development of global climate change policies

SETTING THE CONTEXT

From December 4 — 6, 2002, the Federal Highway Administration (FHWA) sponsored the Environmental Protection Agency (EPA) and FHWA Environmental Streamlining and Stewardship Workshop in Phoenix, Arizona. Approximately 60 people participated in the workshop. The 36 EPA participants came from all 10 EPA Regions and Headquarters, and represented both National Environmental Policy Act (NEPA) activities and wetlands programs. The 23 FHWA participants included both division and Headquarters staff. The geographic distribution of FHWA field staff was varied and represented states within 9 of the 10 EPA regions.

This workshop was the culmination of many years of collaboration between FHWA and EPA. Following the enactment of Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21) in 1998, FHWA and EPA initiated a series of streamlining summits in regional offices around the country. Those summits focused onto bringing state and Federal staff together to identify process improvements that not only saved time but also led to greater environmental protections. FHWA and FTA then created an interagency workgroup to develop a team to carry forward the twin goals of environmental streamlining and environmental stewardship. EPA has played an active role in that group, identifying it as a streamlining priority. As a result of the workgroups' early efforts, an interagency memorandum of agreement was signed by seven agencies promising to work together to develop concurrent review processes; cross-train staff; identify best practices; and identify and meet information needs early.

In 2001, FHWA hosted a national workshop, "National Environmental Streamlining Training Workshop" for the interagency partners in Saint Louis, MO. At that time, the agencies began to discuss one-on-one national meetings with FHWA. The concept was to bring FHWA and FTA staff from the field and Headquarters together to work together to identify outstanding issues and provide roadmaps for developing solutions together to address those issues. The FHWA/EPA workshop in Arizona was one such meeting convened to meet this commitment.

The purpose of this workshop was to identify and to build on successful streamlining practices that support both EPA's and FHWA's missions and to assess the challenges that limit their ability to define mutually acceptable solutions to recurring and emerging issues. The intent was for participants to leave the workshop with a better understanding of each agency's definition of stewardship, clarification of the respective agency's capabilities to deliver meaningful solutions, and an improved understanding of how the two agencies can coordinate their activities.

The goals of the workshop support executive level initiatives such as the President's Executive Order (EO) 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, the Council on Environmental Quality's (CEQ) task force to modernize NEPA. EO 13274 emphasizes the importance of expedited transportation project delivery while being good stewards of the environment. The EO complements and reinforces the strategic direction that FHWA established in its Vital Few Goals² , by setting expectations, measures, and methods for advancing an improved and efficient environmental review process and for demonstrating environmental stewardship. Concurrently, EPA is actively involved in CEQ's task force to modernize NEPA. The task force is addressing areas of interest, including information management, collaboration, programmatic categorical exclusions (CE), tiering, scope of environmental assessments (EA), and adaptive management. The task force is reviewing Federal and state practices to identify and disseminate information about successful practices.

At the kickoff of the workshop, EPA and FHWA Headquarters' staff set the context for this workshop by establishing a common understanding of each other's perspective on environmental stewardship and an assessment of environmental streamlining progress to date. Presentations by Fred Skaer (FHWA), Joseph Montgomery (EPA), and John Meaghar (EPA) provided agency perspectives of environmental streamlining and stewardship. These presentations identified existing opportunities to improve relationships between FHWA and EPA. Throughout the two and a half-day workshop, participants discussed issues surrounding numerous topics, including workforce issues, NEPA process, NEPA 404/mergers, indirect and cumulative impacts, tiering issues, and air issues.

Participants worked together during the workshop to identify and explore the issues that influence working relationships, including: training, personnel allocation, early resource agency involvement, communication, and data sharing.

Some of the issues brought to the table include:

• Agencies use the same words, but often times have different definitions and meanings associated with them.
• Even though the agencies are working in tandem towards the same goal throughout the NEPA process, each agency has its own mission to accomplish, and conflicts do arise.
• High staff turnover rates lead to a decline in institutional memory.
• Insufficient staffing may lead to project scheduling dilemmas.
• Different state approaches and levels of expertise.

EPA's recurring issues centered on the desire for FHWA to take a stronger Federal lead. FHWA concerns focused on establishing realistic expectations and improving interagency cooperation. While the issues stem from different backgrounds and have differing causes and effects in terms of the two agencies' views, the areas of concern appear to be very similar. A central theme throughout the workshop was the need for education and training.

The purpose of this document is to capture the information shared at the workshop; to identify the agreed upon next steps; and, to capture specific recommendations and broader conclusions. This report reflects the statements and experiences of individuals and may not represent official FHWA or EPA policy. The "Issue-by-Issue" section of this document provides guidance on the following seven topics:

The document identifies the areas of agreement and disagreement regarding each issue, identifies potential solutions, and documents the next steps EPA and FHWA set forth to resolve each issue. Where appropriate, significant actions that have taken place since the workshop have been noted. In conjunction with this document, several task forces were established to further address specific issues, including: training topics, existing technology solutions, determination of when a project is federalized, mitigation banks credits, and shared visions and examples of where agencies worked well together. The task teams will subsequently produce a white paper on each issue. Finally, the appendices include the following:

² In 2002, FHWA identified three priorities as Vital Few Goals: Environmental Streamlining and Stewardship, Safety, and Congestions Mitigation.

ISSUE-BY-ISSUE

This section provides a summary of each issue that affects working relationships and identifies what EPA and FHWA agreed to do to address the issue. Prior to the workshop, FHWA and EPA staff identified the issues through a questionnaire completed by EPA and FHWA field staff. The questionnaire and results are found in Appendix B. The issues include:

During the workshop, participants discussed areas of agreement and disagreement regarding the definition of the problem, potential solutions, and the resources necessary to resolve each issue. In some cases, it was necessary to clarify key agency policy and regulatory requirements. Participants reached consensus on the issues and next steps to resolve the issues.

Topic 1: Resources, Workforce, and Training

Both FHWA and EPA face a number of resource, workforce, and training issues that delay the effective implementation of NEPA responsibilities. Representatives from both EPA and FHWA agree that these problems include lack of resources, workforce deficiencies, and training availability. Some state and Federal resource agencies are developing and using strategies to overcome these problems such as interagency agreements, training, technology that can fill resource gaps, and workforce capacity development.

Resources — Finances, Technology Tools, etc.

Resource issues that delay the effective implementation of NEPA include the following:

• Limited and restricted funding, especially for early and sustained resource agency involvement in project planning and development of environmental analysis.
• Limited data availability and sharing.
• Lack or limited availability of technical tools.

Workforce

Workforce deficiency issues also exist in both state and Federal agencies and include the following:

• Insufficient numbers of staff.
• High staff turnover and a resultant lack of institutional memory at state departments of transportation (DOTs).
• Lack of a clear understanding of staffing priorities and skill needs.
• Limited numbers of high quality, well-trained consultants.

Training

Workforce issues directly correlate to the training issues faced at all levels of government and among the consultants used by government agencies. Numerous inadequacies were identified regarding training, including the following:

• Lack of defined and necessary competencies.
• Lack of sufficient and continuous training in those defined skill competencies.
• Lack of cross-training opportunities for agency staff on issues such as wetlands, level of service, and others.
• Limited availability of informal teaching and learning from other agencies.
• Limited availability of conflict resolution and facilitation training.

Potential Solutions

The discussion of resource, workforce, and training issues generated ideas to solve these identified inadequacies. Potential solutions include flexible funding sources, use of technology and tools, team building and communication, and workforce capacity building.

Flexible Funding Sources

Programmatic agreements can help overcome the lack of staff. USDOT, EPA, and other agencies are developing and using interagency agreements to fund additional staff at state and Federal agencies. Section 1309(e) of the Transportation Equity Act for the 21st Century (TEA-21) states that "Federal — aid funds may be used to help Federal agencies meet time limits for environmental reviews." Funding can only be used to speed up the customary time needed for reviews. Agencies can also exercise other authorities to supplement resources, including the Intergovernmental Personnel Act, and the Intergovernmental Cooperation Act.

In February 2002, FHWA released guidance to help direct the development of interagency funding agreements. The guidance is available from FHWA's streamlining website at: http://environment.fhwa.dot.gov/strmlng/igdocs/index.asp. When developing agreements, agencies should consider the following issues:

• Reason for agreement (e.g. is it to streamline projects or to institute programmatic efficiencies).
• Authority allowing agreement.
• Responsibilities of all parties (state and Federal agencies).
• Tasks covered by funding agreement; the agreement may include numerous tasks.
• Measurements of success.
• Relationships to other existing agreements and the benefits of incorporating such agreements into the funding agreement
• Cost accounting and fund transfer; Agencies must establish a mechanism for transferring funds and tracking costs.
• Dispute resolution.

Flexible funding sources are often needed to accomplish the goals of environmental streamlining and stewardship. Outsourcing can be an efficient method for filling staff and competency deficiencies. For example, state DOTs are setting aside funds to hire qualified, professional neutral facilitators. EPA and FHWA suggested creating a pool of funds state DOTs could use instead of their own program funds to finance efforts that facilitate communication and cooperation and build workforce capacity.

Use of Technology and Tools

The use of technology to fill resource gaps greatly contributes to the efficiency and efficacy of environmental review work. Florida's Efficient Transportation Decisionmaking web conferencing process has proven successful in quickly and accurately identifying state environmental and other resources. Environmental management systems offer tremendous potential to improve collaborative decisionmaking. In fact, FHWA is searching for exemplary environmental management systems.

Agencies can also use technology during planning, project development, environmental review, and training in order to improve working relationships and educate agency staff and the public. By jointly developing technical tools and agreeing on common terms and definitions, agencies can facilitate cooperation and improve understanding. These tools can also be used to educate the public about the transportation project development and environmental review processes. For example, agencies can develop an electronic and hard copy citizens' guide to NEPA. Technology can also help staff share data and understand what data are available. Greater use of Geographic Information Systems (GIS) and the inclusion of Federal, state, and interest group GIS information can improve decisionmaking.

Team Building and Communication

Team building and agency cooperation are the foundation upon which most environmental streamlining is achieved. Communication both within an agency and with other agencies is critical to addressing all environmental issues and to complying with all environmental commitments. Team approaches, whereby one team manages a project from cradle to grave, allow for enhanced communication and seamless performance. Cooperation and communication also facilitate project scheduling and negotiated timeframes for completing reviews.

Various states are conducting periodic meetings with all stakeholders to discuss transportation issues and statewide priorities. For example, Arizona hosts brown bag lunches to allow agency staff to meet with one another on an informal basis. Another method for improving communication is a telephone list that staff can use to find specific issue contacts both within an agency and across agencies. Such lists can be used to better inform EPA about state priorities, changes in priorities, and reasons for changes (EPA identified the lack of information in state priorities as an impediment to project streamlining). EPA and FHWA also suggested jointly prioritizing workloads to manage staff resources and developing criteria to evaluate EPA's participation in periodic and project review meetings.

Workforce Capacity Building

Training in new areas and with other agencies is an effective way to educate agency staff and to foster cooperation among agencies. Cross-training allows staff from a variety of agencies to hear the same information at the same time, therefore reducing misunderstandings. An example includes nation-wide training on conflict resolution. In addition, Section 404 regulatory training was held, and an EPA trainer reports that half of her last training class was from EPA and half from state DOTs and FHWA.

During the workshop, participants brainstormed about approaches to building workforce capacity. Participants agreed that multiple approaches are required. The approaches include:

• Establishing a workforce training group to address pertinent issues.
• Defining the required competencies of transportation and environmental professionals.
• Reinstating the three-week environmental training center.
• Providing incentives to employees to develop and improve competencies.
• Jointly developing training and providing cross-training among agencies; e.g., Maryland has an interagency group to develop interagency training.
• Consulting with experts when developing training.
• Learning from good training models, such as EPA Region 9's training on early involvement and the purpose and need statement.
• Hosting a clearinghouse of training opportunities.
• Providing on-site training, when necessary, during project review meetings.
• Developing training for the consultant community and enforcing certification programs.
• Creating peer exchanges and mentoring opportunities.
• Developing alternative forms of training, such as web-based trainings, as a cost effective way to meet the demand for training.
• Conducting post-training evaluations to gauge training effectiveness.
• Preserving institutional memory.

Next Steps

Workshop participants agreed to do the following to address resource, workforce, and training issues:

• Establish a workforce training group that will develop ideas for training, with an emphasis on cross-training (e.g., Federal-aid 101, NEPA basics, transportation planning, etc.).
• Create a task team to summarize existing solutions and issues. Team members include: Dominique Lueckenhoff (team leader), Susan Absher, Denise Rigney, Sandy Allen, Dan Johnson, Lamar Smith, and Naima Halim-Chestnut.

Actions Since Workshop

• In May and June 2003, FHWA held its first two regional Alternative Dispute Resolution (ADR) workshops. The ADR workshops are aimed at bring together state and Federal transportation and resource agencies to discuss environmental issues on a regional basis. The workshops are being held in each of the remaining ten standard Federal regions.

Topic 2: NEPA Process — Federal Agency Roles

Each Federal agency participating in the NEPA process as the lead, cooperating, or reviewing agency should do so with at least a general understanding of the missions, legislative authorities, and regulatory requirements of the other agencies involved. The EPA's participation in the NEPA process for transportation projects is related to two authorities in particular — Section 309 of the Clean Air Act and Section 404 of the Clean Water Act (CWA). The first requires the EPA to review and comment on EISs and other Federal NEPA related activities. EPA also has a veto authority for the 404(b)(1) wetland permitting process.

FHWA is responsible for the Federal-Aid Highway Program, which provides Federal financial assistance to the states to construct and improve the National Highway System, urban and rural roads, and bridges. The FHWA's authority is codified in U.S.C. Title 23 and amended by subsequent reauthorization bills such as the Intermodal Surface Transportation Equity Act (ISTEA) (1992-1998), and TEA-21 (1998-2003). Project level activities eligible for Federal-aid funding generally include preliminary engineering, design, right of way acquisition, construction and related mitigation measures for reconstruction, resurfacing, operational improvement, and highway safety projects. FHWA approves the expenditure of funds for the abovementioned activities. This action triggers the NEPA process for which FHWA is the lead agency.

State DOTs, and transit authorities along with MPOs are responsible for system level planning and decisions to initiate projects. The project sponsor's or applicant's responsibilities include: programming funds for Federal-aid; providing matching funds; conducting transportation planning process; transportation conformity analysis; managing the project development process, project design, construction and maintenance, developing the project agreement, and compliance and oversight for all delegated responsibilities.

Considerable confusion exists over when a project is "federalized." However, once a project is federalized, the project sponsor must comply with all Federal-aid and NEPA requirements. There is a critical need for guidance on when a project is federalized to improve understanding and trust on project reviews between FHWA and EPA.

Potential Solutions

During the workshop, the agencies met separately to discuss expectations of each agency and to identify the roles each agency believes it serves. FHWA recognizes that EPA's constructive involvement during project development is important both as a formal cooperating agency (i.e. any Federal agency other than the lead agency that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal or alternative for legislation or other major Federal action significantly affecting the quality of the human environment) or in a less formal role.

As a cooperating agency, FHWA asks the following of EPA:

• Have realistic expectations about information and data — EPA should request information that is relevant to better decisionmaking. FHWA also stresses that all agencies need to be realistic about the availability of data, and recognize that data are sometimes limited. Furthermore, tools for analyzing impacts should be agreed upon at scoping (or earlier, if possible). FHWA would like to reach agreement with EPA on rather than EPA behave in the "know it when they see it" manner.
• Provide constructive, direct, and relevant comments — FHWA would like EPA to communicate constructively their concerns to FHWA directly, rather than through the media or interest groups. In addition, FHWA would like EPA to provide comments that are relevant to the choice of alternatives being presented.
• Manage expectations - EPA should have reasonable expectations of FHWA as the lead agency based on regulations and laws. EPA should also have reasonable expectations for the availability of data.
• Fully participate and cooperate in the process — EPA should participate in meetings, respond to telephone calls, share expertise with its partners, and not take adversarial roles, but rather cooperate with other agencies.
• Provide consistency among regions — FHWA strongly advocates consistency among EPA regions despite differences in environmental conditions across the nation.

In addition to what FHWA asks of EPA, EPA believes that it provides the following services and benefits to FHWA:

• Identifies and communicates issues before writing a formal letter to FHWA and the project sponsor.
• Shares EPA's specialized expertise on environmental regulations, policies, technologies, accepted practices, and data.
• Advises and consults on problem areas.
• Avoids duplication of effort by providing an environmental analysis.
• Involves other agencies.
• Facilitates discussions with other agencies that lead to better interagency coordination.
• Advises and comments on the adequacy of NEPA documents and process.

Conversely, EPA looks to FHWA to fulfill its responsibilities as the lead agency by taking a stronger NEPA leadership role (i.e. drive the train). Specifically, EPA expects the following of FHWA:

• Take a strong NEPA leadership and stewardship role — EPA depends on FHWA to manage the NEPA process. To ensure a streamlined approach, FHWA should be a steward for the environment, as well as for the traveling public. EPA requests that FHWA appreciate that environmental regulations are not a hurdle to clearance. In addition, EPA would like FHWA to implement provisions of TEA-21 that benefit the environment, such as restoring past damages. Furthermore, FHWA should address issues, such as air toxics and indirect and cumulative impacts. Finally, EPA asks that FHWA strive for environmental stewardship at the field level.
• Provide consistency in the application of processes — EPA is asking FHWA to provide consistency in the application of processes, such as NEPA/404 mergers and decisions made during the NEPA process (CE, EA, and EIS).
• Involve resource agencies and the public — EPA requests that FHWA involve all resource agencies early and often, in particular the Army Corps of Engineers (USACE). In addition, the public needs to be more fully engaged in the transportation planning process. EPA asks that FHWA be willing to negotiate memoranda of understandings with resource agencies.
• Understand and respect the role of cooperating agencies - EPA requests that FHWA recognize that EPA has a role in the transportation and NEPA process. In particular, FHWA staff need to better understand EPA's role under Section 309 versus NEPA.
• Keep EPA apprised of state DOT priorities and project status — As the lead agency, FHWA should keep the resource agencies apprised of project priorities and status and ensure they are working on the current priorities and planning their resources to address future priorities. Periodic meetings will help educate all parties about any changes so that all agencies understand FHWA and state priorities and effectively plan their resources. Telephone calls, electronic mail, and mailings can also help to inform EPA.
• Ensure necessary data and full disclosure of decisions are provided — EPA is requesting that FHWA provide more technical data early in the process and explain how criteria are weighted and ranked for developing alternatives.
• Provide resources to better conduct the NEPA process — EPA looks to FHWA to garner and provide resources to facilitate the NEPA process, including professional facilitators and conflict resolution professionals.
• Educate state and local agencies on their environmental responsibilities - EPA asks FHWA to work harder to educate state and local agencies about environmental analysis and how to integrate results earlier in the process. EPA would like context sensitive design one day to be the rule, rather than an innovative feature.
• Recognize and accept that there are differences within agencies across the nation — EPA requests that FHWA recognize variation of natural resource issues across the nation. These variations will lead to significant differences among regions.

FHWA views that it is performing the following roles:

• Helping to guide decisions.
• Serving as a mediator among resource agencies.
• Providing quality control of transportation projects.
• Advocating for transportation needs.
• Serving a fiduciary role as stewards of public funds.
• Serving as stewards for some resources (e.g. 4(f) resources).
• Advocating for the traveling public.
• Involving the public in transportation decisionmaking.

Next Steps

• Create task team to identify when a project is federalized. The team consists of Lamar Smith (team leader), Joe Cothern, Butch Waidelich, and Dave Carlson.
• Create task team to write white paper on the areas of shared visions and examples of where agencies worked well together. The team is comprised of: Stephanie Stoermer (team leader), Ben West, Denise Rigney, Steve Thomas, Dave Sullivan, and Dominique Lueckenhoff.
• Address the discrepancy between EPA and FHWA regarding consistency among EPA regions. FHWA advocates for consistency, while EPA requests FHWA to accept variation among regions. A white paper can help clarify this issue for EPA and FHWA

Topic 3: Integration of NEPA and Permitting Requirements: NEPA/404 Mergers

Both EPA and FHWA representatives identified the NEPA/404 Merger process — integration of NEPA and CWA Section 404 permitting requirements — as a successful and innovative streamlining tool. In an integrated process, the project sponsor submits the 404 permit application to USACE simultaneously with the publication of the draft environmental impact statement (DEIS). At least 29 states in the nation have used a NEPA/404 merger agreement. However, across the nation there is considerable variation in the usage and emphasis of merger processes. Representatives from Washington State, North Carolina, and New England informed the workshop participants on the processes and methodologies they employ to review and decide on Section 404 permits. During these presentations, participants asked numerous questions and identified good practices, essential elements of a good process, and lessons learned. Finally, the workshop participants identified next steps to improving and refining NEPA/404 Merger process agreements.

EPA's Responsibilities

Ann Campbell, of EPA Headquarters, provided a tutorial of the Section 404 program. Section 404 establishes, "a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands." No discharge of dredged or fill material can be permitted if a practicable alternative exists that is less damaging to the aquatic environment or if the Nation's waters would be significantly degraded. The discharge of a pollutant³ is a prerequisite for CWA permitting jurisdiction. Geographic jurisdiction of CWA is derived, in part, from the following actions:

• 1972 CWA defined navigable waters as waters of the United States.
• 1977 CWA Reauthorization recognized broad jurisdiction over wetlands.
• 2001 Supreme Court Decision (Solid Waste Association of Northern Cook County [SWANCC]) finds that CWA does not extend to isolated non-navigable waters solely on basis of migratory bird use. EPA is expected to submit an Announcement of Notice of Proposed Rulemaking (ANPRM) in response to SWANCC.

USACE shares an enforcement role with EPA for CWA Section 404 permits; however, USACE administers the day-to-day program. In addition, USACE develops regulatory policy and guidance in conjunction with EPA, and conducts or verifies jurisdictional determinations. EPA has the following roles and responsibilities under CWA:

• Serves as ultimate arbiter on geographic jurisdiction of CWA;
• Develops environmental guidelines, policy and guidance;
• Approves and oversees state assumption⁴;
• Reviews permits, maintains Section 404(q) "elevation" and (c) "veto" authority;
• Serves as commenting agency during Public Notice Comment Period;
• Identifies exempt activities; and,
• Shares enforcement role with USACE.

Actions Since Workshop

The Corps and EPA issued the ANPRM on January 10, 2003 in order to obtain early comment on issues associated with the scope of waters that are subject to the CWA in light of the U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). The ANPRM requested public input on issues associated with the definition of "waters of the United States" and also solicited information or data from the general public, the scientific community, and Federal and state resource agencies on the implications of the SWANCC decision for jurisdictional decisions under the CWA.

The comment period for the ANPRM closed on April 16, 2003. The Agencies received approximately 133,000 comments, including both individual letters and form letters. For more information on the ANPRM or to obtain a copy of the ANPRM itself or the comments received, go to http://www.epa.gov/owow/wetlands/swanccnav.html.

Case Studies

Several workshop participants were requested to present the approaches that have been successful in their states and/or regions, including:

• Washington State — Judith Lee (EPA) and Sharon Love (FHWA)
• North Carolina — Rob Ayers (FHWA)
• New England — Matt Schweisberg (EPA)

Washington State

Washington State has made significant efforts to streamline the 404 permitting process. In 1993 a MOU on wetlands was developed. A NEPA/404 Merger was then signed in 1995, and subsequently revised in 1996 and 2002 to incorporate several process improvements. The Signatory Agency Committee (SAC), comprised of the eight state and Federal agencies, is charged with oversight of the agreement. The goal of the improvements is to create a clear, consistent and efficient process that occurs within a predictable timeframe, provides a forum to exchange information, has committed participants and results in the completion of environmental impact statements (EIS) that adequately consider the environment and results in the delivery of transportation projects. SAC intends to develop further process improvements to better achieve its goals.

There are three steps of the merger process (see table below). Concurrence options include: waive, concur, non-concur (based on statutory authority). Comments may be submitted, however the comments are considered to be only advisory. WSDOT/project sponsor will respond to comments within 45 days. A formal issue resolution process exists to address issues, such as non-concurrence, lack of timely response, and agreement interpretation. The issue resolution process includes specific process steps, with timelines for each step. Required involvement of staff, supervisors, and executive management are outlined in the process. Changes can be made at each of the three concurrence points, as described in the table below:

Washington State also created a new state committee, the Transportation Permit Efficiency and Accountability Committee (TPEAC), with the authority to develop a streamlined, "one-stop" permit process. TPEAC's mission statement is as follows:

Coordinate transportation planning with environmental and land use planning processes at all levels of government so that transportation projects avoid, minimize, or otherwise mitigate impacts on the environment in order to reduce conflict and project delay, and help to ensure that subsequent permitting decisions are made in a more coordinated streamlined manner.

For more information on Washington State's efforts, visit: http://www.wsdot.wa.gov/Environment/Watershed/mitigation.htm.

North Carolina

In 1997, North Carolina developed an integrated NEPA/404 Merger Process. The process was revised in 2001 to incorporate a flexible mitigation approach, called the Ecosystem Enhancement Program (EEP). Currently, mitigation plans in North Carolina must be approved before the necessary permits are issued. The mitigation process often occurs late in the planning process and on a project-by-project basis, resulting in delays. The current mitigation process also lacks a functional replacement of impacts, an understanding of watershed needs, and consistent guidance from state and Federal resource agencies. NCDOT partnered with North Carolina's Department of Environment and natural Resources (NCDENR), the Wilmington District USACE, and other state and Federal agencies to develop EEP.

EEP will provide programmatic mitigation at the watershed level with functional replacement for unavoidable impacts, prior to project impact, and enhance the environment. Under EEP, environmental issues and needs, including potential impacts, are identified and considered earlier in the project development and design process. Up-front compensatory mitigation is developed years ahead for project impacts, allowing the permitting process to continue without delays. The organizational structure for administering and monitoring EEP includes various roles and responsibilities, including: policy and oversight team; liaison council; technical advisors; steering committee; program assessment and consistency team; strategic planning team; and operations managers.

Currently, there is an MOU that commits NCDOT, NCDENR, and the USACE Wilmington District to establish the EEP. Considerable resources have been dedicated by various agencies to thoughtfully develop the EEP. The transition to EEP is currently in progress, during which time stakeholder involvement and legal issues are being addressed. The initiation of EEP will begin as early as winter 2003. NCDOT hopes to have EEP fully operational by January 2004. EEP requires full commitment from all involved agencies.

New England

In New England, FHWA and USACE developed the "Highway Methodology Workbook" to facilitate the 404 permitting process. Two difficult projects in the 1980's led the agencies to improve the permitting process. The result was a highway methodology that is driven by the 404 regulatory process. Since its publication in 1987, anyone applying for a 404 permit must comply with the Highway Methodology that USACE uses for all projects, including non-highway projects.

The methodology identifies the numerous stages involved in the permitting process. There is a feedback loop to ensure that the methodology is working. At every stage there are meetings with all the parties to address any issues that may arise during the process. At each concurrence point, if any party has a concern, the disagreements are documented. However, USACE proceeds regardless of whether an agreement has been reached. Users of the methodology attest that resolutions are reached even when there is non-concurrence. EPA maintains its authority to veto any decision.

Potential Solutions

Workshop participants identified solutions for improving the integration of NEPA and permitting requirements.

• Concurrence Points — Concurrence points are critical for ensuring the process works well.
• Integrity of Merger Agreements — FHWA needs to determine how to preserve integrity of merger agreements in light of a new FHWA field structure. Many agreements were developed when FHWA had a system of regional offices.
• Project Description and Background — Project sponsors should provide a full and comprehensive description of the project and its history when submitting applications.
• Mitigation Banking Agreements — Better agreements and managed expectations are required to ensure that credits can be withdrawn from mitigation banks, as expected. States spent a considerable amount of money on mitigation banks, and are now facing some problems when they need to withdraw credits for projects.
• Location of Mitigation Banks — There are some locations that offer greater resource protection credits than others. Sometimes, resource agencies are not satisfied and or did not provide any input on where mitigation banks should be located. One successful example is on the Eastern Shore of Delaware, where the state DOT is purchasing farmland that would have otherwise disappeared to development, rather than build another wetland in the area.

Next Steps

• Assess how best to use credit in mitigation banks.
• Create task team to address mitigation bank issues, including use of credit, location of banks, etc. The team is comprised of the following people: Paul Garrett (team leader), Ann Roche, Yvonne Vallette, Dave Sullivan, Rob Ayers, Denise Rigney will recruit someone from EPA Region 3 Office.
• Integrate technology into Section 404 decisionmaking and for improving the LEDPA selection.
• Publicize successful processes and methodologies (in addition to the November 2001 and February 2002 Successes in Stewardship Newsletters).
• Possibly conduct domestic scan tour across nation to learn more about NEPA/404 Merger Processes.
• Provide electronic versions of agreements as reference tools for states developing agreements.
• Determine how to address cumulative impacts on Section 404 protected resources.

Actions Since Workshop

On December 27, 2002, the Corps and EPA, in conjunction with the Departments of Agriculture, Commerce, Interior, and Transportation, strengthened their commitment to achieve the goal of no net loss of our Nation's wetlands with the release of a comprehensive action plan and improved guidance to ensure effective, scientifically-based restoration of wetlands impacted by development activities. The National Wetlands Mitigation Action Plan (MAP) lists 17 action items that the agencies will undertake to improve the effectiveness of restoring wetlands that are impacted or lost to activities governed by clean water laws. Completing the actions in the plan will enable the agencies and the public to make better decisions regarding where and how to restore, enhance, and protect wetlands; improve their ability to measure and evaluate the success of mitigation efforts; and expand the public's access to information on these wetland restoration activities.

The need for guidance relating to the use of mitigation banking for aquatic resource impacts associated with transportation projects, as voiced during this workshop, was included as an action item in the MAP. EPA, in coordination with FHWA and the Corps, are currently finalizing guidance clarifying the use of the TEA-21 preference for mitigation banking. The guidance establishes factors for field personnel to consider in determining whether mitigation banking is suitable to compensate for the lost functions of wetlands and other aquatic resources impacted by Federal-aid highway projects. The guidance also addresses opportunities for early coordination between the affected agencies and streamlining the environmental review process for proposed highway projects.

For general information on mitigation or to obtain a copy of the MAP or an update on the release of this guidance, go to http://www.epa.gov/owow/wetlands/guidance/index.html#mitigation.

³ Discharge of a pollutant is defined in section 502(12) as, "addition of, any pollutant to, navigable waters, and from a point of source."
⁴ New Jersey and Michigan are the only two states that have assumed the 404 program.

Topic 4: Recurring NEPA Process Issues

At the workshop, five teams of participants responded to questions related to five pre-selected NEPA process topics and then proposed next steps. Participants chose the topic of their choice. The five topics — or recurring issues — were based on the major issues identified by the participants in a survey completed before the workshop, and included:

• Purpose and Need Statement
• Alternatives Analysis
• Scoping
• Quality of Data and Documents/Level of Detail
• Mitigation

The summary that follows is organized by each recurring issue and provides the responses each team presented to the entire workshop participants.

Purpose and Need Statement

"What should the purpose and need statement cover?"
As a critical component of the transportation planning processes, purpose and need statements can affect funding decisions and subsequently the ability of FHWA and state DOTs to build projects. As a result, purpose and need statements should be well thought out and designed to allow a reasonable range of alternatives to be developed without precluding any reasonable alternatives. A well-designed purpose and need statement can also foster streamlining by addressing both NEPA and Section 404 purpose and need statement requirements early in the process.

The purpose and need statement should include:

• Succinct problem statement.
• Discussion of the problem that the proposed project is designed to solve.
• Description of the historical, social, physical, political, and community environment in which the project is to be built.

"How do you make a purpose and need statement broad enough to include a reasonable range of alternatives, but narrow enough to well-define the project?"
The CEQ regulations state that the purpose and need in an EIS "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." Transportation purpose and need is fundamental to alternatives development and analysis and therefore is the primary responsibility of the lead agency in defining the range of alternatives to consider in the NEPA process. Reasonable alternatives are subject to definition by other criteria including the type of resources involved, the degree of environmental impacts and other environmental requirements involved in the decision such as 404(b)(1) and Section 4(f). While the lead agency and the applicant are responsible for the basic purpose and need of a project, it is appropriate for other agencies to provide input related to the determination of reasonable alternatives.

"What problems have reviewers encountered with purpose and need statement?"
Developing a purpose and need statement is an iterative and evolving process. Problems sometimes arise and can include:

• Presenting only one alternative that fits, indicating to the public that a decision has already been made.
• Identifying too narrow or too broad a range of alternatives.
• Not being honest — if the purpose is economic development, this should be clearly stated.

"What problems have project proponents encountered with reviewer comments?"
Problems include:

• Incorporating new needs that emerge as the process evolves away from the original purpose and need statement.
• Overcoming the tendency of EPA and USACE to have problems with highway projects, as opposed to projects that increase bus access and rail expansion.
• Addressing non-constructive comments from resource agencies relative to purpose and need.
• Addressing a perceived "hidden agenda" of resource agencies to stop highway projects through objections with the purpose and need statement.

"How do you develop a purpose and need statement that is appropriate as the Basic Project purpose in a Section 404 Analysis?"
Suggested solutions include:

• Balancing the amount of information and number of alternatives (too many is unwieldy; too few create more problems) in the purpose and need statement.
• Using scoping as an early opportunity for agencies and the public to comment.
• Working with resource agencies early in the process to share information and shape the purpose and need statement and the alternatives analysis.⁵

"What are the next steps?"
FHWA and EPA identified the following next steps to help further cooperation and streamline the purpose and need statement process:

• Conduct regional meetings for people routinely involved in the purpose and need statement process.
• Remove extraneous material from purpose and need statements.
• Involve agencies early.
• Provide interagency training opportunities.

Actions Since Workshop

• In May 2003, a series of correspondence was exchanged between Department of Transportation Secretary Norman Mineta and CEQ Chairman Jim Connaughton on the issue of purpose and need. The result was a letter from CEQ clarifying the role of the lead agency in determining the purpose and need of a project. The letter states that "the lead agency-the Federal agency proposing to take an action-has the authority and responsibility to define the 'purpose and need' for purposes of NEPA analysis."
• One of the three Executive Order 13274 Task Force Work Groups is focused on purpose and need. The initial meeting of the work group was held in June 2003. The efforts of the interagency work group will focus on four primary issues: Crafting a Purpose and Need; Planning Integration/Tiering; Purpose and Need Integration and Coordination with other laws; and Economic Development. The work group is currently formulating their work plan, which will be presented, to the Task Force in July 2003.

Alternatives Analysis

"How do you narrow the range of alternatives?"
Suggestions include:

• Require all parties to pull environmental information into the process sooner.
• Garner resource agency input.
• Provide the right level of detail.
• Use tiering and corridor level analysis to identify decisions that need to be made now and decisions that can be postponed.
• Employ technology, such as GIS, in the planning and screening process.

"How can agencies ensure that alternatives under consideration address environmental and transportation concerns as early as possible in the NEPA process?"
Suggestions include:

• Focus priorities — while EPA prefers to present a preferred alternative during the public process, FHWA feels that this preempts the public process as the public will only focus on that alternative.
• Define timelines — FHWA and EPA agreed that further discussions are needed in order to define when to identify the appropriate range of alternatives during transportation planning, when to expand the level of detail needed, when to work with resource agencies to address environmental considerations made during the NEPA process, and when to encourage regulatory changes.

"What are the next steps?"
FHWA and EPA identified the following next steps to help further cooperation and streamline the alternatives analysis process:

• Insert broader environmental concerns into planning.
• Use tiered documents as a tool where appropriate.
• Write tiering success stories.
• Define what Federal agencies bring to the table.
• Discuss the ratings of the alternatives.

Scoping

"How can EPA's scoping comments be better focused to serve FHWA's needs?"
Suggestions include:

• Provide full disclosure.
• Receive EPA comments during scoping.
• Use checklists, such as a scoping matrix with approval signatures, to identify issues early and to ensure that no issues are missed.
• Develop a nationwide checklist.
• Use GIS, as they do in Texas, to supplement fieldwork and plot and rank projects in order of probable concern based on location.
• Develop a citizens' guide to NEPA.
• Have EPA act as an advocate and facilitator with MPO's.

"How can FHWA facilitate EPA's participation in the scoping process and of EPA's scoping comments?"
The primary suggestion is for project sponsors and/or FHWA to develop an annual prioritization of projects for EPA review.

"What constitutes the scope of a project?"
The scope of a project is the project's purpose and need as it relates to the transportation issues being addressed, the geo-spatial study area, the reasonable extent of impacts, the logical termini, the resources involved, such as watersheds, and the overall decisions being made.

"Should scoping include concurrences?"
No. Scoping occurs too early in the process to include concurrences.

"What are the next steps?"
EPA recommends that FHWA explore ways to keep the resource agencies apprised of state transportation project priorities and changes therein. FHWA and EPA identified the following next steps to help further cooperation and streamline the scoping process:

• Conduct scoping early and not at the last minute.
• Foster openness and full disclosure.
• Develop tools like a guide for citizens and a contact list.
• Advocate the use of GIS.
• Conduct annual meetings.
• Develop a checklist.

Level of Detail/Quality of Data

"What problems typically arise with data or documentation that impede streamlining?"
Problems identified include:

• Validity of data and information.
• Early input in scoping.
• Consultant misunderstanding of a project's purpose.
• Inappropriate amounts of information.
• Information is incomplete or not available when needed for review.
• Lack of reliance on CEQ regulations.

"What solutions have agencies used to close gaps or provide adequate documentation of an issue or impact?"
Solutions include:

• Research to identify needs, partnerships and collaborations.
• Early participation.
• Pre-scoping.
• Data needs assessments, as used in the Texas I-69 project.
• Expert panels that can comment on reasonably foreseeable effects and events.
• Appropriate and sufficient information that integrates other NEPA requirements.
• Measures to address incomplete and unavailable information.

"What are the characteristics of quality NEPA documentation?"
Characteristics include:

• Inclusion of substantial concurrence with reliable data.
• Early and up-front agreement on the issues to be analyzed and the appropriate level of detail.
• Identification of impacts at the right level and amount.
• Presentation of reasonable alternatives.
• Representation of all sides.
• Full disclosure.
• Readability.
• Use of advanced data management tools.

"How should the level of detail vary in a tiered versus non-tiered NEPA document?"
Although the group agreed that there is consideration variation in the level of detail in tiered NEPA document, they did not addressed this question further.

"What are the next steps?"
FHWA and EPA agreed to consider establishing an interagency group that will develop a data needs assessment for NEPA documentation.

Mitigation

"What are the characteristics of a good mitigation plan?"
Characteristics include:

• Inclusion of all impacts, including direct, indirect, and cumulative.
• Discussion of ADAM — assess, disclose, avoid, and mitigate.
• Sharing of GIS and other resources to look at landscape issues.
• Compensatory advance mitigation prior to impacts.
• Replacement of lost wetlands with wetlands of the same function and value, to the extent possible.
• Implementation of post-monitoring plans and contingency plans in the event that wetlands need adjustment.
• Partnerships with agencies, MPOs, and others.
• Wetlands banking, where appropriate.

"How detailed should a good mitigation plan be?"
Suggestions to determine the level of detail needed include:

• Use a watershed level of detail.
• Establish a sub-priority to replace functions lost in same watershed.
• Garner conceptual agreement on detail level with all agencies.
• Define wetlands function and how to replace them by quantifying impacts and proportions (e.g., acres by function/value).

"Does the lead agency have responsibility to mitigate all impacts?"
Maybe. Lead agencies must mitigate for direct impacts. Lead agencies may need to mitigate for secondary, indirect, and cumulative impacts depending on impact specifics, such as the proportion of impacts.

"What are the next steps?"
FHWA and EPA identified the following next steps:

• Look not only at the watershed but also at the ecoregion/system level.
• Advocate advanced mitigation, where possible.
• Pool information when possible to identify and develop good mitigation sites.
• Look for compensatory measures that also satisfy NEPA requirements.⁶

⁵ While ideal, early involvement is not always practical due to staffing and resource agency monetary constraints.
⁶ FHWA has been directed by Congress to use banking first and must show that another option is better (e.g., geographically and functionally viable) in order to not use banking.

Topic 5: Indirect, Secondary, and Cumulative Impacts

Introduction

NEPA requires Federal agencies to consider the direct, indirect (or secondary), and cumulative impacts of a proposal or project alternatives in reaching a decision on advancing the Federal action.⁷ The agencies recognize the responsibility but quite often are confused and challenged by the difference in definitions and the various assessment methodologies tools, and procedures available to best meet the requirements.

Issue At Hand

The following issues illustrate the confusion and difficulty faced in indirect and cumulative impact analysis:

• Agencies understand and use the terms indirect, secondary, and cumulative impacts differently.
• Secondary, indirect and cumulative effects are often used interchangeably, when in fact they have very different meanings and requirements, depending on a number of factors.
• Agencies must deal with the different terminology of secondary, indirect, and cumulative impacts as defined for NEPA and other legislative or regulatory requirements.
• Agencies may not fully understand how to assess the probable impacts or agree on the assessment methodologies and tools available for certain situations.
• The state of the art or practice of impact assessment is not well defined.
• It is sometimes difficult for agencies to distinguish land use change, development and impact.
• It may be difficult to define the share of increased growth caused by highways and the impacts related to this growth.
• Responsibility for mitigation of indirect and cumulative impacts.
• Defining and analyzing impacts is complicated by a variety of issues that are outside of Federal agency control or responsibility.

Despite these issues, FHWA and EPA agree on a number of approaches necessary to understanding and improving our ability to consider and address indirect, cumulative, and secondary impacts:

• Agency and interagency guidance and training are needed to help the Agencies work together on these issues.
• Assessment methodologies for analyzing indirect impacts in the NEPA process are not as well defined as they are for direct impacts.
• Training related to analysis could be developed or sponsored by the agencies (such as the Region 1 and FHWA workshop)
• Interagency guidance on long-term management and on approaches for dealing with states with programmatic agreements is needed.

Both FHWA and EPA agree that they need to work together to address the challenges faced in analysis and review of the indirect and cumulative impact assessment and to agree on appropriate assessment methodologies for indirect and cumulative impacts.

Solutions and Next Steps

The agencies together will formulate the steps that can be taken to bridge the existing gaps between FHWA and EPA related to indirect and cumulative impacts. The agencies agree that we need to:

• "Get smarter" about different approaches and good process.
• Start with full disclosure and then taking on mitigation.
• Develop the steps to improve communication and cooperation between agencies to lead to a better process in the future.
• Ensure that assumptions made to develop plans are relevant to the context of the specific project.
• Discuss projects before they are put on the transportation improvement plan (TIP), thereby managing expectations.
• Differentiate between projects that are part of planned growth and projects that are unplanned and part of sprawl.
• Increase the role of FHWA in the planning process since FHWA funding plays a big role in land use.
• Be site specific.
• Develop an interagency training process on how to address and analyze impacts throughout the NEPA steps of scoping, impacts analysis, documentation/mitigation, and final EIS/EA.⁸
• Develop interagency guidance for evaluating the indirect and cumulative impacts of transportation projects. Such guidance can be used as a standard for state and Federal agencies reviewing indirect and cumulative impacts in NEPA documents.⁹
• Implement a well-defined analysis process to find the impact assessment model that fits a project's needs.

Conclusions and Next Steps

FHWA distributed a draft of proposed guidance, Questions and Answers on Indirect and Cumulative Impact Considerations in the NEPA Project Development Process, for the review and comment of both agencies. Following the conference a few Division Office and EPA Regions provided substantive and helpful comments. The comments were considered and incorporated into the guidance where considered appropriate. The guidance was finalized and issued on January 31, 2003. EPA's proposed guidance on dispersed development intended for 309 Reviewers is currently being revised. The scope of the guidance has changed to that of a "primer," and will address the analysis of the environmental impacts of land use change associated with Federal infrastructure projects. EPA anticipates having a draft for internal review in September/October 2003.

In addition, FHWA and EPA will continue to discuss a wide variety of related issues, including:

• How to incorporate indirect and cumulative impact analyses into NEPA documents.
• How to communicate and document information in a way that is neither too broad nor too narrow.
• How to develop an interagency approach to addressing direct, indirect, cumulative, and secondary impacts that is not a cookie cutter approach but a case-by-case approach.

Actions Since Workshops

• After responding to comments by FHWA and EPA field staff, FHWA finalized the Interim Guidance: Questions and Answers Regarding Indirect and Cumulative Impact Considerations in the NEPA Process in January 2003. The guidance is now available at http://environment.fhwa.dot.gov/guidebook/qaimpactmemo.asp
• One of the three Executive Order 13274 Task Force Work Groups is focused on Indirect and Cumulative Impacts. The initial meeting of the work group was held in June 2003. The efforts of the interagency work group are aimed at bringing field staff of the affected agencies to the same level of understanding of requirements and appreciation of responsibility for indirect and cumulative impacts. The work group is currently formulating their work plan, which will be presented, to the Task Force in July 2003.

⁷ The CEQ defines indirect and cumulative impact requirements in Regulations for Implementing the Procedural Provisions for the National Environmental Policy Act (NEPA) (40 CFR 1500-1508).
⁸ The FHWA Maryland Division is using this strategy.
⁹ In 1999, NCDOT and NCDENR developed guidance and a training course for NEPA practitioners to use in addressing indirect and cumulative impacts.

Topic 6: Tiering

Introduction

Tiering is a flexible option to NEPA implementation that project sponsors can use to organize or phase decisionmaking for large or more complex transportation projects or proposals.¹⁰ Tiering can be used to integrate transportation planning and NEPA processes in phases: a first tier focused on broad, overall corridor issues, such as general location, mode choice, and area-wide air quality and land use impacts, and a second tier focused on site-specific impacts, costs, and mitigation measures.

The first tier usually results in an EIS and Record of Decision (ROD). Agencies can use tiering to conduct a broad level preliminary evaluation and to jump-start more detailed analysis if the broad tier indicates the project should go forward.

More and more agencies are using or considering tiering to integrate planning, NEPA, and public participation and interagency coordination but challenges remain. Some agencies are uncomfortable with the tiered or programmatic approach for several reasons:

• Tiered NEPA documents can be challenged in court.
• Tiering is labor intensive and tends to front load the evaluation process, despite saving time in the long run.
• No process for regular coordination yet exists.
• Confusion exists over how to deal with regulatory requirements such as 404 and the Endangered Species Act.

Potential Solutions

• Clearly articulate and document tier 1 and tier 2 goals.
• Make strategic mitigation commitments up front instead of during tier 2.
• Include legal counsel early in the process.
• Use programmatic agreements where appropriate to define responsibilities, goals, and timelines.

Conclusions and Next Steps

Tiering is still a new concept with no standard implementation process. Early success in using tiering is evident, and agencies are already sharing lessons learned. Peggy Casey, from the FHWA Missouri Division office, shared with the workshop participants Missouri's tiering experience with Interstate-70. Next steps to improve the tiering process include the development of a defined process and interagency training.

Topic 7: Air Toxics

Addressing the environmental and health impacts of air toxics released from mobile sources is an emerging issue. EPA studies have found that particulate matter 2.5 (PM 2.5) and other air toxics may cause cancer or other serious health effects. In late 2003, EPA is scheduled to purpose a PM 2.5 transport rule, which would be finalized in 2005. EPA is also initiating work on a rulemaking for controlling emissions of hazardous air pollutants from motor vehicles.

Not enough data currently exist to resolve several issues surrounding air toxics. Some of the missing data include:

• The levels at which adverse effects occur. It is difficult to detect air toxics on a micro level. Many studies cannot detect their existence at such small dosages.
• The exact environmental and health impacts of each air toxic. The most extensive air study to date, the MATE study in southern California cannot determine the effects of air toxics at the micro level.
• The best methods for addressing air toxics and their impacts in the transportation planning, project development, and NEPA processes.

While an air toxics analysis cannot provide pass/fail information for decisionmaking, providing data on air toxics during the NEPA process can be useful in describing environmental impacts, composing alternatives, and developing mitigation strategies.

Next Steps

FHWA and EPA are partnering on a variety of air toxics related efforts.¹¹ The two agencies are working together to develop global climate change policies as well as consistent policy on air toxics, including guidance on what pollutants can and cannot be distinguished at the micro level.¹²

In addition, FHWA and EPA will continue to discuss a wide variety of related issues, including:

• Conducting additional research on air toxic impacts at the micro level.
• Developing the research methodology needed to provide more data on the subject.
• Integrating NEPA and air quality regulations into FHWA and EPA processes.

Actions Since Workshop

• EPA held a technical NEPA conference with FHWA participation on emerging air issues in February 2003. NEPA preparers and reviewers should refer to the proceedings (contact gavin.jamesg@epa.gov) for information on air toxics, ground-level ozone, and transportation conformity.
• In June 2003, FHWA drafted an Option Paper titled Mobile Sources Air Toxics: Options for Assessing Transportation Project Impacts that EPA is currently reviewing.

¹⁰ Tiering is addressed in CEQ 1520.20 regulation and Section 4(f) of the U.S. Department of Transportation Act.
¹¹ FHWA and EPA are following the lead of the Transportation Research Board, whose research agenda over next 4-5 years includes a significant focus on global climate change.
¹² There is a difference between PM 2.5 and Carbon Dioxide (CO2). Unlike CO2, PM 2.5 is a regional pollutant and cannot be distinguished at the micro level.

WORKSHOP COMMITMENTS

FHWA and EPA agreed on most issues and pledged to work together to resolve them. Each agency continues to improve their work and strengthen working relationships. One example is for FHWA to explore ways to keep the resource agencies apprised of state transportation project priorities and changes therein. General commitments were made at the conclusion of during the workshop, including:

• Share presentations given throughout the workshop with the group. (FHWA)
• Foster early involvement throughout the process by continued discussions/interagency facilitated workshops. (All)
• Develop and disseminate a report/guidance from workshop (FHWA)
• Share information discussed with the rest of offices and other divisions (All)
• Encourage innovation in streamlining. (All)
• Communicate, communicate, communicate. (All)
• Develop a joint research effort to deliver tools to field staff. (All)
• Brief other agencies on topics discussed at the workshop (e.g. CEQ, USACE, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration Fisheries, etc.). (All)
• Share upcoming training opportunities. (All)
• Develop a centralized clearinghouse of training opportunities. (All)

In addition, next steps and recommendations were identified for each specific issue that was discussed. Refer to the table on the following pages.

Issue	Next Steps	Task Team and Members
Resources, Workforce, and Training	Establish a workforce-training group that will develop ideas for training, with an emphasis on cross training. Create a task team to summarize existing solutions and issues.	No one identified. Dominique Lueckenhoff (team leader), Susan Absher, Denise Rigney, Sandy Allen, Dan Johnson, Lamar Smith, and Naima Halim-Chestnut.
NEPA Process — Federal Agency Roles	Create task team to identify when a project is federalized. Create task team to write white paper on the areas of shared visions and examples of where agencies worked well together. Address the discrepancy between EPA and FHWA regarding consistency among EPA regions.	Lamar Smith (team leader), Joe Cothern, Butch Waidelich, and Dave Carlson. Stephanie Stoermer (team leader), Ben West, Denise Rigney, Steve Thomas, Dave Sullivan, and Dominique Lueckenhoff.
NEPA/404 Mergers	Assess how best to use credit in mitigation banks. Create a task team to work on use of credit from mitigation banks. Integrate technology into Section 404 decisionmaking and for improving the LEDPA selection. Publicize successful processes and methodologies (in addition to the November 2001 and February 2002 Successes in Stewardship Newsletters). Possibly conduct domestic scan tour across nation to learn more about NEPA/404 Merger Processes. Provide electronic versions of agreements as reference tools for states developing agreements. Determine how to address cumulative impacts on Section 404 protected resources.	Paul Garrett (team leader), Ann Roche, Yvonne Vallette, Dave Sullivan, Rob Ayers, someone from the EPA Region 3 office.
Purpose and Need Statement	Host focused annual meetings for the group. Conduct regional meetings for people routinely involved in the purpose and need statement process. Remove extraneous material from purpose and need statements. Involve agencies early. Provide interagency training opportunities.
Alternative Analysis	Insert broader environmental concerns into planning. Use tiered documents as a tool where appropriate. Write tiering success stories. Define what Federal agencies bring to the table. Discuss the ratings of the alternatives.
Scoping	Conduct scoping early, not at the last minute. Foster openness and full disclosure. Develop tools like a guide for citizens and a contact list. Advocate the use of GIS. Conduct annual meetings. Develop a checklist.
Level of Detail	Establish an interagency group that will develop a data needs assessment for NEPA documentation.	No one identified.
Mitigation	Look not only at the watershed but also at the ecoregion/system level. Advocate advanced mitigation, where possible. Pool information when possible to identify and develop good mitigation sites. Look for compensatory measures that also satisfy NEPA requirements.
Indirect, Cumulative, and Secondary Impacts	Distribute the draft Questions and Answers on Indirect and Cumulative Impact Considerations in the NEPA Project Development Process for review and comment by field staff (FHWA). Release guidance on mitigation strategies for dealing with disturbances caused by increasing development, sprawl, and automobile usage (EPA). Discuss how to incorporate indirect and cumulative impact analyses into NEPA documents. Assess how to communicate and document information in a way that is neither too broad nor too narrow. Develop a case-by case approach to addressing direct, indirect, cumulative, and secondary impacts.
Tiering Issues	Develop a defined process for tiering. Conduct interagency training on tiering.
Air Toxics and Greenhouse Gases	Partner on a variety of air toxics related efforts (EPA and FHWA). Conduct additional research on air toxic impacts at the micro scale level. Develop the research methodology needed to provide more data on the subject. Integrate NEPA and air quality regulations Ensure that NEPA procedures reflect current Air Quality regulations. Collaborate on the development of global climate change policies.

APPENDIX A — WORKSHOP AGENDA

Workshop Purpose: The purpose of the workshop is to identify and build on successful streamlining practices that support both EPA and FHWA's missions and to assess the challenges that limit our ability to define mutually acceptable solutions to recurring and emerging issues. We hope participants will leave the workshop with a better understanding of each agency's definition of stewardship, clarification of our respective agency's capabilities to deliver meaningful solutions, and an improved understanding of how we can work together. The workshop topics have been divided into three major groupings: Setting the Context, NEPA Issues, and Critical/Emerging Issues.

Day One: December 4th

SETTING THE CONTEXT

8:00-10:00 — Welcome
The goal for this session is to establish common understanding of each other's perspective on stewardship and assessment of streamlining progress to date. EPA and FHWA representatives will report on current key initiatives. This will set the foundation for workshop discussions

1. Introductions
2. Agency philosophy and historical perspective on streamlining and stewardship
   • Fred Skaer, FHWA HQ
   • Joseph Montgomery, John Meagher, EPA HQ
3. Information exchange
   • Status update on the Executive Order implementation: Pam Stephenson, FHWA HQ
   • Stewardship Innovations/Vital Few Goals: Lucy Garliauskas, FHWA HQ
   • FHWA Domestic Scan on Environmental Commitments: Lamar Smith, FHWA HQ and David Carlson, EPA Region 2
   • Update on CEQ's NEPA Task Force: Pat Haman, EPA HQ

10:00-10:15 — Break

10:15-12:00 — Resource, Workforce and Training Issues
This session will begin with a discussion to identify resource and workforce issues for each agency and share each agencies perspective on the problems. A panel of presenters will then showcase example of solutions to these issues. Following the panel, the group will discuss strategies to promote the use of these solutions. The desired outcome of the session will for participants to identify resource gaps and approaches to meeting those gaps.

1. Existing problem areas
   Discussion Questions
   1. Define existing resource, workforce, and training issues.
   2. What do we need to do to address these issues?
2. Existing solutions
   • Interagency Agreements: Susan Absher and Ann Roche, EPA HQ; Nova Blazej, EPA Region 9; Dominique Lueckenhoff, EPA Region 6.
   • Use of technology to fill resource gaps: Lamar Smith, FHWA HQ
   • Workforce capacity and collaborative decisionmaking: Lucy Garliauskas, FHWA HQ
3. Brainstorm other solutions
   Discussion Questions
   1. Are there other solutions to resource, workforce and training issues?
   2. How do we promote use of these solutions?

12:00-1:30 — Lunch

NEPA ISSUES

1:30-2:45 — NEPA Process
This session will begin with a brief overview of the transportation proj