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Environmental Review Toolkit

Collaborative Problem Solving: Better and Streamlined Outcomes for All

Guidance on Managing Conflict and Resolving Disputes between State and Federal Agencies During the Transportation Project Development and Environmental Review Process

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This chapter presents strategies that advance good NEPA management practices, specifically those facilitating early involvement in transportation planning and coordinated, concurrent reviews of individual projects. The strategies include memoranda of understanding among agencies, delegations of programmatic authority, partnering initiatives, and other arrangements to promote environmental streamlining goals.

Legal Standards Applied In Environmental Law

The first level of legal standards applied in environmental law is "prohibition", such as the Endangered Species Act, where a finding of "jeopardy" stops the action.

Second is the standard applied under Section 4(f) of the Department of Transportation Act that must examine "feasible and prudent" alternatives and document "unique problems" of "extraordinary magnitude" before there is use of protected resources.

The third test is one of "most practicable", such as Section 404 of the Clean Water Act. This requires a rigorous analysis and a decision that takes into account the best public interest.

The fourth standard is exemplified by NEPA, a law that sets out a process to foster good decision making.

Finally there are the consultation laws, such as Section 106 of the National Historic Preservation Act or the Farmland Protection Act, which require consideration and coordination.

3.1 Expectations

Congress expected that environmental streamlining would lead to better coordination and predictable project delivery schedules through a process that is efficient, comprehensive, and streamlined. An efficient process allows agencies to agree on timeframes for conducting the required environmental reviews. Conceivably, these reviews would occur concurrently; the CEQ regulations state that agencies shall do concurrent reviews to the fullest extent possible.

Concurrent reviews would reduce duplication of effort, expedite agreement on outstanding issues, result in quicker acceptance of mitigation strategies, and help expedite the issuance of permits. This approach is ideal in theory. In reality, NEPA practitioners have learned that the missions of many transportation, environmental review, and permitting agencies do not intersect clearly. Distinct levels of legal review dictated by various environmental laws drive the level of information required, the nature of the documentation, the involvement of the various state and local resource agencies, and the standards of judicial review. All of this in addition to constrained resources can complicate the review process. Moreover, misinterpretation of the mandates, goals, and responsibilities of the agencies can make coordination a contentious affair, and can set the stage for conflict throughout the NEPA process2.

Early coordination is emphasized as an essential ingredient of environmental streamlining. Congress recognized that the concerns of the involved parties should be identified early in the process. A lot of time can be spent debating poorly documented decisions based on incomplete information or inadequate documentation. Similarly, failure to clarify agency requirements, needs and expectations on a broader level can exacerbate conflict during specific project development phases. These project specific conflicts and the issues that arise during the NEPA process are addressed in Chapter 4.

Congress also recognized the need for additional resources to support enhanced resource agency engagement in transportation projects, and deemed efforts to support their involvement eligible for Federal aid reimbursement. State departments of transportation may chose to fund positions or activities to be carried out by resource agencies that meet agreed upon timeframes and streamlining objectives.

3.2 NEPA as a Decision Making Tool

NEPA established the national policy for protection of the human environment and natural environment, and applies to actions that involve a Federal agency making a decision. All Federal agencies are encouraged to use NEPA as a procedural framework for addressing compliance with applicable environmental laws.

A coordinated approach to planning and project development contributes to more effective and environmentally sound decisions about transportation investment choices and trade-offs. Title 23 of the U.S. Code makes clear that transportation planning is a state and locally driven process. State and local officials are responsible for defining their transportation investment strategies, planning a transportation system that best reflects their community needs, and selecting and setting priorities for transportation projects. Because this is not defined as a Federal action, transportation plans are not subject to NEPA.

Experience has shown that greater commitment to preventing adverse environmental impacts and integrated agency coordination can add significant value to the transportation decision-making process. By law, FHWA cannot require NEPA at the planning level. However, the outcomes of the transportation planning process need to be considered in a manner that respects state and local decisions and investment choices. The challenge is in reaching agreement and defining the appropriate levels and timing of Federal agency involvement in what begins as a Federally assisted state process and culminates in a Federally directed process — NEPA.

Some states will choose to accelerate interagency coordination early in the NEPA process, while others will engage agencies at the transportation planning stage, emphasizing balancing of transportation and environmental needs at a broader systems level. Both models will lead to collaboration and provide an opportunity to resolve whatever conflict may arise or modify the transportation proposal early in the process.

Actions that help build interagency relationships and institutionalize conflict management strategies define expectations and clarify each party's level of participation and contribution to streamlining. A number of strategies available to facilitate collaborative decision-making or conflict management through the use of environmental streamlining are discussed in the following subsections.

3.3 Interagency Goals and Commitments to Advance the Principles of Streamlining

The National MOU on Environmental Streamlining reflects the intentions of the Federal resource agencies to achieve the goals of environmental streamlining-to expedite transportation projects while protecting and enhancing the environment. The signatories agree to work collaboratively, coordinate environmental review activities, and to become involved early in transportation planning activities. The Federal Interagency Work Group meets regularly in Washington, D.C. to facilitate the implementation of agency commitments under the MOU and serves as a conduit for quick agency response on issues that may generate conflict. Some responses require clarification of agency policy or guidance, or breaking logjams through specific agency directives.

3.4 Regional and State Strategies

Building on the National MOU and Action Plan, Federal agency field offices have defined approaches to achieve the environmental streamlining goals. They can be categorized as strategies that address process, program, or project efficiencies.

Process Strategies

Several field offices have adopted principle-based agreements, patterned after the National MOU, for consistency in meeting the goals of reducing delays, enhancing, and protecting the environment. The regional and state MOUs incorporate distinct regional priorities and typically define the ground rules and expectations, and clarify agency roles and responsibilities for conducting project reviews. The parties can choose to include negotiated timeframes, which is encouraged by the FHWA. The MOUs may also include agreements for a transfer of funds from transportation to environmental agencies to support specific activities.

Program Strategies

  • Agencies often find it appropriate to address factors and actions using a programmatic approach. This allows the affected agencies to explore and seek resolution of broad issues that benefit a large number of actions. If an action has no significant environmental impact or is always resolved in the same way, eliminating the need to address the same types of issues repeatedly can save time and lead to repeatable and predictable outcomes.
  • Programmatic agreements are useful for expeditiously addressing transportation system needs that are driven largely by safety and maintenance requirements. For many states, these are the bulk of their programs and are based on technical highway needs inventories and conditions, and performance of the physical structures.
  • Efficient and proficient handling of operational transportation improvements should allow necessary resources to be dedicated to projects requiring the preparation of environmental impact statements. Projects of this nature typically involve the construction of new facilities or major capacity expansion projects. These projects reflect the long-range transportation plans such as corridor studies, feasibility studies, or perhaps as illustrative projects.
  • If a state has a long range plan that is a policy plan rather than a facility-specific plan, new facilities are generally discussed in terms of a range of transportation system options that consider the statewide and metropolitan planning factors listed in TEA-21. These projects are more specifically advanced into the transportation improvement program — a listing of projects or project phases to be advanced over the next 1-3 years.
  • Transportation planning and air quality conformity requirements require regional analysis of the transportation projects anticipated to be advanced over the next 20 years. The transportation plan must be supported by documentation of financial commitment — the transportation improvement plan (TIP) must specify funding sources. Some projects, although still in planning, might be assigned dimensions and project descriptions as "placeholders" in order to fulfill planning and conformity requirements. While a significant amount of analysis and project related data collection through feasibility or corridor studies could be amassed in the planning phase, NEPA is not applied to these transportation system plans. For Federal transportation actions, NEPA is applied to the specific projects in the plan/transportation improvement program when the project enters the project development phase. From the perspectives of many environmental agencies, these statutory underpinnings have led to a perceived "procedural " disconnect between transportation planning and NEPA. Conversely, transportation agencies become frustrated when environmental agencies fail to consider the results of the transportation planning process or do not fully appreciate the transportation agency's responsibility as the lead agency to ensure full compliance with all environmental regulations under the "NEPA umbrella " concept.
  • If properly documented, the planning and analysis data that are developed could be used to justify and narrow the range of reasonable alternatives to be addressed during the NEPA process.
  • Expedited project reviews through programmatic agreements or delegations of authority create the opportunity for agencies and states to successfully meet their environmental protection missions. In addition, the resource agencies have more time to become familiar with the transportation planning process and better understand the basis for the transportation agency's proposals.

Streamlining Project Agreements

  • Project agreements define the processes and approaches to be used and set specified timeframes for project reviews. Project-specific streamlining or partnering agreements are generally used for large or complex projects, or those involving a host of complex impacts (e.g., significant historic, cultural or community impacts or issues).
  • These projects could lead to prolonged environmental reviews, disagreements and significant project delays. A number of states are pursuing streamlining agreements for "pilot " projects to test the benefits of more structured coordination.

3.5 Benefits of Early Involvement and Coordination of Reviews

Several states are addressing environmental resource protection issues at the transportation systems level. For example:

  • Florida has adopted a strategy for incorporating environmental factors into its long range planning process.
  • Oregon is defining a level of environmental review to apply during planning which allows the regulatory and resource agencies to provide input into the purpose and need as projects are identified in the planning phase.
  • Indiana is developing an approach for conducting environmental assessments during transportation corridor planning studies.

One goal is to develop mitigation strategies that will increase the likelihood of avoidance, reduce mitigation costs, or establish mitigation credits off-site. These strategies ensure greater predictability for carrying out the transportation plan as envisioned at the state and local levels. Early involvement of environmental agencies might also encourage the use of natural systems (e.g., river basins, air sheds, ecosystems) as geographic units for transportation planning.

Several states have also developed frameworks for coordinating project-specific review processes. These efforts typically encompass Section 404 permitting and NEPA process requirements. The benefits are faster, more efficient reviews.

For more information on streamlining initiatives and strategies, refer to the FHWA web site.

3.6 Making It Happen

Role of the Lead Agency Under NEPA

As the lead agency for most transportation projects, the FHWA division office or Federal Transit Administration (FTA) regional office are responsible for facilitating effective decision making, managing conflict, and reducing the likelihood of disputes. They should:

  • Convene and chair the initial and subsequent meetings for all the relevant Federal and state agencies.
  • Support and assist with resource exchange arrangements between state departments of transportation and resource agencies where the state has exercised its option to do so.
  • Suggest and arrange for activities that encourage team building, such as a partnering sessions conducted by a third party.
  • Make available or assist with obtaining interagency training in problem solving, negotiation, and dispute resolution, as well as in traditional substantive areas.
  • Model effective collaborative problem-solving behavior in its interactions with other agencies by employing interest-based negotiations. This implies that agency personnel have the requisite communication and problem-solving skills.
  • Develop meeting facilitation skills and be prepared to chair interagency discussions (see Section 5.2).

FHWA and FTA must balance their responsibility as a proponent of the project sponsor, and should:

  • Act impartially as the facilitator of a fair and balanced process,
  • Advocate the decision-making process, and
  • Extend the concept of partnership to all agencies in the process.

Role of Cooperating Agencies

The role of cooperating agencies is addressed in the CEQ regulations (40 CFR 1501.6) and emphasizes the importance of cooperation early in the NEPA process. Upon the request of the lead agency, other Federal agencies, with jurisdiction by law or with special expertise on an environmental issue involved in the project, have the responsibility to be cooperating agencies. It is important that this is done as early as practicable, and includes not just Federal agencies, but also state, tribal, and local government agencies that are players in the NEPA decision-making process for that project.

Early in the NEPA process, the lead agency along with all cooperating agencies are urged to:

  • Set time limits
  • Identify milestones
  • Assign responsibilities for analysis and documentation
  • Specify the scope and detail each agency's contribution
  • Establish appropriate ground-rules.

Cooperating agencies have a major role in ensuring that decisions made during the project development process are timely and conducted in an efficient manner. However, reaching agreements on agency roles could involve contentious deliberations. The decision-making authority of each agency and the level of consultation required can be the cause of ongoing disputes.

It is important to keep in mind that the benefits of cooperating agency participation include:

  • Disclosing relevant information early in the process
  • Applying available technical expertise
  • Avoiding duplication with other Federal, state, tribal, or local procedures
  • Establishing a mechanism for fostering inter and intra-governmental trust
  • Understanding and appreciating various roles in the NEPA process.

Additional thoughts on lead and cooperating agencies are available on CEQ's NEPA Net web site

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