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Maryland's Streamlined Environmental and Regulatory Process


Introduction

"Maryland's Streamlined Environmental and Regulatory Process" will be used to allow the documentation developed by the Maryland State Highway Administration, in compliance with the National Environmental Policy Act (NEPA), to serve as a substantial part of the documentation required by the reviewing, permitting and funding agencies in accordance with the applicable laws and regulations outlined in Appendix A. This streamlined process is intended to achieve the timely and efficient identification, evaluation and resolution of environmental and regulatory issues.

The agencies involved in this process are:

  • Federal Highway Administration (FHWA)
  • Corps of Engineers (COE)
  • Environmental Protection Agency (EPA)
  • Fish and Wildlife Service (FWS)
  • National Marine Fisheries Service (NMFS)
  • National Park Service (NPS)
  • State Highway Administration (SHA)
  • Maryland Department of Natural Resources (DNR)
  • Maryland Department of the Environment (MDE)
  • Maryland Historical Trust (MHT)
  • Maryland Office of Planning (OP)
  • Metropolitan Planning Organizations (MPO)*

*The MPO will be invited to the same meetings as the environmental agencies (i.e., Interagency Review Meetings, field/office meetings, etc.) and will be a "commenting" agency at the formal concurrence/comment points.

As part of a continuous evaluation effort by these agencies, this version of the procedures has been modified to incorporate the streamlining provisions of the Transportation Equity Act for the 21st Century (TEA-21). This document will continue to be regularly evaluated for its effectiveness and modified as appropriate.

The streamlined process provides numerous opportunities for agency input and includes requests for formal concurrence or comment at three key milestones: 1) purpose and need, 2) alternatives retained for detailed study, and 3) selected alternative and conceptual mitigation. It is the responsibility of the agencies to participate in the Interagency Review Meetings and provide input at the concurrence points.

In general, the project planning phase of the highway development process will incorporate the streamlined process until alternatives are developed and preliminary environmental impacts are identified. At the Interagency Review Meeting for Alternatives Retained for Detailed Study, the agencies will reevaluate their level of involvement in the project based on its environmental impacts and will decide whether formal concurrence points are still appropriate.

If the decision is made to stop formal concurrences, the project will still continue in the "streamlined process", and SHA will continue to make Interagency Review Meeting presentations to update the agencies on the project status. When the decision to end formal concurrences is made, any agency with a remaining issue should notify SHA, and SHA will coordinate with the agency to resolve it.

The intent of the streamlined process is to ensure that agency concurrences are obtained before proceeding to the next step. If an agency has not responded by the due date and has not requested an extension, SHA will contact the agency to determine its review status. If appropriate, the conflict resolution process (see Appendix D) will be initiated by either SHA or the responding agency; if conflict resolution is initiated, the other agencies will be notified and involved if appropriate. Agency comments received at a concurrence point must be addressed or resolved by SHA to the satisfaction of the commenting agency(s) before proceeding to the next step. However, if an agency's issue has not been resolved in a reasonable time frame, SHA may decide to proceed to the next step at its own risk.

Having concurred at a particular milestone, the agencies will not request that SHA revisit issues unless there is substantive new information that warrants a reevaluation of a previous concurrence. Examples of such information include, but are not limited to, a) a change in the assumptions on which the project need was based; b) a change in regulatory authority that extends regulatory jurisdiction to include an area or resource that was not previously regulated; and c) discovery of an impact, resource or additional information that was not previously identified or did not previously exist. (A change in agency staff assigned to a project is not sufficient reason to revisit an issue; newly involved agency staff will abide by the project decisions made by previous staff.) If an agency believes that an issue should be revisited, it will provide a request and supporting documentation to SHA; SHA will coordinate with the requesting agency and other appropriate agencies to determine if there is substantive new information.


Project Planning Phase

1. PROJECT PLANNING INITIATION:

In preparation for project scoping, which is a process that extends from project initiation through the Alternates Public Meeting/Workshop, SHA will collect both purpose and need and environmental inventory information. The type of information and level of detail collected must be determined for each project and could entail either more or less than the following items:

Purpose and Need Information:

  • limits of the study area
  • existing traffic and no-build average daily traffic data
  • technical traffic safety data, geometric deficiencies and accident data
  • planning history
  • how the local master plans address the transportation project
  • land use plans
  • areas of interest to local citizens and elected officials (note if project has been identified in the priority letter from the local jurisdiction elected official)
  • legislative mandates
  • economic initiatives
  • intermodal relationships, including bicycle/pedestrian systems, transit (rail and bus), port facilities and airport facilities
  • Project background information:
    • Highway Needs Inventory (HNI) status
    • Consolidated Transportation Program (CTP) status
    • MPO Constrained Long Range Plan status
    • Congestion Management System (CMS) status (identify if project is included in a completed or future CMS report)
    • Major Investment Study (MIS) status/information

Environmental Inventory Information:

  • results of the wetlands corridor identification
  • floodplains
  • threatened and endangered species
  • historic structures and assessment of archeological potential
  • consulting parties for Section 106 purposes
  • parklands
  • existing land use map and locally adopted land use plan (including horizon year)
  • Smart Growth implications (identify if study area is within a Priority Funding Area (PFA) – provide map showing study area in relation to PFA boundary)
  • Environmental Justice concerns
  • Clean Air Act conformance issues
  • sites identified on the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) list and other potential hazardous sites

Early in the project, SHA will hold an internal scoping meeting to discuss background data, preliminary purpose and need, engineering and environmental inventories, and significant project issues.

SHA will then prepare the draft Purpose and Need Statement, including the supporting technical documentation, and distribute it to the agencies at the Interagency Review Meeting thirty (30) days prior to the formal Interagency Review Meeting presentation. Along with the draft Purpose and Need Statement, SHA will also provide study area mapping showing environmental features, including the PFA boundary(s). When the Statement and mapping are distributed, SHA will also give a brief overview of the project (background, location, and concise purpose and need description). The purpose of this overview is simply to familiarize the agencies with the project prior to the upcoming agency field/office meeting.

Approximately two weeks prior to the formal Interagency Review Meeting presentation, SHA will hold a field/office meeting with the agencies at the project site. SHA will provide a confirmation letter to the agencies (with date, time and meeting location) two weeks before the meeting, ideally at the overview Interagency Review Meeting discussed above. The agencies are to review the draft Purpose and Need Statement and come to the field/office meeting prepared to discuss their comments; agencies unable to attend are to provide their informal comments to SHA by the meeting date. If appropriate, local planning and public works agencies may also be invited in order to offer their perspective, discuss master plans, etc.

The main purposes of the field/office meeting are to:

  • Review the draft Purpose and Need Statement, including the supporting technical documentation, and receive and resolve agency comments
  • Prepare - as a group - a one to two page Purpose and Need summary, which will ultimately serve as the formal agency concurrence/comment document
  • Review the project study area and discuss other issues, including but not limited to:
    • project study area and termini
    • existing roadway and transit system descriptions
    • problems in the study area, including key traffic issues
    • key environmental concerns/constraints (including Environmental Justice and Clean Air Act conformity issues)
    • properties where anticipated development will occur
    • Section 106 potential consulting parties, anticipated public participation plan, and the preliminary area of potential effect (once potential consulting parties have been identified, SHA will send letters to them explaining the process and the role of consulting parties and inviting them to participate as a consulting party)

At this field/office meeting, the agencies should identify any concerns which would prevent them from concurring on the Purpose and Need Statement. If appropriate, SHA or the agency should initiate the conflict resolution process by arranging to caucus at the upcoming formal Interagency Review Meeting presentation.

SHA will prepare detailed minutes of the field/office meeting.

2. INTERAGENCY REVIEW MEETING FOR PURPOSE AND NEED:

SHA will hold an Interagency Review Meeting to present the project purpose and need and background information collected during initial project planning, as well as a draft schedule identifying the proposed milestones, critical dates and the project's priority. The focus of the presentation will be: a) to review the one to two page Purpose and Need summary which was developed as a group at the agency field/office meeting and b) to present any modifications made to the Purpose and Need Statement and supporting technical documentation resulting from that meeting.

If all agency concerns from the field/office meeting have been adequately addressed, and no new issues are raised at the presentation, SHA will distribute the formal Purpose and Need package at the Interagency Review Meeting. Agencies may provide their formal concurrence at this meeting by signing the Purpose and Need summary.

If additional concerns are raised at the Interagency Review presentation which require additional documentation or revisions to the Purpose and Need package, SHA will incorporate the changes and distribute the package for concurrence/comment within two weeks after the presentation. The agencies may also caucus at the Interagency Review Meeting to try to resolve outstanding concerns. If the concerns remain unresolved after the caucus, the decision to proceed to Step 2 in the conflict resolution process will be discussed at the Interagency Review Meeting.

If Major Investment Study (MIS) requirements must be met for the project, then SHA will make a presentation to the governing body of the MPO to introduce the project. The presentation will be similar to the Purpose and Need Interagency Review presentation.

3. CONCURRENCE ON PURPOSE AND NEED:

The "concurring" agencies will provide either written concurrence or indicate deficiencies with the purpose and need information within fifteen (15) calendar days of the written request from SHA. The written request will include the one to two page Purpose and Need summary (with signature lines and "comment"/"no comment" blocks); the Purpose and Need Statement with supporting technical documentation, and appropriate mapping.

The "commenting" agencies are to submit their comments to SHA within the same fifteen day time frame. These comments should focus on whether the information presented is adequate to proceed with project development.

If an agency is unable to provide concurrence or comments within the fifteen days, it shall informally notify FHWA/SHA and request an extension of up to fourteen (14) calendar days. If an agency has not responded or requested an extension, then SHA will contact the agency to determine its review status. If appropriate, the conflict resolution process will be initiated.

All agencies will forward to the other agencies a copy of their concurrence or comment response, and SHA will copy all agencies on its responses to agency comments.

Note: The COE has regulatory authority to evaluate the applicant's Purpose and Need statement and define the "overall project purpose". The "overall project purpose" is determined from the perspective of a typical applicant for the particular type of activity involved, taking into consideration the unique needs of the project in the context of a reasonably defined study area. It is important that SHA and the agencies reach consensus on the purpose and need for the project, so that SHA's proposed purpose and the COE's "overall project purpose" are the same.

FHWA may request the COE, EPA and/or other appropriate agencies to be cooperating agencies under NEPA. At this point, agencies may determine their role or level of involvement in a particular project.

4. DEVELOP PRELIMINARY ALTERNATIVES:

After Purpose and Need concurrence has been obtained, SHA with participation from the agencies will develop an overlay of the preliminary/conceptual alternatives on the study area environmental base map. Multi-modal alternatives will also be considered and evaluated as appropriate.

Agency participation in the development of preliminary/conceptual alternatives will occur at an interagency field/office meeting. This field/office meeting must be held at least three (3) months prior to the Alternates Public Meeting/Workshop, so that SHA can adequately address alternatives suggested by the agencies.

Thirty (30) calendar days prior to the field/office meeting, SHA will provide the agencies with: a) a confirmation letter with the meeting date, time and location; b) study area mapping showing the key environmental features only and c) study area mapping showing both SHA's preliminary conceptual alternatives (incorporating Congestion Management Strategy options if capacity is being added) and key environmental features. If desired, the agencies may use the first type of mapping to develop independent alternatives on their own prior to the field/office meeting or as a group at the meeting, without being influenced by SHA's preliminary alternatives. The second type of mapping may be used by the agencies to suggest modifications to SHA's preliminary alternatives. Substantial time must be allotted at the meeting for this effort, and SHA should have engineers available at the meeting to provide information about design constraints, etc.

At the field/office meeting, the agencies will be prepared to:

  • recommend additional alternatives
  • suggest modifications to SHA's preliminary conceptual alternatives and study area limits
  • identify specific environmental resources that are important
  • recommend the scope of study considered necessary to determine impacts
  • for all resources, identify necessary data collection for completing any identified/requested special studies (for wetlands, determine the appropriate level of identification effort (whether jurisdictional or a lesser level, as agreed by COE); note that the wetland corridor identification will have already been completed)
  • discuss secondary and cumulative effects issues related to geographic boundaries, time frames and relevant resources for the analysis

SHA will prepare detailed minutes of the field/office meeting, including a request for additional input on alternatives, special studies, etc. for those unable to attend the meeting. The agencies are to provide any significant concerns or issues to SHA in writing within fourteen (14) calendar days of receiving SHA's meeting minutes.

Prior to the Alternates Public Meeting/Workshop, SHA will show to the agencies at an Interagency Review Meeting those alternatives being presented to the public. SHA will: a) explain how the preliminary alternatives, including any new alternatives or suggested revisions to SHA's preliminary alternatives generated by the agencies at the field/office meeting, have been incorporated into the study and b) the rationale for dropping or modifying any alternatives. This presentation must occur far enough in advance of the Alternates Public Meeting/Workshop so that agency concerns may be addressed and the conflict resolution process concluded if needed.

5. ALTERNATES PUBLIC MEETING/WORKSHOP:

An Alternates Public Meeting/Workshop will be held during this stage to present the project (including purpose and need, preliminary alternatives, environmental impacts, etc.) to the public. Wording will be incorporated into the brochure, presentation, and/or write-up for the environmental resources station to solicit public input on the Section 106 process and to solicit additional consulting parties. All agencies are encouraged to attend and/or participate in this meeting.

6. IDENTIFY ALTERNATIVES FOR DETAILED STUDY:

Based on comments received at the Alternates Public Meeting/Workshop, SHA will identify the potential alternatives to be retained for detailed study. During this step, SHA will also document the rationale for dropping those preliminary conceptual alternatives that are not recommended for detailed study.

If MIS requirements must be met for the project, then SHA will make a presentation to the governing body of the MPO to describe comments received from the public at the Alternates Public Meeting/Workshop and the recommended alternatives being retained for detailed study. SHA will request the MPO's agreement that the MIS requirements have been satisfied.

7. INTERAGENCY REVIEW MEETING FOR ALTERNATIVES TO BE RETAINED FOR DETAILED STUDY:

Thirty (30) calendar days prior to the Interagency Review Meeting at which the formal presentation is made, a draft Alternatives Retained for Detailed Study concurrence/comment package (including a one to two page summary sheet which will ultimately serve as the formal agency concurrence/comment document), will be provided to the agencies. The agencies are to provide informal comments to SHA within fourteen (14) calendar days of receiving the draft package; this will allow SHA time to address their comments prior to the formal presentation. In these informal comments, the agencies should identify any concerns which would prevent them from concurring on the Alternatives Retained for Detailed Study. If desired for a particularly complex and/or controversial project, a separate meeting of SHA and agency staff may be held (between the distribution of the draft package and the formal Interagency Review Meeting presentation) to review in more detail the alternatives being retained.

At the Interagency Review Meeting, the following topics will be discussed:

  • The rationale for retaining or dropping preliminary conceptual alternatives. This rationale must be consistently applied to all of the alternatives.
  • Results of the MIS presentation to the MPO.
  • SHA will indicate whether the alternatives are located within or outside of a certified PFA or an OP comment area, consistent with the Smart Growth initiative. If any of the alternatives are totally or partially outside a PFA, then further coordination to address Smart Growth requirements will be needed.
  • The level of involvement of other agencies and interested parties (i.e., Coast Guard, local agencies, Section 106 consulting parties, etc.), as well as their positions (if any) on the project.
  • The agencies will reevaluate their level of involvement in the project based on its environmental impacts and will decide whether formal concurrence points are still appropriate.

If all concerns raised in the agencies' informal comments on the draft package have been adequately addressed and no new issues are raised at the presentation, SHA will distribute the formal Alternatives Retained for Detailed Study package at the Interagency Review Meeting. Agencies may provide their formal concurrence at this meeting by signing the Alternatives Retained for Detailed Study summary.

If additional concerns are raised at the Interagency Review presentation which require additional documentation or revisions to the Alternatives Retained for Detailed Study package, SHA will incorporate the changes and distribute the package for concurrence/comment within two weeks after the presentation. The agencies may also caucus at the Interagency Review Meeting to try to resolve outstanding concerns. If the concerns remain unresolved after the caucus, the decision to proceed to Step 2 in the conflict resolution process will be discussed at the Interagency Review Meeting.

8. CONCURRENCE ON ALTERNATIVES RETAINED FOR DETAILED STUDY:

The "concurring" agencies will provide either written concurrence or indicate deficiencies with the alternatives retained for detailed study within thirty (30) calendar days of the written request from SHA. The written request will include the one to two page Alternatives Retained for Detailed Study summary (with signature lines and "comment"/"no comment" blocks), the environmental impacts of each alternative, the written summarization of the (consistently applied) rationale for dropping and retaining alternatives, and alternatives mapping.

The "commenting" agencies are to submit their comments to SHA within the same thirty day time frame. These comments should focus on whether the information presented is adequate to proceed with project development.

If an agency is unable to provide concurrence or comments within the thirty days, it shall informally notify FHWA/SHA and request an extension of up to fourteen (14) calendar days. If an agency has not responded or requested an extension, then SHA will contact the agency to determine its review status. If appropriate, the conflict resolution process will be initiated.

All agencies will forward to the other agencies a copy of their concurrence or comment response, and SHA will copy all agencies on its responses to agency comments.

At this concurrence/comment point, SHA will ask OP for a preliminary evaluation of consistency with the 1992 Economic Growth, Resource Protection and Planning Act for each of the alternatives retained for detailed study. This request may be incorporated into the concurrence/comment letter or included in a separate letter.

9. DETAILED ALTERNATIVES ANALYSIS:

Detailed engineering analyses of the alternatives retained for detailed study will be completed. Additionally, detailed environmental analyses of the impacts to natural, socio-economic (including Section 4(f)) and cultural resources will be conducted, including avoidance, minimization and potential mitigation measures. This effort will require coordination with the agencies, local governments, Section 106 consulting parties and the public to address their concerns and refine the alternatives as they are being developed.

If appropriate, an agency wetland field review meeting will be held to:

  • Determine jurisdictional wetland boundaries. These boundaries will be established to a level of detail sufficient for the purposes of project planning; the COE will provide written jurisdictional determinations which will be valid for five years (for project planning use only).
  • Determine wetland functional assessments.
  • Discuss any avoidance and minimization measures already incorporated into the project alignments, as well as potential future measures that should be investigated.
  • Review any potential wetland mitigation sites that may be noted during the delineation effort.
  • Begin preliminary discussions regarding mitigation goals and the types of wetlands to be created based on the functional assessments.

If additional wetland mitigation sites are needed, SHA will conduct a site search to identify enough potential sites to accommodate the range of impacts associated with the alternatives retained for detailed study. SHA will complete an environmental assessment of the sites noted during the delineation effort and/or those identified during the site search. This environmental assessment will identify historic resources, threatened and endangered species, parks, etc. SHA will then arrange an agency field meeting to review the mitigation sites, discuss the environmental assessment results, and determine which sites are acceptable to the agencies.

For all impacted resources, the agencies will coordinate with SHA regarding concerns about avoidance, minimization and mitigation. SHA will document its avoidance and minimization efforts (including bridge lengths, retaining walls, cross-section revisions, alignment shifts, etc.) in the draft environmental document and will include a general discussion of potential mitigation strategies and anticipated future agency coordination.

10. PREPARE DRAFT ENVIRONMENTAL DOCUMENT AND HOLD PUBLIC HEARING:

After preparing the preliminary draft environmental document, SHA will provide copies to FHWA, the cooperating agencies and (upon request) the other agencies and will identify a proposed public hearing date. The agencies will then have a minimum of thirty (30) calendar days to review the document and provide their comments to SHA.

If wetlands are potentially impacted by the project, SHA and the COE (with input from MDE) will coordinate a joint public notice to be mailed to a joint SHA/COE mailing list, including property owners adjacent to any affected wetlands and Section 106 consulting parties. The notice will identify the joint public hearing date and will be mailed at least thirty (30) calendar days prior to that date. Also, appropriate wording to address wetland and historic resource concerns will be included in the public notice, as well as the public hearing brochure, script and/or displays.

FHWA, the cooperating agencies and the other agencies will review the preliminary draft environmental document for adequacy as it relates to NEPA requirements and COE authorization needs and provide comments to SHA. SHA will revise the environmental document based on these comments and provide the commenting agencies with a revised edition for review. This second review period would be a minimum of two (2) weeks, to ensure that the agencies' comments have been addressed prior to circulation of the final draft document. If additional document revisions are made based on the second review, a complete revised document or revised pages must be provided to FHWA ten (10) calendar days before their signature is needed.

FHWA will sign the title page of the final draft environmental document prior to SHA circulating it. If appropriate, SHA's distribution letter to the agencies will also state that this draft document will constitute an application for a COE authorization.

The agencies will review the approved draft environmental document and provide their comments to FHWA or SHA. SHA will ensure that each agency receives copies of the other agencies' comments. The joint public notice will initiate MDE's Coastal Zone Consistency (CZC) and Water Quality Certification (WQC) reviews of those activities requiring COE authorization. Based on the public notice, EPA Region 3, FWS and NMFS will determine and document in writing which, if any, project alternatives may result in substantial and unacceptable impacts to aquatic resources of national importance. For the purposes of the Section 404(q) Memorandum of Agreement between the COE and EPA, Part IV.3(a), the sequence for the elevation process relates to the date of issuance of the public notice.

After the close of the public record, SHA and the COE will exchange public and agency comments to ensure that all comments are addressed. A copy of the public hearing transcript will be sent to the COE at the same time the transcript is sent to FHWA on all projects to ensure that public interest factors are identified for the COE. The COE will provide SHA any COE and/or agency concerns and request its response.

11. INTERAGENCY REVIEW MEETING FOR RECOMMENDED ALTERNATIVE:

At an Interagency Review Meeting, the following topics will be discussed:

  • SHA will discuss any agency comments received on the draft environmental document and how they will be addressed. In instances where SHA cannot adopt an agency's recommendation, SHA will provide the rationale for why it cannot be addressed
  • SHA's project team will present the alternative which they will recommend to the SHA Administrator, including associated mitigation for impacted resources.
  • The agencies will provide their comments.

If MIS requirements must be met for the project, then SHA will make a presentation to the governing body of the MPO to describe comments received from the public at the Public Hearing and the alternative being recommended by SHA's project team.

12. SHA's SELECTED ALTERNATIVE:

The SHA project team will present its recommended alternative to the SHA Administrator, including comments received during the Public Hearing comment period, comments received from the agencies at the Interagency Review Meeting for the recommended alternative, and the results of the MPO presentation. The Administrator will then determine SHA's selected alternative, and the team will begin initial preparation of the final environmental document, including the summary of the Public Hearing comments and letters documenting agency coordination.

13. INTERAGENCY REVIEW MEETING FOR SHA's SELECTED ALTERNATIVE AND CONCEPTUAL MITIGATION:

Thirty (30) calendar days prior to the Interagency Review Meeting at which the formal presentation is made, a draft SHA Selected Alternative and Conceptual Mitigation concurrence/comment package (including a one to two page summary sheet which will ultimately serve as the formal agency concurrence/comment document), will be provided to the agencies. The agencies are to provide informal comments to SHA within fourteen (14) calendar days of receiving the draft package; this will allow SHA time to address their comments prior to the formal presentation. In these informal comments, the agencies should identify any concerns which would prevent them from concurring on SHA's Selected Alternative and the Conceptual Mitigation. If desired for a particularly complex and/or controversial project, a separate meeting of SHA and agency staff may be held (between the distribution of the draft package and the formal Interagency Review Meeting presentation) to review in more detail SHA's selected alternative and conceptual mitigation.

At the Interagency Review Meeting, the following topics will be discussed:

  • SHA will present its selected alternative, including the rationale for the selection.
  • Preliminary proposed mitigation for historic sites, noise, parklands, threatened and endangered species, etc.
  • Conceptual mitigation for wetlands and waters of the US. The information to be discussed includes -- but is not limited to -- concept plans and descriptions of the proposed mitigation; types, functions and values of the impacted wetlands; mitigation goals; replacement ratios for each type of impacted wetland; stream restoration (if required); and endangered species mitigation (if required).
  • SHA will indicate whether its selected alternative is located within or outside of a certified PFA or an OP comment area, consistent with the Smart Growth initiative. If any of the alternative is totally or partially outside a PFA, then further coordination to address Smart Growth requirements will be needed.
  • The level of involvement of other agencies and interested parties (i.e., Coast Guard, local agencies, Section 106 consulting parties, etc.), as well as their positions (if any) on the project.

The agencies will continue to coordinate with SHA to resolve any remaining concerns regarding avoidance, minimization and mitigation.

If all concerns raised in the agencies' informal comments on the draft package have been adequately addressed and no new issues are raised at the presentation, SHA will distribute the formal SHA Selected Alternative and Conceptual Mitigation package at the Interagency Review Meeting. Agencies may provide their formal concurrence at this meeting by signing the SHA Selected Alternative and Conceptual Mitigation summary.

If additional concerns are raised at the Interagency Review presentation which require additional documentation or revisions to the SHA Selected Alternative and Conceptual Mitigation package, SHA will incorporate the changes and distribute the package for concurrence/comment within two weeks after the presentation. The agencies may also caucus at the Interagency Review Meeting to try to resolve outstanding concerns. If the concerns remain unresolved after the caucus, the decision to proceed to Step 2 in the conflict resolution process will be discussed at the Interagency Review Meeting.

14. CONCURRENCE ON SHA's SELECTED ALTERNATIVE AND CONCEPTUAL MITIGATION:

The "concurring" agencies will provide either written concurrence or indicate deficiencies with SHA's selected alternative and conceptual mitigation within thirty (30) calendar days of a written request from SHA. This request will include the one to two page SHA Selected Alternative and Conceptual Mitigation summary (with signature lines and "comment"/"no comment" blocks), the written summarization indicating SHA's selected alternative (including cross-sections, tentative bridge lengths and retaining walls, etc.) and conceptual mitigation, the rationale for the selection, and appropriate mapping.

The "commenting" agencies are to submit their comments to SHA within the same thirty day time frame. The US Department of the Interior will submit formal comments if resources under its jurisdiction are impacted. These comments should focus on whether the information presented is adequate to proceed with project development.

If an agency is unable to provide concurrence or comments within the thirty days, it shall informally notify FHWA/SHA and request an extension of up to fourteen (14) calendar days. If an agency has not responded or requested an extension, then SHA will contact the agency to determine its review status. If appropriate, the conflict resolution process should be initiated.

All agencies will forward to the other agencies a copy of their concurrence or comment response, and SHA will copy all agencies on its responses to agency comments.

The COE's concurrence with SHA's selected alternative indicates that SHA may proceed to the next step in the streamlined process. It does not in any way imply that SHA's selected alternative will be permitted for Section 404 purposes.

15. COMPLETE FINAL ENVIRONMENTAL DOCUMENT:

After preparing the preliminary final environmental document, SHA will provide copies to FHWA, COE, MDE, cooperating agencies and (upon request) the other agencies. These agencies will then have a minimum of thirty (30) calendar days to review the document and provide their comments to SHA. The agencies will coordinate on any unresolved issues.

MDE's WQC and CZC decisions will be based on the adequacy of the environmental document and concurrence on the selected alternative. MDE will issue preliminary WQC and CZC concurrences, conditioned upon the project receiving all necessary state approvals, within sixty (60) calendar days of receiving the preliminary final environmental document.

SHA will incorporate the agencies' comments on the preliminary final environmental document into a revised edition and provide it to the cooperating agencies for their review. This second review period will be a minimum of two (2) weeks, to ensure that the agencies' comments have been addressed. If additional document revisions are made based on the second review, a complete revised document or revised pages must be provided to FHWA ten (10) calendar days before their signature is needed.

The final document will be provided to FHWA for approval. SHA will prepare a letter to the agencies transmitting the final environmental document after it is signed by FHWA.

When all agency concerns are addressed to the COE's satisfaction, and when FHWA has issued a Record of Decision or Finding Of No Significant Impact, the COE will decide whether to issue the Section 404 permit. If so, the permit will be issued within fifteen (15) calendar days of FHWA's Location Approval (unless there is an elevation under the 404(q) process. The COE authorization may be conditioned on further avoidance and minimization efforts and a subsequent submission of a mitigation plan. It may also be conditioned to include any conditions of MDE's WQC and CZC decisions which are considered necessary to mitigate impacts to aquatic resources, and any commitments contained in the final environmental document which have the effect of reducing impacts to aquatic resources.

For the purposes of these procedures and when the COE is a cooperating agency, the issuance of the final environmental document officially ends the 404(q) public notice comment period. In accordance with 404(q) MOA Part IV.3(b), EPA Region 3, FWS or NMFS will document in writing to the COE, within 25 days after the date of issuance of the final environmental document, if they so determine that the selected alternative will result in substantial and unacceptable impacts to aquatic resources of national importance. If EPA Region 3, FWS or NMFS makes this determination, then the COE authorization for the selected alternative cannot be issued until the elevation process is complete. If the COE's proposed authorization decision is contrary to the stated recommendation of a party to the 404(q) MOA, the COE will follow the procedures specified in Part IV.3(c) and (d) of the MOA for dispute resolution.

Detailed Design Phase

16. FURTHER ENVIRONMENTAL MINIMIZATION AND MITIGATION:

During final design, SHA will continue to refine the design of the selected alternative to further minimize impacts to natural, socio-economic and cultural environmental resources. Mitigation for unavoidable impacts will also continue to be refined. For example, Phase III archeology, additional noise abatement studies, and searches for replacement parkland may be required during final design. SHA will continue to coordinate these efforts with the appropriate agencies.

For wetlands, an Interagency Review Meeting will be held to discuss further minimization efforts such as slopes, final bridge details, geometry, profiles, cross-sections, minor alignment shifts, etc.; final wetland and waters of the US mitigation plans; and the necessity for additional field investigations.

SHA will submit an application to MDE to initiate its wetlands and waterways permit action(s). Additional CZC and WQC requirements may be issued as part of MDE's wetlands and waterways permit authorization(s). At this time, SHA will provide to the agencies a summary of further wetland avoidance and minimization efforts that occurred during final design. The submission of this summary to the COE will also address any COE permit conditions.

If at any time the alternative(s) change from the description given in the public notices, the COE will consider the need for a supplemental, revised or corrected public notice; a permit modification; and/or a public interest review. The COE's determination will be based on the degree to which the previously identified impacts are increased, and/or the extent of impact to resources not previously identified as being affected.

FHWA and SHA will consider the need for supplemental NEPA documentation during final design. A reevaluation of the project would involve assessing any design revisions to the selected alternative and whether those revisions resulted in new or different impacts to natural, socio-economic and cultural environmental resources. FHWA would then determine whether or not the approved environmental document remains valid or whether supplemental documentation is required.

Conflict Resolution

The agencies will participate with SHA in any additional consultation necessary to resolve, whenever possible, the concerns which have been raised regarding purpose and need; alternatives; and resource avoidance, minimization and mitigation. Any agency may initiate this process as soon as a potentially conflicting issue is identified. The goal of the conflict resolution process is to resolve technical and/or policy issues at the lowest possible staff level. The four steps in the process are briefly described below (see Appendix D for a detailed description):

Step 1: Interagency Review Meeting/caucus of working staff to address technical issues. A report of the results would go into the Interagency Review Meeting minutes.

Step 2: Separate meeting with working staff and/or first level managers to address technical issues.

Step 3: Meeting of the Interagency Managers to address technical or policy issues. It is anticipated that all technical issues would be resolved at this level.

Step 4: Meeting of executives to address highly complex or controversial policy issues.

Each agency has expertise and authority in particular areas. The conflict resolution procedure does not eliminate any agency's right to make a final determination about an issue within its jurisdiction without reaching resolution with other agencies on that issue.

The established COE and resource agency Memoranda of Agreement pertaining to Section 404(q) of the Clean Water Act (elevating a permit), Section 404(c) (EPA's veto authority), and 33 CFR 325.2(b) (pertaining to the issuance of WQC and CZC) shall apply when agency concerns remain unresolved. At the conclusion of consultation, SHA will provide written documentation (revised plans, commitments, etc.) of any agreed upon modifications to the proposed project to the involved agencies.

Conclusion

These streamlined procedures are not intended to -- nor can they -- diminish, modify, or otherwise affect current or future statutory or regulatory authorities of the agencies involved. In the event of any conflict between these procedures and other statues or regulations, the statutes or regulations control.

This process represents a substantial level of agency involvement during the development of SHA projects. The involved agencies have agreed to commit resources to the fullest extent practicable within their respective organizations to implement this process.

APPENDIX "A"

AGENCIES, LAWS/REGULATIONS

AND DEFINITIONS

  1. Agencies involved in the streamlined process include the following:
    1. US Environmental Protection Agency (EPA);
    2. US Army Corps of Engineers (COE), Baltimore District;
    3. US Department of Interior, Field Supervisor, Fish and Wildlife Service (USFWS);
    4. National Marine Fisheries Service (NMFS), Habitat and Protected Resource Division;
    5. US Department of Interior, National Capitol Region and Mid-Atlantic Region, National Park Service (NPS);
    6. US Coast Guard;
    7. Maryland State Historic Preservation Office (Maryland Historical Trust (MHT));
    8. Maryland Department of the Environment (MDE), Water Management Administration, Water Quality Certification Division;
    9. Maryland Department of Natural Resources (DNR);
    10. Maryland Office of Planning (OP);
    11. Advisory Council on Historic Preservation (ACHP);
    12. Federal Highway Administration (FHWA);
    13. applicable county planning department(s)
    14. Metropolitan Planning Organizations (MPO)
  2. Applicable laws and regulations, as amended, will include:
    1. Section 106 of the National Historic Preservation Act, as amended;
    2. Act for the Preservation of American Antiquities;
    3. Archeological Resources Protection Act, 1979;
    4. Section 4(f) of US DOT Act;
    5. National Environmental Policy Act;
    6. Maryland Environmental Policy Act;
    7. Coastal Zone Management Act of 1972, as amended;
    8. Title 23 U.S.C.;
    9. Safe Drinking Water Act;
    10. Wilderness Act;
    11. Wild and Scenic Rivers Act;
    12. Executive Order 11990, Protection of Wetlands;
    13. Order 11988, Flood Hazards;
    14. Rivers and Harbor Act of 1899;
    15. Clean Water Act, 1977;
    16. Fish and Wildlife Coordination Act of 1958;
    17. Endangered Species Act;
    18. Insurance Act;
    19. Clean Air Act, as amended;
    20. Noise Control Act of 1972;
    21. Maryland Economic Growth, Resource Protection and Planning Act of 1992;
    22. Maryland Historical Preservation Act, 1985, as amended;
    23. Protection Act, 1989 (Title 5, Subtitle 9, Environment Article, Annotated Code of Maryland); and Waterway Construction Permits (Title 5, Subtitle 5, Section 503, Environment Article, Annotated Code of Maryland);
    24. Wetlands and Riparian Rights (Title 16, Environment Article, Annotated Code of Maryland);
    25. for the 21st Century, 1998.
    26. Smart Growth Areas Act of 1997.

Definitions:

Note: These definitions are provided for the purpose of clarifying terms commonly used in the highway development process. These definitions are not intended to replace specific regulatory definitions or those proscribed by law.

Adjacent property owners:

Will include any property owners who are adjacent to an affected wetland and from whom property must be acquired for the highway or for other attendant facilities such as stormwater management ponds, noise barriers, replacement parklands, wetland mitigation, etc.

Alignment:

A specific path of an alternative (a centerline).

Alternate (alternative):

A general term denoting one of a number of specific transportation improvement proposals, alignments, options, etc., from which one such improvement is typically chosen, or selected. For example, at the macro level alternative could mean a mass transit proposal instead of a highway proposal. At a later stage in project development, alternative could mean a western relocation instead of an eastern relocation. The term could also mean a specific improvement type, e.g., four lanes instead of six lanes, on the same centerline.

Best Management Practices:

General permit conditions that ensure minimum adverse effect on navigation, use of erosion and sedimentation controls, minimum disruption of aquatic life movement, minimization of soil disturbance when working in wetlands, and compliance with other applicable regulations.

CE (Categorical Exclusion):

Highway actions that do not individually or cumulatively result in significant environmental impacts as determined by FHWA.

Conceptual Alternative:

A generalized right-of-way band width associated with an alignment/typical section through a corridor for which preliminary environmental and engineering analyses are undertaken. Specific project impacts are not identified.

Concurrence:

Written determination by the agency that the information to date is adequate to agree that the project can be advanced to the next stage of project development. Agencies agree not to revisit the previous process steps unless conditions change.

Concurrence Points:

Points in the project development process where a transportation agency requests formal concurrence.

Conflict Resolution:

Process for resolving agency disagreement on project issues such as scope of study, purpose and need, alternatives, avoidance/minimization of impacts, mitigation and permit requirements.

Corridor:

A strip of land between two termini within which topography, environment and other characteristics are evaluated for transportation purposes. The area or location is not constrained by an existing roadway or landmarks, unless it is a reconstruction projects along an existing roadway. In such reconstruction projects the corridor would be the area adjacent to the existing roadway. Within this area traffic can be moved from point A to point B (For projects other than reconstruction a corridor typically ranges from 0.5 - 1.0 miles wide).

Cumulative Effects:

The impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions.

Early Involvement:

Active participation by the review agencies, citizens, local government and elected officials in transportation alternatives development and evaluation, usually prior to or concurrent with the planning phase of the project development process.


EA (Environmental Assessment):

Environmental document prepared for highway projects where the significance of environmental impacts are not clearly established. This type of document is used to determine the magnitude of environmental impacts. If it is found that significant impacts will not occur than a FONSI will be prepared. If it is found that significant impacts will occur, then an EIS is prepared.

EIS (Environmental Impact Statement):

Environmental document prepared for highway projects that result in significant environmental impacts.

FONSI (Finding Of No Significant Impact):

Environmental document for proposed projects where it has been determined through the circulation of an Environmental Assessment that a highway project will not have a significant impact on the environment.

Section 4(f):

Section 4(f) of the US Department of Transportation Act of 1966, requires that the proposed use of any land from a significant publicly owned public park, recreation area, wildlife refuge, or historic site for a federally funded transportation project be given particular attention. Final action requiring the taking of such land must document that there are no feasible and prudent alternatives to its use. Additionally, a full evaluation of measures to minimize harm to that resource must be made and documented.

Jurisdictional Determination:

A map or document prepared to indicate the geographic extent of all Clean Water Act Waters of the United States, including wetlands, prepared in accordance with the Corps' procedures and methodologies for determining Waters of the United States (e.g., ordinary high water mark). The Corps (or NRCS for Agricultural Land) will provide verification in writing when they have validated that the map or document accurately indicates the Waters of the United States, including wetlands. The verifications are good for a specified period of time, usually five years. Although the Corps conducts jurisdictional determinations on a day-to-day basis, the ultimate authority is the Administrator of EPA for the geographic scope of the Waters of the United States, including wetlands.

Jurisdictional Wetland:

Wetlands that satisfy the definition prescribed by the delineation method currently accepted by the COE, including any current COE Regulatory Guidance Letter (RGL) and internal guidance/policy.


Level Of Detail:

A general term referring to the critical amount of data collected, and the scale, scope and degree to which refinements of specific points are necessary or desirable in carrying out a study. Level of detail is an important factor in the quality of a study, study costs and the time needed to perform the study.

Minor Wetland Impact:

Those small wetland impacts which cumulatively, or inclusively, do not result in significant wetland area or functional loss, typically less than one acre.

NEPA Review:

This NEPA process refers to all tasks necessary for compliance with the requirements of section 2 and Title I of the National Environmental Policy Act. The NEPA review process varies for different federal agencies.

Permits:

A Department of the Army permit for projects processed in accordance with this procedure, issued at the conclusion of the NEPA phase for the approximate footprint of the selected alternative. Also includes MDE's wetlands and waterways authorization. Other permits could include erosion and sediment control, Chesapeake Bay Critical Area, etc.

Practicable:

Actions/alternatives that meet the purpose and need of the project and do not result in exorbitant costs and/or add unacceptable socio-economic or environmental impacts to meet project goals.

Preferred Alternative:

The alternative identified by the SHA project team after reviewing early input from the agencies, elected officials and citizens.

Project Area:

The immediate area of a proposed transportation improvement, alternative and/or option.

Project Development:

A term to describe the overall process of advancing a transportation project. Project development typically encompasses environmental and engineering tasks that occur during the planning, design, right-of-way acquisition, and construction phases.


Purpose and Need:

Justification for project development. Basis may include, capacity and transportation demand, safety, legislative directive, economic development/planned growth, modal interrelationship, system linkage and roadway deficiencies. In this context the emphasis is on the reasons for a project, not on weighing the extent of impacts against project need.

Reasonable Alternative:

NEPA defines reasonable alternatives as those that are practical or feasible from the technical and economic standpoint and are based on common sense rather than simply the desirability from the standpoint of the applicant or proponent. The emphasis is on what is reasonable rather than on what one likes or is capable of.

Recommended Alternative:

The alternative presented by the SHA project team to the SHA Administrator.

Regulatory Agency:

An agency empowered to issue permits, or recommend approval or denial of a permit.

Resource/Review Agency:

An agency with expertise in a particular environmental area defined by law that is required to review and comment on a proposed transportation improvement.

ROD (Record Of Decision):

Written document prepared by FHWA that presents the rationale for the selected alternative presented in the Environmental Impact Statement (EIS) and that a project was developed consistent with NEPA requirements.

Scoping

Scoping is an early and open process which involves determining the project purpose and need, preparing environmental and engineering inventories, identifying significant project issues and developing preliminary alternatives. Agency involvement in this scoping process is vital to successfully developing a project.

Secondary (Indirect) Impacts:

Effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.

SHA's Selected Alternative:

The alternative that is identified by SHA's Administrator, submitted to the agencies for concurrence/comment and included in the final environmental document.

Study Area:

An identified amount of land or topography, selected at the beginning of engineering and environmental evaluations, which is adequate in size to allow flexibility in alternatives development and include all pertinent environmental features.


APPENDIX "B"

CONCURRING AND COMMENTING AGENCIES


PURPOSE AND NEED

Concurring Agencies:

Commenting Agencies:

  • FHWA
  • NPS
  • EPA
  • NMFS
  • COE
  • DNR
  • USFWS
  • MDE
 
  • OP
 
  • MHT
 
  • MPO

ALTERNATIVES RETAINED FOR DETAILED STUDY

Concurring Agencies:

Commenting Agencies:

  • FHWA
  • OP
  • EPA
  • MHT
  • COE
  • MPO
  • USFWS
 
  • NPS
 
  • NMFS
 
  • DNR
 
  • MDE
 

SELECTED ALTERNATIVE AND CONCEPTUAL MITIGATION

Concurring Agencies:

Commenting Agencies:

  • FHWA
  • OP
  • EPA
  • MHT
  • COE
  • MPO
  • USFWS
 
  • NPS
 
  • NMFS
 
  • DNR
 
  • MDE
 

 

APPENDIX "D"

CONFLICT RESOLUTION PROCESS

While the conflict resolution process will likely be used most often to resolve issues associated with the streamlined environmental/regulatory process concurrence points, SHA and/or any of the concurring/commenting agencies may request that the process be initiated to resolve any issue when an impasse has been reached. Depending on the nature of the conflict, it may be appropriate to involve agencies other than those actually initiating the resolution process (i.e., other interested environmental agencies, local governments, etc.) The sample process outlined below indicates how the process is envisioned to work in resolving issues relating to the environmental/regulatory concurrence process.

After reviewing the draft concurrence/comment package prior to the formal Interagency Review presentation, an agency may identify an issue which would prevent it from concurring. The agency should notify SHA of the issue via E-mail, no later than 2 weeks prior to the formal presentation. This notification should specify whether any additional information is needed and should also specifically request time to caucus at the upcoming monthly Interagency Review meeting, if necessary. SHA will try to address these concerns at the upcoming Interagency Review meeting.

SAMPLE PROCESS

  • After the formal Interagency Review presentation, a caucus session may be convened (if requested) as Step 1 in the conflict resolution process. Following the caucus, the results should be reported before conclusion of the interagency meeting, along with a determination of whether resolution was achieved. If not, agencies must specify what information is required to resolve the issue to their satisfaction and whether Step 2 of the conflict resolution should be initiated.
  • If resolution of the issue was achieved, SHA will circulate the final version of the concurrence/comment package to the agencies within 2 weeks of the Interagency Review meeting, updated to include any supplemental information requested at the meeting.
  • If SHA is unable to address agency comments on the preliminary package, the cover letter transmitting the formal package will indicate the reason why this information has not been furnished, and may include a request by SHA to initiate Step 2 of the conflict resolution process.
  • Within 2 weeks of receipt of the formal concurrence/comment package, a non-concurring agency sends formal written correspondence to SHA, specifying issues still preventing concurrence and identifying any additional information needed to resolve the issue(s). The letter should also document that Step 2 in the conflict resolution process has been initiated and request that a meeting with appropriate agencies be scheduled.
  • A Step 2 meeting of appropriate working staff and/or first level managers from the agencies in conflict is scheduled (within 15 days of receipt of a written or verbal request), and additional information is developed for presentation at the meeting.
  • At least 7 days prior to the meeting, SHA provides an agenda outlining the purpose of the meeting, issues to be discussed, and any new information that will be provided in response to agency requests.
  • At the conclusion of the meeting, the participants should recommend elevating any issues still in dispute to subsequent steps in the conflict resolution process. Minutes of the meeting should be prepared and distributed by SHA within 7 days of the meeting which reflect any agreements reached, any issues still outstanding, and concluding recommendations for further action (if required).
  • Should the conflict remain unresolved past Step 2 in the process, the issue(s) will be elevated through subsequent meetings between the Interagency Managers, using the same procedure previously outlined, until a resolution of the issue(s) has been agreed upon.

APPENDIX "E"

AGENCY ROLES/RESPONSIBILITIES

The following descriptions of agency roles and responsibilities were developed by each agency for distribution at the November 1997 NEPA/404 Partnering Workshop. (Note: Some roles have been slightly modified since the workshop, and the Maryland Office of Planning's role is newly prepared). Though we will now be using the "Streamlined" process instead of the "NEPA/404" process, this information is still appropriate and useful.


FEDERAL HIGHWAY ADMINISTRATION

Roles and Responsibilities in NEPA/404 (1)

The National Environmental Policy Act (NEPA) and Title 23 U.S.C. put the FHWA in a role that can be considered unique among the Federal Agencies. Title 23 restricts Federal funding to those projects that meet certain engineering, environmental and safety requirements. Under NEPA, FHWA is the lead Federal Agency and as the "owner" of the environmental document assumes responsibility for the integrity of the NEPA process. As the lead Federal Agency, the FHWA has the responsibility for scoping, inviting cooperating agencies, developing a consensus among a wide range of stakeholders with diverse interests, resolving conflicts and ensuring that quality transportation decisions are fully explained in the environmental document. These NEPA and Title 23 responsibilities reinforces FHWA's commitment to balance transportation needs, costs, environmental resources, safety, and public input in order to arrive at objective, responsible transportation decisions.

The FHWA has taken the lead on integrating the full range of environmental requirements under the umbrella of the FHWA NEPA process. The 23 CFR 771 requires the FHWA to invite any Agency with legal jurisdiction to be a cooperating Agency on Federal-aid projects. Regulations implementing the Clean Air Act Amendments requires transportation Agencies to coordinate with other Agencies in nonattainment areas for air quality. Agencies with legal requirements under environmental laws and regulations such as the Clean Water Act, the Endangered Species Act and Section 106 of the National Historic Preservation Act can prevent a transportation project from advancing if their jurisdictional requirements have not been satisfied. If those Agencies are actively involved in the planning and project development processes, their permit or consultation issues can be resolved much more productively. FHWA sees our role in NEPA/404 as a "bridge" between project proponents (State DOTs) and Federal resource and regulatory Agencies. This position is strengthened by our being neither project proponent nor permitting Agency, lending the Agency a third party objectivity.

Implementation of the flexibility provisions of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) has decreased FHWA's level of involvement in project activities. Therefore, the FHWA's proactive involvement in the NEPA phase of project development becomes increasingly important for ensuring a safe and efficient transportation system.

(1) Excepted from "Interagency Coordination with Federal Agencies during the FHWA

Project Planning & NEPA Processes," Publication No. FHWA-PR-96-05, January 1997.


U.S. ARMY CORPS OF ENGINEERS

The Corps of Engineers regulates the discharge of fill or dredged material into waters of the United States, including jurisdictional wetlands, as well as construction activities which could obstruct or impede navigation in navigable waters of the United States. The Corps regulatory program is authorized by Congress through Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act of 1899, and Section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972.

The commerce clause of the U.S. Constitution (1787) gives Congress the power "to regulate commerce with foreign nations, among the several states, and with Indian tribes." With the enactment of the Rivers and Harbors Act of 1899, Congress gave the Corps of Engineers jurisdiction and authority over the protection of navigable waters and territorial seas. The nexus between waters of the U.S. and interstate commerce as evidenced by the commerce clause and the Rivers and Harbors Act is the cornerstone to the Corps regulatory program. The first regulations detailing the permit process for fulfilling the Corps responsibilities were published in the Federal Register in 1946, and have evolved through a variety of court cases through the years. In 1967, the Zabel case altered the regulations to provide that permit decisions be based on "the effects of an action upon water quality, recreation, fish and wildlife, pollution, our natural resources, as well as the effects on navigation". Thus, the public interest review was born. The 1972 Federal Water Pollution Control Act (later renamed the Clean Water Act) was amended to enact Section 404 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," and serves as the primary Federal law regulating activities in waters of the U.S., including jurisdictional wetlands.

Several questions must be answered by a Corps regulator evaluating a permit application. These include: Is the area considered waters of the U.S.? If it is a wetland, is it jurisdictional? Is the proposed activity regulated? Is the activity exempt by policy, regulation, or law? After these questions are answered, the evaluation can actually begin. During the evaluation, the Corps is bound by the 404(b)(1) Guidelines which state "no dredged or fill material shall be permitted if there is a practicable alternative to the discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant, adverse environmental consequences" (40 CFR 230. 10 (a)). This encourages evaluators to think of new, innovative ways for applicants to fulfill the purpose of and satisfy the need for their projects, while minimizing impacts to jurisdictional waters. All decisions relating to the issuance of a Department of the Army permit are based on an evaluation of the probable impacts, including cumulative impacts of the proposed activity and its intended use on the public interest. The benefits which reasonably may be expected to accrue from the proposal are balanced against its reasonably foreseeable detriments prior to issuance or denial. The basic premise of the program is that 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. In other words, applicants must demonstrate that they have taken steps to avoid impacts to waters of the U.S., where practicable; minimized potential impacts to such waters; and provided compensation for any remaining unavoidable impacts through activities aimed at restoring or creating aquatic areas. The Corps is also responsible for ensuring that permitted activities are constructed in compliance with an issued permit. The Environmental Protection Agency and the Corps share the responsibility maintaining the integrity of the 404 program through the enforcement of permit requirements.

In addition to the Corps responsibilities under Section 404 of the Clean Water Act, other laws, such as the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Federal Power Act, the National Environmental Policy Act, the National Historic Preservation Act, the Preservation of Historical and Archaeological Data Act, the Endangered Species Act, the Wild and Scenic Rivers Act, Section 402 of the Clean Water Act, the Clean Air Act- the Administrative Procedures Act, the Floodplains Executive Order (11988), and the Wetlands Executive Order (11990), must also not be violated by an activity authorized by a Corps permit. Careful consideration of this additional legislation is a critical portion of the permit review process. Other criteria that are considered include energy conservation and development, navigation, economics, water conservation and supply, property ownership, and potential interference with Federal projects.


ENVIRONMENTAL PROTECTION AGENCY

Roles and Responsibilities Under NEPA/404

The U.S. Environmental Protection Agency in its role as interagency reviewing, cooperating and coordinating agency and in its Section 309 review, NEPA compliance and Section 404 permit review role will follow the updated guidance entitled, "Procedures for the Timely Identification, Evaluation and Resolution of Environmental and Regulatory Issues". These Guidelines are currently being revised in Maryland by the NEPA/404 Manager's Task Force, of which EPA is a member.

The following outlines our specific responsibilities under each role described above and in accordance with the NEPA/404 guidelines:

Interagency Reviewer/ Coordinating Agency: Review and comment during concurrence stages of scoping, field visits, monthly meetings and other project specific meetings. Work closely with other Federal, state and possibly local resource agencies during the beginning to end of the project planning stages of a project.

Cooperating Agency: Provide additional technical assistance and expertise regarding the NEPA/CEQ regulations, wetlands, air, environmental justice and other environmental issues in which EPA has available expertise. This is above and beyond the "traditional" reviewer's role during the Pre-draft stages of an environmental document.

Section 309/NEPA Compliance: Provide "'traditional" reviews, comments and rating on DEIS and FEIS documents using internal EPA Region III expertise as well as EPA HQ and CEQ.

Section 404 Permits: Provide coordinated reviews concurrent with NEPA. This includes field visits and close coordination with the U.S. Army Corps of Engineers.


U.S. FISH AND WILDLIFE SERVICE

The main law that governs FWS participation in transportation projects is the Fish and Wildlife Coordination Act. The law requires Federal agencies to consult with the Service when pollutants will be discharged or when the action agency's proposal will result in the diversion, control or modification of a stream or other body of water. Likewise, the Corps of Engineers must consult with FWS since their Section 10\404 permits result in modifications to streams or other bodies of water, and fill is a pollutant. Wildlife conservation shall receive equal consideration and be coordinated with other water resource development programs. Fish and wildlife conservation shall be viewed as a coequal purpose or objective of federally funded or permitted water resource development proposals or projects.

Although the Coordination Act is the main statute governing our involvement in transportation project review, there are a number of other statutes worth noting. The Endangered Species Act requires Federal agencies to conserve listed species and to consult with the Service if their project is likely to affect listed species. The Service also may be consulted when units identified under the Coastal Barriers Resources Act are involved. New transportation projects are specifically prohibited within units mapped under this Act. The Service may also be involved under Section 4(f) of the Department of Transportation Act where land in a National Wildlife Refuge may be taken for transportation purposes. And of course, NEPA requires all Federal agencies to consult when developing a project or funding proposal such as a highway project.


NATIONAL PARK SERVICE

8-1 Introduction

NEPA requires that other federal agencies obtain NPS comments on their ElSs when NPS has jurisdiction by law over some aspects of the projects or special expertise concerning environmental impacts (1503.1). In addition to NEPA requirements, many federal undertakings require other "environmental" comments and clearances. Department of Transportation Section 4(f) Statements and review of the "recreation exhibits" of Federal Energy Regulatory Commission license and permit applications for water projects are examples. A discussion of some of the more pertinent non-NEPA environmental review responsibilities of NPS is in the NPS-12 handbook.

This chapter gives guidance how you should review and comment on NEPA documents prepared by other agencies that may affect your park unit. In reviewing other agency documents, your primary aims should be to aid other agencies in making the best possible decisions based on quality environmental analyses; to maintain the integrity of the national park system; and to espouse the full range of other recreation, natural and cultural resource stewardship roles of the National Park Service.

8-2 Comment Requirements

A. How Comments Should be Focused

Your comments on other agencies' environmental documents should:

1. encourage those agencies to contribute to the protection, preservation, maintenance, safety, and enhancement of existing and potential units of the national park system; other significant park and recreation values; historic structures, archeological and other cultural resources, including properties listed on the National Register of Historic Places; unique cultural resource values, including those properties listed on the National Register of Historic Landmarks; and unique natural resource values, including those areas listed in the National Registry of Natural Landmarks;

2. assure that the sponsoring agency recognizes benefits and adverse effects to resources within NPS areas of jurisdiction and expertise, and that those effects are presented in an understandable form to the general public and to decision makers;

3. adequately describe practicable alternatives less damaging to NPS interests and concerns, and see that these are evaluated realistically and adopted where feasible;

4. discuss mitigation measures to offset unavoidable adverse effects and propose them as an integral part of the proposed action.

B. Early Involvement

Your ability to influence the proposals of other agencies is greatest at the early stages, before they invest in extensive planning and become committed to a specific means of accomplishing an objective. For this reason, make every effort to provide input and technical assistance at the scoping stage or earlier. This will greatly enhance the credibility of your comments on the draft EIS or other later document. Consultation should continue through the completion of the decision document.

C. Commenting as a Cooperating (or Joint Lead) vs. Reviewing Agency

1. Cooperating Agency. If NPS has jurisdiction by law (having permitting or funding authority over some aspect of the proposal) or special expertise, request that it be made a cooperating agency in preparation and review of an EIS. The request should be sent to the lead agency (federal agency preparing the document), and rights and responsibilities defined between NPS and the lead agency in a memorandum of understanding or agreement. As a cooperating agency, you may ask for the right to either prepare or review with "veto" authority a section of the document where NPS has particular expertise or interest. You also may ask or be asked to join in interdisciplinary team meetings, public involvement sessions, or other integral pieces of the NEPA process. Request permission to become a cooperating agency as early as possible for full participation. You may share the analysis and document preparation responsibility by becoming a joint lead with another federal or state agency (1506.2(c)). Your park's responsibility may be expanded to research or write several sections of the document if this is the case.

If you are affected by or interested in a proposal, but do not have jurisdiction by law or special expertise, you may still request cooperating agency status.

2. Reviewing Agency. As a reviewing agency, NPS may request changes in the document, additional information, mitigation measures, additional alternatives analyzed, etc. The degree of response to these requests is largely at the discretion of the lead agency.

D. Administrative Process of Review.

The administrative process for review of non-NPS EISs is contained in the handbook.


8-3 Review Deadlines and Extension Requests

A. CEQ Requirements, Screening and Review Schedules

EISs and some other environmental documents have periods for review and comment set by law or regulation. Section 1506.10 of the CEQ regulations provides 45 days for review and comment on draft EISs, and a 30-day no-action period following release of a final EIS. These times are calculated from the date that a notice of availability is published in the Federal Register by the Environmental Protection Agency. These notices normally appear in the Federal Register on Fridays and include the date when comments are due. Section 1501.9 of the CEQ regulations requires that EISs be filed with the Environmental Protection Agency no earlier than they are transmitted to agencies and the public for comment.

Review periods for revised and supplemental draft and final EISs of other agencies are calculated like those for draft and final EISs. Since agencies that circulate draft EISs are under no legal obligation to include in the final EIS comments received after the established deadline, you must comment within the deadline if your concerns are to be given consideration.

When controlled documents arrive from Environmental Quality Division for review, they should be screened quickly to determine deadlines and relative priority. Review preparation responsibility should be assigned immediately. If screening determines that the proposal is of no consequence to NPS areas of jurisdiction or expertise, and comments are to be routed to Environmental Quality Division or to another Interior bureau designated as lead, a simple "no-comment" response may be made. Such a response may be made using the form in exhibit 2 of appendix G of the NPS-12 handbook; telephone or electronic no-comment responses may be acceptable at the discretion of the lead agency.

Review schedules should provide intermediate offices such as Environmental Quality Division, Office of Environmental Policy and Compliance or other Interior lead bureaus sufficient time to review and process proposed comments. The possibility of mail delays and holiday and weekend time should be considered.

B. Extensions

Extensions of review deadlines occasionally are needed because of unusual routing or mail delays, required field studies, necessary coordination with other federal, state or local agencies, or the discovery of unforeseen problems with the proposal. Extensions are obtained from the other agency by Office of Environmental Policy and Compliance (516 DM 7B). The need for an extension should be determined early in the review process and the extension requested shortly after receipt of the controlled document. The closer the deadline, the more difficult it is to obtain an extension. Deadline extensions should be requested only when you anticipate you will be making substantive comments, or when expected impacts require extensive field inspection or coordination. Procedures for obtaining extensions are in appendix G.

8-4 Departmental Comment Letters

Review of all external proposals, EISs, reports, permits, regulations, etc. is controlled by Office of Environmental Policy and Compliance under 516 DM 7 and their environmental review memorandum series (ERM 94-2). Instructions for consolidated review are distributed to bureaus by memorandum from that office. Unless direct reply has been established, a consolidated departmental reply will be prepared. When an NPS office has a document for review, but no departmental distribution memorandum, that office should contact Environmental Quality Division or Office of Environmental Policy and Compliance to determine the status.

Comments of NPS and other Interior bureaus, when consolidated into a departmental review letter by either a designated lead bureau or by Office of Environmental Policy and Compliance, are signed either in Washington or by the designated departmental regional environmental officer. Copies of comment letters signed in Washington are provided through Environmental Quality Division to appropriate field and program offices. Regional environmental officers supply a signed environmental review letter to the NPS field office, a copy of which the office should in turn send to Environmental Quality Division. Environmental Quality Division and regional environmental officers distribute copies of review letters so that NPS analysts and reviewers will know the department's position and can compare it with the comments which they submitted. NPS reviewers should seek clarification from subsequent reviewers or processors if substantial comment changes are made without consultation.


MARYLAND STATE HIGHWAY ADMINISTRATION

The State Highway Administration's (SHA) primary NEPA/404 responsibilities and roles are to:

      Perform the engineering traffic and environmental (natural, socio-economic and cultural) analyses and documentation necessary to obtain Location/Design Approval for SHA's transportation projects.

      Take the lead for project planning interagency coordination. This includes overseeing the Interagency Review Meetings, arranging project and jurisdictional field reviews, arranging issue-related meetings, etc. SHA is also the lead agency in revising the "Procedures for the Timely Identification, Evaluation and Resolution of Environmental and Regulatory Issues", as well as preparing guidelines and developing training to better implement the merged process.

      Coordinate with the environmental/regulatory agencies in the preparation of the appropriate NEPA documentation for all SHA projects (major, special, enhancement, bridge, etc.) This includes archeology, historic standing structures, wetlands, federally listed threatened/endangered species and parks identification. This documentation must satisfy NEPA, other applicable laws and regulations, and permit application requirements, as well as multi-modal considerations.

      Take the lead in all public involvement initiatives. Depending on the project, this could involve Alternatives and/or Informational Workshops, Public Hearings, focus groups, citizen group and association meetings, etc.

      Identify appropriate mitigation for wetlands impacts, historic sites impacts, noise impacts, etc. This includes wetland mitigation site searches and internal and agency field reviews as appropriate.

      Conduct jurisdictional wetland field reviews and functional evaluations using the New England or Evaluation of Planned Wetland assessment techniques.

      Prepare conceptual wetland mitigation design for the selected alternative, with close agency coordination.

      Coordinate all permit modifications during final design.


MARYLAND DEPARTMENT OF NATURAL RESOURCES

and the

NEPA/404 Review Process for Highway Projects

 

Department of Natural Resources Mission Statement

For today and tomorrow The Department of Natural Resources inspires people to enjoy and live in harmony with their environment, and to protect what makes Maryland unique - our treasured Chesapeake Bay, our diverse landscapes and our living and natural resources.

Environmental Review Unit Mission Statement

Coordinate the environmental review activities for the Department to assure that the Department's concerns are communicated to and coordinated with State and Federal permitting agencies and local governments; provide information and recommendations to regulatory and policy-making agencies to help assure sound decisions which provide for protection, restoration, enhancement and balanced use of our natural resources; emphasize protection of existing habitat from development, conservation of resources during development or disturbance, and restoration of previously disturbed habitat areas; focus on cost-effective protection, restoration and enhancement techniques so as to provide for sustainable development of the State's economy.

One of the most important core services of the Maryland Department of Natural Resources is the protection, restoration, and enhancement of natural resources under its jurisdiction. Major concerns of the Department related to highway development projects include potential impacts to fisheries resources, wildlife resources forest resources, aquatic habitat, threatened and endangered species, Wild and Scenic Rivers, Department lands, and the Chesapeake Bay Critical Area. Early involvement by the Department in the review of major highway projects through the established NEPA/404 Review Procedures is essential to assuring that the Department's mission, goals, objectives, and policies are appropriately considered in the planning and development of highway projects and that impacts to natural resources are avoided and/or minimized to the maximum extent possible.

MARYLAND DEPARTMENT OF THE ENVIRONMENT

Role and Responsibilities

NEPA/404 Process

The Maryland Department of the Environment (MDE) is responsible for the State's environmental regulatory programs. MDE's overall mission is to protect and restore the quality of Maryland's air, water and land resources. The Water Management Administration (WMA) is the Department's lead agency in the review of proposed highway projects. WMA's mission is to restore and maintain the quality of the State's ground and surface waters, protect wetland habitats throughout the State, and manage the utilization of Maryland's mineral resources. WMA houses the regulatory programs most critical to highway development including wetlands, waterway construction, water quality certification, and consistency with the State's Coastal Zone Management Program. In addition, WMA must review and approve erosion and sediment control, as well as stormwater management plans for a proposed facility or project improvements.

In the past, NEPA and Section 404 processes were implemented sequentially, and there was no assurance that the selected alternative would be that which minimized impacts to waters of the United States, as required under Section 404 of the Clean Water Act. This led to a potential conflict with alternatives being re-evaluated under the Section 404 permit review, resulting in increased costs and time delays. The combined NEPA/404 process is intended to address this conflict.

Early involvement is critical to the success of the NEPA/404 process. The process provides MDE the opportunity to provide input at the key milestones in the project development phase. These include project purpose and need; alternatives development, and the selected impacts to wetlands waterways, and other sensitive resources, potentially resulting from the alternatives under consideration.

MDE's wetlands and waterways regulatory requirements include a project need component, as well as an analysis of alternatives to address the project need. Thus MDE's major role in the NEPA/404 process is to ensure that the information/data generated during project planning and development is sufficient to address the State's regulatory requirements regarding project need and alternatives analysis. This should ensure a more efficient and expeditious State permit review process when application is made for authorization of impacts associated with the selected alternative.


MARYLAND HISTORICAL TRUST

Roles & Responsibilities in the NEPA/404 Process

The Maryland Historical Trust (Trust), Maryland's State Historic Preservation Office (SHPO), is the State office charged with providing consultation and assistance in the review of projects subject to Federal or State law. Federal and State historic preservation laws provide consideration to cultural resources that may be affected by projects that receive Federal or State funds, permits, or licenses - or that are located on Federal or State owned property. The principal law for Federal undertakings is Section 106 of the National Historic Preservation Act of 1966, as amended. By providing Federal funding assistance for transportation projects, FHWA must comply with Section 106. In addition, since 404 is a Federal permitting action, the U.S. Army Corps of Engineers must also comply with Section 106. FHWA and the Corps must fulfill Section 106 transportation project itself, as well as for the wetlands mitigation areas developed through NEPA/404. The Trust's primary role in the NEPA/404 integrated process is to ensure the appropriate consideration of cultural resources and satisfactory compliance with Section 106 in coordination with the planning efforts undertaken to fulfill NEPA/404 procedures.

Maryland's historic properties include a diverse range of cultural resources (buildings, archeological sites, objects, historic districts, and engineering structures) representing Maryland's prehistory and history. These properties are important and irreplaceable resources for the State. Protection and enhancement of these cultural resources helps revitalize communities, promotes heritage tourism, stimulates economic development, and preserves a valuable record and tangible links with our past. Through review and protection efforts under Section 106 and the NEPA/404 process, historic properties receive appropriate consideration - enabling current and future generations to enjoy and appreciate Maryland's rich cultural legacy.

The Section 106 process includes several clearly defined steps, which the agency must fulfill in consultation with the Trust:

  • identify cultural resources in the project's area of potential effects by conducting field surveys (the Trust reviews and comments on the adequacy of SHA's survey efforts);
  • evaluate identified cultural resources to determine their eligibility for the National Register of Historic Places (the Trust reviews and provides concurrence on SHA's determinations of eligibility);
  • assess the project's effects on National Register eligible historic properties - adverse effects include: physical destruction, damage or alteration of properties; isolation of the property from alteration of the property's setting; introduction of visual, audible or atmospheric elements that are out of character with the property or alter its setting; neglect of a property resulting in deterioration or destruction; or transfer, sale or lease of the property (the Trust reviews and provides concurrence on SHA's determination of effect); and
  • resolve adverse effects on historic properties through consultation, implementation of measures to avoid, reduce, or mitigate adverse effects, and development of a project Memorandum of Agreement (the Trust participates in the negotiation process and is a signature party to the MOA).

Throughout the Section 106 and NEPA/404 processes, the Trust's primary roles and responsibilities include consultation and providing information, guidance, and technical assistance concerning the appropriate identification, evaluation, and treatment of Maryland's cultural resources.


MARYLAND OFFICE OF PLANNING

Roles/Responsibilities in the Streamlined Environmental and Regulatory Process

The Maryland Office of Planning (OP) participates in Maryland's Streamlined Environmental and Regulatory Process (the Process) in order to assess transportation projects for consistency with the Economic Growth, Resource Protection and Planning Act of 1992 (the Planning Act) and the Priority Funding Areas Act of 1997. Importantly, through the Process OP strives to advocate transportation solutions that are consistent with these State growth policies.

The Planning Act establishes a policy framework – the seven Visions* – to guide State agency decision making as well as actions carried out by local officials and private developers. Building on the Planning Act, the 1997 Maryland legislature adopted a series of Smart Growth and Neighborhood Conservation Initiatives, including the Priority Funding Areas Act (PFA). This PFA law provides additional clarification to the State's growth management policies, in that the law requires the State to direct its capital projects into priority funding areas as a way to support targeted/planned growth and to limit development in agricultural and other resource areas. The PFA law defines growth-related projects and the criteria for local certification of priority funding areas. Governor Parris N. Glendening issued an Executive Order in 1998 to implement the 1997 Smart Growth Neighborhood Conservation Initiatives. The Maryland Department of Transportation (MDOT) and OP are required to conduct additional review of major transportation projects to determine their compliance with the PFA law and the Governor's Executive Order. MDOT and OP are working on a procedure to address the requirements of the law and Executive Order.

Currently, OP is a "commenting agency" and is in discussion about becoming a concurring agency in this Process. Through the Process, OP formally provides comments at three key milestone points: Purpose and Need, Alternatives Retained for Detailed Study, and SHA's Selected Alternative and Conceptual Mitigation. In addition to providing formal comments at these key stages, OP participates and gives input in the interagency review consultations and/or project teem meetings. Participation at the Purpose and Need stage provides an opportunity for OP to become familiar with the basis for pursuing the project planning study. It also allows OP to make SHA aware of questions and issues pertaining to the State's growth policies at the earliest possible point (e.g., whether a purpose & need statement is written in such a way as to exclude viable alternatives; whether safety is the primary purpose of the project). At the Alternative Retained for Detailed Study stage, OP comments on the consistency of the alternatives with the State growth policies. By being involved from the stage of Developing Preliminary Alternatives to the point of Preparing Draft Environment Document/Public Hearing, OP advocates for full consideration of alternatives addressing the State's growth policies. OP assesses the adequacy of the information provided as the basis for dropping and retaining alternatives, provides comments on the assessment of secondary and cumulative effects, and addresses the Planning Act and the PFA law issues in coordination with SHA and other agencies. At the SHA's Selected Alternative point, again, in coordination with SHA, OP assesses the consistency of the Selected Alternative with the Planning Act and the PFA law.

*Visions of the Economic Growth, Resources Protection and Planning Act of 1992:

  1. Development is concentrated in suitable areas;
  2. Sensitive areas are protected;
  3. In rural areas, growth is directed to existing population centers and resource areas are protected;
  4. Stewardship of the Chesapeake Bay and the land is a universal ethic;
  5. Conservation of resources, including a reduction in resource consumption, is practiced;
  6. To assure the achievement of 1 through 5 above, economic growth is encouraged and regulatory mechanisms are streamlined; and
  7. Funding mechanisms are addressed to achieve these visions.

For questions or feedback on this subject, please contact Ruth Rentch at 202-366-2034. For general questions or web problems, please send feedback to the web administrator.

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