Getting in Sync
The new Red Book offers a collaborative process that accelerates environmental reviews and permitting and is gaining traction as the accepted business practice at State DOTs. Try it on for fit.
Under the National Environmental Policy Act (NEPA) of 1969 and other environmental laws, transportation and other infrastructure projects often require permits and reviews by multiple Federal agencies to avoid, minimize, or mitigate adverse impacts to the natural and human environment. In September 2015, the Federal Highway Administration released the 2015 Red Book: Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects (FHWA-HEP-15-047). The Red Book, as it is commonly known, is an update to the 1988 handbook, Applying the Section 404 Permit Process to Federal-Aid Highway Projects.
The Red Book serves as a regulatory how-to guide for Federal field staff who review applications for environmental permits, as well as Federal, State, and local agencies that permit, fund, and develop transportation projects. To streamline NEPA and other regulatory reviews and consultations, the Red Book provides a variety of methods, such as programmatic approaches and dedicated transportation liaisons.
A workgroup formed to analyze the current state of the synchronization of environmental reviews concluded that an updated handbook could help improve collaboration and synchronization. The group included representatives from the principal Federal agencies involved in writing the original handbook, plus two agencies new to this update. (See sidebar.)
To perform synchonized environmental reviews and permitting consultations for a proposed project means conducting them concurrently rather than sequentially. Implementing concurrent reviews, to the extent practical, ideally results in a single environmental analysis that meets the requirements of all agencies involved in permitting, funding, and developing the project.
Approaches to synchronization, however, vary among regions and project sponsors. Some resource agencies and some States, such as California and New York, have been more active than others in adopting the synchronization techniques.
The Red Book encourages more widespread adoption of synchronized review processes and supports more effective coordination among transportation, resource, and regulatory agencies during NEPA and permit review processes. The new Red Book includes lessons learned about synchronized review processes, as well as case studies and proven tools and techniques for environmental and other regulatory reviews. Even if synchronization is not a viable option for a particular project, the Red Book also promotes early coordination among all action and regulatory agencies, especially for large, complex projects.
In an online post, Shaun Donovan, director of the White House Office of Management and Budget, and Christie Goldfuss, managing director at the White House Council on Environmental Quality, wrote: “Ultimately,the new...Red Book will enable the Government to better carry out its mission of ensuring safety and security and protecting environmental and community resourceswhen working with State, local, and tribal governments and private partners to develop and scale the Nation’s infrastructure projects.”
The Benefits of Synchronization
Concurrent reviews by a transportation agency and resource and regulatory agencies can improve the efficiency of the process and enable agencies to identify concerns and potential issues early in the development of a project. Synchronized reviews also can remove possible unknowns and improve predictability as a project moves forward.
“The Red Book supports more timely permit decisions, allowing a diverse set of infrastructure projects to advance through the permitting process in a more transparent and efficient manner,” says Assistant Secretary of the Army Jo Ellen Darcy.
The Tappan Zee Bridge project in New York is a prime example of the benefits of the environmental streamlining and synchronization concepts described in the Red Book. The Tappan Zee is a through-truss bridge that crosses the Hudson River at one of its widest points. Concerns about the structural integrity of the bridge, together with increased traffic volumes and maintenance costs, led to a decision by Governor Andrew M. Cuomo and the New York State Thruway Authority to replace the 1955 structure with a new bridge. Construction on the replacement, the New NY Bridge as it is called, began in 2013 and is scheduled for completion in 2018.
|Contributors to the
2015 Red Book
|Contributors to the 2015 Red Book
U.S. Army Corps of Engineers
U.S. Coast Guard (new with the 2015 update)
U.S. Department of Transportation
Federal Highway Administration
Federal Railroad Administration (new with the 2015 update)
Federal Transit Administration
U.S. Environmental Protection Agency
U.S. Fish and Wildlife Service
National Oceanic and Atmospheric Administration
Multiple agencies are involved in the coordination effort, including FHWA; the New York State Department of Transportation; New York State Thruway Authority; National Marine Fisheries Service; New York State Office of Parks, Recreation, and Historic Preservation; U.S Coast Guard; U.S. Army Corps of Engineers; U.S. Fish and Wildlife Service; and U.S. Environmental Protection Agency. During the NEPA phase, these agencies worked together to synchronize the environmental review processes and address key resource concerns, including impacts to the Hudson River ecology, water quality, navigation, air quality, and historic resources. The streamlined concepts developed during the NEPA reviews are being carried into the construction phase to monitor, track, and assure the effective implementation of the environmental mitigation measures during the bridge construction.
Formal and Informal Agreements
Active participation and communication among agencies, applicants, and sponsors provide the foundation for effective synchronization. Synchronization concepts can be applied across all transportation modes, including highways, transit, rail, airport, port, and multimodal projects.
For example, the Federal Railroad Administration and the U.S. Army Corps of Engineers are synchronizing NEPA and Section 404 (Clean Water Act) reviews for the preparation of multiple environmental impact statements for the new high-speed rail system connecting San Francisco and Los Angeles, CA. Synchronization requires at least one Federal agency (in this case, the Federal Railroad Administration) to act as the lead for NEPA, while other Federal agencies with regulatory authority (in this case, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers) act as cooperating agencies.
Agreements, such as a memorandum of agreement or a memorandum of understanding, can formalize the synchronization, or the agencies can apply synchronization concepts in an ad hoc manner without a formal agreement. The agencies can develop formal agreements for specific initiatives or projects or for a suite of similar activities. These agreements can provide a useful reference for new roles and processes, and also can help establish synchronization as a routine business practice.
Synchronization agreements (both formal and informal) typically include a description of the synchronized procedure, appropriate thresholds for participation, and procedures for resolving disputes. Although formal concurrence is not required, establishing certain milestones within a synchronized review process can provide structure and clarity during project planning and development.
Programmatic Approaches For Permitting And Consultations
Typically, most actions proposed by a transportation agency are routine activities, rather than large construction projects, and have predictable and minor impacts to natural, community, and historic resources. These routine actions may be better suited for programmatic approaches, rather than synchronized reviews.
Programmatic approaches provide procedures to meet compliance requirements in a more efficient, cost-effective manner without the indepth coordination required for synchronized reviews. Although developing programmatic approaches may require a significant upfront commitment of agency staff and funds, they often result in greater rewards in the long run.
Milestones in a Synchronized Review
These approaches are appropriate for use at national, regional, or field office levels, and can include batch reviews of multiple activities or a simple expedited review process for individual projects that fall within certain criteria. The U.S. Coast Guard and FHWA, for example, have developed programmatic approaches for certain bridge permits under 23 U.S.C. Section 144(c).
Programmatic approaches enable transportation and regulatory agencies to set boundaries or thresholds on routine activities that qualify for an abbreviated review process. A programmatic consultation can cover a program or plan, a large group of similar actions, or different types of actions proposed within a sizable geographic area.
Programmatic approaches save agencies time by eliminating the need for individual project reviews. In the long term, this improved efficiency provides greater predictability in transportation planning and improved outcomes for environmental protection and resource conservation. Programmatic approaches also make it easier for environmental practitioners to analyze and disclose indirect and cumulative impacts, and to formulate more meaningful avoidance, minimization, and mitigation measures for them.
Consultations Under the Endangered Species Act
Under Section 7 of the Endangered Species Act, Federal agencies are required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to evaluate potential adverse impacts on listed species or critical habitat by any action they fund, authorize, or conduct. In recent years, the workload for Section 7 consultations has increased considerably, (for example, the National Marine Fisheries Service reported that less than 30 percent of its consultations in 2014 were completed on time), driving the development of techniques to increase the efficiency of the review process.
Programmatic approaches to these consultations provide cost-effective integration of ecosystem planning with transportation activities and allow analyses of aggregate effects for many similar projects across a species’ range. One example is a rangewide programmatic consultation for the Indiana bat developed jointly by FHWA and the U.S. Fish and Wildlife Service. Another is a programmatic biological assessment for Atlantic salmon currently being developed by the Maine DOT in conjunction with the FHWA Maine Division and the U.S. Army Corps of Engineers. To conclude the Section 7 consultation process, the U.S. Fish and Wildlife Service will issue a programmatic biological opinion.
Programmatic approaches also facilitate coordination with other actions that require compliance with the Endangered Species Act, such as Section 404 reviews required by the U.S. Army Corps of Engineers.
Assessments of Essential Fish Habitats
Section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act requires Federal agencies to consult with the U.S. Secretary of Commerce on any proposed action that may adversely affect essential fish habitat. The National Marine Fisheries Service has used programmatic consultations to increase the efficiency of reviews of actions affecting fish habitat and consults on a large number of individual actions.
A Federal agency can request a programmatic consultation with the National Marine Fisheries Service by providing an assessment of essential fish habitat, which describes the proposed action and estimates the number of actions. The National Marine Fisheries Service will respond with programmatic conservation recommendations and, if applicable, will identify any potential adverse effects that may require project-specific consultations outside the programmatic approach.
Liaisons Facilitate Synchronized Reviews
Transportation liaisons can strengthen the implementation of processes and procedures developed to synchronize reviews. Transportation agencies often have multiplepoints of contact within a regulatory or resource agency, and staff members in those agencies might not have a thorough background in the planning and development that supports a transportation or infrastructure project before it enters the NEPA review phase.
In addition, limited budgets and staff resources preclude many regulatory and resource agencies from assigning staff to work on pre-NEPA activities when other segments of their workload already strain their time. Several statutory authorities, including 23 U.S.C. Section 139(j) and Section 214 of the Water Resources Development Act of 2000, as amended (33 U.S.C. Section 2352), allow some agencies to enter into funding agreements to mitigate this issue. Agencies included are the U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Fish and Wildlife Service, and the U.S. Environmental Protection Agency.
They can use funds accepted under these agreements to hire additional personnel who can serve as dedicated transportation liaisons to improve the efficiency of the permit review process. The liaisons are housed in State or Federal resource and regulatory agencies and act as primary points of contact between their respective agency and the relevant transportation agency. A dedicated point of contact results in improved communication and coordination among agencies and thus leads to more streamlined environmental reviews and consultations.
for Infrastructure Projects
For transportation agencies, a liaison can offer access to environmental and regulatory expertise and can help navigate complex projects through a synchronized process. Liaisons have helped develop mitigation banking instruments, establish programmatic agreements, and conduct educational outreach. They have provided technical expertise related to environmental regulatory requirements, including helping to incorporate consultations into transportation planning that are related to Section 7 of the Endangered Species Act, the Clean Water Act, and the protections for essential fish habitats in the Magnuson-Stevens Fishery Conservation and Management Act.
A transportation agency may find a liaison to be particularly beneficial when the State DOT is seeking to prioritize a large quantity of permit applications, to establish regular coordination with a resource or regulatory agency, or to gain assistance with a particularly controversial or complex project. Most important, a liaison helps to strengthen interagency relationships and complements synchronization efforts.
Several resources exist for agencies interested in transportation liaison programs, including an online community of practice developed by FHWA. (See www.environment.fhwa.dot.gov/liaisonCOP/default.aspx.) This transportation community of practice provides a forum where liaisons and managers can share best practices and where FHWA divisions can connect with liaisons and access sample liaison and programmatic agreements.
Mitigation, which consists of avoiding, minimizing, rectifying, reducing, eliminating, or compensating for impacts to the environment, can take many forms under NEPA. Some environmental requirements, such as Section 404(b)(1) of the Clean Water Act, require Federal agencies to first avoid and then minimize impacts to the maximum extent possible before considering compensatory mitigation activities. Early identification of mitigation options during transportation planning can enable regulatory reviews to occur simultaneously with NEPA reviews and thus proceed more efficiently.
A joint mitigation rule agreed to in 2008 by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency created a regulatory framework for these activities and reinforced the sequence of avoidance and minimization prior to mitigation. The rule provides flexibility in developing compensatory mitigation proposals that transportation agencies can use to seek more efficient review of proposed projects.
Mitigation Banks and In-Lieu Fee Programs
The 2008 mitigation rule creates a hierarchy of compensatory actions for impacts on water resources. The rule creates a preference for the use of mitigation banks, followed by in-lieu fee programs, and then permittee-responsible mitigation. It also encourages the use of a water-shed approach to provide more ecologically effective benefits for a particular geographic area.
Conservation and mitigation banks are generally large, contiguous areas of restored and protected resources managed by a third-party banker. Bankers can be corporations, individuals, companies, utilities, government agencies, nonprofit organizations, and land trusts. The U.S. Fish and Wildlife Service and National Marine Fisheries Service have developed conservation banks to mitigate impacts on endangered or protected species, while the U.S. Army Corps of Engineers uses mitigation banks to offset impacts to aquatic resources such as wetlands.
Through an established agreement or banking mechanism, project sponsors can purchase credits to compensate for unavoidable adverse impacts on aquatic resources or protected species and their habitats. The credits are a unit of trade related to habitat or species of interest at the bank site equivalent to, for example, an acre of habitat for an endangered species.
|FAST Act Provisions|
|On December 4, 2015, President Obama signed the Fixing America’s Surface Transportation (FAST) Act (Pub. L. No. 114-94) into law--the first Federal law in over a decade to provide long-term funding certainty for surface transportation infrastructure planning and investment. The FAST Act builds on the authorities and requirements in SAFETEA-LU and MAP-21, as well as efforts under FHWA’s Every Day Counts initiative to accelerate the environmental review process for surface transportation projects by institutionalizing best practices and expediting complex infrastructure projects without undermining critical environmental laws or opportunities for public engagement. For more information, visit www.fhwa.dot.gov/fastact.|
In-lieu fee programs can provide mitigation for transportation projects in advance of proposed impacts, enabling more efficient review processes. North Carolina operates a successful in-lieu fee program through the mitigation program of the North Carolina Department of Environmental Quality (formerly the Department of Environment and Natural Resources). The department established the in-lieu fee program in 1996 and improved the process in 2001 through coordination among 10 State and Federal agencies, including the Wilmington District of the U.S. Army Corps of Engineers. More formally, North Carolina developed the program into an in-lieu fee instrument in 2010 under the State’s Ecosystem Enhancement Program, now the Division of Mitigation Services.
Four separate in-lieu fee programs fall under the State’s mitigation program and provide mitigation options for both the public and the North Carolina DOT. Under the stream and wetland in-lieu fee program, for example, each year NCDOT provides the Department of Environmental Quality with an updated list of transportation projects planned for the next 7 years, including an estimate of mitigation needs. NCDOT then pays implementation costs on a quarterly basis to the mitigation program. This arrangement has successfully streamlined NCDOT’s environmental permits for transportation projects. From 2003 to 2012, NCDOT reported that mitigation requirements delayed none of its projects and that the mitigation program had helped to push through nearly $14billion in transportation projects.
To date, the U.S. Fish and Wildlife Service has approved more than 130 conservation banks in 10 States and Saipan (an island in the U.S. Commonwealth of the Northern Mariana Islands), which collectively conserve more than 160,000 acres (64,750 hectares) of habitat for more than 70 threatened or endangered species. The National Marine Fisheries Service has approved 8 banks in 2 States, along with nearly 300 in-lieu fee sites and more than 1,000 Section 404 mitigation banks.
The Role of Data and Information Sharing
The importance of effective coordination and communication are key messages in the Red Book, because they are necessary for successful implementation of synchronized reviews. Effective coordination among agencies and partners often requires the collection of significant amounts of data and sophisticated electronic data sharing. Federal agencies have developed electronic tools to facilitate more rapid information sharing, as well as geospatial tools that can help agencies visualize potential project impacts on natural resources. These tools can support coordination during a synchronized review by enabling all agencies to view the same geospatial data or by compiling comments electronically.
One such tool is the Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS), a Web-based application developed by the U.S. Army Corps of Engineers with support from the U.S. Environmental Protection Agency, FHWA, and the U.S. Fish and Wildlife Service. RIBITS provides a current listing of mitigation banks, conservation banks, and in-lieu fee programs. Users include regulators; sponsors of mitigation banks; Federal, State, and local agencies; and the public. They can access information related to the types, locations, and numbers of banks and sites for in-lieu fee projects. RIBITS also houses contact information for bank sponsors, credit availability, and links to national and district policies concerning the development and operation of mitigation banks. In addition, users can employ a suite of tools to filter, extract, and export geospatial data from RIBITS to other programs. RIBITS helps support the development and review of mitigation proposals concurrent with the NEPA review process.
Another Web-based tool is NEPAssist. The U.S. Environmental Protection Agency developed this geospatial tool to support environmental review and project planning processes. The application compiles environmental data from the U.S. Environmental Protection Agency’s GIS databases and Web services and provides immediate screening of environmental assessment indicators for particular areas of interest. The tool contributes to a more streamlined review process designed to reveal important environmental issues at early stages of project development.
FHWA continues to work with its partner agencies to accelerate project delivery and improve environmental outcomes.
“To deliver infrastructure projects that achieve real impacts for the American people, we need to act with urgency and recognize that every day counts,” says Transportation Secretary Anthony Foxx. “Today’s actions help us get there. We are pushing ourselves to improve efficiency, coordination, and collaboration, so that Federal permitting becomes a sprint rather than a relay race.”
Anjuliee Mittelman is an environmental protection specialist at the Volpe National Transportation Systems Center. She holds a Ph.D. and an M.S. in environmental engineering from Tufts University and a B.S. in chemical engineering from Queen’s University.
For more information on synchronization, check out the 2015 Red Book: Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects at www.environment.fhwa.dot.gov/strmlng/Redbook_2015.pdf. For more information on the Red Book, contact Mike Ruth at 202–366–9509 or firstname.lastname@example.org.