1 Indirect and Cumulative Impacts A Federal Perspective Lamar S. Smith, CEP Federal Highway Administration Office of Project Development and Environmental Review

2 Federal Initiatives  FHWA Guidance; January 31, 2003  EO Indirect and Cumulative Impact Workgroup activities  Draft Baseline Report; March 15, 2005  FHWA Indirect and Cumulative Impact Workshop  CEQ Guidance on the Consideration of Past Actions in Cumulative Impact Analysis; June 24, 2005

3 Federal Guidance and FHWA Guidance EO WG Baseline Report CEQ Handbook FHWA Position Paper CEQ Guidance EPA 309 Guidance

4 FHWA 2003 Interim Guidance  Discuss and clarify terms, with examples  Focus on NEPA requirements and FHWA policy  Integrates guidance and relevant case law  Reminder on the CEQ available or incomplete information provision  Emphasis on focused coordination and communication during project development  Discussion of reasonable mitigation  Overview of related requirements  Existing training and guidance

5 Executive Order Environmental Stewardship and Transportation Infrastructure Project Reviews Indirect and Cumulative Impacts Work Group

6 Executive Order Environmental Stewardship and Transportation Infrastructure Project Reviews “... to enhance environmental stewardship and streamline the environmental review and development of transportation infrastructure projects …”

7 The EO Task Force  Secretary of Agriculture  Secretary of Commerce  Secretary of Transportation (Chair)  Secretary of the Interior  Secretary of Defense  Administrator of the Environmental Protection Agency  Chairman of the Advisory Council on Historic Preservation  Chairman of the Council on Environmental Quality

8 EO Task Force Goals  Promote environmental stewardship of the National’s transportation system and expedite environmental reviews of priority projects  Formulate and implement policy and procedures to ensure completion of reviews in timely and environmentally sensitive manner  Advance environmental stewardship through cooperative actions in planning and project development  Designate priority projects that should receive expedited agency reviews

9 Task Force Activities  Priority Projects –Task Force level “Champions” –Oversight, project reports and status –Best practices  Interagency Workgroups –Identify barriers to timely and effective completion of the NEPA process –Suggest potential solutions to improve coordination, integration, and environmental stewardship

10 Interagency Workgroups  Purpose and Need (and Alternatives)  Planning Integration  Indirect and Cumulative Impacts For more information:

11 Workgroup Activities  Identify problems, challenges, individual agency perspectives, and needs  Position Paper or “Work Plan” -Background -Review of the issues: “focus areas” -Identify existing and potential problems -Determine agencies’ needs -Present recommendations for consideration of the Task Force

12 Why Indirect and Cumulative Impacts ?  Numerous statutes require consideration of indirect and cumulative impacts  Differences in the requirements  Complicated and complex issues  Potential source of disagreement and delay in the environmental review process  Thinking, understanding and interests vary  Better and focused coordination and collaboration will improve environmental stewardship and project streamlining

13 Indirect and Cumulative Impact Workgroup  Federal Highway Administration (Chair)  Federal Transit Administration  Federal Aviation Administration  Environmental Protection Agency  US Fish and Wildlife Service  US Forest Service  Advisory Council on Historic Preservation  Council on Environmental Quality (Chair)  US Army Corps of Engineers  National Oceanic & Atmospheric Administration

14 Workgroup Focus  Terminology and related responsibilities  NEPA and other requirements  Approaches, techniques and methods for analysis  Level of detail for analysis and documentation  Availability of information  Mitigation requirements and responsibilities

15 Interagency Recommendations 1. Clarify mitigation requirements 2. Develop enhanced “coordination model” 3. Compile and distribute existing references 4. Determine existing training opportunities, identify gaps and needs 5. Evaluate analysis tools and best practices 6. Improve understanding of the relationship of transportation and land use

16 Task Force Request Prepare “Baseline” to:  Provide information to help practitioners advance the state of the practice  Develop policy-level recommendations to strengthen transportation decision making

17 Draft Baseline Report  Document legal requirements related to analysis and mitigation –Relevant laws, regulations, EOs, and case law  Determine current “state of the practice” –Based on research and practitioner interviews  Case studies  Identify lessons learned and opportunities  Compile existing guidance and training  Assess guidance, training, and policy needs  Develop additional recommendations

18 Background Major Requirements  National Environmental Policy Act (NEPA)  Clean Water Act, Section 404  Endangered Species Act  National Historic Preservation Act, Section 106

19 NEPA Indirect Effects  Caused by the action …occurring later in time or farther removed, but still reasonably foreseeable –Includes effects of induced growth and changes in land use patterns or growth Proposed Action Direct Impacts Related Action Indirect Impacts

20 NEPA Cumulative Impacts  Result from incremental impacts of the action added to other past, present, and reasonably foreseeable future actions (regardless of who undertakes those actions) –Can result from individually minor but collectively significant actions Proposed Action Past Actions Other Present Actions Future Actions Cumulative Impact on a Resource Impacts

21 Legal Requirements  40 + laws, regulations, and Executive Orders –General: NEPA, EO –Transportation: TEA-21, 23 CFR 771 –Air, land, and water: CAA, CWA 404, EO –Wildlife: ESA –Cultural: NHPA Section 106 –Health and Safety

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23 Legal Review  30 + Cases: USDOT, USACE, USFS, DOI... –Kleppe v. Sierra Club –Glouchester County Concerned Citizens v. Goldschmidt –Sierra Club v. Marsh –Fritiofson v. Alexander –Laguna Greenbelt v. US DOT –Carmel by the Sea v. US DOT

24 Case Law  Basic NEPA standards  Deference  Requirement to analyze impacts  Extent of consideration  Defined reasonably foreseeable  Indirect “selling points”  “Crystal ball” forecasting

25 State of the Practice Confusion over requirements Uncertainties over impacts to analyze and methods to use Lack of rigorous analysis, in many cases Interagency disagreements  Consideration of these effects are often limited  Evolving toward a greater appreciation of indirect & cumulative effects in decision making  Characterized by uncertainty

26 Sources of Disagreement  Methods and analytic issues –Analysis boundaries –Level of detail –Availability of Information –Significance of impacts and mitigation What are the indirect or cumulative effects?

27 Sources of Disagreement  Questions about causality –Cause of land use change, or response to planned growth?  The role of transportation agencies in mitigation –Who is responsible? – Who should be / is responsible? –Are transportation funds appropriate? Transportation Action Land Use / Development Some of the most contentious issues are often related to “induced” land use changes

28 Existing Guidance and Training  Guidance and training is available  Recently available and may not be readily accessible to those who need it  Need for additional guidance and training: –Tailored to transportation –Include case studies –Highlight differences in indirect and cumulative impact analysis

29 Case Studies  Highlight useful practices  Address indirect and cumulative impacts at various levels –Planning-level efforts –Project-level analysis –Area-wide (ecosystem-level) mitigation

30 Lessons Learned  No one size fits all –Each project has unique issues, geographic and temporal boundaries, need for analysis....  Importance of clear documentation –Delineate analysis and conclusions for both indirect and cumulative impacts –Make clear to decisionmakers, the public, and resource agencies

31 Opportunities to Enhance Coordination and Decision Making  Early coordination and scoping –Agree on critical issues: important resources most likely affected, appropriate boundaries, and methodologies  Coordination with local governments –Facilitate solutions and improve decisions, environmental stewardship and mitigation

32 Opportunities to Enhance Coordination and Decision Making  Use of GIS and modeling tools  Use of experts panels

33 Opportunities to Enhance Coordination and Decision Making  Consideration of impacts earlier in transportation planning to help avoid and minimize effects  Area-wide, watershed and ecosystem-level mitigation approaches

34 Recommendations 1. Outreach and information sharing 2. Practitioner oriented guidance and training 3. New approaches for consensus building

35 Recommendations Outreach and Information Sharing  Share baseline information (laws and regulations, case law, guidance documents, training programs)  Implement a coordinated communication effort from DOT headquarters offices to field offices  Recognize exemplary practices

36 Recommendations Practical guidance and training  Develop and package a compilation of best practice case studies  Develop more specific national-level guidance, including specific steps, samples of available techniques, and checklists  Develop and implement workshops for Federal agency field staff, project sponsors, and consultants

37 Recommendations Approaches for Consensus Building  Develop enhanced coordination model  Identify approaches for integrating analysis into planning processes  Identify methods to address impacts in tiered environmental documents  Facilitate interagency discussion on mitigation to develop common ground and agreement on the role of transportation agencies in mitigation of impacts

38 Next Steps  Outreach and Information Sharing –Ongoing  Practitioner-Oriented Guidance and Training –Future  New Approaches for Consensus Building –Ongoing

39 Get Involved!  Available at: ewardshipeo/icireport.htm ewardshipeo/icireport.htm  Send comments to  Please help !

40 FHWA Indirect and Cumulative Impact Workshop Highlights

41 Goals and Objectives  Improve analysis and discussion  Understanding and application of terms  Overview of NEPA and other requirements  Distinguish between indirect and cumulative future land use impacts  Improve discussion of land use change, future activities and potential impacts  Emphasize and improve coordination  Reasonable Mitigation

42 Importance of Analysis  Compliance  Understanding impacts of project decisions  Influence decision and alternative selection  Inform local interests and authorities  Address concerns and expectations  Satisfy reasonableness and “hard look” standard  Scope of analysis includes direct, indirect and cumulative impacts

43 CEQ Guidance June 24, 2005 Guidance on the Consideration of Past Actions in Cumulative Effects Analysis

44 CEQ Guidance  Guidance –NEPA is forward looking and focused on the potential impacts of proposed action –Review of past actions is required to the extent that it informs agency decision making on the proposed action

45 CEQ Guidance  Discussion –Agencies should be guided by the scoping process: scope and significant issues –Ensure information is useful to decision makers –Reduce “extraneous background data” –Begin with direct and indirect impacts –Not required to list or catalogue individual past actions

46 CEQ Guidance  Tools for NEPA Practitioners –Scoping to focus on significant impacts –Incomplete and unavailable information –Programmatic NEPA analysis or planning study –Environmental management systems - confirm assumptions, track performance, increase confidence –Use effects of past actions to predict indirect effects

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