SAFETEA-LU: Workshop on Planning and Environmental Issues AASHTO Center for Environmental Excellence October 17-19, 2005 Arlington, Virginia

Workshop Agenda Monday –AM: Overview Presentation –PM: Cross-Cutting Issues (Planning/Environment) Tuesday –AM: (A) Planning; (B) Environmental Review –PM: (A) Air Quality; (B) 4(f); (C) Planning Wrap-Up Wednesday –AM: Delegation –PM: Wrap-Up and Next Steps

Agenda for This Morning 9:00 to 9:15 –Welcome 9:15 to 10:15 –Statewide and Metro Planning –Air Quality 10:30 to 12:00 –Environmental Review Process –Assumption of USDOT Responsibilities –Section 4(f)

Materials Your folder includes: –Agenda and list of attendees –Summary paper –Lists of issues/questions for break-outs Bound document includes: –SAFETEA-LU sections –Recent FHWA/FTA guidance –TEA-21 sections

Overview of Environmental and Planning Sections in SAFETEA-LU

Presentation Topics For each topic, we will review: –Key changes in SAFETEA-LU –Required rulemakings or guidance (if any) –Current FHWA/FTA implementation plans

Statewide and Metropolitan Planning Process

Statewide and Metro Planning SAFETEA-LU Sections Section 6001 –Addresses statewide and metropolitan planning – amends 23 USC 134 and 135 Section 3005 and 3006 –Virtually identical to Section 6001 –Amends 49 USC 5303 and 5304

Statewide and Metro Planning Overview Key Changes –New Definitions –Longer Update Cycles –"Tweaks” to Planning Factors –O&M vs. Capital Investments –Need to Consider Environmental Mitigation –Changes to Consultation Requirements –Changes to Public Participation Requirements –Restrictions on Ability to Alter Interstate Compacts

Statewide and Metro Planning Definitions New definitions in statute – applicable to statewide and metropolitan planning: –“Metropolitan planning area” –“Metropolitan planning organization” –“Non-metropolitan area” –“Non-metropolitan local official” –“TIP” –“Urbanized area”

Statewide and Metro Planning Update Cycles Statewide Plans: –Must cover 20 years; no specific update cycle (same as before) MPO Plans: –4 years in nonattainment and maintenance areas (formerly 3 years) –5 years in attainment areas (same as before) TIPs and STIPs: –4 years (formerly 2 years)

Statewide and Metro Planning Planning Factors Safety and Security: –listed as separate factors to emphasize “security” need Environmental: –includes “promoting consistency between transportation improvements and State and local planning growth and economic development patterns”

Statewide and Metro Planning Transportation Plans O&M vs. Capital Improvement: –MPO plans must identify “operational and management strategies” as distinct from “capital investment and other strategies” Environmental Mitigation: –State and MPO plans must discuss “potential environmental mitigation activities and potential areas to carry out these activities”

Statewide and Metro Planning Agency Consultation Consultation with Other Planning Officials: –USDOT must “encourage” MPOs to “consult” with State and local officials responsible for: planned growth economic development environmental protection airport operations, and freight movements Or “coordinate to the maximum extent practicable” with such planning activities –MPOs must give “due consideration” to such other planning activities in the metro area

Statewide and Metro Planning Agency Consultation Consultation With Resource Agencies: –States and MPOs must “consult, as appropriate” with State and local officials responsible for: land use management natural resources environmental protection conservation, and historic preservation

Statewide and Metro Planning Maps and Inventories Consultation With Resource Agencies: –States and MPOs must, “as appropriate,” compare transportation plan with: “State conservation plans or maps, if available” “inventories of natural or historic resources, if available” –Note: Statute does not require consideration of wildlife crossing locations

Statewide and Metro Planning Public Participation Parties Involved: –For Statewide and metropolitan planning, expands list of required participants to include representatives of: “users of pedestrian walkways and bicycle transportation facilities” “the disabled”

Statewide and Metro Planning Public Participation “Participation Plan” (MPOs Only) –Shall be developed “in consultation with all interested parties” –Shall give all interested parties “reasonable opportunity to comment” on MPO’s transportation plan

Statewide and Metro Planning Public Participation Communication Methods: –To “maximum extent practicable,” States and MPOs must: “hold any public meetings at convenient and accessible locations and times” “employ visualization techniques to describe plans” and “make public information available in electronically accessible format and means” such as the internet

Statewide and Metro Planning Interstate Compacts Interstate Compacts –Preserves existing authorization for two or more States to enter an interstate compact to facilitate metropolitan planning. –Limits ability to alter existing compacts “the right to alter, amend, or repeal interstate compacts entered into under this subsection is expressly reserved”

Statewide and Metro Planning MIS Replacement Not addressed in SAFETEA-LU But under TEA-21 Sec. 1308, USDOT must: –“eliminate the [MIS] as a separate requirement” –Issue regulations to “integrate such requirement, as appropriate, as part of the analyses required” under transportation planning statutes and NEPA Caveat: –“scope of the applicability of such [new] regulations shall be no broader than the scope” of the existing MIS regulation.

Statewide and Metro Planning Implementation Steps Statutory Requirements –180 days to issue regulations on required contents for “annual listing of projects” –Must issue guidance on implementation schedule (no deadline for guidance) –Statute also states that: States and MPOs cannot be required to deviate from established update cycles New requirements must be met for Plans, TIPs, STIPs adopted on 7/1/07 or later

Statewide and Metro Planning Implementation Steps FHWA/FTA plans –Comprehensive rulemaking on state/metro planning will be initiated soon –Will implement SAFETEA-LU changes –Will also cover TEA-21 issues, including Changes to planning factors MIS elimination / integration

Air Quality

Air Quality SAFETEA-LU Sections Section 6011 –Changes to Conformity Section 1808 –Changes to CMAQ

Air Quality Section Conformity Key Elements –Frequency –Time Horizons –TCM Substitution –Grace Period for Conformity Lapse

Air Quality Section Frequency Conformity findings must be made: –at least once every 4 years – but more often if plan/TIP changes Conformity findings must be made: –within 2 years after approval of a new or revised motor vehicle emissions budget in a SIP

Air Quality Section Time Horizons Allows shorter time horizon for determining conformity; would be the latest of: –(1) the 10th year of the plan; –(2) the latest year for which there is an emissions budget in the SIP; or –(3) the year of completion of a regionally significant project. Shorter period requires: –Consultation with air agency –Public notice/opportunity to comment –Regional emissions analysis for “out years”

Air Quality Section TCM Substitution TCMs that are specified in a SIP may be replaced if: –New TCMs provide “equivalent or greater emissions reductions” and –Other requirements are met, including: Same as original implementation schedule Adequate funding, authority to implement Developed thru collaborative process MPO, State air agency, and EPA concur that it provides equivalent emissions reduction

Air Quality Section Grace Period Effect of Conformity Lapse –Previously, lapse occurred immediately upon missing deadline. –Now, lapse occurs 12 months after missed deadline. Known as “grace period” Effectively allows additional year to achieve conformity

Air Quality Section Implementation Regulations –2-year deadline for EPA to issue revised transportation conformity regulations –FHWA/FTA working with EPA to develop “interim guidance” on conformity – to apply until new regulations are issued

Air Quality Section CMAQ Key Elements –Funding eligibility expanded –Prioritization of cost-effective measures and diesel retrofit –Interagency consultation requirement –Evaluation of CMAQ projects –Database of CMAQ projects –State-by-State flexibility in CMAQ funds

Air Quality CMAQ - Funding Eligibility CMAQ funds may be used to: –truck stop electrification; –TSM / ops to mitigate congestion, improve air quality; –purchase of “integrated, interoperable emergency communications equipment” –purchase of diesel retrofits for motor vehicles or non- road vehicles and non-road engines for construction projects in ozone/PM areas and funded under Title 23 –assistance to diesel equipment and vehicle owners and operators regarding the purchase and installation of diesel retrofits

Air Quality CMAQ – Prioritization States and MPOs that receive CMAQ funds must give priority to diesel retrofits and other cost-effective emission reduction activities. Priority requirement does not apply to CMAQ minimum apportionment funds Existing authorities regarding project selection are not disturbed. EPA required to issue: –Guidance, including list of diesel retrofit technologies; –information regarding cost-effectiveness of emission- reduction technologies, “taking into account air quality and health effects.”

Air Quality CMAQ – Agency Consultation Consultation –In nonattainment and maintenance areas, USDOT to “encourage” States and MPOs to consult with State and local air agencies regarding estimated emission reductions from proposed CMAQ programs and projects

Air Quality CMAQ – Assessment Assessment –USDOT, in consultation with EPA, must “evaluate and assess a representative sample of projects” funded under CMAQ Database –USDOT must “maintain and disseminate a cumulative database” with information describing the impacts of CMAQ-funded projects on congestion and air quality.

Air Quality Section CMAQ Implementation Steps –EPA, in consultation with USDOT, must issue guidance on cost-effective emission reduction strategies (no deadline) –Changes to CMAQ eligibility effective immediately –CMAQ guidance will be updated –EPA will issue guidance on obtaining conformity credit for diesel retrofits

Environmental Review Process

Environmental Review Process SAFETEA-LU Sections Section 6002 –Environmental review process, including statute of limitations Section 1503 –Changes to design-build regulations Section 6010 –Requirements for ITS projects

Environmental Review Process Section 6002 – Overview Key Elements –Lead and participating agencies –Coordination plan and schedule –Purpose and need, alternatives –Comment deadlines –Issue identification & issue resolution –Funding assistance –Effect on Section 1309 procedures –Statute of limitations

Environmental Review Process Section 6002 – Key Elements Lead and Participating Agencies –USDOT as lead agency –States/local govt. as joint lead agency –Designation of “participating agencies” Coordination Plan and Schedule –“Coordination plan” required –Schedule optional –Project-specific or program-wide

Environmental Review Process Section 6002 – Key Elements Purpose and Need –Lead agency defines (for its study) –Must provide “opportunity for involvement” –Statute lists goals that can be included Alternatives –Lead agency defines (for its study) –Must provide “opportunity for involvement” –Can develop Preferred to higher level –Lead agency determines methodology

Environmental Review Process Section 6002 – Key Elements Deadlines –60 days for DEIS –30 days for all other comment periods –Some flexibility to extend – e.g., good cause Issue Identification and Resolution –Lead agency provides information –Participating agencies flag “issues of concern” –Issue resolution process can be triggered by State and/or project sponsor

Environmental Review Process Section 6002 – Key Elements Funding Assistance –Funded activities must “meaningfully contribute to expediting” the process –Can fund Federal, State, and tribal agencies –Can fund programmatic activities Effect on Existing Procedures –Repeals Section 1309 of TEA-21 –Grandfathers State environmental review process approved by USDOT under 1309

Environmental Review Process Section 6002 – Key Elements Statute of Limitations –Applies to decisions by any Federal agency for a highway or transit project. –Bars lawsuits unless filed within 180 days after Federal Register notice of decision –Note: Separate Federal agency decisions may have separate 180-day periods But can be grouped in one announcement

Environmental Review Process Section 6002 – Implementation Regulations –Rulemaking not required for Section 6002 –No rulemaking planned at this time, but could occur in the future (23 CFR 771) Guidance –Being developed for environmental review process under Sec day statute of limitations

Environmental Review Process Section 1503 – Design-Build Key Elements Must revise design-build regulations to allow the following prior to completion of NEPA: –Issuing design-build RFP –Entering design-build contract –Preliminary engineering under design-build contract –Note: “design build contract” includes concessions Implementation Steps –90-day deadline to revise design-build regulations

Environmental Review Process Section 6010 – ITS Projects Key Elements Must create CE or CEs for ITS projects Must develop national PA for Sec. 106 Implementation Steps –1-year deadline to initiate rulemaking that establishes CEs for ITS projects –USDOT to determine which USDOT agency will have lead for this effort

Assumption of USDOT Responsibilities

Assumption of USDOT Roles SAFETEA-LU Sections Section 6003 –TEs and Rec Trails Section 6004 –CEs Section 6005 –All project types

Assumption of USDOT Roles Section 6003 – Rec Trails and TEs Key Elements Pilot for up to 5 states –Application process to select states Allows USDOT to assign NEPA and certain other responsibilities –Cannot assign tribal consultation role State must accept federal court review

Assumption of USDOT Roles Section 6003 – Rec Trails and TEs Implementation Steps –Statute does not require rulemakings or guidance –No specific implementation steps planned by FHWA –FHWA encouraging States to use existing programmatics and/or CE delegation under Section 6004 in lieu of Section 6003

Assumption of USDOT Roles Section 6004 – CE Projects Key Elements Not a pilot; available to all States Allows USDOT to assign NEPA and certain other responsibilities for CEs –Cannot assign tribal consultation role Must be documented in MOU State must accept federal court review

Assumption of USDOT Roles Section 6004 – CE Projects Implementation Steps –No regulations or guidance required by statute –No current plans to issue regulations –Template MOU being developed (expected in 3-4 months) –Discussions under way with State DOTs

Assumption of USDOT Roles Section 6005 – All Project Types Key Elements 5 States (AK, CA, OH, OK, TX) Allows USDOT to assign NEPA and certain other responsibilities – for all projects –Cannot assign planning, conformity roles –Does not mention tribal consultation role State must identify roles it wants to assume State must accept federal court review

Assumption of USDOT Roles Section 6005 – All Project Types Implementation Steps –270 days to issue regulations defining information needed in application –Discussions under way with 5 States –Tribal consultation role will not be delegated

Section 4(f)

Section 4(f) SAFETEA-LU Sections Section 6007 –Exemption for Interstate System Section 6009(a) –“De Minimis” Findings Section 6009(b) –Rulemaking on Prudence/Feasibility

Section 4(f) Section 6007 – Interstate System Key Elements –Exempts Interstate System from being treated as a historic property except for segments identified by FHWA –Parallels Section 106 exemption approved by ACHP for Interstate System. –Section 4(f) still applies to other properties affected by projects on Interstate System e.g., historic farm adjacent to highway

Section 4(f) Section 6007 – Interstate System Implementation Steps: –No requirement in statute for regulations or guidance to implement Section 6007 –But under 106 exemption, historic segments of Interstate must be identified by 6/30/06. FHWA retaining consultant to identify historic segments of Interstate System Will be seeking input from State DOTs

Section 4(f) Section 6009(a) – De Minimis Key Elements –Allows finding of “de minimis” impact to satisfy Section 4(f) requirements –In general, “de minimis” finding requires: No adverse effect on protected features Concurrence of official with jurisdiction –Particulars differ for historic vs. parks e.g., public notice/comment; minimization req’mt.

Section 4(f) Section 6009(a) – De Minimis Implementation Steps –No regulations or guidance required under statute for “de minimis” finding –Guidance is being developed –FHWA says: For historic properties, de minimis findings can be made now For parks, rec areas, and refuges, must wait for guidance before making de minimis findings.

Section 4(f) Section 6009(b) – Rulemaking Key Elements –Requires rulemaking to clarify “no prudent and feasible alternative” standard –Rulemaking must: Clarify standard as applied to “different types of transportation programs and projects depending on the circumstances of each case” –Rulemaking may: include “examples to facilitate clear and consistent interpretation” of this standard

Section 4(f) Section 6009(b) – Rulemaking Implementation Steps –1-year deadline in statute for issuing regulations on prudence/feasibility

Q&A