# Presentation: 866295

## Making Sense of Indirect and Cumulative Impacts Analysis 

**Lamar S. Smith**
- Federal Highway Administration

**Notes:**
Introduction

Instructor
Participants
Subject

## Or ... ... How I learned to Stop Worrying and Love Indirect and Cumulative Impacts ... the short version

**Notes:**
My goal is make sense of indirect and cumulative impacts

To de-mystify them for you.

I may not be able to give you much comfort but I think you will understand more and clearer.

## Why ?

- NEPA and other laws require it
- Provides understanding of total project impacts
- Essential to project decisionmaking
- Others expect it and look for it
- Provides important information to local interests and authorities
- Good job will address the concerns and expectations of others

**Notes:**
Whats the big deal? Why this and why now?

## A Few Basic Truths

- Not new or emerging issues
- Not as complicated as you think
- Might be as complex as you think
- Thinking, understanding, and interests vary
- Secondary and indirect interchangeable
- Indirect impacts and cumulative impacts are not the same things
- Understanding is key to success

**Notes:**
Land-use planning is a local responsibility and are in control of their own destiny
There is a likely relationship between transportation and landuse change 
Transportation cannot be held solely accountable for the future impacts related to development

## Direct Impacts

- Caused by the action and occur at the same time and place.
- (40 CFR § 1508.8)

- Project Action

**Direct **
**Environmental**
**Impacts**

**Notes:**
(40 CFR § 1508.8) Reasonably predictable
Considerable experience 
Information generally available 
Simple relationship – action and result
Generally accepted methodologies and reliable results

## Indirect Impacts

- Caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable ...
- ... Growth inducing and other effects on air and water and other natural systems, including ecosystems, related to induced changes
- 	... in the pattern of land use, and
- 	... population density or growth rate
- (40 CFR § 1508.8)

## Indirect Impacts

- Requires forecasting of future conditions,  probable change, and project influences
- Degree of predictability and confidence
- Impacts may occur away from project area or potential area of effect
- Impacts may be positive as well as adverse

- Project Action

- Related Actions

**Indirect **
**Environmental **
**Impacts**

**Notes:**
The three categories of indirect effects outlined on the slide will be explained in more detail in Module 7.

Encroachment/Alteration:  related to direct encroachment/alteration effects but removed in time or distance.

Project-influenced development effects: improvements in access can attract development of commercial facilities and housing.

Project-influenced development effects can produce indirect effects on the environment that are attributable to the improved access.

Ask the Participants:
Ask for examples of indirect effects related to encroachment/alteration and project-influenced development effect.

Note the responses on flipchart or whiteboard.

Compare to examples on next slide and Overhead of Figure 1-3.

## Cumulative Impacts

- Result from incremental impacts of the action when added to other past, present, and **reasonably foreseeable** future actions, regardless of agency or person that undertakes other actions
- Can result from individually minor but collectively significant actions taking place over a period of time
- 40 CFR § 1508.7

## Cumulative Impacts

- Impacts

- Impacts

- Impacts

- Impacts

**Other Present Actions**

**Future Actions ***

**Past Actions**

**Proposed**
**Project**

***** Reasonably foreseeable;
-    includes indirect actions

**Cumulative Impact on Individual Resource**

## Cumulative Impact Summary

- Comparison of resource condition, health, and sustainability over time
- Analysis on an individual resource basis
- direct affects are the starting point
- Variety of actions, events and causes
- May include natural affects
- Total effect may be beneficial or adverse
- Indirect impacts can be considered a subset of cumulative impacts

**Notes:**
Need to include actions that have had or will have beneficial effects, e.g.:
Wetland and watershed restoration activities.
Wildlife habitat preservation and restoration.
Preservation and restoration of historic properties and districts. 
Direct and indirect impacts can be considered a subset of cumulative impacts

## Resource Impact Continuum

- Present

- Past

- Future

- _Project Impacts_

-     _Indirect Impacts_

**Resource size, function, quality, and condition over time**** **

- _Past, present and future cumulative affects_

## Reasonably Foreseeable

- Reasonably foreseeable events, although  uncertain, must be probable or likely
- Possible but **not** probable affects may be excluded from NEPA analysis
- Can the event or impact be described with sufficient specificity to make consideration useful to decisionmaking?
- Based on informed judgment

**Notes:**
Identify indirect effects that are known 
Make a good faith effort to explain the effects that are not known but "reasonably foreseeable." 

40 CFR §1508.8(b)“The EIS must identify all the indirect effects that are known, and make a good faith effort to explain the effects that are not known but are "reasonably foreseeable." (40 CFR §1508.8(b)). In the example, if there is total uncertainty about the identity of future land owners or the nature of future land uses, then of course, the agency is not required to engage in speculation or contemplation about their future plans. But, in the ordinary course of business, people do make judgments based upon reasonably foreseeable occurrences. It will often be possible to consider the likely purchasers and the development trends in that area or similar areas in recent years; or the likelihood that the land will be used for an energy project, shopping center, subdivision, farm or factory. The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential purchasers have made themselves known. The agency cannot ignore these uncertain, but probable, effects of its decisions.” 

In the example, if there is total uncertainty about the identity of future land owners or the nature of future land uses, then of course, the agency is not required to engage in speculation or contemplation about their future plans. But, in the ordinary course of business, people do make judgments based upon reasonably foreseeable occurrences. It will often be possible to consider the likely purchasers and the development trends in that area or similar areas in recent years; or the likelihood that the land will be used for an energy project, shopping center, subdivision, farm or factory. The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential purchasers have made themselves known. The agency cannot ignore these uncertain, but probable, effects of its decisions.” 

Consider ...
... Existing infrastructure approved or in place
... Activities that are significant to local plan
... Discussions with developers and other authorities

An approved, funded activity is foreseeable, e.g. “City Council approves Master Plan for airport expansion, bonds to be issued in 2005.”
Other cases are not so clear.  Newspaper headline: “Local ranch owners likely to sell to developers as cattle prices drop.”  But is this really likely?

## Wisdom of the Court

- “...agency need not speculate about all conceivable impacts but it must evaluate the reasonably foreseeable effects of the proposed action.”
- _Dubois v U.S. Dept. of Agriculture_
- “... sufficiently likely to occur, that a person of ordinary prudence would take it into account in making a decision.”
- _Sierra Club v. Marsh_

**Notes:**
In Dubois v U.S. Dept. of Agriculture, 102 F.3d 1273, 1286 (1st Cir 1996), the court concluded that when attempting to define indirect impacts, “the agency need not speculate about all conceivable impacts but it must evaluate the reasonably foreseeable effects of the proposed action.”  

In Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992), the court reviewed the issue of whether a particular indirect (secondary) impact was “sufficiently likely to occur, that a person of ordinary prudence would take it into account in making a decision”. 

## What About Mitigation?

- CEQ defines mitigation as ...
- ... avoidance, minimization, and **compensation**

- Project Action

**Direct **
**Environmental**
**Impacts**

- Avoid and minimize

- Compensate

**Notes:**
What and how much is required? 
Who’s responsible?
Is there a difference where indirect and cumulative impacts are concerned? 
What part does reasonableness play? 
What does NEPA require? What do the regulations say?
How do we address the expectations?

Taken credit for what we have done in preliminary alternaitve analysis leading to selection of Reasonable Range of alternatives and the ulitmate selection.

## FHWA Mitigation Policy 

- “Measures necessary to mitigate adverse impacts will be incorporated into the action and are eligible for Federal funding when the Administration determines that:
- (1)  The impacts actually result from the Administration action; and
- (2)  The proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures.
**23 CFR ****771.105(d):**

**Notes:**
FHWA Policylations Section 771.105(d):

“Measures necessary to mitigate adverse impacts will be incorporated into the action and are eligible for Federal funding when the Administration determines that: 

(1)  The impacts for which the mitigation is proposed actually result from the Administration action; and 

(2)  The proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures. In making this determination, the Administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a Federal statute, Executive Order, or Administration regulation or policy.”

Mitigation outside the project’s adverse impacts is not legally required. 
Mitigation for non-highway activities (e.g., private development) is not Federal-aid eligible.
Mitigation costs must be reasonable.
FHWA policy and regulation allow flexibility, including mitigation for past impacts of Federally-funded highway projects to natural habitats and wetlands.

Impacts of future development are beyond the control and authority of the highway program 
Working with locals to influence future growth and promote controls that incorporate environmental protection into  planned development
Partnering with locals to address area-wide concerns can result in better environmental outcomes than project mitigation alone

Some impacts are beyond our control and mitigation is not our authority to fund
FHWA policy and regulations allow some  flexibility 
Opportunities for environmental enhancement expand the traditional view of mitigation
Mitigation for past impacts of Federally-funded highway projects to natural habitats and wetlands

1. The consideration of possible secondary or cumulative effects should begin in the planning stages of the highway project development process. Early activities can provide indications of links that a proposed project may have with other programmed development and area-wide resource management plans for wetlands, air quality, water quality, etc. Such plans may indicate an area is planned to absorb specific primary, secondary, and cumulative impacts in balancing developmental needs with environmental protection. Describing a projects association with (or as an element of) these kinds of plans in an environmental document may in some cases be sufficient to describe the expected cumulative and secondary effects of the proposal. Metropolitan Planning Organizations and other development and resource protection agencies should be contacted early in the process. 
2. In cases where an area has conducted little or no resource planning the assessment of secondary and cumulative impacts can be much more difficult. Often these areas have done little in the way of planning for development as well. The limited information available will mean more effort will be required to contact and coordinate with various sources having knowledge about changes occurring in the area of the project. Local entities, such zoning boards, water quality control departments, and building inspection agencies can be invaluable sources of information. In these circumstances, past history can sometimes be the best indicator of future development patterns. 
3. Once information about the project area is available it should be determined whether developmental changes are occurring and whether continued growth in the future is expected. The same would also apply to current and anticipated changes to environmental resources. Include information on the susceptibility of the resource base to developmental changes known to be related to highway improvements. [page 8] 
4. Information on development trends in the area should then be related to the scope of the project proposal. The area to consider should be that defined by the extent of the project's influence. The project's area of influence may be defined as appropriate, considering the type project being proposed, condition of the existing facility, and other factors capacity, access, etc. However, an acceptable general guideline for determining the area of influence is the geographic extent to which a project will affect traffic levels. This could be through changes to current levels on existing highways and by providing the impetus for new facilities in undeveloped areas. Combining the information on resource and developmental change for the area with the scope of the project's influence yields the geographical extent of potential secondary and cumulative effects of the proposal. 
5. The other element required in the analysis is time. Potential cumulative impacts, in particular, must be considered over a specified time period in order to assess the influence of a given action. On highway projects, design life is often used as a measure of how long a facility remains effective and has a contributing influence on the transportation system. Design life could also be used to place limits on the influence a specific project proposal would have on potential secondary and cumulative impacts. Although secondary and cumulative impacts may carry forward for many decades, the actual time of influence attributable to a single project should generally diminish as the facility approaches it design life. Therefore, it is recommended that design life be used as the maximum period of time that a project can be expected to contribute to potential secondary and cumulative impacts. 
6. Finally, assess the indirect impacts of a highway improvement by analyzing the planned and potential development for the area-influenced by the project over the life of the facility. The projected impacts of this development in total would be an adequate estimate of the secondary and cumulative effects on environmental resources in the area. 
7. If this estimate indicates there is little or no anticipated future change, there is no need to continue the analysis. The conclusion would be that the highway improvement, regardless of its direct impacts, will likely have no indirect impacts. 
However, if future area-wide impacts are indicated, the contribution of the project should then be estimated by judging how directly the highway improvement influences the subsequent development. If the influence is low, the contribution of the highway is likewise low; i.e. the proposal [page 9] likely has minor or no secondary and cumulative impact. If, however, the highway has a clear link to or was planned to promote the subsequent development, the contribution is high and secondary/cumulative impacts attributable to the project are likely great. 
8. After the analysis is complete a valid question will remain: If a proposed highway improvement is determined to cause potential secondary and cumulative effects, what can and should be done to mitigate the adverse impacts? This a- difficult question for which there are no simple solutions. Consistent with existing FHWA regulations mitigation proposals must be both reasonable and related to project impacts. However, the opportunities for environmental enhancement that are now available under the highway program may greatly expand our traditional view of mitigation. Changing a proposed transportation improvement to lessen its contribution of indirect impacts may likely result from a combination of mitigation and enhancement measures that address area-wide concerns, not just the immediate influence of the project. Unfortunately, measures that would be appropriate to offset most future developmental impacts in the area of a project often will be beyond the control and funding authority of the highway program. In these situations, the best approach would be to work with local agencies that can influence future growth and promote the benefits of controls that incorporate environmental protection into all planned development. 

## 23 USC 109 Standards

- (h) ... assure that possible adverse economic, social, and environmental effects have been fully considered
- ... final decisions on the project are made in the best overall public interest
- ... taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects ...

**Notes:**
109(h) Not later than July 1, 1972, the Secretary, after consultation with appropriate Federal and State officials, shall submit to Congress, and not later than 90 days after such submission, promulgate guidelines designed to assure that possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decisions on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects and the following: 
       (1) air, noise, and water pollution;
        (2) destruction or disruption of man-made and natural resources,
     aesthetic values, community cohesion and the availability of public     facilities and services;        
(3) adverse employment effects, and tax and property value     losses;       
(4) injurious displacement of people, businesses and farms; and        
(5) disruption of desirable community and regional growth. Such guidelines shall apply to all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines.  

## Context

- NEPA
- CWA 404(b)(1) Guidelines
- ESA Section 7
- Section 106
- FEMA Wetlands and Floodplains
- EO 11988 and EO 11990

**Notes:**
There are several environmental regulations, legislations, and authorities, in addition to NEPA that include indirect and cumulative impact requirements or general policies applicable to specific resource considerations. The following list is for illustration purposes and is not intended to be all-inclusive:

## Judicial Review

- Procedural not substantive
- Reasonableness and "hard look"
- Inform decisionmakers and the public
**Environmental Impact Statements**
- Reasonableness standard
- EIS must be provide reasonably thorough discussion
**Finding of No Significant Impact (FONSI)**
- Arbitrary and capricious standard
- Deferential to agency technical expertise

**Notes:**
(Desk Reference:  Pages 20 through 21)

Note:
Most deferential arbitrary and capricious standard used to review FONSI since 1989.
Courts defer to decisions unless clear that they are not supported by the evidence or agency failed to consider critical issue.

Less deferential reasonableness standard for EIS review.  No requirement for best available scientific methodology but reasonably thorough discussion of impacts is required.

## NEPA Process

**NEPA Process**

**NO**

**Proposed Action**

**Coordination and Analysis**

**Significant Impact ?**

**Listed**
**CE**

**Public Comment**

**Documented**
**CE**

**Environmental**
**Assessment**

***Significant ***
***impact***

**Notice of Intent & Scoping Process**

**Draft EIS**

**Record of Decision (ROD)**

**Final EIS**

**Agency Action**

**Agency Action**

**Finding of No **
**Significant Impact (FONSI)**

**Agency Action**

**Coordination and analysis as needed**

**No significant impacts**

**Unknown**

**YES**

**Document **
**appropriately **

- Transportation Planning

**Notes:**
Describe the overall options – noting that tomorrow they will be developed in greater detail. Walk the class through the path beginning with the Proposed Action. 
Spend a few minutes discussing when NEPA is applicable to reinforce the project development process and the role NEPA plays in all Federal actions. If the exercise in A-0 shows that the class is generally more advanced you might ask for comments based their experiences.  Note also that the number of the EISs is relatively low as compared to CEs – 
Reinforce again by asking what generally is done at their agencies. 
 Ask who might make the decision and what information is provide at the early stages of determining the process required. 
 ACTIVITY:  Have each group go into a huddles to add up the number of CEs, EAs and EIS they have each been involved with in the past 2 years.Use a flip chart to record this information as the class discusses. As you close lesson be sure class knows the general definitions and is familiar and easily uses the acronyms (already seen in A-1).

## When To Do It

- Environmental Impact Statements
- Cumulative impact analysis required
- Indirect impacts likely appropriate ...
-     ... scope of analysis and methodology depends on project type and resources involved
- Environmental Assessments
- Cumulative impact analysis required
- Indirect impacts analysis depends on project and resources involved
- Categorical Exclusions
- Consider significance of cumulative actions

**Notes:**
Eis almost certainly – it it likely that indirect impacts wont be an issue but cumulative impacts will almost certainly be a consideration

We can rule out CEs except generally

EAs depend but regardless the analysis or evaluation will not be as rigorous inherently by the very nature of them

A Little Advice
Don’t ignore these impacts 
Don’t think others won’t notice 
Don’t be unreasonably 
Be persistent about the right things
Tell as complete a story as possible
Involve the right people, at the right times, and about the right issues
Be well informed

## Confident that impacts are likely to occur
Can impacts be sufficiently described and specified now to allow for useful evaluation?
If impacts are not evaluated now, will future evaluation of impacts be irrelevant? 

Sierra Club v. Marsh

- Can impacts be sufficiently described and specified now to allow for useful evaluation?
- If impacts are not evaluated now, will future evaluation of impacts be irrelevant?
- _Sierra Club v. Marsh_

**Indirect Impacts Evaluation**

**Notes:**
Sierra Club v. Marsh
Review of environmental impact assessment regarding a proposed port and causeway project on a rural island in Maine.  Project part of a "two-part development package" where an industrial park would follow the port development.  Planning and feasibility documents for the project outlined the potential for related industrial development but the EA did not analyze the impacts of such development.

Court constructed three-part test finding:

Planning studies noting potential for related development demonstrates confidence that the impacts would occur and the ability to sufficiently describe them to allow for evaluation (parts 1 and 2).

Once the causeway and port were built future evaluation would be irrelevant because development pressures would then be unstoppable.

Ask the Participants:
Can you think of any examples of cases in your state or facing your agency involving the adequacy of an indirect effects evaluation?

Court established a three-part test for situations warranting indirect effects evaluation
Confident that impacts are likely to occur
Can impacts be sufficiently described and specified now to allow for useful evaluation?
If impacts are not evaluated now, will future evaluation of impacts be irrelevant? 
The Court held that effects identified in planning must be analyzed for project
Sierra Club v. Marsh

## Cumulative Impact Analysis

- What is the geographic area affected by the project?
- What are the resources affected by the project?
- What are the other past, present, and reasonably foreseeable actions that have impacted these resources?
- What were those impacts?
- What is the overall impact on these various resources from the accumulation of the actions?
- _Fritiofson v. Alexander_

**Notes:**
Where cumulative impacts are concerned, one leading court in Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985), addressed cumulative impact analysis using the following five-part evaluation:

1)    What is the geographic area affected by the project? 
2)    What are the resources affected by the project?
3)    What are the other past, present, and reasonably foreseeable actions that have impacted these resources? 
4)    What were those impacts?
5)    What is the overall impact on these various resources from the accumulation of the actions?   

## Scoping  

- Early open discussion and presentation
- Involve the appropriate parties, ask appropriate questions for important input
- Focus on the important issues and resources adversely affected by the project alternatives
- Agree on methodology, approach and boundaries
- Address others expectations and adequacy of analysis
- Be demanding and responsive

**Notes:**
Open discussion
Be demanding and responsive
Don’t go backwards unreasonably
Involve the appropriate experts
Agree on methodology, resources, boundaries
Time frames
Expectations
Avoid agency disagreements over adequacy of analysis by pursuing early involvement. 
Address expectations
Be demanding and responsive
Don’t go backwards unreasonably
Think about time frames
Predicting the future
Consult with local plans 
Trends
Expert panel approach
Models 

## For More Information

- CEQ Handbook,
- FHWA Guidance 1992 and 2003
- EPA Guidance
- NCHRP Report 403 and Desk Reference 466