# Presentation: 865404

## NEPA and FHWA Project Development

**Lamar S. Smith, Team Leader **
- Project Development & Environmental Review

**Notes:**
Henry M. Jackson On the Passage of NEPA ...“The needs and aspirations of future generations make it our duty to build a sound and operable foundation of national objectives for the management of our resources for our children and their children. The future of succeeding generations of this country is in our hands. It will be shaped by the choices we make. We will not, and they cannot escape the consequences of our choices.” 
Not new requirements 
Essential understanding of project effects 
Project decisionmaking
Provides important input to local interests 
A reasonable analysis will address the concerns of others
NEPA process includes consideration and compliance of other requirements
Interests are diverse
Thinking and understanding varies

## How Has the Process Evolved?

**1950**

**1970**

**1960**

**1980**

**1990**

**2000**

**How Has the Process Evolved?**

**1971 CWA**

**1966 DOT Act**

**1971 FaHA **

**1990 ISTEA**

**1998 TEA-21**

**1966 NHPA**

**1990 CAAA**

**1973 ESA**

**1969 NEPA**

**1978 CEQ**

**1987 FHWA/FTA**

**1956 FaHA**

**SAFETEA ?**

**Notes:**
1990 Clean Air Act as Amended: June 1989 President Bush proposed revisions to the Clean Air Act. Building on Congressional proposals advanced during the 1980s, the President proposed legislation designed to curb three major threats to the nation's environment and to the health of millions of Americans: acid rain, urban air pollution, and toxic air emissions. Establishes a national permits program to make the law more workable and improve enforcement program to help ensure better compliance with the Act. 

Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA):  provides authorizations for highways, highway safety, and mass transit for the next six years. Total funding of about $155 billion was available over fiscal years 1992-1997. The purpose of the Act was "to develop a National Intermodal Transportation System that is economically efficient, environmentally sound, provides the foundation for the Nation to compete in the global economy and will move people and goods in an energy efficient manner." 

Transportation Equity Act for the 21st Century (TEA-21) enacted June 9, 1998  - Public Law 105-178. TEA-21 authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998-2003 

Transportation 
1966 - Department of Transportation Act
1970 - Highway Act
1990 - ISTEA
1998 - TEA-21

Environment
DOT Act 
National Historic Preservation Act
Creation of EPA (§ 309 review)
Endangered Species Act
CAA amendments 
Clean Water Act
Others ...

## Federal Environmental Laws and

- <date/time>

**Federal Environmental Laws and**
**Executive Orders Affecting **
**Transportation**

## NEPA

**Declare a national policy **to encourage productive and enjoyable harmony between man and his environment
- ... prevent or eliminate damage to the environment,
- ... stimulate the health and welfare of man,
- ... enrich understanding of natural resources important to the nation
**Use all practical means and measures to** ...
- ... foster and promote the general welfare
- ... create and maintain conditions under which man and nature exist in productive harmony
- ... fulfill social, economic, and other requirements of present and future generations of Americans

**Notes:**
Declare a national policy which will encourage productive and enjoyable harmony between man and his environment  
To promote efforts which will prevent or eliminate damage to the environment and ...
	... Stimulate the health and welfare of man
To enrich the understanding of ecological systems and the natural resources important to the nation
Use all practical means and measures to  
Foster and promote the general welfare 
Create and maintain conditions under which man and nature can exist in productive harmony 
Fulfill the social, economic, and other requirements of present and future generations of Americans

NEPA is the basic “National Charter” for protection of the environment. 
NEPA established a National environmental policy ...
... it was intended to ... encourage productive / enjoyable harmony between man and the environment, promote efforts to prevent / eliminate damage to the environment and biosphere, stimulate the health and welfare of man, enrich the understanding of the ecological systems and natural resources important to the Nation.
The 3 Major Goals of NEPA are:
1. Declaration of National Environmental Policy (Sec. 101) 
  - Federal agencies must use all practicable means and measures to: * foster and promote the general welfare * create and maintain productive harmony between man and nature * fulfill social, economic and other requirements of present and future generations of Americans *
  - Federal agencies are trustees of the environment to: assure safe, healthful, productive, aesthetic and culturally pleasing surroundings * attain the widest range of benefit without undesirable consequences * preserve historic, cultural, and natural environment * achieve a balance between the population and resource use * enhance the quality of renewable resources and recycle depletable resources *
2. NEPA established the basis for the Environmental Impact Statement (Sec. 102) and it
3. Created the Council on Environmental Quality (Title II)

A National environmental Policy 
Federal Responsibility
Federal Decisionmaking Framework 
Environmental process  
Council on Environmental Quality

Congress, recognizing the profound impact ... 
    ... the critical importance of restoring and maintaining environmental quality ... declares that it is the the policy of the Federal Government 
To use all practicable means and measures, ...
	... to foster and promote the general welfare,
	... create and maintain conditions under which man and nature can exist in productive harmony
	... and fulfill the social, economic, and other requirements of present and future generations of Americans

## Federal Responsibility

- Trustees of the environment
- Assure safe, healthful, productive, esthetically and culturally pleasing surroundings
- Attain widest range of benefit without degradation or undesirable and unintended consequences
- Preserve important historic, cultural, and natural aspects
- Achieve balance between population and resource use
- Enhance the quality of the environment

**Notes:**
NEPA 101
Supplemental  
Affirmative 
Procedural 
Substantive 
Integration 

## Decisionmaking Framework

- Systematic and interdisciplinary approach
- Environment given appropriate consideration with economic and technical considerations
- Include in proposals, a detailed statement on
- environmental impacts of the action
- adverse impacts which cannot be avoided
- alternatives to the proposed action
- consequences of taking the proposed action
- Consult with Federal agencies and involve the public

**Notes:**
102

## NEPA Implementation

**CEQ Implementation**

**NEPA**

- CEQ Regulations 40 CFR 1500-1508

**Notes:**
NEPA is the policy.
Use this slide to emphasize the relationship of the regulations and the implementation of the agencies.  
Note the guidelines for the agencies, particularly FHWA and FTA. Leads into the CEQ and FHWA slides and the roles of each. 

After participants have chance to connect to the references – ask if there are any questions.

Implement “action forcing” provisions of NEPA
Comply with procedures and achieve goals 
Promote better decisions not better documents
Integrate NEPA with other planning / processes
Encourage and facilitate public involvement in decisions
Reasonable alternatives to avoid and minimize adverse effects
Reduce paperwork and delay

Principle goal of the CEQ Regulations [identified in the Policy, Purpose, and Mandate (1500)] ... 
... to improve the implementation of NEPA ...
... all Federal agencies are charged with the responsibility to -
- make Better Decisions - not just better documents,
- reduce Paper Work and Delays,
- integrate NEPA with other planning and environmental procedures  (merging, streamlining, one stop processing ...)

## Elements of the NEPA Process

- Federal Decisionmaking
- Alternatives analysis
- Impacts evaluation
- Mitigation: avoid, minimize, and compensate
- Public involvement
- Interagency coordination
- Process and documentation
- Inform decisions of non-Federal entities

**Notes:**
Note:
NEPA and CEQ (outlined in Module 1) are general legal standards.

Major federal action:
Dual approach:  courts consider the scope of federal involvement (must be major) and the significance of effects.  Problem:  overlooks minor federal involvement with major impacts.

Unitary approach:  CEQ position - any federal involvement with major impacts is considered.

(Desk Reference:  Pages 17 through 18)
Desk Reference:  Page 19)

Example of "no segmentation" rule:  
Thomas v. Peterson (9th Cir. 1985) 25-mile timber road found to have no significant impacts but logging and transport activities that would be facilitated by the roads not considered.  These indirect actions found to be "inextricably intertwined" with the road-building activity.

Significance:

Discussed in detail in Module 7.

Significance varies with the context (e.g., local vs. regional).

Intensity of effect is most important not whether effect is direct, indirect, or cumulative.  Techniques for determining intensity the subject of this course.

General legal standards for consideration of  environmental impacts and documentation
CEQ regulations (40 CFR 1500-1508)
And other agencies regulations and guidelines
EIS required for major federal actions with significant environmental impacts
Context
Intensity
General requirements for an EA or EIS
Federal proposals/actions 
Plans are exempt
Consider connected actions

Alternatives 
Impacts 
Mitigation
Public Involvement

Stakeholders
Process
Hearings and meetings
Scoping
Alternative Dispute Resolution 
Commenting
Interagency Coordination
Documentation 
Evidence analysis of alternatives and impact
Involvement and coordination
Full and fair discussion
Informs decisionmakers
Development and analysis of alternatives
Reasonable alternatives 
Reasonable range
No-build / No-action
Avoidance  and minimization

Avoid  Minimize  Compensate

## CEQ Regulations

- Implement “action forcing” provisions of NEPA
- Comply with procedures and achieve goals
- Better decisions not “just” better documents
- Integrate NEPA with planning & other processes
- Encourage and facilitate public involvement in decisionmaking
- Reasonable alternatives
- Avoidance and minimization of adverse impacts
- Reduce paperwork and delay

- 40 CFR 1500 - 1508

**Notes:**
1500.8 Purpose, Policy, and Mandate

Some more history - in the 70’s, NEPA brought new responsibilities to Federal agencies and in the early days (CEQ found that) ... 
... EISs were too long, less important issues were discussed at length, there was no/ poor early coordination among agencies ...
... the process led to unnecessary delays, caused by confusion over differing terminology and procedures among Federal agencies, so 
... in 1977, EO 11991 (Carter) allowed CEQ to issue mandatory “Regulations for Implementing the Procedural Provisions of NEPA" consistently throughout the Federal government  

Principle goal of the CEQ Regulations [identified in the Policy, Purpose, and Mandate (1500)] ... 
... to improve the implementation of NEPA ...
... all Federal agencies are charged with the responsibility to -
- make Better Decisions - not just better documents,
- reduce Paper Work and Delays,
- integrate NEPA with other planning and environmental procedures  (merging, streamlining, one stop processing ...)
To accomplish these goals, CEQ Regulations focus on 4 Key Areas:  
- early coordination, 
- faster better processing,
- uniform processing options for all agencies (EIS, EA, CE) 
- completing the environmental process (FONSI, ROD, CE)
 Implement “action forcing” provisions of 102(2)  make sure agencies act according to the letter and spirit of the act
comply with and achieve NEPA goals
better decisions not better documents 
integrate NEPA with other planning / processes
reduce paperwork and delay Tell agencies what they must do comply with procedures and achieve the goals NEPA goals

## NEPA Jurisprudence

- Procedural not substantive - process not decision
- Considerable deference given to the lead agency
- “Hard look" at significant environmental impacts
- Inform decisionmakers
- Reasoned decision
- Inform the public

**Notes:**
Note:
"Hard look" includes consideration of indirect effects.

It is important to remember that courts are looking to ensure that the process for evaluating indirect effects is reasonable. If the process is seen to be unreasonable, the substantive results or conclusions of the report will be questioned.

After the "hard look"  the agency is not constrained in deciding that other values outweigh the environmental costs.

Lessons:
Comprehensive process.

Thorough documentation.

(Desk Reference:  Page 17) NEPA Case Law Being aware of case law standards will help ensure that practitioners construct an approach to indirect effects evaluation that will produce better projects, result in a wise use of taxpayers’ money, and withstand court scrutiny.

## NEPA Implementation

**Notes:**
NEPA is the policy.
Use this slide to emphasize the relationship of the regulations and the implementation of the agencies.  
Note the guidelines for the agencies, particularly FHWA and FTA. Leads into the CEQ and FHWA slides and the roles of each. 

After participants have chance to connect to the references – ask if there are any questions.

Implement “action forcing” provisions of NEPA
Comply with procedures and achieve goals 
Promote better decisions not better documents
Integrate NEPA with other planning / processes
Encourage and facilitate public involvement in decisions
Reasonable alternatives to avoid and minimize adverse effects
Reduce paperwork and delay

Principle goal of the CEQ Regulations [identified in the Policy, Purpose, and Mandate (1500)] ... 
... to improve the implementation of NEPA ...
... all Federal agencies are charged with the responsibility to -
- make Better Decisions - not just better documents,
- reduce Paper Work and Delays,
- integrate NEPA with other planning and environmental procedures  (merging, streamlining, one stop processing ...)

## FHWA Project Decisionmaking

**Project Development Process**
- 23 USC 109(h) – Standards
- Project decisionmaking
- NEPA implementation
- 23 CFR 771
- Transportation planning process provides essential information

## 23 USC 109 (h)

**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 and ...

**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.  

## FHWA Regulations

- Environmental investigations, reviews, and consultations be coordinated as a single process
- Compliance with all applicable requirements be reflected in the environmental document
- Alternatives be evaluated and decisions be made in the best overall public interest considering ...
- Public involvement, systematic and interdisciplinary approach essential to project development
- Incorporate measures to mitigate adverse effects

**Notes:**
105
based on 
need for safe and efficient transportation social, economic, and environmental impacts National, State, and local environmental goals

be incorporated into the action 
are eligible for Federal funding

## Project Development

- Early and continuous interagency coordination
- Meaningful evaluation of alternatives ...
- 	... avoidance of  commitments before  improvement is fully evaluated ...
- 	... logical termini, independent utility, not restrict  consideration of alternatives ...
- State public involvement and hearing procedures
- Final design, property acquisition, construction ...
- 	... shall not proceed prior to CE, FONSI or ROD
- NEPA approval ... constitutes acceptance of the general project location and concepts

**Notes:**
23 CFR 771.111 The consideration of alternatives is important to the NEPA and project development process (the heart) and a key to success of the NEPA

I want to provide a little emphasis on alternatives ...
...and highlight the requirements, limitations, and expectations related to alternatives analysis 

 reasonable alternatives - purpose and need (no build  as a comparison base line to the analysis)
- Alternatives not only help us to determine best possible transportation solution - but also help to avoid and minimize impacts  
 FHWA (we are serious) regulations specifies other criteria for all alternatives under consideration
carried though the process – must emphasize this 
All reasonable alternatives
Reasonable number of alternatives
Range of alternatives
Full spectrum of alternatives

## Endangered Species Act – Section 7
Civil Rights Act  
Executive Order 12898 (Environmental Justice)
Section 4(f) of USDOT Act (49 USC 303) - Parks, recreation, etc
Clean Air Act
Safe Water Drinking Act
Clean Water Act  404(b)(1)
Farmland Protection Policy Act 
National Historic Preservation Act 
Floodplains

- Endangered Species Act – Section 7
- Civil Rights Act
- Executive Order 12898 (Environmental Justice)
- Section 4(f) of USDOT Act (49 USC 303) - Parks, recreation, etc
- Clean Air Act
- Safe Water Drinking Act
- Clean Water Act  404(b)(1)
- Farmland Protection Policy Act
- National Historic Preservation Act
- Floodplains

- Economic, Social, and Environmental Effects (23 USC 109(h)) analysis
- Public involvement, interagency coordination
- Tribal consultation
- Location, design, and engineering
- Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
- Noise Standards
- Public Hearing Requirements
- Americans with Disabilities Act

**Notes:**
Use this slide to reinforce and pull together the lesson – the strong relationships - the history an the regulations and legislation. 

## Applicant’s Responsibility

- Detailed statements for a major Federal action funded under a program of grants to States shall not be deemed legally insufficient solely by reason of having been prepared by a State agency or official, if:
- agency or official has statewide jurisdiction and has the responsibility for such action
- Federal official furnishes guidance and participates in such preparation
- official independently evaluates statement prior to its approval & adoption

- NEPA §102(d) Amended

**Notes:**
Detailed statement for a major Federal action funded under a program of grants to States...  
... shall not be deemed legally insufficient solely by reason of having been prepared by a State agency or official, if: 
agency or official has statewide jurisdiction and has the responsibility for such action
Federal official furnishes guidance and participates in such preparation 
official independently evaluates statement prior to its approval &adoption

## Transportation Project Development

**... ****Needs, alternatives, impacts, public / agency coordination, documentation**

**Transportation Project Development**

**Planning**

**Right-of-Way**

**NEPA**

**Construction**

**Final Design**

**NEPA Approval: Location, design concept acceptance and environmental decisions**

**Post NEPA **
**Project Development **
**Activities**

**System, coordination, conformity, project purpose, need and alternatives ... **

**Notes:**
Windshield Survey, Acquisitions/Relocations, ROW Plans, Title Work, Appraisals

This is the way it is done (in most cases) ...
Overlapping / integrated activities and analysis
communication and coordination
does not begin and end with document preparation.

Ask the class question like:
When does a project begin?
At what point does NEPA formally begin?
Can you go to construction without following some of the project development steps?
What has been your experience in overall project development process?
What are some of the challenges?

## Elements of the NEPA Process

- Alternatives analysis based on Purpose and Need
- Impact analysis
- Mitigation
- Public involvement
- Interagency coordination
- Documentation

**Notes:**
What’s a Project ? Design concept and scope
Alignment 
Location
Pavement type structure
Level of service
Safetey features guardrail
Structures
Drainage
Access and ingress
Lighting
Clear zone
Speed limit
Curvature
Shoulders
Signage
Limits
ROW
Plans 
contracts

## 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 **

- Planning / pre-NEPA

**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).

## Purpose and Need

- Inform decisions
- Provides critical foundation for alternative decisions
- Basis for reasonable alternatives, evaluations, and comparisons
- Validates reasons for going forward with Federal action
- Basis for dismissal of no-action

**Notes:**
Transportation demand
Safety
Legislative direction
Economic development or planned growth
Modal interrelationships
System linkage
Condition of existing facility
Inclusion in Transportation Plan
40 CFR 1502.13
TA  Page 13
Purpose is essentially the “Problem Statement”  
What the proposed action is responding to
Need supports the problem statement
Facts that clearly demonstrate a "need" exists 
History and background may be important element
Goals and objectives
Be comprehensive yet concise 
Articulate "need" in terms understandable to the general public

Emphasis:
(From FHWA website)
In summary, the purpose and need section in the EIS lays out why the proposed action, with its inherent costs and environmental impacts, is being pursued. If properly described, it also limits the range of alternatives which may be considered reasonable, prudent, and practicable in compliance with the CEQ regulations, Section 4(f) the Executive Orders on Wetlands and Floodplains, and the Section 404(b)(1) guidelines. Further, it demonstrates the problems that will result if the project is not implemented. 
There are three key points to remember relative to the purpose and need section of an EIS. It should be to CLEARLY show:
justification of why the improvement must be implemented; 
as comprehensive and specific as possible; and, 
reexamined and updated as appropriate throughout the project development process
References and Resources:
40 CFR 1502.13

## Alternatives Analysis

- Varies with Class of Action ... CE, EA, EIS
- Rigorous and objective evaluation in the EIS
- Reasonable range of alternatives
- Reasonable number of alternatives
- Must include no-action or no-build
- Build alternatives – representative number
- improve existing
- new location
- Modal and operational (where appropriate)
- TSM alternatives, transit
- Avoidance and minimization

**Notes:**
Alternatives discussed in the EIS include the “range” of all reasonable alternatives 
A reasonable number of examples, covering the full spectrum of alternatives must be analyzed and compared
Reasonable alternatives: those that are ...
	... practical or feasible from the technical and economic standpoint and 
	... using common sense, rather than simply desirable

40 CFR 1505.1(e) CEQ Q&A #1A & 1B

CEQ Q&A 2a

## FHWA Policy on Alternatives

**Alternatives be evaluated and decisions made in the best overall public interest considering:**
- the **need** for safe and efficient transportation
- social, economic, and environmental impacts
- National, state, and local environmental goals
**Ensure meaningful evaluation of alternatives ...**
- Logical termini
- Independent utility
- Restrict consideration of alternatives for reasonably foreseeable improvement

- 23 CFR 771.105(b) and 23 CFR 771.111(f)

**Notes:**
Rigorous and objective evaluation Balance of impacts and benefits
transportation purpose and need 
reasonable alternatives including the no build 
devote substantial treatment to each alternative  
avoidance and minimization
meaningful and complete evaluation

## NEPA ...
   ... Natural and physical environment and 
   ... relationship of people with that environment
40 CFR 1508.14
23 U.S.C 109 (h) ...
   ... Social, economic, and environmental effects 
	... manmade and natural resources 
   ... public facilities and services ...

-    ... Natural and physical environment and
-    ... relationship of people with that environment
- 40 CFR 1508.14
**23 U.S.C 109 (h) ...**
-    ... Social, economic, and environmental effects
- 	... manmade and natural resources
-    ... public facilities and services ...

**        **

**Environment**

**Notes:**
Resources ??? 

## Resources 

- Communities, housing, businesses
- Land use
- Wildlife, habitat, endangered species
- Waters of the U.S. including wetlands
- Historic properties and districts
- Parklands and recreation areas
- Agricultural land
- Air quality (local and air basin)

**Notes:**
Low-income or minority populations.
threatened/endangered species
Planning information 
GIS 
Site visits and reviews of area
Consult others for information on past, present or future effects 
Scoping may identify other important issues

Scoping may identify other important issues

Transportation planning offers opportunity to set cumulative impact context framework

## 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
Analysis usually not controversial (if included)
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

- Alter behavior and function of affected environment caused by encroachment
- Project-influenced effects
- Effects related to project-influenced development

- Project Action

- Related Actions

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

**Notes:**
Maybe difficult to predict
Involves forecasting of future conditions and probable change
Requires a degree of predictability and confidence
Impacts may occur away from project area or potential area of effect
Impacts maybe positive as well as adverse

Improved access to a rural area ... 
...  attracts developers to farm/vacant land for housing or business ...
Improved access to a developed area ... 
...  new businesses open and produce demand for redevelopment 
Improved access to an historic area ...
...  prompts redevelopment altering the character of the historic area
... and attracts visitors, who contribute to preservation of the historic area

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

**Notes:**
Resource specific consideration recommended
Begin with the project direct effects  
Caused by variety of actions or events over time
Comparison of resource condition, health, and sustainability over time 
May include natural effects 
Total effect may be beneficial or adverse

## 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

- Not required to engage in speculation or contemplation
- Possible but not probable effects may be excluded from NEPA analysis
- Reasonably foreseeable events, although  uncertain, must be probable or likely
- Consider the likelihood of impacts
- Based on informed judgment

**Notes:**
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.” Actions that are possible but not likely
Actions outside of established temporal or geographic boundaries 
Future actions that propose no threat to  the resources 
Actions that have little or no influence on the transportation decision 
No reasonable basis to include them“...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

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”. 

## Significant Impact

**Context**

**Intensity**

**+**

**Notes:**
Beneficial or adverse
Public health or safety
Uniqueness of area
Controversy
Degree of uncertainty or precedent-setting
Cumulative impacts
Section 106 properties
Threatened or endangered species
Violation of law 

**Context**

**Context**

**Notes:**
Significance varies with setting
Society as a whole
Affected region
Affected interests
Locality

This means that the significance of an action must be analyzed in several contexts such as 
Significance varies with the setting of the proposed action ...
... for instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. 

Both short- and long-term effects are relevant.

## Mitigation of Impacts

- 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?

## FHWA Mitigation Policy 

**23 CFR ****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 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.

**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.
Difficult questions for which there are no simple solutions
Mitigation must be both reasonable and related to project impacts and in the overall public interest
Mitigation of direct impacts also  contributes to the mitigation of indirect and/or cumulative impacts

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

## Considerations

- Modifying the proposed project
- Adding additional avoidance or minimization measures
- Providing compensatory mitigation for affected resources
- Identifying mitigation measures other parties can implement

**Notes:**
My understanding is that disclosure of all possible mitigation measures are required for any adverse effects no matter who is responsible.  

## Alternatives, Impact and Mitigation Analysis

**Alternatives, Impact and Mitigation Analysis**

**Wetland**

**Floodplains**

** **

**Industrial Site**

**Historic Site**

**Neighborhood**

**Route 200**

**Route 104**

**Route 100**

**Notes:**
Discuss how alternatives and mitigation are directly linked and decisions about mitigation important as alternatives can be made throughout the project development process.

## Implementation Responsibility

- Implement mitigation measures stated as commitments in environmental documents
- Responsibility of the Applicant
- FHWA will ensure compliance through project management
- Formal monitoring plan may be established (recommended where sensitive resources are impacted)

**Notes:**
Some impacts are beyond our control and mitigation is not in 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

Context Sensitive Solutions
Stewardship 
Partnering
Smart Growth

## Coordination and Involvement

- Prior to concluding an EIS, the responsible Federal official must:
- ... consult with and obtain the comments of any Federal agency with jurisdiction by law or special expertise with the impacted resources
- ... provide copies of statement to Federal, State and local agencies and the public

**Notes:**
The public, agencies, and other stakeholders have a role in NEPA and transportation decisionmaking

Continuous contribution at key stage
Identification and resolution of important issues
Establish project goals at local level
Alternatives development
Identify solutions to avoid, and minimize 
Consensus and agreement

## Public Involvement -  FHWA

- Coordination of public involvement activities and hearings with entire NEPA process ...
- ... Early and continuous opportunities ... for the public to be involved in the identification of social, economic, and environmental impacts...”
- ... via State public involvement procedures and requirements for public hearings

- 23 CFR 771.111

## Interagency Coordination

- Early and continuous participation in the NEPA process
- Special expertise and information
- Scoping agreements and understanding
- Establish timeframes
- Consultation and permitting
- Adoption of NEPA documents

## Slide 43

| USCOE (Section 10/404 permits) |  | USFWS 
(fish and wildlife habitat, stream relocations, wetlands) |  |
| --- | --- | --- | --- |
|  | NPS
(Section 6(f))
 |  | Coast Guard
(Section 9 permits) |
| ACHP
(historic and archaeological) |  | EPA
(reservoirs, air quality, sole source aquifers) |  |
|  | State Resource 
Agency |  | Indian Tribe |

**Notes:**
Tribes Lead agency
... Sponsoring agency(ies) - NEPA process and project proponent
Cooperating agency
... Federal agencies with jurisdiction by law (mandatory) or special expertise (optional)
... State and local agenciesRespond to lead agency’s request
Cooperate where jurisdiction by law
Attend scoping and coordination meetings
Provide meaningful and early input on issues of concern
Participate in joint public involvement activities
Review and provide comments on Pre-draft and Pre-final environmental documents

... Tribe (on reservation)

## Scoping

**Continuation of early involvement with affected agencies and interested public **
**Formally associated with EIS process**
- Invite participation
- Determine the scope of the study
- Determine important vs minor issues
- Allocate assignments if appropriate
- Identify other studies in area
- Agree on timing of activities

- 40 CFR 1501.7
- CEQ Scoping Guidance

## 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 **

- Planning / pre-NEPA

**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).

## Categorical Exclusion

**CEQ **- actions which do not individually or cumulatively have a significant effect on the human environment
**FHWA** - actions which meet the CEQ definition and, based on past experience with similar actions, do not involve significant environmental impacts
**Neither an EA nor EIS is required**
- 40 CFR 1508.4
- 23 CFR 771.117(a)

**Notes:**

CEQ Regulations [1508.4] define categorical exclusions as ... 
... actions which do not individually or cumulatively have a significant effect (impact) on the Human Environment. 

FHWA Regulations [771.117(a)] define categorical exclusions as ...
... actions which meet the CEQ definition, and based on passed experience with similar actions, do not involve significant environmental impacts ... 
... they are actions which Do Not:

induce significant impacts to planned growth or land use,
require the relocation of a significant number of people,
have a significant impact on any natural, cultural, recreational, historic, or other resource
involve significant air, noise, or water quality impacts,
have significant impacts on travel patterns, and 
do not otherwise, either individually or cumulatively, have any significant environmental impacts

Is there a definite pattern and theme here ?

## Categorical Exclusions

**23 CFR 771.117(c) - **actions that meet the criteria for CEs
- -  Normally require no further approvals
- Notify FHWA project is a c-list action
- Reference the regulation
**23 CFR 771.117(d) - **additional actions that meet the criteria for a CE may be designated as CEs only after Administration approval
- FHWA individual project approval required based on submitted documentation

**Notes:**
Unusual Circumstances

Significant environmental impacts
Substantial controversy on environmental grounds
Significant impacts on properties protected by Section 4(f) or Section 106
Inconsistencies with Federal, State, or local law, requirement, or administrative determination ...

d - list (23 CFR 771.117(d))
   Level of analysis and documentation is  determined on a case-by-case basis ...           ... commensurate with potential for impacts
Define the extent of impacts
Identify mitigations and commitments
Address known or foreseeable public and agency concerns
Address Federal and other actions required

## Environmental Assessment

- Document prepared for an action ...
- ... where the significance of the social, economic, and environmental impacts are not clearly established
- Concise public document
- Briefly provide evidence and analysis
- Include brief discussions of ...
- Not contain long descriptions or detailed data
- Not mini EISs

- 23 CFR 771.115(c)
- 40 CFR 1508.9

**Notes:**
Approved by FHWA Division
Need not be circulated
Make available for public review
Notice of availability required
published in local newspaper
sent to affected / interested agencies
sent to Statewide clearinghouse (EO 12372)
30 day comment period (normally)
CEQ Q&A #38
23 CFR 771.119(d),(e),(f),(h), & 121(b)

## FONSI

**Finding Of No Significant Impact**
- Document that briefly presents why the action does not have a significant impact
- Includes and references the EA
- Approved by FHWA Division
- Need not be circulated
- Notice of availability
- sent to affected agencies
- sent to Statewide clearinghouse (EO 12372)
- published in local newspaper (recommended)
- Available upon request by the public

## 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 **

- Planning / pre-NEPA

**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).

## EIS

- Environmental impacts of the proposed action
- Unavoidable adverse environmental impacts
- Alternatives to the proposed action
- Irreversible and irretrievable commitments of resources
- Relationship between short term uses and maintenance and enhancement of long term productivity

## More than a list of resources and potential project impacts
Examine resources over time - past, present, and future
Determine growth associated with project 
Consider the indirect reasonably foreseeable impacts of the project
Reasonable analysis 
Hard look

- Examine resources over time - past, present, and future
- Determine growth associated with project
- Consider the indirect reasonably foreseeable impacts of the project
- Reasonable analysis
- Hard look

**Adequate Evaluation**

**Notes:**
(Desk Reference:  Page 21 through 22) Induced Growth – 
Reliance on benefits confirms probability and of effects

Gloucester County Concerned Citizens v. Goldschmidt
Plaintiffs challenged lack of consideration of secondary effects.
Plaintiffs lost because they did not demonstrate that secondary impacts were significant

Coalition for Canyon Preservation v. Bowers
Widening to four lanes for a 10.8-mile stretch of two-lane federal highway connecting rural towns and serving as the primary access road to Glacier National Park.  

EIS noted potential for "development along the highway... increasing at a faster pace than in the past" but did not analyze the magnitude of this development effect or its impact on other resources.

Court found failure to evaluate foreseeable development.

Rural 10.8-mile widening project 
EIS admitted there would be project-induced growth but did not evaluate
Court ruled in favor of plaintiffs due to failure to evaluate foreseeable development
City of Davis v. Coleman
Evaluation of highway interchange designed to service and stimulate future growth in a rural area.

FONSI only discusses direct impacts of cloverleaf not the anticipated future growth cited as the purpose for the project.

Court found that such development was reasonably foreseeable and probable because it was the "raison d'etre" of the project.  Development would spur problems such as population, traffic, pollution, and demand for services that were not addressed in the inadequate FONSI.

FONSI challenged for lack of consideration of commercial / industrial development growth resulting from the construction of an interstate interchange
Plaintiffs won since court found the growth was reasonably foreseeable and indeed probable. 
City of Davis v. Coleman
Coalition for Canyon Preservation v. Bowers

FONSI challenged for lack of consideration of commercial / industrial development growth resulting from the construction of an interstate interchange
Court found the growth was reasonably foreseeable and indeed probable 

City of Davis v. Coleman

## EIS Document Contents 

- Summary
- Purpose and Need
- Alternatives
- Affected Environment - Existing Setting
- Social, economic and natural environmental
- Environmentally Sensitive Features
- Environmental Consequences
- Probable Environmental Impacts and Mitigation
- Comments and coordination

**Notes:**
Visual
Social
Economic
Relocation
Coastal Zone
Land Use
WildlifeAir, Noise, Water
Wetlands, Floodplains
Historic Properties
Section 4(f)
Farmlands
Construction Related
Other

## Final EIS “Additions”

- Preferred alternative and basis for decision
- Alternatives not preferred and reason why
- Mitigation and enhancement measures
- Major unresolved issues and approach to resolve them
- Coordination, comments, and responses
- Final 4(f) and other findings

- 23 CFR 771.125(a)(1)

## HQ’s Prior Concurrence

- Inadequate coordination w/government agencies
- Inadequate discussion of social, economic, and environmental impacts
- Impacts are unusually great
- National policy issues
- Major unresolved issues
- Agency opposition on environmental grounds

- 23 CFR 771.125(c)

## FHWA Legal Sufficiency

**Review **
- Legal requirements have been met
- Document and process is defensible
- Document was properly developed
- Answers questions that can be reasonably asked
- FEIS discussion is adequate

- 23 CFR 771.125(b)

**Notes:**
Purpose of the Legal Sufficiency Review ...
... to ensure that all of the legal requirements of the CEQ regulations, 23 CFR 771, etc. have been met, 
... ensures the document is defensible and improves our chances of success in litigation 

Legal sufficiency is not a technical review ...
... it is assumed that all technical details are correct - 

- the document is analyzed from the point of view of whether it was properly developed ...
- it and answers all of the question that reasonably could and should be asked
- it assures the adequacy of the discussions in the document ...
... purpose and need
... why some alternatives were immediately eliminated and how alternatives were selected for further study
... range of alternatives
... scope of environment affected
... fulfillment of legal requirements for specific environmental impacts
... response to comments and fulfillment of coordination requirements.

## EPA § 309 Review

- Rating environmental impacts
- LO - lack of objections
- EC - environmental concerns
- EO - environmental objections
- EU - environmental unsatisfactory
- Rating adequacy of the impact statement
- 1 - adequate
- 2 - insufficient information
- 3 - inadequate

**Notes:**
Rating environmental impacts
LO--lack of objections
EC--environmental concerns
EO--environmental objections
EU--environmental unsatisfactory
Rating adequacy of the impact statement
1--adequate
2--insufficient information
3--inadequate

## CEQ Referral Procedure

- When a Federal agency determines the project is environmentally unsatisfactory
- CEQ acts as arbitrator or otherwise rules on the dispute
- Specific time periods are mandated
- Referral must occur within 25 days of FEIS    availability notice
- 40 CFR 1504

## Record of Decision

- Incorporate by reference and cross reference FEIS
- Decision - identify selected alternative
- Alternatives considered
- Discuss values considered and basis of decision
- Identify “**environmentally preferred**” alternative(s)
- Section 4(f) - summarize basis of approval
- Measures to minimize harm - describe mitigation
- Monitoring or enforcement program included
- Comments on FEIS - substantive comments and responses

- 40 CFR 1506.9  23 CFR 771.125(g)

**Notes:**
No sooner than –
30 days after Federal Register notice (FEIS)
90 days after Federal Register notice (DEIS)
No further project approvals may be given  until ROD is approved
Make available through public notice
Consistent with state procedures