# Presentation: 206503

## The National Environmental Policy Actand Design-Build Transportation 

**NAEP 26****th**** Annual Conference**
**Washington, DC**
**Lamar Smith**
**Office of NEPA Facilitation**

**Notes:**
This presentation is not about whether design-build is right or wrong, good or bad ... it is to put design-build in a proper context with the NEPA.
Design-build projects were (for FHWA) special and experimental projects (SEP-14) ... until TEA-21 - Section 1307 allows design-build as a normal Federal-aid project like design-bid-build. (HIF is working on regs)
I have had many discussions of NEPA related to design-build (for years) ... and I’ve wondered said why - I don’t see a problem (at least no more of problem) or difference relative to NEPA.
Is D-B special? Did someone grant exceptions? No ...
... we do NEPA first, make a decision on the best alternative, and then go to the engineering phase ... like we always do.
Now that we are moving in the direction of doing more design-build (when it becomes/is the norm) ... I realize there are some questions and concerns about the NEPA process and design-build   ... and things we need have an understanding of
Where NEPA is concerned it does not / should not make any difference how a project is designed and constructed (post NEPA activities) ... but we were still have the conversations - Maybe that’s why we are here today. 

## Consider

**NEPA process for Federal transportation projects**
**How design-build project development differs from “traditional” project development**
**How the NEPA process is performed or different for design-build project development**
**To what degree does project size, complexity, cost, or level of NEPA documentation make a difference ?**
**Public and agency expectations**
**Potential concerns for transportation projects**

**Notes:**
To understand it we need to consider a few things (this is the beginning and also provides a general outline to my presentation.
 1. 
2. 
3. NEPA be treated differently for design-build projects?
 3. Does it make a difference if a project is processed as a CE, EA or EIS?  It might but not - specific to D-B.   
In addition need to bring to your attention, something I think is very important and  something we don’t think enough about ...
 expectations of the public and other agencies that are created in the project development process ...
... what do I mean by expectations (we do not want to send mixed messages) I’ll speak to this later.
 I also want to highlight a couple of potential problem areas that we (FHWA & SDOTs) need to be aware of. 

## The National Environmental Policy Act

**National Environmental Policy**
**Responsibility of the Federal Government**
**Federal Environmental Process**
**	****	****	****	****	****	****	****	**

**Notes:**
NEPA is an interesting complex law - subject of much debate (friendly and in the courts) ...
... one of the issues that has been hotly debated is whether NEPA is a substantive (requiring a particular outcome) or a procedural (process) law ...it is a little of both - if done correctly procedural or substantive - NEPA has requirements.  
We talk about the intent of NEPA (but we focus on the documentation requirements) ... understanding the “intent” will put the requirements (documentation) in context (that perhaps approaches the substantive).
NEPA is the basic National Charter for protection of the environment - it established National environmental Policy 
Purpose Encourage productive and enjoyable harmony, Prevent or eliminate damage to the environment, Stimulate the health and welfare of man, Enrich the understanding of ecological systems and the natural resources important to the Nation, means and measures to Foster and promote the general welfare, Create and maintain conditions under which man and nature can exist in productive harmony
 NEPA gave direction (responsibility) to Federal agencies
Fulfill the social, economic, and other requirements of present and future generations of Americans, Trustees of the environment, Assure safe, healthful, productive, Attain widest range of beneficial uses without degradation Preserve important historic
policies (intent or spirit) are important ... this is what the procedural requirements refer back to
,,,

## NEPA Principles of Decisionmaking

**Systematic, interdisciplinary approach**
**Environmental amenities and values are given appropriate consideration**
**Objective consideration of alternatives  **
**Agency consultation, involvement, and input **
**Public involvement and participation**
**Informed and balanced decisionmaking**
**Documentation and disclosure of proposals **
**Avoidance, minimization, compensation**

**Notes:**
NEPA of 1969
NEPA created the basis for the Federal Environmental Process  -  the part we are most familiar with 
Requires that Federal agencies conduct business ...
... interpret and administer (implement) polices, regs, and laws, in accordance with the policies of NEPA
... use a systematic, interdisciplinary approach
... give environmental values appropriate consideration (FHWA EPS takes this further)
... document and disclose information (EIS for major federal actions that significantly affect ) 
... requires the consideration of alternatives and
... coordinate with and consider the comments of other agencies and the public
A summary of NEPA - Principles ...
... NEPA is about 

 (all bullets)

While NEPA is the basis of the process, it did not provide the specifics of the procedures for addressing the requirements ... 
... this was the charge of the CEQ which published implementing regulations in 1978 ...

... CEQ regulations (40 CFR 1500-1508) are the foundation of the FHWA environmental and project development process 

## FHWA NEPA Process

**Environmental investigations, reviews, and consultations are coordinated as a single process**
**Compliance with applicable requirements be reflected in process and documentation**
**Alternatives are evaluated and decisions made in consideration of the best overall public interest**
**Public involvement and agency coordination**
**Systematic and interdisciplinary analysis**
**Incorporate mitigation into projects**

**Notes:**
FHWA Environmental regulations (771) supplement the CEQ regulations (as CEQ required) 
FHWA’s basic NEPA implementation Policy is specified right up front in our regulations– guiding principles 
The NEPA / project development process is an umbrella process, which means
 all investigations, reviews, etc (anything necessary to the decision) are conducted as a single process ...
 and compliance with all requirements must be reflected in the documentation 
 The heart of the process lies in the consideration and evaluation of alternatives via a process ...
... that leads to decisions made in the best overall public interest, considering ...  
- the need for safe and efficient transportation
- social, economic, and environmental impacts, 
- environmental goals (National, State, local) 
(balance transportation needs environmental impacts and goals) 
NEPA / Project development also includes - are essential ingredients
 a systematic interdisciplinary approach,  that includes 
     the involvement of other agencies and the public
 Measures for mitigating adverse impacts ... must be incorporated into projects and are eligible 
        for federal funding 

## FHWA NEPA Process

**Transportation Decisionmaking**
**purpose and need is reflected in alternatives**
**alternative not “selected” until NEPA is completed**
**Environmental protection and enhancement**
**analysis of impacts and alternatives**
**mitigation commitments**
**Compliance with applicable laws, regulations, ...**
**Public participation and interagency consultation and coordination is essential**

**Notes:**
Reduce the FHWA NEPA/Project Development Process to bullets  -  it is about ...
Summary of the NEPA/Project Development Process –The Basics ...
... it is about

 Transportation decisionmaking ...
... based on balancing impacts and transportation needs
... decision is made only after the process is complete  
 protection and enhancement (given the opportunity)
 compliance 
 public participation 
 interagency coordination 

## Project Development 

**Notes:**
This is a diagram of the project development process... 
... what it looks like - in general (could look a lot more elaborate, complex, complicated)

It is important to recognize that the project development process  ...
... does not begin and end with NEPA compliance ...

It begins early, in planning, and continues through to construction or beyond ...
... depending on the type of commitments that are incorporated into the decision. 

## Alternatives Analysis / Decisionmaking

**Objective consideration: balance of environmental impacts and transportation benefits**
**reasonable alternatives (purpose and need)**
**no-build alternative (base line)**
**avoidance and minimization (mitigation)**
**Ensure meaningful evaluation of alternatives**
**connect logical termini, have independent utility, and not restrict consideration of alternatives**
**Carried through the NEPA (EIS) process**

**Notes:**
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 

## Limitation on Actions

**NEPA / CEQ**
**Until the ROD is issued no action shall be taken ...**
**FHWA Regulation**
**...****shall not proceed until ...**
**TEA-21**
**Section 1307 (3) Design-build contracting.--**
**	****(B) Limitation on final design**

**Notes:**
to ensure the meaningful and objective evaluation of alternatives -  and to avoid pre-determining the outcome of the process (preselection of alternatives) before the process is complete ...                                                ... CEQ placed these limitations on the decision making process for federal actions No action shall be taken —>
that will have an adverse environmental impact
limit the choice of reasonable alternatives Does not preclude(will be important later on in this discussion)
development of plans or designs or the performance of other work necessary to support the decisions
CEQ limitations are fairly general and related to alternatives analysis and decisions 
FHWA’s  limitations on actions, are more specific and detailed and related specifically to transportation activities ..... it specifies what shall not proceed (prior to completing the process) ... and the point at which these activities (or level of activity - like design) may move forward  —>
Shall not proceed until the CE or FONSI or FEIS/ROD has been completed:
final design activities, property acquisition (ROW), purchase of construction materials / rolling stock, project construction
Section 1307 (3) Design-build contracting.--(B) Limitation on final design. -- Final design under a design-build contract referred to in subparagraph (A) shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969  (42 U.S.C. 4332).

## Design-Bid-Build Process

**Notes:**
The traditional process - 

Key points - Authorizations

Location and design concept approval/acceptance = CE/FONSI/ROD

This is the point of the decision when we move from  preferred alternative(s) to a selected alternative 

## Design-Build Process

**Notes:**
Design-build 

What’s the difference? Authorization is the RFP

- RFQ may not reflect the point at which a decision on an alternative is actually made. 

I may be acceptable for a RFQ to proceed prior to completion of the NEPA process. 

## Final Design

**When does preliminary design end and final design begin? Is there a distinct line between them and where is it drawn?**
**How much design is too much? Enough? **
**What’s the purpose of preliminary design? What constitutes full environmental investigation and analysis? **
**When should design or other investigations for a particular “preferred alternative” be advanced. **

**Notes:**
Now we get to the issue of final design  ...

... This comes up all of the time related to design-bid-build (traditional process) ... 
... because of the regulatory limitations placed on actions before the NEPA is complete 

Answers are not always real clear about when pre-design (of alternatives) ends and final design (for an alternative) begins - it is different for every project ...

... in very simple terms, we have to do whatever it takes to gain understanding of our proposed action and to support the decision that we are making

 (go over questions)

## NEPA and Design-Build Considerations

**The NEPA process is about .... **
**Design-build differs in the performance of post NEPA decisionmaking activities and contracting **
**NEPA is performed for design-build projects in the same way it is for any other project **
**Project size, complexity, cost, and level of NEPA documentation have a similar influence**
**The public and other agencies have a right to certain expectations**
**Potential concerns for transportation projects**

**Notes:**
Have I provided the information and understanding necessary to answer the questions ? 

 NEPA has not changed 
 the reason NEPA is done has not changed ...
 CE? EA? EIS? Is the not real issue.

 What about expectations (agencies and the public) that are created when we enter into the NEPA process ... 
... should not convey mixed or multiple messages 

Have not discussed problems (last bullet) but I would like to highlight a couple of issues specific to the design-build process and NEPA ... 
We need to get a handle on how we deal with a couple of issues ....

## Potential Concern

**Accounting for Change**
**Approach - the reevaluation process**
**subsequent changes to the project or location,**
**resulting new or additional impacts**
**new information relevant to the environment, location, and/or other project concerns**
**Additional analysis and investigation **
**Agency involvement and public participation**
**New “significant” impacts require supplemental EIS **

**Notes:**
The first issue ...
.... is how we deal with changes in the project that affect the environment, commitments, or the decision made in the NEPA process ...
... we need to address these changes that can and will occur after the decisionmaking process is complete ...

... will likely happen during the design phase of the D-B project ...  

FHWA uses a reevaluation process to address changes

 (bullets)

## Potential Concern 

**Mitigation Commitments**
**FHWA Policy**
**responsibility of the applicant**
**measures to mitigate adverse impacts are incorporated into the action **
**implement mitigation measures stated as commitments in the environmental documents**
**FHWA responsibility to ensure compliance**

**Notes:**
Something else we need to recognize and think about and take care with ....
.... the  mitigation commitments made relative to the decisions

This is our - FHWA- and the states responsibility ...
... we must assure that we fulfill commitments  

Commitments made in NEPA documents in legally binding and are very important that we meet our obligations

## Other Considerations

**Section 4(f)**
**Section 404 process and permit application**
**Section 106**
**Air quality conformity**
**Endangered Species / Section 7 consultation**
**The Uniform Act requirements**
**Conflict of Interest ?**

**Notes:**
 Reminder of some of the other requirements that we must consider ...

Highlight a few of these  

- the 404 permit process (an essential consideration)
- Uniform Act
- air quality conformity related to changes in the design concept and scope

 Summary – Design Build seems to make sense for certain projects. 

Peril and pitfalls –

-        assuming that NEPA is treated differently for design-build

-        forgetting the principles of NEPA

not following the requirements of the NEPA / project development process