Highway Projects: Many Federal and State Environmental Review Requirements Are Similar, and Little Duplication of Effort Occurs
Published: 2014-11-18T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Under NEPA, federal agencies evaluate the potential environmental impacts of proposed projects. FHWA has developed a process for NEPA reviews for federal-aid highway projects, such as roads or bridges. According to the Council on Environmental Quality (CEQ) and GAO analysis, 18 states have SEPAs that also require the review of environmental impacts of a variety of actions for highway projects.
The Moving Ahead for Progress in the 21st Century Act (MAP-21) required GAO to examine state environmental reviews for highway projects, including whether they duplicate federal environmental reviews for federal-aid highway projects. This report focuses solely on environmental reviews of highway projects in states with SEPAs and addresses 1) factors determining whether federal or state environmental reviews are required; 2) how state and federal review requirements compare; and 3) the extent of any duplication in federal and state reviews, including frequency and cost. GAO reviewed FHWA and CEQ documents and interviewed officials of these federal agencies; analyzed state laws and regulations; surveyed the 18 states with SEPAs required for highway projects; and interviewed selected state agencies within 9 of those states based on the number of FHWA NEPA reviews underway and other factors.
This report has no recommendations. The U.S. Department of Transportation and CEQ provided technical corrections about federal and state environmental review requirements, which GAO incorporated as appropriate.
section_title: What GAO Found
paragraphs: Three factors—project funding sources and project characteristics, and whether a state allows the adoption of federal review documents—generally determine whether a highway project needs a federal environmental review under the National Environmental Policy Act (NEPA) or a state environmental review under state law, or both. Projects without federal highway funding usually do not require a Federal Highway Administration (FHWA) NEPA review, but NEPA reviews of highway projects may still be required to obtain federal permits. Thresholds for environmental review vary under state environmental policy acts (SEPA) and may include project cost or length, whereas NEPA focuses on the potential for significant environmental impacts. Eighteen states have SEPAs required for highway projects, and 17 of these allow for the partial or full adoption of FHWA analyses or documentation to meet state environmental review requirements, according to GAO's survey of these states.
State environmental review requirements are generally similar to the FHWA NEPA process—including consideration of impacts, development and evaluation of project alternatives, mitigation of adverse project impacts, interagency coordination, and public involvement—although differences in specific requirements may affect key environmental decisions. For example, for the consideration of environmental impacts of a proposed highway project, a majority of states responding to GAO's survey indicated that their requirements are similar to FHWA's NEPA requirements overall. However, officials in 7 states GAO surveyed reported that their SEPA requirements related to social and environmental justice impacts are less stringent than FHWA's NEPA requirements. In addition, while state public involvement requirements are generally similar to FHWA's NEPA requirements overall, individual requirements vary, ranging from states that have no requirements to allow public involvement to others that may have more stringent requirements than FHWA's. Officials in 3 states told GAO that in practice they match FHWA's NEPA public involvement requirements for state-only reviews to meet public expectations, even if state law requires less. Further, in the absence of required federal NEPA reviews, certain federal laws related to protection of parklands and historic preservation may not apply to a project, potentially affecting whether a project is determined to have significant impacts and whether those impacts are mitigated.
Officials in 4 of the 18 states in GAO's survey identified instances of potential federal–state duplication in environmental review processes, stemming either from supplemental state requirements or from the lack of alignment between required federal and state review documents. By contrast, 10 of the states in GAO's survey reported that there was no duplication in environmental reviews. Generally, state officials explained that little duplication of effort occurs in state and federal review processes because these reviews are done concurrently by state officials able to address requirements with analyses used for different purposes without replicating effort. Further, 7 of the 10 states reporting no duplication allow for the adoption of a NEPA review to fulfill SEPA requirements. Finally, 4 states pointed to potential duplication or overlap that did not stem from the interaction of state and federal requirements, such as the rework necessary to keep environmental reviews up to date.

section_title: Letter
paragraphs: When a state uses federal-aid highway funding for a highway project, the  project becomes subject to federal requirements, including a requirement  for environmental review established under the National Environmental  Policy Act (NEPA). Roughly one-third of the states also have laws that  require the review of environmental impacts under a variety of  circumstances. Enacted in 1970, NEPA, and the subsequent Council on  Environmental Quality (CEQ) implementing regulations, set out an  environmental review process that has two principal purposes: (1) to  ensure that an agency carefully considers information concerning the  potential environmental effects of proposed projects; and (2) to ensure  that this information is made available to the public. NEPA and CEQ  regulations require federal agencies to analyze the nature and extent of a  project’s potential environmental effects and, in many cases, document  their analyses. NEPA environmental reviews have been identified by  critics as a cause of delay for projects because of time-consuming  environmental analysis requirements and praised by proponents for,  among other things, bringing public participation into government decision  making. Congress has also expressed ongoing interest in the cost of and  time required for reviews completed under NEPA for federal-aid highway  projects, and we have published several reports assessing available  information on the cost and time frames of required reviews.
In 2012, the Moving Ahead for Progress in the 21st Century Act (MAP- 21)  added provisions intended to accelerate highway project completion  and reduce costs, while protecting the environment, among other things.  Several of these provisions were aimed at expediting project delivery,  including the reviews required under NEPA. MAP-21 required GAO to  examine state environmental reviews to determine whether they duplicate  federal environmental reviews for federal-aid highway projects. To  respond to the MAP-21 mandate, we provided key preliminary information  to your staff on September 25, 2014. This report transmits our final results  related to this review. This report addresses: (1) the factors that  determine whether federal or state environmental reviews are required for  highway projects, and how the types of federal and state environmental  review documents compare; (2) how state environmental review  requirements and practices compare with federal requirements for  assessing the environmental impact of federal-aid highway projects; and  (3) the extent of any duplication in federal and state reviews, including  frequency and cost, in states with environmental review requirements for  highway projects.
We have defined duplication as occurring when two or more agencies or  programs are engaged in the same activities or provide the same  services to the same beneficiaries. This report focuses on duplication  that might occur between state and federal processes for environmental  review of highway projects.
FHWA’s Environmental Review Toolkit for NEPA and Transportation Decisionmaking  (FHWA’s NEPA Toolkit) was accessed in 2014 at:  http://environment.fhwa.dot.gov/projdev/pd3tdm.asp. by CEQ as having expertise in federal and state environmental review  requirements.
To respond to the first two objectives, we conducted a legal analysis and  a survey, which included all 18 states that we and CEQ identified as  having state environmental policy acts (SEPA) requiring environmental  review of highway projects. Our legal analysis compared key elements  of SEPAs and related state regulations to key elements of NEPA and  FHWA regulations for NEPA reviews. We identified these elements by  reviewing the relevant federal statutes and regulations in consultation with  CEQ and FHWA. Specifically, we started with the statutory language of  NEPA, which requires agencies to prepare, for major federal actions  significantly affecting the quality of the human environment, a detailed  statement on, among other things (1) the environmental impact of the  proposed action, (2) any adverse environmental effects which cannot be  avoided should the proposal be implemented, and (3) alternatives to the  proposed action. NEPA, CEQ regulations, and—for federal-aid highway  projects—FHWA regulations then specify detailed environmental review  processes, which include requirements for interagency coordination,  avoiding duplication, and participation by state and local governments as  well as the general public, among other things. Based on these statutory  and regulatory requirements, and in consultation with CEQ and FHWA,  we distilled 12 key elements of NEPA environmental review. Examples of  these 12 elements include the type and level of detail required for  environmental reviews, requirements to improve coordination and  promote efficiency, and public participation. Details on all 12 elements  and findings from our legal comparison of the NEPA and SEPA  processes based on these elements are contained in appendix I, and we  refer to these findings throughout this report as our legal analysis. To  compare state environmental review requirements and practices in more  detail for highway projects subject to FHWA requirements, we surveyed  state DOTs in each of the 18 states that have SEPAs required for  highway projects on the degree of similarity between state requirements  and federal requirements identified in FHWA’s Toolkit. For more  information about how we conducted and used the survey, see appendix  II. In addition to these analyses, we interviewed state DOT officials and  officials with state resource agencies (e.g., state departments of natural  resources) in 9 of the 18 SEPA states we surveyed, which we selected  based on a range of factors, including the number of FHWA NEPA  reviews underway. Our findings for these nine states are not  generalizable to the other states with SEPAs but provide examples of  varying state requirements and practices.
To respond to the third objective, we included in our survey of the 18  state DOTs with SEPAs questions related to duplication and included  questions about duplication in our interviews of state officials and FHWA  division officials in the nine states we selected for additional interviews. In  the context of environmental review requirements, such duplication could  occur if, for example, two separate—but similar—analyses were carried  out to satisfy federal and state requirements, but would not occur if the  same analysis could be used to satisfy both state and federal  documentary (i.e., procedural) requirements. We inquired about  duplication of review efforts within and among highway projects, as well  as duplication that may occur across time within a project. We also asked  FHWA and state officials for any data or analyses regarding the cost of  any potential duplication (and how such cost might be measured) and the  frequency of any potential duplication. Finally, in our survey we asked  state officials about efforts to improve the efficiency and timeliness of the  environmental review process, as well as any potential benefits from such  efforts. See appendix II for additional details on our objectives, scope,  and methodology.
We conducted this performance audit from May 2013 to November 2014  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: Under NEPA, federal agencies generally are required to evaluate the  potential environmental effects of proposed federal actions such as  permitting, funding, approving, or carrying out of federal-aid highway  projects. These evaluations allow decision makers to fully consider  significant environmental impacts, develop and evaluate project  alternatives, and consider mitigating adverse impacts before they decide  whether to approve a proposed project. The NEPA process also provides  a forum for ensuring that all applicable federal and state resource  protection laws and requirements are addressed during the project  development process, such as applicable provisions of the federal Clean  Water Act and Endangered Species Act. NEPA’s implementing  regulations require coordination as a means to avoid duplication and  increase efficiency. For example, they require all federal agencies to  “cooperate with state and local agencies to the fullest extent possible to  reduce duplication.”can include, among other things, seeking input, and in some cases  approvals, from the public as well as federal and state agencies  responsible for natural resources, environmental protection, and historic  preservation, and obtaining approval of the environmental evaluation by  the lead federal agency prior to making a decision, which in some cases  results in the issuance of a record of decision (ROD).
In addition, the environmental review of projects  FHWA has statutory and regulatory requirements for conducting NEPA  reviews, which include additional highway-specific requirements and put  additional emphasis on an interagency decision-making process. For  instance, FHWA regulations require that each project alternative  considered in the review connect logical end points (e.g., involve the  development of a highway that links with existing roads) and be of  sufficient length to address environmental matters broadly. FHWA  regulations and policy also include provisions to coordinate with other  federal agencies with jurisdiction, expertise, or interest in the project, as  well as non-federal actors, including state agencies and project  sponsors. In addition, FHWA’s statutory authority includes a mechanism  to limit the time frames available to challenge decisions in federal court as  part of the judicial review process, as well as other provisions, such as  permission to fund assistance to specific groups to improve interagency  coordination. Figure 1 illustrates six principles of FHWA NEPA review  from its Toolkit.
According to CEQ and FHWA, establishing the purpose and need for the  federal action takes into account the project sponsor’s purpose and need  for a project and is essential in establishing a baseline for the  development of the range of reasonable project alternatives required in  environmental reviews. It also assists with the identification and eventual  selection of a preferred alternative. For FHWA NEPA reviews for federal- aid highway projects, the purpose and need for a proposed project might  take into account the status of the project (e.g., the project’s history,  funding, and schedules, as well as information on agencies involved); a  discussion of highway or bridge capacity, the project’s relationship to the  larger transportation system, and traffic demand; as well as social  demands or economic development.
In addition to the procedural requirements of NEPA, the decision to fund a  federal-aid highway project also must comply with substantive  environmental and natural resource protection laws, including applicable  state laws.
Federal environmental laws commonly applied to a proposed highway  project such as the Clean Water Act (Section 404); the Endangered  Species Act of 1973 (principally Section 7); Section 106 of the  National Historic Preservation Act; and Section 4(f) of the  Department of Transportation Act (protecting publicly owned parks,  recreation areas, wildlife and waterfowl refuges, and public or private  historic sites). Section 4(f) applies to DOT projects and Section 106  applies to projects with federal funding and some projects that require  federal permits. Other federal natural resource protection laws— FHWA has identified over 40—can apply to federal and state or local  projects, depending on characteristics of the project. For example, the  Wild and Scenic Rivers Act protects designated and potential wild,  scenic, and recreational rivers.
State environmental laws, such as laws related to the growth-inducing  effects of agency actions may also apply to a proposed highway  project. States may also have laws that protect certain resources,  such as those designating protected or endangered species or those  protecting tribal or other cultural resources.
For federal-aid highway projects, reviews are typically conducted by state  DOT officials—or other project sponsors—who carry out analyses and  coordinate with FHWA. FHWA generally serves as the federal lead  agency for the NEPA process and approves the environmental impact  documentation. Under NEPA, the level of review required depends on  the potential significance of the environmental effects of the project.
Projects that have the potential for a significant effect: An  Environmental Impact Statement (EIS) must be prepared for a project  that has the potential for a significant effect on the environment. Both  CEQ and FHWA regulations identify EIS requirements related to  public involvement (such as public participation in scoping, response  to substantive public comment on a draft EIS, and public hearings  when appropriate); interagency participation; consideration of project  impacts (such as impacts on water quality or wildlife habitat);  development and evaluation of alternatives; and the mitigation of  adverse project impacts. Projects requiring an EIS are likely to be  complex and expensive, as we have noted in prior work. The median time to complete a highway project EIS was over 7 years in  2013, according to FHWA data, and the EIS itself may cost several  million dollars, as reported by FHWA.
Projects that may or may not have a significant effect: When project  effects are uncertain, project sponsors (such as state DOTs or local  highway departments) must prepare an environmental assessment  (EA) to determine whether the project may have a potentially  significant impact on the human environment. An EA briefly provides  evidence and analysis sufficient to determine whether to prepare an  EIS or a finding of no significant impact (FONSI). A FONSI presents  the reasons why the agency has concluded that no significant  environmental impacts will occur if the project is implemented. FHWA  regulations governing EAs require early scoping and coordination  activities, as well as making the EA publicly available. EA review  activities have been estimated to take from 14 to 41 months,  according to reports from FHWA and AASHTO.
Projects that normally will not have a significant effect: These projects,  by their very nature (e.g., the project fits within a category of activities  that the agency has determined normally do not have the potential for  significant environmental impacts), require limited review under NEPA  to ensure—by considering any extraordinary circumstances—that a  proposed project does not raise the potential for significant effects.  Agencies promulgate categorical exclusions (CE) for such projects in  their NEPA implementing procedures. The subsequent use of a  categorical exclusion for a proposed project, as described in CEQ  guidance, can reduce paperwork and delay by speeding the review  process. CEs typically take much less time to prepare than EAs or  EISs. Environmental review activities for categorically excluded  projects have been estimated to take an average of 6 to 8 months to  complete, according to FHWA, and could take as long as an average  of 22 months to complete, according to a report prepared for  AASHTO. Federal-aid highway projects that are generally processed  as CEs include resurfacing, constructing bicycle lanes, installing noise  barriers, and landscaping projects.
Figure 2 illustrates FHWA’s NEPA decision-making process, including the  three main types of highway project environmental review documentation.
For federal-aid highway projects, FHWA has found that the vast majority  of projects (96 percent in 2009) qualify for environmental review as CEs,  and only 1 percent require EIS reviews, as shown in figure 3 below.  However, EIS projects, because of their high costs, account for a greater  share of federal-aid funds than their numbers might suggest.
According to CEQ and our analysis, 18 states have adopted SEPAs that  require environmental reviews for highway projects (see fig. 4). The  majority of SEPAs were modeled on NEPA and require state and  sometimes local public agencies to assess the impacts of projects (or  other actions) affecting the quality of the environment within the state.Among other things, SEPAs may expand requirements for environmental  reviews to projects (e.g., state, local, or private projects) that are not  required to have such reviews under federal law.
section_title: Three Factors Generally Affect the Types of Environmental Reviews Required for Highway Projects, and State Environmental Review Document Types Largely Mirror NEPA
subsections: section_title: Three Factors Generally Affect Whether Federal or State Environmental Reviews Are Required for Highway Projects
paragraphs: Three factors—project funding sources, project characteristics, and rules  allowing state adoption of federal review documents—generally  determine whether a highway project needs a federal environmental  review or a state environmental review, or both.
subsections: section_title: Funding Sources
paragraphs: Federal-aid highway projects are generally subject to environmental  review under NEPA and the environmental provisions of title 23, with  FHWA serving as the federal lead agency for the review. By contrast,  when a project is funded solely through state or local funds, it rarely  requires an FHWA NEPA review, although action by another federal  agency may require an environmental review.
To some extent, states can influence whether or not FHWA NEPA  reviews are required by their selection of funding for a particular project.  By using—or avoiding—federal-aid highway funds, states can determine  whether their projects are subject to a FHWA NEPA review and even  whether certain other federal environmental laws apply. For example,  officials in some states told us that federal-aid highway funding was  sometimes requested for a project requiring permits from other federal  agencies specifically so that FHWA would serve as the federal lead  agency for the NEPA review, rather than have a federal permitting agency  (e.g., the U.S. Army Corps of Engineers (Corps)) serve in that capacity.  Officials in two states cited their positive working relationships with  FHWA, or the lack of resources at other federal agencies, to explain such  decisions. As another example, California officials explained that not  having federal funding or not needing a federal permit—either of which  would trigger NEPA—requires them to comply with more burdensome  requirements of the Endangered Species Act. They therefore would have  an incentive to include federal-aid highway funds to ensure NEPA would  apply.
Some state officials, however, identified reasons why they may seek not  to use federal-aid highway funding for certain projects. For example, state  officials in Massachusetts, Minnesota, and North Carolina told us that  they chose not to use federal-aid highway funding on some projects  mainly to avoid certain federal review requirements, notably Section 4(f)  or Section 106, which can increase project costs or require additional time  for reviews to meet federal requirements.three other states (California, Maryland, and New York) focused their  federal funding on certain—often large—projects, resulting in fewer  FHWA NEPA reviews overall. Some state officials told us that as a  practical matter, there may not always be a choice to not use federal  funding, even if they might otherwise choose to do so, because limited  state funding may not cover the full cost for some large projects. Although  only using state funds may preclude the need to meet certain federal  requirements, other federal environmental requirements, such as  compliance with the Clean Water Act, largely remain for state-funded  projects.
section_title: Project Characteristics
paragraphs: SEPAs vary with respect to which project characteristics trigger an  environmental review as well as what type of review is required and the  scope and extent of that review. These characteristics can include  thresholds related to project costs, project length, and expected service  impacts such as the volume of traffic affected, among other things. These  requirements contrast with NEPA, which generally focuses on the  potential for significant environmental impacts. reviews are required for state projects costing $500,000 or more. Other  dollar-value thresholds are built into the SEPA requirements of the District  of Columbia, Georgia, and New Jersey. In Massachusetts, environmental  reviews are required for the construction of new roadways 2 or more  miles in length. Likewise, Minnesota requires an EIS-type review for new  For example, in Virginia,  road projects four or more lanes in width and 2 or more miles in length.Finally, in certain cases, states require particular environmental reviews  for expected service impacts. For example, EA-type reviews are required  for the construction of new roads over 1 mile in length that will function as  collector roadways in Minnesota.
In January 2014, however, pursuant to MAP-21, FHWA adopted a regulation allowing a  project that receives less than $5,000,000 of federal funds to be treated as a CE.
section_title: State Adoption of Federal Reviews
paragraphs: Almost all states with SEPAs responding to our survey (17 of 18) allow for  the partial or full adoption of analyses or documentation produced in  conducting federal reviews to meet state requirements for highway  projects, while Massachusetts requires that a separate state review be  completed. Figure 5 illustrates the number of states allowing for full  adoption, in which the NEPA review fulfills the SEPA requirements; those  allowing for the adoption of the federal review with additional state  analyses or documentation (i.e., partial adoption); and those requiring that  state requirements be met separately from the FHWA NEPA review.  Several factors may affect whether a NEPA document can be accepted  as a SEPA document in those states that allow for full or partial adoption.  For example, state DOT officials reported that their ability to use a NEPA  review to meet SEPA requirements varies based on the project sponsor,  the type of review, and whether a similar type of environmental review  document is required to satisfy federal and state environmental review  requirements. Finally, several states carry out and adopt federal analyses  or documentation for state projects even in the absence of federal funding  or permitting. Maryland DOT officials told us that in practice they adopt  federal FHWA NEPA reviews for almost all highway projects—even those  with only state funding—given staff familiarity with the federal  requirements and public expectations, as well as the potential for funding  sources to change between the preliminary engineering and construction  phases of a project. Washington DOT officials also mentioned that using  and adopting NEPA could be advantageous because they felt more  certain about how FHWA’s NEPA requirements would be interpreted by  courts should a legal challenge to the environmental review process be  subsequently filed.
While the majority of states with SEPAs allow for the full adoption of  federal NEPA reviews, some do not (see fig. 5). When separate federal  and state reviews are required, the processes are often carried out  concurrently, with joint planning processes, research and studies, and  public hearings, as well as the use of blended documents. Both Montana  and New York reported having integrated processes for state and federal  reviews, for example. Likewise, officials with California’s DOT (Caltrans)  stated that Caltrans has a long-standing practice of combining NEPA and  the state’s SEPA processes to make the delivery of transportation  projects more efficient. For example, Caltrans’s guidance for a blended or  joint NEPA/SEPA EIS/EIS-type review describes use of a special chapter  in the joint document to address required California-specific mitigation  information. Finally, Hawaii’s environmental review statute requires  coordination of state and federal reviews when both apply. The extent to  which state SEPAs, like NEPA, require coordination is discussed in the  next section of this report.
When a project sponsor requests that a state review be adopted to satisfy  federal requirements, FHWA conducts a legal sufficiency review to  ensure that the analysis and documentation satisfy FHWA’s NEPA  requirements, according to an official with FHWA’s Office of Project  Development and Environmental Review. This legal review may happen  when, for example, federal funding is added to an ongoing state project or  when project requirements change, and a federal permit that was not  originally required must now be obtained. State officials in several states  we spoke with pointed to the potential for duplicative effort when ongoing  state projects are subsequently “federalized” in this manner. According to  the FHWA official we spoke with, a case-by-case assessment is  necessary because each situation is different when projects have been  federalized. To avoid the risk of having to start the federal environmental  impact assessment late in the project development process, FHWA  encourages project sponsors to follow FHWA’s NEPA process from the  beginning of project development. For this reason, officials in five states— Hawaii, Maryland, North Carolina, Washington, and Wisconsin—told us  they preferred to review projects under FHWA NEPA—even in the  absence of federal funding.
section_title: State Review Document Types Largely Mirror NEPA Review Document Types
paragraphs: A majority of states we surveyed reported having state review document  types that are similar to those used for NEPA reviews (see fig. 6). Most  states (16 of 18) reported requiring documents that are similar to a NEPA  EIS or a NEPA EA, although fewer states had similar documents for  FONSI/EAs or CEs, and the level of analysis required varies by state, as  discussed in more detail below.
While most states reported having an EA-type document, some state  officials told us that their documentation requirements for that process  can differ from the documentation requirements for an FHWA EA.  FHWA’s EAs are to include brief discussions of the need for the proposed  project, project alternatives, the environmental impacts of the proposed  project and alternatives, and a listing of the agencies and persons  consulted. Officials in six of nine states where we conducted interviews  told us they use a checklist for their EA-type reviews. For example,  Washington DOT’s checklist asks for narrative responses to 12 pages of  questions on topics like water, plants, and historic and cultural  preservation. Instructions direct the project sponsor—often the state  DOT—to answer the questions briefly with the best description possible  and to say “does not apply” if that is the case. As a result, these reviews  may look more like a documented federal CE than a federal EA. Further,  in some instances, these checklist reviews can involve less analysis than  a federal EA. A Washington DOT official told us that the checklist allows  impacts to not be assessed if they are deemed “not applicable.” By  comparison, a federal EA requires more detailed documentation of  findings. In Massachusetts, the state DOT prepares a 22-page checklist  called an environmental notification form for projects meeting set criteria.  This document has attached plans and is publicly circulated. Depending  on whether the project exceeds certain thresholds, the document may  require responses to questions, according to Massachusetts DOT  officials. By contrast, New York requires more specific analysis as its  regulations require the state DOT to prepare a negative declaration that  can be supported by a NEPA FONSI. This document, a determination of  no significant effect, must identify all the relevant areas of environmental  concern and show why the project impact, if any, is not significant.
section_title: Many State and Federal Requirements Are Similar, but Differences Could Affect State Environmental Reviews or Outcomes
subsections: section_title: State Requirements Are Generally Similar to FHWA’s NEPA Requirements
paragraphs: To compare state environmental review requirements to FHWA’s NEPA  requirements for federal-aid highway projects, we reviewed relevant state  statutes and regulations for each of the18 states that we identified as  having a SEPA required for highway projects and compared those  statutes and regulations with NEPA and FHWA regulations. In addition,  we surveyed state DOTs in each of those 18 states about the degree of  similarity between state requirements and federal requirements identified  in FHWA’s NEPA Toolkit for five of FHWA’s six NEPA principles:  assessment of project impacts, development and evaluation of project  alternatives, mitigation of adverse project impacts, interagency  coordination, and public involvement.
Seventeen of the 18 surveyed  states provided responses to this section of our survey. We used our  legal analysis and interviews with state officials to supplement and  confirm survey responses, as well as to provide illustrative examples of  how state requirements or practices compare with NEPA and FHWA  requirements. To identify which states have requirements that were  “generally similar” to FHWA’s NEPA requirements overall, we determined  which states in our survey reported having environmental review  requirements that were similar or somewhat similar to 42 individual  requirements for FHWA NEPA reviews under the five NEPA principles.
Based on our legal analysis and survey responses, for each of the five  NEPA principles the majority of states have requirements that are  generally similar to FHWA’s NEPA requirements overall. More  specifically, as shown in figure 7, for each of the five areas, survey results  indicated that requirements in 10 or more of the 17 state SEPAs were  generally similar to FHWA’s NEPA requirements overall. Some similarity  between state and federal requirements is to be expected since a majority  of SEPAs were modeled on NEPA, as we discussed above. Further,  some states may employ more stringent review processes in practice  than state statutes and regulations require in order to satisfy public  expectations or for other reasons. Based on our legal analysis and survey  responses, we found that a number of states have SEPA requirements  that are generally less stringent, however. In fact, survey results suggest  that the divergence between state and FHWA’s NEPA requirements may  be greatest for the NEPA principle of alternatives analysis, where 7 (of  17) states had requirements they characterized as generally less  stringent. Overall, no state reported having requirements more stringent  than FHWA NEPA for more than 4 (of 42) individual requirements within  the five NEPA principles included in our analysis. We discuss each of  these NEPA principles—and the related requirements identified in the  Toolkit—in more detail below.
In some cases, the divergence between state and federal requirements is  more pronounced depending on the type of review being conducted.  According to survey responses, state requirements for documentation  and analyses are more likely to mirror FHWA’s NEPA requirements for  higher level, more complex SEPA reviews (e.g., EIS-type reviews) than  for less complex reviews. This difference reflects, in part, the differences  among various document types mentioned above, including the use of  checklists for EA-type assessments in many states. Potential  environmental impacts for the vast majority of projects at both the state  and federal level are evaluated using CE or EA requirements, as only a  small proportion of projects typically requires an EIS review, according to  FHWA and state officials we interviewed. Where state and federal laws  diverge, there is the potential for meaningful differences in how significant  impacts are assessed or mitigated, which project alternative is selected,  the level of interagency coordination, and opportunities for the public to  affect or challenge decisions, among other things.
section_title: Most States Require Some Evaluation of Impacts, Alternatives, and Mitigation, but Requirements Differ, and Comparable Parkland and Historic Preservation Protections Are Generally Absent
paragraphs: Most state requirements include some consideration of impacts,  development and evaluation of alternatives, and mitigation for the  analyses that inform environmental review documents, but the degree of  similarity to FHWA’s NEPA requirements varies, and states generally lack  protections comparable to federal parkland and historic preservation  protections.
subsections: section_title: Consideration of Project Impacts
paragraphs: For each of the 5 individual requirements related to the consideration of  project impacts, from 10 to 13 (of 17) states reported in our survey that  their requirements for analyzing the environmental impacts of a proposed  highway project are similar to FHWA’s NEPA requirements, although  other states reported having less stringent requirements. Figure 8  illustrates this variation among states for each of the five requirements  associated with the consideration of project impacts.
Impacts analysis provides decision makers with the information  necessary to determine whether a proposed action will produce  significant adverse impacts in certain identified areas, including impacts  that are short-term, long-term, and cumulative. In our survey, 10 (of 17)  states reported similarities with FHWA’s NEPA requirements to consider  cultural or social impacts and to assess impacts relating to social and  economic justice, but officials we interviewed in 3 states identified  consideration of impacts related to social and environmental justice as a  key difference between state requirements and FHWA’s NEPA  requirements. (See fig. 8.) These requirements assess potential effects  on certain minority or low-income populations in FHWA NEPA reviews,  among other things. For example, Caltrans officials explained that  usually they are not required to look at social or economic impacts unless  these impacts are triggered by a physical impact, which differs somewhat  from federal requirements to address these impacts separately.Similarly, requirements in Wisconsin and Washington for assessing social  justice impacts are less stringent than federal requirements, according to  state DOT officials, although in practice DOT procedures for analysis in  both states align with what is required by FHWA and NEPA.
Variations in state substantive environmental statutes and regulations  (e.g., those managing growth or protecting certain species) can affect the  determination of significant impacts. For example, North Carolina officials  described substantive state environmental statutes and regulations that  are more stringent than federal protections, such as higher permit  standards to protect trout waters and stricter navigation requirements for  public use of waterways. These statutes and regulations affect what must  be considered during impacts analysis. Such requirements, while not part  of SEPAs themselves, can affect the evaluation of project impacts when  they are included in the SEPA or NEPA review processes. According to  our legal analysis, Georgia regulations are less stringent because  although they require consideration of the cumulative impacts of other  proposed government actions, they do not address the actions of  nongovernmental entities, for example.
section_title: Development and Evaluation of Project Alternatives
paragraphs: For each of the five individual requirements related to the development  and evaluation of project alternatives, from 9 to 11 (of 17) states reported  in our survey that their respective requirements are similar or more  stringent, although notable differences between state and FHWA’s NEPA  requirements affect both the assessment of alternatives and the selection  of the preferred alternative in some states. Figure 9 illustrates this  variation among states for each of the five requirements associated with  the development and evaluation of project alternatives.
FHWA regulations require consideration and objective evaluation of all  reasonable project alternatives to avoid any indication of bias toward a  particular alternative, including the “no action” alternative. In our survey,  10 (of 17) states reported similarities with FHWA’s NEPA requirements  for the identification of a range of reasonable alternatives. (See fig. 9.)
In our legal analysis, we found that the District of Columbia requires that  EIS-type reviews include a discussion of reasonable alternatives to the  proposed governmental action, including the option to take no action.  However, about a third of the SEPA states reported less stringent  standards for identifying alternatives in our survey, and we found in our  legal analysis that just over half of states with SEPAs (10 of 18) require  assessment of the “no action” alternative. In Minnesota, for example, only  the preferred alternative is assessed for EA-type reviews, which, as state  DOT officials agreed, is less stringent than FHWA’s NEPA requirements  as it may preclude the consideration of some alternatives, although the  state does require analysis of the no-action alternative for EIS-type  reviews. In addition, we found that some states do not have detailed  requirements for the consideration of alternatives, and two states— Virginia and Indiana—do not include requirements for the identification of  alternatives in their laws or regulations.
FHWA policy provides that federal-aid highway decisions should be made “in the best  overall public interest based upon a balanced consideration of the need for safe and  efficient transportation; of the social, economic, and environmental impacts of the  proposed transportation improvement; and of national, state, and local environmental  protection goals.” 23 C.F.R. § 771.105(b). similar to FHWA’s NEPA requirements, and that in practice state officials  select the least environmentally damaging practical alternative as the  preferred alternative, although the selection process differs from the  FHWA NEPA process.
section_title: Mitigation of Adverse Project Impacts
paragraphs: The extent to which states have requirements to consider mitigation of  environmental impacts as part of their environmental review process that  are similar to FHWA’s NEPA requirements often varies by the type of  review, and 4 of the 17 states reported in our survey that they do not have  mitigation requirements similar to FHWA’s NEPA requirements for any  level of review. Figure 10 illustrates this variation among states for each  of the seven requirements associated with considering mitigation of  environmental impacts.
Mitigation is intended to avoid or minimize any possible adverse  environmental effects of an action where practicable. FHWA’s NEPA  regulations require consideration of mitigation regardless of whether the  impacts of a proposed project are found to be significant, and the  regulations require implementation of mitigation measures if doing so  represents a reasonable public expenditure. Based on our legal analysis  of state requirements for mitigation, we found that some state  requirements are similar to FHWA’s NEPA requirements, but may include  different terms (potentially altering the thresholds for the consideration of  and implementation of mitigation) or use different processes for the  evaluation or identification of mitigation. For example, Hawaii’s laws  require mitigation to be considered as part of its alternatives analysis, but  this consideration is only required when mitigation measures are  proposed. Moreover, an official in FHWA’s Hawaii Division Office told us  that environmental mitigation measures, once considered, are not binding  under Hawaii’s SEPA.
section_title: Parkland and Historic Preservation Protections
paragraphs: As mentioned above, different sections of the Endangered Species Act may apply,  depending on whether the project involves federal authorizations or funding. regard to the consideration of project impacts on resources that were  eligible for protection, but were not yet on the federal registry of protected  resources. Conversely, specific laws in some states provide protection  that may be more stringent than what is required under federal law for  certain resources. For example, Hawaii has an historic protection  requirement for certain cultural resources that goes beyond the  requirements in Section 106. Having less stringent or no state  requirements for parkland protection and historic preservation may affect  whether a project is determined to have significant impacts and therefore  whether, for those states that require mitigation, those impacts are  considered and mitigated. In addition, less stringent state requirements  can provide an incentive to avoid using federal funds for a project,  according to state officials in 3 of the 9 states where we conducted in- depth interviews.
section_title: State Interagency Coordination Requirements Are Generally Similar to FHWA’s NEPA Requirements, with Exceptions
paragraphs: For each of the 13 individual requirements related to interagency  coordination of environmental reviews, from 8 to 12 (of 17) states  reported in our survey that their respective requirements are similar or  more stringent. Figure 12 illustrates the variation among states for each of  the 13 requirements associated with interagency coordination for  environmental reviews.
Under NEPA, FHWA, as the lead federal agency, is required to  coordinate the timing and scope of environmental reviews to develop  consensus among a wide range of stakeholders with diverse interests.  These coordination requirements are intended to make the review  process more efficient, eliminate duplication, and reduce delays, by  including tribes, businesses, transportation or environmental interest  groups, resource and regulatory agencies, neighborhoods, and affected  populations, among others, in the environmental review process. As part  of state requirements for interagency coordination, some states  encourage cooperation and consultation with federal or state agencies,  among others, but state requirements vary in how similar they are to  FHWA’s NEPA requirements. (See fig. 12.) Specifically, state  requirements regarding the coordination of outreach to specific  populations—such as underserved or minority groups—are often less  stringent than FHWA’s NEPA requirements. In fact, 9 (of 17) state DOTs  we surveyed reported that for EAs, their state requirements for  coordinating outreach to specific populations are less stringent than  FHWA’s NEPA requirements, with 8 (of 17) state DOTs reporting less  stringent requirements for EIS-type reviews. In states reporting less  stringent requirements, there may be less involvement from minority or  underserved populations, affecting how and whether potentially affected  populations are involved in the review of proposed projects.
In our legal analysis, we found that a few states had requirements that  corresponded to the “single-process review” included in FHWA’s NEPA  requirements to promote efficiency and avoid delays by including insofar  as practical, the completion of all environmental permits, approvals,  reviews, or studies as part of the NEPA process, including those by other  federal agencies such as permits from the Corps under the Clean Water  Act. Some state officials we interviewed told us that their state  encouraged, but did not require, cooperation and consultation with federal  or state agencies during the environmental review process. For example,  while not requiring the completion of all permits or reviews, Washington’s  SEPA requires that environmental reviews include a list of all licenses  (e.g., permits) that will be needed for the project. State DOT officials in  several states told us that in practice they employ systems that may go  beyond minimum state requirements to coordinate with federal and state  agencies, including FHWA, for the review of highway projects. These  officials described various state efforts to develop consensus among  stakeholders, ranging from regularly scheduled meetings to the use of  state clearinghouses to ensure timely stakeholder receipt of  documentation for comment. For example, Wisconsin DOT officials have  developed an agreement with the state’s Department of Natural  Resources to meet and coordinate on impacts analyses prior to issuing a  draft EIS-type document. Also, in North Carolina, regulations empower  the state agency responsible for compliance with the state’s SEPA to  seek information from federal as well as local and special units of  government. According to North Carolina officials, sometimes a formal  interagency process is used, even in the absence of a federal NEPA  review, because it allows for better coordination.
section_title: States’ Public Involvement Requirements Are Generally Similar to FHWA’s NEPA Requirements, Though a Number of States Have Less Stringent Requirements when Conducting EAs
paragraphs: State environmental review requirements for public involvement are  generally similar to FHWA’s NEPA requirements overall, although public  involvement requirements for EA-type reviews varied. Figure 13 illustrates  the variation among states for each of the 5 EA-type review requirements  and 7 EIS-type review requirements associated with public involvement.
FHWA’s NEPA requirements allow for robust public involvement in the  NEPA process, requiring reasonable notice of and an opportunity to  participate in public hearings, where appropriate, and an adequate and  meaningful opportunity to submit comments. State responses to our  survey indicated that public involvement requirements vary, ranging from  states that have no requirement to allow public involvement, to others that  may have more stringent requirements than FHWA’s NEPA rules.  Moreover, we found as part of our legal analysis that requirements  allowing public participation for state EIS-type reviews are more likely to  parallel FHWA’s NEPA requirements than do such requirements for state  EA-type reviews. Conversely, public involvement requirements for EA- type reviews in Wisconsin may exceed FHWA’s NEPA requirements in  some circumstances as the state’s SEPA allows for additional hearings  by request, while New York officials told us that they are not required to  conduct a public hearing for either EA-type or EIS-type reviews. In  several other states, hearings for EIS-type reviews are not automatic.
Individual state requirements for notification and circulation of draft  documents for comment also vary, as do requirements for public  hearings. (See fig. 13.) While only 3 (of 17) states surveyed reported less  stringent requirements for disseminating draft EIS-type documents than  required by FHWA NEPA, 7 (of 17) states surveyed reported less  stringent requirements for draft EA-type documents. By contrast,  Massachusetts state officials reported having more stringent  requirements for providing and circulating draft EA-type documents  because the state posts environmental review documents on a public  website and requires a written response to all comments by the lead  agency. Some states have less stringent requirements governing public  involvement, particularly regarding public hearings for EA-type reviews in  which 10 (of 17) states surveyed reported less stringent requirements. In  our legal analysis, we found that while Indiana requires EIS-type reviews  to be made publicly available, it does not require the transportation  agency to seek or respond to public comments on draft versions of these  documents, and Virginia’s law contains no specific public notice and  comment procedures for environmental review documents.
States with less stringent formal public participation requirements may in  practice align with FHWA. Officials in three states told us that they match  the higher standard of FHWA’s NEPA public involvement requirements  for state-only reviews to meet public expectations, even if less was  required by state law. According to state officials in North Carolina, for  example, this could mean holding a public hearing and addressing  comments for a state-only EA when neither step is required by state law.  According to New York state DOT officials, they conduct public hearings  for EA- and EIS-type reviews, even though state law is less rigorous than  NEPA and does not require hearings. Additionally, some state officials we  interviewed reported practices that served to encourage public  involvement, such as Washington’s on-line registry of ongoing and  completed reviews, which allows citizens or groups to search for projects  by location.
section_title: Few Instances of Federal–State Duplication Were Reported; FHWA and States Have Improved Coordination
subsections: section_title: Few States Reported Duplication Resulting from Federal and State Environmental Review Processes; More Than Half Reported No Duplication for Any Reason
paragraphs: Officials in 4 (of 18) states expressly identified instances of federal–state  duplication in environmental review processes. For purposes of this  report, we focused on duplication that might occur between state and  federal processes where there is duplication of effort. In those instances  where state officials identified duplication, it resulted either from  supplemental state requirements or from the misalignment of federal and  state environmental review documents, according to state officials.  Officials in Washington reported duplication from both of these causes.
Two of the four states reporting potential federal–state duplication in  our survey, Maryland and Washington, include a SEPA EA-checklist  in addition to their federal review documents. State officials in both  states explained that completing the checklist may be duplicative  because it includes information that is similar to the information in the  FHWA review, but noted that doing so is not burdensome in terms of  time or resources. More specifically, in Washington, state officials said  that the checklist serves a “due diligence” role for the state’s SEPA,  while Maryland officials said the checklist is used to scope EIS-type  reviews during the beginning of the review process.
Three states we surveyed, including Washington, reported that the  lack of alignment between required state and federal document types  for the same project could result in additional effort. For example, both  Massachusetts and Minnesota sometimes use a different state review  type for some projects than would be required for the FHWA NEPA  process, depending on characteristics of the project. Consequently, in  Minnesota, some projects are reviewed with a state EA-type process,  while being categorically excluded by FHWA. In these situations,  parallel efforts may be required to satisfy the different requirements— which may be more stringent for one of the required reviews— precluding the use of a blended process or combined document to  coordinate similar processes. Washington has recently completed a  rulemaking to align federal and state CEs to avoid this type of  duplication.
Ten (of 18) states responding to our survey reported that there was no  duplication in either the procedural steps or substantive tasks required by  state or federal environmental review requirements. In seven of these  states, adopting a NEPA review fulfills SEPA requirements, and state  officials pointed to this adoption as the reason for reporting no duplication  in their survey responses. Connecticut and Hawaii allow for the adoption  of the federal NEPA review as long as the review meets certain state  SEPA requirements, according to state officials. Montana and New York  reported that their processes are not duplicative because they have  integrated or blended processes to meet both sets of requirements  concurrently. According to state and federal officials we interviewed,  several other reasons contribute to minimal duplication between state and  federal processes. The development of required state and federal  environmental review documents is typically carried out by the same state  officials (or other project sponsors), who can use analyses for different  purposes without replicating effort when federal and state requirements  are similar. Finally, state and federal review processes frequently  require—or encourage—coordination, as mentioned above, and officials  pointed to this coordination as a reason for the lack of duplication. For  example, officials in North Carolina described meetings held every 2  months involving state and federal officials from the transportation and  resource agencies that are typically involved in environmental review. At  these meetings, officials are able to coordinate state and federal efforts,  among other things.
We previously found that FHWA does not collect information on the cost  of environmental reviews, and during the course of this review, FHWA  officials at the headquarters and division levels confirmed that such data  are not collected. Likewise, state officials we surveyed reported no  information on the cost to states of any federal–state duplication, and, as  mentioned above, officials in those states identifying instances of federal– state duplication from the use of SEPA checklists described the additional  effort as being negligible, although they were unable to quantify any  additional costs.
section_title: States Reported Other Examples of Duplication or Overlap
paragraphs: During the course of our review, we identified other examples of potential  duplication or overlap, but these did not result from the interaction of  federal and state environmental review requirements. In addition to the  four states reporting federal–state duplication, four additional states  reported other examples of potential duplication or overlap. For  example, state DOT officials in Maryland noted that there may be  potential duplication resulting from the need to keep federal reviews up to  date for projects taking a number of years, either because initial reviews  have expired or because environmental conditions—or requirements— have changed. In our survey, three states reported potential  duplication—or overlap—when federal permitting agencies (e.g., the  Corps) carried out additional analyses because they did not accept the  FHWA-approved NEPA review. CEQ officials noted, however, that while  the goal of the NEPA process may be that there is one NEPA review and  approval process, often the level of detail required by one agency (e.g.,  FHWA) to review a proposed decision under NEPA may be different than  what is required by another agency to issue a permit (e.g., the Corps or  the Coast Guard).
Officials with Caltrans reported potential duplication in our survey, but did  not provide examples of the cause or type of duplication. When we  interviewed Caltrans officials, they explained that while additional  analyses may be required for the state’s SEPA, there is no duplication of  effort caused by the interaction of the state and federal requirements  given the agency’s blended review process. Separately, officials with the  California State Association of Counties contacted us regarding potential  duplication in the development of state and federal reviews at the local  level. Under the state’s SEPA, local governments prepare both state and  FHWA NEPA environmental reviews for local projects, but they can  approve only the SEPA reviews. FHWA or Caltrans has approval  authority for FHWA NEPA reviews. County officials stated that they are  not able to do a blended document given the different reviewers, a  situation that results in potential duplication, adding time and additional  cost to projects. We spoke with officials with the National Association of  Counties, and they stated that this concern has not been raised by county  officials outside of California.
section_title: States Reported Benefits from Efforts to Improve Coordination and Efficiency, Including Reduced Uncertainty in Projects’ Time Frames
paragraphs: All 18 states we surveyed reported having agreements with FHWA or  other federal agencies to improve coordination or make environmental  review processes more efficient. Nearly all of these states (16 of 18)  provided examples of programmatic agreements, such as those allowing  state officials to review and approve CE determinations for FHWA or  other efforts to improve interagency coordination for conducting reviews  and obtaining permits. Many programmatic agreements and other  improvement efforts were developed as part of FHWA’s Every Day  Counts initiative, which is an effort to identify and deploy innovation  aimed at shortening project delivery, enhancing the safety of roadways,  and protecting the environment. Examples of FHWA or state-led  improvement efforts identified by state officials we surveyed and  interviewed include the following:
Two states in our survey have developed an interagency process to  plan and review highway projects under the auspices of the Section  404 merger process to reduce inefficiencies in assessment and  permitting under the Clean Water Act. For example, officials in North  Carolina told us that the state has been working to make  environmental reviews more efficient through its Section 404 merger  process since the 1990s, through which the state DOT coordinates  with FHWA, the Corps, the U.S. EPA, and several other state and  federal agencies, including the state’s Department of Environment  and Natural Resources.
Three states in our survey reported having liaison positions with other  state or federal agencies to alleviate resource challenges and to  improve interagency coordination. For example, Texas funds a liaison  position at U.S. Fish and Wildlife Service. Massachusetts also funds  such positions with the Corps—in collaboration with FHWA—and the  Massachusetts Departments of Environmental Protection and  Fisheries and Wildlife. According to Massachusetts DOT officials,  having a liaison with the Corps has facilitated coordination, reduced  the time needed to review permit applications, and allowed for the use  of more proactive protection for some endangered species, including  turtles.pointed to improved coordination by funding positions in coordinating  agencies.
Officials in two other states, California and Wisconsin, also
Eleven (of 18) states in our survey reported having programmatic  agreements under Section 106 (assessing impacts on historic  properties) with FHWA and other federal agencies. According to  FHWA, Section 106 programmatic agreements are one way to  expedite the environmental review process, while protecting and  enhancing the environment. These agreements authorize state DOTs  to conduct all or some Section 106 reviews on behalf of FHWA, when  such reviews are required.  Individual states have efforts to improve processes, as well. For  example, officials with the California Office of Planning and Research  worked with CEQ to develop a handbook on the interaction of state  environmental review requirements and NEPA to smooth and better  coordinate the dual reviews that are often required, which was  released in 2014. According to a state official, many of the challenges  in coordinating the two processes stemmed from a lack of  understanding of the other requirements, and the state worked with  CEQ to develop a guide to explain key differences and to define  terminology.
Eleven (of 18) states responding to our survey reported benefits from  efforts to improve coordination or to make state and federal processes  more efficient, most notably decreased time frames. Other benefits  included increased public involvement, increased agency engagement,  and decreased costs. State officials were unable to quantify these  benefits. State officials also pointed to increased certainty in project  timelines, costs, and processes, as well as improved coordination with  other agencies and tribes.
section_title: Agency Comments
paragraphs: We provided a draft of this report to the U.S. Department of  Transportation (DOT) and the Council on Environmental Quality (CEQ)  for review and comment. DOT and CEQ provided technical corrections  about federal and state environmental review requirements, which we  incorporated as appropriate.
We are sending copies of this report to the appropriate congressional  committees, the Secretary of Transportation, and the Chair of the Council  on Environmental Quality. In addition, the report is available at no charge  on the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  us at (202) 512-2834 or wised@gao.gov or at (202) 512-6417 or  sawtelles@gao.gov. Contact points for our Offices of Congressional  Relations and Public Affairs may be found on the last page of this report.  GAO staff who made major contributions to this report are listed in  appendix III.
section_title: Appendix I: A Comparison of Federal NEPA Requirements and State Environmental Policy Act Requirements as Applied to Federal-Aid Highway Projects
paragraphs: As discussed in the body of this report, we identified state statutes,  regulations, and orders in the 18 states where review of highway projects  is required under a state environmental policy act (SEPA), and we  compared those requirements to the federal requirements for federal-aid  highway projects under the National Environmental Policy Act (NEPA)  and implementing regulations issued by the Council on Environmental  Quality (CEQ) and the Federal Highway Administration (FHWA). We  focused our comparison on 12 key elements characterizing NEPA  programs, which we developed in consultation with CEQ and FHWA. This  appendix summarizes the results of our review of state legal  requirements, not state practices, as discussed in the body of this report,  and the examples are illustrative and are not intended to describe all  aspects of each state’s SEPA program.
subsections: section_title: Element 1: Policy and purpose of the environmental review requirements
paragraphs: The key purposes of NEPA include: declaring a national policy which will encourage productive and  enjoyable harmony between man and his environment; and promoting efforts which will prevent or eliminate damage to the  environment and biosphere and stimulate the health and welfare of  man and enriching understanding of the ecological systems and  natural resources important to the nation.  42 U.S.C. § 4321.
A majority of SEPAs establish objectives that are at least somewhat  similar to these NEPA goals, although a few states have more limited  policy goals. Many states’ SEPAs establish a state policy that  encourages harmony between humans and their environment or that  enriches understanding of the natural environment. In addition, SEPAs  generally establish a state policy requiring that environmental concerns  be evaluated in connection with state-funded or otherwise state- supported projects, although several do not.
Several SEPAs establish a policy of avoiding or mitigating environmental  damage. Others explicitly refer to the desirability of informing and  involving the public in environmental decision making, and some SEPA  purpose-and-policy statements specifically refer to management of  natural resources, waste disposal or maintenance of the public health. A  few SEPAs address local functions such as land use management and  zoning. Finally, a few SEPAs have other declared objectives such as  strengthening the state economy (Georgia, see GA. CODE ANN. § 12-16- 2(1)) or supporting the right to use and enjoy private property (Montana,  see MONT. CODE ANN. § 75-1-102(2)).
section_title: Element 2: Types of projects covered
paragraphs: NEPA generally requires review of “every recommendation or report on  proposals for legislation and other major Federal actions significantly  affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(c).  Our review looked at how NEPA applies to projects authorized under Title  23 of the U.S. Code, consisting primarily of federal-aid highway projects  where FHWA provides funds to state or local governments and serves as  the federal lead agency for the NEPA review. FHWA’s review also  includes supplemental environmental requirements contained in Title 23.
When a project is funded solely with state or local funds, it rarely requires  an FHWA NEPA review. Federal permitting requirements also can trigger  a NEPA review, however, even when only state or local funds are used  such as when U.S. Army Corps of Engineers (Corps) or U.S. Coast  Guard (Coast Guard) approval is required due to the presence of a  wetland or navigable waterway. In those cases, the Corps or Coast Guard  could serve as the federal lead agency.
SEPAs vary with respect to which state or local “actions” trigger review.  The California environmental assessment statute, for example, generally  applies to any activity of any public agency that may have a substantial  environmental impact, including highway projects. “Public agencies”  include state agencies, boards and commissions, as well as local  agencies including counties, cities, regional agencies, public districts,  redevelopment agencies and other political subdivisions. CAL. PUB. RES.  CODE § 21062. “Projects” include activities undertaken directly, financed  in whole or in part, or requiring approval by a government agency and are  generally any activity subject to the state statute. CAL. PUB. RES CODE.  § 21065. Certain projects in California have been excluded from review,  however. See, e.g., CAL. PUB. RES. CODE. §§ 21080.01-21080.14.
By comparison, Massachusetts’ SEPA covers all projects undertaken or  financially assisted by a government agency, including any authority of  any political subdivision. MASS. GEN. LAWS, ch. 30, §§ 61, 62. Minnesota  requires an environmental impact study where there is potential for  significant effects from major government actions, defined to include local  and municipal agencies. MINN. STAT., § 116D.04, Subd. 1a(e). Some  states’ SEPAs do not apply to locally managed and funded projects, for  example Georgia (GA. CODE ANN. § 12-16-3(5)) and Maryland (Md. CODE  ANN., NAT. RES. § 1-301(e)). Maryland’s SEPA also focuses primarily on  providing environmental assessments to the state legislature. Md. CODE  ANN., NAT. RES. § 1-301(d). One state’s SEPA—North Carolina’s—does  not apply to local units of government unless they elect to be covered.  See N.C. GEN STAT. § 113A-8(a).
Finally, SEPAs vary with respect to which project characteristics trigger  an environmental review, as well as what type of review is required, and  can include thresholds related to project costs and physical length, project  use, and geographic area, among other things. These thresholds differ  from the federal triggers for the type of review, which generally focus on  the potential for significant environmental impacts rather than the scale or  size of the project. For example, in Virginia, reviews are required for  state projects costing $500,000 or more. VA. CODE ANN. § 10.1-1188(A).  Other dollar-value thresholds are built into the SEPA requirements of the  District of Columbia, Georgia, and New Jersey. Some states, such as  Massachusetts, require environmental impact reviews for the construction  of new roadways 2 or more miles in length. 301 MASS. CODE REGS.,  tit.301, § 11.03(6)(a). Likewise, Minnesota requires an Environmental  Impact Statement (EIS) for new road projects four or more lanes in width  and 2 or more miles in length. Minn. R. 4410.4400, Subp. 16. Minnesota  also requires certain types of reviews for new roads over 1 mile in length  that will function as collector roadways. Minn. R. 4410.4300, Subp. 22.  New York’s SEPA does not apply to projects within the jurisdiction of the  Adirondack Park Agency, N.Y. COMP. CODES R. & REGS., tit. 17,  § 15.2(l)(3), and no EIS is required under the District of Columbia’s SEPA  if the project is located in what is known as the Central Employment Area,  an area including but not limited to federal government facilities. D.C.  CODE § 8-109.06(a)(7). Finally, some states, such as Indiana, do not  extend coverage to state licensed or permitted projects, see, e.g., IND.  CODE § 13-12-4-8, while Texas’ SEPA applies only to certain  transportation projects.
section_title: Element 3: Level of detail (“depth”) of environmental impact evaluation
paragraphs: Under NEPA, an EIS must be prepared for a project that has the potential  for a “significant” effect on the environment.(CEs) apply to projects fitting within a category of activities previously  determined not to have the potential for significant environmental impacts.  When project effects are uncertain, an “environmental assessment” (EA)  is prepared to determine whether the project may have a potentially  significant impact on the human environment. An EA briefly provides  evidence and analysis sufficient to determine whether to prepare an EIS  or a “finding of no significant impact” (FONSI). A FONSI presents the  reasons why the agency has concluded that no significant environmental  impacts will occur if the project is implemented.   “Categorical exclusions”
A majority of SEPA states have adopted processes that provide for  analyses that are generally comparable to the federal approach.  Connecticut, for example, requires an EIS-type report if there are effects  that “could have a major impact on the state’s land, water, air, historic  structure and landmarks, existing housing, or other environmental  resources, or could serve short term to the disadvantage of long term  environmental goals.” CONN. GEN. STAT. § 22A-1C. Wisconsin’s law, like  NEPA, requires an EIS for “major actions significantly affecting the quality  of the human environment,” see WIS. STAT § 1.11(2)(c), and its  implementing regulations identify four types of analysis and specify  numerous types of transportation projects for which each type of analysis  must be performed. Texas’s environmental review process for highway  projects is by definition similar to NEPA because Texas regulations defer  to FHWA’s procedures whenever there would otherwise be any   See 43 TEXAS  inconsistency between Texas’ and FHWA’s processes.ADMIN. CODE § 2.84(f). The Massachusetts SEPA treats any damage to  the environment as significant, excluding only that which is found to be  “insignificant.” MASS. GEN. LAWS, ch. 30, § 61.
Finally, several SEPA states leave the decision whether to prepare an  EIS and the extent of any EIS largely to the discretion of state project  management officials. Virginia determines environmental effects using  what it calls a “Preliminary Environmental Inventory,” a computer- generated summary of environmental features derived from state  databases and submitted to resource agencies. The agency project  manager receives this information and may or may not prepare an EIS.
section_title: Element 4: Level of significance (“breadth”) addressed in environmental impact evaluation
paragraphs: NEPA and its implementing regulations require consideration of the  significance of a project’s direct, indirect, and cumulative effects. Direct  effects are those “caused by the action and occur at the same time and  place.” 40 C.F.R. § 1508.8(a). Indirect effects are the secondary  consequences on local or regional social, economic or natural conditions  or resources which could result from additional activities (such as  associated investments and changed patterns of social and economic  activities) induced or stimulated by the proposed action, both in the short- term and in the long-term. 40 C.F.R. § 1508.8(b). Cumulative impacts are  the impacts on the human and physical environment which result from the  incremental impact of the proposed action when added to other past,  present or reasonably foreseeable future action. 40 C.F.R. § 1508.7.  Positive as well as negative impacts, and long-term as well as short-term  impacts, must be considered. For federal-aid highway projects, Title 23  and FHWA also require consideration of potential project impacts on  certain types of pubic parklands and historic sites, see 23 U.S.C. § 138,  49 U.S.C. § 303 (so-called “section 4(f) requirements”).
Like NEPA, several SEPA states and jurisdictions, such as  Massachusetts (MASS. GEN. LAWS, ch. 30, §§ 61, 62A), Minnesota (MINN.  R. 4410.1700, Subp 7), New York (N.Y. COMP. CODES R. & REGS., tit. 6,  § 617.7) and Puerto Rico (P.R. REGS. JCL REG. 7948, Rule 109 DD),  require broad consideration of a project’s impacts. Requirements or  practices in a number of states differ from NEPA requirements, however.  For example, about half of the SEPA states limit consideration of indirect  or cumulative impacts, the presence of which may increase the need for  an EIS (their presence alone does not require an EIS under NEPA). In  Connecticut, for example, cumulative effects do not need to be  considered if they are not caused by the lead agency or the proposed  project. See CONN. AGENCIES REGS. § 22a-1a-3(b) (cumulative impacts  result from the incremental impact of the action when added to other past,  present or reasonably foreseeable future actions “to be undertaken by the  sponsoring agency”). See also Ga. CODE ANN. § 12-16-8(3); 326 IND.  ADMIN. CODE § 16-2.1-6(5); MONT. ADMIN. R.18.2.238(1). In addition,  several states only consider environmental justice or economic impacts if  they have a direct impact on physical conditions within the area affected  by the project. For example, while the California statute requires  consideration of “growth-inducing impacts,” the law also states that  “evidence of social or economic impacts” can only be shown by evidence  establishing “a physical impact on the environment.” Cal. Pub. Res.  § 21082.2(c). Nearly half of SEPA states (the District of Columbia,  Georgia, Hawaii, Indiana, Maryland, New Jersey, Virginia, and  Wisconsin) have statutes, executive orders and regulations that include  little or only general discussion of indirect or cumulative impacts.
section_title: Element 5: Consideration of alternatives
paragraphs: NEPA requires an EIS to contain a detailed statement regarding  “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(c)(iii). The  agency must rigorously explore and objectively evaluate all “reasonable”  alternatives to the proposed action, including a “no action” alternative, in  response to a specified underlying purpose and need. 40 C.F.R.  §§ 1502.13, 1502.14; 23 C.F.R. §§ 771.123(c), 771.125. See generally  Biodiversity Conservation Alliance v. Jiron, 762 F. 3d 1036 (10th Cir.  2014). NEPA does not specifically require agencies to choose the most  environmentally protective alternative, or indeed any specific alternative.  FHWA policy provides that federal-aid highway decisions should be made  “in the best overall public interest based upon a balanced consideration of  the need for safe and efficient transportation; of the social, economic, and  environmental impacts of the proposed transportation improvement; and  of national, State, and local environmental protection goals.” 23 C.F.R.  § 771.105(b).
Most SEPAs also require the relevant agency (typically the state  transportation agency) to analyze the environmental impacts of  alternatives to the proposed project, in addition to impacts of the  proposed project itself, and most require inclusion of a no-action  alternative. Many SEPAs do not specify in detail how alternatives should  be evaluated, although some states specify the types and characteristics  of the alternatives that must be considered or not considered. For  example, Minnesota regulations require the agency to consider  alternative sites, technologies, and modified designs or layouts in  preparing EISs. MINN. R. 4410.2300G. Many states, like NEPA, also  require consideration only of reasonable or feasible alternatives.
A few states favor selection of a particular alternative or prohibit selection  of certain options. The California legislature, for example, has declared  that “it is the policy of the state that public agencies should not approve  projects as proposed if there are feasible alternatives . . . available which  would substantially lessen the significant environmental effects of such  projects.” CAL. PUB. RES. § 21002. The District of Columbia prohibits  selection of an alternative that would substantially endanger public health,  safety, or welfare, unless those effects can be avoided or mitigated. D. C.  CODE § 8-109.04. Minnesota requires selection of any “feasible and  prudent alternative consistent with the reasonable requirements of the  public health, safety, and welfare.” 11D MINN. STAT. ANN. § 116D.04,  subdiv. 6. And in Wisconsin, the agency must select the alternative that is  in the best overall public interest, determined by a balanced consideration  of several factors including the findings of the EIS and the need for a safe  and efficient transportation system. WIS. ADMIN. CODE TRANS.  § 400.06(3).
section_title: Element 6: Consideration of mitigation
paragraphs: NEPA and its regulations require agencies to consider mitigation of  adverse environmental impacts in some circumstances, but do not  specifically require agencies to carry out mitigation. Mitigation is defined  to include: (a) avoiding the impact altogether by not taking a certain action  or parts of an action; (b) minimizing impacts by limiting the degree or  magnitude of the action and its implementation; (c) rectifying the impact  by repairing, rehabilitating, or restoring the affected environment;  (d) reducing or eliminating the impact over time by preservation and  maintenance operations during the life of the action; and (e)  compensating for the impact by replacing or providing substitute  resources or environments. 42 U.S.C. § 4332(2)(C)(ii); 40 C.F.R.  § 1508.20. FHWA requirements, by contrast, require reasonable  mitigation measures to be taken, which are eligible for federal funding.  23 C.F.R. § 771.105(d).
Likewise, many SEPAs require that a project’s environmental review  documents identify mitigation measures that could lessen the  environmental effects of a project. For example, in Wisconsin, a project’s  Record of Decision (ROD) must indicate that all practicable means to  avoid or mitigate environmental harm have been adopted or, if not  adopted, include a statement explaining why. WIS. ADMIN. CODE TRANS.  § 400.04(23). The ROD also must identify “mitigation measures selected”  or the “reason for rejection of suggested reasonable mitigation  measures.”
Other state SEPA mitigation requirements vary. For example:
The California legislature has declared that “it is it is the policy of the  state that public agencies should not approve projects as proposed if  there are . . . feasible mitigation measures available which would  substantially lessen the significant environmental effects of such  projects.” CAL. PUB. RES. CODE § 21002. See also CAL. PUB. RES.  CODE § 21100(b)(5); CAL. CODE REGS., tit. 14, § 15041 (authority to  mitigate); cf. CAL. CODE REGS., tit. 14, § 15004(b) (prohibiting actions  that would adversely affect or limit the viability of mitigation  measures). Massachusetts and New York have similar  requirements.
The District of Columbia does not authorize approval of a project that  would have a significant environmental effect unless mitigation  measures are available that would reasonably eliminate the adverse  effects. In particular, if the EIS identifies an adverse effect that would  substantially endanger the public, the District government must  disapprove the action unless the applicant proposes mitigating  measures to avoid the danger. D.C. CODE ANN. § 8-109.04.
Some states link or combine identification of mitigation measures with  identification of alternatives. Hawaii’s law, for example, requires  mitigation to be considered as part of its alternatives analysis, but only  if mitigation actions are proposed. HAW. REV. STAT. § 343-2 (EIS must  include “measures proposed to minimize adverse effects”). Moreover,  Hawaii officials told us that environmental mitigation actions, once  considered, are not binding. Montana’s statute, by comparison,  defines its alternative analysis to include mitigation, see MONT. CODE  ANN. §§ 75-1-102(2), 75-1-220(1), and EAs can be used where the  action is one that might normally require an EIS if the effects which  might otherwise be deemed significant appear to be capable of  mitigation by making design changes, imposing enforceable  government controls or stipulations, or both. MONT. ADMIN. R.  18.2.237(4).
section_title: Element 7: Requirement for collaboration to enhance efficiency and avoid duplication
paragraphs: To achieve efficiencies and to minimize duplication, CEQ’s and FHWA’s  regulations require all federal agencies to collaborate with each other,  and with state and local governments, to the fullest extent possible.  Collaboration begins with consultation with other relevant federal and  state agencies, Indian tribes, and the public; includes early identification  of stakeholders, project scoping, and project planning; and extends  through development of draft and final environmental impact  documentation.
The regulations reflect the federal government’s policy to encourage  collaboration of all interested parties from the outset on projects that may  require environmental impact analyses, including involvement of state  agencies and other federal agencies. 23 U.S.C. § 139 codifies and  expands the CEQ regulatory practices as statutory mandates for federal- aid highway projects, designating the Department of Transportation  (DOT) as the federal lead agency and requiring the Secretary to  administer the NEPA process, including optional establishment of a  schedule for completion of the environmental review process. The  Secretary is also encouraged by statute to facilitate use of programmatic  approaches through which states may be authorized to resolve issues  that would otherwise require federal action.
About half of SEPA states have policies that specifically promote or  require collaboration. For example:
California generally requires collaboration among lead, responsible  and trustee agencies assisted by the Governor’s Office of Planning  and Research. CAL. PUB. RES. CODE §§ 21080.1, 21080.3, 21080.4.  In this regard, the California legislature has recognized the importance  of processes such as tiering to avoid duplicative analysis of  environmental effects. CAL. PUB. RES. Code § 21093.
Minnesota requires responsible governmental units to collaborate to  the extent practicable to avoid duplication of effort between state and  federal environmental reviews and between environmental reviews  and environmental permitting. MINN. STAT. § 116D.04, Subp. 2a(g).
Other states with formal cooperation policies include Connecticut  (CONN. GEN. STAT. § 22a-1; see also CONN. GEN. STAT. § 22a-1a); the  District of Columbia (D.C. CODE § 8-109.07); New York (N.Y. COMP.  CODES R. & REGS., tit. 6, §§ 617.3(d), 617.6; N.Y. ENVTL. CONSERV.  LAW § 8-0111.1); and Montana (through its rules, which include a  section on cooperation with federal agencies, MONT. ADMIN. R.  18.2.250).
The law in some states is unclear regarding how broadly state agencies  are required to cooperate with federal agencies, including federal  resource agencies. For example, although the Hawaii SEPA lists  cooperation and coordination as important government objectives, see  HAW. REV. STAT. § 343-1, the regulations refer specifically to the  importance of cooperation and coordination between the state accepting  authority or approving agency and other state authorities or agencies only  in determining the applicability of requirements for supplemental  environmental statements (see HAW. ADMIN. CODE § 11-200-27) and in  avoiding duplication with NEPA requirements. The North Carolina  regulations authorize but do not require state agencies to seek  information from federal as well as local and special units of government.  1 N.C. ADMIN. CODE § 25.0210. Puerto Rico requires consultation with  federal and state agencies prior to submitting the environmental  document but does make the recommendations of federal agencies within  their areas of jurisdiction binding. P.R. Reg. 7948, Rule 118 E.
Finally, New York requires state cooperation with federal agencies. N.Y.  ENVTL. CONSERV. LAW. § 8-0111.1. Washington establishes as policy that  the Department of Ecology is to “utilize, to the fullest extent possible, the  services, facilities, and information (including statistical information) of  public and private agencies, organizations, and individuals, in order to  avoid duplication of effort and expense, overlap, or conflict with similar  activities authorized by law and performed by established agencies.”  WASH. REV. CODE § 43.21C.110(2)(b). Wisconsin incorporates CEQ’s (but  not FHWA’s) processes, (see WIS. ADMIN. CODE TRANS. § 400.06(b), App.  citing 40 C.F.R. § 1500.5), while North Carolina authorizes but does not  require that agencies seek information from federal as well as local and  special units of government. (see 1 N.C. ADMIN. CODE § 25.0210(b)).
section_title: Element 8: Requirement for coordination to ensure involvement of all relevant agencies
paragraphs: Title 23 and CEQ regulations require the lead federal agency to  coordinate the timing and scope of its reviews with cooperating agencies.  23 U.S.C. § 139(g); 40 C.F.R. § 1501.7(a)(6). Generally, for Title 23  funded projects, the lead federal agency is a modal administration within  the Department of Transportation. See 23 U.S.C. § 139(c). See also  40 C.F.R. §§ 1501.1(b) (early and cooperative interagency consultation);  1501.2(d)(2) (requiring federal agency consultation with state, local, and  tribal authorities and private persons and organizations); 1501.5 (lead  agencies); 1501.6 (cooperating agencies).
Some states’ SEPAs also provide for robust coordination. For example:
California generally requires not only collaboration (as discussed in  Element 7 above) but also requires coordination among lead,  responsible and trustee agencies assisted by the Office of Planning  and Research. See CAL. CODE REGS., tit. 14, § 15082(c). And when a  proposed project is of sufficient statewide, regional, or area-wide  environmental significance, California uses a clearinghouse process  to facilitate and coordinate review of draft Environmental Impact  Reports and other environmental documentation. CAL PUB. RES.  CODE, §§ 21083(d) (review of draft EIRs, negative declarations, or  mitigated negative declarations); CAL. PUB. RES. §§ 21082.1(c) (4),  21091. See also CAL. CODE REGS., tit. 14, §§ 15004(b) (timing), 15006  (reducing delay and paperwork), 15083 (consulting), 15063(c)(2)  (mitigating effects to facilitate documented CE or negative  declaration).
Hawaii requires that “he [Office of Environmental Quality Control  within the state Department of Health] and agencies shall cooperate  with federal agencies to the fullest extent possible to reduce  duplication between federal and state requirements.” Haw. Rev. Stat.  § 343-5(h).  In Massachusetts, the SEPA review process “is intended to involve  any interested Agency or Person as well as the Proponent and each  Participating Agency.” Code of Mass Regs., tit. 301, § 11.01(b).  In Minnesota, to the extent practicable, responsible governmental  units must avoid duplication and ensure coordination between state  and federal environmental review and between environmental review  and environmental permitting. Minn. Stat. § 116D.04, Subd. 2a(g).
In other states, the laws require little or no formal attention to coordination  in applying their SEPA requirements. For example:
The Maryland MDOT regulations only require that the lead agency  describe “the coordination and liaison relationship established in  developing the proposal,” with the content of the description largely up  to the agency. There is no clear requirement defining the  responsibilities that the lead agency assumes. 11 CODE OF MD. REGS.  § 01. 08.03(B)(9). See also 11 CODE OF MD. REGS. § 01.08.04(A)(3)  (“The timing and type of community and public agency involvement in  this analysis will be determined on a case-by-case basis . . ..”).
Virginia provides specifically for coordination between VDOT and  state resource agencies only. VA. CODE ANN. § 10.1-1191.
Coordination is not mentioned in the New Jersey executive order,  N.J. GOV. KEAN, EXEC. ORDER No. 215, or in guidance.
section_title: Element 9: Requirement for single-process review
paragraphs: Reflecting the requirements for federal coordination and collaboration  discussed in Elements 7 and 8 above, federal environmental reviews of  Title 23-funded highway projects also must include “completion of any  environmental permit, approval, review, or study required for a project  under any Federal law other than NEPA.” 23 U.S.C. § 139(a)(3)(B). This  requirement reflects a policy that the NEPA process and the permitting  processes should not be treated as separate and distinct processes but  as one.
Most SEPA states do not require or conduct single-process reviews as  such. As discussed in Element 8 above, the Minnesota statute requires  that the responsible governmental unit shall, to the extent practicable,  avoid duplication and ensure coordination between state and federal  environmental review and between environmental review and  environmental permitting. MINN. STAT. § 116D.04, Subp. 2a(g). North  Carolina and Washington require a list of all licenses that the project is  known to require, see 1 N.C. ADMIN. CODE § 25.0603(2), WASH. ADMIN.  CODE § 197-11-440(2)(d), and Washington has made significant efforts to  integrate its Growth Management Act and Model Toxics Control Act  processes with its SEPA processes.issuing construction permits is centralized in a Permit Management   In Puerto Rico the responsibility for  Office. See P.R. LAWS ANN., tit.12, § 8001a(c). This office assesses  compliance with Puerto Rico’s Environmental Public Policy Act. See id.  Finally, as noted in Element 3 above, Texas regulations defer to FHWA’s  procedures whenever there would otherwise be any inconsistency  between Texas’ and FHWA’s processes.
section_title: Element 10: State adoption of federal NEPA reviews
paragraphs: To avoid duplication that might otherwise result, a number of SEPAs  authorize or encourage preparation of documentation that meets both  federal and state NEPA and SEPA requirements, or use of information,  documentation, or analyses developed for the NEPA review. The SEPA  procedures vary from state to state, ranging from provisions allowing use  of some or all of the paperwork prepared to meet federal requirements to  full adoption of the federal process and results so that no separate state  funds are required. These issues arise in the context of three basic  scenarios:
About half of SEPA states are authorized to forgo the SEPA process  and determination entirely if the proposed project is covered by a  completed NEPA review. For example, in Georgia, an agency is  deemed to have complied with the requirements of the SEPA if the  proposed government action requires and has received federal  approval of an environmental document prepared in accordance with  NEPA. See GA. CODE ANN. § 12-16-7. In Indiana, if any state agency  is required by NEPA to file a federal EIS, it is not also required to file  an EIS with the state government. See IND. CODE § 13-12-4-10.
Some SEPA states are authorized to use NEPA documentation to  meet their SEPA requirements but state officials must make some  kind of independent decision under state law. For example, in  Minnesota, if a federal EIS will be or has been prepared for a project,  the state may use the draft or final federal EIS as the draft state EIS if  the federal EIS addresses the scoped issues and satisfies the state  content standards for an EIS. See Minn. R. 4410.3900, Subp. 3; Minn.  R. 4410.2300. In Montana, implementation of NEPA and the Montana  SEPA are separate and distinct federal and state functions, but state  agencies are required to coordinate with other state and federal  agencies in the preparation of a single environmental review that is  legally sufficient for both NEPA and MEPA. MONT. ADMIN. R.  18.2.250(c).
Some SEPA states allow preparation of a single set of documentation  meeting both the NEPA and additional SEPA requirements.state must only prepare separate findings—in effect, a separate  Record of Decision or similar documentation. For example, in  California, the SEPA and regulations mandate use of NEPA EISs and  other documentation in lieu of state Environmental Impact Reports  and meeting other state requirements whenever possible. See CAL.  PUB. RES. §§ 21083.5-21083.7; CAL. CODE REGS., tit. 14, §§ 15063,  15082, 15110, 15127, 15220-15528. The state SEPA does not,  however, dispense with the need to meet its state-specific  requirements. In New York, the SEPA requires cooperation between  state and federal agencies in creating an environmental review and  exempts a project from additional state review if a federal NEPA  review is conducted. See N.Y. ENVTL. CONSERV. LAW § 8-0111(1)-(2);  N.Y. COMP. CODES R. & REGS., tit 17, § 15.10. If the proposed action is  subject to NEPA, the statute is interpreted to require that NYDOT  must comply with the federal requirements which then excuses further  statutory obligations. See N.Y. COMP. CODES R. & REGS. tit. 17,  § 15.6; see also N.Y. ENVTL. CONSERV. LAW § 8-0111(1)-(2) (single  combined document prepared along with state and federal report.). In  Washington, state documentation is not required if federal  documentation already has been prepared for the same project, see  WASH. REV. CODE § 43.21C.150, but the statute does not waive the  requirement for a state decision concerning the adequacy of any prior  NEPA review, even if that decision is based on NEPA documentation.  Id.; see also WASH. ADMIN. CODE §§ 197-11-600, 197-11-630.
section_title: Element 11: Opportunity for public participation
paragraphs: The federal NEPA process requires the opportunity for robust public  participation. At the least, the public must be notified of the proposed  project and given an opportunity to comment on it. See, e.g., 40 C.F.R.  §§ 1501.4(b), (e) (EAs); 1502.19 (EISs); 1506.6 (NEPA implementation  generally). There are also specific public participation requirements in  Title 23 for federal-aid highway projects. See, e.g., 23 U.S.C. §§ 128,  139; 23 C.F.R. §§ 771.111(h)(1)-(2), 771.113(a)(2). Moreover, 23 U.S.C.  § 128 requires that an opportunity for a public hearing be provided to  consider the impact of each federal aid-highway project on the  environment.
Similarly, almost all SEPAs or their implementing regulations provide for  some degree of public participation. Three SEPA states do not require  agencies to consider public input at all: Indiana (only authorized  comments must be considered, 327 IND. ADMIN. Code §§ 11-1-4, 11-3-3),  New Jersey (N.J. GOV. KEAN, EXEC. ORDER No. 215, and guidance), and  Virginia (generally, comments are invited from interested agencies,  planning district commissions and localities (VA Dept. of Env. Qual.,  Procedure Manual, July 2013)). The opportunities for public participation  in other states vary. For example:  In New York, public notice must be provided for all determinations that  a project will have no significant effect; that a project may have a  significant effect; that a draft or final EIS has been completed; and any  subsequent notice of a negative declaration. N.Y. COMP. CODES R. &  REGS. tit. 17, § 15.10. Public notice of hearings also must be given,  although this may be combined with a notice of completion of a draft  EIS, and public comments must be permitted for draft and final EISs.  N.Y. ENVTL. CONSERV. LAW § 8-0109 (4); N.Y. COMP. CODES R. &  REGS., tit. 17, §§ 15.6(d), 15.10(d). The regulations also provide for  consideration of public comments on scoping and other matters. N.Y.  COMP. CODES R. & REGS., tit. 6, §§ 617.8(e), 617.7.
Washington State provides many opportunities for public participation  and comment. See, e.g., WASH. REV. CODE § 43.21C.110(1); WASH.  ADMIN. CODE §§ 197-11-340(2)(c), 197-11-350(5), 197-11-355,197- 11-400(4), 197-11-405, 197-11-408, 197-11-455(6)-(8), 197-11-502,  197-11-560. See also WASH. ADMIN. CODE § 197-11-410(1)(d).  In Wisconsin, it is WisDOT’s policy that “public involvement,  interagency coordination and consultation, and a systematic  interdisciplinary approach to analysis of the issues shall be essential  parts of the environmental process for proposed actions.” WIS. ADMIN.  CODE TRANS. § 400.06(4). As part of the scoping process, the  Wisconsin regulations “establish a schedule for document preparation  and for opportunities for public involvement.” WIS. ADMIN. CODE  TRANS. § 400.09(4)(c). Public comment must be allowed on EISs and  EAs, see WIS. ADMIN. CODE TRANS. § 400.11(3)-(5), but not on  FONSIs and Environmental Reports. See WiS. ADMIN. CODE TRANS.  § 400.11(6)-(7).  In California, the importance of public participation in the SEPA  process is specifically recognized in the regulations. CAL. CODE REGS,  tit. 14, § 15002(a)(1), (4). Key environmental review documents are  classified as public documents. Id., § 15002(f), (j) (“Under [the  California law], an agency must solicit and respond to comments from  the public and from other agencies concerned with the project.”); see  also id. § 15022(a)(5) (duty of California public agencies to consult  with the public regarding environmental effects).
A number of SEPAs limit public participation to commenting on specific  aspects of the process. For example, the Massachusetts statute and  regulations provide notice-and-comment procedures at critical points in  the process. See MASS. GEN. LAWS, ch. 30, § 62C; CODE OF MASS REGS.,  tit. 301, § 11.15. Several jurisdictions, such as Georgia, Connecticut, and  the District of Columbia, authorize public hearings but base the decision  to hold them on the number of requests received. See GA. CODE ANN.  § 12-16-5; CONN. GEN. STAT. § 22a-1d; D.C. CODE § 8-109.03 (“If 25  registered voters in an affected single member district request a public  hearing on an EIS or supplemental EIS or there is significant public  interest, the Mayor, board, commission, or authority shall conduct a public  hearing.”). Montana provides for notice of EIS scoping to “affected  federal, state, and local government agencies, Indian tribes, the applicant,  if any, and interested persons or groups,” but not the general public.  MONT. ADMIN. R. 18.2.241(2)(a).
section_title: Element 12: Opportunity for judicial review of agency decisions
paragraphs: The opportunity to obtain meaningful review of agency action by a court is  an important protection against arbitrary, capricious or otherwise unlawful  agency decision making. At the federal level, judicial review of NEPA  decisions issued by lead agencies and other involved federal agencies  occurs under the federal Administrative Procedure Act, 5 U.S.C. §§ 701-  Not everyone who is dissatisfied with a NEPA decision may  706 (APA).challenge it in court; only those who suffer specific and sufficient injury as  a result of the decision, and thus have “standing,” may file suit. For  federal-aid highway projects, a lawsuit generally must be filed within 150  days after publication of a notice in the Federal Register announcing a  final approval, permit, or license. See 23 U.S.C. § 139(l)(1).
Similarly, while some of the 18 states with SEPAs required for highway  projects provide for court review of decisions in their SEPA legislation,  most do so either in their general administrative agency procedure  legislation (typically based on the Model State Administrative Procedure  Act) or in specialized legislation. Most states also have followed federal  law by limiting who may challenge the state agency decision, how the  agency’s action will be reviewed, and what the scope of that review will  be. In particular, as applied to state and federal-aid highway projects,  SEPA laws based on the Model Act challenge a state agency decision:   establish five key prerequisites to
The challenger must suffer particularized harm. For example,  individuals owning property that might be acquired or adjacent to the  project area, or organizations representing such persons (including  environmental groups), likely could bring suit.
The agency decision must be final, that is, the challenger generally  must have exhausted any dispute resolution process available at the  agency.
The court challenge generally must be based only on the evidence  presented to the lead agency and the issues already raised to the  agency (the administrative record).
The challenge generally must allege that the agency’s decision was  legally arbitrary and capricious, contrary to state or federal law, or not  supported by the evidence before the agency.
The remedy being requested generally must be limited to an order  directing the agency to take a certain action, rather than seeking  monetary damages.
Model State Admin. P. Act (1961), § 15; Model State Admin. P. Act (1981), §§ 5-101 to  5-205. e.g., IND. CODE § 4-21.5-5-5; IND. STAT § 116D.04, Subd. 10;  N.C. GEN. STAT. § 150B-45. Washington provides only 21 days. WASH.  REV. CODE § 43.21C.080(2)(a).
section_title: Appendix II: Objectives, Scope, and Methodology
paragraphs: The Moving Ahead for Progress in the 21st Century Act (MAP-21)  contains a mandate requiring that GAO review state laws and procedures  for conducting environmental reviews with regard to projects funded  under title 23 of the United States Code (primarily federal-aid highway  projects). This report addresses: (1) the factors that determine whether  federal or state environmental reviews are required for highway projects,  and how the types of federal and state environmental review documents  compare; (2) how state environmental review requirements and practices  compare with federal requirements for assessing federal-aid highway  projects; and (3) the extent of any duplication in federal and state reviews,  including frequency and cost, in states with environmental review  requirements for highway projects.
We identified 18 states with state environmental policy acts (SEPA)  required for highway projects for inclusion in our review (see table 1). In  these states, statutes or regulations require some assessment of potential  environmental effects from highway projects that may mirror requirements  under the National Environmental Policy Act (NEPA) highway projects. The list of states with SEPAs derives largely from the  18 states identified by the Council on Environmental Quality (CEQ) as  having SEPAs, including New Jersey, which has an executive order that  requires environmental reviews. In addition, during the course of our  work, we learned that Texas does not have a general state-level SEPA  but does have a state statute and regulations that apply to transportation  projects, and we confirmed with CEQ officials that we should include  Texas in our scope. By contrast, we excluded South Dakota because its  SEPA provides the option of preparing an environmental impact  statement, but does not require one, and South Dakota Department of  Transportation officials told us that they do not conduct environmental  reviews under the state law.
Pub. L. No. 91-190 (1970), codified at 42 U.S.C. §§ 4321-4347.
For each of our objectives, we reviewed relevant publications, including  our prior reports on NEPA and highway projects.documents and analysis from federal agencies related to NEPA reviews  for federal-aid highway projects, including CEQ, the Congressional  Research Service (CRS), and the Federal Highway Administration  (FHWA), including FHWA’s Environmental Review Toolkit for NEPA and  Transportation Decisionmaking (FHWA’s NEPA Toolkit), which provides  guidance on FHWA’s NEPA environmental review process for state  department of transportation (state DOT) officials. In addition, we  interviewed officials with FHWA, CEQ, and CRS. We also interviewed two  academics who authored a treatise on environmental review  requirements and were cited by CEQ as having expertise on NEPA and  SEPAs—Professor Daniel Mandelker at Washington University and   We obtained  Arianne Aughey—and representatives from two professional associations  with expertise in federal or state environmental review requirements or  state practices—the American Association of State Highway and  Transportation Officials (AASHTO) and the National Association of  Counties.
To respond to the first two objectives, we conducted a legal analysis and  a survey, which included all 18 states that we identified as having SEPAs  required for highway projects. Our legal analysis compared key elements  of SEPAs and related state regulations with key elements of NEPA and  FHWA regulations for federal-aid highway projects. Our comparison of  NEPA and FHWA regulations with requirements in state statutes,  regulations, and executive orders focused on the key NEPA statutory and  regulatory requirements and did not systematically examine court  decisions or legislative history. We identified the key NEPA elements by  reviewing relevant federal statutes and regulations in consultation with  CEQ and FHWA. Specifically, we started with the statutory language of  NEPA, which requires agencies to prepare, for major federal actions  significantly affecting the quality of the human environment, a detailed  statement on, among other things: (1) the environmental impact of the  proposed action, (2) any adverse environmental effects which cannot be  avoided should the proposal be implemented, and (3) alternatives to the   NEPA, CEQ regulations, and—for federal-aid highway  proposed action.projects—FHWA regulations then specify detailed environmental review  processes, which include requirements for interagency coordination,  avoiding duplication, and participation by state and local governments as  well as the general public, among other things. In addition, the regulations  provide for more efficient methods of environmental review and a process  for determining when use of these methods is appropriate. Based on  these statutory and regulatory requirements, and in consultation with  CEQ and FHWA, we distilled 12 key elements of environmental review.  1.  Policy and purpose of the environmental review requirements  2.  Types of projects covered  3.  Level of detail (“depth”) of environmental impact evaluation  4.  Level of significance (“breadth”) addressed in environmental impact  evaluation  5.  Consideration of alternatives  6.  Consideration of mitigation  7.  Requirement for collaboration to enhance efficiency and avoid  8.  Requirement for agency coordination  9.  Requirement for single-process review  10. State adoption of federal NEPA reviews  11. Opportunity for public participation  12. Opportunity for judicial review of agency decisions  In additional to this legal analysis, we conducted a survey of state DOTs  in all the 18 states with SEPAs required for highway projects to compare  in more detail state environmental review requirements with FHWA’s  NEPA requirements for reviews of federal-aid highway projects. Using  FHWA’s NEPA Toolkit as a guide, we developed survey questions to  gather information comparing states’ environmental review requirements  and practices with FHWA’s NEPA requirements. These requirements  align with five of FHWA’s six principles of the NEPA process and reflect  key elements in our legal analyses.consideration of the social, economic, and environmental impacts of a  proposed action or project; development and evaluation of a range of reasonable alternatives to  the proposed project, based on the applicants defined purpose and  need for the project; mitigation of project effect by means of avoidance, minimization and public involvement including opportunities to participate and comment.  compensation;  interagency coordination and consultation; and  For each of these principles, we developed questions to assess the  extent to which state requirements were less stringent than, similar to, or  more stringent than FHWA’s NEPA requirements.survey, we conducted pretests with state DOT officials in Maryland,  Washington, and North Carolina to ensure that respondents interpreted  our questions in the way we intended. That is, we verified that the  questions were clear and unambiguous and that we used appropriate  terminology in the survey, to ensure that respondents had the necessary  information and ability to respond to the questions. Where necessary, we  revised the screening tool to improve the survey instrument in response  to feedback from the pretests and internal GAO review. We divided the  final screening-tool questions into four parts: Part I: Contact Information;  Part II: Documentation; Part III: Duplication and Coordination; and Part IV:  Environmental Review Requirements.
We administered the survey by emailing an electronic form to state DOT  officials in all 18 states with SEPAs required for highway projects. Two states provided clarifications or supplementary information along with  their survey responses. To improve the accuracy and completeness of  the data, we used the clarifying information provided by agency officials to  update responses where necessary. Because this effort was not a sample  survey, it has no sampling errors. However, the practical difficulties of  conducting any survey may introduce errors, commonly referred to as  nonsampling errors. For example, difficulties in interpreting a particular  question or sources of information that are unavailable to respondents  can introduce unwanted variability into the survey results. We took steps  to minimize such nonsampling errors in developing the survey tool— including using a social science survey specialist to help design and  pretest the survey. We also minimized the nonsampling errors when  analyzing the data, including using an independent analyst to review all  computer programming related to the survey. Finally, there were a few  instances where state DOTs should have indicated one response to a  question and instead provided two. In these cases we followed up with  the state DOT officials to clarify their response.
To identify which states had requirements that were “generally similar” to  FHWA’s NEPA requirements overall, we determined which states in our  survey reported having environmental review requirements that we found  to be similar or somewhat similar to 42 individual requirements for FHWA  NEPA reviews. We characterized state survey responses as being similar  overall if 75 percent or more of the questions about individual state  requirements under a NEPA principle were marked as “similar” or “more  stringent” than FHWA’s NEPA requirements. If 50 to 74 percent of the  requirements were marked as “similar” or “more stringent,” we  characterized state survey responses as somewhat similar. If 51 to 74  percent of the requirements were marked as “less stringent” or “not  applicable,” we characterized state survey responses as somewhat less  stringent. If 75 percent or more of the requirements were marked as “less  stringent” or “not applicable,” we characterized state survey responses as  less stringent. Then we determined that states where officials indicated  that at least half of their responses for each requirement within the  principle were similar to or more stringent than FHWA’s NEPA  requirements were “generally similar” to federal requirements. For  example, regarding the consideration of impacts, we determined that  state requirements were “generally similar” overall if the state DOT  officials reported that 3 of the 5 individual requirements were at least  similar (if not identical) to FHWA’s NEPA requirements: (1) identification  of impacts, as well as assessment of (2) cumulative effects, (3) context,  (4) cultural or historical impacts, and (5) social or environmental justice.
In addition to these analyses, we interviewed state DOT officials and  officials with state natural resource agencies in 9 of the 18 states with  SEPAs. (See table 2.) We selected SEPA states for additional interviews  and site visits based on four criteria: robustness (or lack thereof), number  of active EIS reviews, “uniqueness,” and, in some cases, proximity to  GAO offices. Our findings for these 9 states are not generalizable to the  other 9 states with SEPAs but provide examples of varying state  requirements and practices.
To respond to the third objective, we included questions about duplication  in our survey of state DOTs, as well as interviewing state officials and  FHWA officials at the division offices in those states we selected for  additional interviews. We have defined duplication as occurring when two  or more agencies or programs are engaged in the same activities or  provide the same services to the same beneficiaries, in accordance with  GAO’s body of work on duplication in the federal government. This  report focuses on duplication that might occur between state and federal  processes for environmental review of highway projects where there is  duplication of effort. In the context of environmental review requirements,  such duplication could occur if states were required to carry out two  separate—but similar—analyses to satisfy federal and state  requirements, for example, but not if the same analysis could be used to  satisfy both state and federal documentary (i.e., procedural)  requirements. In our interviews with state and FHWA officials, we inquired  about duplication within and among highway projects, as well as  duplication that may occur across time within a project. We also asked  FHWA and state officials about the cost of any potential duplication (and  how such cost might be measured) and the frequency of any potential  duplication. Finally, we asked state officials about efforts to make the  environmental review process more efficient in our survey, as well as the  potential benefits of any such efforts.
We conducted this performance audit from May 2013 to November 2014  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the individuals named above, Susan Zimmerman (Assistant  Director), Richard Calhoon, Heather Halliwell, Bert Japikse, Delwen  Jones, Molly Laster, Hannah Laufe, Gerald B. Leverich, III, Jaclyn  Nelson, Joshua Ormond, Richard P. Johnson, and Elizabeth Wood made  key contributions to this report.