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

Letter

Background

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.

Three Factors Generally Affect the Types of Environmental Reviews Required for Highway Projects, and State Environmental Review Document Types Largely Mirror NEPA

Three Factors Generally Affect Whether Federal or State Environmental Reviews Are Required for Highway Projects

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.

Funding Sources

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.

Project Characteristics

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.

State Adoption of Federal Reviews

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.

State Review Document Types Largely Mirror NEPA Review Document Types

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.

Many State and Federal Requirements Are Similar, but Differences Could Affect State Environmental Reviews or Outcomes

State Requirements Are Generally Similar to FHWA’s NEPA Requirements

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.

Most States Require Some Evaluation of Impacts, Alternatives, and Mitigation, but Requirements Differ, and Comparable Parkland and Historic Preservation Protections Are Generally Absent

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.

Consideration of Project Impacts

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.

Development and Evaluation of Project Alternatives

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.

Mitigation of Adverse Project Impacts

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.

Parkland and Historic Preservation Protections

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.

State Interagency Coordination Requirements Are Generally Similar to FHWA’s NEPA Requirements, with Exceptions

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.

States’ Public Involvement Requirements Are Generally Similar to FHWA’s NEPA Requirements, Though a Number of States Have Less Stringent Requirements when Conducting EAs

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.

Few Instances of Federal–State Duplication Were Reported; FHWA and States Have Improved Coordination

Few States Reported Duplication Resulting from Federal and State Environmental Review Processes; More Than Half Reported No Duplication for Any Reason

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.

States Reported Other Examples of Duplication or Overlap

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.

States Reported Benefits from Efforts to Improve Coordination and Efficiency, Including Reduced Uncertainty in Projects’ Time Frames

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.

Agency Comments

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.

Appendix I: A Comparison of Federal NEPA Requirements and State Environmental Policy Act Requirements as Applied to Federal-Aid Highway Projects

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.

Element 1: Policy and purpose of the environmental review requirements

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)).

Element 2: Types of projects covered

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.

Element 3: Level of detail (“depth”) of environmental impact evaluation

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.

Element 4: Level of significance (“breadth”) addressed in environmental impact evaluation

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.

Element 5: Consideration of alternatives

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).

Element 6: Consideration of mitigation

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).

Element 7: Requirement for collaboration to enhance efficiency and avoid duplication

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)).

Element 8: Requirement for coordination to ensure involvement of all relevant agencies

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.

Element 9: Requirement for single-process review

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.

Element 10: State adoption of federal NEPA reviews

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.

Element 11: Opportunity for public participation

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).

Element 12: Opportunity for judicial review of agency decisions

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).

Appendix II: Objectives, Scope, and Methodology

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.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.