5
Legal Context for Planning and Policy

INTRODUCTION

This chapter addresses the existing legal planning and policy setting for consideration of ecological effects associated with roads in urban and rural locations. The primary focus is on the federal environmental laws that apply to federally funded or approved highways under programs administered by the U.S. Federal Highway Administration (FHWA).

The chapter first summarizes federal transportation laws, describing the transportation planning and project development structure. While these laws establish requirements for federal funding of transportation projects, they also impose a structure on regional and local transportation planning and project development. Transportation planning, largely a local function, is subject to laws and policies that are different from those that apply to development of specific transportation projects.

These are major federal environmental laws that generally apply to transportation projects, but there is no single law of ecological concerns for transportation planning or projects. Rather, ecological issues are covered, in part, under a suite of different federal laws. FHWA maintains an extensive and easily accessible Environmental Guidebook (FWHA 2004a) that includes a summary of all environmental requirements, as well as specific regulations and guidance regarding specific environmental resources.



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Assessing and Managing the Ecological Impacts of Paved Roads 5 Legal Context for Planning and Policy INTRODUCTION This chapter addresses the existing legal planning and policy setting for consideration of ecological effects associated with roads in urban and rural locations. The primary focus is on the federal environmental laws that apply to federally funded or approved highways under programs administered by the U.S. Federal Highway Administration (FHWA). The chapter first summarizes federal transportation laws, describing the transportation planning and project development structure. While these laws establish requirements for federal funding of transportation projects, they also impose a structure on regional and local transportation planning and project development. Transportation planning, largely a local function, is subject to laws and policies that are different from those that apply to development of specific transportation projects. These are major federal environmental laws that generally apply to transportation projects, but there is no single law of ecological concerns for transportation planning or projects. Rather, ecological issues are covered, in part, under a suite of different federal laws. FHWA maintains an extensive and easily accessible Environmental Guidebook (FWHA 2004a) that includes a summary of all environmental requirements, as well as specific regulations and guidance regarding specific environmental resources.

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Assessing and Managing the Ecological Impacts of Paved Roads TRANSPORTATION PROCESSES: HOW TRANSPORTATION IS PLANNED AND PROJECTS ARE DEVELOPED Transportation planning and project development reflect the desires of communities, including consideration of the impacts of roads on the natural and human environments. Federal transportation law recognizes the important role of the states and local communities in planning, building, and maintaining roads. To understand the legal requirements concerning ecology and the environment, it is necessary to understand the structure for transportation planning and project development. The processes through which a road gets planned, built, and maintained provide opportunities and obligations to incorporate ecological concerns. There are substantial differences between transportation planning and project execution or development with respect to the governmental entities involved and their legal obligations for environmental or ecological resources. Transportation planning encompasses the processes under which states, regions, and localities plan their desired regional transportation systems for periods up to and sometimes exceeding 20 years. Although environmental issues must be considered in transportation planning, the only important mandatory requirement concerns conformity with air pollution standards. As described more fully below, the federal government reviews transportation plans solely to ensure protection of air quality, not to protect any other environmental resources, such as water quality. In contrast, project execution or development includes all the work done to implement a particular road project, such as a new road, road improvement, or other discrete endeavors. Projects are developed and implemented with detailed, site-specific evaluations of engineering, costs, safety, transportation mobility, and environmental concerns. Generally, the state, city, or county government manages a specific project. Most of the federal environmental requirements apply to project development and implementation rather than transportation planning. In project development, various ecological issues are addressed. An excellent summary of the transportation planning process and environmental requirements is found in Blaesser et al. (2003). Additional information can be found in FWHA (2004b).

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Assessing and Managing the Ecological Impacts of Paved Roads FEDERALLY STRUCTURED REGIONAL AND LOCAL PLANNING Metropolitan Planning Organization Transportation planning is the province of the metropolitan planning organization (MPO), a nonfederal entity established under federal laws. Despite its title, and despite the focus of this report on non-urban roads, it is appropriate to consider MPOs here, for two reasons. The first is that MPOs do not operate only in urban areas. Indeed, some areas that are within their purview have considerable wildland or ecosystem values worth protecting. As an example, the proposed Inter-County Connector (ICC) in Maryland is within the purview of an MPO, and yet much of the controversy about that proposed highway concerns the effect it might have on wetlands and other undeveloped ecosystems. There are other examples as well. Thus, this discussion of MPOs is in fact relevant to many roads in nonurban—even rural—areas. The second reason is that for rural locations lacking population density needed to support an MPO, a rural planning organization or the state conducts transportation planning. The rural or state planning in lieu of an MPO involves the same considerations and similar processes as MPO planning. The MPO is a transportation policy-making organization and is made up of representatives from local government and transportation authorities. MPOs were created under the Federal Surface Transportation Assistance Act of 1973, which required the formation of an MPO for any urbanized area that had a population greater than 50,000. Subsequent transportation legislation further addressed the duties and boundaries of MPOs. For example, MPO duties were modified in the Intermodal Surface Transportation Efficiency Act of 1991 and the Transportation Equity Act for the Twenty-First Century of 1998 (TEA-21), which had enormous impacts on the nation's transportation system. Together, these two laws dramatically increased investment in roads and bridges, spurred a revival of public transportation, and helped to create a more efficient and interconnected roadway system (AASHTO 2002a, 2003; FWHA 2004b). Under current law, the core metropolitan and statewide transportation planning requirements remain intact. The law emphasizes the cooperation of local and state and local officials with transit operators to

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Assessing and Managing the Ecological Impacts of Paved Roads tailor the planning process in meeting the needs of state and metropolitan transportation (AMPO 2004). Current federal law requires that the MPO consider seven objectives in transportation planning, among which is protection and enhancement of the environment (see item D in list below). The U.S. Code (23 USC § 134(f) [2003]) states the following: (f) Scope of Planning Process.— In general.—The metropolitan transportation planning process for a metropolitan area under this section shall provide for consideration of projects and strategies that will— support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency; increase the safety and security of the transportation system for motorized and nonmotorized users; increase the accessibility and mobility options available to people and for freight; protect and enhance the environment, promote energy conservation, and improve quality of life; enhance the integration and connectivity of the transportation system, across and between modes, for people and freight; promote efficient system management and operation; emphasize the preservation of the existing transportation system. Environmental protection is a specific planning goal; however, it is one of seven broad goals that the MPO must balance. The statute exempts planning authorities from court challenges that allege that the authority failed to follow any of these planning goals. The planning process is also expressly exempt from application of the National Environmental Policy Act (NEPA). The transportation planning process is linked to the federal funding structure. Federal transportation funding is distributed to states on a population-based formula, and the states decide how to allocate funds to projects within their borders. Thus, transportation planning commences with a state transportation improvement plan (STIP). The STIP provides general guidance for state transportation programs but leaves most

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Assessing and Managing the Ecological Impacts of Paved Roads choices, such as when, where, and how to pursue particular projects, to the MPO at the local and regional level. The MPO engages in two major planning exercises on a regular schedule. Every 3-5 years, the MPO must consider and revise both its long-range plan and its short-range implementation plan. More frequent planning is required for localities suffering poor air quality. These planning processes are critical steps during which communities consider their future transportation needs. To qualify for federal funding, projects must arise from properly adopted long-range transportation plans (LRTPs) and STIPs. The Long-Range Transportation Plan or Metropolitan Transportation Plan The MPO (or state for rural areas) adopts the LRTP, identifying the various ways that a region plans to invest in the transportation system over a 20-year period or more. The LRTP includes “both long-range and short-range program strategies/actions that lead to the development of an integrated intermodal transportation system that facilitates the efficient movement of people and goods” (23 CFR § 450.322(a) [1999]). For example, the LRTP may identify specific road segments to be widened, general locations for construction of new roads, major reconstructions or repairs, and other systemic improvements. The LRTP provides a regional, systemwide “blueprint” for the transportation network, sometimes also viewed as a regional “wish list.” The LRTP (23 CFR 450C § 450.322 [1999]) contains several elements, including the following: Identify policies, strategies, and projects for the future. Determine project demand for transportation services over 20 years. Focus at the systems level, including roadways, transit, nonmotorized transportation, and intermodal connections. Articulate regional land use, development, housing, and employment goals and plans. Estimate costs and identify reasonably available financial sources for operation, maintenance, and capital investments (see Part II, section on financial planning).

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Assessing and Managing the Ecological Impacts of Paved Roads Determine ways to preserve existing roads and facilities and make efficient use of the existing system. Be consistent with the statewide transportation plan. Be updated every five years or three years in air quality nonattainment and maintenance areas. MPOs make special efforts to allow interested parties to be involved in the development of the transportation plan. Although governed by local law, MPOs generally have public sessions on LRTPs and must meet mandatory public participation standards. In cases where a metropolitan area does no meet national air quality standards (a nonattainment area) or is now in compliance (a maintenance area), the plan must conform to the state implementation plan (SIP) for air quality. Transportation Improvement Program The MPO (or state for rural areas) also adopts the transportation improvement program (TIP), a 2-year program, under a restricted budget, that covers priority implementation projects and strategies from the LRTP. The TIP identifies what the locality wants to commence in the short-term, 2-year period. The TIP enables a region to allocate its transportation monetary resources between the various operating needs and the capital needs of the area. These allocations are based on a clear set of short-term transportation priorities. Under federal law, the TIP (23 CFR 450C § 450.322 [1999]) Covers a minimum two-year period of investment. Is updated at least every two years. Is realistic in terms of available funding (known as a fiscally constrained TIP) and is not just a “wish list” of projects. Conforms to the SIP for air quality if the region is designated a nonattainment or maintenance area. Is approved by the MPO and the governor for air quality. Is incorporated into the statewide transportation improvement program (STIP). As with the LRTP, the MPO will provide notice and hold public hearings when adopting a TIP.

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Assessing and Managing the Ecological Impacts of Paved Roads Cooperative Planning Most MPOs act as an overall coordinator for planning and, by virtue of adoption of the TIP, programming funds for operations and projects. Implementing the projects in the TIP generally becomes the responsibility of the states’ Departments of Transportation (DOTs) or the city or county governments. Given the roles of different levels of government, the MPO must involve local transportation providers in the planning process. Thus, during the transportation planning stage, MPOs include a wide range of entities, such as state DOTs, transit agencies, maritime operators, airport authorities, rail-freight operators, port operators, Amtrak, and regional operating organizers. Transportation planning is a cooperative phase. No single agency has full responsibility for the planning of construction, operation, or maintenance of the entire transportation system. For example, some roads that are part of the interstate highway system are subject to certain federal standards. However, they are usually maintained by a state DOT. Other roads are city streets or county arterials designed, operated, and maintained by local municipalities or counties. Transit systems are often built, operated, and maintained by an entity separate from the highway authority. The MPO is responsible for seeking the participation of all relevant stakeholders and agencies in the planning process. Funding for roads also depends on actions by state legislatures; even federally supported roads require states to share in the costs. By allocating funds and providing other direction, state legislatures can adjust priorities for particular projects within the planning horizon of the TIP or the LRTP. For example, the legislature may opt to accelerate or postpone funding for particular projects identified in the TIP or LRTP. The LRTP and TIP processes generally result in “wish lists” with shifting priorities. Project Development and Execution After the state planning, MPO long-range planning, MPO short-range implementation planning, and legislative involvement, specific road projects are ready for implementation. At this project development and execution level, most of the laws concerning ecology and environment apply.

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Assessing and Managing the Ecological Impacts of Paved Roads Project development involves all the site-specific considerations, including safety, engineering, and environment, that influence decisions regarding how and where to build a project. For example, the TIP may have identified the need to add capacity to a road segment based on projected population growth and assumed that the road should be widened by one lane in each direction. Project development efforts will involve evaluating the various technical issues of such a project. The evaluation will include detailed transportation analysis (needs), structural assessment (engineering), community effects assessment (noise, dislocations, and viewsheds), and safety and environmental (all natural resources) assessments. After these assessments, a proposal (and alternatives) will be considered. Assuming approval, the project will be built and subsequently maintained. Project implementation involves decisions on financing, construction, and subsequent operation and maintenance. During implementation, a number of activities will be subject to specific permit controls and limitations. As even this short synopsis illustrates, project development and implementation involves the greatest detail of environmental consideration, largely because it is the stage at which the precise physical effects are evaluated and the most specific potential environmental effects are known. FHWA Environmental Policies The surface transportation laws administered by FHWA provide for evaluation of environmental concerns at all levels of transportation planning, development, execution, and operation (23 USC §§ 109(h), 128 [2003]; 23 CFR 771, 772 [2001]). These transportation laws set forth many guiding environmental standards that must be followed by the FHWA and other highway governing bodies when building and maintaining highways. These laws ensure that decisions on highway projects consider the public interest and that all possible economic, social, and environmental adverse effects of highway projects and locations are considered. These laws apply to the planning and the development of any proposed projects on any federal-aid highway system. Consideration of environmental matters allows for balancing of environmental and transportation interests. FHWA has long maintained strong environmental policies. The FHWA 1994 environmental policy statement (EPS) represents a contin-

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Assessing and Managing the Ecological Impacts of Paved Roads ued commitment to the enhancement and protection of the environment by providing the policies and procedures for the development of environmentally sound projects (FWHA 2004a). The 1994 policy updated the 1990 FHWA environmental policy. In 2002, the President issued Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, which reiterated the environmental goals of the U.S. Department of Transportation. FHWA environmental policies and guidance are available through the environmental programs of the FHWA Office of Planning, Environment, and Realty. The EPS provides guidance on integrating environmental concerns into the full transportation process: For an effective, environmentally sound transportation system, the Federal-Aid Highway Program and its projects must incorporate environmental considerations and neighborhood and community values and goals into every phase of transportation decision making. But FHWA must practice environmental sensitivity on an even broader scale. Environmental objectives must be considered in every aspect of FHWA's organization and decision-making (FHWA 1995). The EPS and current FHWA policy also require Consideration of social, economic, and environmental issues equally with engineering issues. Coordination of planning to conform to air quality implementation plans. Defining the “environment” to include the natural and built environment. Encouragement of broad-based public involvement early and continuously in the process. Encouragement of continual consideration of environmental factors throughout all phases of project. Encouragement of corridor preservation to ensure early consideration of environmentally sensitive areas. Encouragement of enhancement of the natural and human environment. Encouragement of mandates going beyond compliance to strive for environmental excellence.

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Assessing and Managing the Ecological Impacts of Paved Roads Integration of environmental goals and effects by local, regional, and state land-use planning. Promotion and support of watershed planning. Promotion of multi-modal solutions to transportation and air quality problems. Requirement of environmental commitment compliance and implementation. Requirement of full compliance with environmental protection laws, regulations, Executive Orders, and policies. Requirement of full consideration of avoidance, minimization, and mitigation of adverse effects. Support for an interdisciplinary approach. Support for environmental training to develop environmental professionals in transportation. Support for research and development to raise the level of expertise to state of the art. Support for the merger of NEPA with other environmental reviews and decisions regarding permits. Additional FHWA environmental policy provides that To the fullest extent possible, all environmental investigations, reviews, and consultations be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental document required by this regulation. Alternative courses of action be evaluated and decisions 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 effects of the proposed transportation improvement; and of national, State, and local environmental protection goals. Public involvement and a systematic interdisciplinary approach be essential parts of the development process for proposed actions. Measures necessary to mitigate adverse effects be incorporated into the action. Measures necessary to mitigate adverse effects are eligible for Federal funding when the Administration determines that —The effects for which the mitigation is proposed actually result from the Administration action; and

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Assessing and Managing the Ecological Impacts of Paved Roads —The proposed mitigation represents a reasonable public expenditure after considering the effects of the action and the benefits of the proposed mitigation measures. In making this determination, the Administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a Federal statute, Executive Order, or Administration regulation or policy. Costs incurred by the applicant for the preparation of environmental documents requested by the Administration be eligible for Federal assistance. The national policy Executive Order 13274 declares, The development and implementation of transportation infrastructure projects in an efficient and environmentally sound manner is essential to the well-being of the American people and a strong American economy. Executive departments and agencies (agencies) shall take appropriate actions, to the extent consistent with applicable law and available resources, to promote environmental stewardship in the Nation's transportation system and expedite environmental reviews of high-priority transportation infrastructure projects. Among the steps taken to implement this policy, the FHWA adopted the “Vital Few Environmental Goals” to focus some of its efforts on environmental stewardship. This policy has several specific objectives (FHWA 2004c): Objective 1 To improve the environmental quality of transportation decision-making, all 50 States, the District of Columbia, Puerto Rico, and the Federal Lands Highway (FLH) Divisions will use, by September 30, 2007: Integrated approaches to multimodal planning, the environmental process and project development at a systems level; and/or Context Sensitive Solutions (CSS) at a project level. Objective 2 To improve the timeliness of the both the federal aid and FLH environmental process:

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Assessing and Managing the Ecological Impacts of Paved Roads Historic bridges D D D D D Noise NC NC NC NC NC Habitat mitigation D D D D D Context-sensitive design D D D D D Transportation enhancements D D D D D Historic Preservation Act NC NC NC NC NC Land and Water Conservation Fund NC NC NC NC NC Migratory Bird Treaty Act D D D D D Farmland Protection Policy Act D NC NC NC D Coastal Zone Management Act D M M D D Magnuson Fishery Act D M M NC NC Executive Orders EO 13274 environmental stewardship D D D D D EO 12898 environmental justice NC NC NC NC NC EO 11988 floodplains M M M D D EO 13112 invasive species D D D D D EO 11990 wetlands M M M D D EO 13186 migratory birds D D D D D aEntries in table describe whether the law requires the following: consideration of the component is mandatory (M), consideration of the component is discretionary (D), or consideration of the component is not reqired (NC).

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Assessing and Managing the Ecological Impacts of Paved Roads TABLE 5-4 Ecological Scale at Which Legislation Is Applieda Legislation or Process Scale Unit Road Segment Landscape Watershed Eco-region Nation MPO planning process Assess Assess Assess Assess NC FHWA environmental policies Assess Assess Assess Assess NC NEPA—in general Assess Assess Assess Assess NC EIS Assess Assess Assess Assess NC EA Assess Assess Assess NC NC Categorical Exclusion NC NC NC NC NC Clean Water Act Section 402 NPDES program Limit Limit Assess NC NC Section 404 dredge and fill permits Limit Limit Assess Assess NC Non point-source pollution Limit Assess Assess Assess NC Rivers and Harbors Act Limit Limit Assess NC NC Endangered Species Act Limit Assess Assess Assess NC Clean Air Act When setting standards NC NC NC NC NC For road projects Assess Assess NC NC NC Department of Transportation Act Parks and public areas Limit Limit NC NC NC Native vegetation Limit Limit NC NC NC

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Assessing and Managing the Ecological Impacts of Paved Roads CMAQ NC NC NC NC NC Historic bridges NC NC NC NC NC Noise NC Assess NC NC NC Habitat mitigation Assess Assess Assess Assess Assess Context-sensitive design Assess Assess Assess Assess Assess Transportation enhancements Assess Assess Assess Assess NC Historic Preservation Act Assess Assess NC NC NC Land and Water Conservation Fund Limit Limit NC NC NC Migratory Bird Treaty Act   Limit Assess Assess Assess Farmland Protection Policy Act Assess Assess NC NC NC Coastal Zone Management Act Limit Limit Assess Assess NC Magnuson Fishery Act Limit Limit Assess Assess Assess Executive Orders EO 13274 environmental stewardship Assess Assess Assess Assess NC EO 12898 environmental justice NC NC NC NC NC EO 11988 floodplains Assess Assess Assess Assess NC EO 13112 invasive species Limit Limit NC NC NC EO 11990 wetlands Limit Limit NC NC NC EO 13186 migratory birds Limit Limit NC NC NC aThe table indicates whether the law requires an assessmentat a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC).

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Assessing and Managing the Ecological Impacts of Paved Roads an assessment at a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC). This table illustrates that most laws are targeted at a local scale and are related to a particular project. In conjunction with specific projects, some laws require consideration of indirect, cumulative, or other related effects, which are reflected in a designation that the law requires assessment of larger ecological scales. Table 5-5 addresses the political scale at which the legislation is applied. Although all the laws are federal, the table indicates what political levels are pertinent under each statute in terms of application and compliance with the law. The level of government that bears primary responsibility for compliance is identified. Environmental Reviews and Roads Information on the level of environmental review of road projects under NEPA is sparse. One study by the American Association of State Highway and Transportation Officials (AASHTO) surveyed 32 states and found that 92% of environmental documents processed by these state DOTs were categorical exclusions (CE) (STPP 2002, TransTech Management, Inc. 2000). Environmental assessments comprised 7% of the documents, and full EIS were covered in 2% of the cases. As stated in Chapter 2, few studies have attempted to assess how the legal requirements of NEPA and other environmental statutes have affected the length of time needed to complete road projects (GAO 1994, FHWA 2003f). These studies used information and data from sets of past highway projects for which NEPA EIS or Section 404 reviews were implemented. According to GAO (1994), these projects represented a small percentage (less than 3%) of all road projects. In this small set of projects, however, required environmental reviews increased the time of project completion. The time associated with environmental review varied as a function of the type of review (CE, finding of no significant impact [FONSI], EA, or EIS). In 1994, GAO examined 76 road projects completed from 1988 to 1993 to determine how an EIS extended the time to project completion. It found that those projects took from 2 to 8 years to complete the necessary NEPA and Section 404 reviews. An EIS prepared for NEPA

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Assessing and Managing the Ecological Impacts of Paved Roads review averaged 4.4 years, and an EIS under both NEPA and Section 404 permits averaged 5.6 years to complete. In contrast to the EIS findings, FHWA assessed projects that involved either a FONSI or a CE. Rather than using project data, such as start and completion date, this assessment was done by polling division offices. The agency concluded that most FONSI reviews took about 18 months to complete, and CE reviews took about 6 months to complete. AASHTO (TransTech 2000) did a survey of state DOTs and reported that about half of CEs were generally delayed and actually took between 1 and 2 years to complete. FHWA and the Berger group (FHWA 2003f) attempted the most quantitative analysis of this issue by calculating statistics from about 100 road projects done between 1970 and 2000. All of these projects required an EIS pursuant to NEPA. This group concluded that the mean time to complete an EIS was about 3.6 years, which accounted for about 28% of the total project development process. They also noted that the time to complete an EIS doubled from the 1970s (about 2.2 years) to the 1990s (about 5 years). This report and others suggest that the current data collected on environmental review of road projects raise questions about the efficacy of NEPA, since the lengthy NEPA process can lead to frustration on all sides. The report’s authors concluded by suggesting that their study provides a useful baseline against which streamlining efforts could be evaluated. ISSUES Issues and Gaps Related to Ecology A number of gaps exist within the array of environmental legislation, regulations, and policies. Not all species or ecosystem types obtain protection from adverse effects associated with roads. By definition, some of these acts require addressing only parts of ecological systems, such as wetlands, endangered species, and clean water. Little protection is afforded to species or habitats that are not rare, threatened, or endangered, even if those habitats serve important ecological functions. For example, an ecosystem patch or zone may perform functions of flood control, groundwater recharge, wildlife habitat, or open-space aesthetics. Without special designation under federal law, these ecosystem functions escape protection.

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Assessing and Managing the Ecological Impacts of Paved Roads TABLE 5-5 Political Scale at Which Environmental Legislation, Program, or Executive Orders Are Applieda Legislation or Program Local County Multicounty State Federal MPO planning process Limit Limit NCb NC NC FHWA environmental policies Assess Assess Assess Assess Assess NEPA—in general Assess Assess Assess Assess Assess EIS Assess Assess Assess NC NC EA Assess Assess Assess NC NC Categorical Exclusion NC NC NC NC NC Clean Water Act Section 402 NPDES program Limit NC NC NC NC Section 404 dredge and fill permits Limit NC NC NC NC Nonpoint-source pollution Assess Assess Assess NC NC Rivers and Harbors Act Limit NC NC NC NC Endangered Species Act Limit Assess Assess NC NC Clean Air Act When setting standards Limit Assess Assess NC NC For road projects Limit Assess Assess NC NC Department of Transportation Act Parks and public areas Limit NC NC NC NC Native vegetation Limit Limit Limit NC NC CMAQ Assess Assess Assess NC NC

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Assessing and Managing the Ecological Impacts of Paved Roads Historic bridges Limit NC NC NC NC Noise Limit NC NC NC NC Habitat mitigation Assess Assess Assess NC NC Context-sensitive design Assess Assess Assess NC NC Transportation enhancements Assess Assess Assess NC NC Historic Preservation Act Limit NC NC NC NC Land and Water Conservation Fund Limit NC NC NC NC Migratory Bird Treaty Act Limit Assess Assess Assess NC Farmland Protection Policy Act Assess Assess Assess Assess NC Coastal Zone Management Act Limit Limit Limit NC NC Magnuson Fishery Act Limit Assess Assess NC NC Executive Orders EO 13274 environmental stewardship Assess Assess Assess Assess Assess EO 12898 environmental justice Limit Limit NC NC NC EO 11988 floodplains Assess Assess Assess NC NC EO 13112 invasive species Limit Limit Limit Assess NC EO 11990 wetlands Limit Assess Assess NC NC EO 13186 migratory birds Limit Limit Limit Assess Assess aThe table indicates whether the law requires an assessment at a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC). bMPOs may be multicounty, in which case this entry could be Limit.

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Assessing and Managing the Ecological Impacts of Paved Roads Another gap is a knowledge gap in our ability to predict environmental effects, as required under NEPA and other acts. One of NEPA’s fundamental assumptions is that effects—direct, indirect, or cumulative—can be predicted. For at least 20 years, there has been a broad body of ecological literature that suggests that the ability to assess these effects is variable, ranging from fairly well-understood phenomena to inherently unpredictable systems. For example, most hydrological dynamics are understood well enough within streams and rivers to know how to minimize hydrological effects associated with bridges. Other complex biological phenomena, such as broad-scale migrations, patterns of exotic biota invasions, and population dynamics, are often difficult to predict and assess impacts prior to action. The array of laws and orders that underpin assessment and planning actions are usually only applied at local or small scales, the bounds determined for political or social reasons, not ecological ones. The legislative guidance (Table 5-5) suggests that environmental reviews can be conducted at larger spatial scales (state and national level) but are generally not done at these larger scales. This finding corresponds to the scales described in Chapter 3, showing that most of our knowledge of impacts associated with roads occurs at small spatial and temporal scales. The reasons for choosing smaller scales for environmental review are unclear but discussed further in Chapter 6. Other gaps exist in the laws and orders that relate to environmental evaluations. No legal requirements were found that compel assessment of road effects on ecosystem goods and services. It is possible that some of the knowledge gaps identified in Chapter 3, especially road effects on ecosystem goods and services, are due in part to no legal requirement. Existing laws are limited in capturing cumulative, indirect, and synergist effects of road systems. Although cumulative and indirect effects must be included under NEPA, the analysis generally does not consider long-term cumulative effects of an entire transportation system because NEPA applies at the project development scale. The MPO is not required to evaluate cumulative or indirect ecological effects of the LRTP or TIP. Issues of Multiple Agency Involvement The participation of multiple agencies with responsibility for ecological and transportation concerns raises other issues. As reflected in the statutes described in this chapter, multiple layers of coordination and

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Assessing and Managing the Ecological Impacts of Paved Roads consultation are the rule, not the exception, in uniting transportation and ecological concerns. The resource agencies that are responsible for ecological matters may lack sufficient personnel, funding, or knowledge of transportation to perform their roles smoothly. In transportation, there are substantial differences in resource staffing and expertise among local entities, MPOs, and state DOTs. Local entities and MPOs rarely have sufficient budgets to maintain ecological expertise on the staff. In contrast, state DOTs have considerable ecological expertise. Coordination of all of these multiple agency resources can be difficult at the planning stage and the project stage. Not only are the federal environmental laws administered by agencies other than FHWA or the state DOTs, but also there is no single agency with paramount authority for ecological resources. DOT has final authority for federal transportation projects, but the projects still require multiple agency review and permission. As described, the laws addressed in this chapter involve EPA, USFWS, the Corps, NPS, and other federal resource agencies. These resource agencies have multiple duties in addition to those related to transportation and generally have small staffs to work on transportation issues. The resource agencies often have pertinent ecological information, but it might not be maintained in easily accessible databases. Involvement of multiple federal agencies requires coordination of personnel time and work priorities. In some instances, state DOTs have provided a resource agency with funding to make personnel available to ensure attention to transportation projects. The resource agencies are generally structured on a different regional basis than FHWA or the states. For example, EPA operates through 10 regional offices, the Corps has 35 district offices, and the USFWS has 8 regional offices, although there are also field offices with personnel from the ecological service branches in most states. These structural differences can make interagency coordination challenging at best. There also can be conflicts among agencies involved with transportation projects. Disputes between a state DOT and EPA or USFWS over ecological effects of road projects are not uncommon. Having so many agencies involved in ecological issues offers the advantage of detached independent analysis of issues but often at the price of delays or controversies. Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews (September 2002), is designed to address potential interagency issues by establishing a process for review of projects nominated by states for special attention.

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Assessing and Managing the Ecological Impacts of Paved Roads Issues Concerning Programmatic, Proactive Approaches Ecological concerns may extend beyond the spatial and temporal boundaries of specific projects. Some federal laws offer opportunities to look at environmental concerns programmatically, encompassing a broad geographic or temporal area. At a programmatic rather than a specific project level, a broader range of ecological concerns can be addressed. For example, under NEPA, agencies are authorized to conduct a programmatic environmental impact statement, looking at the environmental effects of more than one project. A “program” can be defined by the agency. FHWA could consider a series of road projects that are planned for a region as a “program” under NEPA. The programmatic review may assist early planning to integrate ecological concerns into long-term planning. Thus, a programmatic review may identify wildlife or other sensitive environments so that individual projects can be planned accordingly to avoid and protect such ecosystems. Other laws, such as ESA, do not provide for any programmatic or abbreviated analysis. The statute does not contemplate programmatic ESA review for territories or regions where multiple effects might be proposed from diverse sources. Although FHWA or the state DOT could request ESA review for multiple effects in a single location, they would have to have fairly specific information about the various projects, as well as the species of concern. Generally, at the LRTP or TIP stage, there is not sufficient specific information about particular projects to allow a meaningful review for effects on threatened or endangered species. If the law either required or provided a mechanism to consider threatened or endangered species regionally in advance of specific transportation projects, protection of certain wildlife and habitat could be assisted at the early planning stages. The federal laws were written with a focus on environmental effects of specific projects. Despite some options to apply the laws in a more programmatic, broader fashion, limitations on resources impose practical constraints on such efforts. SUMMARY Transportation projects are primarily developed from the “bottom up,” reflecting community needs within local political jurisdictions. There are few incentives or disincentives in law for communities to consider effects beyond the political jurisdictions, including ecological ef-

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Assessing and Managing the Ecological Impacts of Paved Roads fects. The decision making has been primarily local, but the ecological effects can extend beyond the local area. Federal transportation planning law relies heavily on local jurisdictions, thus creating few opportunities for evaluation of ecosystem concerns, especially at broader scales. The transportation planning system, carried out by MPOs, offers an opportunity for consideration of ecological concerns at an early stage in road planning. Incorporating ecological concerns at the planning stage would assist in providing protection for ecological functions and in avoiding controversies at the project development and implementation stage. Only NEPA considers effects to the environment at other scales, including indirect or cumulative effects. However, NEPA does not apply to the MPO planning processes. Many entities interested in ecological concerns, including resource agencies, nongovernmental entities, and the public, do not understand the relationship of federal environmental laws to the transportation planning process or the project development and implementation process. This lack of understanding can result in controversies over specific projects after years of planning by transportation entities. Although a wide range of laws, regulations, and policies require some degree of consideration of ecological effects of road construction, the existing legal structure leaves significant gaps. Road projects need only permits to conduct activities that might have an impact on certain types of ecological features—wetlands, endangered species, or migratory birds—and generally at a small scale. Moreover, the permit programs usually consider only direct effects of a road (construction or use) on the protected resource. The data necessary to evaluate efficacy of policy and law are not easily accessible or amenable to synthesis. The data are contained in project-specific EISs, EAs, records of decision, or permits (for example, wetlands permits) that are not easily available for research. With few exceptions (for example, wetlands and endangered species), existing law authorizes ecological concerns to be balanced with goals of transportation mobility, capacity, and other social needs in determining whether and how to undertake transportation projects. This balance can create controversy between parties supporting a project and those opposing it over issues of ecological protection.