Guidance for Managing NEPA-Related and Other Risks in Project Delivery, Volume 1: Guide for Managing NEPA-Related and Other Risks in Project Delivery (2012)

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13 | P a g e 3 Identifying and Developing Strategies to Address NEPA Risks As part of this research effort, a “practitioner workshop” was developed and held in Washington, DC on March 15, 2011, to validate NEPA risks catalogued in a literature review, and receive input on how effective risk management strategies could be developed and implemented. See Appendix A for a summary of the workshop proceedings. To organize risk identification and management strategies, this research developed a project lifecycle “template” that is typical for most DOTs. The template, enumerated below, consists of nine phases of project development, which run more or less consecutively, though some phases significantly overlap others. Typical DOT Project Development Phases 1. Planning: The planning process provides an assessment of transportation deficiencies, or “needs,” which the DOT can convert into project candidates. Transportation planning at the corridor or subarea level of analysis will provide key information for the NEPA process, such as project purpose and need, preliminary screening of alternatives, and preliminary screening of environmental impacts. 2. Priority Setting and Programming: refers to a DOT’s formal or informal process of ranking “needs” derived from the planning process, and initiating project development. 3. Preliminary Design: sometimes called preliminary engineering (PE), includes the definition of the project's basic design parameters, such as typical sections, horizontal and vertical alignments, and design speeds, to evaluate the feasibility of an option or alternative. While definitions of this phase varies between agencies, specifically excluded from preliminary design activities is advancing the level of engineering to the point that it would prejudice the selection of the NEPA “preferred alternative.” It should also be noted that preliminary design activities are to be conducted concurrently with NEPA activities. This phase is typically an excellent time to apply risk management in earnest, as scope of work, size and cost of project, and location decisions begin to emerge. 4. NEPA: while not a project “phase” unto itself, every DOT has a work unit of NEPA specialists, who aid in the project development process by obtaining NEPA approval through various levels of analysis and documentation. 5. Final Design: defined by 23 CFR 636.103, final design follows preliminary design and “expressly includes the preparation of final construction plans and detailed specifications for the performance of construction work." 6. Environmental Permitting: begins as part of the NEPA process, wherein all known or reasonably anticipated permit actions are addressed as part of the NEPA document. However, many permit details must wait until sufficient design is complete, for example, Section 404 of the Clean Water Act.

14 | P a g e 7. Right-of-Way (ROW): the identification and acquisition of ROW necessary for project construction. 8. Utility Relocation: are considered in the design phase, and relocated as part of the construction phase. Some level of utility identification must be performed during project development, and appropriate decisions must be made regarding the highway location, design, and utility relocation, in order to balance utility relocation costs against highway construction cost and selection of the preferred alternative. 9. Construction: begins after the project is let to bid and a contractor is selected. This is of course where the physical impacts occur, both to the transportation facility itself and to the surrounding environment. Figure 6 below illustrates these nine project development phases in context with development schedule, and emphasizes the application of risk management throughout the project lifecycle, including periodic reevaluations. Figure 6: Project Lifecycle Phases and the Application of Risk Management In addition to these nine phases of project development, there were some overarching NEPA risks identified, which fell under a general category of “project management.” Planning Right of Way Final Design Environmental Permitting Programming Utility Relocation Construction Preliminary Design Time P ro je ct D ev el op m en t P ha se NEPA Application of Risk Management Risk Management Plan Risk Reanalysis Risk Reanalysis Risk Reanalysis Risk Reanalysis

15 | P a g e Brainstorming Process of Risk Identification Brainstorming is a widely-accepted procedure for identifying risks, and one that was replicated in the practitioner workshop, which specifically used a “structured brainstorming” process. The goal of brainstorming is to generate ideas, solicited from the broadest possible cross-section of experienced people involved in a project’s development. A facilitator runs the brainstorming session, and all participants hold judgment on the ideas generated until after the session is complete. Structured brainstorming solicits one response from each participant, in a round robin sequence. Each participant has an equal chance to participate, which reduces the natural biases of “rank” in the organization or the vagaries of an individual’s personality and willingness to speak in a group setting. Brainstorming generates a variety of ideas in a very short time, and often produces new and creative ideas. In the context of risk management, the brainstorming process is the best process to reveal and categorize a complete list of risks, which can then be analyzed for probability and impact, and appropriate risk management actions identified. The next section presents the results of a brainstorming session held in the practitioner workshop as part of the development of this guidance document. In practice, identifying risks would involve the following two steps: 1. Brainstorming exercise, to generate as many ideas of potential risks as possible, based on the input of a multidisciplinary working group. 2. After brainstorming ideas are documented, refer to risk checklists, like the ones in the tables that follow, to see if additional risks or ideas can be generated. It is important not to refer to checklists before brainstorming sessions, so as not to prejudice the opinions of the working group or stifle innovative ideas. To reemphasize, the NEPA risk examples presented in this guidance document are helpful, but the reader should refer to them only as examples of a risk management exercise and not a checklist of all possible NEPA risks. Brainstorming for a specific project could identify different or more specific risks. NEPA Risks Identified in the Practitioner Workshop To develop this guidance document, researchers convened a “practitioner workshop” to review NEPA risks and potential response actions (see Appendix B for a list of participants and agenda for this workshop). The participants in the workshop followed a structured brainstorming exercise to identify potential NEPA risks and risk management actions. Table 1 through Table 10 below presents a list of NEPA risks organized by project phase, with 1) data and methods for risk analysis, 2) potential risk management actions, and 3) suggestions for allocation of this risk.

16 | P a g e Table 1 NEPA Risks in the Planning Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Purpose and need defined too narrowly, which can lead to an improper narrowing of reasonable alternatives • Consultation with FHWA officials • Practicing Planning and Environmental Linkage (PEL): bring environmental specialists into the planning process, to aid in evaluating the purpose and need statement for the project • Early involvement of attorneys in a legal sufficiency review will help to mitigate problems with the purpose and need statement • Project manager, in consultation with environmental specialist Uncertainties in travel demand model • Data from modeling and forecasting specialists • MPO • Consultants assigned to traffic forecasting • Update travel demand model as MPOs release model updates • Coordinate to ensure that project traffic model is in line with latest MPO model • Use “backcasting” and/or other methods for calibrating model and as part of the QA/QC review for the model. • Project manager • Traffic modeling and forecasting specialists (DOT) • Traffic modeling and forecasting specialists (consultant)

17 | P a g e Table 1 NEPA Risks in the Planning Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Project goals that are too vague or too broad, creating risk of preferred alternative not meeting goals • Consultation with FHWA officials • Practicing Planning and Environmental Linkage (PEL): bring environmental specialists into the planning process, to aid in evaluating the purpose and need statement for the project • Project manager, in consultation with environmental specialist Not addressing local agencies’ policies and plans • Use risk management checklist to identify risk • Ensure that there is an adequate compilation of local/regional plans and policies that relate to the proposed action • Review proposed action— does it adequately reflect local policies and plans and if not, has there been adequate interaction with local officials to address, and is there a good explanation provided? • Project manager • Environmental specialist • Planning leader in charge of purpose and need document Disconnect between disciplines with respect to land-use needs and aspirations • Use risk management checklist to identify risk • Consider the use of teaming agreements to identify the key project goals and address issues such as land use; get resource and partner agency buy-in • Project manager • Environmental specialist • Planning leader in charge of purpose and need document

18 | P a g e Table 1 NEPA Risks in the Planning Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? The segmentation and logical termini of the project excludes related transportation problems; The segmentation/logical termini of the project creates a project that is overly complex and/or too expensive to build • Consultation with FHWA • Quantify with planning-level cost estimate tools • Document the use FHWA criteria in choosing logical termini during the purpose and need formulation • Use early cost estimate tools to avoid the creation of “mega” projects which are difficult to develop, or too expensive to develop • Project manager, in consultation with DOT executive leadership Using known environmental issues to eliminate alternatives, which could unfairly bias the eventual preferred alternative • Consultation with FHWA • Practicing Planning and Environmental Linkage (PEL): bring environmental specialists into the planning process, to aid in the development and evaluation of proposed alternatives • Develop “red flag” summaries of environmental issues during the planning phase, at a level of detail equal for all potential alignments and/or project area • Project manager, in consultation with environmental specialist

19 | P a g e Table 1 NEPA Risks in the Planning Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Having too narrow a range of alternatives to evaluate • Consultation with FHWA • Practicing Planning and Environmental Linkage (PEL): bring environmental specialists into the planning process, to aid in the development and evaluation of proposed alternatives • Project manager, in consultation with environmental specialist

20 | P a g e Table 2 NEPA Risks in the Priority Setting and Programming Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Inaccurate cost estimates provide a public “benchmark” of project cost, and perceptions of cost overruns • Estimating software (e.g., Transport Estimator®) to provide cost estimates in the planning phase • Provide more confidence in planning-level cost estimates by utilizing estimating software (e.g., Transport Estimator®) and appropriate contingencies to estimate costs • Use risk-based design estimates such as WSDOT Cost Estimate Validation Process (CEVP®) • Develop a communication plan that includes public declaration of cost estimates; declarations of estimated costs should be placed in context, communicated in terms of “year-of- expenditure” dollars and expressed as a range not a single number. • Project manager, in consultation with DOT executive leadership Inadequate DOT capacity for delivery of the project • Internal staffing plans for individual projects or programs • Outsource program management for select groups of projects, such as projects of a certain size, delivery of certain complex projects, or to manage “spikes” in the DOT program • DOT executive leadership

21 | P a g e Table 2 NEPA Risks in the Priority Setting and Programming Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? • Bifurcate planning/development program from construction program; and do not program construction funding until an environmental document is cleared (Maryland State Highway Administration example) Viability, especially with complex projects: “Do we have a viable project?” This was also expressed in the Workshop as a “lack of accountability” for poor programming decisions • Early screening and involvement of engineering and environmental specialists in the programming phase • Estimating software (e.g., Transport Estimator®) to provide cost estimates in the planning phase • Create a rigorous process or institution for programming complex and/or high cost projects o Create, publish, and follow a process for programming “major” projects, as defined by scope, cost or complexity o Some State DOTs have major programming decisions governed by a commission or board, which can filter out highly-parochial • DOT executive leadership

22 | P a g e Table 2 NEPA Risks in the Priority Setting and Programming Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? projects which might not be viable. MPOs and other planning organizations have a role in priority setting and programming as well

23 | P a g e Table 3 Risks in the Preliminary Design Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Inadequate level of preliminary design activities can lead to proposed actions which have unknown engineering complexity • Use risk management checklist to identify risk • Ensure that there is collaboration between NEPA specialists and technical/engineering specialists. Neither should dominate project development decision making. o Project management offices can promote this type of collaborative process o Provide resources for adequate preliminary design. • Project manager

24 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Organized opposition to the project, including significant grassroots, funding, and/or legal resources Lack of Political and Stakeholder Consensus • Use risk management checklist to identify risk • Aid political and stakeholder consensus by using the following tools and techniques: o Stakeholder teaming and partnering agreements o Public involvement planning, implementation, and documentation • Multi-disciplinary team to effectively address stakeholder issues with a strong project manager o Include assigned project support staff • Project manager • DOT executive leadership

25 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Lack of understanding of NEPA process by project stakeholders Giving too much authority, or perceived authority, to stakeholder groups such as Citizen Advisory Committees State or local governments attempting to “legislate over” NEPA • Use risk management checklist to identify risk • Adopt adequate processes and procedures as part of project development manuals o Include example guidelines and models o Convey clear understanding of “what” project development is and “how” it is carried out o Clearly convey what the role of stakeholders is in project development and decision making • Project manager and environmental specialists Failure to consider public transit or other modes • Use risk management checklist to identify risk • Travel demand modeling to quantify modal alternatives • Ensure adequacy of the purpose and need statement for the project • Include public transit agencies (and other modal agencies) as stakeholders in the project development process • Adequately consider and document modal alternatives analysis and rationale for exclusion • Project manager and environmental specialists

26 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Study area and boundaries which create a project too large to fund • Estimating software (e.g., Transport Estimator®) to provide cost estimates in the planning phase • Consider the risks of the study/planning area resulting in a project or group of projects which are financially infeasible. Document decisions on the study area, especially in terms of the financial resources • Where appropriate, consider a tiered EIS document, where individual projects can be disaggregated and developed as funding allows • Consider segmentation and innovative funding mechanisms • Project manager • DOT executive leadership Deficient screening which prematurely eliminates alternatives, or eliminates alternatives which should be carried forward or conversely carrying forward unreasonable alternatives • Consultation with FHWA • Have procedures in place for NEPA compliance • Early involvement of attorneys in a legal sufficiency review will help to ensure that the screening process is adequate • Early and close coordination with lead agency and in some cases cooperating agencies • Project manager and environmental specialists

27 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Inadequate compliance with NEPA procedures • Use risk management checklist to identify risk • Document project management plans which address NEPA compliance process and schedule • Develop a project-specific plan for the administrative record of the NEPA decision • Project manager and environmental specialists Maintaining an adequate record of, and responding to, public comments • Use risk management checklist to identify risk • Create and maintain an electronic record of public comments and responses • Develop standard response templates for responding to public comments • Categorize public comments to classify the subject matter and strength of public opinion about certain issues • Consider/respond or develop plan to address concerns raised • Project manager and environmental specialists • Project public involvement coordinator (DOT or consultant)

28 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Addressing resource agency comments • Use risk management checklist to identify risk • Programmatic agreements with resource agencies for specific issues can decrease the volume of comments received for each project • Early coordination with resource agencies particularly cooperating and participating • Advance technical studies to address agency concerns early • DOT executive leadership should be involved in programmatic agreements with resource agencies as an overall streamlining and risk management tool • Project manager and environmental specialists

29 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Being overly responsive to resource agency comments; or Being overly agreeable— making any commitment to advance the project • Use risk management checklist to identify risk • Develop the ability to defend decisions without creating conflicts o Refer to previously- developed agreements with the resource agency(ies), such as programmatic agreements; partnering agreements o Commitments should be developed in close coordination with cross- functional staff and only made by those with the authority to make them • Project manager and environmental specialists

30 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Differences in NEPA processes and interpretations between federal agencies such as FHWA, FTA, and FRA • Consultation with FHWA • Develop procedures that clearly define these different interpretations and how to manage them • Develop partnering agreements among all stakeholders and federal agencies early in the project development process • Request and establish the “lead federal agency” which is most appropriate and/or advantageous for project development • Clearly establish appropriate cooperating and participating agencies • Project manager and environmental specialists

31 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Legal and regulatory changes during the life of project development, leading to • need to account for new information • risk of resource studies growing outdated • Use risk management checklist to identify risk • Environmental management systems can aid in and streamline permit and document reviews, and “automate” compliance activities to the degree practical • Project management offices and teams can effectively manage the workload and changes in regulatory requirements, which apply to a portfolio of projects • Identify necessary reevaluation activities to address regulatory changes • Project manager and environmental specialists • DOT executive leadership should be aware of this risk, and their role in program delivery, so that projects do not languish in the DOT “pipeline”

32 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? The capacity of resource agencies to provide a timely review of environmental, especially if there are large, temporary expansions of a DOT’s program New resource agency staff require time to understand the transportation process Resource agency staff unavailable to attend meetings, due to low staffing levels or lack of travel funding • Use risk management checklist to identify risk • Programmatic agreements with resource agencies for specific issues can decrease the volume of comments received for each project • The State DOT can fund positions in resource agencies (e.g., State Department of Environmental Protection; US Army Corps of Engineers; US Fish and Wildlife), which increases their institutional capacity to review environmental documents • DOT executive leadership needs to identify and support resource agency partnerships

33 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Adversarial relationship with resource agencies “Passive-aggressive” behavior to delay DOT progress in project development • Use risk management checklist to identify risk There are several strategies which can improve the relationship between State DOTs and resource agencies: • Funding positions in resource agencies develops a collaborative relationship in review of environmental documents • Help fund improvements—such as GIS resource databases—which provide benefits resource agencies and eases administrative burdens associated with NEPA review; this action can also build goodwill between the DOT and resource agency • Specific teaming agreements, on a project or program basis, help to reinforce the relationship between the State DOT and resource agencies, and reinforce resource agency boundaries • Be responsive, rationally and collaboratively address agency concerns early • Work with the lead agency to address agency commentary and place it in context • DOT executive leadership • Project manager and environmental specialists

34 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Difficulty in weighing different types of impacts, e.g., agencies not agreeing on which impacts are more important • Use risk management checklist to identify risk • Create matrices to compare resource impacts and weigh against project purpose and need • Allow resource agency leadership to coordinate among each other to resolve conflicts • Involve the lead agency as the ultimate decision maker • Project manager and environmental specialists

35 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Growing intolerance for any project impacts • Use risk management checklist to identify risk • Develop the ability to defend decisions without creating conflicts o Refer to previously- developed agreements with the resource agency(ies), such as programmatic agreements; partnering agreements o Focus agency commentary by improving project information they are seeing o Involve lead agency in coordinating with agencies and addressing their concerns • Project manager and environmental specialists

36 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Poor readability of the environmental document • Use risk management checklist to identify risk • Follow guidelines for “user friendly” environmental documents • Use templates for certain documents, such as Categorical Exclusions • Exercise quality control, hold the preparers accountable for a quality product • Project manager and environmental specialists • Consultant involved in document preparation Inadequate decision rationale or recordkeeping • Use risk management checklist to identify risk • Train staff and implement process to create and maintain administrative record for projects • Use environmental management systems to automate and streamline recordkeeping • A strong project manager responsible for assuring adequate record keeping of decision making documentation • Project manager and environmental specialists • Consultant involved in administrative record

37 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Need for new analysis, including the identification of new alternatives • Something was “missed” in original evaluation • Unanticipated issues affect alternatives analysis • Post-ROD changes in project design • Politically-motivated alternatives arise • Use risk management checklist to identify risk • Calculate the cost and time delay of considering new alternative • Practicing Planning and Environmental Linkage (PEL): bring environmental specialists and engineers into the planning process, to ensure a robust evaluation and inclusion of all reasonable alternatives and documented elimination of unreasonable alternatives • Demonstrate the cost and time delay from considering a new alternative (perhaps via quantitative risk analysis) • Project manager and environmental specialists

38 | P a g e Table 4 Risks in the NEPA Phase of Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Developing projects “at risk,” prior to approval of environmental document: Where agencies decide to proceed with detailed design, right-of-way, utility and construction activity prior to the ROD (with non-FHWA funds), they do so “at risk,” meaning the project’s eligibility for federal funding is at risk, should there be changes made to the environmental document • Use risk management checklist to identify risk • Use qualitative analysis and management judgment to determine when to proceed at risk • Quantify the risk decision by assigning dollar value to variables such as time, cost of design, cost of potential revisit of environmental document, etc. • Coordinate with lead agency and present rationale • Project manager and environmental specialists Insufficient understanding of legal standards that apply to the NEPA process • Use risk management checklist to identify risk • Use legal sufficiency reviews, and include attorneys at earlier stages of project development • Create and maintain an “administrative record” for use in potential legal challenges in the future • Project manager and environmental specialists • Outside counsel involved in legal sufficiency review

39 | P a g e Table 5 NEPA Risks in the Final Design Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? “Hand-off” of preliminary design to final design team: Where there is separation between the preliminary design team and final design team (which is possible due to the time required for NEPA approval), some environmental decisions or commitments might get “lost” between the project development phases • Use risk management checklist to identify risk • Cultivate project management leadership and teams which transcend all phases of project development, to ensure follow through of environmental commitments and acquiring internal concurrence and approval • Develop a process for communicating project commitments • Project management offices within a State DOT might encourage such collaboration and follow through • Project manager

40 | P a g e Table 5 NEPA Risks in the Final Design Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Identifying new technical constraints: The final design phase identifies engineering issues with more precision and can uncover new constraints, which impact the preferred alternative and possibly require revisiting the NEPA decision • Use risk management checklist to identify risk • The best way to address this risk is in early phases of project development, with adequate level of preliminary design to compliment NEPA decisions • Develop a clear reevaluation process to ensure timely management of potential issues • Environmental specialists have continued coordination with Final Design and Permitting team • Project manager and environmental specialists

41 | P a g e Table 5 NEPA Risks in the Final Design Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Value Engineering: The value engineering (VE) exercise which occurs in the final design phase has great potential as a cost-savings measure, but carries the risk of VE proposals violating the NEPA document, or identifying an alternative that was dismissed in the alternatives analysis • Use risk management checklist to identify risk • Calculate the cost of VE proposal in design fee and schedule, including construction escalation • Value engineering sessions should be conducted in the context of all other project development activities, and not as a “stand-alone” activity which is more or less equal to other project development phases • As with other project development activities, NEPA specialists should be active in VE sessions • VE should be considered prior to the selection of the preferred alternative and completion of the NEPA document • Consider using VE as a tool for developing risk responses for major project risks. • Consider the consequences of change • Environmental specialists

42 | P a g e Table 6 NEPA Risks in the Environmental Permitting Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Regulatory Loop: 401/404 permitting process can identify impacts which require mitigation outside of the project footprint, thus requiring additional environmental analysis • Use risk management checklist to identify risk • Coordinate permitting requirements early in the environmental process • Develop agreements with resource agencies for the merger of the NEPA and 401/404 process • Project manager and environmental specialists • DOT executive leadership need to be aware of the benefits of NEPA-401/404 process merger and use their executive position with their resource agency counterparts to effectuate change

43 | P a g e Table 6 NEPA Risks in the Environmental Permitting Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Uncertainty of Resource Requirements Agencies require development of a mitigation plan at the time a permit is submitted, meaning that DOTs have to identify land to be acquired, without certainty they can actually acquire it During the right-of-way acquisition process, owners can reject an offer from the DOT for any reason (many states do not have authority for imminent domain for environmental mitigation). If a potential mitigation site falls through, the DOT has to start all over with the mitigation and sometimes must also resubmit the permit • Use risk management checklist to identify risk • Coordinate permitting requirements early in the environmental process • Develop “in-lieu fee” programs, which compensate for stream and wetland impacts on a linear foot and acreage basis, respectively. Such programs eliminate the need for specific identification of mitigation areas for a permit • Develop mitigation banks as encouraged by the US Army Corps of Engineers • Early consideration of mitigation including coordination with permitting agencies and the development of a conceptual mitigation plan during NEPA • Early contamination assessments of R/W parcels • Project manager and environmental specialists • Developing in-lieu fee programs requires the attention and energy of DOT executive leadership

44 | P a g e Table 6 NEPA Risks in the Environmental Permitting Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Resource agencies requiring their own "resource specific" mitigation, rather than having one site (e.g., wetland) for multiple projects. The resource agencies sometimes claim that DOTs are “double dipping” to buy one mitigation site that could serve for several different resource areas • Use risk management checklist to identify risk • Programmatic agreements with resource agencies for specific issues can reduce or eliminate the uncertainty revolving around this risk category • Programmatic agreements with resource agencies for specific issues can decrease the volume of comments received for each project and possibly avoid this particular risk • Coordinate mitigation early and bring multiple agencies together • Early identification of wetland site locations • Project manager and environmental specialists • DOT executive leadership

45 | P a g e Table 6 NEPA Risks in the Environmental Permitting Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Environmental Resource Conflicts: Some permits can directly contradict the decisions made in the NEPA process • Use risk management checklist to identify risk • Coordinate permitting requirements early in the environmental process • Develop agreements with resource agencies for the merger of the NEPA and 401/404 process • Involve permitting agencies in NEPA – coordinate, consult and seek concurrence • Carry agency decisions made in project development into design and permitting – documents are viewed as a continuum • Some risks can be avoided by additional preliminary design (now allowed by FHWA) in conjunction with close coordination with the federal resource agencies during the NEPA phase. This is required through the use of cooperating / participating agencies status under SAFETEA-LU • Project manager and environmental specialists • DOT executive leadership need to be aware of the benefits of NEPA-401/404 process merger and use their executive position with their resource agency counterparts to effectuate change

46 | P a g e Table 7 NEPA Risks in the Right-of-Way Acquisition (ROW) Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Failure to Consider ROW during NEPA process • Use risk management checklist to identify risk • Include ROW specialists in the NEPA process • Develop project management offices or develop project development teams comprised of all disciplines • Develop clear scoping procedures • Project manager and ROW specialist Unknown alignment and ROW impacts in the NEPA phase of project development • Use risk management checklist to identify risk • Include ROW specialists in the NEPA process • Budget for “worst case” ROW cost impacts during project development • Continue to refine R/W until NEPA document is approved • Project manager and ROW specialist

47 | P a g e Table 7 NEPA Risks in the Right-of-Way Acquisition (ROW) Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Uncertain schedule for NEPA approval, which affects the ability to acquire ROW on schedule • Use risk management checklist to identify risk • Use project management offices or develop project development teams comprised of all disciplines • Include ROW specialists in the NEPA process • Strong project manager in charge of schedule and communication • Project manager and ROW specialist Workload Balancing: NEPA and environmental permitting requirements for a project are speculative until the preferred alternative is approved; while ROW coordination with NEPA is helpful to mitigate schedule delays, unforeseen permit requirements can greatly impact the workload of agency staff • Use risk management checklist to identify risk • Use project management offices or develop project development teams comprised of all disciplines • Include ROW specialists in the NEPA process • Identify consultant ROW specialists to balance unforeseen workload fluctuations • Exercise advance ROW acquisition when able (e.g., protective buying, corridor preservation, etc.) • Project manager and ROW specialist

48 | P a g e Table 8 NEPA Risks in Utilities Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Unknown Utility Impacts: Where there is an underinvestment of utility identification and engineering, including relocation cost estimating, there is a risk that an alternative with inordinate utility relocation costs will advance as the preferred alternative, all other things being relatively equal • Use risk management checklist to identify risk • Scope utility impacts into preliminary design activities and consultant contracts • Involve utility companies at major concurrence points in the project development process • Enhance NEPA phase survey requirements • Project manager and utilities specialist Utility Relocation not cleared in Environmental Document: There are consequences to budget and schedule if utility relocation was not considered or cleared in the NEPA document • Use risk management checklist to identify risk • Involve utility companies at major concurrence points in the project development process • Document utility placement better, so it is available during earlier stages in development • Project manager and utilities specialist

49 | P a g e Table 9 NEPA Risks in the Construction Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Executing NEPA commitments: Depending on the complexity of the project, there can be numerous environmental constraints placed on the contractor, such as seasonal restrictions, restrictions on work in environmentally sensitive areas, and habitat protection • Use risk management checklist to identify risk • Separate out critical NEPA commitments and permit conditions in a section of the construction plans and notes • Insert a plan note for the contractor to assign a specific person for environmental compliance issues or to contact appropriate DOT personnel • Ensure mechanisms are in place to transmit commitments from NEPA to future phases • Project manager and DOT construction work unit (e.g., office, division) • DOT construction project manager (assuming construction manager is different from DOT project development manager) Maintenance of traffic restrictions can eliminate less costly alternatives; or make preferred alternative more costly • Use risk management checklist to identify risk • Calculate the cost of MOT alternatives • Analyze maintenance of traffic as a consideration of alternatives selection – coordinate with appropriate team members • Resist local preferences in project scoping to dictate expensive maintenance of traffic schemes • Project manager in consultation with DOT construction management specialists

50 | P a g e Table 9 NEPA Risks in the Construction Phase Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Constructability issues with the preferred alternative; failure to consider temporary construction impacts • Use third-party constructability specialists to review impacts • Perform constructability reviews at appropriate stages of project development to evaluate constructability impacts • Project manager in consultation with DOT construction management and environmental specialists Risk Related to Contractor Productivity: NEPA commitments can place restrictions on a contractor’s ability to efficiently build projects, with attendant schedule and cost risks. For example, restrictions on working in streams at certain times of the year or restrictions on construction means and methods can present an unknown risk to the project’s construction schedule and budget • Use third-party constructability specialists to review impacts • Conduct constructability reviews earlier in the project development process, to identify risks and plan for schedule contingencies • Schedules need to be created recognizing project issues – those critical issues must be identified and carried forward to ensure commitments are met and complied with • Project manager in consultation with DOT construction management and environmental specialists

51 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Project Manager’s Experience and Competency: Many good transportation project managers have honed their skills over a number of years, perhaps as an understudy on various project management assignments • Use risk management checklist to identify risk • Establish and commit to a project manager training program within the DOT, with various competencies required depending on the construction value of the project • Recruitment and selection of project managers based on people and project management skills in addition to technical skills • DOT executive leadership Project Manager’s Workload: Even with competent project managers, individuals might not be dedicated to a specific assignments, and instead might have time diverted to other projects or administrative duties • Use risk management checklist to identify risk • Establish project management offices for the most complex project development efforts, and promote knowledge transfer among DOT colleagues in the office • DOT executive leadership

52 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Turnover in Project Management: Project managers can turnover due to changes in agency leadership or attrition. The lack of continuity in project management creates a risk that NEPA decisions will not carry through subsequent phases of project development • Use risk management checklist to identify risk • Establish project management offices for the most complex project development efforts, and promote knowledge transfer among DOT colleagues in the office • DOT executive leadership

53 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Cumulative Risk Effects of Poor Project Management: If project management is deficient, a variety of NEPA risks—and other project management risks—can compound to detrimental cumulative effect • Use risk management checklist to identify risk • Establish and commit to a project manager training program within the DOT, with various competencies required depending on the construction value of the project • Establish project management offices for the most complex project development efforts, and promote knowledge transfer among DOT colleagues in the office • Strong training and mentoring programs • DOT executive leadership

54 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Lack of effective conflict resolution process • Use risk management checklist to identify risk • Develop in-house conflict resolution training program to build staff capacity and competency • Hire neutral third parties to resolve conflicts that surround an individual project or set of issues with a resource agency • Early involvement of the lead agency • DOT executive leadership • Project manager Perception of risk, and risk averse behavior Fear of deploying non- standard solutions, e.g., design exceptions • Use risk management checklist to identify risk • Develop project management processes that include risk management protocols • DOT executive leadership

55 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? Lack of uniform project management and risk management tools • Use risk management checklist to identify risk • Develop project management guidance • Training and certification of project managers • Implement a project management system to aid and automate project management activities • DOT executive leadership

56 | P a g e Table 10 NEPA Risks in Project Development Title of NEPA Risk Data and Methods for Risk Analysis Potential Risk Management Actions Risk Allocation: Who should Address Risk? History of contentiousness with the project: if there is organized opposition, and/or if the project has had a history of controversy, it is more likely to face litigation. “Degree and Bounds” of public controversy: involves whether the project faces controversy based on environmental issues, or more parochial (e.g., “not in my back yard”) concerns. Complexity of resource or regulatory issues: by their nature, some environmental issues involve more technical analysis and judgment, such as Endangered Species Act consultation, 4(f) issues, and projects located in environmentally sensitive settings such as public lands or scenic rivers. • Use risk management checklist to identify risk • Project management offices and training to ensure effective project management staff • Stakeholder and partnering agreements • Legal sufficiency reviews • Public involvement plans – well established communication protocols • DOT executive leadership • Project manager