Legal Handbook for the New Starts Process (2010)

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12 Not all projects that receive a good summary rating are necessarily eligible to be approved for funding and an FFGA. In fact, only a few are proposed for an FFGA in a given fiscal year. FTA will recommend a project for an FFGA only when it believes that the project will be able to meet the following conditions during the fiscal year for which funding is proposed: • All nonfederal project funding must be committed and available for the project. • The project must be in the Final Design phase and have progressed far enough for uncertainties about costs, benefits, and impacts (i.e., environmental or fi- nancial) to be minimized. • The project must meet FTA’s tests for readiness and technical capacity, which confirm that there are no remaining cost, project scope, or local financial com- mitment issues. D. Applying the Criteria—An Ongoing Process FTA evaluates New Starts projects throughout the project development process according to the New Starts criteria and FTA guidance. FTA makes decisions about moving projects forward as more detailed infor- mation becomes available throughout the project devel- opment process. The criteria are applied at several key steps in the project development process: FTA approval is needed to proceed from Alternatives Analysis to PE, to proceed from PE to Final Design, to be included in FTA’s recommendations for allocating § 5309 New Start funds in the coming fiscal year as reflected in the An- nual Report on New Starts, and before execution of an FFGA. A project must receive an overall rating of at least Medium to be approved by FTA at each stage. As proposed New Starts and Small Starts projects proceed through the project development process, information concerning costs, benefits, and impacts is refined and the ratings are updated to reflect new information. As noted, FTA also applies the statutory criteria for project justification and financing when it develops recommen- dations for allocating New Starts funds in the coming fiscal year in its Annual Report on Funding Recommen- dations. Moreover, FTA is required by statute to publish pol- icy guidance for its review and evaluation process each time significant changes are made and not less than once every 2 years.66 This guidance is to include an op- portunity for public comment. E. The Project Evaluation Process—Legal Issues/Use of Project Development Agreement A critical question that a lawyer for a project sponsor involved in the FTA New Starts process should empha- size is whether a particular requirement in the lengthy New Starts process is required by regulation or policy. FISCAL YEAR 2009, App. B at B-8 (2008), available at http://www.fta.dot.gov/regional_offices_7753.html. 66 49 U.S.C. § 5309(d)(6). Is it in the FTA New Starts regulation? Is the require- ment in current FTA guidance? Or is it in pending FTA guidance that is not final and is subject to change? Consistency of requirements is important for getting New Starts project development work done in a timely manner. One of the greatest frustrations expressed by project sponsors who have overseen a project through the New Starts process is the frequency of FTA policy changes in recent years. This in part is why the statute requires FTA to publish a New Starts regulation and guidance for comment at least once every 2 years. In this regard, a lawyer working on a New Starts project should be aware of FTA’s proposal in its 2007 New Starts proposed rulemaking to require a project sponsor to execute a PDA before FTA approval of entry into PE.67 FTA included in its rulemaking a model agreement in this regard.68 FTA proposed that this be an agreement between FTA and a project sponsor that sets forth the principal issues to be resolved, products to be completed, all significant cost and ridership uncertainties and the strategies to address them, and the schedule for reaching significant milestones during the course of project development. While FTA has with- drawn this rulemaking,69 we believe the concept of a PDA is important and is likely to play some part in a future New Starts rulemaking. Even if not required by FTA, a lawyer nonetheless should consider asking FTA if it could use a PDA so that the project sponsor has a clear understanding of its responsibilities as it proceeds into the FTA project development process. It is impor- tant to emphasize that the use of a PDA would only work, however, if it contains real bilateral commitments on the part of both parties and does not become just another document that recites the requirements appli- cable to the project sponsor in the project development process. The more that can be negotiated with FTA in terms of firm deadlines and commitments for review and comment on key project submittals can only benefit the project sponsor, provided that FTA signals a real commitment to its part of the bilateral agreement. CHAPTER III: ALTERNATIVES ANALYSIS PHASE A. Purpose and Process 1. Overview Federal transit law provides in pertinent part that “[t]he Secretary may approve a grant under this section for a major new fixed guideway capital project only if the Secretary, based upon evaluations and considera- tions set forth in paragraph (3), determines that the project is—(A) based on the results of an alternatives analysis….”70 Thus, the first phase required by statute 67 72 Fed. Reg. 43328 (Aug. 3, 2007). 68 See App. A (Model Project Development Agreement) to pt. 611, 72 Fed. Reg. 43328, 43374 (Aug. 3, 2007). 69 74 Fed. Reg. 7388 (Feb. 17, 2009). 70 49 U.S.C. § 5309(d)(2)(A).

13 in the planning and project development process for a New Starts project is Alternatives Analysis. It is the only part of the process that does not require FTA ap- proval to begin. Following the results of early regional (or “systems”) planning, a local project sponsor performs an Alternatives Analysis to evaluate the type of service and alignment options for a particular corridor in the community. FTA guidance describes Alternatives Analysis as a bridge between the early, general Systems Planning, which looks at regional travel patterns and transportation corridors in need of improvements, and project development, where a project’s design is suffi- ciently defined that the detailed review of its impacts under the environmental process can be completed. Alternatives Analysis is fundamentally informa- tional in nature. That is, from the Alternatives Analysis phase a local project sponsor will develop information that leads to decisions on mode, general alignment of that mode, and a financial plan to pay for the project. FTA notes that an Alternatives Analysis covers a num- ber of disciplines—from engineering and ridership fore- casts to all of the various issues that arise under the environmental process. 2. Intent of Alternatives Analysis More specifically, Alternatives Analysis allows a lo- cal project sponsor to begin to identify and compare the costs, benefits, and impacts of different transportation alternatives so that local decision-makers have the in- formation necessary to make a decision as to what in their view is the best transportation model for a par- ticular corridor. FTA guidance identifies some key guiding principles of Alternatives Analysis:71 • Local process, local decisions. • Early and ongoing participation by a wide range of stakeholders. • Identification of corridor problems, project “pur- pose and need,” and goals and objectives. • Development of a range of alternatives that ad- dress causes of transportation problems. • Analysis of costs, benefits, and impacts of alterna- tives. • Refinement and evaluation of alternatives. • Locally preferred alternative chosen after careful, balanced, and open analysis of alternatives. 3. Funding of Alternatives Analysis Note that as a result of SAFETEA-LU, § 5309 New Start/Small Start funds no longer may be used for ini- tial planning efforts such as Alternatives Analysis. But other sources of federal funding for Alternatives Analy- sis are available, including the SAFETEA-LU–created 71 FED. TRANSIT ADMIN., NEW STARTS/SMALL STARTS PROGRAM (2008), available at www.fta.dot.gov/documents/APTA_Legislative_Conference_3- 12-08.ppt. Alternatives Analysis program,72 the Metropolitan Planning Program,73 Urbanized Area formula pro- grams,74 or flexible funding programs under the federal highway program.75 4. FTA Involvement in Alternatives Analysis While the Alternatives Analysis phase is the only part of the New Starts project development process that does not require FTA approval to proceed, FTA makes it very clear that it should be actively involved in the early stages of local corridor and subarea planning. His- torically, FTA was closely involved in Alternatives Analysis studies in the 1980s but had little involvement with them in the 1990s. But since 2000 or so, FTA’s emphasis has been on settling planning questions be- fore the PE phase, and it has a renewed interest and involvement in the Alternatives Analysis phase. “As an aid to reasonable schedule setting, and to help ensure that the work is complete enough to satisfy both good planning practice and FTA requirements for alternatives analysis, FTA requests the opportunity to review and comment upon the scope of work of local cor- ridor planning studies that may result in the selection of a transportation improvement requiring New Starts funding”76 (FTA emphasis). Because doing things correctly at the outset of a pro- posed New Starts project in its early planning stages can minimize costly changes or revisions further down- stream in the process, it makes good sense to involve FTA staff early in the Alternatives Analysis process. Moreover, FTA has specified a number of technical principles and assumptions applicable to every Alterna- tives Analysis that the chief executive officer of the lo- cal project sponsor must certify are being followed. In- deed, in its guidance, FTA clearly states that it will not advance a project into PE unless and until the project sponsor’s chief executive officer signs the Lead Agency Certification of Technical Assumptions in the Develop- ment of the New Starts Criteria and FTA “finds sub- stantive compliance” with its principles.77 5. Steps of Alternatives Analysis/Timing of EIS A review of FTA guidance on Alternatives Analysis indicates that it may be broken down into a number of steps.78 72 49 U.S.C. § 5339. 73 49 U.S.C. § 5303. 74 49 U.S.C. § 5307. 75 See 23 U.S.C. § 133 and § 149, among others. 76 FED. TRANSIT ADMIN., ADVANCING MAJOR TRANSIT PROJECTS THROUGH PLANNING AND PROJECT DEVELOPMENT, PART I, PLANNING AND PROJECT DEVELOPMENT 4 (2006), avail- able at http://www.fta.dot.gov/planning/newstarts/planning__environm ent_2591.html. Similar language recommending FTA involve- ment in various stages of Alternatives Analysis is used throughout the document. 77 Id. at 8–9. 78 Id.

14 (i) Initiation of the Study.—The study is initiated af- ter Systems Planning, during which travel patterns are reviewed and transportation corridors in need of im- provements are identified. FTA in its policy guidance asks project sponsors to prepare an Initiation Package. It should include a clear and comprehensive statement of the problem the study is addressing, the alternatives identified for consideration, and the information to be prepared to support decisions on the alternatives. This is followed by a “purpose and need” statement that sets the overall study in perspective and explains why a significant amount of local financial resources may be sought for a project that could have significant envi- ronmental impacts. (ii) Lead Agency/The Scoping Process.—A local lead agency identifies the transportation problem to be solved and is chosen to oversee the alternative analysis process. The lead agency, which is often the project sponsor and local transit system but could also be a metropolitan planning organization (MPO), state, or some combination thereof, is in charge of the Alterna- tives Analysis process. At the outset of the study of al- ternatives, the project sponsor “scopes out” the overall process. Key issues are identified; the type of informa- tion needed in technical analyses is considered and identified. Further, the scoping process involves consulting and seeking the participation of the public and interested and affected agencies and organizations. It is important to get all issues on the table early on, secure the par- ticipation of the public, and determine the roles and involvement of agencies and other entities. A scoping meeting with all interested parties is generally held. The project sponsor should make it clear that the pur- pose of the meeting is not to identify an alternative but rather to map out the overall Alternatives Analysis ef- fort. Attendees are encouraged to get on mailing lists or citizen advisory groups. It is important to document the meeting. Out of this effort a work plan or road map is finalized to guide the Alternatives Analysis process. (iii) Development of Alternatives and Analysis Meth- odologies.—FTA guidance indicates that in addition to the build alternative, alternatives evaluated in an al- ternative analysis should include a no-build alternative, at least one TSM alternative, and a number of build alternatives that represent a range of reasonable re- sponses to the transportation problem or opportunity at issue. The TSM alternative is often described as the best improvements that can be undertaken in a corridor absent a major capital improvement. It is also important to distinguish the alternatives reviewed during Alternatives Analysis from the alter- natives used for the environmental process and those used by FTA for purposes of New Starts project evalua- tion (see below). (iv) Analysis and Refinement of Alternatives.—As work progresses, broadly identified capital costs lead to more accurate estimates based on consistent assump- tions across all alternatives. FTA has detailed and lengthy guidance on a range of factors and issues to be addressed during the process, including organization and management, definition of alternatives, definition of capital costs, operating and maintenance costs, methods for travel forecasting, estimation of socioeco- nomic and environmental impacts, financial planning for transit, and evaluation of alternatives.79 (v) Environmental Requirements—Timing of Envi- ronmental Impact Statement—As Part of Alternatives Analysis or Not.—There are fundamentally two options as to when to start the environmental review process. Preparation of an Environmental Impact Statement (EIS) is discussed below. A local project sponsor must decide whether to prepare its environmental documents concurrent with and merged into the Alternatives Analysis study (often called AA/DEIS (Draft EIS)) or whether the Alternatives Analysis planning should be done before the environmental review process. FTA guidance has information on these two options, and the local project sponsor should consult with FTA as it considers this issue. In general, completion of Al- ternatives Analysis before the environmental review process makes sense when there are a broad range of potential solutions to the identified transportation cor- ridor issues not generally constrained by development and density patterns—including mode, technology, and alignment. Alternatives Analysis would lead to a more sharply focused corridor improvement. In contrast, addressing Alternatives Analysis as part of the environmental review process makes sense when development and density patterns limit technology and alignment alternatives and alternatives are more sharply focused at the outset. B. Metropolitan Planning Process The development of a major transportation project does not occur in a vacuum, but rather is done as part of the metropolitan transportation planning process. Indeed, for 40 years Congress has mandated that feder- ally-funded transit and highway projects must derive from metropolitan and statewide transportation plan- ning processes.80 At the metropolitan level, planning is done through an MPO, a transportation policy-making body com- prised of representatives of local government and local transportation agencies. Under federal legislation from the 1970s, an MPO is required for any urbanized area with a population greater than 50,000. Each urbanized area over 200,000 in population is designated a trans- portation management area with additional planning responsibilities. The cornerstone of the transportation planning process is that it shall be “continuing, coop- 79 FED. TRANSIT ADMIN., PROCEDURAL AND TECHNICAL METHODS FOR PROJECT PLANNING, FRAMEWORK FOR ALTERNATIVES ANALYSIS, available at www.fta.dot.gov/planning/newstarts/planning_environment_30 10.html. 80 49 U.S.C. § 5303–5306, 23 U.S.C. § 134–135.

15 erative, and comprehensive.”81 MPOs often have addi- tional responsibilities under state law. Planning literature identifies five core functions of an MPO:82 Establish a setting. The MPO should establish and manage a fair and impartial setting for effective re- gional decision-making in the metropolitan area. Identify and evaluate alternative transportation im- provement options. The MPO uses data and planning methods to generate and evaluate alternatives. Plan- ning studies and evaluations are included in the Uni- fied Planning Work Program. Prepare and maintain a Metropolitan Transportation Plan (MTP). The MPO develops and updates a long- range transportation plan for the metropolitan area covering a planning horizon of at least 20 years that fosters 1) mobility and access for people and goods, 2) efficient system performance and preservation, and 3) good quality of life. Develop a Transportation Improvement Program. The MPO develops a short-range (4-year) program of transportation improvements based on the long-range transportation plan. The Transportation Improvement Plan (TIP) is designed to achieve the area’s goals, using spending, regulating, operating, management, and fi- nancial tools. Involve the public. Finally, the MPO is to involve the general public and other affected constituencies in the four essential functions listed above. FTA and FHWA encourage the linking of the trans- portation planning, project development, and environ- mental processes. Indeed, the transportation planning regulations include an appendix on linking the plan- ning and environmental processes. Appendix A to 23 C.F.R. Part 450 (“Planning Assistance and Standards”) is titled, “Linking the Transportation Planning and NEPA Processes.” It provides in pertinent part that “[w]hen the NEPA and transportation planning proc- esses are not well coordinated, the NEPA process may lead to the development of information that is more appropriately developed in the planning process, result- ing in duplication of work and delays in transportation improvements.”83 Note that the Alternatives Analysis phase is com- pleted only when local and regional decision-makers choose a locally-preferred alternative, and it is adopted by the MPO into the region’s financially constrained and conforming long-range transportation plan and TIP. 81 49 U.S.C. § 5303(c)(3). 82 FED. HIGHWAY ADMIN. & FED. TRANSIT ADMIN., THE TRANSPORTATION PLANNING PROCESS, KEY ISSUES: A BRIEFING BOOK FOR TRANSPORTATION DECISIONMAKERS, OFFICIALS, AND STAFF 4 (2007), available at http://www.planning.dot.gov/documents/briefingbook/bbook.ht m. 83 See 23 C.F.R. pt. 450, app. A (“Linking the Transportation Planning and NEPA Processes”) (2008). C. The Environmental Process/Distinguishing EIS Alternatives From Alternatives Analysis Every federal transit capital grant is subject to envi- ronmental review under NEPA,84 which requires a fed- eral agency undertaking a “major federal action” to ad- dress its impact on the human and natural environment. A number of routine federal transit grants may be “categorically excluded” from detailed environmental analysis. In addition, for some projects an Environmental Assessment may be sufficient to sat- isfy NEPA. After it is conducted, FTA may make a Finding of No Significant Impact (FONSI) if a project has no significant impact on the environment, in which case a comprehensive environmental review would not be necessary. An example of such a project in the New Starts context would be a commuter rail project on ex- isting freight rail lines where train frequencies would be increased only marginally. But most New Starts pro- jects will be subject to a comprehensive environmental review in the form of an EIS that reviews the impacts of the proposed project and its alternatives on a commu- nity and its natural environment. The EIS focuses on a range of impacts, including air and water quality, noise and vibration, historic and cultural properties, parklands, contaminated lands, traffic, displacement of residences and businesses, and community preservation. While the EIS is a federal process, most states have state or local environmental laws and these are usually considered as part of and at the same time as the Federal EIS. It is important to emphasize that the federal agency FTA is the lead agency responsible for the EIS, yet since the project to be funded is a local one, a federal agency is able to rely on the project sponsor to play a significant role in the development of the EIS. Note, moreover, that SAFETEA-LU included a number of provisions designed to improve the environmental re- view process and coordination by providing for the inte- gration of environmental considerations early on in the transportation planning process to avoid duplication and delay later in the process. These provisions have been incorporated into the FTA/FHWA joint Final Rule on Environmental Impact and Related Procedures is- sued on March 24, 2009.85 Note, moreover, that Section 6002 of SAFETEA-LU establishes a 180-day statute of limitations on claims against FTA or FHWA and other federal agencies for certain environmental and other approval actions. Such a statute of limitations applies to a permit, license, or approval action by a federal agency if the action relates to a transportation project, and a statute of limitations notification is published in the Federal Register an- nouncing that a federal agency has taken an action on a transportation project that is final under the federal law pursuant to which the federal action was taken. If no such notice is published, the period for filing claims is not shortened from what is provided by other parts of 84 42 U.S.C. § 4321 et seq. 85 74 Fed. Reg. 12518 (Mar. 24, 2009).

16 federal law. If other federal laws do not specify a stat- ute of limitations, a 6-year claims period applies. 86 A general comment is needed here about the differ- ences in the alternatives reviewed under Alternatives Analysis, the EIS process, and for purposes of the New Starts criteria. First, the EIS may have a smaller range of alternatives than those considered in Alternatives Analysis. The Alternatives Analysis process, after all, is analyzing transportation solutions for a particular met- ropolitan corridor and should include consideration of a range of possible solutions, including a no-build alter- native and, in many cases, highway alternatives. In contrast, the EIS process analyzes a proposed project’s impact on the human and natural environment. Conse- quently, the no-build alternative plays an important role in the EIS process and may be seen as the baseline against which build options can be measured for their impact on the environment. In contrast to the EIS proc- ess, while a no-build alternative should be considered, the TSM alternative plays a key baseline role in Alter- natives Analysis since it represents the best that could be done without building a fixed guideway system and plays a critical comparative or baseline role for build alternatives. Then comes FTA’s approval of a local New Starts Baseline Alternative when a project is approved to en- ter into PE. This Baseline Alternative is derived from the Alternatives Analysis process and is used for com- parative purposes in the New Starts project evaluation process to establish the incremental costs and benefits of the proposed project. A project is not compared to a “no build” alternative under the New Starts criteria, but rather to the best a transit system could be in the absence of a new fixed guideway system—usually, the TSM alternative. The New Starts Baseline Alternative could be, and often has been, the TSM alternative. But FTA has been criticized over the past few years for re- quiring a New Starts Baseline Alternative that is unre- alistically robust and more than the TSM alternative and that is unlikely to be implemented locally if the new fixed guideway project is not constructed. FTA has contended that such a robust New Starts Baseline Al- ternative is necessary to “level the playing field” for all projects and to accurately quantify the costs and bene- fits of the New Starts proposed project. Given the criti- cism about this approach, however, it is likely that FTA will be reviewing it. 1. FTA Issues Federal Register Notice of Intent A draft EIS is prepared when FTA determines that the action is likely to cause significant impacts on the environment. The first step is the publication of a No- tice of Intent in the Federal Register; a project sponsor is expected to announce the intent at the local level through appropriate means as well.87 86 Id. at 12530. 87 23 C.F.R. pt. 771. The regulations prescribing the polices and procedures of the FTA for implementing NEPA are pub- lished jointly with FHWA. 2. Scoping Process Publication of the notice of intent triggers the start of allowing the public and federal, state, and local agen- cies and entities an opportunity to identify issues to be addressed in the EIS. 3. Draft EIS: Key Federal Issues88 Air Quality—In addition to meeting the require- ments of NEPA, a New Starts project also must meet Clean Air Act requirements. “Conformity” is a key term in this regard; in nonattainment or maintenance areas, a federally-funded transit project must conform to its state’s air quality implementation plan. Regulations have been promulgated by the EPA.89 FHWA has de- tailed information on the conformity process on its Web site. Endangered Species.—Rare animal and plant species and their habitats are protected under the Endangered Species Act of 1973.90 The programs are coordinated by the Department of Interior’s Fish and Wildlife Service or the Department of Commerce’s National Marine Fisheries Service within the National Oceanic and At- mospheric Administration. During the preparation of the draft EIS, FTA should consult with those two services to see if the New Starts project may affect or is likely to jeopardize a species listed, or proposed, as endangered or designated critical habitat. The two services should be contacted during the environmental scoping process. Environmental Justice.—Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, was issued in February 1994. The Council on Environ- mental Quality oversees compliance with the Executive Order; the Order also directs federal agencies to estab- lish their own procedures implementing the Order. USDOT issued its Order implementing the Executive Order in April 1995.91 Essentially, issues of environ- mental justice are to be assessed during the EIS proc- ess, and include identifying minority or low-income populations to be affected by the project and its impact on health or environmental factors of the populations. Public participation in the affected areas is called for. If a disproportionate and adverse environmental impact is identified, detailed analysis may be required, and alter- natives and mitigation factors should be considered. Floodplains.—Executive Order 11988, Floodplain Management, directs federal agencies to avoid support- ing actions on a floodplain. A USDOT Order92 requires 88 FED. TRANSIT ADMIN., PLANNING AND ENVIRONMENT, ENVIRONMENTAL RESOURCE INFORMATION, available at http://www.fta.dot.gov/planning/planning_environment_5222.h tml. 89 40 C.F.R. pt. 93. 90 16 U.S.C. § 1531. 91 62 Fed. Reg. 18377 (Apr. 15, 1997). 92 U.S. DEP’T OF TRANSP., DOT ORDER 5650.2, FLOODPLAIN MANAGEMENT AND PROTECTION (Apr. 23, 1979), available at

17 detailed analysis in an EIS of any action located within a floodplain. If a locally preferred alternative is to be in a floodplain, FTA must find that it is the only practica- ble alternative and must document actions to avoid or reduce adverse impacts on the floodplain. Hazardous Materials and Brownfields.—The con- struction of a New Starts project may involve some in- teraction with a contaminated site. It is important in the process to identify the site early on, evaluate its condition and, if necessary, remediate any hazardous materials. There are a number of federal laws in this area, including the Comprehensive Environmental Re- sponse, Compensation, and Liability Act (or Superfund), Resource Conservation Recovery Act, Oil Pollution Act, and the Underground Storage Tank program. Brownfields are abandoned or underused properties affected by real or perceived contamination. The EPA has an initiative to provide funding and help to states and localities to clean up and reuse brownfield sites. USDOT encourages transportation projects to use and redevelop contaminated sites where appropriate. During the EIS process, sites are subject to a pre- liminary assessment to determine if they have been identified as a hazardous waste site. If further investi- gation is warranted, a Site Inspection is done for sites with a good probability to qualify to be on the National Priority List of the most serious sites. If listed, a reme- dial investigation/feasibility study is done at the site. Ultimately, a Record of Decision (ROD) describes which alternative will be used to clean up a site. Historic, Archeological, and Cultural Resources— The National Historic Preservation Act of 196693 re- quires federally-funded projects to consider the effects on any properties listed, or eligible for listing, on the National Register of Historic Places, and the Advisory Council on Historic Preservation is provided an oppor- tunity to comment on the project. Archeological sites are also protected under this Act. Navigable Waterways and Coastal Zones.—A New Starts project that affects navigable waterways is sub- ject to permitting and review under a number of stat- utes including the River and Harbor Act of 1899.94 If this permitting is triggered, then consultation also would be required with the U.S. Fish and Wildlife Ser- vice under the Fish and Wildlife Coordination Act.95 If a state has an approved Coastal Zone Manage- ment Program under the Coastal Zone Management Act of 197296 and the New Starts project will affect the coastal zone, the EIS must show whether the project is consistent with the Coastal Zone Management Pro- gram. http://www.fta.dot.gov/planning/environment/planning_environ ment_2237.html. 93 Pub. L. No. 89-665, 16 U.S.C. § 470. Codified at 36 C.F.R. 800. 94 33 U.S.C. § 401. 95 16 U.S.C. § 661 et seq. 96 16 U.S.C. § 1451 et seq. Noise and Vibration— A key concern often expressed about a proposed transit New Starts project is what impact it will have on a community in terms of noise and vibration. For that reason, FTA has a lengthy guid- ance manual, Transit Noise and Vibration Impact As- sessment97 on its Web site. The manual presents proce- dures for predicting and assessing the noise and vibration impacts of proposed New Starts projects and also addresses ways to reduce excessive noise and vi- brations caused by projects. The manual’s preface notes that, while it is designed primarily for acoustics profes- sionals who conduct the analyses as part of the EIS process, it is written for a broader audience. Parklands/“4(f)”.—A transportation project or pro- gram cannot use land from historic sites or publicly- owned parks, recreation areas, and wildlife and water- fowl refuges unless there is no prudent and feasible alternative to using that land and unless the project includes all possible planning to minimize harm to the land or resources.98 If “Section 4(f)” property is to be used for a New Starts project, considerable documentation must be developed to show why the alternatives to the project were not chosen. Social and Economic Impacts.—A transit project, particularly a New Starts project, can shape and change a community. Witness the transit-oriented development in Northern Virginia around Metro stations. These im- pacts also must be addressed in the EIS process. FTA guidance categorizes and subdivides these broad im- pacts into land acquisition, community impacts, land use and development, economic impacts, and safety/security. Land Acquisition.—FTA may approve some land ac- quisition before the environmental process has been completed, but no project development may occur until the NEPA process has been completed. Environmental documents should contain descriptions of land to be acquired for a project, along with discussion of any per- sons or businesses to be displaced. Such displacement is governed by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 197099 and its implementing regulations.100 Community Impacts.—The EIS process should ad- dress the impact the project will have on the community and ways to minimize or mitigate such impacts. Changes in population density, land use patterns, and 97 FED. TRANSIT ADMIN., TRANSIT NOISE AND VIBRATION IMPACT ASSESSMENT (1995), available at http://www.fta.dot.gov/documents/FTA_Noise_and_Vibration_ Manual.pdf. 98 49 U.S.C. § 303. Section 4(f) of the Department of Trans- portation Act of 1966 was recodified without substantial change at 49 U.S.C. § 303 but continues to be referred to as “Section 4(f).” 99 42 U.S.C. § 4601, ch. 61; Pub. L. No. 91-646, 84 Stat. 1894. 100 49 C.F.R. pt. 24 (2008).

18 access to services are some of the elements to be consid- ered here. Land Use and Development.—A part of the statutory justification for a New Starts project is that the “Secre- tary shall—(A) determine the degree to which the pro- ject is consistent with local land use policies and is likely to achieve local developmental goals….”101 Thus, the project needs to include maps showing existing and planned land use, and the extent to which the project would be consistent with such local land use. To the extent that it would not be consistent with local land use, the reasons why and documentation of measures to mitigate any adverse impacts should be presented. Economic Impacts.—New Starts projects typically are large and significant and thus have considerable economic impacts in terms of displaced businesses, re- gional construction costs, and the like. A detailed eco- nomic impact analysis should be included in the EIS. Safety and Security.—It is important to show that safety and security issues are considered early in the process of New Starts project development and in the EIS, including traffic and pedestrian hazards caused by the project and rider and employee security issues. Visual Impacts.—A large-scale New Starts project will have a visual effect on a community and its envi- ronment, and this should be considered in the EIS. In addition, FTA has a Circular on Design and Arts in Transit Projects102 that encourages design and artistic considerations in transit projects. Transportation Impacts/Traffic.—It is axiomatic that a New Starts project will affect transportation in a community, and this needs to be addressed as part of the EIS. FTA looks particularly to impacts on transit— how existing transit will be affected by a New Starts project, for example, among other impacts, and how traffic patterns will be affected, as well as the impact on parking (the availability and location of parking spaces, for example). Water Quality.—A transit project can affect water quality by affecting drainage patterns or increasing runoff. Further, if wastewater is discharged into a storm system as a result of the project, a permit may be required under the National Pollutant Discharge Elimination System created under Section 402 of the Clean Water Act.103 Wetlands.—If a New Starts project could affect a wetlands area, a USDOT Order on Preservation of the Nation’s Wetlands applies.104 This possibility alone could require an EIS, so the assessment of any impacts 101 49 U.S.C. § 5309(e)(4)(A). 102 Design and Art in Transit Projects (1995), available at http://ntl.bts.gov/DOCS/9400-1.html. 103 33 U.S.C. § 1342. 104 U.S. DEP’T OF TRANSP., DOT Order 5660.1A, Preservation of the Nation’s Wetlands (Aug. 24, 1978), available at http://nepa.fhwa.dot.gov/ReNEPA/ReNepa.nsf/docs/6749292D9 8E3C0CD85256FE400731ADF?opendocument&Group=Natura l%20Environment&tab=REFERENCE. needs to be done and measures must be taken to mini- mize adverse impacts. 4. The Draft EIS The draft EIS affords an opportunity for governmen- tal agencies and the public to review a project proposal and alternatives. It should include a discussion of the purpose and need for action, a review of alternatives and the proposed project, and a review of the affected environment and environmental consequences. It is important to discuss with FTA staff the alternatives to be reviewed for environmental purposes and their rela- tionship to and interaction with the alternatives re- viewed as part of the Alternatives Analysis. Recall that NEPA deals with the impacts of alternatives on the human and natural environment; Alternatives Analysis deals with impacts on the transportation corridor. Upon preparation by the project sponsor, the draft EIS is usually submitted to the FTA Regional Office for final edits and comments before publication. The draft EIS is then signed by the FTA Regional Administrator and the authorized official of the local lead agency, of- ten a transit agency. It is then filed by FTA with the EPA and made available locally by the local lead agency. A notification of availability of the draft EIS is pub- lished by the FTA in the Federal Register. In addition, the draft EIS is circulated to affected federal agencies and other interested parties. There must be a circulation of the draft EIS for at least 45 days, and a public hearing on it must be held with at least 15 days’ notice. The applicant shall pre- pare a report identifying a locally preferred alternative at the conclusion of the draft EIS review period.105 D. Completion of Alternatives Analysis Phase The Alternatives Analysis phase is completed when local and regional decision-makers choose a locally- preferred alternative from among the evaluated alter- native strategies and it is adopted by the MPO into the region’s financially-constrained and conforming long- range transportation plan.106 E. Submit Request to FTA to Proceed to Preliminary Engineering—FTA Checklist As noted earlier, FTA has checklists for each stage of project evaluation, including one for submittals to FTA to enter PE.107 The checklist covers four broad catego- ries: Alternatives Analysis; Project Management Plan; New Starts Templates, Certifications, and other Re- ports; and Administrative Requirements. It is a very 105 23 C.F.R. § 771.123(j) (2008). 106 49 U.S.C. § 5309(a)(1)(C) and (D). 107 FED. TRANSIT ADMIN., NEW STARTS PROJECT PLANNING AND DEVELOPMENT CHECKLIST OF PROJECT SPONSOR SUBMITTALS TO FTA TO ENTER PRELIMINARY ENGINEERING (2008), available at www.fta.dot.gov/planning/newstarts/planning_environment_21 8.html.