Guidebook for Intercity Passenger Rail Service and Development (2016)

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34 In the United States, environmental law and policy is guided by NEPA, subsequent amendments to NEPA, and executive orders, which combined require an environmental review process for all federal actions. Federal actions include transportation projects that receive grant or loan funding through federal programs or projects that require permits or regulatory approval from federal agencies. In general, the purpose of the environmental review process is to identify and evaluate the environmental impacts of a proposed action (e.g., an intercity passenger rail project) against feasible alternative actions (e.g., alternative investment) and a no-build or no-action alternative. Identification of environmental impacts and potential measures necessary to mitigate adverse effects is also required. The environmental review process also enables public agencies and other affected entities to comment on proposed actions. Finally, public involvement in the environmental review process enables citizens to provide input on proposed alternatives, ensuring all affected populations can contribute to developing intercity passenger rail projects. FRA is responsible for implementing federal environmental laws and policies related to the nation’s railroads. Most projects and activities supporting intercity passenger rail service and development in the United States are likely to require some level of environmental review. The process for conducting an environmental review for actions under FRA jurisdiction is described in FRA’s Procedures for Considering Environmental Impacts (FRA 1999), available on FRA’s website. This chapter summarizes FRA environmental review requirements and documentation options, key resources for identifying and analyzing the environmental impacts of proposed intercity pas- senger rail projects, and approaches for public involvement and interagency coordination in the environmental review process. Overview of the FRA Environmental Review Process The FRA environmental review process is described in the agency’s Procedures for Consider- ing Environmental Impacts, published in the Federal Register on May 26, 1999 (FRA 1999). The procedures describe the environmental analysis and documentation required for sponsors of intercity passenger rail projects to comply with federal environmental laws and regulations. This section describes the documentation required for compliance with FRA environmental regula- tions and provides guidance on implementing the environmental process for intercity passenger rail service and development activities. Documentation Options for Environmental Compliance FRA environmental procedures outline three types of outcomes that could result from the environmental review process: categorical exclusion (CE), environmental assessment (EA), C h a p t e r 4 Planning: Environmental Requirements

planning: environmental requirements 35 or EIS. Each type of action has a specific set of documentation requirements, which must be approved by FRA prior to implementing a proposed action. Categorical Exclusion (CE) A categorical exclusion is a designation assigned to a specific type of action that has been determined to not have a significant effect on the human environment. Categories of actions defined as CEs and can be processed as such are listed in the FRA environmental impacts procedures. Actions that may qualify as CEs include administrative and design activities, improvements or maintenance of existing rail equipment and facilities, acquisition of rolling stock, and other work activities performed within existing railroad ROW. Guidance and documentation requirements for processing actions as CEs can be found on the FRA website. However, FRA notes that actions that may qualify as CEs based on the environmental procedures may not be eligible to be processed as CEs if significant environmental impacts may result from the action (FRA 1999). Environmental Assessment (EA) For a project not classified as a CE, the project sponsor is required to prepare an environmental assessment. An EA is a preliminary evaluation of the environmental impacts of a proposed project and identification of any adverse effects. Upon preparation, the EA is submitted to FRA for review. If FRA determines that a proposed project has no significant environmental impacts or if appro- priate mitigation measures are incorporated into the project to deal with any adverse effects, the EA will serve as the basis for a finding of no significant impact (FONSI) to be issued by FRA, allowing for the project to be executed. Environmental Impact Statement (EIS) If an EA determines that a proposed project is likely to result in significant or adverse environ- mental impacts, the project sponsor will be required to prepare an EIS for the proposed project. An EIS is a comprehensive document that identifies all foreseeable environmental impacts and proposed mitigation strategies for adverse effects and documents all public involvement activities. The FRA environmental procedures state that an EIS should be prepared for all major FRA actions significantly affecting the quality of the environment. The procedures further note that any construction of new major railroad lines or new major facilities or any change that will result in a significant increase in traffic normally requires preparation of an EIS. Upon completion of an EIS, FRA will issue a record of decision (ROD) approving the content of the EIS and the proposed plan to mitigate the adverse effects. Similar to a FONSI, the ROD authorizes a project sponsor to implement the project as described in the ROD. Implementing the Environmental Analysis Process Any investment in new or existing intercity passenger rail service will likely require some level of environmental review. The scope of the environmental analysis for intercity passenger rail service development depends on the magnitude of the proposed service and the number of individual projects necessary to implement the proposal. To assist project sponsors with imple- menting an appropriate level of environmental analysis, FRA distinguishes between two levels of analysis: a service-level NEPA analysis and a project-level NEPA analysis (FRA 2009). For large-scale transportation projects, including intercity passenger rail service development initia- tives, the environmental analysis is typically implemented in the form of a tiered approach with service-level analysis followed by project-level analysis, allowing for the studies to be undertaken in more manageable phases (FRA 2009).

36 Guidebook for Intercity passenger rail Service and Development Service-Level NEPA Analysis A service-level NEPA analysis considers broader questions related to the role of passenger rail in an intercity corridor and the associated environmental impacts. Typically, a service-level NEPA analysis will examine alternatives for the type of service(s) being proposed, including cities and stations served, route alternatives, service levels, operation types (speed and motive power), ridership projects, and major infrastructure investments needed to implement different service options. A service-level NEPA is appropriate for large corridor programs where the role of pas- senger rail in an intercity corridor and the operational strategy to achieve certain outcomes related to the role of passenger rail needs to be defined. A service-level NEPA analysis will also identify the individual infrastructure projects needed to implement different levels of rail service but will not evaluate the environmental impacts of such projects in great detail. A service-level NEPA analysis may take the form of an EA or an EIS. Furthermore, FRA determines that a service-level NEPA analysis may be implemented as a Tier 1 environmental analysis for large corridor programs where the environmental issues are too large or complex to be addressed in one document or the program is multiphase or future phases are unknown (FRA 2009). Project-Level NEPA Analysis A project-level NEPA analysis considers the environmental impacts of implementing a spe- cific project associated with developing intercity passenger rail service in a particular location. The project-level analysis focuses on the detailed environmental impacts of projects and can be documented as an EA, EIS, or CE. A project-level NEPA analysis is typically conducted only after a service-level NEPA analysis has been completed, affirming the role and direction of intercity passenger rail in a particular corridor. A project-level NEPA analysis is typically equivalent to a Tier 2 environmental analysis document. A Tier 2 environmental study may address project- level issues for a series of projects for an individual corridor project; however, each project must be addressed with the necessary detail to allow FRA to reach a decision about the environmental impacts of each action. Table 4-1 provides additional details comparing the service-level and project-level NEPA analyses. Typical Content of an EA or EIS The typical content of an EA or EIS is outlined in the FRA environmental analysis procedures. Key elements of the EA or EIS content include the following: • Statement of the purpose and need for the project. The purpose and need statement should address the rationale for pursuing the project. The purpose and need for a project may be linked to the project’s contribution toward achieving certain stated goals for intercity passenger rail (e.g., this project will support reliable passenger train operations by improving on-time performance and reducing delays). Numerical analysis may also be presented in the purpose and need (e.g., this project is expected to improve on-time performance from 70% to 80% in the corridor). • Description of all reasonable and feasible alternative courses of action that could satisfy the purpose and need as defined previously. Final environmental documents should state which alternative is the proposed action. Alternatives that should be examined include alternative routing for passenger trains (including new ROW) and alternatives not currently within FRA authority (e.g., highway projects). The no-build alternative, incorporating relevant projects already programmed, should also be included. • Description of the affected environment, including a list of all states, counties, and metropolitan areas likely to be affected by the proposed action. • Analysis of the environmental impacts of the proposed action, all possible alternative actions, and the no-action alternative. This analysis should be conducted for all alternatives, even if

planning: environmental requirements 37 Service-Level NEPA Project-Level NEPA What are the possible FRA decision documents? EA 1. Finding of No Significant Impact (FONSI) or 2. EIS required if significant impacts identified 1. Finding of No Significant Impact (FONSI) or 2. EIS required if significant impacts identified EIS Record of Decision (ROD) ROD CE N/A Approval by FRA typically through worksheet. What steps are generally required to complete service or project NEPA documents? Note: Combined service-project NEPA documents require completing all steps. Planning and Project Development Completion of a Service Development Plan (SDP) including • Rail service alternatives and preferred type • Route alternatives stations • Service levels/ frequencies • Capital project needs • Ridership/revenue forecasted • Operating costs estimated Preliminary project description and purpose and need statement including • Project location and site • Specific improvements • Cost estimates and operating concept • Project design options Engineering Conceptual engineering to approximately 5% related to the SDP and supporting programmatic environmental analysis Preliminary engineering to 30% and a full project description required to support site-specific environmental analysis Environmental Analysis Landscape-level data collection and impact analyses are required. Overall air and noise effects from train operations are considered Site-specific impact analysis and field work support full compliance with NEPA and other laws and provide for permits Public Involvement Process Permitting agency involvement may be limited for Tier 1 documents. Permitting agencies should be informed of the preparation of the Service NEPA document. Public circulation of a Service NEPA document may be required prior to an FRA decision. For Service EAs this may occur beyond the application date, which may delay a selection decision. Extensive early and continuing permitting agency involvement is necessary to ensure that Project NEPA will support permit issuance, including historic preservation Section 106, Endangered Species Act, and Clean Water Act permitting. EAs for large projects or controversial actions require public circulation. Table 4-1. Details of service-level and project-level NEPA analyses (Federal Railroad Administration 2009). only to state that no impact is expected. Additional details on the effects considered in an environmental analysis for intercity passenger rail projects can be found in the following section. • Description of the public involvement process undertaken, including a list of the agencies and organizations contacted, a description of the public hearings/meetings conducted, and a detailed description of how the project sponsor addressed the comments received during the public involvement process. Environmental Impacts Analysis One critical element of the environmental analysis process for intercity passenger rail service development projects is the analysis of environmental impacts expected to result from the proposed action and any alternative actions. FRA’s Procedures for Considering Environmental Impacts provides

38 Guidebook for Intercity passenger rail Service and Development an exhaustive list of the specific effects to be considered as part of an environmental analysis (FRA 1999). These effects include the following: • Air quality • Water quality • Noise and vibration • Solid waste disposal • Ecological systems • Impacts on wetland areas • Impacts on endangered species • Flood hazards and floodplain management • Coastal zone management • Use of energy resources • Use of other natural resources (e.g., water, minerals, or timber) • Aesthetic and design quality impacts • Impacts on transportation • Possible barriers to the elderly and handicapped • Land use, existing and planned • Impacts on the socioeconomic environment • Environmental justice • Public health • Public safety, including any impacts due to hazardous materials • Recreational opportunities • Locations of historic, archeological, architectural, or cultural significance • Use of Section 4(f)-protected properties (e.g., public parks, refuges) • Construction period impacts Analysis of environmental impacts typically includes an identification of the affected environ- ment (i.e., the location of the impacts), the environmental consequences (i.e., the impacts), and proposed mitigation. The analysis of environmental impacts for an intercity passenger rail project should be focused on the areas of significant impact, including beneficial and adverse effects, direct and indirect effects, and the cumulative effect of these effects in the short and long term. Additional considerations for identifying and analyzing specific effects are summarized as follows: • Noise and Vibration. The alternatives should be assessed with respect to applicable federal, state, and local noise and vibration standards. FRA has published guidance and software tools for analyzing the noise impacts of rail operations. FRA noise models require a basic operating plan (train speed, frequency, number of locomotives and train cars) as input. This information would likely be obtained from the details of the alternatives or from a service development plan. • Impacts on Transportation. Environmental analysis should assess the effects of rail develop- ment on both passenger and freight transportation by all modes incorporating local, regional, national, and international perspectives as appropriate. Effects during the construction period and long-term effects on vehicular congestion should also be discussed. Estimates of such effects developed during the ridership forecasting process should be used to estimate the effects on vehicular congestion resulting from mode shifts from personal vehicle to passenger rail. For improvements on existing rail service routes, passenger surveys can be used to establish the percentage of passengers diverted from automobile and estimate the resulting congestion impacts. • Socioeconomic Environment. The effects on jobs, including the number and kinds of available jobs likely to be affected by each alternative, should be assessed. Also discussed should be the

planning: environmental requirements 39 potential for community disruption or cohesion, the possibility of demographic shifts, and effects on local government services and revenues. • Environmental Justice. Environmental analyses should address environmental justice con- siderations as required by Executive Order 12898 (EPA 2014) and the USDOT Order on Environmental Justice (FHWA 2012). The analysis should consider if the adverse effects of passenger rail projects are disproportionately borne by certain population groups protected by environmental justice regulations. However, these population groups may also be the benefi- ciaries of passenger rail service improvements; this should also be noted in the environmental justice analysis. Public Involvement in the Environmental Review Process Public participation in the environmental review process helps ensure that decisions are made in consideration of and to benefit public needs and preferences. FRA environmental procedures state that citizen involvement is encouraged at every stage of the environmental analysis of a proposed FRA action (FRA 1999). A public involvement program supporting the environmental analysis of a proposed intercity passenger rail project should be wide enough in scope to allow all affected parties (e.g., public agencies, organizations, and the general public) adequate oppor- tunity to review and provide comment on draft environmental documents. Project sponsors should work with FRA to identify a list of parties who may be affected by the project. This list should include federal, regional, state, and local public authorities; environ- mental groups; businesses; and labor and community organizations that may have an interest in the project. Draft environmental documentation (EA or EIS) should be formally circulated to the complete list of affected parties. The draft documents should be posted to the sponsoring agency’s website and provided as hard copies in local libraries in the affected area. Availability of the draft documents should be widely publicized by way of an official agency press release and advertisements in local newspapers of general circulation. In addition to circulating and promoting public feedback on draft environmental documents, it is typical practice for environmental studies to include one or more public hearings in which project sponsors present information about proposed projects and solicit public feedback. Public hearings provide additional opportunity for the general public to participate in the environmental process for intercity passenger rail projects, particularly in locations where the general pub- lic may not have been able to access information about the proposed projects through other mechanisms. Public hearings are typically held in locations near the affected project area at times convenient to attract a strong level of participation (e.g., evening hours). Announcements promoting the details of public hearings should be distributed through the same channels as notifications about the availability of draft environmental documents discussed above. Addi- tionally, the draft environmental documents should be available to the public for at least 30 days before the hearings. At a minimum, state-level practices for public involvement in the environ- mental analysis process must always be followed. Project sponsors should use various strategies to involve the general public in the environ- mental analysis process for intercity passenger rail service development projects. Innovative public involvement techniques include • Use of agency social media outlets to circulate information and promote participation in public hearings and meetings • Outreach in languages common among the population living in the affected area • Development of web-based content to provide information and feedback mechanisms as part of a virtual public meeting concept

40 Guidebook for Intercity passenger rail Service and Development Additional information on public involvement practices for environmental analysis can be found in a comprehensive report on public involvement techniques published by FHWA’s Transportation Planning Capacity Building Program (USDOT n.d.). Comments and feedback received through the public involvement process should be reported in the environmental docu- mentation, and project sponsors should state how comments were addressed in the final docu- mentation. Environmental documentation should also include a list of the public agencies and private organizations consulted in the process, as well as a list and summary of the public hearings and meetings conducted. Interagency Coordination Intercity passenger rail projects will involve a wide collection of local, state, and federal agencies throughout the project life cycle. Good interagency coordination can unify the project vision and identify potential arrangements, financial requirements, and planning and development activities needed to achieve the vision. The following sections briefly discuss the agencies that may be involved with intercity passenger rail projects. Coordination with Other State Agencies A comprehensive, coordinated state rail planning effort is important in providing initial coordination among state, regional, and local agencies. Usually undertaken by the rail planning entity within the state DOT, the SRP and rail plan activities serve as an opportunity to identify projects and develop relationships among agencies likely to be involved in project development and operations. Coordination should also occur with the state agency in charge of addressing highway-rail grade crossing safety. Intercity passenger rail station development and operation often involves the local communities in which the stations are located. Depending on the particular project, additional state or local agencies (e.g., relating to environmental or historic preservation) may be involved. Finally, intercity passenger rail services that cross state boundaries necessitate coordination with adjacent states and/or agencies that represent multiple states. Coordination with Federal Agencies Sponsors of new intercity rail service should take care to engage with all federal agencies with clear or potential jurisdiction over a project so that communication protocol is defined early in the development process and to avoid late-stage, unexpected delays. Rail service sponsors should also be aware that policy differences with respect to NEPA compliance continue to exist between projects administered by FRA, FHWA, and FTA. Experience with one type of project (e.g., an FTA-funded rail commuter line) does not establish a direct precedent for an intercity passenger rail service project. FRA FRA is responsible for implementing federal environmental laws and policies on the nation’s railroads, which is a component of the many aspects of FRA’s active support for developing the nation’s intercity passenger rail system. In terms of passenger rail, the FRA Office of Railroad Policy and Development (1) provides financial assistance, quantitative analysis, environmental research, project reviews, research and development, and technical assistance and (2) supports development of intercity passenger rail policy (Federal Railroad Administration n.d.). Also, FRA states that as projects for new or improved passenger rail service advance through the planning stages, technical expertise and guidance is provided for systems, rail line, station, rolling stock design, and environmental documentation. The Office of Railroad Policy and Development

planning: environmental requirements 41 implements the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 as they relate to movement of passengers by rail in the United States (FRA 1999). FHWA Coordination with FHWA is likely to occur in relation to highway-rail grade crossings, where it provides (1) safety standards for the design of roadways at grade crossings and specifications for types and placement of traffic control devices and (2) administers the federal funding program for upgrading crossing warning systems and other safety measures. Surface Transportation Board (STB) During planning for a new railroad passenger service, it is essential to consult with STB staff. Although housed within USDOT, STB is a separate federal agency having general jurisdiction over construction, acquisition, operation, abandonment, or discontinuance of railroad trans- portation facilities and responsibility over some other surface transportation modes. STB’s rail jurisdiction exists regardless of whether the transportation is to occur among points in two or more states or entirely within one state. Accordingly, STB review of a new intercity passenger rail proposal should be sought in order to avoid a violation of law. STB is empowered to exempt certain rail transportation from its regulation. Such an exemption can be obtained if one of the following conditions is met: • Regulation is not necessary to carry out national transportation policy and the transaction or service is of limited scope. • Regulation is not necessary to protect (freight) shippers from market abuse. The final outcome of an exemption request depends on the specific facts, so the sponsor of a new passenger rail service should seek the services of a transportation attorney to process the matter with STB. Even when a new service obtains exemption from STB’s construction and operation requirements, the environmental impact of the proposed service must be analyzed. In many instances, FRA becomes the lead agency in the environmental review, with STB participating as a cooperating agency, rather than STB taking the lead role. As part of its final action on a pro- posal, STB often attaches conditions to avoid or minimize the potential adverse environmental consequences of the project or to lessen effects on freight rail transportation. The activities of STB are financed in part by the fees it charges for various types of filings and services. State DOT officials and passenger rail agency planners should be aware of these fees when considering overall costs of establishing an intercity passenger rail program. At the outset, some of the fees may seem high, so they should be taken into account when developing a project budget. Depending on the agency, legal costs (e.g., STB filing fees) may or may not be charged under the rail program of a specific DOT or passenger rail agency, but may instead be accounted for under general legal department fees. Examples of STB filing fees charged for railroad licensing functions follow: • Application for certificate authorizing the extension, acquisition, or operation of a line of railroad: $7,700. • Filing of notice of exemption: $1,900. • Filing of petition for exemption: $13,400. • Filing of application or a petition for exemption involving construction of a rail line: $79,700. The complete schedule of STB filing fees is contained in STB’s regulations (see Code of Federal Regulations (CFR) at 49 CFR §1002) and should be consulted before any filing is submitted. Given that these fees change over time, the most current CFR fee schedule should be referenced

42 Guidebook for Intercity passenger rail Service and Development before any STB filing. STB does not charge for brief, informal inquiries. However, it has a schedule of fees for record search, review, copying, certification, and related searches. Consult 49 CFR §1002.1. In some situations, the charge depends on the grade level of the employee conducting the work. There also are exceptions (e.g., educational use or where disclosure of the item would contribute to the public understanding of the workings of government). Resources • FRA Southwest Multi-State Rail Planning Study. • NCRRP Report 5: Developing Multi-State Institutions to Implement Intercity Passenger Rail Programs. • NCRRP Project 07-03: Inventory of State Passenger and Freight Rail Programs. • NCHRP Report 657: Guidebook for Implementing Passenger Rail Service on Shared Passenger and Freight Corridors.