Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox (2018)

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P a r t 1 Guidebook

C o n t e n t s 9 Step 1 Frame the Project 10 1.1 Tolling Actions 10 1.2 Impact-Causing Aspects of Tolling Actions 11 1.3 Potential Adverse Direct and Indirect Effects 13 1.4 Context Considerations 16 1.5 Initial Identification of Environmental Justice Issues 16 1.6 Documentation of Step 1 19 Step 2 Identify the Applicable Requirements Governing Decisions 19 2.1 Regulations and Requirements Pertinent to Environmental Justice 27 2.2 Documentation of Step 2 28 Step 3 Recognize the Relevant Decision-Makers and Stakeholders 28 3.1 Roles and Responsibilities of Decision-Makers and Stakeholders 31 3.2 Documentation of Step 3 32 Step 4 Scope Approach to Measure and Address Impacts 34 4.1 Confirm the Study Area Boundaries 36 4.2 Select Process and Analytical Methods for Use in Steps 5 and 6 40 4.3 Identify Additional Information Needs 40 4.4 Engage Minority and Low-Income Populations in Scoping Steps 5 and 6 43 4.5 Documentation of Step 4 45 Step 5 Conduct Impact Analysis and Measurement 45 5.1 Impact Analysis Tools 46 5.2 Impact Severity and Magnitude 47 5.3 Documentation of Step 5 48 Step 6 Identify and Assess Mitigation Strategies 48 6.1 Assess Whether an Effect is Disproportionately High and Adverse 54 6.2 Evaluation 56 6.3 Response 61 6.4 Documentation of Step 6 62 Step 7 Document Results for Decision-Makers and the Public 62 7.1 Regulations and Requirements for Documentation 66 7.2 Documentation of Step 7 67 Step 8 Conduct Post-Implementation Monitoring 68 8.1 Who is Responsible for Monitoring 68 8.2 Objectives for Monitoring 68 8.3 Implement and Monitor Environmental and Community Commitments and Agreements 70 8.4 Metrics for Monitoring Performance 70 8.5 Methods for Monitoring 70 8.6 Timing for Monitoring 71 8.7 Geographical Consideration for Monitoring 72 8.8 Informing Stakeholders and Decision-Makers about Revealed Outcomes 72 8.9 Ensuring Continuity of Commitments 74 References

9 Step 1 identifies the types of highway, bridge, or tunnel toll implementation or rate change actions and the potential effects of these actions. Throughout this guide- book, facility refers to a highway, bridge, or tunnel. (See text box, Key Vocabulary for Tolling Facility Attributes, at the end of Step 1 to clarify terminology used in the guidebook.) Step 1 helps the practitioner frame the action to focus on potential environmental justice (EJ) implications using the following sequence of activities: 1. Identify the type of toll implementation or rate change action from among a range of types. 2. Identify the impact-causing aspects typically associated with the type of action from among a range of aspects. 3. Identify potential adverse direct and indirect effects that can be associated with an action and its aspects. 4. Preliminarily characterize the context of connections of minority and low-income users of the tolled facility and various opportunities relative to user trip-making, income, and value of time. 5. Preliminarily identify EJ issues associated with the potentially adverse effects of the action for further exploration and evaluation. The work in this step is essentially preliminary data collection and desktop analysis to begin scoping EJ issues. Much of the data and other information in this step may already have been prepared through prior studies, travel demand modeling, public outreach, or other activities. Specifically for a rate change, information may be available from studies conducted on the effects of the original toll implementation or a prior rate change. Three key questions the practitioner will answer in this step are as follows: 1. Where does my project fit in among the types of toll implementation actions, and what are the types of toll-related impacts that I will need to be most concerned about in my evaluation? 2. What are the potential direct and indirect effects that I need to be thinking about as the project moves forward? 3. What regional characteristics and contexts do I need to begin considering as I move forward with my evaluation? While mainly applied during the project design stage of proposed toll implementation or rate change projects, these activities and associated approaches and considerations can also be adapted for application during the policy and planning and implementation stages. s t e P 1 Frame the Project

10 Assessing the environmental Justice effects of toll Implementation or Rate Changes: Guidebook and toolbox 1.1 Tolling Actions There are eight types of toll implementation or rate change actions: 1. Toll implementation by constructing and operating a new facility on new location with a mix of toll and general purpose lanes. [With a mix of toll and general purpose lanes, the toll lanes are typically operated as managed lanes, in which toll charges vary according to congestion in the general purpose lanes. High-occupancy toll (HOT) lanes are a form of managed lanes in which high-occupancy vehicles pay no or a lower toll and single-occupancy vehicles pay a toll to use the lane.] 2. Toll implementation by constructing and operating a new facility at a new location with all lanes tolled. 3. Toll implementation by partially converting existing facility travel lanes to have a mix of toll and general purpose lanes. 4. Toll implementation by fully converting all existing facility travel lanes to toll lanes. 5. Toll implementation by widening and then partially converting existing facility travel lanes to a mix of toll and general purpose lanes. 6. Toll implementation by widening and then fully converting all existing facility travel lanes to toll lanes. 7. Toll rate change actions, including: (a) a rate change on an existing partially or fully tolled facility, or when converting a partially tolled facility to a fully tolled facility, that results in an increase in tolls; (b) a change in the method of payment on an existing toll facility, i.e., all cash, all electronic (usually via transponder, electronic license plate reader, or both), or mixed cash-electronic; (c) a change in the toll collection technology on an existing toll facility, i.e., barriers/toll gates and/or gantries and electronic sensors for monitoring all lanes, some lanes, or no lanes (often linked to the method of payment); and (d) introduction of variable or dynamic tolls on an existing fixed-schedule toll facility, typically, to manage congestion. (On a fixed schedule, rates are based on mileage or a set of prices for each system segment, often depending on the number of axles or vehicle weight.) 8. A change in the operator of an existing toll facility, which could result in a change in the ability to increase toll rates or a change in the method of payment, toll collection technology, or toll variability. The operating entity can be a state department of transportation, a municipality, an authority, a private concessionaire, a public-private partnership (P3), or a combination. There can be slight variants to these toll implementation or rate change types. For example, the type of facility operator (e.g., public agency/authority or private concessionaire) can be a fac- tor in the assessment of aspects and effects. In addition, a change in method of payment, change in toll technology, change in operator, or introduction of variable or dynamic tolls can, but may not always be, accompanied by a rate change. Nevertheless, these eight types of actions essen- tially encompass the spectrum of potential types of toll implementation or rate change actions. Regardless of the action type, a toll implementation or rate change has aspects that can have adverse financial and other effects on users of the facility relative to the status quo. Alteration to the status quo from the user perspective is the primary focus of this EJ tolling analysis. 1.2 Impact-Causing Aspects of Tolling Actions Eight basic impact-causing aspects comprise the elements of a toll implementation or rate change action: 1. Introduction of a transaction cost—paying a toll—on the facility user. 2. Increase of a transaction cost to the facility user. 3. Creation of uncertainty in the transaction cost for the facility user (near term and/or longer term).

Frame the Project 11 4. Form of payment by the user (i.e., cash or cashless). 5. Newly implemented or revised toll payer account terms such as minimum balance, monthly fees, upfront transponder deposit or purchase costs, account replenishment options (cash, credit, debit), and discount plan [resident, commuter, low-income resident/commuter, high occupancy vehicle (HOV), “green” car, HOT, transponder owners]. 6. Change in access to the highway network for the user. 7. Creation of, change in, or increase in a toll facility footprint. 8. Closer proximity between a community and a toll facility. Although there can be slight variants to the typical impact-causing aspects of toll implementa- tion or rate change actions, the eight basic impact-causing aspects encompass the typical spec- trum of potential impact-causing aspects. Table 1.1 shows that certain impact-causing aspects are typically associated with certain tolling types. For example: • The six types of toll implementation all introduce a transaction cost. • An increase in tolls happens when there is a rate change and often, but not always, when there is a change in the method of payment, toll collection technology, or operator of an existing toll facility; or an introduction of variable or dynamic tolls on an existing fixed-schedule toll facility. • Transaction costs for a trip may be uncertain when there is a mix of toll and general purpose lanes, or variable or dynamic tolls. Longer term uncertainty in transaction costs is possible when there is a change in the operator of an existing toll facility. • Specific user account terms can have impacts across the range of toll implementation or rate change types. These impact-causing aspects alone or in combination can affect the use of the facility for some users, and have other effects on users beyond travel and trip-making. The discussion of potential direct and indirect effects in the next section focuses on the changes in use and other effects on users from a toll implementation or rate change. A change in access to the highway network is more likely with a newly constructed or widened facility than with the other toll implementation or rate change types because a change in access normally requires construction. Creating or changing the footprint of the toll facility and increasing the proximity of travel lanes to communities through new construction or widening creates a different set of issues, specifically, potential impacts on the human and natural environment rather than on the road- way system users. 1.3 Potential Adverse Direct and Indirect Effects Adverse direct effects typically associated with the cost and payment aspects of toll implemen- tation or rate change can include the following for some, but not all, users: • Change in road use patterns (diversions to alternative routes or modes). • Change in trip-making behavior and trip purposes (trip frequency, trip timing). • Change in household disposable income and change in household financial burden. • Change in “disposable time.” Adverse indirect effects stemming from the direct effects outlined above are most likely to include the following: • Effects related to route and modal diversions, such as – Change in mobility between travel points. – Change in accessibility to destinations. – Change in travel reliability.

Impact-Causing Aspects of Toll Implementation or Rate Change Action Introduce Transaction Cost Increase Transaction Cost Create Uncertain Transaction Cost Form of Payment and/or Credit and/or Fixed Cost Requirements for User Accounts Change in Access to Highway Network Create or Increase Highway, Bridge, or Tunnel Footprint Decrease Distance between Community and Highway, Bridge, or Tunnel T o l l I m p l e m e n t a ti o n o r R a t e C h a n g e A c ti o n New Toll Road or Bridge (mix of toll and general purpose lanes) √ Possibly (choice of toll or general lanes can be trip-specific) Possibly √ √ √ New Toll Road or Bridge (all toll lanes) √ Possibly Possibly √ √ √ Partial Conversion of Existing Highway, Bridge, or Tunnel Travel Lanes for Tolling (mix of toll and general purpose lanes) √ Possibly (choice of toll or general lanes can be trip-specific) Possibly Possibly Full Conversion of Existing Highway, Bridge, or Tunnel Travel Lanes for Tolling (all toll lanes) √ Possibly Possibly Partial Conversion with Widening of a Highway, Bridge, or Tunnel (mix of toll and general purpose lanes) √ Possibly (choice of toll or general lanes can be trip-specific) Possibly Possibly √ Possibly (dependent on inner or outer widening) Full Conversion with Widening of a Highway, Bridge, or Tunnel (all toll lanes) √ Possibly Possibly √ Possibly (dependent on inner or outer widening) Increase Tolls on an Existing Toll Facility √ Change in Method of Payment on Existing Facility Possibly Possibly Possibly Change Toll Collection Technology on an Existing Toll Facility Possibly Possibly Possibly Introduce Variable or Dynamic Tolls on an Existing Toll Facility Possibly √ Change Operator of an Existing Toll Facility Possibly (dependent on authorized ability to increase tolls) Possibly (dependent on authorized ability to increase tolls) Possibly Table 1.1. Tolling actions and the impact-causing aspects of tolling actions.

Frame the Project 13 • Increased travel on alternative routes or modes leads to degradation of level of service on the alternative routes or modes. • Changes in health (air quality, noise, vibration) for residents nearby alternative routes that have degradation in level of service. • Changes in quality of life from – reduced opportunities for employment and services because of degraded accessibility, mobility, and travel reliability. – delayed or foregone activities and purchases because of reduced disposable income or less available time outside of travel time. – degraded environmental quality and pedestrian safety along alternative routes. At this stage of the assessment, the extent and degree of direct effects from a proposed action are difficult to identify, as are the estimates of associated indirect effects. However, measured or anecdotal information on the effects from an original toll implementation or previous rate change could help inform analysis of the currently proposed rate change. The practitioner can begin to identify areas of inquiry about potential “tipping points” for adverse effects on minor- ity and low-income facility users and develop an understanding of the relevant context from a facility user perspective. 1.4 Context Considerations A toll implementation or rate change action occurs within a regional transportation net- work that connects people to community, housing, jobs, health care, education, services, reli- gious, recreational, social, and retail opportunities. The roadway network provides access to these opportunities. The ability to benefit from these opportunities can be influenced by the affordability of transportation, expressed as both cost and time to travel to places where such opportunities are located. EJ is a relevant consideration at all stages of the transportation project life cycle, including those of toll projects, as Table 1.2 illustrates: • For example, if tolling has not been considered in long-range planning efforts, the project may encounter additional barriers and delays to catch up on public involvement as part of 3 Stages 6 Phases Example EJ Issues for Tolling Po lic y an d Pl an ni ng 1. Visioning and Policy This phase provides broad direction to guide the transportation development process and includes the development of legislative policy at the national and state levels and a vision for the future transportation system at the local, regional, and state levels. Have needs and funding gaps identified in the long- and short-range plans evoked consideration of tolling alternatives? Do projects that can partially or completely “self-fund” through tolling advance more quickly than projects that rely on traditional funding? Has (or will) public involvement during plan development provide early notice of potential EJ concerns and potential alternatives? 2. Long-Range Planning and Programming During this phase, a long-range (20 to 30 years) plan for future transportation investments and a short-range (3 to 6 years) program of projects approved for funding are developed at the regional and state levels. Table 1.2. Stages of decision-making and example issues for tolling. (continued on next page)

14 Assessing the environmental Justice effects of toll Implementation or Rate Changes: Guidebook and toolbox 3 Stages 6 Phases Example EJ Issues for Tolling 4. Final Design and Right-of-Way In this phase, refinements are made to the preliminary design based on various constraints and practical considerations. Necessary right-of- way acquisitions are identified. Im pl em en ta ti o n 5. Construction This phase consists of the physical construction of the transportation facility. This is typically considered the last step in the traditional project development process but does not mark the end of the project’s life cycle. Are potential bidders aware of and do they understand the EJ-related design commitments articulated in the construction contract? Do any contract change orders alter or compromise design commitments, or do they create new EJ issues? Do the pricing mechanisms and changed traffic patterns of road pricing projects result in disproportionately high and adverse impacts on low-income and/or minority populations? Are there barriers to accessing or securing transponders and replenishing accounts for populations without credit cards or bank accounts? Has the planned toll rate change been the subject of a regional planning-level study that considers the impacts to low- income and minority populations? 6. Operations and Maintenance Operations and maintenance are critical elements of the life cycle of a transportation facility. Operations activities include toll pricing, discounts, and exemptions; toll account and transponder usage policies; gate timing; and pavement markings. Maintenance includes actions such as camera and pavement repair. Source: Two left columns from FHWA, 2010 3. Environmental Studies and Preliminary Design Environmental studies are mandated by federal and state laws and are used to find the most appropriate design concept for a proposed facility out of a pool of alternative concepts. The selected alternative is developed into a preliminary design. Have assumptions about toll rates used to support the traffic analysis and, hence, the design, been shared with the EJ community for input? Has the affected EJ community been involved in the environmental review process, including input on alternatives and perceptions of impacts and potential avoidance or other mitigation alternatives? If a private sector partner is brought on for a design-build or design-build-operate-maintain contract and project, it is often in this stage. At this stage, it needs to be ensured that operating and contractual agreements include flexibility and financial provisions for design changes and mitigation, if needed, including long-term agreements and backup provisions in case of operator insolvency. Pr oj ec t D es ig n Table 1.2. (Continued).

Frame the Project 15 ensuring full and fair participation by all potentially affected communities in the transporta- tion decision-making process as the project proceeds with toll implementation to review under the National Environmental Policy Act. • Monitoring of actual effects, and possibly modifying mitigation strategies to address actual effects, are clear responsibilities for the implementation stage. • In addition, most toll actions that are not part of the “normal” capital project life cycle, such as rate changes, will be part of the operations and maintenance phase of the implementation stage. Because EJ is a consideration throughout the life cycle of a project, the types of questions that the practitioner may need to answer will vary depending on where in the life cycle the analysis is occurring. Example EJ questions by stage are shown in the far right column of Table 1.2. While the following discussion focuses on considerations of proposed toll implementations and rate changes, the techniques can be adapted to frame the evaluation during other life cycle stages, including post-implementation. A macro-level analysis of the potential effects on facility users’ access to opportunities should describe the location and function of the facility relative to such key features as: • the roadway, transit, and bicycle-pedestrian network; • location of minority and low-income populations; and • locations such as employment centers, hospitals and other healthcare facilities, schools (all levels), places of worship, recreational centers, government and non-government services centers, and retail centers, among other opportunity destinations in the region served by the tolled or to-be-tolled facility. The initial definition of a study area for investigating the connections among these features should be relatively large so as not to exclude important connections from the analysis. Con- siderations for setting the boundary are (1) the location of the facility, (2) local areas served by the facility and its connecting roads, (3) the location of minority and low-income populations with access to the facility via connecting roads and feeding network of roadways, and (4) the location of opportunity destinations served by the facility and its connecting roadway network. The extent to which a connecting road is itself tolled should be identified so that the cumulative impacts of other past, present, and reasonably foreseeable tolling actions are considered (see text box, Note to Practitioner). Note to Practitioner Criteria for defining study area boundaries and appropriate data sources are further addressed in later steps and tools. For example, Step 4 and the tool, “Developing a Socioeconomic Profile and Community Characteristics Inventory for EJ Assessments,” delve into study area boundaries and demographic issues. Other tools help evaluate travel patterns. In Step 1, the practitioner’s primary goal is to consider the breadth and depth of issues that must be addressed to identify potential EJ implications of the proposed action. Sources of information on these features typically include U.S. Census products, geographic information system (GIS) data layers, regional travel models, map software, and interviews with relevant specialists (e.g., municipal planners, department of health representatives, parks and

16 Assessing the environmental Justice effects of toll Implementation or Rate Changes: Guidebook and toolbox recreation department representatives). A particularly useful U.S. Census product for establish- ing the context and boundary of the study area is the American Community Survey Commuting (Journey to Work) Worker Flow datasets (www.census.gov). As noted in the U.S. Census Bureau website, “[w]orkplace information is crucial for understanding the degree of interconnectedness among our nation’s communities and it shapes the contours of metropolitan and micropolitan statistical areas.” Assessment of this and other information is useful to establish the context of the toll imple- mentation or rate change and to begin assessing the potential for and degree of the effects. For example, mapping applications can be used to assess the change in travel time during peak hours to take alternative routes or modes. For a home-based work trip to a common employment destination, could users from a low-income or minority neighborhood decide to divert from the facility in response to a toll implementation or rate change? The context to frame potential effects at a more individual or micro-level can also be for- mulated during this step. For example, travel costs with and without toll implementation or rate change can be measured and compared with household income data for low-income and minority populations obtained from the “American Community Survey” or “Small Area Income and Poverty Estimates” program (www.census.gov). The practitioner can frame the context of the toll implementation or rate change and identify areas for further exploration in subsequent steps. Other sources of contextual considerations to research in this step include documentation of current and prior outreach to minority and low-income populations; reasonably foreseeable projects, toll or otherwise, contained in local, regional, and statewide long-range transporta- tion plans; the project’s purpose and need; alternatives to the action; and previous analyses of the toll implementation or rate change and/or information from monitoring of previous rate changes. 1.5 Initial Identification of Environmental Justice Issues With the information obtained during this step, the practitioner can identify the pertinent issues on which to focus for more detailed analyses in subsequent steps. The basis for identifying potential issues comes from: 1. A combination of identifying direct and indirect effects that are typically associated with the type of tolling action. 2. An assessment that these effects could potentially affect minority and low-income popula- tions adversely given the context of the toll implementation or rate change relative to the use of a toll or to-be-tolled facility by minority or low-income populations. The identified issues can then be explored in greater detail with respect to regulatory require- ments (Step 2), stakeholder identification (Step 3), scoping of analytical approaches (Step 4), impact analysis (Step 5), and mitigation (Step 6). 1.6 Documentation of Step 1 The practitioner prepares a technical memorandum that describes the approach, methods, data, and maps used to identify potential issues related to adverse effects on minority and low- income populations. The narrative describes the availability of previous studies and relevant outreach conducted to date and is supported by the checklists and reference tables completed by the practitioner to identify the type of action, the anticipated impact-causing aspects, poten- tial direct and indirect effects, and the context for assessing the degree and extent to which

Frame the Project 17 there could be disproportionately high and adverse effects from the action on minority and low-income populations. The Checklists section of the Toolbox contains several items to assist in documentation: • Checklist 1a summarizes the eight types of tolling actions and the impact-causing aspects of the tolling actions from Steps 1.1 and 1.2. The checklist can be used as a reminder of possible interactions to consider for projects. • Checklist 1b summarizes the direct and indirect effects of projects for consideration from Step 1.3. • Checklist 1c provides a list of questions to address contextual considerations, from Step 1.4. Key Vocabulary for Tolling Facility Attributes Several terms may be especially helpful for practitioners considering EJ impacts who have not been immersed in tolling-related projects or who are not fluent in the jargon of tolling and pricing. The following definitions are excerpted and paraphrased from FHWA’s Office of Innovative Program Delivery or are commonly used terms by transportation professionals. Facility Type: Toll road (all lanes or managed lanes), toll bridge/tunnel • Full-facility tolling. All users of the facility pay the toll. • Managed-lanes tolling. Users of the facility have a choice to remain in a non-tolled general purpose lane, or use tolled express or HOT lanes. Toll pricing on managed lanes may vary in response to changing congestion conditions, and HOVs may travel free or at discounted toll rates. • HOV lanes. A type of managed lane giving exclusive use to vehicles with the required minimum number of occupants for all or part of a day. Required minimum occupancy is set by the public agency operating the facility and is generally two (HOV 2+) or three (HOV 3+) persons. • “Partial facility” pricing. Rather than pricing the capacity of an entire facility, individual lanes (often one or two in both directions) may be priced and operate parallel to the free general purpose lanes. HOT Lanes and Express Toll Lanes (ETLs) are two operating forms of priced managed lanes and examples of “partial facility” pricing imposed on one or more lanes. • HOT lanes. These lanes use price, occupancy and access restrictions to manage the number of vehicles travel- ing on them, thereby maintaining free-flow traffic conditions, even during peak travel periods. Typically, qualified carpool vehicles and transit vehicles may use these limited-access highway lanes for free or at a discount. Motorists in vehicles that do not meet passenger occupancy requirements may choose between the general-purpose lanes or paying for access to the HOT lanes. HOT lanes use electronic toll collection and traffic information systems to provide variable, real-time toll pricing for non-HOV vehicles. Motorists decide whether or not to use the HOT lanes or the general-purpose lanes based on price levels and travel conditions received via variable message signs. • ETLs. ETLs are dedicated managed lanes within highway rights-of-way that motorists may use by paying a variably priced toll. Unlike HOT lanes, ETLs charge all vehicles (including HOVs) for passage. In some cases discounts may be given to HOVs, but ETLs do not incentivize ride sharing to the extent that HOT lanes do. Enforcement is simpler and less costly than HOT lanes because there is no need to enforce vehicle occu- pancy. ETL concepts are also attractive to transportation agencies that want to use toll revenues to cover the cost of new construction and operation. • “Full facility” pricing. These facilities charge tolls for all lanes of a roadway facility that vary by time of day or congestion level such that peak-period travel is more expensive than off-peak travel, encouraging some trips to move to off-peak periods or other travel modes, such as transit. In this manner, the duration of peak-period (continued on next page)

18 Assessing the environmental Justice effects of toll Implementation or Rate Changes: Guidebook and toolbox congestion is reduced or eliminated, increasing the reliability of a user’s trip and allowing for more efficient use of the system’s capacity from the time-of-day and physical (lane-mile) standpoints. Variable or dynamic toll rates can be fixed on a particular schedule or vary dynamically based on real time traffic conditions. Electronic toll collection is critical to the efficient operation of these systems. Fee type: Fixed or flat rate, variable (time-of-day, dynamic), vehicle classification rate • Flat rate. These are toll rates that do not change. In most cases, a “flat” rate will be a set of rates for the system based on mileage or a set of prices for each system segment, often depending on the number of axles or vehicle weight. • Variable or dynamic rate (also known as congestion pricing). This type of pricing is often used to promote con- gestion management and maintain “free-flow” speeds on the tolled route, usually where there are parallel untolled lanes. Drivers are advised of the rates before entering the tolled facility; in congested conditions, rates are dynamically increased to discourage drivers from entering. Congestion pricing is a form of tolling that was designed to manage demand on an existing facility while still offering users options/choices. • Vehicle classification rate. Vehicle classes influence toll rates and can vary based on axle counts, vehicle shapes, and sizes. Public transportation buses do not get charged to use HOT lanes as a way of encouraging modal shifting, but not all toll roads and authorities provide such an exemption. Method of payment: All cash, all electronic (usually via transponder, electronic license plate reader, or both), or mixed cash-electronic. The method of payment is intertwined with the control system(s), including barriers/toll gates and/or gantries and electronic sensors for monitoring all lanes, some lanes, or no lanes. Gates typically are discouraged on new construction due to construction and operating costs, increased congestion, and increased rates of accidents. • Discount plan. Discount plans are available to resident, commuter, low-income resident or commuter, HOV, “green” car, HOT, transponder owners Financing/operating entity: State DOT, municipality, authority, private, P3, hybrids • Public-private partnerships. P3s are contractual agreements formed between a public agency and a private sector entity that allow for greater private sector participation in the delivery and financing of transporta- tion projects.

19 Step 1 culminated in the identification of potential EJ issues for a toll implemen- tation or rate change. Step 2 builds on Step 1 by showing how to identify the appli- cable EJ review framework using laws, regulations, and authoritative guidance for evaluating the issues. The Step 2 discussion provides background on the statutory and regulatory basis for EJ and the associated requirements. The discussion also highlights potential EJ implications relevant to toll implementation and rate changes. The majority of the requirements are rooted in federal laws, regulations, and executive orders that have collectively evolved into several key overlapping concepts (see Reference Table 2.1 in the Reference Tables section of the Toolbox). Many states have EJ and/or broader environmental review requirements that apply to state agency actions. In some cases, state requirements are more stringent than federal requirements. The applicability of a federal or other requirement to a specific toll implementation or rate change action depends on a specific set of circumstances, typically, that the action is subject to federal approval and/or assistance. It is prudent to obtain the advice of legal counsel on whether or not a requirement applies, particularly for those circumstances in which the applicability of a specific requirement or requirements is unclear. The key questions the practitioner will answer in this step are as follows: 1. What regulations and requirements apply to the project? 2. Under what conditions might the toll implementation or rate change require an environmental review? 3. How do the regulations and requirements address the potential EJ concerns identified in Step 1? Even if it is determined that no law or regulation applies that would trigger an evaluation of EJ issues, there may be a reason to conduct a good-faith effort to, for example, more fully evalu- ate anecdotal information regarding the effects of prior toll increases on minority or low-income populations in preparation for a new toll increase, or to address stated concerns of communities, advocacy groups, or an agency board member representing constituents about a proposed toll implementation or rate increase. 2.1 Regulations and Requirements Pertinent to Environmental Justice EJ is explicitly grounded in the significant body of civil rights laws and non-discrimination principles, policies, and regulations that govern American society, principally Title VI of the Civil Rights Act of 1964, as amended (Title VI); the Civil Rights Restoration Act of 1987; Executive S T E P 2 Identify the Applicable Requirements Governing Decisions

20 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Order (EO) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations; and EO 13166, Improving Access to Services for Persons with Limited English Proficiency. In addition to Title VI and EO 12898, there are foundational environmental protection laws that are fully aligned with the principles of fair treatment and nondiscrimina- tion, including the National Environmental Policy Act of 1969 (NEPA); the Uniform Reloca- tion Assistance and Real Property Acquisition Act of 1970 (Uniform Act); and the Federal Aid Highway Act of 1970. 2.1.1 Title VI of the Civil Rights Act of 1964 Title VI prohibits discrimination in the conduct of all federal activities. Section 601 of Title VI states: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activities receiving Federal financial assistance. Related U.S. DOT policies prohibit discrimination on the grounds of race, color, national ori- gin, disability, sex, and age in connection with programs or activities receiving federal financial assistance. U.S. DOT has the legal authority and, in its oversight role, seeks to ensure compliance with Title VI in all of its programs and activities whether or not those programs and activities are federally funded, as clarified with the Civil Rights Restoration Act of 1987 (FHWA, 2015b). U.S. DOT’s efforts to prevent discrimination extend to a program’s impacts on access; benefits; participation; treatment; services; procurement and contracting; training activities; investiga- tion of complaints; allocation of funds; prioritization of projects; and the functions of planning, project development, design, right-of-way acquisition, construction, and research. This pro- grammatic breadth means that Title VI’s non-discrimination commitment extends to all stages of transportation decision-making. 2.1.2 Executive Order 12898 EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations, directs each federal agency to develop an agency-wide EJ strategy that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations. U.S. DOT Order 5610.2(a), Final DOT Environmental Justice Order, and FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Pop- ulations, provide the means to carry out the desired policies for actions involving FHWA by affirming the larger body of nondiscrimination laws, setting forth key definitions and criteria for the evaluation of EJ, and making clear that low-income and minority populations are protected classes. In furtherance of EO 12898, U.S. DOT Order 5610.2(a) and FHWA Order 6640.23A provide the following important definitions of minority and low-income populations. Minority A “minority” individual is a person who is: • Black: a person having origins in any of the black racial groups of Africa; • Hispanic or Latino: a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race; • Asian American: a person having origins in any of the original peoples of the Far East, South- east Asia, or the Indian subcontinent;

Identify the Applicable Requirements Governing Decisions 21 • American Indian and Alaskan Native: a person having origins in any of the original people of North America or South America (including Central America) and who maintains cultural identification through Tribal affiliation or community recognition; or • Native Hawaiian and Other Pacific Islander: a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands. Low-Income The U.S. DOT and FHWA orders define a “low-income” individual as a person whose house- hold income is at or below the U.S. Department of Health and Human Services (HHS) poverty guidelines. Populations For the terms “minority” and “low-income,” the U.S. DOT and FHWA orders define a “pop- ulation” as any readily identifiable group of minority and/or low-income persons who live in geographic proximity, and, if circumstances warrant, geographically dispersed/transient persons of those groups (such as migrant workers, homeless persons, or Native Americans) who will be similarly affected by a proposed U.S. DOT/FHWA program, policy, or activity. To foster compliance, FHWA has published Federal Highway Administration Environmental Justice Reference Guide (FHWA, 2015a) offering the below description for what EJ means: . . . identifying and addressing disproportionately high and adverse effects of the agency’s programs, policies, and activities on minority populations and low-income populations to achieve an equitable distribution of the benefits and burdens. This includes the full and fair participation by all potentially affected communities in the transportation decision-making process (FHWA, 2015a). The reference guide also communicates the fundamental principles of EJ to state and local partnering agencies and practitioners and conveys the goals implicit in achieving EJ and its importance as an element of the U.S. DOT’s EJ Strategy (FHWA, 2015a) (see text box, Funda- mental Principles of EJ). An overlap of protected groups exists under EJ principles and Title VI. As noted in the Federal Highway Administration Environmental Reference Guide: . . . the term “minority,” which is a protected category under EJ, overlaps with “race, color and national origin (including individuals with limited English proficiency (LEP),” which the Title VI statute protects. EJ principles, however, also apply to low-income populations, which are not covered under the Title VI stat- utes (FHWA, 2015a). To ensure that these socially vulnerable populations are considered equitably in Fundamental Principles of EJ Linking Title VI and EO 12898, the U.S. DOT’s EJ strategy identifies three fundamental principles of EJ that guide U.S. DOT actions (FHWA, 2015a): • To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income populations. • To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process. • To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations.

22 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox the evaluation of environmental impacts, it is important to identify minority, low-income, and limited English proficiency populations to evaluate potentially adverse effects on these groups. 2.1.3 National Environmental Policy Act of 1969 NEPA provides the environmental review “umbrella” under which U.S. DOT and other fed- eral agencies address myriad environmental laws, regulations, and executive orders, including EO 12898 and Title VI, associated with major federal actions to ensure that environmental infor- mation is available to public officials and citizens before decisions are made and actions taken. The NEPA umbrella covers many topics, including but not limited to those shown in Figure 2.1. Particularly relevant to EJ, the congressional intent in enacting NEPA includes the following policy objectives: “assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings” and that “each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” 2.1.4 23 CFR 771, Environmental Impact and Related Procedures for Implementing NEPA The overall NEPA implementing policies of FHWA are provided in 23 CFR § 771.105, which describes: (1) how various environmental reviews can be coordinated in a single process, (2) that alternatives be considered and decisions made in the overall public interest, (3) that an inter- disciplinary approach is used, and (4) that public involvement is part of the project development process. Criteria under which FHWA will fund mitigation activities are included in 23 CFR § 771.105; this section also states a non-discrimination policy to avoid exclusion from participation or denial of benefits under any program under FHWA NEPA regulations based on handicap, age, race, color, sex, or national origin. The regulation defines the roles and responsibilities for FHWA and applicants (23 CFR § 771.109) with respect to fulfilling the requirements of NEPA (see text box, What Projects Figure 2.1. NEPA umbrella of environmental review topics.

Identify the Applicable Requirements Governing Decisions 23 Require Environmental Review?). Section 771.111 addresses early public involvement and agency coordination during project development. Section 771.115 identifies the three classes of action under which these and other FHWA actions can fall: 1. Class I (Environmental Impact Statement or EIS), 2. Class II (Categorical Exclusion or CE), and 3. Class III (Environmental Assessment or EA). What Projects Require Environmental Review? According to the U.S. Government Accountability Office (GAO) Report 15-71, three factors generally determine whether a highway project needs a federal or state environmental review, or both—project funding sources, project charac- teristics, and rules allowing state adoption of federal review documents (GAO, 2014). Highway projects receiving federal aid are generally subject to environmental review under NEPA, with FHWA serving as the federal lead agency for the review. On the other hand, highway projects funded solely through state or local funds typically do not require FHWA NEPA review, although action by another federal agency (e.g., a project requiring a federal permit required by the U.S. Army Corps of Engineers or the U.S. Coast Guard) may require an environmental review because the permit is considered a federal action (GAO, 2014). Actions that significantly affect the environment require an EIS. A new access controlled free- way and a highway project of four or more lanes in a new location are examples of projects nor- mally requiring an EIS. FHWA involvement in a new toll highway (e.g., through loan assistance or approval of access modification to allow a connection of a new toll road to the interstate system) could also involve preparation of an EIS. An EA is prepared for each action that is not a CE and does not clearly require the prepara- tion of an EIS, or where FHWA believes an EA would assist in determining the need for an EIS. Facility widenings typically involve the preparation of an EA, often resulting in a finding of no significant impact. Toll implementation or rate changes are often categorically excluded from NEPA. There is a specific list of CEs (23 CFR § 771.117) broken down into a “C-list” (normally do not require any further NEPA approvals by the FHWA) and a “D-list” of projects that are CEs only after FHWA approval based on documentation that demonstrates that the specific conditions or criteria for the CEs are satisfied and that significant environmental effects will not result. Note that any action that normally would be classified as a CE, C-list, or D-list, but could involve unusual circumstances will require FHWA, in cooperation with the applicant, to con- duct appropriate environmental studies to determine if the CE classification is proper. Such unusual circumstances include: 1. Significant environmental impacts; 2. Substantial controversy on environmental grounds;

24 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox 3. Significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act; or 4. Inconsistencies with any federal, state, or local law, requirement, or administrative determina- tion relating to the environmental aspects of the action. As described in Step 1, in addition to the “footprint” or “proximity” impacts along the route of a new or widened facility that can result from a toll implementation or rate change, there are a number of potential direct and indirect effects that can result. Potential direct and indirect effects of toll implementation or rate changes could reach the level under which they are considered an “unusual circumstance” and, therefore, could not be processed as a CE. For example, a toll implementation or rate change can produce effects on minority or low-income neighborhoods through which traffic is diverted to avoid paying a toll. Additional traffic on the diversion routes can increase congestion, disrupt community cohesion, increase noise, and degrade air quality in the affected neighborhoods. If existing conditions for one of these measures are unacceptable or approaching unacceptable status, then the effect could be considered significant. It is possible that the diverted traffic can have a constructive use on Section 4(f ) properties (e.g., parks and historic properties) along the diversion routes through a minority or low-income neighborhood. For example, there may be a constructive use when the proximity impacts of a transportation project on a Section 4(f ) property, even without acquisition of the property, are so great that the activities, features, and attributes of the property are substantially impaired. In such a situation, the project would not be categorically excluded. In addition to direct and indirect effects, NEPA implementing regulations also require an evaluation of cumulative impact. For example, recurring impacts on a community (e.g., dimin- ished access to essential services and economic development opportunities) are specifically focused on the impacts of a proposed action in the context of past actions, which along with present and reasonably foreseeable future actions, constitute cumulative impacts. The original toll implementation and any subsequent rate changes can be considered past actions. Other nearby toll facilities and past and future toll actions on those facilities may need to be considered in a cumulative impact assessment. The cumulative impact of the subject toll implementation or rate change may be significant if the result of past, present, and reasonably foreseeable future actions is to isolate or put an undue economic burden on the ability to travel efficiently for low- income or minority populations. A rate change or toll implementation that has limited or no construction can be processed as a CE. However, if the Step 1 preliminary review of a toll implementation or rate change involv- ing FHWA indicates that there could be “unusual circumstances” (e.g., potentially significant direct, indirect, or cumulative impacts such as those described in the preceding paragraphs), then consideration should be given to preparing documentation of the effect(s) to support FHWA approval (e.g., through a documented CE or environmental assessment). This approach to addressing EJ for toll implementation or rate change actions subject to review under NEPA helps provide consistency with the EJ principles of Title VI and EO 12898 as part of the NEPA process. In addition, it is often the case that a capital project is planned to not include tolls and reviewed as such under NEPA but later a decision is made by the applicant to implement tolls on the project. This type of change in assumptions prompts a re-evaluation of the project under NEPA. The approach to investigating whether or not there are “unusual circumstances” with the action can be documented in the re-evaluation and help in the assess- ment of whether or not a supplemental environmental document must be prepared to review the project considering the addition of the toll implementation. Similarly, this approach can be used by state DOTs and metropolitan planning organiza- tions (MPOs) to examine potential EJ issues as part of planning environmental linkage or other

Identify the Applicable Requirements Governing Decisions 25 planning studies of toll implementation or rate changes, or the review under Title VI and EO 12898 of a fiscally constrained long-range transportation plan that includes toll implemen- tation or rate changes. An early look at potential EJ issues during the planning process can help identify issues for more detailed evaluation during project development and NEPA, and miti- gation during the implementation of the action. The criteria for “unusual circumstances” can also serve to guide EJ reviews of toll implementation or rate changes that do not involve FHWA (see text box, Tools that Link Planning and NEPA). Tools that Link Planning and NEPA In some cases, preliminary EJ analyses have been accomplished through PELs, which consider community, environmental, and economic goals early in the pro- cess and help inform the environmental review process. Further information on PEL studies is found under 23 CFR Part 450, Appendix A. Regional tolling analyses are another recently developed tool that link transpor- tation planning to NEPA. FHWA recommends these analyses for areas with tolled networks. Regional tolling analyses (RTAs) are especially useful in understanding impacts on minority and low-income populations from cumulative tolling projects. (RTAs are discussed further in Steps 4 and 5.) 2.1.5 Equity Considerations The equity of transportation decisions is often raised by individuals and groups, and has been a source of research. However, there is little regulatory basis for considering equity in transpor- tation decision-making. Because the two concepts are often, but incorrectly, intermixed, a brief discussion of equity is warranted here. EJ is concerned with an equitable or fair distribution of benefits and burdens, but specifically with reference to how low-income and minority populations (i.e., protected populations) bear these benefits and burdens in relationship to the broader population. A focus on equity should not be viewed as synonymous with EJ and is not fully consistent with the considerations and protected population focus relevant to an EJ analysis. Equity analysis examines how the costs and benefits of projects are distributed among mem- bers of society focusing on the treatment of persons equally. Prior research suggests that equity concerns most closely associated with tolling focus on income equity, geography equity, and modal equity. 1. Income equity refers to the impact tolls would have on low-income drivers who would be unable to afford to use the facilities. “Low-income drivers may spend a greater proportion of their income to pay to travel at preferred times or incur greater costs in travel time by choos- ing alternate unpriced routes” (GAO, 2012). 2. Geographic equity refers to a worry that the lanes would unfairly benefit or harm people based on where they live or work. GAO described scenarios in which drivers in a metropoli- tan region who use the tolled corridor “may incur greater costs than drivers in the untolled corridor because of the tolls they pay or the increase in travel time they incur by choosing an alternate route.” Also, drivers who choose to avoid the tolls may divert traffic from tolled routes within a corridor, potentially contributing to congestion on an alternate route to the

26 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox detriment of surrounding neighborhoods. Complicating matters, equity concerns can be fur- ther incurred if the diversion of traffic is through low-income and minority communities (GAO, 2012). 3. Modal equity reflects a concern that transit or carpooling would be adversely affected by initiatives that make solo driving more attractive. Tolling research (Weinstein and Sciara, 2006) and FHWA (FHWA, 2008) cite these three types of equity. GAO’s report to Congress cites both income equity and geographic equity. These and other equity definitions are documented in full in NCHRP Web-Only Document 237: Environmental Justice Analyses When Considering Toll Implementation or Rate Changes—Final Report, which supplements this guidebook. Agencies and practitioners must understand and clearly communicate equity considerations to the public. Table 2.1 distills these and other sometimes competing definitions of equity into a simple taxonomy. The table summarizes the key categories of equity discussion for transportation and illustrates how different definitions of equity can reveal different perspectives among partici- pants and result in different outcomes that may or may not be consistent with the EJ principles and requirements. The transportation literature on equity explores notions of justice and fairness; however, it is not explicitly grounded in the significant body of civil rights laws and nondiscrimi- nation principles, policies, and regulations that govern society, as discussed elsewhere in Step 2. 2.1.6 Regulations Related to Tolling Traditionally, FHWA’s actions under NEPA largely related to approving the use of surface transportation funds to construct or improve highways, bridges, and tunnels, usually, without tolls. In 2005, The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) allowed for several programs to facilitate tolling, and recent rounds of transportation legislation such as The Moving Ahead for Progress in the 21st Century (MAP-21) Act (P.L. 112-141) and The Fixing America’s Surface Transportation (FAST) Act (P.L. 114-94) have continued to amend and refine programs (FHWA, 2014; FHWA, 2015c). Individuals who work on EJ in a tolling context should be aware that program requirements can affect the selec- tion of alternatives and mitigation options. Type Sub-Type Description Horizontal Opportunity Groups/individuals of the same ability/need are given costs/benefits in proportion to their size, e.g., if some people within the same income group pay a larger amount of taxes or fees, the situation is horizontally inequitable. Market Groups/individuals of the same ability/need are charged a cost in proportion to benefits received. In accordance with this principle, those who benefit from a project should pay for those benefits, e.g., if a new lane is built, the lane should be paid for by a toll on its users, rather than a state sales tax paid in part by persons who may not use or benefit from the lane (GAO, 2012). Vertical/Outcome Groups/individuals of differing ability/need to achieve the same result, e.g., whether all groups should pay in proportion to their income or whether low-income people should pay proportionally more of their income for tolls than high-income people is a vertical equity issue, with the latter being vertically inequitable (GAO, 2012). Source: FHWA, 2013; examples in italics added from other sources as noted. Table 2.1. Taxonomy of transportation equity.

Identify the Applicable Requirements Governing Decisions 27 • Section 129 (General Toll Program) allows federal participation in specific types of toll-funded construction activities, including new highways, new lanes (as long as the number of untolled lanes remains the same), reconstruction of non-interstate highways, reconstruction or replace- ment of bridges or tunnels, and capital improvements to existing tolled facilities. Before the pas- sage of MAP-21, public authorities were required to execute a tolling agreement with FHWA to impose tolls on a federal aid highway. Although the requirement for upfront tolling agreements was removed, MAP-21 continues to place restrictions on the use of toll revenues that were in place previously. The legislation also imposes a new requirement for annual audits to ensure compliance with these limitations. These annual audits must be transmitted to U.S. DOT. • Section 166 (HOV/HOT Lanes) of Title 23 allows public agencies to permit a toll in place of an occupancy requirement (commonly referred to as HOT lanes). This change is allowed both on and off the interstate system. Under Section 166 of Title 23, existing HOV lanes may be converted to tolled operations provided that the local MPO endorses the use and amount of tolls on the converted lanes. Ongoing annual reporting that documents the conditions on the converted lanes is also required, and if the HOV facility becomes degraded the sponsor must bring the facility into compliance either by increasing HOV occupancy requirements, increasing tolls, increasing capacity, or eliminating access to paying motorists. • Interstate System Reconstruction and Rehabilitation Pilot Program (ISRRPP) allows the con- version of free interstate highways into toll facilities to fund needed repairs/reconstruction. Congress has opened up three slots for this program, and they are all conditionally reserved. • Value Pricing Pilot Program (VPPP) is a pilot program designed to assess congestion manage- ment via pricing. In this program, tolls may be implemented as long as a variable pricing pro- gram is used to manage demand. Congress has authorized up to 15 value pricing programs, seven of which have been permanently reserved for state agencies that have executed tolling cooperative agreements under the VPPP. The remaining eight slots are currently reserved for state agencies that are undertaking studies or non-toll projects under the program. Once these studies and projects have been completed, the slots will become available for use by any state with eligible projects under the program, and the discretion of the U.S. DOT. The FAST Act, signed into law in December 2015, updated some regulations related to tolling. AASHTO’s summary of the FAST Act noted the following changes with regards to tolling and potential EJ issues (AASHTO, 2015): • Eliminates limitations on the conversion of HOV facilities on the interstate system to HOT lanes; • Requires that MPOs must be consulted on the placement and amount of tolls if the tolling facility is located on an HOV facility on an interstate system in a metropolitan planning area; • Adds a requirement that an over-the-road bus (i.e., a bus characterized by an elevated pas- senger deck located over a baggage compartment) serving the public must have access to a toll facility under the same rates, terms, and conditions as public transportation buses; • Requires annual indexing of the financial threshold for CE projects with limited federal assis- tance to the Consumer Price Index; • Adds time limits for a state with a provisionally approved application for a pilot project under the ISRRPP program to complete the application, complete environmental review, and exe- cute a toll agreement with DOT (FHWA, 2016); and • Allows waiver of sanctions for degraded operations of HOV facilities (i.e., average speeds fall below specified minimums) under certain conditions (FHWA, 2016). 2.2 Documentation of Step 2 The practitioner prepares a technical memorandum with the information gathered in this step to identify the governing requirements that apply or may apply to evaluating the toll imple- mentation or rate change.

28 Recognize the Relevant Decision-Makers and Stakeholders Step 1 describes an approach to identify potential EJ issues related to toll implemen- tation or rate change actions. Step 2 identifies the relevant EJ principles and review requirements of laws, regulations, and executive orders and describes an approach to consider the potential EJ issues identified in Step 1 in a manner consistent with those requirements. Step 3 builds on the work of Steps 1 and 2 by describing the stakeholders and their roles and responsibilities during various stages of decision-making (i.e., policy and planning, project design, and implementation). Three key questions the practitioner will answer in this step are as follows: 1. Who are the key stakeholders for my project in my current stage of the process? 2. How might varied stakeholders’ priorities and concerns intersect and either sup- port or conflict with EJ concerns? 3. How can I begin to reach out to minority and low-income stakeholders to discuss the EJ-related concerns identified in Steps 1 and 2, as well as other concerns that might be identified? Good communication and coordination among stakeholders involved in a toll implementation or rate change is more than simply a step in a process. Consistency with EJ principles and requirements, and those of other requirements such as NEPA, in undertaking a toll implementation or rate change requires early and continuous communication and coordination to determine whether or not there is a potential for disproportionately high and adverse effects on minority and low-income populations; to ensure the full and fair participation by all potentially affected communities in the transportation decision-making process; and to prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. 3.1 Roles and Responsibilities of Decision-Makers and Stakeholders A variety of stakeholders can be involved in one or more stages of decision-making on a toll implementation or rate change and can have a variety of roles and responsibilities with respect to understanding the EJ implications of the action. Stakeholders include: • Minority and low-income users of the transportation system and those of affected minor- ity and low-income communities. Users and affected communities can provide information relevant to the evaluation of effects and the effectiveness of proposed mitigation (e.g., by par- ticipating in surveys to gauge the user response to a proposed rate change and/or “ground- truthing” inputs, results, and conclusions of impact analyses in various settings for community engagement). S T E P 3

Recognize the Relevant Decision-Makers and Stakeholders 29 • Stakeholders can also include transportation and community professionals and specialists, including those from governmental agencies, staffs of public officials, advocacy groups, com- munity organizations, and the transportation and economic development industry, all of whom can lend their respective expertise, ideas, and perspective. • Decision-makers are stakeholders and include the sponsor entity and review entities. A spon- sor entity can be a toll facility owner (DOT or public authority) or concessionaire proposing an action. The sponsor entity makes such decisions as the toll rate or the amount of the rate change, when to implement the toll rate or change, the method of toll collection and payment, capital expenditures in the toll facility, methods and costs for operating and maintaining the toll facility, and the use of toll revenues. • Review entities can be government funding agencies, government permitting or licensing agencies, bond rating agencies, or investors when the toll implementation or rate change involves a P3. MPOs must endorse the use and amount of tolls on converted lanes using existing HOV lanes. Review agencies make discretionary decisions that can influence the toll implementation or rate change. 3.1.1 Policy and Planning Stage Many issues can be raised at the policy and planning stages that touch upon EJ not least of which is the question of whether tolling is a more equitable means of raising revenues for needed infrastructure than alternatives such as the local sales tax or gas tax that may be more regres- sive (see text box, Policy Context: Tolling Option Generally Less Regressive than Other Funding Alternatives). Policy Context: Tolling Option Generally Less Regressive than Other Funding Alternatives Legislators and other policymakers often consider funding options for transporta- tion infrastructure in the policy and planning stage, and it has been argued that tolling provides the most equitable option for low-income residents. According to several researchers, tolling or congestion pricing is less burdensome for low-income residents than motor fuel taxes, sales taxes, and local option taxes, which are gen- erally more regressive. Tolls are generally more equitable than funding transporta- tion through sales or gas taxes or local option taxes that are consumption-oriented (Schweitzer and Taylor, 2008). Studies that comprehensively compare the equity of tolls against no-toll methods of transportation funding have found that tolls impose fewer costs on low-income persons (Franklin, 2007; Weinstein and Sciara, 2004). When sales tax is used as the basis for transportation funding, poorer house- holds are likely to pay a larger share of their income than wealthier households. Sales tax makes no distinctions between non-users and users of the system or between occasional or heavy users of the system. In a study of equity in financing, sales tax was found to be less equitable than fuel taxes and tolls, which are paid by users of the system based on their use (TRB Special Report, 2011). According to this viewpoint, the existing and potential funding alternatives are the appropriate frame for comparing the equity implications of tolling. In such light, the severe adverse effects on a small segment of low-income users who do not have other route options may warrant some form of mitigation, but the social benefits of reduced congestion and its externalities from toll pricing should be better under- stood and appreciated to foster acceptability of the option (Plotnick et al., 2011).

30 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox From a policy perspective, the ownership, operating, and financial structure and agreements established for the toll facility can constrain the flexibility of the toll operating agency to offer price discounts or revenue recycling as ways to address EJ impacts. A state or local entity or toll- ing authority may be primarily committed to paying for operations and maintenance and/or repaying bondholders with income generated from tolls, whereas the private entity from a P3 may have operations and maintenance in addition to bonds as well as investors to repay out of earnings, and will usually charge a risk premium also. Terms established in the initial agreements can have long-lasting implications for EJ. From a planning perspective, it is a sound practice to identify the potential universe of stakeholders in as much detail as possible, describe their distinct and interrelated roles and responsibilities, and develop a plan for coordinating and communicating with them in a way that contributes to evaluating the potential EJ issues of the toll implementation or rate change and informs the decisions on whether or not to proceed with the action. There is recognition that minority and low-income populations have traditionally been underserved by or under- represented in the transportation decision-making process. The tool, “Preparing, Imple- menting, and Assessing a Public Involvement Plan,” in the Toolbox offers examples of several practical approaches for overcoming barriers to participating and conducting meaningful involvement processes that reach low-income and minority populations. Reference Table 3.1 (in the Reference Tables section of the Toolbox) shows the various roles these and other stake- holders can have in the policy and planning stages of a toll implementation or rate change regarding EJ. 3.1.2 Project Design and Planning Stage Private sector partners, owners, and operators are taking a larger role in toll project imple- mentation as federal, state, and local governments seek to share the risks, costs, and design and implementation challenges inherent in tolling projects. Under alternative delivery methods involving P3s, a team of private sector specialists contracts with a public agency. In some situ- ations, government agencies can contract with the potential private partners of a P3 project on a pre-development basis to assist the public sponsor in scoping and developing a preliminary design for a financially feasible project. The private partner, therefore, can have a role in the EJ analysis with respect to the facility’s design features and toll payments. However, the private partner cannot serve as the lead sponsor of the project for a NEPA document; have any decision- making authority with respect to the NEPA decision; or complete the final design, proceed with construction, or take any other action that may bias the review process toward a particular alternative. Reference Table 3.2 (in the Reference Tables section of the Toolbox) shows the vari- ous stakeholders and the roles they can have in the project design stage of a toll implementation or rate change regarding EJ. 3.1.3 Implementation Stakeholder coordination can help identify the specific way in which toll rates are estab- lished and how the rates can be changed for a particular tolling action. For example, the toll rate charged under a P3 depends on the mechanism for the repayment of project financing arrangements—typically, either through availability payments or through direct toll revenue receipts. In financing plans that include availability payments, the funding source for payments to the private operator may be toll revenues collected by the state or local agency operator, or may involve revenue generation through increased state fuel taxes or state/regional sales taxes. See text box, EJ Implications of Funding and Financing Methods. In the availability payment

Recognize the Relevant Decision-Makers and Stakeholders 31 EJ Implications of Funding and Financing Methods Important considerations for environmental justice include the extent to which the funding and finance arrangements depend on toll collection or other potentially regressive forms of taxation (i.e., sales or gasoline taxes), the flexibility or lack of flexibility the responsible party has in setting and collecting tolls, the variable or fixed nature of the tolls, toll collection mechanisms (e.g., cash, transponder, video, and/or prepayment requirements), and the extent to which the arrangement depends on or requires pre-proscribed increases in toll rates. 3.2 Documentation of Step 3 The practitioner prepares a technical memorandum using the information in this step to iden- tify the specific stakeholders and the respective roles and responsibilities of each in the planning, development, and execution of the toll implementation or rate change. The memorandum also describes a plan for coordination and communication among the stakeholders for addressing the EJ issues identified in Step 1 and the principles and requirements identified in Step 2. structure, the government retains the responsibility and risk for ongoing funding obligations and in setting the toll rate. Under the direct toll revenue model, the private operator is given the responsibility for toll revenue collection and rate setting under a contract with the government. Reference Table 3.3 (in the Reference Tables section of the Toolbox) shows the various stake- holders and their roles in the implementation stage of tolling with regard to EJ.

32 Scope Approach to Measure and Address Impacts The combined results of Steps 1 through 3 provide the contextual details and an understanding of the toll implementation or rate change to enable scoping of the analysis. The objective of Step 4 is to scope the approach to be used in Step 5 to mea- sure and address potential effects of the toll implementation or rate change on minor- ity and low-income populations. Step 4 accomplishes this by correlating the results of Steps 1 through 3 to impact analysis and mitigation strategy approaches and cor- responding tools. The four key questions the practitioner will answer in this step are as follows: 1. Is it necessary to adjust the initial study area defined in Step 1 based on the input from an initial engagement with the affected communities in Step 3 and further travel mobility and access related information obtained in this step? 2. What analytical methods and processes should be used to conduct impact assess- ment and measurement (Step 5) and to develop mitigation strategies (Step 6) that are responsive to the potential for high and adverse effects (Step 1), applicable legal and regulatory requirements (Step 2), and input from initial engagement with minority and low-income populations (Step 3)? 3. Are there additional tools and information to support the approaches to impact measurement and development of mitigation strategies? 4. Who would be potentially affected by the toll implementation or rate change and how can the potentially affected minority or low-income populations be effectively engaged to provide input and feedback on the proposed approaches and tools for impact measurement and development of mitigation strategies? Several activities may be undertaken to support this step, including: 1. Refine the project study area as initially defined in Step 1, as necessary. Engage the public and gather demographic data at appropriate geographic scales, beginning with the early screening of community characteristics (see text box, Importance of Early Screening of Community Characteristics) and building on data and relationships established in Steps 1 through 3. 2. Identify the demographic characteristics of the populations in the study area and parse demo- graphic data at appropriate geographic scales. Actively engage the public with a major focus on locating and engaging diverse EJ groups on their terms and in their preferred venues to identify EJ populations in the study area. 3. Work with the public, including EJ populations, to identify potential adverse and beneficial impacts imposed by the toll facilities and address questions, expectations, and concerns. S T E P 4

Scope Approach to Measure and Address Impacts 33 Importance of Early Screening of Community Characteristics Practitioners who conduct early screening of a community’s social and economic characteristics and notable community features bring an important perspective to a multi-disciplinary project team. These practitioners can provide other team members with information about the past history and current issues of concern expressed by those living in the affected communities, including low-income, minority, and other traditionally underserved populations. Drawing on the community perspective, the project team can gain critical input for: • defining the project study area • formulating the purpose and need more clearly • developing project alternatives that may resonate with affected communities and populations • formulating a scope of work with appropriate methods to properly investigate the distribution of the benefits and burden impacts of the plan or project These three main elements to scoping the project are not sequential and are closely inter- related and iterative, as shown in Figure 4.1. ALERT: The practitioner is advised to review Step 7, Documentation at the scoping stage. The Step 7 checklist and other Step 7 advice and examples should be used in combination with the tools, analysis, and outreach from Steps 4, 5, and 6 to ensure adequate documentation of public involvement, data collection, and analysis processes as the project progresses. Figure 4.1 (adapted from the Florida DOT sociocultural effects process) provides a depiction of the iterative nature of scoping a project assessment, gathering and assessing data, and determining data sufficiency in close collaboration with local data gatekeepers and the public. The community characteristics inventory referenced in Figure 4.1, also known as the socioeconomic profile, includes demographic and local data as well as infor- mation gathered from the public including EJ populations, community boundaries, preferences, and issues. The Toolbox includes a tool, “Developing a Socioeconomic Profile and Community Characteristics Inventory for EJ Assessments.” While scoping the project and following the steps noted in Figure 4.1, it is important to consider strategies that could be used to consult with the public, including low-income and minority popu- lations. Early identification of community facilities, services, and organizations that work closely with EJ populations is useful because representatives from these institutions can lead to partnering arrangements and involvement processes that facilitate an understanding of the effects that may result from toll implementation or rate changes as well as how to analyze and mitigate the effects. The evaluation process is not linear and sequential; it is iterative. Steps 4, 5, and 6 are particu- larly closely interwoven. Topics introduced for discussion by and with EJ populations in Step 4 will likely be analyzed in Step 5. This analysis may require additional data gathering, consulta- tion, and re-scoping of some elements of the project (such as the size and geographic analysis level of the study area or the introduction of new population groups or resource topics of con- cern) seemingly more pertinent to Step 4. Topics may then be evaluated for disproportionate

34 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox adverse and significant impacts in Step 6, with attendant evaluation and consultation with EJ populations on appropriate mitigation, building on the information and relationships established in Steps 3, 4, and 5. Moreover, this iterative process will likely transpire within each project stage (planning, design, and implementation) and across all stages of the project life. 4.1 Confirm the Study Area Boundaries An initial study area for the identification of potentially affected minority and low-income populations and the analysis of effects is defined in Step 1. The study area is the area expected to be affected by a proposed toll implementation or rate change. The study area should reflect human and natural environmental considerations as well as transportation system mobility and access issues. As such, a tolling project may have different study areas for the analysis of spe- cific issues based on travel behavior than used for other human and natural environment issues (e.g., U.S. Census geography for socioeconomic and demographic analysis versus a watershed for natural resource analysis). See text boxes, Defining the Study Area and Note on Study Areas at Different Stages of Decision-Making. Figure 4.1. EJ effects analysis framework adapted from the Florida DOT sociocultural effects process.

Scope Approach to Measure and Address Impacts 35 Defining the Study Area The geographic boundaries for analysis will vary depending on the nature of the proposed action or plan. Practitioners should establish the study area boundaries carefully so as not to artificially distort the representation of minority and low- income individuals in the affected population. Practitioners should also revise the boundaries if subsequent data collection and public involvement demonstrate a need. FHWA funding recipients should work closely with their FHWA Division Office to establish appropriate units of geographic analysis (FHWA, 2015a). Depending on the region and project study purpose, definitions and methods for identifying affected populations or communities of concern and applying geographic study boundaries will vary. The Metropolitan Transportation Commission (MTC) in the San Francisco Bay Area provides an instructive layered set of area definitions for an environmental impact study of the I-680 Corridor: • Direct Impact Area is the area most likely to experience the potential direct impacts from the project construction and operation; this includes all census tracts within 0.25 mile of the subject corridor. • Extended Resource Area is more expansive by definition, including the geog- raphies of likely users of a proposed express lane facility drawn from a two- county region. In this case, the extended resource area includes Alameda and Contra Costa Counties. • Region of Comparison study area is used for comparative purposes in making a determination as to whether potential project-related adverse impacts are disproportionate in comparison to the greater area. In this case, region of comparison includes Alameda, Contra Costa, Solano, and Santa Clara Counties. Washington State DOT defined three distinct study areas for the Medina Bridge Replacement and HOV Project EIS in the Puget Sound region. • Project Study Area was defined as the area in which the effect of project construction and operations on the human environment fell within a specified distance of the construction limits, including the effects on residents and people who work in the project study area. • Evergreen Point Bridge Travelshed Study Area was used to understand the effects of tolling on bridge users. This travelshed study area included the larger geographic catchment area from which traffic on the Evergreen Point Bridge originates. In making the travel shed determination, Washington State DOT placed video cameras at on- and off-ramps and on the mainline during a.m. and p.m. evening peak periods, at midday, and on weekends. In coordination with Washington State’s Department of Licensing, Washington State DOT then compiled and mapped addresses of registered owners of each videotaped vehicle, facilitating the development of a travelshed map. • Pontoon Construction and Transport Study Area included sites for construction of supplemental stability pontoons required for construction of a new six-lane floating bridge.

36 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Regional travel demand models or travel surveys can inform the definitions of study area boundaries based on the travel behavior of current or future users of the toll facility. The tool, “Using Travel Demand Models for EJ Assessments,” describes criteria for setting boundaries and methods for the analysis and measurement of distributional impacts. For example, San Francisco’s Metropolitan Transportation Commission’s (MTC) regional travel demand model was used to examine regional travel patterns and identify the area most affected by the express lanes in the MTC Regional Express Lanes Program. A select link analysis was performed to identify the travel patterns of all Bay Area residents on a typical weekday and to estimate the traffic flow on every major roadway in the region. The tool, “Applying a Select Link Analysis to Assess Trip Patterns,” provides further definition on this analysis method. 4.2 Select Process and Analytical Methods for Use in Steps 5 and 6 As illustrated in Step 1, toll implementation or rate changes may have effects beyond those typically considered for other highway projects. The effects can be organized into four general categories: mobility, access, and safety; social and economic; physical and environmental; and cultural and historic resources (see Figure 4.2, Reference Table 4.1 in the Reference Tables sec- tion of the Toolbox, and the accompanying text box, Adverse Effects of U.S. DOT Order 5610.2(a) and FHWA Order 6640.23A). Each general category comprises resource topics that are generally considered in detailed environmental studies but can also be relevant in the planning and imple- mentation stages of decision-making. As shown in Figure 4.2, efforts around data collection, impact screening, and public involve- ment should be parallel, interrelated, and iterative. Figure 4.2, similar to Figure 4.1, provides Note on Study Areas at Different Stages of Decision-Making Particularly at the planning stage of decision-making, it is helpful if the selected study area encompasses relevant resource topics (e.g., air quality, mobility, and economic impacts) in an Environmental Assessment (EA) or Environmental Impact Statement (EIS). An EA or EIS usually has multiple study areas representing different resource topics. This Guidebook and the Toolbox emphasize the importance of considering regional mobility and access related issues in tolling. This would be typically defined as the transportation study area in an EA or EIS and it is the most perti- nent regional study area for analyzing the potential EJ impacts of toll projects. This will likely be the preferred study area for a Community Characteristics Inventory at the planning stage as well. For suggestions for the planning and design stages, the study area tiers in the Washington state and San Francisco Bay Area examples (preceding text box) may provide ideas. For methods to develop other resource topic study areas and analyze other resource topics refer to NCHRP Report 532: Effective Methods for Environmental Justice Assessment (Forkenbrock and Sheeley, 2004).

Scope Approach to Measure and Address Impacts 37 Source: Adapted from Prozzi et al., 2006. Figure 4.2. Coordination of analysis and public involvement.

38 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox a framework for illustrating the major interrelated steps for an EJ tolling analysis, including defining the scoping process (Step 4), analyzing impacts (Step 5), evaluating whether there are disproportionately high and adverse impacts borne by low-income and minority populations after consideration of alternatives and potential mitigation options (Step 6), and—equally important—documenting the entire process (Step 7) and monitoring the impacts and the effect of commitments to mitigation (Step 8). Keeping in mind the interrelationship between analyses and public involvement, subject matter experts for each of the resource topics should be prepared to consider their resource area through an EJ lens. In practical terms, this means that proposed data sources, methods, and measures should be presented to EJ populations and, ultimately, shaped and informed by the feedback given by EJ populations regarding their needs, concerns, attitudes, and perceptions of impacts. Efforts should be made in public settings and in the preparation of technical materials to communicate in ways that make technical considerations accessible to the public (e.g., use of visualizations, simple descriptions, and avoidance of technical jargon). Toll facility implementation has the capacity to yield both beneficial and adverse effects and these considerations should inform scoping. Examples of topics for consideration during the process of defining the scope of a toll implementation project are shown in the text box, Considerations for Project-Level EJ Analyses of Toll Roads in Texas. These topics can be used to enrich conversations with stakeholders and EJ populations and to establish a comprehensive scope for project analysis. Adverse Effects of U.S. DOT Order 5610.2(a) and FHWA Order 6640.23A All reasonably foreseeable adverse social, economic, and environmental effects on minority and low-income populations must be identified and addressed. As defined in the U.S. DOT and FHWA Orders, adverse effects include, but are not limited to: • Bodily impairment, infirmity, illness, or death • Air, noise, and water pollution; and soil contamination • Destruction or disruption of man-made or natural resources • Destruction or diminution of aesthetic values • Destruction or disruption of community cohesion or a community’s economic vitality • Destruction or disruption of the availability of public and private facilities and services • Vibration • Adverse employment effects • Displacement of persons, businesses, farms, or nonprofit organizations • Increased traffic congestion, isolation, exclusion, or separation of minority or low-income individuals within a given community or from the broader community • The denial of, reduction in, or significant delay in the receipt of the benefits of DOT programs, policies, or activities Source: FHWA, 2015b

Scope Approach to Measure and Address Impacts 39 Considerations for Project-Level EJ Analyses of Toll Roads in Texas Federal Highway Administration (FHWA) and Texas Department of Transporta- tion (TxDOT) prepared joint guidance for toll roads that identifies considerations for discussion for all projects that include toll features including high-occupancy tolling (HOT), high-occupancy vehicle/managed (HOV/M), or managed lanes (FHWA and TxDOT, 2009). These considerations are matched here to multiple steps in this Guidebook. An abbreviated list of the considerations include: Step 1. Frame Project and Step 4: Scope Approach • Non-toll facilities. Describe available non-toll facilities that offer alternative travel options (e.g., free main lanes on same facility, frontage roads, and parallel arterials). • Toll rates and range of charges. Describe rates, any changes, and any variability (e.g., transit vehicles, HOVs, and motorcycles). • Use of toll revenues. Describe plans for revenue (may also pertain to Step 6, Mitigation). • Toll collection methods. Identify methods [e.g., electronic toll collection (ETC), toll booths] and describe how access and cost are affected. • Cost differences. Identify differences between toll tags purchased with credit/ debit cards versus cash, including how and where accounts are created and maintained (may also pertain to Step 5, Analyze Impacts). • Location of toll booths. Identify location in relation to identified EJ areas. • EJ-related demographic data. Describe for the toll facility user groups [generally by traffic analysis zone (TAZ)]. Step 5. Analyze Impacts • Travel time differences. Quantify differences between toll and non-toll routes (including frontage roads). • Impact on travel times. Disclose that inability to use the toll facilities or lack of parallel non-tolled alternatives may result in increased travel times when using non-toll alternatives. • Economic impact to individuals using the toll facilities. Evaluate and quantify impacts by estimating toll road usage and considering the context in terms of percentage of household income. If variable toll rates are used, an analysis at the high, low, and mid-range toll rates should be provided. • Potential users of the toll facility. Identify potential users by traffic analysis zone (e.g., origin and destination studies can be used to identify potential users of the proposed toll road by choosing the route with decreased travel time). Metropolitan Planning Organizations (MPOs) may propose alternative methods for identifying potential toll facility users. • Travel demand and other modeling. Include a discussion of the assumptions and limitations associated with models used for analysis. (continued on next page)

40 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox In these early conversations, it will be particularly useful to consider the prior history of the corridor, including the sponsoring agency and other governing agency’s prior investments and interactions with the nearby affected communities (i.e., the cumulative effects context of the project). Potential challenges may arise based on this prior history and treatment. These issues will be particularly relevant to establishing the scope and the analytical methods and measures that will be undertaken in Step 5. The menu of methods and measures for researching and analyzing resource topics is discussed in Step 5. Tools and case examples are cross-referenced in Step 5 to provide analysis support for specific human and natural environment topics. 4.3 Identify Additional Information Needs While data collection commenced in Steps 1 through 3, it is likely that additional information will need to be collected as input for the analysis of effects and the mitigation of those effects selecting from among the menu of tools identified in Steps 5 and 6. The identification of data needs and sources can begin during scoping. 4.4 Engage Minority and Low-Income Populations in Scoping Steps 5 and 6 The development of a community characteristics inventory (see Figure 4.1 and associated tool) of potentially affected communities and constituent populations is an important initial step in thinking through the potential impacts of a tolling-related decision or project. The inven- tory must identify whether there are low-income and minority populations in the study area, and it should closely follow the definitions of “low-income,” “minority,” and “populations” put forward by U.S. DOT Order 5610.2(a) and FHWA Order 6640.23A on Environmental Justice (see text box, Title VI and EJ Address Which Groups?). The community characteristics inventory helps inform the development of appropriate out- reach strategies to engage populations to learn about their needs, use, and perceptions of the transportation system. Through this iterative effort, the agency and practitioner should seek to develop greater insight into the demographic realities and use of transportation within a region Step 6. Mitigation • Mitigation measures. Recommend mitigation measures for consideration (e.g., transit service improvements, toll subsidies, HOV discounts). If the analy- sis does find disproportionately high and adverse effects, mitigation measures must be considered. Mitigation measures may be addressed in a region’s/MPO’s toll policy. • Accommodation for limited English proficiency and persons with disabilities. Accommodations provided by the tolling authority to allow populations with limited English proficiency and the disabled to access the toll facilities. For example, the TxTag website is available in Spanish and provides a customer service contact number for the deaf and hard of hearing. Source: FHWA and Texas DOT, 2009

Scope Approach to Measure and Address Impacts 41 or study area. Any resulting inventory should consider the social conditions and context of life for distinct socioeconomic groups, including low-income and minority populations, who reside, work, or visit destinations in the affected communities. These considerations should include how various groups may use the transportation system differently to access jobs, education, or other essential destinations for groceries, health care, and recreation. The inventory should assist in identifying and addressing potential barriers to successful pub- lic participation events, and consequently, lead to involvement processes and project designs that meet the needs and concerns of the affected communities. Several considerations as well as tools and techniques supportive of the general task objective of identifying populations are given in Table 4.1. The primary tool for this portion of Step 4 is “Developing a Socioeconomic Profile and Community Characteristics Inventory for EJ Assessments.” This tool provides guidance and resources on study area definitions and preparing an inventory of community characteristics. It also provides Title VI and EJ Address Which Groups? Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin. In furtherance of EO 12898, U.S. DOT Order 5610.2(a) and FHWA Order 6640.23A provide important definitions of minority and low-income populations. Minority. A “minority” individual is a person who is: • Black: a person having origins in any of the black racial groups of Africa; • Hispanic or Latino: a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race; • Asian American: a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent; • American Indian and Alaskan Native: a person having origins in any of the original people of North America and South America (Including Central America) and who maintains cultural identification through Tribal affiliation or community recognition; and • Native Hawaiian and Other Pacific Islander: a person having origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. Low-Income. The Orders define a “low-income” individual as a person whose household income is at or below the U.S. Department of Health and Human Services (HHS) poverty guidelines. FHWA guidance notes that a state or locality may adopt a more inclusive threshold for low-income than that specified by HHS as long as it is inclusive of all persons at or below the HHS poverty guidelines (FHWA, 2015a). Populations. For the terms “minority” and “low-income,” the FHWA and U.S. DOT Orders define a “population” as any readily identifiable group of minority and/or low-income persons who live in geographic proximity, and, if circum- stances warrant, geographically dispersed/transient persons of those groups (such as migrant workers, homeless persons, or Native Americans) who will be similarly affected by a proposed FHWA/DOT program, policy, or activity.

42 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Using Available Tools from EPA and the U.S. Department of Housing and Urban Development EPA Tool to Scan for Potential EJ Impacts. EPA developed the EJScreen tool to help define 12 risk factors for EJ populations by areas defined by the user. This tool can be helpful for data gathering and in working with community groups to “ground-truth” the data and contribute to discussions. The tool shows where EJ populations are (by more indicators than just low-income and minority) and then how the risk factors (like air quality) compare in a specific area to the county, state, and nation. Community members and analysts can hone in on the areas for analysis where the potential risk exists. The tool and discussion with the community supports (a) why some resource topic areas did not receive further consideration, and (b) where elevated risk already exists and deserves further analysis. Affirmatively Furthering Fair Housing Data and Mapping Tool. The U.S. Depart- ment of Housing and Urban Development created an online Affirmatively Furthering Fair Housing Data and Mapping Tool (AFFH-T) with tables and maps customized to its grantee communities. The data and maps explore the relation- ships between demographics (e.g., race, poverty, public housing programs, limited English proficiency, and disability) and measures of opportunity such as job proximity, labor market, school proficiency, transportation costs, and environmental health. Understanding the demographic, social, and economic characteristics of affected communi- ties is more than a “desktop” exercise using census data with GIS mapping tools. Central to a defensible EJ analysis is the design and implementation of an inclusive outreach process that establishes opportunities for meaningful participation, including for low-income, minority, and other traditionally underserved populations. Identifying the location of these populations in the affected area is a prerequisite step for developing an effective public involvement plan (PIP) that can be implemented to contribute to a substantively comprehensive assessment of the benefits and burdens of tolling decisions. As part of developing a PIP, key stakeholders and community leaders can provide valuable information about potentially affected communities and populations, including their values, customs, family and social arrangements, and community assets. These discussions can also strengthen relationships with influential leaders or institutions that can evolve into the types of partnering arrangements that will make subsequent outreach activities and assessment by the agency more successful and credible. Information compiled about the location and diverse characteristics of the affected popula- tions can also inform the periodic evaluation of the effectiveness of the PIP—an important a discussion of the various threshold definitions as well as the limitations of using thresholds for identifying EJ populations, and cross references to additional case examples and more detailed tools. Also see text box, Using Available Tools from EPA and the U.S. Department of Housing and Urban Development.

Scope Approach to Measure and Address Impacts 43 Take Note: FHWA Encourages Inclusion Beyond Minimum Thresholds “Environmental justice is about identifying and addressing disproportionately high and adverse effects of proposed decisions on low-income populations and minority populations. When delivering transportation projects, however, prac- titioners should also seek equitable conditions for other protected categories— including race, color, national origin, sex, age, disability, and persons with limited English proficiency. FHWA employees, grantees, and recipients are responsible for understanding and implementing the principles of EJ in addition to other nondiscrimination requirements” (FHWA, 2015a). means by which the agency and the practitioner can assess whether outreach activities have been successful in reaching affected populations and fostering opportunities for meaningful involve- ment. See text box, Take Note: FHWA Encourages Inclusion Beyond Minimum Thresholds. The tool, “Preparing, Implementing, and Assessing a Public Involvement Plan,” is a key resource for all the steps of the EJ tolling assessment process. The tool includes suggestions for inclusive outreach, examples of effective practices, and a summary table on “Practical Approaches for Involving Traditionally Under- served Populations.” Related tools and case examples on public involvement go into more detail on successful techniques. The most relevant public involvement tools and case examples for scoping the approach are summarized in Table 4.1. 4.5 Documentation of Step 4 The practitioner prepares a technical memorandum with the information gathered in this step to document the process and results for the following items: • Adjusting or confirming study area boundaries by – Selecting analysis tools to use in Step 5 (Impact Analysis) and Step 6 (Mitigation Analysis), – Identifying data and sources needed to conduct Step 5 and Step 6, and – Establishing a plan for obtaining the data; and • Engaging with the affected minority and low-income populations on – Defining the study area, – Identifying impact and mitigation analysis tools, and – Finding potential additional data sources (including additional people). Table 4.1 provides a summary of the tools (including tools, case examples, reference tables, and checklists) most relevant to Step 4. Please refer to the relevant sections or to the tools them- selves for information about their applications. The Scenarios section in the Toolbox also pro- vides examples on how to apply select tools.

44 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Tool Full Title Short Title Preparing, Implementing, and Assessing a Public Involvement Plan Public Involvement Plan Developing a Socioeconomic Profile and Community Characteristics Inventory for EJ Assessments Community Characteristics Inventory Using Public Use Microdata Samples to Profile Transportation Characteristics and Differences Using PUMS Using the National Household Travel Survey to Profile Transportation Characteristics and Differences Using NHTS Using Focus Groups in Assessing the Impact of Tolling on EJ Populations Focus Groups Designing and Implementing Surveys to Assess Attitudes and Travel Behavior for EJ Analyses and to Monitor Implementation Conducting Surveys Using Travel Demand Models for EJ Assessments Travel Demand Models Analyzing the Value of Time/Willingness to Pay in EJ Assessments VOT/Willing to Pay Assessing User Costs and Household Burden Effects User Costs, HH Burden Conducting Citizen Panels to Explore Key Issues of Value Pricing, Minneapolis–St. Paul Region, Minnesota Citizen Panels MN Mobilizing a Local Liaison to Recruit Community Leaders for Survey, Louisville–Southern Indiana Ohio River Bridges Project Surveys with Local Liaison KY-IN Targeting Local Grocery Stores to Administer Community Surveys, Louisville–Southern Indiana Ohio River Bridges Project Surveys at Grocery Stores KY- IN Conducting Pre- and Post-Implementation Surveys of Traveler Behavior and Opinions, Atlanta Region, I-85 Corridor Pre- and Post-Surveys Atlanta Examples of Resource Topic Considerations Added by Tolling Tolling Consideration EJ Impact Documentation Checklist Documentation Checklist Table 4.1. Summary tools for Step 4, scope approach.

45 In Step 5, the practitioner applies the methods selected in Step 4 to analyze the potential effects from the toll implementation or rate change. In applying the analytical methods, the practitioner should both obtain input from the affected EJ communities and share the results of the analyses with the communities for validation, refinement, and understanding. The key questions to answer for this step are: • What is the severity and magnitude of the effect? • Are the effects beneficial or adverse? • How will these effects be distributed between or borne by low-income populations, minority populations, and other “non-protected” populations? 5.1 Impact Analysis Tools Effects are organized into four general categories, as described in Step 4. Each general category consists of resource topics that are generally considered in detailed environ- mental studies but can also be relevant in the planning and implementation stages of decision-making. The four general categories are: • Mobility, access, and safety; • Social and economic; • Physical and environmental; and • Cultural and historic resources. The primary focus of the corresponding tools in the Toolbox is on the mobility, access, and household financial burden effects to users as these are unique aspects to the tolling. The mobil- ity and access tools identified in this step are designed to help determine who benefits and who is burdened by toll implementation or rate changes, the size of the benefit or burden, and whether the benefits or burdens are principally borne by or appreciably more severe or greater in magni- tude for EJ populations. In Step 6, methods and criteria for making a determination of whether these impacts are disproportionately high and adverse are further discussed. Among other things, the Toolbox includes guidance on using existing travel demand mod- els to assess potential changes in travel patterns by income level, as well as guidance on using specialized data sources [i.e., Public Use Microdata Sample (PUMS) and National Household Travel Survey (NHTS)] and specialized procedures (i.e., select link analysis) to analyze potential toll impacts. Analysis methods such as value of time (VOT) proportionate to income levels are described because they can have particular relevance to an EJ analysis of tolling. Case examples S T E P 5 Conduct Impact Analysis and Measurement

46 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox are also presented to illustrate how specific analytical approaches and measures were applied in Los Angeles County, Atlanta, and Dallas-Fort Worth to identify, assess, and measure impacts on low-income and minority populations from tolling plans and implementation. The Toolbox does not specifically cover tools to analyze potential impacts where the existence of a toll aspect of a transportation project has little or no bearing on the methodology for an analysis. For example, a toll road project may potentially affect bicycle and pedestrian safety, air quality, noise, and historical and cultural resources but the methodology for assessing the EJ impact will be the same as for a roadway project that does not involve toll implementation or rate change. NCHRP Report 532 includes an array of methodologies, from simple to complex, to assess EJ impacts for each of the resource topics for common transportation projects. Cumulatively, tolling or rate changes can combine with effects of other past, present, or future actions (e.g., a decision to reduce the hours and frequency of service offered by the regional transit system or an increase in emissions or noise along a route used by toll avoiders) to affect EJ populations. Step 6 discusses cumulative direct and indirect effects, as well as potential miti- gation and other actions. Reference Table 5.1 in the Reference Tables section of the Toolbox addresses each resource topic area with (1) basic EJ assessment methods (using titles from NCHRP Report 532 methodologies), (2) special considerations for analyzing toll projects, and (3) relevant tools and approaches for addressing each resource topic. The “Synopses of Tools” and the “Synopses of Case Examples” provide a summary description of each of the tools and case examples that are included in the Toolbox. Table 5.1, presented at the end of this step, provides the titles of the most pertinent tools for Step 5. 5.2 Impact Severity and Magnitude For certain resource impacts such as air quality and noise, the severity and magnitude of the effect can be assessed by comparing applicable model results to established impact stan- dards (e.g., national ambient air quality standards or noise abatement criteria) under existing or baseline and alternative future conditions (i.e., without the toll or a No-Build or No-Action alternative). For resource topics with well-understood standards, the analyst can identify when standards are exceeded. However, for several topics relevant to travel behavior and costs in EJ analysis, there is no established absolute standard (e.g., travel costs as a percentage of household income, change or difference in commute travel time, increase or decrease in number of jobs or destinations within X minutes of travel by transit or auto, or trip reliability via alternative routes or modes of travel). In these cases, relative comparisons are needed to convey changes under various alternatives and conditions. Such relative comparisons can consist of a “with toll” analysis versus a “without toll” analysis, or “with rate change” analysis versus a “without rate change” analysis, as the case may be. Another type of relative comparison is the proportionate change in burden for minority or low-income population versus the proportionate change in burden for the non-minority or non-low-income population from the toll implementation or rate change. The level and depth of analysis can be tailored to the magnitude of the impact, community perceptions of its importance, and the potential for disproportionately high and adverse effects on low-income or minority populations. The public involvement process should include oppor- tunities to engage with EJ populations to share information and receive feedback from the com- munities affected by a particular project throughout the data collection, assessment, analysis, and decision stages of this process.

Conduct Impact Analysis and Measurement 47 5.3 Documentation of Step 5 The practitioner prepares a technical memorandum with the information gathered in this step to document the process and results for the following items: applying the methods used to analyze effects; identifying the severity and magnitude of the effects through comparison to applicable standards and, in the absence of standards, through relative comparisons; and under- standing the outcome of engagement with the affected minority and low-income populations on the application of the analysis methods and interpretation of the results. Table 5.1. Tools for Step 5, analyze impacts. Tool or Case Example Full Title Short Title Designing and Executing Surveys to Assess Attitudes and Travel Behavior for EJ Analyses and to Monitor Implementation Conducting Surveys Using Travel Demand Models for EJ Assessments Travel Demand Models Applying a Select Link Analysis to Assess Trip Patterns Select Link Analysis Analyzing the Value of Time/Willingness to Pay in EJ Assessments VOT/Willing to Pay Assessing User Costs and Household Burden Effects User Costs, HH Burden Using an EJ Index to Identify Affected Populations, Dallas–Fort Worth Metro Region EJ Index NCTCOG Conducting Pre- and Post-Implementation Surveys of Traveler Behavior and Opinions, Atlanta Region, I-85 Corridor Pre- Post-Surveys Atlanta EJ Assessment Methods by Resource Topic Area Assessment Methods EJ Impact Documentation Checklist Documentation Checklist Note: NCTCOG = North Central Texas Council of Governments. Preparing, Implementing, and Assessing a Public Involvement Plan Public Involvement Plan Developing a Socioeconomic Profile and Community Characteristics Inventory for EJ Assessments Community Characteristics Inventory

48 Step 6 describes how to determine whether a toll implementation or rate change will have a “disproportionately high and adverse effect” on EJ populations, and if so, what to do about it. As described in Step 5, impacts for all resource topic areas have been assessed using quantitative and qualitative methods and meaningful involvement processes have been undertaken with low-income and minority populations to discuss the project and its potential impacts. Potentially adverse effects have been identified, and findings related to the severity and magnitude of impacts have been disclosed to EJ populations. Among the questions the practitioner will answer in this step are: Definition. What is a “disproportionately high and adverse effect”? Does it relate only to the direct effects of the toll implementation or rate change, or can it also relate to indirect and cumulative effects? Evaluation. What kind of disproportionate impacts do toll implementation and rate change projects typically generate that result in disproportionately high and adverse effects for EJ populations? What kinds of comparisons are appropriate? Can evaluations be quantitative or qualitative or both? Are there guidelines on how to quantify or confirm a disproportionately high or adverse impact? How do affected EJ populations fit into the evaluation process? Response to Foreseeable Disproportionately High and Adverse Impacts. What if there are also benefits to the project? What kinds of responses such as avoidance, minimization, or mitigation are possible for toll projects? Should the public and EJ populations be included in discussions on avoidance or mitigation? What if the community-preferred miti- gation or avoidance options would make the project infeasible? What is a “practicability” test? 6.1 Assess Whether an Effect is Disproportionately High and Adverse 6.1.1 FHWA Environmental Justice Guide If a federally funded project burdens an EJ population (of whatever size) with a dispropor- tionately high and adverse effect in any resource area, project sponsors must work with the EJ populations to avoid, minimize, or otherwise mitigate the impact; if not, FHWA may not approve the project (except under certain specific exceptions). S T E P 6 Identify and Assess Mitigation Strategies

Identify and Assess Mitigation Strategies 49 The Federal Highway Administration Environmental Justice Reference Guide describes “Dispro- portionately High and Adverse Effects” as follows: The FHWA and USDOT EJ Orders state that “disproportionately high and adverse” refer to an adverse effect that (1) is predominately borne by a minority population and/or a low-income population or (2) will be suffered by the minority population and/or low-income population and is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the non-minority population and/or non-low- income population. “Disproportionately high and adverse” effects may only impact a few people. Practitioners should collect as much information as necessary from relevant sources to make informed decisions. When considering whether effects are “disproportionately high and adverse,” practitioners should seek input from the communities that may be impacted. Projects cause positive and negative effects, or “benefits and burdens,” which may occur in the short, medium, or long term. A comprehensive analysis will include consideration of all of these factors as well as the cumulative effect of a decision in combination with past actions and all other reasonably foreseeable future actions (FHWA, 2015a). Whether a particular effect is disproportionate or not may be determined through qualitative or quantitative methods or both, with input from impacted communities, supported by related tools. Figure 6.1 provides a simple illustrative summary of the process of evaluating whether effects are disproportionately high and adverse for EJ populations. A determination that effects on EJ populations are disproportionately high and adverse triggers a process of looking at poten- tial alternatives and mitigation (avoidance, minimization, mitigation, in that order) as well as potential offsetting benefits, until the effect is no longer disproportionately high and adverse. The steps in Figure 6.1 simplify the Federal Highway Administration Environmental Justice Reference Guide (2015a) but capture the main elements. In essence, the burden of proof is on the sponsoring agency or project proponent to document and confirm (1) that community members have been actively engaged in developing and reviewing alternatives for avoidance, minimization, and offsets of adverse impacts and (2) that every practicable mitigation measure that community members have identified has been evaluated and has been or will be imple- mented, if practicable. Figure 6.2 is also provided to illustrate a conceptual decision tree to evaluate the EJ tolling impacts. The decision tree is intended to help the practitioner walk through the analysis and nuances of the EJ tolling impact analysis process. The decision tree focuses on the accessibility and mobility resource topic areas required for analysis, but the basic questions and decision steps will be similar for all resource topics. The Checklist section of the Toolbox contains a suggested template to track the progress and status of the analysis and disposition of each resource topic in an EJ toll facility and rate change analysis. 6.1.2 Indirect Effects and Cumulative Impacts Indirect effects and cumulative impacts analyses are defined in 40 CFR 1508.8(b) and 40 CFR 1508.7, respectively. Indirect effects are caused by the project but occur later in time or are farther removed from the project footprint. Cumulative impacts include the direct and indirect effects of the project as well as the past, present, and other reasonably foreseeable future actions (public and private). One of the challenges in analyzing indirect and cumulative effects is determining the scope and study area of the analysis. The study area for tolling-related EJ analyses should be expansive enough to consider the catchment area or commuting shed of the potential users of the subject toll road network or corridor. A cumulative impacts assessment as it relates to EJ would consider recurring impacts on a community (e.g., accessibility to opportunities, community cohesion, air quality, safety), which

50 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox are the impacts of a proposed action in the context of past public and private actions. In some cases, impacts on low-income and minority communities may not have been addressed ade- quately because the siting and construction of the highway alignment occurred prior to the enforcement of the environmental impact, civil rights, and public disclosure laws. In other cases, impacts from various projects within a community may have been considered minimal but cumulatively had substantial effect when considered in combination with other project impacts. From a tolling standpoint, cumulative effects can be significant if the results of past, present, Figure 6.1. Disproportionate effects summary flow chart.

Identify and Assess Mitigation Strategies 51 Figure 6.2. Conceptual decision tree for EJ tolling impact evaluation.

52 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox and reasonably foreseeable future actions are to isolate communities or put an undue economic burden on the ability of low-income and minority populations to travel efficiently. Project-Level Analysis At the project level, the implementation of tolls should be included in the indirect effects and cumulative impacts analysis (in addition to direct effects). In some cases, such as a limited-access tolled highway, the project may serve to keep communities intact if they are not separated by the facility. For example, a limited-access tolled facility might decrease induced development from the proposed project (i.e., indirect effects), which in turn could result in little to no impact on land value, development, and community cohesion. With regard to economic burden or travel time, the same limited-access facility might (1) result in adverse impacts to travel time (using non-tolled facilities), (2) reduce access to opportunity and connections to different modes of transportation, or (3) have a design configuration that functions as a barrier for local travel or isolates pockets of local communities. Some of the mitigation measures for project-level impacts could inadvertently result in incre- mental but cumulatively considerable impacts on low-income and minority populations. For example, using toll revenue to improve other transportation systems may benefit the commu- nity, but if multiple tolling projects occur within a region, the general improvement of trans- portation systems may not be sufficient to mitigate the economic burden placed on specific low-income or minority populations who are without alternatives. To reduce the possibility of cumulative effects on low-income and minority populations associated with tolling projects, mitigation measures should aim to alleviate the direct effect of the project. For example, for the St. Johns River Crossing project (case example, “Selecting a Design Alternative to Mitigate the Adverse Effects of Tolls on a Low-Income Community, St. Johns River Crossing, Clay and St. Johns Counties, Florida”), the selected alternative for the limited- access tolled facility replaced the Shands Bridge, which was a non-tolled crossing of the St. John River. Because a non-tolled crossing option within a reasonable driving distance was not avail- able and the existing free crossing (existing Shands Bridge) would be removed, Florida DOT decided to keep the local trips across the bridge toll-free. The mitigation of allowing local trips to remain non-tolled not only eliminated the disproportionately high and adverse effect but also alleviated the effect in such a way that the project would not contribute to recurring community impacts. System-Wide Analysis Cumulative impacts from tolling projects could be addressed through a system-wide analysis. During the policy and planning stage, the impacts of tolling should be considered as long-range transportation plans and regional mobility plans are developed and approved. In the planning phase, a long-range (20 to 30 years) plan for future transportation investments and a short- range (3 to 6 years) program of transportation improvement projects approved for funding are developed at the regional and state levels. In this process, the funding gaps could be identified and tolling alternatives could be considered. When the evaluation of tolling is completed at the transportation system level, the program of transportation improvement projects could be assessed to consider whether there would be cumulative economic burdens to low-income and minority populations. For example, NCTCOG proposed an alignment for the Chisholm Trail Parkway that would operate as a toll road in Fort Worth, Texas. The proposed toll route would prevent through traffic along an existing local road used by the low-income residents of a retirement commu- nity near the alignment. Alternative non-tolled routes would more than double the residents’ travel distance and travel time. In its long-range planning process and regional tolling analysis,

Identify and Assess Mitigation Strategies 53 NCTCOG determined that siting the new toll road would adversely affect roadway access for the residents of the retirement community. NCTCOG addressed the adverse effects of the Chisholm Trail Parkway on the residents of the retirement community by purchasing pre-paid toll tags for the residents with government funds (see case example, “Mitigating Reduced Access via Toll Credits, Dallas–Fort Worth Metro Region”). The text box, Considerations for Network-Level EJ Analyses of Toll Roads in Texas, adapted from NCTCOG, identifies considerations for toll roads at the network level that provide additional considerations for indirect and cumulative analysis. Considerations for Network-Level EJ Analyses of Toll Roads in Texas The Federal Highway Administration/Texas Department of Transportation (FHWA/TxDOT) prepared a Joint Guidance for Toll Roads that identifies consider- ations for system- or regional-level studies, including the identification of existing and planned toll network projects in the financially constrained metropolitan transportation plan (MTP). Several of the items prepared for a project level analy- sis in an environmental document (presented in Step 5) would also be relevant in a network level analysis, including discussions of: • Toll policies • Methods of toll collection • Policies regarding the use of toll revenues and/or mitigation measures • Limited English proficiency (LEP) provisions in accessing toll facilities Items included in the network analysis may be repeated in project-specific rel- evant environmental documents (most likely in the cumulative impacts section). Toll network analyses are expected to discuss or document: • Maps indicating the implementation of the toll network over time. • Cumulative economic impact on individuals using the toll network facilities (i.e., similar to methods of project-level economic impact analysis, but expanded to encompass the entire network). In the Dallas–Fort Worth area, the average trip length was used to compute a reasonable estimate of the distance the average commuter would travel along toll facilities. The average trip distance is multiplied by the number of assumed trips per year (500) and then multiplied by the estimated cost per mile of traveling on toll facilities. The discussion should discuss what percentage of household income this cost rep- resents for a household at the poverty level versus a household at the median household income. If variable toll rates are used, an analysis at the high, low, and mid-range toll rates should be provided. • Growth of the toll network. This can be a simple description. For example, in the Dallas–Fort Worth area, approximately 11% of the main lane miles are currently tolled, and by the Metropolitan Transportation Plan (MTP) horizon year (2030) this will increase to approximately 30%. • Identification of potential users of the toll network facilities. Origin and Destination (O&D) studies may be used to identify potential toll users. In the Houston area, trips were considered toll candidates if use of the toll facility would decrease travel time by half a minute or more. Typically, users are (continued on next page)

54 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox identified in the same manner as at the project level, but the analysis is expanded to include the entirety of the proposed tolled network. It can be illustrated on maps using gradation to show trips generated by traffic survey zone (TSZ) using the toll network. • Travel demand and other modeling. O&D studies or travel times are acceptable methods for identifying potential toll roads users. However, metropolitan plan- ning organizations (MPOs) may propose alternative methods for identifying potential toll facility users. • Measurement of benefits. A measure of the benefits of implementing the financially constrained MTP, including the toll network. In the Houston area, this was accomplished by a comparative analysis of the average travel times for EJ zones and non-EJ zones using toll facilities and using non-toll facilities under both the build and no-build scenario. In the Dallas–Fort Worth area, traffic analysis network performance reports generated by the travel demand model were used to show the overall benefits of projects in the MTP, including the toll network, by comparing the horizon year build and no-build scenarios. The additional revenues and expedited implementation of projects can also be cited as a benefit of the toll network. Source: FHWA and Texas DOT, 2009. 6.2 Evaluation FHWA provides general guidance on criteria for evaluating disproportionately high and adverse effects but has not issued regulations for how to proceed with an evaluation, leaving to the states and localities some flexibility in addressing unique circumstances. Each state DOT in each FHWA region, however, is likely to work with their FHWA regional office to develop a defensible analysis framework and methodology for EJ analysis pertaining to a specific project, or they may have an approved framework in place. Environmental Justice in Transportation Planning and Projects: A Desk Guide for Tennessee provides a cogent summary of questions related to the determination of disproportionate effects that may need to be explicitly addressed to prepare a reasoned, defensible evaluation (English, 2007). DOT Order 5610.2 specifies that “disproportionate” refers to an impact that either (1) will be predomi- nantly borne by the protected population, or (2) will be more severe or greater in magnitude for the pro- tected population than for others. This leaves unanswered a number of questions, however. For example: Over what time period should a burden or benefit be evaluated? What should the comparison population group be? What is being compared? . . . an absolute measure of performance (e.g., of air quality) for a pro- tected population vs. other populations? . . . the pre and post project change in the performance measure for the protected population? . . . the relative pre and post project change for the protected population vs. other populations? What if a transportation project will create a net burden for one part of the protected popula- tion but a net benefit for another part of the protected population? The types of questions mentioned by the Tennessee desk guide suggest just some of the ana- lytical challenges in preparing a defensible environmental justice evaluation. The range of ques- tions also extends to the purpose and need and rationale for prioritizing and advancing a toll implementation project—in comparison to other projects with less favorable support or fund- ing potential—when there may be, arguably, other projects or alternatives with more direct benefit to EJ populations.

Identify and Assess Mitigation Strategies 55 Below, common frameworks for evaluating disproportionate analysis include: (1) qualitative and quantitative evaluations, often both, and (2) comparisons between impacts on EJ popu- lations and non-EJ populations, comparisons between impacts on EJ populations with and without the proposed toll project (often including comparisons with other alternatives), and comparisons between both sets of factors. 6.2.1 Qualitative and Quantitative Evaluations In the Reference Tables section of the Toolbox, Reference Table 6.1 summarizes typical analy- sis frameworks for the resource topic areas of an impact assessment (as previously identified in Steps 4 and 5). These frameworks include considerations for making a determination of dis proportionately high and adverse impacts for a toll implementation project specific to the resource topic areas. The analysis and findings for each resource topic area for a specific project will be particular to that project and to the interactions and consultations with EJ populations that have taken place throughout project development. 6.2.2 EJ and Non-EJ Population Comparisons and Project Versus Non-Project Comparisons Over time, common practices have developed on evaluation techniques or frameworks for determining disproportionately high and adverse impacts. Most begin with vertical or hori- zontal comparisons of impacts, comparing EJ and non-EJ populations and also comparing the project or plan to the existing condition, as displayed in the series of figures below. The geo- graphic definition of EJ and non-EJ populations is typically established on a preliminary basis in the Step 4 Scoping phase, and refined as EJ outreach and consultation builds throughout the process. As highlighted in the excerpt from the Federal Highway Administration Environmental Justice Reference Guide, “disproportionately high and adverse” effects may only impact a few people, so the outreach and analysis must be attuned to varying levels of geography and possibly to small segments of EJ population groups. In Figure 6.3, an illustration of a vertical comparison of the adverse effects and the benefits between the toll alternative and the existing condition (or other alternative) for EJ populations and non-EJ populations is shown, leading to the question: Are EJ populations better off or worse off if the toll plan is implemented? In Figure 6.4, an illustration of a horizontal comparison is shown. In this case, the adverse effects and the benefits between the EJ populations and the non-EJ populations for the existing condition and the toll alternative are considered, leading to the question: Are EJ populations better off or worse off than non-EJ populations if the toll plan is implemented? Scenario Without Toll Plan With Toll Plan C A EJ Population Non-EJ Population B D Figure 6.3. Vertical comparison of impacts.

56 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox In Figure 6.5, a bi-directional comparison of the impacts is shown. In this illustration, how does (C-A) for EJ populations compare with (D-B) for non-EJ populations. The key question is: Do EJ populations experience more adverse effects from the toll plan or more benefits from the toll plan than non-EJ populations? In practical application, the framework can be expanded vertically to include additional alter- natives or scenarios, sometimes including future time horizons. They can also be expanded horizontally to include different concentrations of EJ populations, or different segments of EJ populations, to lay out advantages and disadvantages between scenarios and how each scenario might affect different groups. The tool, “Evaluating Disproportionate Effects with Quantitative Methods,” highlights guid- ance with step-by-step quantitative analysis techniques from two DOTs in different regions. One approach primarily applies statistical analysis, while the other uses percentage differences to evaluate for disproportionately high and adverse impacts. The practitioner is invited to peruse this tool as well as other relevant tools noted in Table 6.1 and thoroughly discuss the ratio- nale used for making a disproportionately high and adverse impact assessment with the FHWA region and with local stakeholders. It should be recognized that various agencies have adopted mitigation measures to address significant community concerns without quantitative proof of a disproportionately high and adverse impact (e.g., I10–I110 LA County Case). Moreover, the agency is not obligated to quantitatively confirm a disproportionately high and adverse impact in order to establish mitigation measures that the community supports. 6.3 Response Impacts vary based on the type of project, and can impact any resource topic, as discussed in Step 5, potentially creating a disproportionately high and adverse impact. Continuing to work with the community is crucial, as discussed throughout the guidebook and emphasized Scenario Without Toll Plan With Toll Plan C A EJ Population Non-EJ Population B D Figure 6.4. Horizontal comparison of impacts. Scenario Without Toll Plan With Toll Plan C A EJ Population Non-EJ Population B D Figure 6.5. Bi-directional comparison of impacts.

Identify and Assess Mitigation Strategies 57 in the FHWA guidance. All resource topics that identify significantly adverse impacts should be addressed in this step—either through the analysis of benefits and determination of net benefits to EJ populations; or through avoidance or mitigation of impacts; or through the determina- tion of no practicable alternative, as shown in Figure 6.1 (also see text box, FHWA Guidance: Key Points to Consider). Tools and case examples address disproportionate impacts and poten- tial mitigation for resource topics such as transportation accessibility and choice, with related impacts on social cohesion and economics in terms of the added household burden from the new or increased cost. FHWA Guidance: Key Points to Consider In determining whether an effect is “disproportionately high and adverse,” the U.S. DOT EJ Order notes that practitioners may take the following into account: planned mitigation measures, offsetting benefits to the affected minority and low-income populations, the design, the comparative impacts, and the relevant number of similar existing system elements in non-minority and non-low- income areas. If, in consultation with affected populations, the responsible practitioners deter- mine that a decision will have a “disproportionately high and adverse effect” on minority populations or low-income populations, it may only be carried out if further mitigation measures or alternatives that would avoid, minimize, or mitigate the disproportionately high and adverse effect are not practicable. In determining whether a mitigation measure or an alternative is “practicable,” practitioners should consider the social, economic (including costs), and environmental effects of avoiding or mitigating the adverse effects. If there is no way to reduce the effects so that they are no longer disproportion- ately high and adverse and the affected population is a minority population protected under Title VI, FHWA will not approve the project unless: a substantial need for the program, policy, or activity exists, based on the overall public inter- est and alternatives that would have less adverse effects on protected popula- tions (and that still satisfy the project need), either would have other adverse social, economic, environmental, or human health impacts that are severe or would involve increased costs of extraordinary magnitude. (FHWA, 2015a). Through pricing, toll implementation projects can manage travel demand and congestion and affect travel behavior in a regional network and have varying effects for its users. Even if the nearby communities along a subject corridor appear to avoid observable adverse impacts, toll implementation decisions warrant close attention for their regional travel behavioral effects as the area of impact may be more expansive than the immediate subject corridor and its surround- ing area. This was addressed in Step 4, Scoping Approach, in terms of establishing appropriate geographic scales for demographics and overall analysis, and in the tool, “Developing a Socio- economic Profile and Community Characteristics Inventory for EJ Assessments.” Geographic scale and study area definition are also significant in analyzing disproportionate impacts, as can be inferred from the tool, “Evaluating Disproportionate Effects with Quantitative Methods.” Several considerations imposed by toll implementation were identified in Step 4 (see Table 4.1). Any of these considerations could result in a disproportionately high and adverse impact for EJ populations. An example of a potential disproportionate impact for air quality is described in the text box, Mobile Source Air Toxics—Challenge for Assessment.

58 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Mobile Source Air Toxics—Challenge for Assessment EJ populations are disproportionately located near major roadways. Addressing Mobile Source Air Toxics (MSATs) in the National Environmental Policy Act (NEPA) process can be challenging because there are no clear standards and because of the uncertainty and methodological issues involved in attributing long-term health impacts to specific transportation alternatives. Addressing the Challenge: FHWA has identified three levels of MSAT analysis and criteria to determine which category applies to a project: 1. No analysis for projects with no potential for meaningful MSAT effects; 2. Qualitative analysis for projects with low potential MSAT effects; or 3. Quantitative analysis to differentiate alternatives for projects with higher potential MSAT effects. Powerful Process to Quantify Disproportionate Impacts: The hot-spot detailed modeling process can provide valuable information to an EJ analysis. For exam- ple, it can simulate the distribution of air quality impacts to specific pockets of low-income or minority populations. The results can be aggregated at census geographies for quantitative analysis of whether or not the impact is dispropor- tionately borne by EJ groups. The dispersion modeling results can also be used in assessments of health impacts. In particular, the toll implementation and rate change decision can have differing mobility and accessibility effects for the region’s low-income users and, therefore, there is a possibility that adverse effects of the decision will be borne disproportionately by low-income populations. As a result, it should prove difficult to categorically dismiss this impact without proper study and documentation as to the rationale for the impact determination. Imposing a toll on a critical transportation link, particularly when there is not a viable non- tolled alternative, can affect people’s typical travel patterns for school, work, religious activities, social activities, shopping, recreation, and services, because of the affordability. Thus mobility and access impacts can also have rippling impacts on community cohesion. Unavoidable tolls may also impose a more significant financial burden on low-income house- holds than on higher income households. Low-income households unwilling or unable to pay the tolls on a regular basis may incur trip delays and travel time and travel distance penalties significantly higher than higher income households. Access to cultural and historical resources of importance to the EJ community, as identified through public participation, may be diminished or curtailed by the toll project. On the other hand, both EJ populations and non-EJ populations may benefit from a toll project. For example, if a project reduces congestion and travel time on both general-use lanes and managed lanes, in the near term and in the future, compared to the no-build scenario, its beneficial impacts may outweigh the disadvantages. The national evaluation framework for the Urban Partnership Agreement and Congestion Reduction Demonstration programs established protocols to review this type of performance impact in the general purpose lanes. Some addi- tional discussion of this analytical approach can be found in the “Analyzing, Mitigating, and Monitoring Impacts on Low-Income Commuters, I-10 and I-110 ExpressLanes, Los Angeles County,” case example.

Identify and Assess Mitigation Strategies 59 Public participation and analysis may determine that mitigation, minimization, or avoidance of impacts is both necessary and the right thing to do. Mitigation, minimization, and avoidance can take many forms, depending on the type of impact and the input from affected populations. Active public involvement is an integral step in determining what is needed and what will be acceptable from the community’s perspective. The California DOT (Caltrans) provides a good summary from its experience on why it is important to include EJ populations both early in and throughout the process. The public involvement component of the environmental review process can also provide opportunities to include low-income and minority communities in project development. Public meetings and the public review period required for environmental documents are the obvious existing means of reaching out to environmental justice communities, but should not generally be the only means of community outreach. Although transporta- tion agencies have historically viewed the community outreach part of the CEQA [California Environmen- tal Quality Act] and NEPA process as sufficient to meet environmental justice requirements, there are clear limitations to this approach. First, environmental justice communities often perceive this as being too late in the process, since important decisions about project scope and status have often been made. Earlier and more extensive public outreach, well before the environmental documentation phase, is advised in order to avoid such perceptions. Second, and related to the first concern, is the fact that community involvement that takes environ- mental justice matters into consideration earlier in the project development process can benefit from the greater degree of flexibility available to agencies with respect to decisions on project mode, location, and enhancements. The mitigation measures proposed as part of environmental assessment of a project can certainly provide a means of handling environmental justice concerns, but should not necessarily offer the only way to do so, particularly so late in the project development process. Finally, if environmental justice issues are addressed prior to the environmental documentation phase, there may be considerably more community support for the project. The community as a whole, and low-income and minority populations specifically, may see the result- ing project as having better balanced the burdens of development with the benefits that accrue from increased mobility. (Caltrans, 2003) The tools and case examples shown in Table 6.1 provide examples of successful mitigation and avoidance strategies from both community and agency perspectives from toll implementation Tool or Case Example Full Title Short Title Preparing, Implementing, and Assessing a Public Involvement Plan Public Involvement Plan Using Focus Groups in Assessing the Impact of Tolling on EJ Populations Focus Groups Designing and Executing Surveys to Assess Attitudes and Travel Behavior for EJ Analyses and to Monitor Implementation Conducting Surveys Using Travel Demand Models for EJ Assessments Travel Demand Models Applying a Select Link Analysis to Assess Trip Patterns Select Link Analysis Table 6.1. Relevant tools for Step 6. (continued on next page)

60 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Tool or Case Example Full Title Short Title Targeting Local Grocery Stores to Administer Community Surveys, Louisville–Southern Indiana Ohio River Bridges Project Surveys at Grocery Stores KY- IN Avoid Impacts FL Bridge Analyzing, Mitigating, and Monitoring Impacts on Low- Income Commuters, I-10 and I-110 ExpressLanes, Los Angeles County Full Cycle I-10–I-110 LA County Mitigating Reduced Access via Toll Credits, Dallas–Fort Worth Metro Region Mitigation NCTCOG Qualitative versus Quantitative Evaluations of Resource Topics Qualitative vs. Quantitative EJ Impact Documentation Checklist Documentation Checklist Analyzing the Value of Time/Willingness to Pay in EJ Assessments VOT/Willing to Pay Assessing User Costs and Household Burden Effects User Costs, HH Burden Evaluating Disproportionate Effects with Quantitative Methods Disproportionate Effects Instituting Cash Replenishment Options for Unbanked and Underbanked Populations Replenishment Options Recycling Tolling Revenue through Transit Investment and Low-Income Assistance as Forms of Mitigation Recycling Toll Revenue Mobilizing a Local Liaison to Recruit Community Leaders for Survey, Louisville–Southern Indiana Ohio River Bridges Project Surveys with Local Liaison KY-IN Selecting a Design Alternative to Mitigate the Adverse Effects of Tolls to a Low-Income Community, St. Johns RiverCrossing, Clay and St. Johns Counties, Florida Table 6.1. (Continued).

Identify and Assess Mitigation Strategies 61 projects across the country. These include using toll revenues to fund improved transit service, providing free or discounted transponders to low-income residents, establishing a network of outlets for cash replenishment of transponders (e.g., at local convenience stores to support those who do not have checking accounts or credit cards), avoiding an impact altogether by provid- ing free local access to and egress from a bridge, and many other public engagement techniques developed by agencies in collaboration with EJ populations. The tool and case example refer- ences acknowledge the critical importance of continued EJ population consultation and involve- ment at this crucial stage of decision-making. Table 6.1 also includes other technical analysis tools from Step 5 that may be needed in Step 6 for evaluating disproportionately high and adverse impacts. Within the Toolbox, the scenarios also provide illustrative examples of using different tools at this stage of the analysis. 6.4 Documentation of Step 6 The practitioner prepares a technical memorandum with the information gathered in this step to document the process and the results for determining whether or not a toll implemen- tation or rate change would have a disproportionately high and adverse effect on minority or low-income populations and, if it did, the mitigation measures that may ameliorate the effect to an acceptable level.

62 In Step 7, the practitioner consolidates the documentation developed in the pre- vious steps. As emphasized in earlier steps, the documentation process must start early in the project. The FHWA, sponsoring and cooperating agencies, elected offi- cials, EJ populations, potential investors (if any), other stakeholders and the general public, along with any potentially litigating parties, will be examining the project record to confirm the validity of the process and the defensibility of its findings. 7.1 Regulations and Requirements for Documentation As illustrated in Figure 7.1, three basic questions will need to be satisfactorily addressed for the project to come to a successful closure: 1. Is the analysis sound? Are the data collection, study area, analysis methods, deter- minations of impacts, and decisions defensible? 2. Was there effective and meaningful public participation for EJ populations through- out the study process? 3. Does the documentation support the answers to Questions 1 and 2? The guidance FHWA issues to its staff supports this commitment to reasoned analy- sis and documentation, as noted in the text box, Key Questions that FHWA Staff Will Likely Consider for Data Collection and Analysis. If the state DOT or MPO already has practices, guidelines, and templates in place for doc- umenting EJ impacts, outreach, and decision-making, those procedures should be consistent with or readily adaptable to the information and outreach developed in the earlier steps of the Guidebook. The Checklist section of the Toolbox is intended to be of assistance for documenting earlier steps. Documenting EJ impacts of toll implementation and rate changes is generally comparable to documenting the effects of other transportation projects. However, as noted in earlier steps and tools (in particular, in the tool “Developing a Socioeconomic Profile and Community Char- acteristics Inventory for EJ Assessments”), toll implementation and pricing may affect travel behavior and access to jobs and other opportunities for populations well beyond the immediate primary study area, including low-income and minority populations. Therefore, the absence of low-income and minority population concentrations within the immediate primary study area would not likely suffice as a rationale for substantiating a finding of no EJ impacts without additional forms of evidence and documentation. S T E P 7 Document Results for Decision-Makers and the Public

Document Results for Decision-Makers and the Public 63 Sufficient attention must be given to understanding and documenting the demographics, travel behavior, and choices of potential travelers from the larger regional catchment area—in fulfillment of the considerations of EJ—with due attention given to the similarities and differ- ences in travel behavior, choice, and access that low-income and minority populations bear in comparison to other non-EJ populations. Thus, the challenges of defining the appropriate study area extend to identifying and engaging those who may be impacted and applying appropriate data sources, methods, and measures for analyzing the impacts in this segmented and compara- tive fashion, as defined in previous steps. The documentation of findings must reflect a high level of transparency, including direct comparisons of how benefit and burden effects are borne by low-income and minority popula- tions (i.e., EJ populations) and by non-EJ populations for various impact and/or performance measures. Fair distribution of the benefits and burdens of the proposed action is the desired outcome (see text box, Substantiating the Findings with Documentation). Key Questions that FHWA Staff Will Likely Consider for Data Collection and Analysis “FHWA staff should consider the following key questions related to data collec- tion and analysis. These are not intended to be prescriptive or exhaustive, and they may not be applicable to every situation: • Have practitioners collected recent data on race, color, national origin, limited English proficiency (LEP), and income? Have they overlaid these data with transportation data to consider the relationships between them? • Are the geographic boundaries for analysis reasonable and logical? • Does the program, policy, or activity create an adverse effect in the short-, medium-, or long-term that is predominantly borne by minority and/or low- income individuals or is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the general population? • Have practitioners solicited input from potentially impacted minority and low-income populations and integrated that into the analysis? • Have practitioners provided documentation to support and explain their decisionmaking?” FHWA, 2015a Figure 7.1. Three hallmarks of an effective EJ study and project.

64 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Substantiating the Findings with Documentation Paraphrasing from the FHWA guidance, the following are key criteria for documentation to complete the EJ assessment. The pertinent Guidebook step(s) where toll implementation or rate increase analysis or impact determination will have been completed is provided in parentheses and italics. • Are there EJ affected populations? (Step 3, Stakeholders; Step 4, Scope Approach) • Are there adverse impacts? When it has been determined that there will be no adverse effects on identified EJ populations by the proposed project [based on the EJ analysis], documentation should reflect that determination. When there are affected low-income and minority populations in the study area, additional steps are needed to determine whether there is a disproportionately high and adverse impact on the population. (Step 4, Scope Approach; Step 5, Analyze Impacts) • Explain coordination, access to information, and participation. Proactive efforts to ensure meaningful opportunities for public participation including activities to increase low-income and minority participation should be described. The views of the affected population(s) about the project and any proposed mitigation should be reported and steps taken to resolve any contro- versy that exists. Document the degree to which the affected groups of minor- ity and/or low-income populations have been involved in the decision-making process related to the alternative selection, impact analysis, and mitigation. (Step 3, Stakeholders; Step 4, Scope Approach; Step 5, Analyze Impacts; Step 6, Mitigation) • Document impacts by resource topic if a National Environmental Policy Act (NEPA) document. Similarly, regional planning or system-level tolling analyses or post-implementation monitoring studies of tolling implementation or rate changes should clearly state what performance measures reveal by alternative or time period. (Step 4, Scope Approach; Step 5, Analyze Impacts; Step 6, Mitigation) • Compare adverse effects on EJ and non-EJ populations. Are the adverse effects predominantly borne by low-income and minority populations? Are the adverse effects appreciably more severe or greater in magnitude than the adverse effects suffered by non-low-income or non-minority populations? (Step 6, Mitigation) • What alternatives have been considered to avoid, minimize, and mitigate? Are there any offsetting benefits? Under NEPA, consideration must be given to mitigation for all adverse effects regardless of the type of population affected. Discuss what measures are being considered for alternatives to avoid or mitigate the adverse effects. There is a protocol to follow: avoidance first, then minimization, and finally measures to offset or rectify the adverse effects. (Step 6, Mitigation)

Document Results for Decision-Makers and the Public 65 • After mitigation efforts and benefits considerations, are the impacts disproportionately high and adverse on EJ populations? 1. If no, after mitigation and benefits are considered, that determination should be stated in the document and the EJ evaluation is complete. If yes, the NEPA document must evaluate whether there is a further “practicable mitigation measure” or “practicable alternative” that would avoid or reduce the disproportionately high and adverse effect. FHWA will approve the proposed action only if it determines no such practicable measures exist, and the FHWA determination should be stated in the document. (Step 6, Mitigation) 2. The document will need to describe how the impacted populations/ communities were involved in the decision-making process and identify what practicable mitigation commitments have been made. (Step 4, Scope Approach; Step 5, Analyze Impacts; Scope 6, Mitigation) 3. Under the protections of Title VI, if the affected population is a minority population, the document must be able to document substantial need based on the overall public interest and that alternatives that would have less adverse effects on the protected populations would have more severe impacts or are too costly. (Step 6, Mitigation; Step 7, Document) • The majority of environmental commitments are a result of the NEPA process, but commitments may come from various documents (i.e., permit conditions) and stages of decisionmaking. Post-implementation monitoring of tolling may be warranted to review whether anticipated or modeled effects borne by EJ populations were experienced after the fact. Such monitoring can assess the accuracy of impact findings, the effectiveness of mitigation strategies, and changes over time or with rate or policy changes. (Step 6, Mitigation; Step 7, Document; Step 8, Monitor) FHWA, 2015a Technical analyses that provide the basis for development of findings should be thoroughly documented through the use of technical reports and appendices that describe data sources, methods, and key assumptions and provide more detailed analyses. This standard of documen- tation should be sought not only during the NEPA and environmental phase, but also offered during the planning and post-implementation monitoring phases. Documentation must also extend to the activities and processes used to promote full and fair participation of EJ populations. This documentation should describe the approaches that were tried to address potential barriers to participation for low-income, minority, and other traditionally underserved populations; the multiple facets of public outreach used to foster meaningful public involvement; and how the findings from outreach were incorpo- rated into the development of the project and its findings. Documentation of public involve- ment activities, levels of participation, issues that the public raised, and commitments for mitigation and monitoring is essential. The tool, “Preparing, Implementing, and Assessing a Public Involvement Plan,” addresses documentation and other aspects of developing a Public Involvement Plan.

66 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox Table 7.1. Documentation tools. Tool Full Title Short Title Preparing, Implementing, and Assessing a Public Involvement Plan Public Involvement Plan EJ Impact Documentation Checklist Documentation Checklist 7.2 Documentation of Step 7 All analyses or summaries of analyses that have been performed in previous steps should be included in the documentation in reports or appendices to reports. Therefore, every tool men- tioned for every previous step could be included in this list. FHWA requires documentation of analyses and public outreach. Because of the specific emphasis on documenting public involve- ment, the only tool included in Table 7.1 is “Preparing, Implementing, and Assessing a Public Involvement Plan” in addition to the EJ Impact Documentation Checklist from the Checklists section of the Toolbox.

67 Post-implementation monitoring is essential for most or all toll implementation projects and rate changes. Environmental and community commitments made by decision-makers, and shared with stakeholders and affected communities in Steps 6 and 7 must be met. Systems and procedures need to be put into place to monitor out- comes and adherence to commitments and to adjust project operations as necessary to maintain the spirit and letter of those commitments. The practitioner will want to make sure that stakeholders, system owners and decision-makers recognize that honor ing commitments is a cornerstone of maintaining the community relationships and trust that have been developed over time and over the life of the project. The questions to address for implementation and post-implementation monitoring essentially cover the who, what, why, when, where, and how of monitoring. • Who is responsible for monitoring? • What are the objectives for monitoring? • What are the environmental and community commitments that have been made while assessing disproportionately high and adverse impacts and working through potential solutions? • What are some of the key metrics for monitoring performance to measure the effec- tiveness of the program, plan, or project? • How should monitoring be conducted? Several questions touch upon the periodic reassessment of the project, attendant mitigation, and other aspects of continuous monitoring. • When is the appropriate time to begin monitoring and at what other milestones should monitoring be updated or formally reviewed? • Where should monitoring be conducted (and other geographical considerations)? • How should decision-makers and stakeholders be informed about the agency’s commit- ment and activities related to monitoring and evaluating the assessments (i.e., what to do with the results)? • What can be done to ensure the continuity of commitments? The Federal Highway Administration Environmental Justice Reference Guide, especially the section on Maintenance and Operations, includes a discussion of potential disproportionate impacts from toll projects (FHWA, 2015a). The importance of monitoring is based on the rec- ognition that predictive effects identified through technical impact analyses, involvement pro- cesses, and reasoned findings may deviate from the actual effects after the implementation of the project. Over time, these deviations can be addressed to mitigate and offset effects, particularly when observed outcomes prove more inequitable or disproportionately burdensome to low- income and minority populations. S T E P 8 Conduct Post-Implementation Monitoring

68 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox 8.1 Who is Responsible for Monitoring In most cases, the tolling entity will be responsible for monitoring, with the sponsoring agency and FHWA providing oversight of the monitoring effort. If the project is a P3, there may be a mechanism for independent monitoring (perhaps paid out of the P3 revenue). See text box, Key Questions that FHWA Staff Will Likely Consider for Implementation: Construction, Operations, and Maintenance. Key Questions that FHWA Staff Will Likely Consider for Implementation: Construction, Operations, and Maintenance FHWA staff should consider the following key questions related to EJ in construc- tion. These are not intended to be prescriptive or exhaustive, and they may not be applicable to every situation: • Are potential bidders aware of and do they understand EJ-related design com- mitments articulated in the construction contract? • Do any contract change orders alter or compromise design commitments, or do they create new EJ issues? FHWA staff should consider the following key questions related to EJ in mainte- nance and operations. These are not intended to be prescriptive or exhaustive, and they may not be applicable to every situation: • Do the pricing mechanisms and changed traffic patterns of road pricing proj- ects result in disproportionately high and adverse impacts on minority and/or low-income populations? Source: FHWA, 2015a 8.2 Objectives for Monitoring The objectives for monitoring should address the following: 1. Were the impact predictions accurate (any errors of commission or omission)? 2. Are the mitigation commitments being met and is the mitigation effective? 3. Are corrective actions necessary and what might the actions be? 4. Are there unintended consequences of the planned mitigation? 5. What are the lessons learned from the actual behavior and effects that can be applied in analyzing future toll increases? 8.3 Implement and Monitor Environmental and Community Commitments and Agreements Implementing and monitoring environmental and community commitments and agree- ments is not an afterthought, nor is it a promise made that can be easily broken if finances or other matters do not work out “as planned.” All parties to the agreement (e.g., concessionaires or operating entities, tolling authorities and state agencies, community leaders and members) must be clear on the purpose, time frame, the specifics of the mitigation measures, and/or any measures of effectiveness for which there are commitments to monitor (see text boxes, Example Mitigation Measures and Commitments for Tolling Projects and Example Performance Metrics).

Conduct Post-Implementation Monitoring 69 Different types of agreements have been developed based on community priorities and interests and the operational and financial capability of the toll operator or owner. As noted previously, the earlier in the project that toll options are discussed with the community, the greater the flex- ibility to make modest adjustments to plans, contracts, and implementation decisions at a lower cost. Many examples are documented in the Tools and Case Examples sections in the Toolbox; these examples are particularly associated with Step 6. The circumstances and community inter- ests will be different in every community. The examples illustrate what has been done but do not represent the full range of what could be accomplished. Example Mitigation Measures and Commitments for Tolling Projects • Net revenues used to subsidize transit services • Net revenues used to fund other prioritized projects • Free or reduced cost for initial transponder purchase • Waiver of maintenance fee for toll account tied to low-income eligibility • No minimum balance for toll account • Toll credits tied to transit use • Toll credits or discounts tied to low-income eligibility • Toll credits tied to local access impacts • Travel credits earned on general purpose lanes to access managed lanes free • Minimum access to managed lanes for all registered users • Convenient opportunities for cash replenishment • Free local access to a bridge or toll road for local trips • Other Example Performance Metrics • X percentage difference in travel time between trips on managed lanes and untolled lanes • X percentage difference in travel time between trips using managed lanes • X minutes of difference in travel time for X miles of travel • For all the above, define what constitutes an exceedance or unacceptable level of service (e.g., an average difference in the peak period that exceeds the established standard more than X times a week or X times per month)? Estab- lish what types of interventions or mitigation will be undertaken if the exceed- ance occurs (e.g., toll credits for low-income commuters to facilitate a limited number of free trips every month? Agreements to support and/or subsidize connections for car pools and van pools for low-income commuters so they can travel free?) • Percentage of travelers who are low-income (e.g., if low-income users receive discounts on identifiable transponders) should be at least X • Percentage of low-income travelers using transit should be X • Percent of low-income and minority users indicating satisfaction with the service • Percent of low-income and minority users satisfied with the mitigation • Percent of low-income and minority users satisfied with the agency and the toll operator, if applicable

70 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox 8.4 Metrics for Monitoring Performance Agreements on potential mitigation measures need to establish monitoring and measure- ment criteria to be effective. Establishing metrics and a threshold or “tipping point” during the original agreements and commitments for any particular type of commitment will help when considering later interventions or adjustments that might be required. It is important to estab- lish clear linkages between the metrics and the mitigation measures. 8.5 Methods for Monitoring Monitoring can include operational data from highways and transit agencies; operational and user data from toll transponder records; and user and non-user data and opinions from surveys, focus groups, and related public involvement interactions as discussed in multiple steps, tools, and case examples. Pre- and post-implementation monitoring surveys, as noted in the tool, “Designing and Executing Surveys to Assess Attitudes and Travel Behavior for EJ Analyses and to Monitor Implementation,” represent one method for evaluating community perceptions, usage of toll facilities, and the continuing effectiveness of mitigation measures such as cash replenishment outlet facilities or transit services. The tool, “Examining Spatial Patterns and Distribution of Users on Existing Tolling Facilities,” suggests other types of records and how they can be used to analyze travel patterns and usage. Traffic data collection that measures average speeds and travel times is becoming more robust and less expensive. Comparing speeds on managed lanes and regular use lanes over time can demonstrate whether forecasts of “no disproportionate impact” were accurate for low-income households that cannot afford to use the managed lanes on a regular basis. Table 8.1 provides an example of recommended performance measures, including the mech- anism for collecting and monitoring the data. This table is adapted from the case example, “Analyzing, Mitigating, and Monitoring Impacts on Low-Income Commuters, I-10 and I-110 ExpressLanes, Los Angeles County.” Los Angeles County used its monitoring (including data, user surveys, and focus groups) to refine and amend its program over time. Examples include changing the program name from “Equity Plan” to “Low-Income Assistance Program,” lower- ing the threshold for transit credit rewards from 32 trips to 16 trips, and including both transit and toll credits as incentives. Agreeing to a continuing regime of data collection and identifying methods of measurement, metrics, and thresholds for periodic monitoring can build trust and accountability between the operating agency and interested stakeholders, including those who are particularly interested in mobility and access for low-income and/or minority populations. 8.6 Timing for Monitoring Baseline data, if applicable, should be collected prior to project implementation. This can include traffic data, mode split data, and survey data. The case example, “Conducting Pre- and Post-Implementation Surveys of Traveler Behavior and Opinions, Atlanta Region, I-85 Corridor,” describes the lesson learned benefits of pre- and post-implementation survey-based data collec- tion. Post-implementation surveys or data collection activities can be initiated after traffic patterns have stabilized. Depending on the types of environmental and community commitments made and the type of data and data collection methods, monitoring may be continuous or intermittent (e.g., operations and usage data may be automatically posted on a public website, showing daily, weekly or quarterly trends, while surveys may be conducted annually, biannually, or less often). Community leaders and agency stakeholders may seek to establish formal reporting milestones (i.e., 2 to 3 years after project implementation, at an expected project midpoint, or some other

Conduct Post-Implementation Monitoring 71 milestone between toll adjustments) for a comprehensive assessment of the status of the toll implementation and mitigation effort, including its effects on low-income and minority popula- tions. This assessment can revisit and refresh the assessment of the initial monitoring objectives: 1. Were the impact predictions accurate (any errors of commission or omission)? 2. Are the mitigation commitments being met and is the mitigation effective? 3. Are corrective actions necessary and what might the actions be? 4. Are there unintended consequences of planned mitigation? 5. What are the lessons learned from the actual behavior and effects that can be applied in analyzing future toll increases? 8.7 Geographical Considerations for Monitoring The practitioner will want to ensure that monitoring encompasses the catchment area for the project as well as the direct impact area. In tandem with monitoring updates and similar reviews, the practitioner may also want to review the scale and scope of the EJ study area that was used in the initial research and con- firm that it adequately reflects the catchment region for low-income and minority populations affected by the toll or rate change project. Table 8.1. Example performance measures paired with data collection techniques. Potential Performance Measures How to Collect Data and Monitor Number of low-income commuters who sign up for a transponder Data from toll operators and agency records of distribution Number of peak-period low-income users of HOT lanes (and percentage of overall HOT lane users) Data from toll vendor transponder records Usage of HOT lane credits for low-income drivers (credit redemptions) Data from special assistance accounts and transponder accounts because they are linked (as in Los Angeles County) Mode choice of low-income drivers (carpool versus single-occupant vehicle) compared with mode choice prior to project implementation Data from transponder records prior to and after toll project implementation (assuming transponders in use in advance, as in Los Angeles County) Performance of transit service in managed lane corridors before and after implementation Data on average speed, trip time, time savings, and trip reliability in applicable corridors can be tracked with transit operations data in common usage General purpose lane speeds after implementation Operational data from highway data; time savings and trip reliability anticipated in general purpose lanes for a HOT lane project Account balance problems of low-income commuters compared with non-low-income commuters Data from toll operator regarding challenges maintaining minimum balances and similar obstacles Share of time savings by low-income managed lane users compared with the share of tolls and transponder costs paid Data for low-income drivers at entry and exit points; travel time savings can be calculated and compared as percentage of toll costs Trends in trip distance and trip time by low-income commuters compared with non-low-income Data from operational data for transponders of low- income and non-low-income drivers Toll revenue investment Data from agency records and reports to show where revenues are being invested Source: Adapted from Metro, 2010

72 Assessing the Environmental Justice Effects of Toll Implementation or Rate Changes: Guidebook and Toolbox 8.8 Informing Stakeholders and Decision-Makers about Revealed Outcomes Transparency of monitoring and actions is crucial. As noted, some types of data acquisition and processing lend themselves to open posting on a project website, with “dashboards” and similar tools for the public to explore. Non-confidential aggregate data can be gathered on a daily, weekly, or monthly basis from the toll operator or the highway, transit, and other operating enti- ties collecting data. Other data sources such as surveys or focus groups are more costly. There are many options for sharing the information. Agencies may decide to post information on a website in a dashboard format. Some agencies issue periodic reports. One option for gathering and shar- ing information would be to periodically convene a workshop or summit. For example, the toll operator and interested stakeholders such as the MPO, DOT, community groups, and EJ popu- lations could gather to discuss how the tolling system, tolling policies, and mitigation strategies are working; if the data and metrics are meaningful; if the systems are working as intended; and what options might be available to improve policies, operations, mitigation, and measurement. Whatever the mechanisms for gathering and sharing information with decision-makers and stakeholders, including EJ populations, the most powerful message will come from acting on the information received. The agency response could be as simple as changing the name of the program or changing marketing strategies to raise awareness of the program and its benefits, or more involved, such as adjusting toll collection policies to change the threshold level for receiving a toll credit or discount for taking transit trips, or eliminating tolls for short local trips between specific locations. The toll credit threshold change is discussed in the “Analyzing, Mitigating, and Monitor ing Impacts on Low-Income Commuters, I-10 and I-110 ExpressLanes, Los Angeles County,” case example. Eliminating tolls for short local trips is discussed in the “Selecting a Design Alternative to Mitigate the Adverse Effects of Tolls on a Low-Income Community, St. Johns River Crossing, Clay and St. Johns Counties, Florida,” case example. Listening and acting, within the constraints of practicability, in constructive dialogue with affected low-income and minority stakeholders, demonstrates respect and earns trust. 8.9 Ensuring Continuity of Commitments As discussed in Step 3, many toll projects are developed through P3s. These partnerships may include stakeholders who need to meet bondholder or stockholder financing requirements in addition to operating and maintenance requirements. Because these interests may conflict or compete with forms of mitigation sought by communities, it is important that community com- mitments are formally recognized in the hierarchy of payments and/or in the commitment of the state agency to fulfill the commitment if the toll operator or owner cannot. This will be especially important if capital or operating costs increase beyond forecasted levels or if anticipated levels of net revenues fail to materialize. The commitment agreement should also spell out what happens in the event of potential default or bankruptcy of the toll facility owner or operator. While this does not happen frequently, it can occur. The community’s interest, including the needs and concerns of low-income and minority populations, should not be forsaken or expected to bear the brunt of someone else’s mistake or misfortune. Table 8.2 documents the tools that directly or indirectly address the topic of post- implementation monitoring. While several have been mentioned in previous steps, the tool, “Examining Spatial Patterns and Distribution of Users on Existing Tolling Facilities,” exclusively pertains to post-implementation monitoring.

Conduct Post-Implementation Monitoring 73 Tool Type Full Title Short Title Preparing, Implementing, and Assessing a Public Involvement Plan Public Involvement Plan Using Focus Groups in Assessing the Impact of Tolling on EJ Populations Focus Groups Designing and Executing Surveys to Assess Attitudes and Travel Behavior for EJ Analyses and to Monitor Implementation Conducting Surveys Using Travel Demand Models for EJ Assessments Travel Demand Models Applying a Select Link Analysis to Assess Trip Patterns Select Link Analysis Analyzing the Value of Time/Willingness to Pay in EJ Assessments VOT/Willing to Pay Recycling Tolling Revenue through Transit Investment and Low-Income Assistance as Forms of Mitigation Recycling Toll Revenue User Activity Monitoring Analyzing, Mitigating, and Monitoring Impacts on Low- Income Commuters, I-10 and I-110 ExpressLanes, Los Angeles County Full Cycle I-10–I-110 LA County Conducting Pre- and Post-Implementation Surveys of Traveler Behavior and Opinions, Atlanta Region, I-85 Corridor Pre- and Post-Surveys Atlanta EJ Impact Documentation Checklist Documentation Checklist Examining Spatial Patterns and Distribution of Users on Existing Tolling Facilities Table 8.2. Tools for post-implementation monitoring.

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