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Assessing and Managing the Ecological Impacts of Paved Roads (2005)

Chapter: 5 Legal Context for Planning and Policy

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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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5
Legal Context for Planning and Policy

INTRODUCTION

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

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

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

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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TRANSPORTATION PROCESSES: HOW TRANSPORTATION IS PLANNED AND PROJECTS ARE DEVELOPED

Transportation planning and project development reflect the desires of communities, including consideration of the impacts of roads on the natural and human environments. Federal transportation law recognizes the important role of the states and local communities in planning, building, and maintaining roads. To understand the legal requirements concerning ecology and the environment, it is necessary to understand the structure for transportation planning and project development. The processes through which a road gets planned, built, and maintained provide opportunities and obligations to incorporate ecological concerns.

There are substantial differences between transportation planning and project execution or development with respect to the governmental entities involved and their legal obligations for environmental or ecological resources. Transportation planning encompasses the processes under which states, regions, and localities plan their desired regional transportation systems for periods up to and sometimes exceeding 20 years. Although environmental issues must be considered in transportation planning, the only important mandatory requirement concerns conformity with air pollution standards. As described more fully below, the federal government reviews transportation plans solely to ensure protection of air quality, not to protect any other environmental resources, such as water quality.

In contrast, project execution or development includes all the work done to implement a particular road project, such as a new road, road improvement, or other discrete endeavors. Projects are developed and implemented with detailed, site-specific evaluations of engineering, costs, safety, transportation mobility, and environmental concerns. Generally, the state, city, or county government manages a specific project. Most of the federal environmental requirements apply to project development and implementation rather than transportation planning. In project development, various ecological issues are addressed. An excellent summary of the transportation planning process and environmental requirements is found in Blaesser et al. (2003). Additional information can be found in FWHA (2004b).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

FEDERALLY STRUCTURED REGIONAL AND LOCAL PLANNING

Metropolitan Planning Organization

Transportation planning is the province of the metropolitan planning organization (MPO), a nonfederal entity established under federal laws. Despite its title, and despite the focus of this report on non-urban roads, it is appropriate to consider MPOs here, for two reasons. The first is that MPOs do not operate only in urban areas. Indeed, some areas that are within their purview have considerable wildland or ecosystem values worth protecting. As an example, the proposed Inter-County Connector (ICC) in Maryland is within the purview of an MPO, and yet much of the controversy about that proposed highway concerns the effect it might have on wetlands and other undeveloped ecosystems. There are other examples as well. Thus, this discussion of MPOs is in fact relevant to many roads in nonurban—even rural—areas.

The second reason is that for rural locations lacking population density needed to support an MPO, a rural planning organization or the state conducts transportation planning. The rural or state planning in lieu of an MPO involves the same considerations and similar processes as MPO planning.

The MPO is a transportation policy-making organization and is made up of representatives from local government and transportation authorities. MPOs were created under the Federal Surface Transportation Assistance Act of 1973, which required the formation of an MPO for any urbanized area that had a population greater than 50,000. Subsequent transportation legislation further addressed the duties and boundaries of MPOs. For example, MPO duties were modified in the Intermodal Surface Transportation Efficiency Act of 1991 and the Transportation Equity Act for the Twenty-First Century of 1998 (TEA-21), which had enormous impacts on the nation's transportation system. Together, these two laws dramatically increased investment in roads and bridges, spurred a revival of public transportation, and helped to create a more efficient and interconnected roadway system (AASHTO 2002a, 2003; FWHA 2004b). Under current law, the core metropolitan and statewide transportation planning requirements remain intact. The law emphasizes the cooperation of local and state and local officials with transit operators to

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

tailor the planning process in meeting the needs of state and metropolitan transportation (AMPO 2004).

Current federal law requires that the MPO consider seven objectives in transportation planning, among which is protection and enhancement of the environment (see item D in list below). The U.S. Code (23 USC § 134(f) [2003]) states the following:

(f) Scope of Planning Process.—

  1. In general.—The metropolitan transportation planning process for a metropolitan area under this section shall provide for consideration of projects and strategies that will—

    1. support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency;

    2. increase the safety and security of the transportation system for motorized and nonmotorized users;

    3. increase the accessibility and mobility options available to people and for freight;

    4. protect and enhance the environment, promote energy conservation, and improve quality of life;

    5. enhance the integration and connectivity of the transportation system, across and between modes, for people and freight;

    6. promote efficient system management and operation;

    7. emphasize the preservation of the existing transportation system.

Environmental protection is a specific planning goal; however, it is one of seven broad goals that the MPO must balance. The statute exempts planning authorities from court challenges that allege that the authority failed to follow any of these planning goals. The planning process is also expressly exempt from application of the National Environmental Policy Act (NEPA).

The transportation planning process is linked to the federal funding structure. Federal transportation funding is distributed to states on a population-based formula, and the states decide how to allocate funds to projects within their borders. Thus, transportation planning commences with a state transportation improvement plan (STIP). The STIP provides general guidance for state transportation programs but leaves most

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

choices, such as when, where, and how to pursue particular projects, to the MPO at the local and regional level.

The MPO engages in two major planning exercises on a regular schedule. Every 3-5 years, the MPO must consider and revise both its long-range plan and its short-range implementation plan. More frequent planning is required for localities suffering poor air quality. These planning processes are critical steps during which communities consider their future transportation needs. To qualify for federal funding, projects must arise from properly adopted long-range transportation plans (LRTPs) and STIPs.

The Long-Range Transportation Plan or Metropolitan Transportation Plan

The MPO (or state for rural areas) adopts the LRTP, identifying the various ways that a region plans to invest in the transportation system over a 20-year period or more. The LRTP includes “both long-range and short-range program strategies/actions that lead to the development of an integrated intermodal transportation system that facilitates the efficient movement of people and goods” (23 CFR § 450.322(a) [1999]). For example, the LRTP may identify specific road segments to be widened, general locations for construction of new roads, major reconstructions or repairs, and other systemic improvements. The LRTP provides a regional, systemwide “blueprint” for the transportation network, sometimes also viewed as a regional “wish list.”

The LRTP (23 CFR 450C § 450.322 [1999]) contains several elements, including the following:

  • Identify policies, strategies, and projects for the future.

  • Determine project demand for transportation services over 20 years.

  • Focus at the systems level, including roadways, transit, nonmotorized transportation, and intermodal connections.

  • Articulate regional land use, development, housing, and employment goals and plans.

  • Estimate costs and identify reasonably available financial sources for operation, maintenance, and capital investments (see Part II, section on financial planning).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
  • Determine ways to preserve existing roads and facilities and make efficient use of the existing system.

  • Be consistent with the statewide transportation plan.

  • Be updated every five years or three years in air quality nonattainment and maintenance areas.

MPOs make special efforts to allow interested parties to be involved in the development of the transportation plan. Although governed by local law, MPOs generally have public sessions on LRTPs and must meet mandatory public participation standards. In cases where a metropolitan area does no meet national air quality standards (a nonattainment area) or is now in compliance (a maintenance area), the plan must conform to the state implementation plan (SIP) for air quality.

Transportation Improvement Program

The MPO (or state for rural areas) also adopts the transportation improvement program (TIP), a 2-year program, under a restricted budget, that covers priority implementation projects and strategies from the LRTP. The TIP identifies what the locality wants to commence in the short-term, 2-year period. The TIP enables a region to allocate its transportation monetary resources between the various operating needs and the capital needs of the area. These allocations are based on a clear set of short-term transportation priorities.

Under federal law, the TIP (23 CFR 450C § 450.322 [1999])

  • Covers a minimum two-year period of investment.

  • Is updated at least every two years.

  • Is realistic in terms of available funding (known as a fiscally constrained TIP) and is not just a “wish list” of projects.

  • Conforms to the SIP for air quality if the region is designated a nonattainment or maintenance area.

  • Is approved by the MPO and the governor for air quality.

  • Is incorporated into the statewide transportation improvement program (STIP).

As with the LRTP, the MPO will provide notice and hold public hearings when adopting a TIP.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Cooperative Planning

Most MPOs act as an overall coordinator for planning and, by virtue of adoption of the TIP, programming funds for operations and projects. Implementing the projects in the TIP generally becomes the responsibility of the states’ Departments of Transportation (DOTs) or the city or county governments. Given the roles of different levels of government, the MPO must involve local transportation providers in the planning process. Thus, during the transportation planning stage, MPOs include a wide range of entities, such as state DOTs, transit agencies, maritime operators, airport authorities, rail-freight operators, port operators, Amtrak, and regional operating organizers.

Transportation planning is a cooperative phase. No single agency has full responsibility for the planning of construction, operation, or maintenance of the entire transportation system. For example, some roads that are part of the interstate highway system are subject to certain federal standards. However, they are usually maintained by a state DOT. Other roads are city streets or county arterials designed, operated, and maintained by local municipalities or counties. Transit systems are often built, operated, and maintained by an entity separate from the highway authority. The MPO is responsible for seeking the participation of all relevant stakeholders and agencies in the planning process.

Funding for roads also depends on actions by state legislatures; even federally supported roads require states to share in the costs. By allocating funds and providing other direction, state legislatures can adjust priorities for particular projects within the planning horizon of the TIP or the LRTP. For example, the legislature may opt to accelerate or postpone funding for particular projects identified in the TIP or LRTP. The LRTP and TIP processes generally result in “wish lists” with shifting priorities.

Project Development and Execution

After the state planning, MPO long-range planning, MPO short-range implementation planning, and legislative involvement, specific road projects are ready for implementation. At this project development and execution level, most of the laws concerning ecology and environment apply.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Project development involves all the site-specific considerations, including safety, engineering, and environment, that influence decisions regarding how and where to build a project. For example, the TIP may have identified the need to add capacity to a road segment based on projected population growth and assumed that the road should be widened by one lane in each direction. Project development efforts will involve evaluating the various technical issues of such a project. The evaluation will include detailed transportation analysis (needs), structural assessment (engineering), community effects assessment (noise, dislocations, and viewsheds), and safety and environmental (all natural resources) assessments. After these assessments, a proposal (and alternatives) will be considered. Assuming approval, the project will be built and subsequently maintained. Project implementation involves decisions on financing, construction, and subsequent operation and maintenance. During implementation, a number of activities will be subject to specific permit controls and limitations.

As even this short synopsis illustrates, project development and implementation involves the greatest detail of environmental consideration, largely because it is the stage at which the precise physical effects are evaluated and the most specific potential environmental effects are known.

FHWA Environmental Policies

The surface transportation laws administered by FHWA provide for evaluation of environmental concerns at all levels of transportation planning, development, execution, and operation (23 USC §§ 109(h), 128 [2003]; 23 CFR 771, 772 [2001]). These transportation laws set forth many guiding environmental standards that must be followed by the FHWA and other highway governing bodies when building and maintaining highways. These laws ensure that decisions on highway projects consider the public interest and that all possible economic, social, and environmental adverse effects of highway projects and locations are considered. These laws apply to the planning and the development of any proposed projects on any federal-aid highway system. Consideration of environmental matters allows for balancing of environmental and transportation interests.

FHWA has long maintained strong environmental policies. The FHWA 1994 environmental policy statement (EPS) represents a contin-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

ued commitment to the enhancement and protection of the environment by providing the policies and procedures for the development of environmentally sound projects (FWHA 2004a). The 1994 policy updated the 1990 FHWA environmental policy. In 2002, the President issued Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, which reiterated the environmental goals of the U.S. Department of Transportation. FHWA environmental policies and guidance are available through the environmental programs of the FHWA Office of Planning, Environment, and Realty.

The EPS provides guidance on integrating environmental concerns into the full transportation process:

For an effective, environmentally sound transportation system, the Federal-Aid Highway Program and its projects must incorporate environmental considerations and neighborhood and community values and goals into every phase of transportation decision making. But FHWA must practice environmental sensitivity on an even broader scale. Environmental objectives must be considered in every aspect of FHWA's organization and decision-making (FHWA 1995).

The EPS and current FHWA policy also require

  • Consideration of social, economic, and environmental issues equally with engineering issues.

  • Coordination of planning to conform to air quality implementation plans.

  • Defining the “environment” to include the natural and built environment.

  • Encouragement of broad-based public involvement early and continuously in the process.

  • Encouragement of continual consideration of environmental factors throughout all phases of project.

  • Encouragement of corridor preservation to ensure early consideration of environmentally sensitive areas.

  • Encouragement of enhancement of the natural and human environment.

  • Encouragement of mandates going beyond compliance to strive for environmental excellence.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
  • Integration of environmental goals and effects by local, regional, and state land-use planning.

  • Promotion and support of watershed planning.

  • Promotion of multi-modal solutions to transportation and air quality problems.

  • Requirement of environmental commitment compliance and implementation.

  • Requirement of full compliance with environmental protection laws, regulations, Executive Orders, and policies.

  • Requirement of full consideration of avoidance, minimization, and mitigation of adverse effects.

  • Support for an interdisciplinary approach.

  • Support for environmental training to develop environmental professionals in transportation.

  • Support for research and development to raise the level of expertise to state of the art.

  • Support for the merger of NEPA with other environmental reviews and decisions regarding permits.

Additional FHWA environmental policy provides that

  • To the fullest extent possible, all environmental investigations, reviews, and consultations be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental document required by this regulation.

  • Alternative courses of action be evaluated and decisions be made in the best overall public interest based upon a balanced consideration of the need for safe and efficient transportation; of the social, economic, and environmental effects of the proposed transportation improvement; and of national, State, and local environmental protection goals.

  • Public involvement and a systematic interdisciplinary approach be essential parts of the development process for proposed actions.

  • Measures necessary to mitigate adverse effects be incorporated into the action. Measures necessary to mitigate adverse effects are eligible for Federal funding when the Administration determines that

—The effects for which the mitigation is proposed actually result from the Administration action; and

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

—The proposed mitigation represents a reasonable public expenditure after considering the effects of the action and the benefits of the proposed mitigation measures. In making this determination, the Administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a Federal statute, Executive Order, or Administration regulation or policy.

  • Costs incurred by the applicant for the preparation of environmental documents requested by the Administration be eligible for Federal assistance.

The national policy Executive Order 13274 declares,

The development and implementation of transportation infrastructure projects in an efficient and environmentally sound manner is essential to the well-being of the American people and a strong American economy. Executive departments and agencies (agencies) shall take appropriate actions, to the extent consistent with applicable law and available resources, to promote environmental stewardship in the Nation's transportation system and expedite environmental reviews of high-priority transportation infrastructure projects.

Among the steps taken to implement this policy, the FHWA adopted the “Vital Few Environmental Goals” to focus some of its efforts on environmental stewardship. This policy has several specific objectives (FHWA 2004c):


Objective 1

To improve the environmental quality of transportation decision-making, all 50 States, the District of Columbia, Puerto Rico, and the Federal Lands Highway (FLH) Divisions will use, by September 30, 2007:

  • Integrated approaches to multimodal planning, the environmental process and project development at a systems level; and/or

  • Context Sensitive Solutions (CSS) at a project level.

Objective 2

To improve the timeliness of the both the federal aid and FLH environmental process:

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
  • Establish time frames for EAs [environmental assessment] and EISs [environmental impact statement] and meet the schedules for 90% of those project by September 30, 2007;

  • Decrease the median time it takes to complete an EIS from 54 months to36 months by September 30, 2007; and

  • Decrease the median time to complete an EA from approximately 18 months to 12 months by September 30, 2007.

Objective 3

To increase ecosystem and habitat conservation, implement by September 30, 2007, a minimum of 30 exemplary ecosystem initiatives in at least 20 States or Federal Lands Highway (FLH) Divisions.

Objective 1 encourages consideration of environmental concerns at the planning as well as at the project setting. Context-sensitive solutions or context-sensitive design is a policy to enhance environmental issues at the project stage and allows the setting to help guide how the projects are designed (Box 5-1).

Objective 2 addresses time frames and reduction of delay. The issue of whether projects are delayed because of environmental compliance obligations and the need for “streamlining” is complex and is related to the quality of available environmental information addressed elsewhere in this report.

In furtherance of objective 3, in October 2003, FHWA (2003b) released criteria for evaluating projects that increase ecosystem and habitat conservation. FHWA has publicized projects that exemplify ecosystem and habitat conservation on its website and in conferences and training. These policies encourage attention to and protection of ecosystem functions at all levels of transportation.

To implement its environmental policies, FHWA has developed numerous guidance documents, training, and other information to assist states and localities. These are available through FHWA and other transportation agencies. For example, with respect to wildlife and roads, FHWA offers a website called Critter Crossings, providing links and guidance for wildlife crossings. The program describes working examples of wildlife protections in road systems. FHWA also offers guidance on the ecosystem approach and transportation and information on exemplary programs (FHWA 2003b,d). FHWA administers its policies regarding ecosystem analysis and protection through guidance and training.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

BOX 5-1 Context-Sensitive Solutions and Designs

“Context sensitive design asks questions first about the need and purpose of the transportation project, and then equally addresses safety, mobility, and the preservation of scenic, aesthetic, historic, environmental, and other community values. Context sensitive design involves a collaborative, interdisciplinary approach in which citizens are part of the design team.”

Thinking Beyond the Pavement, Maryland State Highway
Administration Workshop, 1998 (MSHA 1998)


The following case study illustrates how context-sensitive solutions or designs can foster improved relations between all interested parties, while encompassing environmental, historical, and scenic conservation or mitigation, and still maintain the overall goal of providing safe and efficient transportation. The case study will focus primarily on the environmental aspects even though the project contains other context-sensitive solution factors.

The Smith Creek Parkway project (Martin Luther King Jr. Parkway) in Wilmington, North Carolina, consisted of an area of more than 7 miles and was divided into four sections. Two of the sections consist of wetlands. The project was enacted to reduce traffic congestion, travel times, and congestion-related accidents and to provide a link between U.S. 74 and downtown Wilmington. The coordinated effort during the development phase of the project consisted of several agencies, local government officials and agencies, special-interest groups, local businesses, and the citizens of Wilmington.

The most important environmental issue of the project was the preservation of the surrounding wetlands. Originally, a box culvert was proposed, but after the 1992 NCDOT feasibility study, a large bridge spanning over the wetland area provided a more suitable solution. The roadway section was reduced from 14.4 acres to 5.35 acres, reducing the number of lanes from six to four. Further, compensatory mitigation was used to restore tidal swamp forest adjacent to the wetland. Possible contamination of the wetlands by hazardous waste and hazardous materials in the vicinity was avoided by shifting the project to the north of the originally proposed location. Studies showed no threatened or endangered species were found within the project area.

Although the overall project duration was long and the original design was changed, the coordination of all interested stakeholders under a context-sensitive design, reduced ecological impacts, while providing transportation benefits to the residents of Wilmington.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

MAJOR FEDERAL ENVIRONMENTAL LAWS

A number of federal laws and regulations require consideration of ecological issues or protection of ecological resources before, during, and, to a degree, after road construction. For the most part, federal law requires consideration of a broad range of environmental aspects, including wildlife and ecological effects, when a federal agency either undertakes or funds a road project. Some laws protect specific ecological resources with requirements to preserve or protect the resource by avoidance or compensation for effects. This section addresses selected major federal statutes through which ecological concerns of roads are or could be addressed.

Most of the laws summarized here are not limited to or directed at road projects, nor are they focused on ecological concerns. Rather, ecological issues are captured in some way through implementation of these laws. Unless otherwise specifically addressed, these laws apply only to project development and execution, not to transportation planning.

National Environmental Policy Act

Known as the “granddaddy of environmental law,” the NEPA (42 USC §§ 4321-4335 [2003]) requires federal agencies to describe and disclose a wide range of environmental consequences of actions they undertake or fund, including ecological information. Section 101 (Appendix C) sets forth the lofty goal and policy of NEPA that the federal government “use all practicable means and measures” to, among other goals, “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.” The heart of NEPA is Section 102(2)(C), which provides that each agency include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible federal official on—

  1. the environmental impact of the proposed action,

  2. any adverse environmental effects which can not be avoided,

  3. alternative to the proposed action,

  4. relationship between local short-term uses of man’s environment and enhancement of long-term productivity, and

  5. any irreversible or irretrievable commitments of resources.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Pursuant to this section, the Council on Environmental Quality (CEQ) and the FHWA issued regulations describing the process for the required “detailed statement” (40 CFR 1500-1508 [2003] [CEQ]; 23 CFR 771, 772 [2001] [FHWA]). Almost all road projects must be analyzed with either an EIS or an EA that considers a broad range of environmental and ecological factors (23 CFR 771 [2001]).

The CEQ regulations provide overall guidance for applying NEPA, and the FHWA regulations add terms that apply specifically to road projects. Both sets of regulations require that the federal decision maker examine the alternatives to and the effects of the proposed project (40 CFR §§ 1502.1, 1508.9 [2003]). For road projects, alternatives most frequently take the shape of different modes of transportation (such as trains and buses), different configurations (such as fewer lanes), and different locations for the project. Additionally, the no-action alternative—not building the road—must always be examined (40 CFR § 1502.14(d) [2003]).

The environmental document (EIS or EA) must examine the effects of the reasonable alternatives to the project on a variety of resources, including ecological resources. FHWA requires examination of effects to air quality, water quality, noise receptors, wetlands, wildlife, floodplains, wild and scenic rivers, coastal resources, threatened or endangered species, historic and archeological resources, visual resources, land use, farmland, society, the economy, joint development, and pedestrians and bicyclists (FHWA 1987). The EIS or EA is made available to members of the public, and comments are received and considered (40 CFR §§ 1502.19, 1503 [2003]; 23 CFR §§ 771.119(d), 771.121, 771.123(g), 771.125 (a)(g) [2001]).

NEPA is not an action-forcing statute; it only requires that all environmental effects be considered, not that any particular outcome be accepted. In other words, the decision maker need not choose the most environmentally beneficial alternative (although other laws may so require.) Thus, NEPA does not protect ecological resources but merely educates decision makers about ecological resources that could be affected by a proposed action. However, in practice and in conjunction with other action-forcing laws, NEPA often results in the selection of less ecologically harmful alternatives and the mitigation of certain adverse effects. Following preparation of the NEPA document, FHWA announces its decision in a record of decision (ROD) (23 CFR § 771.127 [2001]), which may include environmentally protective conditions.

NEPA policy requires that an EIS identify proposed mitigation for all significant adverse effects identified in the process. An FHWA ROD

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

following an EIS will describe the significant effects identified and the mitigation for those effects. The mitigation conditions become an enforceable part of the federal funding agreement. As a matter of policy, therefore, FHWA uses NEPA to mitigate adverse environmental effects. Frequently, the effects and mitigation terms involve wildlife or other ecological resources.

Clean Water Act

Aquatic ecosystems, including rivers, lakes, streams, coastal locations, and wetlands, are protected from degradation under programs of the Clean Water Act (CWA). The statute establishes three programs relevant to highway effects. Section 402 addresses direct discharge of pollutants, including highway runoff, into waters. Section 404 addresses dredging and filling of waters and wetlands. Finally, nonpoint source pollution is also addressed under the CWA.

The CWA is administered in a delegated program system under which the U.S. Environmental Protection Agency (EPA) delegates most authority to the states, subject to federal oversight. In practice, therefore, most water protection activity occurs at the state level. In addition, any federal action that might affect a state’s water quality must obtain a state water quality certification under Section 401 (33 USC § 1341 [2003]). The state must certify that issuance of the proposed federal permit will not result in any violations of state water quality standards.

Section 402 National Pollutant Discharge Elimination System Program

Under the CWA national pollutant discharge elimination system (NPDES) Program, discharges of pollutants, including stormwater systems, are regulated as point sources under programs developed pursuant to Section 402 (33 USC § 1342 [2003]). EPA and the states have extensive regulatory programs requiring permits for construction and operations that will result in pollutants entering the nation’s waters. NPDES permits are regularly issued to control turbidity (silt) or other water-borne pollutants from road projects into waterways. Discharges during road construction and after a road is built will require NPDES permits, generally issued by the state under EPA authorization.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Covered discharges are those that flow into “navigable waters” (33 USC § 1362(12) [2003]). In turn, “navigable waters” are all “waters of the United States” (33 USC § 1362(7) [2003]). The navigable aspect of the regulated waters has not been viewed strictly, having been expanded to nonnavigable tributaries (33 CFR § 328.3(a)(5) [2002]). There remains active litigation over whether certain isolated or low flowing (ephemeral or intermittent) waters are federally regulated; the general rule is that any discharge into any waters will require a permit.

The water discharge permit will impose standards designed to protect the water quality of the stream, river, or other receiving waters. The standards are not established or revisited for each road project. Rather, the standards are set through separate processes (rule makings) that consider the state preferences for use of a water segment (for example, how clean the state wants the water to be). Standards are also based on scientific understanding of the public health and environmental consequences of pollutant discharges. Aquatic life is considered in setting water pollution standards, which are subsequently included in NPDES permits.

States have primary responsibility to designate the desired water quality for water bodies. States may classify waters (for example, streams or stream segments) based on aquatic habitat, such as fisheries. Once designated, water quality standards are set to meet and protect the designated users. These water quality standards are then made part of NPDES permits. The permit requirement protects aquatic resources, including fish habitat, and consequently the broader functions served by the waterway in the ecosystem.

Section 404 Dredge and Fill Permits

Discharge of dredged or fill material is regulated under Section 404 (33 USC § 1344 [2003]). The U.S. Army Corps of Engineers (Corps), rather than EPA, is authorized to issue permits allowing placement of fill in waters, including wetlands. The Corps and EPA have extensive regulations establishing the environmental standards for Section 404 permits (33 CFR 320, 330 [2002]; 40 CFR 230 [1999]). The wildlife habitat function of wetlands is specifically recognized in these regulations.

Wetlands, which vary from often-submerged riparian zones to remote features surrounded by upland, support an enormous variety of wildlife, from fish and insects to large mammals and ungulates. Wetlands are considered “special aquatic sites” under Section 404 regula-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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tions. Special aquatic sites are ecosystems of significant biological or resource value that have additional protection under the regulations. For projects that do not need to be located on or in waters, an applicant for a Section 404 permit in wetlands must demonstrate that there are no practicable alternatives to the proposed filling of wetlands (40 CFR § 230.10(a) [1999]). Thus, proponents of road projects that will affect wetlands must meet a significant burden to show that there are no alternatives.

The Section 404 nationwide permit (NWP) program authorizes certain activities that allow small effects in wetlands to occur with less administrative burden than required for an individual permit. For road crossings with small effects (those less than one-tenth of an acre for an entire project), activity can go forward without notifying the Corps under NWP 14 (67 Fed. Reg. 2036 [2002]). Slightly larger road-crossing effects, those of 0.5-acre or less, are eligible for a NWP 14, but the project proponent must notify the Corps before construction and will probably be required to mitigate the effects.

In addition to the nationally applicable NWPs, local Corps districts may have locally applicable general permits under which permit approval can be given to broad categories of activities that have small effects in wetlands. For example, Virginia has a state program general permit (SPGP), which allows for certain limited discharges associated with linear transportation projects. The SPGP establishes application, restoration, and mitigation requirements for various quantities of effects and attaches numerous general and special conditions to the SPGP’s use (DEQ 2004).

Almost all wetland permits require mitigation for adverse effects. The mitigation analysis involves a sequence of steps in which the permit applicant must demonstrate (1) avoidance of wetland effects, (2) minimization of wetland effects, and (3) compensation for unavoidable wetland effects. Wetland mitigation policy is set forth in a 1990 interagency memorandum of agreement between EPA and the Corps, in a determination of mitigation under the CWA Section 404(b)(1) guidelines (effective February 7, 1990), and in agency regulations and other guidance to the field. On December 24, 2002, the Corps provided additional information for compensatory mitigation projects (EPA 2004, USACE 2002).

One means of providing mitigation is by purchasing credits from a “wetlands mitigation bank.” Congress expressed support for wetlands mitigation banking by stating that transportation projects should look to mitigation banks to provide compensatory mitigation (23 USC §§ 103(i)(13), 133(b)(11) [2003]). Provisions of the FHWA regulations

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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address wetlands and wetlands mitigation. For example, Title 23, Parts 771 and 777 of the Code of Federal Regulations (2001) address use of mitigation banks to provide compensatory mitigation for unavoidable effects to wetlands. Mitigation banking guidance was issued in 1995 by the Corps, EPA, U.S Fish and Wildlife Service (USFWS), and the National Oceanic and Atmospheric Administration (NOAA) (60 Fed. Reg. 58605-58614 [1995]). In July 2003, FHWA, the Corps, and EPA issued guidance for the use of mitigation banking in the federal highway and interstate highway programs (FWHA 2003e).

Nonpoint Source Pollution

Road projects must also be consistent with state nonpoint-source-pollution management programs developed under Section 319 (33 USC § 1329 [2003]). Nonpoint source pollution, such as sheet flow or general runoff (escaping a storm sewer system or other discrete conveyance), is not regulated with a federal permit. Rather, states are required to plan to address these sources of pollutants. The states can take account of nonpoint source pollution when they establish water quality standards and total maximum daily loads (TMDLs) of pollutants. As a general matter, land-use management controls (for example, keeping the land-surface areas free of pollutants that can wash into water bodies) are the tools for managing nonpoint source pollution. Congress left this authority with states and local governments.

Rivers and Harbors Act

The River and Harbors Act of 1899 (33 USC § 401 [2003]) protects traditionally navigable waters from “obstructions” to navigation. Any construction, dredging, or filling of navigable waters must be authorized by a permit issued by the Corps. Bridges over navigable waters must be permitted. Corps regulations define navigable waters and describe the permit process. Generally, bridge pilings in navigable waters must be constructed to not interfere with the waters’ flow (33 CFR §§ 322, 323.3(c), 329 [2002]). The restrictions imposed under the Rivers and Harbors Act help to maintain the free flow of water, which is an essential component of a healthy aquatic ecosystem.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Endangered Species Act

Certain species of plants and animals are protected under the Endangered Species Act (ESA). This law prohibits the “taking” of endangered or threatened species, defined as the harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping, capture, or collection of such species (16 USC §§ 1532(19), 1538(a) [2003]). Activity that significantly modifies a species’ habitat can be found to “take” the species even if injury to a particular animal or plant is not identified.

Species are made subject to the ESA through a listing process. The U.S. Department of the Interior (DOI) determines which species warrant designation as “threatened” or “endangered” based on scientific data. Listings are subject to public notice and comment before being finalized. When listing a species, USFWS can also determine whether the species depends on a limited, specific habitat and, if so, identify the “critical habitat.” The ESA does not authorize a category of protection or listing for healthy species or for declining species that do not meet the status of threatened or endangered.

For any road projects authorized by the federal government that might “take” threatened or endangered species, the ESA requires the authorizing agency to consult with USFWS or NOAA-Fisheries before approving the activity. This step allows USFWS to determine whether the authorized activity is likely to jeopardize a listed species (16 USC § 1536(a) [2003]). This process is known as “Section 7 consultation.”

The authorizing agency (such as FHWA) begins the consultation process by asking USFWS to determine whether a protected species is present in the project area. If so, consultation formally begins with the authorizing agency preparing information about the species, known as a “biological assessment,” to assist USFWS in making its “jeopardy” determination. USFWS sets forth its conclusions in a “biological opinion” (16 USC § 1536(c) [2003]; 50 CFR § 402.14(h) [2003]). If USFWS concludes in its biological opinion that the project is not likely to jeopardize the recovery of the species, it issues a “no-jeopardy” opinion.

The ESA is designed largely to protect species. The law authorizes the taking of individual animals under certain conditions, as long as the take does not jeopardize the species. Under Section 7, USFWS is authorized to provide an “incidental-take” statement concerning circumstances where the federal action might harm or otherwise take members of a protected species in carrying out a project (50 CFR § 402.14(i) [2003]). For example, a road project near a bald eagle nesting site might disrupt the

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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nesting. The USFWS incidental-take statement can provide terms and conditions to allow but perhaps minimize that take. Without a jeopardy finding at the species level, the presence of listed species does not automatically bring the project to a halt; USFWS can still authorize the activity after requiring compensatory mitigation as a condition for authorization (50 CFR § 402.14(i)(5) [2003]).

If USFWS determines that the project is likely to jeopardize a species’ recovery, it issues a jeopardy opinion stating that the project as proposed will violate the act. If appropriate, USFWS may also suggest reasonable and prudent alternatives to the action that will not violate the ESA (16 USC §§ 1536(b)(3)(A), 1536(g), 1536(d) [2003]; 50 CFR § 402.14(h)(3) [2003]). The applicant can accept such an alternative or appeal to the Endangered Species Committee. Nonfederal parties may appeal decisions of USFWS in federal court. Consultation is described more fully in Title 50, Part 402 of the Code of Federal Regulations and in the federal Endangered Species Consultation Handbook (64 Fed. Reg. 31285 [1999]).

By directly protecting threatened and endangered species from harm, the ESA provides a strong tool to protect certain species. Direct protection of these species or their habitat also provides significant protection to other members of the affected ecosystem. For example, ESA conditions that place restrictions on the reduction of bird habitat in turn leaves that ecosystem available for use by numerous other species as well. Without the presence of a listed threatened or endangered species or their designated critical habitat, the ESA offers no authority to protect ecosystems (NRC 1995).

Clean Air Act

Designed to protect air quality, the federal Clean Air Act (CAA) may require road projects to obtain permits for air emissions, such as fugitive dust or emissions from machinery. These permits are generally issued by states under delegated authorization from EPA. Although air-borne pollutants can affect natural habitat, the CAA standards are largely based on concern for human public health. One notable exception is the acid rain control program, whose goals include protection of forests and fauna (42 USC § 7651 [2003]) (acid rain “presents a threat to natural resources, ecosystems, materials, visibility, and public health”) (EPA 2003a).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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In addition, the CAA requires consideration of the effects of traffic emissions on regional air quality. This is the “conformity” requirement. New roads must “conform to” the state SIPs, which states design to comply with the federal National Ambient Air Quality Standards (NAAQS). NAAQS are set by EPA, establishing by pollutant the concentration limit in the ambient (outdoors) air to protect the public health. The SIP applies the NAAQS within air basins of a state. Among other things, the SIP sets air emission budgets by pollutant. The operation of a road cannot cause a locality to violate its air quality standards by exceeding the budgets allotted for mobile sources (42 USC § 7506(c) [2003]; 40 CFR 93, A and B [2003]; 40 CFR 51, T and W [1999]).

The CAA requires that each state develop a SIP for pollutants within designated air basins. The SIP explains how the state plans to meet the NAAQS for each type of air pollutant, according to the schedules included in the CAA. Then, the region within the air basin undergoes a regional emissions analysis, which assigns each an emissions budget.

The conformity requirements essentially prohibit federal agencies from supporting any activity that does not conform to a SIP. The proponents of a new or expanded road or of other transportation projects must show that the activity will not (1) cause or contribute to any new violation of any standard in any area; (2) increase the frequency or severity of any existing violation of any standard in any area; and (3) delay the timely attainment of any standard or any required interim emission reductions or other milestones (42 USC § 7506(c)(1) [2003]).

Transportation conformity determinations are conducted for road planning and project development and construction. The conformity analysis looks at a future time—target period for the plan or project—and estimates compliance with air quality standards. As a general rule, the following actions require transportation conformity determinations: (1) the adoption, acceptance, approval, or support of LRTPs, LRTP amendments, TIPs, and TIP amendments1 developed by a MPO or the DOT; and (2) the approval, funding, or implementation of FHWA or Federal Transit Administration (FTA) projects (42 USC § 7506(c)(2) [2003]). “Regionally significant” transportation projects carried out by recipients of federal funds designated under Title 23 of the U.S. Code

1  

As described above, LRTPs are long-range transportation planning documents examining a period of 20 years or more (49 USC § 5303(f)(2) [2003]); TIPs are short-term plans specifying the planning goals for the upcoming years (49 USC § 5304(b)(1) [2003]). Individual projects are described in both LRTPs and TIPs.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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and the federal transit laws also require a conformity analysis (40 CFR §§ 93.102(a) [2003]).

The MPO makes the initial conformity determinations when it develops or revises a TIP or LRTP. That determination must be approved by FHWA. Although it is not required, many MPOs develop public education and communications programs that inform the public of the connection between transportation and air quality in their respective regions. These programs also encourage the public to make travel choices that will benefit air quality. MPOs can participate in air quality planning to identify transportation programs and projects that help to reduce emissions from on-road mobile sources of pollution.

Below are several ways to help meet emission-reduction targets for on-road mobile sources:

  • Vehicle emission programs (for example, the use of reformulated gasoline or implementation of inspection and maintenance [I/M] programs).

  • Changing ways to travel (for example, ride sharing or use of transit).

  • Transportation projects that reduce congestion (for example, signal synchronization programs).

Generally, if a road project will have emissions consistent with the motor-vehicle emission budgets of the relevant SIP, it satisfies the transportation conformity standards. However, no individual transportation project can be approved, even if it is in conformity with the applicable SIP, if the LRTP and TIP are not conforming at the time of project approval (40 CFR § 93.114 [2003]). In general, no transportation project may cause or contribute to any new violations of localized concentrations of carbon monoxide (CO) or particulate matter up to 10 micrometers in diameter (PM10) or increase the frequency or severity of any existing violations of CO or PM10 concentrations in CO or PM10 nonattainment and maintenance areas (40 CFR § 93.116(a) [2003]).

Motor-vehicle emission budgets can be revised, although not easily. Making changes to the budget requires revisions to the SIP, which is a complicated and lengthy process that can make it more complicated for the MPO to start projects. If a budget revision is undertaken, MPOs should participate in the SIP revision process.

Although transportation conformity usually applies to road projects, there is a similar concept referred to as “general conformity.” The general conformity requirements are similar to those of transportation con-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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formity, but they apply to nonroad construction projects (40 CFR 93B [2002]; 40 CFR 51W [1999]). The primary difference between general and transportation conformity is the means by which conformity is shown. Unlike transportation conformity, for which there is generally a specific line item in the SIP for motor-vehicle emission budgets, general conformity is typically achieved by showing that emissions are kept below certain concentrations (40 CFR §§ 51.853(d), (i) [2003]; 93.153(b), (i) [2003]).

The air quality standards against which compliance is measured are “primary” standards. The CAA authorizes establishment of primary standards to protect public health and secondary standards to protect the environment. To date, EPA has not set any secondary standards at concentrations that are different from the primary standards. Although there is some concern with deposition of air pollutants into water bodies and other receiving environments that could warrant establishment of secondary standards, these effects are not directly regulated under the CAA. Under the current CAA scheme, ecological resources may be indirect beneficiaries of air pollution controls, but the program is directed at protection of public health.

The Department of Transportation Act

Various specific provisions of the surface transportation laws and regulations of the Department of Transportation Act (23 USC § 101-158 [2003]) address environmental and resource protection. These are the environmental provisions of the Intermodal Surface Transportation Efficiency Act (ISTEA), the TEA-21, and earlier surface transportation statutes that govern FHWA activities.

Parks and Public Areas

Section 4(f) of the Department of Transportation Act establishes certain criteria that must be met before a highway project can directly or indirectly use publicly owned parklands, wildlife protective areas, and other public recreational or historic sites (23 USC § 138 [2003]; 49 USC § 303 [2003]). FHWA regulations further explain these protections. The protected resources cannot be directly or indirectly affected without a

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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specific finding that (1) no alternatives are feasible or prudent, and (2) the project includes all possible planning to minimize adverse effects (23 CFR § 771.135 [2002]). Section 4(f) can directly protect qualifying ecological habitat and can be an important aspect of the overall transportation-planning and wildlife-protection strategy.

Native Vegetation

FHWA statutes and regulations encourage the use of native wildflowers in highway landscaping (see 23 USC. § 319(b) [2003]; 23 CFR 752 [2001]). However, only one-fourth of 1% of the funds expended on landscaping are required to be allocated to planting of native wildflowers on a project. Although the requirement is small, there is no limit on the opportunity to use landscaping to enhance native ecosystems.

Clean Air Improvements

The Congestion Mitigation and Air Quality Improvement (CMAQ) Program (part of the TEA-21, Section 1110, 23 USC § 149 [2003]) provides additional air quality protection options. CMAQ applies to projects in areas that are not attaining the NAAQS or are trying to maintain attainment of the NAAQS. The sponsor of a CMAQ project must develop a proposal to improve air quality and submit it to the state and relevant MPO for approval. In concept, CMAQ projects could focus on ecological benefits if linked to air quality improvements.

This program provides flexible funding to local and state governments for transportation programs and projects to help meet the requirements of the CAA. Some of the eligible activities include

  • Transit improvements.

  • Travel demand management strategies.

  • Traffic flow improvements.

  • Public fleet conversions to cleaner fuels.

Additional funds are available for the areas that have not attained the NAAQS. Former nonattainment areas that have maintained compliance also have access to these funds. Funds are distributed to states

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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based on a formula that considers an area’s population by county and the severity of its air quality problems within the nonattainment or maintenance area. The CMAQ program emphasizes CO nonattainment and CO maintenance areas in relation to other priorities.

Historic Bridges

The Historic Bridge Program (23 USC § 144(o) [2003]) provides that the reasonable costs associated with actions to preserve or reduce the impact of a project on the historic integrity of historic bridges is eligible as a reimbursable project cost. The program may provide some ecological benefits if historic bridges are located in association with ecological resources of concern, since the bridge protection would also protect those resources.

Noise

DOT cannot approve any project on any federal-aid system unless it determines that the project includes adequate measures to implement the appropriate noise level standards (23 USC § 109(i) [2003]). The regulations promulgated require noise impact analysis, examination of potential mitigation measures, incorporation of reasonable and feasible noise abatement measures into the project, and coordination with local officials to provide helpful information on compatible land-use planning and control (23 CFR §§ 772.9, 772.11, 772.15 [2001]). The regulations contain noise abatement criteria that represent the upper limit of acceptable highway traffic noise for different types of land uses and human activities (23 CFR 772 [2001], Table 1). The regulations do not require that the abatement criteria be met in every instance. Rather, they require that every reasonable and feasible effort be made to provide noise mitigation when the criteria are approached or exceeded (23 CFR § 772.13(d) [2001]).

The intended beneficiary of the noise standards are humans, not wildlife. However, noise effects on wildlife are routinely considered under NEPA. Increasingly, noise from roads is evaluated as a direct or indirect impact on wildlife. Noise management features can protect wildlife habitat.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Habitat Mitigation

TEA-21 specifies that federal funds may be used for “natural habitat and wetland mitigation efforts” related to federally funded projects (23 USC § 103(b)(6)(M) [2003]). These efforts may include participation in mitigation banks and contributions to state and regional conservation, restoration, enhancement, or creation. These mitigation projects can enhance the protection of ecosystems. Moreover, to the extent that mitigation banks allow the creation and restoration of continuous habitat, as opposed to segregated pockets of mitigation, the mitigation can be well situated in the landscape to meet multiple ecological functions.

Context-Sensitive Design

Designers of road projects are admonished to take into consideration the environmental, scenic, aesthetic, historic, and community context of their roadway project (23 USC § 109 [2003]). So-called context-sensitive design (CSD) provides important opportunities to consider landscape and ecosystem functions in road planning. CSD can enhance the possibility of preservation for natural areas and, therefore, prevent the deterioration of ecosystem function. As addressed above, CSD principles are also emphasized in FHWA environmental policies.

Transportation Enhancement Activities

Funds for transportation enhancement (TE) activities include the study and prevention of wildlife mortality. Funds may be used in all road systems except roads classified as local or rural minor collectors, unless these roads are on a federal-aid highway system. Federal transportation program funds allot 10% annually to each state for TE activities.

The FHWA field offices strongly encourage the state and MPOs to seek out and integrate TE activities into their plan development and programming processes. The metropolitan and statewide planning processes can occupy a central role in the identification, planning, and funding of TE activities. In particular, the planning processes are the appropriate mechanisms for determining funding priorities among competing TE activities, including those that are not part of specific transportation projects.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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To be funded, TE activities must be included in the appropriate metropolitan and statewide transportation improvement activities. Given the widespread public interest in TE activities, they should be highlighted for public involvement implemented under the metropolitan and statewide requirements revised pursuant to TEA-21.

General Environmental Policy

FHWA’s environmental policies, addressed above, derive in part from specific directions in the transportation statutes. For example, economic, social, and environmental effects must be considered in planning and development of proposed projects on any federal-aid highway system over which FHWA exercises approval (23 USC 109(h) [2003]). Generally, given the similar scope and coverage, the NEPA documentation satisfies this statutory requirement.

Section 1309 of TEA-21 requires DOT to develop and implement a coordinated environmental review process for highway construction and mass transit projects. To that end, in July 1999, DOT, the Corps, DOI, EPA, NOAA-Fisheries, the U.S. Department of Agriculture (DOA), and the Advisory Council for Historic Preservation entered into a memorandum of understanding (MOU) under which they agreed to reduce project delays and protect and enhance environmental quality. The MOU identifies eight means of achieving the former and five ways of achieving the latter. These coordination mechanisms allow policy review of ecological concerns in an efficient manner.

The Land and Water Conservation Fund Act

The Land and Water Conservation Fund Act (LWCFA) (16 USC §§ 4601(1)-4601(11) [2003]) is often used by state and local governments to obtain funds to acquire or improve parks and recreation areas. Section 6(f) of the LWCFA prohibits such property from being converted to another use without the approval of the National Park Service (NPS). This section also directs NPS to condition its approval of a conversion on the provision of replacement lands of equal value, location, and usefulness. Thus, replacement lands are required whenever conversions of Section 6(f) lands are proposed for highway projects. As with Section 4(f) of the transportation laws, described above, Section 6(f) provides funding for the direct protection of existing ecosystems.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Historic and Archeological Preservation

Properties on or eligible for inclusion on the National Register of Historic Places are protected by Section 106 of the National Historic Preservation Act (NHPA) (16 USC § 470f [2003]). The law and regulations require coordination with the State Historic Preservation Officer and the Advisory Council on Historic Preservation with respect to qualifying properties. Historic preservation policies are also incorporated in Executive Order 11593 (see 23 CFR 771 [2001]; 36 CFR 60, 63 [2002]; 36 CFR 800 [2001]). The goals of the program are to avoid or mitigate damages to historic properties to the greatest extent possible.

Other laws provide similar protection for archeological resources and other special resources. For example, historic landmarks are protected under Section 110 of NHPA (16 USC § 470h-2 [2003]). Archeological resources must be recorded, surveyed, and preserved under the Archeological and Historic Preservation Act (16 USC §§ 469-469c [2003]), the Archeological Resources Protection Act (16 USC § 470aa-ii [2003]), and the Antiquities Act (16 USC §§ 431-433 [2003]). Native American resources are protected under the American Indian Religious Freedom Act (42 USC § 1996 [2003]), the Native American Grave Protection and Repatriation Act (25 USC § 3001 [2003]), and Executive Order 13007.

The preservation of historic areas is not intended to conserve ecological resources directly. However, to the extent that historic areas exist in conjunction with other protected areas or that historic areas are of a sufficient magnitude, their protection may enhance or provide an opportunity to enhance the protection of existing ecosystems.

The Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) (16 USC § 760e-760g [2003]) protects most common migratory wild birds in the United States from being killed, captured, collected, possessed, bought, sold, traded, shipped, imported, or exported. These birds are all common songbirds, waterfowl, shorebirds, hawks, owls, eagles, ravens, crows, native doves and pigeons, swifts, martins, swallows, and others. A complete list of protected species is found in Title 50, Section 10.13 of the Code of Federal Regulations (1989). The act also prohibits indirect killing of these birds by destroying their nests and eggs. However, such actions as road projects may be authorized to proceed under permits issued by the

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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USFWS pursuant to the regulations in Title 50, Parts 13 and 21 of the Code of Federal Regulations (1999). Federal-aid highway projects that are likely to result in the taking of birds protected under the act require a permit. Frequently, the permit will allow construction in bird habitat in accordance with such terms as seasonal limits to protect breeding periods or nest relocation programs.

The Migratory Bird Act directly protects covered wildlife, and as discussed with the ESA, the protection of such wildlife and their habitat often results in secondary benefits for otherwise unprotected species.

The Farmland Protection Policy Act

The Farmland Protection Policy Act (FPPA) (7 USC §§ 4201-4209 [2003]) is intended to minimize farmland effects and maximize compatibility of federal actions with state and local farmland programs and policies. To achieve this goal, FHWA requires that NEPA documents (1) summarize the results of early consultation with the DOA’s Natural Resources Conservation Service and, as appropriate, state and local agriculture agencies where agricultural land could be directly or indirectly affected by any alternative under consideration; (2) contain a map showing the location of all farmlands in the project impact area; (3) discuss the effects of the various alternatives; and (4) identify measures to avoid or reduce the effects. DOA rules regarding the FPPA are in Title 7, Part 658 of the Code of Federal Regulations (1987). The maintenance of existing farmland provides for a continuity of habitat for wildlife that uses such lands. For example, much of the migratory flyways in the central and western United States include farmlands that provide seasonal cover, forage, and breeding habitat for many species.

The Coastal Zone Management Act

Coastal ecosystems are subject to the Coastal Zone Management Act (CZMA) (16 USC § 1451 [2003]) enacted to protect, preserve, develop, restore, and enhance coastal resources (16 USC § 1452 [2003]). States are eligible for federal funding if they opt to develop a coastal zone management plan, which is approved by NOAA. All federal agency activities affecting an area within the coastal zone must be car-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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ried out in a manner consistent with the relevant state’s federally approved coastal zone management plan. The federal action agency must provide a “consistency determination” to the state coastal management agency at least 90 days before final approval of the federal activity, and the state agency must certify that the proposed activity complies with the enforceable policies of the state’s approved program.

Among other things, coastal zone management plans must outline “areas of particular concern within the coastal zone” and describe how the management plan addresses and resolves the concerns for which the areas are designated (15 CFR § 923.21 [2003]). These are called “special area management plans,” which provide an opportunity for detailing natural-resource protection of sensitive areas while allowing for reasonable economic growth. Additional regulations concerning implementation of the CZMA are in Title 15, Part 923 of the Code of Federal Regulation (2003). The CZMA directly protects coastal ecosystems by addressing the nature of development and the destruction of habitat.

Federal Fisheries Conservation and Management Act (Magnuson Act)

Now known as the Magnuson Fishery Conservation and Management Act (16 USC § 1801 [2003]), this law was passed in 1976 to establish protection for off-shore and anadromous fish species. Congress recognized that many fisheries had been depleted from over fishing. It found that healthy fish stocks were important not only for ecological reasons but also for the viability of important commercial and recreational fishing industries. Congress expressly acknowledged the importance of habitat protection to the maintenance of healthy fish stocks.

Under the law, fishery management plans are developed by regional fishery management councils, establishing catch limits and other conditions to protect stocks from over fishing (16 USC §§ 1851-1860 [2003]). Fishery management plans developed under the law, particularly for anadromous species, such as salmonids as well as many commercial species, can and do include controls on land uses in or near fish habitat. As a result, for road projects that cross waterways used by certain fisheries, this program will have additional requirements for ecological protection of fish habitats and consultation with pertinent federal agencies.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Executive Orders

Federal agencies must consider various environmental and resource issues under direction of an Executive Order (EO). In most instances, the agency will try to incorporate compliance with the EOs in either the NEPA documentation or in its formal record of decision.

EO 13274 (2002), addressed previously, establishes policies for transportation infrastructure reviews and environmental stewardship. It states that executive departments and agencies are to take appropriate actions to the extent consistent with the law to expedite reviews of high-priority transportation projects and promote environmental stewardship in the nation’s transportation system (67 Fed. Reg. 59449 [2002]). It requires the adoption of policies and procedures necessary to accomplish that goal and establishes a task force for assembling a list of high-priority projects and monitoring compliance with the EO. Similar goals with regard to environmental streamlining were established in TEA-21, as discussed above.

EO 12898, Environmental Justice (1994), requires consideration of the environmental and social effects of an action on minority and low-income populations to ensure that such populations are not disproportionately affected. To implement these policies, DOT issued a Final Environmental Justice Strategy (DOT Order 5610.2) dated April 15, 1997. FHWA issued an order (DOT Order 6640.23) dated December 2, 1998, describing the actions necessary to protect environmental justice concerns (FHWA 2002c). Natural systems can be indirect beneficiaries of this evaluation of environmental effects at the neighborhood or community scale.

EO 11988, Floodplain Management, as amended by EO 12148, is intended to avoid the short- and long-term adverse effects associated with the development of floodplains. It requires the assessment of floodplain hazards and specific findings in the final environmental document for significant floodplain encroachments. As with the Section 404 program, protection of land within floodplains enhances habitat directly through preservation and indirectly through improvements in water quality. FHWA provides various policy guidance on implementation of this EO (DOT Order 5650.2) (23 CFR § 650, 771 [2004]) (FWHA 2004 a,b).

EO 13112, Invasive Species (1999), is directed at the control of invasive alien species (64 Fed. Reg. 6183 [1999]) (National Invasive Species Council 2004). Such species have the potential to overrun native species and transform ecological systems. The EO prevents agencies

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

from authorizing, funding, or carrying out actions that are likely to cause or promote the introduction or spread of invasive species. FHWA generally complies with the mandate of the EO through the NEPA process. The EO protects the loss of native species at the hands of exotics, clearly preserving existing ecosystems. FHWA has developed guidance to encourage environmentally beneficial landscape practices.

EO 13186 supplements the regulations under the Migratory Bird Treaty Act (66 Fed. Reg. 3853 [2001]). It directs agencies to enter into MOUs with the USFWS to establish procedures to promote conservation of bird populations (Shrouds 2001). The order does not apply to federal-aid highway projects that are carried out by nonfederal entities, such as state DOTs.

EO 11990 (1977) also addresses protection of wetlands. This EO states that federal agencies should avoid direct or indirect support of activities adversely affecting wetlands where there is an alternative. The NEPA documentation or the Section 404 Record of Decision generally records compliance with EO 11990.

OTHER TYPES OF LAWS

Various Federal Resource Laws

In addition to the topically oriented statutes addressed above, Congress has enacted many statutes concerning specific kinds of ecological resources that could, under some circumstances, relate to roads. Because these laws may only occasionally involve road projects, they are not addressed in any detail in this chapter. For example, road projects in Florida could involve compliance with the Marine Mammal Protection Act (16 USC §§ 1361-1421h [2003]) in relation to manatees. The Bald and Golden Eagle Act (16 USC § 668 [2003]) prohibits destruction of bald and golden eagles or their nests. National forests are subject to an extensive system of management administered largely by the DOA Forest Service. Not only forest roads but other road projects affecting national forests would involve attention to this body of law.

Other statutes and programs provide funding and policy for specified ecological systems, such as estuarine restoration (33 USC §§ 2901-2909 [2003]). EPA also administers a national estuarine program using authorities under the CAA (EPA 2003b). These kinds of research and financial assistance programs provide sources of information or advo-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

cacy for particular ecological resources but rarely establish requirements that road projects must meet. A statute such as the Wild and Scenic Rivers Act (16 USC §§ 1271-1287 [2003]) affords states the opportunity to designate rivers as wild or scenic and obtain additional protection of the resource from degradation. Some road projects may involve these kinds of federally protected or managed resources as well. Other similar examples include statutes such as the Wild Horses and Burros Act (16 USC §§ 1331-1340 [2003]), which protects wild free-roaming horses and burros.

Different organizations might include different laws in a compilation of environmental laws related to transportation. In addition to the laws as addressed in this chapter, FHWA (2004a) identified laws pertinent to environmental compliance. The Defenders of Wildlife (2004) assembled a list of laws related to wildlife and transportation. The laws largely correspond to the laws addressed in this chapter. The Defenders of Wildlife added some statutes, such as the Coastal Barrier Resources Act and the National Trails Systems Act. The Transportation Research Board analysis (Blaesser et al. 2003) uses a slightly different list, having greater consideration for possible contamination and liability. Although different entities may include slightly different lists of laws related to resources or wildlife in discussing transportation projects, this chapter addresses the major laws involved.

State Laws

Although this chapter does not attempt to summarize any nonfederal environmental laws, state and local laws play a major role in addressing ecological concerns associated with roads. Land-use planning, managed by local and regional authorities, substantially affects ecological systems and functions. This planning addresses not only growth (such as zoning for commercial, industrial, and residential development) but also siting of parks, recreation areas, and natural preserves. Local laws run the full gamut of environmental and ecological issues. Some states have established protections for specific ecosystem types, such as coastal or riparian zones, by restricting construction within a certain distance of water resources. The nature of local laws reflects community priorities and needs. States establish and enforce the “best management practices” to protect waterways from siltation and to prevent erosion effects of construction. There are many other examples of types of state and local laws.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

For several major federal statutes, notably the Clean Water Act and the CAA, the federal standards will be implemented most frequently by states and localities through delegated programs. As a practical matter, therefore, the road project will seek compliance with these laws by obtaining a state water permit and a state air-emission permit. State programs that are more stringent than federal programs will include requirements of federal law plus any additional state requirements.

At the transportation planning stage, which occurs largely at the regional and local level, state and local ecological laws could play a major role. Project development and implementation is also subject to all applicable state and local laws. Thus, there are opportunities at nonfederal levels to establish standards for evaluation of ecological concerns for transportation planning and project development.

DISCUSSION OF LAWS AND ECOLOGICAL CONCERNS

To assess whether and how the law addresses “ecological concerns,” a working definition of ecological concerns, is needed. For purposes of this analysis, the committee determined that ecological concerns should include species or habitats of some recognized value in a range of landscapes. Not every landscape is of ecological concern, and the assignment of ecological functions and values may be subject to a combination of scientific and social processes. Ecological concerns arise at many scales, from genetic to species or populations to ecosystems.

Separately, the committee recognized that ecological concerns also encompass a cross-disciplinary spatial method of viewing landscapes and changes to them. An ecological approach may provide a useful way to capture interrelated or cumulative effects of actions within a pertinent landscape sphere. Spatially, this ecological concern addresses the broader perspective of looking at how various actions may together have particular consequences.

Using the broad concepts of species and habitats and spatial landscapes as ecological concerns, the committee considered the ways that existing laws address the following:

  • Terms requiring consideration of any ecological concerns.

  • Terms protecting species or habitats of recognized value.

  • The stage at which ecological concerns are considered.

  • The weight given to ecological concerns.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Notably, the ecological concerns at regional, multistate, or national levels are largely unaddressed in the current legal structure. The transportation planning process, which is a regional process, is subject to almost no mandatory provisions with respect to ecological concerns. Under federal law, LRTPs and TIPs can be approved by the MPO and reviewed by FHWA without consideration of ecological effects. FHWA’s general policies encourage consideration of environmental issues during long-range planning, but the requirements are not enforceable. The only environmental concern that must be satisfied during transportation planning is demonstration of CAA conformity. At ecological scales beyond an MPO jurisdiction, which may be regional, state, or national, there are no legal requirements to consider transportation and ecological concerns in tandem.

The planning stage offers an excellent opportunity to incorporate multiple kinds of ecological concerns to ensure that regional ecological resources are addressed well before specific project planning. For ecological resources that extend beyond the jurisdiction of one MPO, coordination of transportation planning and ecological concerns can address the ecological component early in the process.

At project development and implementation, many environmental laws apply. The laws summarized within this chapter address ecological concerns in various ways. For purposes of discussion, the committee classified the laws in terms of several kinds of ecological issues, as shown in Tables 5-1 through 5-5.

Legal Base of Environmental Policy

Table 5-1 organizes the federal laws in terms of their consideration of ecological system components that are pertinent to ecologists. For each law, the table indicates what kind of terms the statute provides. “Mandatory” (M) reflects a legal provision that provides some type of third-party enforceable protection of the ecosystem component, usually by requiring a permit for disturbance. “Discretionary” (D) indicates that the law requires disclosure and discussion of the issue but does not mandate a particular outcome from that discussion. D also means that the issue can be addressed if the lead agency considers it pertinent or relevant. “Not considered” (NC) means that the law is silent or the component is not pertinent to the law. The committee recognizes that assigning these designations in the tables involves potential error from oversimpli-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

fication but believes that, as a general rule, the legislation has been accurately classified.

As Table 5-1 demonstrates, relatively few federal programs impose mandatory, enforceable protection of ecosystem components. Many laws allow or compel consideration of ecological concerns but are discretionary. Consideration of ecological concerns allows for public notice of ecological issues and provides data on which agency actions can be modified. As a matter of NEPA policy, FHWA requires mitigation for all environmental effects identified in an EIS. For FHWA-funded projects, NEPA mitigation commitments in a record of decision are enforceable terms of the federal funding agreement. These terms are thus enforceable between FHWA and a state but may not be enforceable by outside third parties. As a result, although NEPA itself only requires consideration of ecological concerns, additional protection is provided through administration of highway funding laws. For most laws, as summarized in Table 5-1, a discretionary factor can be balanced against other factors, providing flexibility but also, arguably, giving less weight to individual discretionary factors.

Table 5-2 organizes the legislation in terms of certain types of species addressed or covered by the programs, using the same three categories: mandatory, discretionary, or not considered. Using these categories is another way to evaluate whether and how the laws consider issues of importance to ecologists. Relatively few laws address particular types of species. Only the ESA, the MBTA, and the Section 404 program provide mandatory terms, requiring permits or other authorizations, for selected species. Clearly, the vast majority of species are not addressed by legislation, process, or executive order.

Table 5-3 orders legislation according to ecosystem type, asking whether and how the regulations address certain types of ecosystems. This table also uses the same three categories: mandatory, discretionary, or not considered. A number of federal laws are designed to address particular ecosystems and provide for permits or other clearances for activities within those ecosystems. In other words, Congress incorporated the concept of ecosystem types in some legislation and designated certain types of ecosystems for special protection. Many laws authorize the regulators to view issues in terms of ecosystems. However, as with species, only a few of the many types of ecosystems are addressed through legislation.

Table 5-4 summarizes the ecological scale at which the program applies. For this table, the summary indicates whether the law requires

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

TABLE 5-1 Types of Considerations Required by Environmental Laws, Programs, and Executive Orders That Address Ecosystems and Components of Ecosystems with Regard to Roadsa

Legislation or Program

Component of Ecological System

Physical

Biotic

Water

Soil

Otherb

Genetic

Species/Populations

Ecosystem

MPO planning process

D

D

D

NC

D

D

FHWA environmental policies

M

M

D

NC

D

M

NEPA—In general

D

D

D

D

D

D

EIS

M

M

M

NC

D

D

EA

M

D

D

NC

D

D

Categorical Exclusion

NC

NC

NC

NC

NC

NC

Clean Water Act

Section 402 NPDES program

M

NC

 

NC

D

D

Section 404 dredge and fill permits

M

D

D

D

D

D

Nonpoint-source pollution

D

D

NC

NC

NC

D

Rivers and Harbors Act

M

D

NC

NC

D

D

Endangered Species Act

D

D

D

D

M

D

Clean Air Act

D

When setting standards

NC

NC

M

D

D

 

For road projects

NC

NC

M

NC

NC

NC

Department of Transportation Act

Parks and public areas

M

M

M

NC

NC

M

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Native vegetation

M

M

M

NC

NC

D

CMAQ

NC

NC

M

NC

NC

D

Historic bridges

D

NC

M

NC

NC

D

Noise

NC

NC

M

NC

D

D

Habitat mitigation

D

D

D

D

D

D

Context-sensitive design

D

D

D

NC

D

D

Transportation enhancements

D

D

D

NC

D

D

Historic Preservation Act

NC

NC

M

NC

NC

NC

Land and Water Conservation Fund

NC

NC

NC

NC

NC

NC

Migratory Bird Treaty Act

NC

NC

 

D

M

D

Farmland Protection Policy Act

D

D

M

NC

NC

NC

Coastal Zone Management Act

M

D

M

NC

D

M

Magnuson Fishery Act

D

NC

 

M

M

D

Executive Orders

EO 13274 environmental stewardship

D

D

D

NC

D

D

EO 12898 environmental justice

NC

NC

M

NC

NC

D

EO 11988 floodplains

D

D

M

NC

D

D

EO 13112 invasive species

D

D

M

NC

D

D

EO 11990 wetlands

M

M

M

NC

D

M

EO 13186 migratory birds

D

NC

M

NC

M

D

aComponents in table describe whether the law requires the following: consideration of the component is mandatory (M), consideration of the component is discretionary (D), or considerations of the component is not required(NC).

bIndicates that the law may involve other physical matters, such as geological or geophysical issues

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

TABLE 5-2 Types of Considerations Required by Environmental Laws, Programs, and Executive Orders That Address Groups of Organisms (Species and Populations) with Regard to Roadsa

Legislation or Program

Invertebrates

Migratory Birds

Migratory Fish

Endangered Species

Amphibians

Plants

MPO planning process

NC

D

D

D

D

D

FHWA environmental policies

D

D

D

M

D

D

NEPA—in general

D

D

D

M

D

D

EIS

D

M

D

M

D

D

EA

D

M

D

M

D

D

Categorical Exclusion

NC

NC

NC

NC

NC

NC

Clean Water Act

Section 402 NPDES program

D

NC

D

M

D

D

Section 404 dredge and fill permits

NC

M

M

M

D

M

Nonpoint-source pollution

NC

M

D

M

D

D

Rivers and Harbors Act

NC

NC

D

M

D

M

Endangered Species Act

M

M

M

M

M

M

Clean Air Act

When setting standards

NC

NC

NC

NC

NC

NC

For road projects

NC

NC

NC

D

NC

D

Department of Transportation Act

Parks and public areas

NC

NC

NC

NC

NC

NC

Native vegetation

NC

NC

NC

NC

NC

M

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

CMAQ

NC

NC

NC

NC

NC

NC

Historic bridges

NC

NC

D

M

NC

D

Noise

NC

D

NC

D

NC

NC

Habitat mitigation

D

D

D

M

D

D

Context-sensitive design

D

D

D

M

D

D

Transportation enhancements

D

D

D

D

D

D

Historic Preservation Act

NC

NC

NC

NC

NC

NC

Land and Water Conservation Fund

NC

NC

NC

NC

NC

NC

Migratory Bird Treaty Act

NC

M

NC

M

NC

NC

Farmland Protection Policy Act

NC

NC

NC

NC

NC

NC

Coastal Zone Management Act

D

D

D

M

D

D

Magnuson Fishery Act

NC

NC

M

M

D

NC

Executive Orders

EO 13274 environmental stewardship

D

D

D

D

D

D

EO 12898 environmental justice

NC

NC

NC

NC

NC

NC

EO 11988 floodplains

NC

NC

NC

NC

NC

NC

EO 13112 invasive species

NC

NC

NC

NC

NC

M

EO 11990 wetlands

NC

D

D

M

D

D

EO 13186 migratory birds

NC

M

NC

M

NC

NC

aComponents in table describe whether the law requires the following: consideration of the component is mandatory (M), considerationof the component is discretionary (D), or consideration of the component is not required (NC).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

TABLE 5-3 Types of Considerations Required by Environmental Laws, Programs, and Executive Orders That Address Different Ecosystem Types with Regard to Roadsa

Legislation or Process

Wetlands

Freshwater

Coastal Marine

Forests

Meadows/ Prairies

MPO planning process

D

D

D

D

D

FHWA environmental policies

D

 

D

D

D

NEPA—in general

D

D

D

D

D

EIS

D

D

D

D

D

EA

D

D

D

D

D

Categorical Exclusion

NC

NC

NC

 

NC

Clean Water Act

Section 402 NPDES program

M

M

M

D

D

Section 404 dredgeand fill permits

M

M

M

M

M

Nonpoint-source pollution

D

D

D

D

D

Rivers and Harbors Act

M

M

M

NC

NC

Endangered Species Act

M

M

M

M

M

Clean Air Act

When setting standards

NC

NC

NC

NC

NC

For road projects

NC

NC

NC

NC

NC

Departmentof Transportation Act

Parks and public areas

D

D

D

D

D

Native vegetation

M

M

M

M

M

CMAQ

NC

NC

NC

NC

NC

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Historic bridges

D

D

D

D

D

Noise

NC

NC

NC

NC

NC

Habitat mitigation

D

D

D

D

D

Context-sensitive design

D

D

D

D

D

Transportation enhancements

D

D

D

D

D

Historic Preservation Act

NC

NC

NC

NC

NC

Land and Water Conservation Fund

NC

NC

NC

NC

NC

Migratory Bird Treaty Act

D

D

D

D

D

Farmland Protection Policy Act

D

NC

NC

NC

D

Coastal Zone Management Act

D

M

M

D

D

Magnuson Fishery Act

D

M

M

NC

NC

Executive Orders

EO 13274 environmental stewardship

D

D

D

D

D

EO 12898 environmental justice

NC

NC

NC

NC

NC

EO 11988 floodplains

M

M

M

D

D

EO 13112 invasive species

D

D

D

D

D

EO 11990 wetlands

M

M

M

D

D

EO 13186 migratory birds

D

D

D

D

D

aEntries in table describe whether the law requires the following: consideration of the component is mandatory (M), consideration of the component is discretionary (D), or consideration of the component is not reqired (NC).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

TABLE 5-4 Ecological Scale at Which Legislation Is Applieda

Legislation or Process

Scale Unit

Road Segment

Landscape

Watershed

Eco-region

Nation

MPO planning process

Assess

Assess

Assess

Assess

NC

FHWA environmental policies

Assess

Assess

Assess

Assess

NC

NEPA—in general

Assess

Assess

Assess

Assess

NC

EIS

Assess

Assess

Assess

Assess

NC

EA

Assess

Assess

Assess

NC

NC

Categorical Exclusion

NC

NC

NC

NC

NC

Clean Water Act

Section 402 NPDES program

Limit

Limit

Assess

NC

NC

Section 404 dredge and fill permits

Limit

Limit

Assess

Assess

NC

Non point-source pollution

Limit

Assess

Assess

Assess

NC

Rivers and Harbors Act

Limit

Limit

Assess

NC

NC

Endangered Species Act

Limit

Assess

Assess

Assess

NC

Clean Air Act

When setting standards

NC

NC

NC

NC

NC

For road projects

Assess

Assess

NC

NC

NC

Department of Transportation Act

Parks and public areas

Limit

Limit

NC

NC

NC

Native vegetation

Limit

Limit

NC

NC

NC

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

CMAQ

NC

NC

NC

NC

NC

Historic bridges

NC

NC

NC

NC

NC

Noise

NC

Assess

NC

NC

NC

Habitat mitigation

Assess

Assess

Assess

Assess

Assess

Context-sensitive design

Assess

Assess

Assess

Assess

Assess

Transportation enhancements

Assess

Assess

Assess

Assess

NC

Historic Preservation Act

Assess

Assess

NC

NC

NC

Land and Water Conservation Fund

Limit

Limit

NC

NC

NC

Migratory Bird Treaty Act

 

Limit

Assess

Assess

Assess

Farmland Protection Policy Act

Assess

Assess

NC

NC

NC

Coastal Zone Management Act

Limit

Limit

Assess

Assess

NC

Magnuson Fishery Act

Limit

Limit

Assess

Assess

Assess

Executive Orders

EO 13274 environmental stewardship

Assess

Assess

Assess

Assess

NC

EO 12898 environmental justice

NC

NC

NC

NC

NC

EO 11988 floodplains

Assess

Assess

Assess

Assess

NC

EO 13112 invasive species

Limit

Limit

NC

NC

NC

EO 11990 wetlands

Limit

Limit

NC

NC

NC

EO 13186 migratory birds

Limit

Limit

NC

NC

NC

aThe table indicates whether the law requires an assessmentat a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC).

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

an assessment at a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC). This table illustrates that most laws are targeted at a local scale and are related to a particular project.

In conjunction with specific projects, some laws require consideration of indirect, cumulative, or other related effects, which are reflected in a designation that the law requires assessment of larger ecological scales.

Table 5-5 addresses the political scale at which the legislation is applied. Although all the laws are federal, the table indicates what political levels are pertinent under each statute in terms of application and compliance with the law. The level of government that bears primary responsibility for compliance is identified.

Environmental Reviews and Roads

Information on the level of environmental review of road projects under NEPA is sparse. One study by the American Association of State Highway and Transportation Officials (AASHTO) surveyed 32 states and found that 92% of environmental documents processed by these state DOTs were categorical exclusions (CE) (STPP 2002, TransTech Management, Inc. 2000). Environmental assessments comprised 7% of the documents, and full EIS were covered in 2% of the cases.

As stated in Chapter 2, few studies have attempted to assess how the legal requirements of NEPA and other environmental statutes have affected the length of time needed to complete road projects (GAO 1994, FHWA 2003f). These studies used information and data from sets of past highway projects for which NEPA EIS or Section 404 reviews were implemented. According to GAO (1994), these projects represented a small percentage (less than 3%) of all road projects. In this small set of projects, however, required environmental reviews increased the time of project completion.

The time associated with environmental review varied as a function of the type of review (CE, finding of no significant impact [FONSI], EA, or EIS). In 1994, GAO examined 76 road projects completed from 1988 to 1993 to determine how an EIS extended the time to project completion. It found that those projects took from 2 to 8 years to complete the necessary NEPA and Section 404 reviews. An EIS prepared for NEPA

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

review averaged 4.4 years, and an EIS under both NEPA and Section 404 permits averaged 5.6 years to complete.

In contrast to the EIS findings, FHWA assessed projects that involved either a FONSI or a CE. Rather than using project data, such as start and completion date, this assessment was done by polling division offices. The agency concluded that most FONSI reviews took about 18 months to complete, and CE reviews took about 6 months to complete. AASHTO (TransTech 2000) did a survey of state DOTs and reported that about half of CEs were generally delayed and actually took between 1 and 2 years to complete.

FHWA and the Berger group (FHWA 2003f) attempted the most quantitative analysis of this issue by calculating statistics from about 100 road projects done between 1970 and 2000. All of these projects required an EIS pursuant to NEPA. This group concluded that the mean time to complete an EIS was about 3.6 years, which accounted for about 28% of the total project development process. They also noted that the time to complete an EIS doubled from the 1970s (about 2.2 years) to the 1990s (about 5 years). This report and others suggest that the current data collected on environmental review of road projects raise questions about the efficacy of NEPA, since the lengthy NEPA process can lead to frustration on all sides. The report’s authors concluded by suggesting that their study provides a useful baseline against which streamlining efforts could be evaluated.

ISSUES

Issues and Gaps Related to Ecology

A number of gaps exist within the array of environmental legislation, regulations, and policies. Not all species or ecosystem types obtain protection from adverse effects associated with roads. By definition, some of these acts require addressing only parts of ecological systems, such as wetlands, endangered species, and clean water. Little protection is afforded to species or habitats that are not rare, threatened, or endangered, even if those habitats serve important ecological functions. For example, an ecosystem patch or zone may perform functions of flood control, groundwater recharge, wildlife habitat, or open-space aesthetics. Without special designation under federal law, these ecosystem functions escape protection.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

TABLE 5-5 Political Scale at Which Environmental Legislation, Program, or Executive Orders Are Applieda

Legislation or Program

Local

County

Multicounty

State

Federal

MPO planning process

Limit

Limit

NCb

NC

NC

FHWA environmental policies

Assess

Assess

Assess

Assess

Assess

NEPA—in general

Assess

Assess

Assess

Assess

Assess

EIS

Assess

Assess

Assess

NC

NC

EA

Assess

Assess

Assess

NC

NC

Categorical Exclusion

NC

NC

NC

NC

NC

Clean Water Act

Section 402 NPDES program

Limit

NC

NC

NC

NC

Section 404 dredge and fill permits

Limit

NC

NC

NC

NC

Nonpoint-source pollution

Assess

Assess

Assess

NC

NC

Rivers and Harbors Act

Limit

NC

NC

NC

NC

Endangered Species Act

Limit

Assess

Assess

NC

NC

Clean Air Act

When setting standards

Limit

Assess

Assess

NC

NC

For road projects

Limit

Assess

Assess

NC

NC

Department of Transportation Act

Parks and public areas

Limit

NC

NC

NC

NC

Native vegetation

Limit

Limit

Limit

NC

NC

CMAQ

Assess

Assess

Assess

NC

NC

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Historic bridges

Limit

NC

NC

NC

NC

Noise

Limit

NC

NC

NC

NC

Habitat mitigation

Assess

Assess

Assess

NC

NC

Context-sensitive design

Assess

Assess

Assess

NC

NC

Transportation enhancements

Assess

Assess

Assess

NC

NC

Historic Preservation Act

Limit

NC

NC

NC

NC

Land and Water Conservation Fund

Limit

NC

NC

NC

NC

Migratory Bird Treaty Act

Limit

Assess

Assess

Assess

NC

Farmland Protection Policy Act

Assess

Assess

Assess

Assess

NC

Coastal Zone Management Act

Limit

Limit

Limit

NC

NC

Magnuson Fishery Act

Limit

Assess

Assess

NC

NC

Executive Orders

EO 13274 environmental stewardship

Assess

Assess

Assess

Assess

Assess

EO 12898 environmental justice

Limit

Limit

NC

NC

NC

EO 11988 floodplains

Assess

Assess

Assess

NC

NC

EO 13112 invasive species

Limit

Limit

Limit

Assess

NC

EO 11990 wetlands

Limit

Assess

Assess

NC

NC

EO 13186 migratory birds

Limit

Limit

Limit

Assess

Assess

aThe table indicates whether the law requires an assessment at a particular scale (Assess); the law establishes some protection, such as a permit requirement or other limitation (Limit); or scale is not considered (NC).

bMPOs may be multicounty, in which case this entry could be Limit.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Another gap is a knowledge gap in our ability to predict environmental effects, as required under NEPA and other acts. One of NEPA’s fundamental assumptions is that effects—direct, indirect, or cumulative—can be predicted. For at least 20 years, there has been a broad body of ecological literature that suggests that the ability to assess these effects is variable, ranging from fairly well-understood phenomena to inherently unpredictable systems. For example, most hydrological dynamics are understood well enough within streams and rivers to know how to minimize hydrological effects associated with bridges. Other complex biological phenomena, such as broad-scale migrations, patterns of exotic biota invasions, and population dynamics, are often difficult to predict and assess impacts prior to action. The array of laws and orders that underpin assessment and planning actions are usually only applied at local or small scales, the bounds determined for political or social reasons, not ecological ones. The legislative guidance (Table 5-5) suggests that environmental reviews can be conducted at larger spatial scales (state and national level) but are generally not done at these larger scales. This finding corresponds to the scales described in Chapter 3, showing that most of our knowledge of impacts associated with roads occurs at small spatial and temporal scales. The reasons for choosing smaller scales for environmental review are unclear but discussed further in Chapter 6.

Other gaps exist in the laws and orders that relate to environmental evaluations. No legal requirements were found that compel assessment of road effects on ecosystem goods and services. It is possible that some of the knowledge gaps identified in Chapter 3, especially road effects on ecosystem goods and services, are due in part to no legal requirement.

Existing laws are limited in capturing cumulative, indirect, and synergist effects of road systems. Although cumulative and indirect effects must be included under NEPA, the analysis generally does not consider long-term cumulative effects of an entire transportation system because NEPA applies at the project development scale. The MPO is not required to evaluate cumulative or indirect ecological effects of the LRTP or TIP.

Issues of Multiple Agency Involvement

The participation of multiple agencies with responsibility for ecological and transportation concerns raises other issues. As reflected in the statutes described in this chapter, multiple layers of coordination and

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

consultation are the rule, not the exception, in uniting transportation and ecological concerns. The resource agencies that are responsible for ecological matters may lack sufficient personnel, funding, or knowledge of transportation to perform their roles smoothly. In transportation, there are substantial differences in resource staffing and expertise among local entities, MPOs, and state DOTs. Local entities and MPOs rarely have sufficient budgets to maintain ecological expertise on the staff. In contrast, state DOTs have considerable ecological expertise. Coordination of all of these multiple agency resources can be difficult at the planning stage and the project stage.

Not only are the federal environmental laws administered by agencies other than FHWA or the state DOTs, but also there is no single agency with paramount authority for ecological resources. DOT has final authority for federal transportation projects, but the projects still require multiple agency review and permission. As described, the laws addressed in this chapter involve EPA, USFWS, the Corps, NPS, and other federal resource agencies. These resource agencies have multiple duties in addition to those related to transportation and generally have small staffs to work on transportation issues. The resource agencies often have pertinent ecological information, but it might not be maintained in easily accessible databases. Involvement of multiple federal agencies requires coordination of personnel time and work priorities. In some instances, state DOTs have provided a resource agency with funding to make personnel available to ensure attention to transportation projects.

The resource agencies are generally structured on a different regional basis than FHWA or the states. For example, EPA operates through 10 regional offices, the Corps has 35 district offices, and the USFWS has 8 regional offices, although there are also field offices with personnel from the ecological service branches in most states. These structural differences can make interagency coordination challenging at best.

There also can be conflicts among agencies involved with transportation projects. Disputes between a state DOT and EPA or USFWS over ecological effects of road projects are not uncommon. Having so many agencies involved in ecological issues offers the advantage of detached independent analysis of issues but often at the price of delays or controversies. Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews (September 2002), is designed to address potential interagency issues by establishing a process for review of projects nominated by states for special attention.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

Issues Concerning Programmatic, Proactive Approaches

Ecological concerns may extend beyond the spatial and temporal boundaries of specific projects. Some federal laws offer opportunities to look at environmental concerns programmatically, encompassing a broad geographic or temporal area. At a programmatic rather than a specific project level, a broader range of ecological concerns can be addressed.

For example, under NEPA, agencies are authorized to conduct a programmatic environmental impact statement, looking at the environmental effects of more than one project. A “program” can be defined by the agency. FHWA could consider a series of road projects that are planned for a region as a “program” under NEPA. The programmatic review may assist early planning to integrate ecological concerns into long-term planning. Thus, a programmatic review may identify wildlife or other sensitive environments so that individual projects can be planned accordingly to avoid and protect such ecosystems.

Other laws, such as ESA, do not provide for any programmatic or abbreviated analysis. The statute does not contemplate programmatic ESA review for territories or regions where multiple effects might be proposed from diverse sources. Although FHWA or the state DOT could request ESA review for multiple effects in a single location, they would have to have fairly specific information about the various projects, as well as the species of concern. Generally, at the LRTP or TIP stage, there is not sufficient specific information about particular projects to allow a meaningful review for effects on threatened or endangered species. If the law either required or provided a mechanism to consider threatened or endangered species regionally in advance of specific transportation projects, protection of certain wildlife and habitat could be assisted at the early planning stages.

The federal laws were written with a focus on environmental effects of specific projects. Despite some options to apply the laws in a more programmatic, broader fashion, limitations on resources impose practical constraints on such efforts.

SUMMARY

Transportation projects are primarily developed from the “bottom up,” reflecting community needs within local political jurisdictions. There are few incentives or disincentives in law for communities to consider effects beyond the political jurisdictions, including ecological ef-

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×

fects. The decision making has been primarily local, but the ecological effects can extend beyond the local area. Federal transportation planning law relies heavily on local jurisdictions, thus creating few opportunities for evaluation of ecosystem concerns, especially at broader scales.

The transportation planning system, carried out by MPOs, offers an opportunity for consideration of ecological concerns at an early stage in road planning. Incorporating ecological concerns at the planning stage would assist in providing protection for ecological functions and in avoiding controversies at the project development and implementation stage. Only NEPA considers effects to the environment at other scales, including indirect or cumulative effects. However, NEPA does not apply to the MPO planning processes.

Many entities interested in ecological concerns, including resource agencies, nongovernmental entities, and the public, do not understand the relationship of federal environmental laws to the transportation planning process or the project development and implementation process. This lack of understanding can result in controversies over specific projects after years of planning by transportation entities.

Although a wide range of laws, regulations, and policies require some degree of consideration of ecological effects of road construction, the existing legal structure leaves significant gaps. Road projects need only permits to conduct activities that might have an impact on certain types of ecological features—wetlands, endangered species, or migratory birds—and generally at a small scale. Moreover, the permit programs usually consider only direct effects of a road (construction or use) on the protected resource.

The data necessary to evaluate efficacy of policy and law are not easily accessible or amenable to synthesis. The data are contained in project-specific EISs, EAs, records of decision, or permits (for example, wetlands permits) that are not easily available for research.

With few exceptions (for example, wetlands and endangered species), existing law authorizes ecological concerns to be balanced with goals of transportation mobility, capacity, and other social needs in determining whether and how to undertake transportation projects. This balance can create controversy between parties supporting a project and those opposing it over issues of ecological protection.

Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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×
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×
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×
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×
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×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
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Suggested Citation:"5 Legal Context for Planning and Policy." Transportation Research Board and National Research Council. 2005. Assessing and Managing the Ecological Impacts of Paved Roads. Washington, DC: The National Academies Press. doi: 10.17226/11535.
×
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All phases of road development—from construction and use by vehicles to maintenance—affect physical and chemical soil conditions, water flow, and air and water quality, as well as plants and animals. Roads and traffic can alter wildlife habitat, cause vehicle-related mortality, impede animal migration, and disperse nonnative pest species of plants and animals. Integrating environmental considerations into all phases of transportation is an important, evolving process. The increasing awareness of environmental issues has made road development more complex and controversial. Over the past two decades, the Federal Highway Administration and state transportation agencies have increasingly recognized the importance of the effects of transportation on the natural environment. This report provides guidance on ways to reconcile the different goals of road development and environmental conservation. It identifies the ecological effects of roads that can be evaluated in the planning, design, construction, and maintenance of roads and offers several recommendations to help better understand and manage ecological impacts of paved roads.

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