Developing, Enhancing, and Sustaining Tribal Transit Services: A Guidebook (2012)

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53 Introduction This chapter examines the various environmental issues that may arise when planning transit facilities. Different types of projects require different levels of compliance with various legal requirements. Environmental regulations typically are developed to ensure that no significant impact to the environment will be made without prior consideration. Air Quality The Congestion Mitigation and Air Quality Improvement (CMAQ) program was established with the passing of the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991. The legislation put a focus on the linkage between transportation and air quality. The goal of the program is to support surface transportation projects and related efforts to improve air quality and reduce traffic congestion. The program is administered jointly between the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA). Non-Attainment The passage of the Clean Air Act amendments of 1990 established the National Ambient Air Quality Standards (NAAQS). These standards required further emissions reductions and initi- ated more strict control measures in areas that fail to attain the NAAQS. Areas that fail to meet the NAAQS standards for ozone, carbon monoxide, particulate matter, or nitrogen dioxide are deemed non-attainment areas. Non-attainment areas are subject to conformity requirements to ensure that progress is being made toward achieving NAAQS. Conformity As mentioned above, conformity requirements apply to areas that do not meet NAAQS. Con- formity regulations ensure that federally supported transportation activities are consistent with the state implementation plan (SIP) for meeting federal air quality standards. The regulations establish the procedures and criteria for transportation agencies to demonstrate that air pollut- ant emissions in metropolitan transportation plans, transportation improvement programs, and individual projects are consistent with the SIP. Federal funds are given to highway and transit activities that will not cause new air quality violations, worsen existing air quality violations, or delay the timely attainment of relevant air quality standards. Non-attainment areas are subject to these regulations for long-range transportation plans, transportation improvement plans, and individual transportation projects that are funded C h a p t e r 6 Environmental Issues

54 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook through FHWA or FTA. Initial conformity determinations are made by metropolitan plan- ning organizations. For areas that do not have a metropolitan planning organization, the initial determination is made by the State Department of Transportation (DOT). The final conformity determination is made by FHWA or FTA. Additional information on air quality issues can be found on FHWA’s air quality webpage at http://www.fhwa.dot.gov/environment/air_quality/conformity/. Environmental Mitigation Impacts of Highway Projects and Development FHWA has set forth policies related to the mitigation of impacts on wetlands and natural habitats from highway projects and development. These policies are intended to minimize the adverse impacts of highway and land development on sensitive environments. The evaluation of the importance of the impacted natural habitats or wetlands includes the following: • Functional capacity of the habitats or wetlands • Relative importance of these functions to the total resources of the area • Uniqueness, aesthetics, and cultural value of the habitats or wetlands • Input from the appropriate resource management agencies through coordination The evaluation should also focus on both the short- and long-term effects that a project may have on a wetland’s or natural habitat’s functional capacity, consistent with environmental com- pliance regulations. Once the evaluation is complete, the appropriate mitigation technique can be determined. The following actions are eligible for federal aid: • Avoidance and minimization of impacts through realignment, special design, construction features, or other measures • Compensatory mitigation alternatives, including improvement of existing degraded or his- toric wetlands or habitats through restoration or enhancement off-site; creation of new habi- tats; preservation of existing wetlands or habitats on-site • Mitigation banks As a mitigation technique, preservation and restoration are preferable to creation of wetlands. Additional information on environmental mitigation can be found at FHWA’s webpage on envi- ronmental laws and regulations, at http://www.environment.fhwa.dot.gov/ecosystems/laws.asp. NEPA Requirements The National Environmental Policy Act of 1969 (NEPA) is the primary law governing FTA’s environmental protection process. The act established the process for coordinating legal compli- ance for projects receiving federal money. NEPA made protection of the environment a high pri- ority, mandating that environmental impacts must be considered before action that may have a significant impact on the environment is undertaken. The act established four primary purposes: 1. To declare a national environmental policy 2. To promote efforts to protect the environment 3. To improve national understanding of environmental issues 4. To establish the Council on Environmental Quality Some states have their own state environmental laws in addition to NEPA. Tribes should determine whether state environmental protection laws have been developed, implemented,

environmental Issues 55 and enforced that may need to be considered in relation to their transit plans. Such laws would apply for any tribes taking action on state lands or fee lands. Some tribes have their own tribal environmental laws with which they may have to comply. In some cases, the Environmental Protection Agency (EPA) has made a number of “treatment in the same manner as a State” determinations for tribes, establishing tribes as the primary parties for making environmental decisions consistent with EPA standards and regulations and giving tribes the authority to make decisions under NEPA. The Tribal Energy and Environmental Information Clearinghouse (TEEIC) provides infor- mation about the environmental effects of energy development on tribal lands. It gives guid- ance on conducting project-specific impact assessments and monitoring programs, information about applicable federal laws and regulations, and federal and tribal points of contact. Much of this information can be found on the TEEIC Web site, at http://teeic.anl.gov. Facilities Categorical Exclusion A categorical exclusion may be granted for projects or actions that do not individually or cumulatively involve significant social, economic, or environmental impacts. These projects typically require little or no construction and involve minimal or no impacts off-site. A cat- egorical exclusion eliminates the need to complete more expensive and detailed documen- tation like an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Specific types of projects fall under this category. These project types include, but are not limited to, bike and pedestrian facilities, emergency repairs, landscaping, ridesharing, and vehicle purchase. Other projects may be eligible for a categorical exclusion but require further review and approval by FTA before the categorical exclusion can be obtained. Applicants are required to submit documentation that demonstrates that all of the criteria for a categorical exclusion are satisfied and that there will be no significant impact resulting from the action. Examples of these project types include traffic operations improvements, bridge rehabilitation, construction of bus storage and maintenance facilities, construction of bus transfer facilities, and rehabilitation of existing facilities that include minor amounts of additional developed land. Environmental Assessment An EA requires a significant level of environmental analysis, but is less intensive than is required for preparing an EIS. In many cases, the preparation of an EA may show that an EIS is actually needed for the project. An EA has three primary goals: 1. To determine which aspects of the proposed action have potential for social, economic, or environmental impacts 2. To identify alternatives and measures that might mitigate adverse environmental impacts 3. To identify other environmental review and consultation requirements that should be performed concurrently with the EA When a public hearing is held as part of the application for federal funds, the EA must be made available at the hearing and for a minimum of 15 days in advance of the public hearing. When a public hearing is not held, a notice must be placed in the newspaper(s) that advises the public of the availability of the EA and where information regarding the action may be obtained. Com- ments should then be submitted within 30 days of the publication of said notice. FTA will subsequently review the EA and any public comments received to determine if an EIS is needed or the administration will grant a finding of no significant impact (FONSI).

56 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Environmental Impact Statement When it is determined that an action is likely to have a significant impact on the environment, an EIS will be required by FTA. (Note: Because FTA is typically the lead federal agency on transit projects, the description of the process that follows assumes that FTA has funded the project. If another agency is the primary source of funding, that agency may act as the lead agency.) An EIS requires a greater level of detailed analysis than an EA. Completion of an EIS can take a significant amount of time, often between 12 and 18 months. An EIS seeks to answer five major questions: 1. What is the probable impact of the proposed project or action? 2. Are there any adverse environmental effects that cannot be avoided should the proposed action be implemented? 3. What alternatives to the proposed action are available, if any? 4. What is the relationship between local short-term uses of the environment and the resources that would be involved in the proposed action? 5. What irreversible and irretrievable commitments of resources, if any, would be involved in the proposed action? The first step in the EIS process is to produce a letter of intent and distribute the letter at the local level. After the notice of intent to complete an EIS has been prepared, the scoping process begins. To eliminate duplication of analysis, this process should take into account any planning work that has already been accomplished. The scoping process is used to identify the purpose and need of the project or action, the range of alternatives and impacts, and the significant issues to be addressed in the EIS. Once the EIS has been drafted, FTA (acting as the lead federal agency) will check it to ensure that it complies with NEPA requirements. If the draft EIS complies with the requirements, FTA will approve the draft for circulation. The lead agency then makes the draft EIS public and dis- tributes it to public officials, interest groups, individuals, government agencies that are expected to have an interest in the proposed action, and land management entities. A public hearing is required for the draft EIS. The draft EIS should be made available to inter- ested parties for no fewer than 15 days in advance of the public hearing. Comments should be taken by the lead agency regarding the draft EIS for no fewer than 45 days and no more than 60 days. After the draft EIS has been circulated, the public hearing has been conducted, and all com- ments have been received, a final version of the EIS can be prepared by the lead agency. The final EIS should document the basis for selecting a preferred alternative and include evidence that all reasonable alternatives have been evaluated. The document also must summarize public com- ments and involvement, and describe mitigation measures that have been incorporated into the proposed action. The final EIS also will document compliance with applicable environmental laws or provide a reasonable assurance that their requirements can be met. The final EIS must then be transmitted to all persons, organizations, or agencies that made comments on the draft EIS or requested a copy. This must be done no later than the time the document is filed with the EPA. FTA will complete and sign a record of decision (ROD) no sooner than 30 days after the pub- lication of the final EIS notice or 90 days after publication of the draft EIS. The ROD includes any mitigation measures that will need to be incorporated in the project. After approval of the ROD with a FONSI or categorical exclusion (CE) designation, the applicant shall consult with FTA before requesting any major approvals or grants to establish that the documents remain valid for the requested action.

environmental Issues 57 Tools that can be used as references for NEPA requirements can be found at FTA’s webpage on environmental analysis and review at this location: http://fta.dot.gov/13835_5222.html. Bus Services Changes to bus service, such as routing and fare changes, do not require environmental docu- mentation. However, FTA does require that public meetings be held in order to get feedback from the public. This requirement exists because FTA wants to ensure that decisions are not made without discussion with individuals who may be affected by such changes. Title VI regulations help to ensure that no residents are being discriminated against based on their race, color, ethnicity, age, or ability to speak English. These regulations may be applicable to tribes through grant agreements. Transit agencies must conform to these poli- cies and demonstrate that their transit service is non-discriminatory. The use of maps and overlays can aid in proving that service is distributed evenly. Figure 6.1 shows an example of how the density of minority populations can be mapped with overlays showing transit routes. Vehicles The purchase of vehicles does not require environmental documentation or a public pro- cess. Vehicle purchases are based only on the need of the transit agency. There are, however, many grant programs available for alternative fuel and alternative technology vehicles for tran- sit. Guidance on selecting fuels can be found in TCRP Report 146: Guidebook for Evaluating Fuel Choices for Post-2010 Transit Bus Procurements, which is available at the following website: http://www.trb.org/Publications/Blurbs/165390.aspx. Figure 6.1. Map showing density of minority population overlaid with transit system routes.

58 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Information on FTA policies can be accessed via FTA webpages on Legislation and Law begin- ning at this location: http://www.fta.dot.gov/leg_reg.html. For More Information Federal Highway Administration. Air Quality: Transportation Conformity. U.S. Department of Transportation. http://www.fhwa.dot.gov/environment/air_quality/conformity/. Federal Highway Administration. Environmental Laws and Regulations. U.S. Department of Transportation. http://www.environment.fhwa.dot.gov/ecosystems/laws.asp. Federal Transit Administration. Environmental Analysis and Review. U.S. Department of Transportation. http://fta.dot.gov/planning/environment/planning_environment_225.html. Science Applications International Corporation. TCRP Report 146: Guidebook for Evaluating Fuel Choices for Post-2010 Transit Bus Procurements. Transportation Research Board of the National Academies, Washington, D.C., 2011. http://www.trb.org/Main/Blurbs/165390.aspx.