Navigating Multi-Agency NEPA Processes to Advance Multimodal Transportation Projects (2016)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

D-1 A P P E N D I X D Summary Project Description Phase I of the National Gateway Clearance Initiative is a $183 million program to raise vertical clearances along CSX track between North Baltimore, OH, and Chambersburg, PA, to accommodate double-stacked trains. Key U.S. DOT Agencies • Federal Railroad Administration (FRA)—Co-lead • Federal Highway Administration (FHWA)—Co-lead Key State and Local Agencies • Ohio Department of Transportation (ODOT)—sponsor • Pennsylvania Department of Transportation (PennDOT) • Maryland Department of Transportation (MDOT) • West Virginia Department of Transportation (WVDOT) Challenges Faced The National Gateway Clearance project team faced four of the five common challenges related to multi-agency National Environmental Policy Act (NEPA) activities (see Table D-1). Strategies, Tactics, and Lessons Learned • Coordinate early with federal agencies to foster relation- ships and carefully determine the correct class of action. • Maintain frequent coordination with interested partners and resource agencies at all levels. • Become familiar with other agency processes early. • Allocate additional time to accommodate multiple agency issues and approaches. • Leverage high-level interests and relationships to drive the process. • Focus on broader economic and community benefits to obtain project buy-in. • Be aware of different interest in, and understanding of, NEPA when working with private partners. • Hire a specialist familiar with local agency requirements to expedite approvals. • Use the most advantageous agency relationships and procedures. Case Study Detail Introduction The National Gateway Clearance Initiative is an improve- ment program designed to achieve a minimum of 21 feet of vertical clearance along the CSX Transportation, Inc., (CSX) rail corridor in order to accommodate double-stacked rail cars. It spans six states to connect Mid-Atlantic ports and Mid- western markets (see Figure D-1). Phase I includes rail clearance and other rail improvements between Northwest Ohio and Chambersburg, PA. The proj- ect is funded in part by a U.S. Department of Transportation (U.S. DOT) Transportation Investment Generating Economic Recovery (TIGER) grant. The NEPA process was an Environmental Assessment (EA). Lead, Cooperating, and Participating Agencies The Federal Railroad Administration (FRA) and the Federal Highway Administration (FHWA) were co-lead agencies. The Ohio Department of Transportation (ODOT) was the local sponsor. The departments of transportation for Pennsylvania (PennDOT), West Virginia (WVDOT), and Maryland (MDOT) were cooperating agencies. CSX had already begun working with some of the individ- ual states on the clearance issue. Several states, including Ohio and Pennsylvania, had active obstruction removal programs. Case Study—Phase I National Gateway Clearance Initiative, Ohio, Pennsylvania, Maryland, and West Virginia

D-2 In 2009, taking advantage of a TIGER I grant opportunity under the American Recovery and Reinvestment Act of 2009 (ARRA), Ohio submitted an application on behalf of Pennsyl- vania, Maryland, Virginia, and West Virginia for $258 million to modify railroad infrastructure at 61 locations. In 2010, the U.S. DOT awarded a smaller, $98 million grant to four states (excluding Virginia) to connect major intermodal facilities. Each state prepared individual Categorical Exclusions (CE). PennDOT led the local coordination. The FRA was initially thought to be the appropriate agency to manage the grant. Since FRA did not have the resources to manage the large number of projects under TIGER, and had not historically administered a significant grant program, an FHWA staff person was assigned to FRA. Ultimately, the grant flowed through FHWA and both FHWA and FRA were co-leads for NEPA. The fact that the project was funded under the first round of TIGER, and that ARRA had statutorily imposed dead- lines, brought high-level attention to the project. The goal of ARRA was to help stimulate the national economy during the 2008–2010 recession, and the grant came with specific dates by which funds were to be obligated. A kick-off meeting and another coordination meeting were held in Washington, D.C., and a subsequent project kick-off meeting was held at MDOT. Senior staff from the four state DOTs attended. Periodic conference calls among the states, FRA, and FHWA kept everyone informed. The FRA project manager (on detail from FHWA) organized regular staff level calls. PennDOT arranged some of the higher level meetings involving the office of the U.S. DOT Assistant Secretary for Policy. The governors spoke to each other regularly, both informally and formally in telephone meetings. Unique agency- specific program requirements under the NEPA umbrella Differing agency interpretations of NEPA requirements Anticipating which agencies will have a major federal action Efficient coordination among agencies Securing funding for multimodal NEPA studies Table D-1. Challenges summary. Source: CSX Figure D-1. National Gateway Clearance Initiative map.

D-3 The NEPA process benefitted from the involvement of higher level officials who were able to bring attention and resources to resolving issues. NEPA Process/Approach After the project was awarded a grant under the TIGER program, FHWA and FRA determined that the individual states needed to combine efforts into a single NEPA docu- ment. The NEPA class of action was determined to be an EA primarily because several tunnels had effects on historic structures and the clearance of the 130-year-old J&L tunnel in Pittsburgh required cut-and-cover construction in a mixed- use residential and commercial area that would impact the community. Individual CEs that had been prepared by the states provided much of the information needed for the EA and were attached to it. CSX hired a consultant to complete the NEPA documentation. FRA initially thought that the project would require an EIS. Under FHWA’s procedures, however, projects largely within existing right-of-way could satisfy NEPA with an EA; FRA agreed that the correct class of action was an EA. Given FHWA’s long history with NEPA and the state DOTs’ familiarity and experience with FHWA’s NEPA procedures, FHWA and FRA agreed to follow the FHWA process while ensuring that FRA’s requirements were also met. FHWA’s nationwide program- matic Section 4(f) Evaluation and Approval for Transporta- tion Projects That Have a Net Benefit to Section 4(f) Property was particularly useful in addressing some impacts to individ- ual historic properties. FRA does not have a similar program- matic approach for addressing historic properties. Agency Requirements Applied to NEPA Interviewees indicated that there were no conflicts between the agency requirements, but there were differences. Since the project was subject to both FHWA and FRA procedures, generally the more stringent requirement was followed on any given issue. For example, FHWA typically does more extensive public outreach than does FRA for environmental assessments. FRA would have issued a notice of availability for the EA whereas FHWA required a public comment period and outreach sessions throughout the alignment. CSX and the state DOTs developed a single website to solicit public comments. FRA has a more involved process for vetting contractors to make sure they do not have a competitive advantage in later project phases. FRA requires additional disclosure docu- ments from the consultants and there are more steps in the review. This more involved disclosure process was followed. Finally, FHWA and FRA are subject to different air qual- ity regulations for determining whether a project will con- form to the State Implementation Plan. Under 40 CFR Part 93 subpart A, FHWA is required to perform transportation conformity analysis for projects funded under Title 23 of the U.S. Code. Since the project was funded by a TIGER grant, which is not a Title 23 program, the General Conformity Rules under Title 40 CFR Part 93, subpart B, were applied. Impact of These Requirements The differing requirements added some complexity to the process but the impact to the schedule was not significant. Because the FRA project manager (on detail from FHWA) learned of the additional disclosure process required by FRA early and incorporated it into the schedule, it did not delay the project. The general conformity analysis was new to the project manager as well, and while it took some additional time, it was not on the project’s critical path. The public involvement meeting and comment period caused CSX some concern because, as a private entity, it was not used to these requirements. However, the public meetings and notices did not add to the overall timeline. Challenges to Multimodal NEPA Studies Relevant to the Project Unique Agency-Specific Program Requirements under the NEPA Umbrella: Because the project was subject to both FRA and FHWA requirements, it did have to complete addi- tional processes. As described above, the project was subject to general conformity under FRA and additional disclosure requirements for contractors. While there were differences between the agencies, the interviewees did not consider the additional requirements to be onerous or to require signifi- cant additional time. Differing Agency Interpretations of NEPA Requirements: FHWA and FRA differed significantly in their approach to determining the appropriate class of action. FRA initially thought the project should require an EIS, but both agencies agreed early on that an EA was the appropriate class of action. FHWA requires more extensive public outreach for EAs than FRA does. Although the state DOTs were familiar with FHWA’s outreach requirements, CSX was concerned that additional requirements for public review would add to the project schedule. The schedule for expending TIGER funds was subject to tight timelines under the ARRA. Because the project followed FHWA’ process, the project was able to use FHWA’s programmatic evaluation for 4(f). FRA’s rules do not have this option. Anticipating Which Agencies Will Have a Major Federal Action: There was uncertainty about which agency would

D-4 administer the TIGER grant. Initially, it was assumed the funds would flow through FRA. However, because FRA did not have the staff and resources to devote to this project and FHWA did, the agencies decided that FHWA would administer the grant. Thus, FHWA and not FRA had the federal action. An added benefit was that the state DOTs had greater familiarity with FHWA’s processes than with FRA’s. Efficient Coordination among Agencies: Coordination between the federal agencies was efficient. The agency kick- off meeting was helpful, as was the high-level attention the project received. Following initial face-to-face meetings, all meetings were conducted by telephone. Most important were the regular monthly calls with the states and the FRA project manager. These eventually included the Eastern Federal Lands Division, which was tasked with managing construction. Working with so many states—each with its own processes and issues—was challenging. The project had varying levels of impacts in each state, the state DOTs had varying abilities to address their issues, and the longest timeline controlled the overall schedule. Because there are no historic railroads in Ohio and ODOT processed projects with historic structures sepa- rately, ODOT did not have as many significant issues as other states. ODOT indicated that work in Ohio was significantly delayed by combining the four state corridors into one project. In hindsight, ODOT questioned the determination that the project required a single NEPA document because the deci- sion was based on an older project description that included more states and was all-inclusive. FHWA and FRA disagreed. Another coordination challenge involved working with a private sector partner. CSX hired a single consultant to com- plete the NEPA documentation for all states. That consultant did not have local knowledge in each of the states. The con- sultant did not anticipate some federal requirements timelines and there were missteps as a result. At one point, for example, the mitigation for cutting trees had been identified and CSX proceeded to cut the trees prior to completion of NEPA. In another case, after a derailment damaged a bridge, CSX dis- carded trusses which were supposed to be saved as mitigation. These issues were worked through with the resource agencies, but they required additional oversight. Securing Funding for Multimodal NEPA Studies: Funding the study was not an issue. CSX covered most of the consul- tant cost. Each state paid for its employee staff time. Some states reimbursed CSX for a portion of the NEPA costs. Strategies/Tactics Used to Overcome Challenges The TIGER grant brought high-level attention to the proj- ect at the federal and state levels and forced the participants to follow a tight schedule. A high-level kick-off meeting in Washington, D.C., was used to highlight the tight schedule for the project. Attention from the office of the U.S. DOT Assistant Secretary for Policy was helpful in resolving problems quickly and the governors also coordinated with each other. This allowed the Governor of Pennsylvania—the state leading local coordination of the NEPA process—to talk to his counterparts and focus high-level attention on issues within their states. FHWA assigned one of its senior NEPA experts to FRA to administer the project and fill a resource gap at that agency. That FHWA employee had long-standing working relation- ships with several of the state DOTs. In addition, the state DOTs had already been working together and had developed productive relationships. A key tactic was holding regular telephone calls with all of the state DOTs, FRA, FHWA, and CSX. This allowed the team on the ground to coordinate regarding issues, to identify problems early, and strategize about solutions. Many of the calls focused on obtaining agreements with the State Historic Preservation Officers (SHPOs) because these issues were on the critical path. Routine communication among the states was invaluable. Lessons Learned Coordinate early with federal agencies to build and main- tain relationships and carefully determine the correct class of action. The state DOTs coordinated with their FHWA division offices as they proceeded with separate CEs. After they received a federal TIGER grant, the parties determined to pro- ceed with a single, phased project. FRA’s initial decision that an EIS was needed was changed early enough in the process— by mutual agreement with FHWA—to avoid impacting the schedule. And, although this change meant state DOTs had to adjust their approach, a number of benefits to the project resulted. Moreover, the decision to pursue an EA instead of an EIS was made in a timely manner by FRA and FHWA and did not result in significant schedule delays. Productive working relationships between the states and FHWA (particularly Eastern Federal Lands) had been estab- lished before the project began, and were an important factor in its success. The states were familiar with FHWA processes. The project manager that FHWA loaned to FRA was expe- rienced and knowledgeable, had decision-making authority, and had worked previously with several of the state DOTs. That individual was able to resolve or avoid misunderstand- ings that resulted from the states’ relative lack of familiarity with FRA’s requirements. Maintain frequent coordination with interested partners and resource agencies at all levels. The regular conference calls among the state DOT representatives, FHWA, and FRA were critical to moving the project forward. Several states had serious issues with historic properties and agreements that

D-5 needed to be addressed. High-level support did not necessar- ily translate to the line staff level at all agencies. PennDOT noted that engagement with SHPOs should have been initi- ated earlier by project staff to facilitate more timely decisions and approvals. The delay in sign-off from historic and cultural resource agencies in Pennsylvania added about two weeks to the timeline. Existing relationships between state DOT cul- tural resources staff and their respective SHPOs greatly helped advance these agreements. Finally, when Ohio had problems getting the CSX consultant to complete products, FHWA helped finish the work. Become familiar with other agencies’ processes early. Lack of awareness of additional FRA requirements (disclosure forms and general conformity) could have slowed the pro- cess, especially because the federal staff lead was on loan from FHWA and unfamiliar with the requirements. The fact that FRA staff alerted the team to the requirements allowed them to be addressed without causing delay. Allocate additional time to accommodate multiple agency issues and approaches. The multi-state nature of the project meant that individual state issues were on the critical path for the entire project; the slowest state would establish the schedule. A couple of the states had more sig- nificant issues with historic properties and/or SHPOs who did not initially accept the FHWA programmatic agreement, which relies on a beneficial use determination. Additionally, Pennsylvania had a cut-and-cover section, which required significant reconstruction in a low-income urban neighbor- hood in Pittsburgh. Resolution of both of these issues added several weeks to the overall project schedule. Leverage high-level interests and relationships to drive the process. The fact that several states had already been working on raising railroad clearances provided a shared level of interest. They realized that only by working together could they achieve the full benefits of double-stack clearance. This shared interest helped them win the TIGER grant, which provided a significant additional impetus to the project. The TIGER grant spurred the involvement of high-level staff at the federal level and drove the schedule. Higher level coordination among the governors and periodic involvement of higher level DOT headquarters staff helped resolve roadblocks and sustain the project as a priority. Focus on broader economic and community benefits to obtain project buy-in. Resource and local agencies acknowledged the economic benefits of the project quickly. This helped clear initial hurdles in terms of agency engagement and participation. Be aware of different interest in, and understanding of, NEPA when working with private partners. In this case support from a private partner was critical to moving the project forward, but a lack of understanding about NEPA and other federal regulations had to be overcome. CSX’s inter- est served as the initial impetus for the project and CSX also fronted the funding for the NEPA consultant. However, CSX was not as familiar with federal requirements and at times took actions that were out of sync with the NEPA schedule, including acting before clearances were obtained. Hire a specialist familiar with local agency requirements to expedite approvals. The NEPA consultant hired by CSX was not familiar with Ohio resource agency procedures. This led to problems in completing certain products. FHWA had to step in to finish the work. Use the most advantageous agency relationships and pro- cesses. A major factor in the success of the project was the productive relationship between the FRA project administra- tor (loaned from FHWA) and the state DOTs. They “spoke the same language” and had an established working relation- ship. Also, the project utilized FHWA procedures, such as the nationwide programmatic 4(f) evaluation, which were advantageous for the project. Bibliography Federal Highway Administration, Federal Railroad Administration, and Ohio Department of Transportation. September 7, 2010. Environ- mental Assessment and Section 4(f) Evaluation, Phase I National Gateway Clearance Initiative. Federal Railroad Administration and Federal Highway Administra- tion. November 22, 2010. “Finding of No Significant Impact and Determination of Applicability of Programmatic Section 4(f) Evaluation, Phase I National Gateway Clearance Initiative.” http://www.itre.ncsu.edu/adc10/conferences/trb_91/johnson.pdf. (As of March 23, 2015). https://www.environment.fhwa.dot.gov/4f/4fnetbenefits.asp. (As of October 31, 2015).