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

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E-1 A P P E N D I X E Summary Project Description The CREATE program consists of 70 freight rail, passenger rail, and related improvements in the Chicago region. The projects span roadway, bridge, and rail modes. Key U.S. DOT Agencies • Federal Highway Administration (FHWA)—Lead Agency • Federal Railroad Administration (FRA)—Cooperating Agency • Federal Transit Administration (FTA)—Cooperating Agency Key State, Local, and Private Agencies • Illinois Department of Transportation (IDOT)—Public Agency Lead • Chicago Department of Transportation (CDOT) • Metra (the Chicago region’s commuter rail operator) • Association of American Railroads (AAR) and associated Class I freight rail, passenger rail, and commuter rail agencies Challenges Faced The CREATE project team faced two of the five common challenges related to multi-agency National Environmental Policy Act (NEPA) activities (see Table E-1). Strategies, Tactics, and Lessons Learned • Tailor the environmental approach to expedite the unique project structure. • Maintain frequent coordination with partner agencies. • Begin coordination early. • Establish a formal governance structure as a unification tool. • Utilize joint meetings among federal lead and cooperating agencies. • Establish a flexible communication strategy to reflect proj- ect coordination needs. • Implement a structured, reliable review process to ensure consistency during environmental review. Case Study Detail Introduction Program Overview The CREATE program is a series of freight rail, passenger rail, and related improvements in the Chicago region. Chicago is the busiest rail hub in the United States, handling one-quarter of the nation’s freight rail traffic. It is also strategically situ- ated where six out of seven Class I freight railroads converge, including the lines of Norfolk Southern Corp. (NS) and CSX Transportation (CSX) from the east, BNSF Railway (BNSF) and Union Pacific Corporation (UP) from the west, as well as the Canada Pacific Railway (CP) and Canadian National Railway Company (CN). The volume of rail traffic and related infra- structure demand in the region has surpassed the existing capacity, causing delays and negative impacts on the current freight and passenger rail system. The goal of the program is to decrease congestion and delays and increase efficiency to better handle the current volume and projected increases in rail traffic. The program includes 70 component projects classified by rail corridor type (passenger or freight) and type of improve- ment. The classifications are: • Western Avenue Corridor—8 projects • Beltway Corridor—11 projects • East-West Corridor—4 projects • Passenger Corridor—7 projects • Grade Separations—25 projects • Towers—12 projects Case Study—Chicago Region Environmental and Transportation Efficiency Program (CREATE), Chicago, Illinois

E-2 • Other—3 projects (viaduct improvements, “Common Oper- ational Picture” central dispatch improvement, grade crossing safety program) Figure E-1 illustrates the location of the projects along the regional corridors. It does not include all the projects in the CREATE program, such as the viaduct projects, grade cross- ing safety program projects, and the Common Operational Picture project. Component Project Selection Process Project selection for the CREATE program dates back to the early 1990s, when regional groups and private stakeholders began identifying vital freight transportation improvements as part of regional planning efforts in the Chicago area. Fig- ure E-2 highlights catalytic events that led to component project selection. Projects with Potential for Significant Impacts As of late 2015, 51 of the 70 projects were in Phase 1 (envi- ronmental review), Phase II (final design), Phase III (construc- tion), or had reached final completion. Three sizable packages of improvements have moved considerably through the NEPA process as an Environmental Assessment (EA) or Environ- mental Impact Statement (EIS). The three are: • 75th Corridor Improvement Project (also known as P2/3) (EIS): The project is comprised of four CREATE compo- nents that were grouped due to their related environmental impacts. The project will alleviate the most congested bot- tleneck in Belt Junction where more than 80 Metra (com- muter rail) and freight trains cross daily. The project will reconfigure Beltway of Chicago (BRC) tracks between Dan Ryan and Belt Junction, construct a second main track for Metra’s SouthWest service operations, construct a bridge that will reduce conflicts between Metra lines and four freight rail carriers, and construct a road-rail grade separation. • Grand Crossing Rail Project (also known as P4) (EIS): The project will provide a direct route for Amtrak trains into Chicago Union Station by constructing new mainline capac- ity. The project will affect 20 Amtrak trains and 46 freight trains daily. • Englewood Flyover (also known as P1) (EA): The project is the construction of a double-tracked flyover to grade- separate passenger and freight rail traffic. The project will also increase speeds from 50 to 70 mph. The project will affect 16 passenger rail trains and 81 freight rail trains daily. The 75th Corridor Improvement Project (P2/3) received a Record of Decision (ROD) in October 2014. The ROD was issued by FHWA and allows the project to move into final design as funding becomes available. The Englewood Flyover project (P1) is in construction and near completion. The remaining EIS project, the Grand Crossing Rail Project (P4) is still in the environmental review process and currently inactive. Lead, Cooperating, and Participating Agencies The major federal action triggering NEPA review for the CREATE program was the anticipated receipt of federal fund- ing from various U.S. DOT programs to construct the com- ponent projects. Despite the rail focus of the program, many projects and project components include the improvement of grade crossings and grade separations. The potential use of FHWA funds for these projects triggered FHWA’s involvement. The decision was made early in the NEPA process to have FHWA serve as the lead federal agency for the entire CREATE program. FHWA and its division office could pro- vide the resources necessary for a program of CREATE’s size. Plus, CREATE included several highway component projects within FHWA’s purview. FTA and FRA were given the role of cooperating agencies on passenger rail and freight rail components as deemed necessary. According to project staff, FHWA was considered to be the best-equipped federal agency to guide the comprehensive environmental review process. IDOT is the state public agency lead for the CREATE pro- gram. In addition to agency coordination at the federal and state levels, project consultants and representatives from IDOT and FHWA met with CDOT representatives to work through design issues throughout the environmental process. Section 404 of the Clean Water Act regulates the discharge of dredged or fill material in “Waters of the U.S.”As part of Illinois’ NEPA-404 Merger process, IDOT invited several state and local agencies to participate in NEPA-404 Merger meetings. Once FHWA determined that the project would 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 E-1. Challenges summary.

E-3 Figure E-1. Map of CREATE projects. Source: CREATE Program

E-4 not require Section 404 permits from the U.S. Army Corps of Engineers, the meetings were used for coordination and informational purposes among the participants. Two addi- tional meetings were held in 2011 and 2012 for coordination and information sharing purposes. The federal, state, and local agencies invited are listed in Table E-2. NEPA Process/Approach The environmental review process for the CREATE pro- gram is challenging due to the large number of projects and stakeholders involved. To meet this challenge and create a strat- egy that worked best for the CREATE program, the FHWA Illi- nois Division Office, IDOT, and CDOT created the Systematic, Project Expediting, Environmental Decision-making (SPEED) Strategy to guide the CREATE program’s environmental review process. The objectives of the SPEED Strategy are to: • Support systematic decision-making; • Provide an expeditious method for moving low-risk project components forward; and • Assess potential environmental impacts according to their degree of severity of impact. The SPEED Strategy is rooted in the CREATE Program Feasibility Plan, which outlines the program needs, compo- nent projects, and partners’ goals and responsibilities. The first step in the SPEED Strategy is preliminary screening of projects, which identifies each project’s intent, description, and project limits. The screening process for each project includes a test of NEPA principles: • Logical termini—The project has rational end points for transportation improvements and rational end points for environmental impact review; • Independent utility—The project is usable and a reasonable expenditure if no additional transportation improvements in the area are made; and • Restriction of alternatives—The project does not constrain other potential transportation improvements in the project area. These tests are important for ensuring reasonableness in the separation and linking of component projects that are located close together. The next step in the SPEED Strategy is to identify the level of environmental review for all linked and component proj- ects through the Environmental Class of Action Determina- Figure E-2. Timeline of freight planning activities. Source: CREATE Program, compiled by Parsons Brinckerhoff Federal Agencies State Agencies U.S. Army Corps of Engineers Illinois Historic Preservation Agency U.S. Fish and Wildlife Service IDNR EPA Illinois Department of Agriculture – Bureau of Land & Water Resources Illinois Environmental Protection Agency Table E-2. Agencies formally invited to NEPA-404 merger meetings.

E-5 tion (ECAD) process. The process allows FHWA to determine whether a project will be a Categorical Exclusion (CE), EA, or EIS. The SPEED Strategy is illustrated in Figure E-3. At the time of this research three projects—the 75th CIP (P2/3), Grand Crossing Rail Project (P4), and Englewood Flyover (P1)—are expected to require an EA or EIS, with the remaining projects categorized as CEs. Agency Requirements Applied to NEPA The FHWA and FTA NEPA requirements are detailed in 23 CFR Part 771, “Environmental Impact and Related Proce- dures.” The regulation states, . . . when both the FHWA and FTA are involved in the devel- opment of a project, or when the FHWA or FTA acts as a joint lead agency with another federal agency, a mutually acceptable process [for coordinating on NEPA] will be established on a case- by-case basis. FRA’s NEPA guidance is provided in 45 FR 40854, with minor updates published in 1999 in 64 FR 28545. FRA guid- ance provides 20 examples of project scenarios that are clas- sified as CEs, developed over years of encountering similar projects. FHWA and FTA have their own lists of CEs which are similar to, but not the same as, the FRA list. In 2009, FRA noted that it was working with the Council on Environmental Quality (CEQ) to update its list of CEs, but that the process was not completed. In December 2013, a report published by the Office of the Inspector General analyzed coordination efforts on NEPA among FHWA, FTA, and FRA for multi- modal projects. It found that FRA’s guidance is outdated, but that there are no differences among the agencies that hinder their coordination on projects. The American Recovery and Reinvestment Act of 2009 (ARRA) allocated $8 billion to fund future high-speed rail projects, under the purview of FRA. Following ARRA, FRA released the High-Speed Rail Strategic Plan and Notice of Figure E-3. SPEED strategy workflow. Source: CREATE Program

E-6 Funding Availability (NOFA) for Fiscal Year 2009 ARRA funds, which formally established the High-Speed Intercity Passen- ger Rail Program (HSIPR Program). U.S. DOT released two additional NOFAs, in Fiscal Year 2010 and Fiscal Year 2011, allocating a total of $10 billion to the HSIPR Program. The NOFA that established the HSIPR Program announced FRA’s responsibility as sponsoring agency of the HSIPR Program to “[assure] NEPA compliance while accomplishing the pur- poses, priorities, and requirements of the HSIPR Program.” The HSIPR Program also augmented FRA’s resources and its ability to oversee the development of rail projects. FRA expanded its role in regional rail planning and the NEPA process to include an increased responsibility for coordinat- ing projects like the Grand Crossing Rail Project (P4), the Englewood Flyover (P1), and the 75th CIP (P2/3) with other current and potential FRA investments in the region. Impact of These Requirements While the NEPA requirements of the federal lead and coop- erating agencies were aligned, each agency had its own modal interests which affected the focus of its environmental reviews. FHWA focused on how construction of the facility and gen- eral operations would affect the environment. An additional focus for FRA was on how projects will affect existing and future rail operations. These differences in focus and the introduction of the HSIPR Program added a new set of issues for consideration in NEPA review. The lack of a general formalized coordination process between FHWA, FTA, and FRA, coupled with out- dated FRA guidance (as highlighted by the Office of Inspector General Report), left the onus on the lead and cooperating agencies to coordinate NEPA interests on a case-by-case basis. The impact of the new HSIPR Program was felt by the team during the EIS process for the Grand Crossing Rail (P4) project. The expanded role of FRA led to a realization that environmen- tal review as led by FHWA did not account for all of the opera- tional rail issues considered significant by FRA, in part because FHWA lacked the technical familiarity to identify and analyze the underlying operational impacts. Thorough analysis of these issues is a priority for FRA who may fund a significant portion of the project. The reconsideration of the environmental impact through the lens of FRA operational concerns has delayed the EIS progress on the Grand Crossing Rail (P4) project. Challenges to Multimodal NEPA Studies Relevant to the Project Unique Agency-Specific Program Requirements under the NEPA Umbrella: The development of the intercity pas- senger rail program, growth of FRA resources, and expan- sion of FRA’s role in regional planning had a tangible effect on the Grand Rail Crossing project. These developments did not introduce NEPA requirements that were not already there, but they enhanced FRA’s resources and capacity to high- light agency-specific perspectives and request new analyses deemed to be necessary for the agency to give environmen- tal approval. For the Grand Crossing Rail (P4) project, FRA’s interest in addressing rail operational issues in the NEPA process affected the scope, cost, and approach to satisfy NEPA. Differing Agency Interpretations of NEPA Requirements: The different perspectives of FHWA and FRA reflected differ- ing programmatic interests and expertise rather than differ- ing interpretations of NEPA. Anticipating Which Agencies Will Have a Major Federal Action: From the beginning of the CREATE program, it was understood that FHWA, FRA, and FTA might each have major actions to take in implementing the program. FHWA agreed to serve as the lead agency for NEPA, with FTA, FRA, and state agencies supporting and serving as cooperating agencies. As FRA gained more funding authority through ARRA and the intercity passenger rail program, its role in supporting the program and the NEPA process expanded. Efficient Coordination among Agencies: The governance structure agreed upon by stakeholder parties in the Joint State- ment of Understanding calls for unanimous agreement on changes to project scope, budget, and related contracts. Secur- ing agreement increased the time needed to address issues as they arose. Project sponsors also faced a challenge in developing col- laborative partnerships with private sector rail operators. Private, for-profit companies are accustomed to competing with each other, and much of their information relevant to NEPA was considered proprietary. This included the under- standing of future freight rail operations needed to establish the purpose and need, optimize planned routes and opera- tions, and analyze project impacts. A period of adjustment was necessary to build trust and initiate collaboration. There has also been a concern that collaboration with and among the railroads might raise anti-trust issues. The inclusion of public funds triggered government and community oversight and compliance with regulations that presented a challenge for these private sector stakeholders, who are accustomed to more rapid decision-making and project execution. All participants had to learn and under- stand the legally required review and compliance activities. Securing Funding for Multimodal NEPA Studies: Fund- ing for NEPA came from several partners. Some came from a Transportation Investment Generating Economic Recov- ery (TIGER) grant and American Recovery and Reinvest-

E-7 ment Act (ARRA) funding for passenger rail projects. Other sources were used as well. Funding for planning, design, and construction has not yet been secured for all the component projects. NEPA review of the Grand Crossing Rail (P4) Project is currently on hold due to lack of sufficient funding to complete the NEPA process and move into design and construction. By the time FRA raised concerns over the project’s impact on rail operations in the region, the team had used a significant portion of the allotted funding. New funding sources need to be found to complete the NEPA process to satisfy all the project stakeholders. Strategies/Tactics Used to Overcome Challenges One strategy used to overcome challenges in the project was the SPEED Strategy for evaluating projects. Rather than grouping all of the projects together in a tiered environmen- tal analysis, the SPEED Strategy allows FHWA, IDOT, and cooperating agencies to evaluate the environmental impact of projects as the funding for final design and construction is secured. The strategy also allows projects with a lesser envi- ronmental impact to be completed without waiting for the analysis that is needed for projects with greater impacts. The SPEED Strategy worked well for the CREATE program, facili- tating a consistent review process for each component project and making class of action decisions transparent. Frequent coordination and communication, as well as learning over time, have ameliorated some of the challenges described above. As stakeholders have worked together, con- cerns and mistrust have dissipated—both between private companies that simultaneously coordinate and compete with each other and between public agencies and private partners that are working together to satisfy federal requirements. Ongoing communication among stakeholder agencies has improved the shared understanding of project alternatives. In-person meetings were found to be the best approach for eliciting clear and effective coordination. The project team tries to meet monthly in person in addition to maintaining existing management and project-level team calls to work through pressing issues. Lessons Learned The following approaches helped resolve challenges in a timely manner, and prevent additional challenges given the unique scope and structure of the CREATE program. Maintain frequent coordination with partner agencies. Monthly in-person meetings have improved communication among partner agencies and improved response and review times. Meeting in person has also fostered trusting relation- ships between parties who have found themselves in new rela- tionships that require enhanced collaboration and resource sharing. This strategy was put in place to avoid repeating the delays and miscommunication experienced during the Grand Crossing Rail (P4) Project environmental review. Begin coordination early. At the inception of the CREATE program, new communication and coordination protocols and processes had to be developed to respond to the new nature of the partnerships on the project. Starting regular coordination (quarterly management committee meetings, monthly imple- mentation team meetings, and weekly or bi-weekly project management meetings) early in the process gave the partners time to develop trusting relationships, especially among rail partners. It also provided an opportunity for the private rail partners to learn about NEPA requirements. Project staff acknowledge that improved communication among agencies and a better understanding of underlying needs in analyzing impact could have mitigated some of the issues faced in the Grand Crossing Rail (P4) project. Appropri- ate analysis of rail impact issues would have benefitted from more input and knowledge from FRA, a role they did not ini- tially assume. Establish a formal governance structure as a unification tool. Establishing a governance structure through the JSU in the CREATE Feasibility Plan holds partners accountable because every stakeholder is involved throughout all stages of the program, and must sign off on modifications to proj- ect scopes and budgets. The ability to present a united front on project technical decisions at public meetings has been an important benefit of and motivator for reaching consensus. Bibliography Federal Highway Administration and Illinois Department of Transpor- tation. February 28, 2014. 75th Corridor Improvement Project Draft Environmental Impact Statement. Federal Highway Administration, Illinois Department of Transporta- tion, Chicago Department of Transportation, and Association of American Railroads. January 2011. Chicago Region Environmental and Transportation Efficiency Program Final Feasibility Plan (August 2005), Amendment 1. http://createprogram.org/about.htm. (As of March 23, 2015). http://www.fra.dot.gov/eLib/details/L02561. (As of March 23, 2015). http://www.fra.dot.gov/Page/P0262. (As of March 23, 2015).