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.

I-1 A P P E N D I X I Summary Project Description XpressWest is a planned high-speed rail project sponsored by DesertXpress Enterprises, LLC (DXE), along a 200-mile corridor between Victorville, CA, and Las Vegas, NV. Key U.S. DOT Agencies • Federal Railroad Administration (FRA)—Lead • Surface Transportation Board (STB)—Cooperating • Federal Highway Administration (FHWA)—Cooperating • Federal Aviation Administration (FAA)—Permitting Key State and Local Agencies • California Department of Transportation (Caltrans) • Nevada Department of Transportation (NDOT) Challenges Faced The XpressWest project team faced three of the five common challenges related to multi-agency National Environmental Policy Act (NEPA) activities (see Table I-1). Strategies, Tactics, and Lessons Learned • Perform a thorough scoping process to identify issues and potential conflicts. • Consider a range of project alternatives in carrying out the NEPA process. • Anticipate that participating agencies may have differing expectations. • Schedule regular meetings and ensure all appropriate par- ties are involved. • Enlist a mediator to facilitate meetings and work through challenging issues. Case Study Detail Introduction The XpressWest project, formerly known as “DesertXpress,” is a planned high-speed rail project along a 200-mile corridor between Victorville, CA, and Las Vegas, NV (see Figures I-1 and I-2). The project would be constructed and operated by DXE, a private entity. The selected alternative also includes an operations, maintenance, and storage facility in Victorville, a maintenance and storage facility in Las Vegas, and facilities near Las Vegas to power the electric multiple-unit train tech- nology. The rail alignment would run primarily along the I-15 corridor. The system would be constructed as a grade- separated, dedicated double-track, passenger-only railroad, utilizing a design-build process. The project is expected to relieve congestion on Interstate 15 and at major commercial airports in both the Los Angeles metropolitan area and Las Vegas. By reducing the number of automobiles that travel the corridor, the project is also expected to improve safety. Lead, Cooperating, and Participating Agencies Although the XpressWest project is sponsored by a private entity, DXE, the project was still required to comply with NEPA and obtain approvals and permits from FRA and other cooperating agencies. FRA was the lead federal agency for the environmental review process, because the agency has author- ity over railroad safety. FHWA participated as a cooperating agency because portions of the project would use or affect Interstate right-of-way, and FHWA has approval authority over joint- and multiple-use permits and changes in access control. STB served as a cooperating agency because it has exclusive jurisdiction over the construction and operation of new rail lines for Interstate commerce. FAA participated Case Study—XpressWest High-Speed Passenger Train, Victorville, California, to Las Vegas, Nevada

I-2 in the NEPA process because the proposed project would be close to airports and could require a permit. The alignment would pass through land managed by two federal agencies: the Bureau of Land Management (BLM) and the National Park Service (NPS). BLM participated as a cooperating agency because the project would require the use of public lands that are managed by the BLM under the Fed- eral Land Policy and Management Act (FLPMA). In addition, 1.55 miles of one proposed alignment (Segment 4A) would cross through the Mojave National Preserve, which is man- aged by the NPS. NEPA Process/Approach The XpressWest project required an Environmental Impact Statement (EIS) because of the anticipated major federal actions and because the construction and operation of the high-speed rail system was expected to have a significant impact on the surrounding environment. DXE, as a private entity, could not prepare the EIS. In February 2006, FRA entered into a Memo- randum of Understanding (MOU) with DXE, a third-party contractor retained by FRA, and STB. The MOU established the conditions and procedures to be followed in preparing the 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 I-1. Challenges summary. Source: FRA Figure I-1. XpressWest selected alternative alignment.

I-3 environmental document. FRA adopted aspects of STB’s pro- cedures for third-party contracting under 40 CFR 1506.5(c), 49 CFW 1105.4(j), and 1105.10(d). FRA selected the NEPA contractor and DXE agreed to engage the contractor at its own expense. The third-party contractor worked under the sole supervision and direction of FRA. FRA prepared one EIS to meet the needs of all federal agencies; subsequently each agency issued a separate Record of Decision (ROD). The environmental review process for the XpressWest project began in July 2006 with the release of the Notice of Intent, and public scoping meetings were held in August 2006. The Draft Environmental Impact Statement (DEIS) was published in March 2009. A Supplemental DEIS was published in August 2010 due to modifications to the pro- ject to address substantive comments received during the public comment period of the DEIS. The Final Environmental Impact Statement (FEIS) was released to the public in April 2011. FRA sought to ensure that the FEIS was sufficient to meet the needs of all the federal agencies involved and to support the subsequent RODs from each cooperating agency. This was accomplished by sharing administrative drafts of the DEIS, Supplemental DEIS, and FEIS. FRA collected comments, dis- cussed issues with all participating agencies to ensure they were addressed to each agency’s satisfaction, and then revised and finalized the environmental document. FRA issued its ROD on July 8, 2011. The three cooperating agencies issued their RODs on October 20, 2011 (STB), October 31, 2011 (BLM), and November 18, 2011 (FHWA). STB granted DXE’s request for a declaratory order finding that the project is not subject to state and local environmen- tal review and land use and other permitting requirements because of the preemption in 49 U.S.C. 10501(b). While STB’s order exempted the project from the requirements of the California Environmental Quality Act, FRA and cooper- ating agencies still consulted with state and local agencies in developing the EIS to obtain unique expertise or knowledge of the project area and address any concerns about the project. FRA met regularly with the four cooperating agencies and the EIS Working Group, which included Caltrans and NDOT, throughout the preparation of the EIS. Caltrans and NDOT will be responsible for issuing encroachment permits to allow for construction of the proposed rail line within the desig- nated Interstate rights-of-way. Agency Requirements Applied to NEPA In addition to the regulations set forth by the Council on Environmental Quality (CEQ), FRA follows its “Procedures for Considering Environmental Impacts” [64 FR 28545 (May 26, 1999) as amended, 78 FR 2713 (January 14, 2013)] in conduct- ing environmental reviews. The Procedures for Considering Environmental Impacts require preparation of a Section 4(f) evaluation concurrently with the EIS if the proposed project would take land from any 4(f) protected properties, includ- ing parks and recreation lands, wildlife and waterfowl refuges, and historic sites. Since FRA also has oversight of railroad safety issues, the agency required the project to comply with regulations and advice developed by FRA’s Engineering Task Force of the Passenger Safety Working Group of the Railroad Safety Advisory Committee. As noted above, STB has the authority to exempt a pro- posed rail project from certain state and local environmental procedures. The applicant must demonstrate that the project would ensure the development and continuation of a sound transportation system and foster sound economic conditions. The agency concluded that the project met these require- ments because it would alleviate air traffic constraints and make positive contributions to the economies of Nevada and California. The planned Interstate passenger rail was within the agency’s jurisdiction under 49 U.S.C. 10501 because DXE would be a rail carrier providing Interstate common carrier rail transportation, and the project would not pose a threat to shippers since it would not provide freight service. Projects requiring access to Interstate right-of-way require approval from FHWA, and such approval can be a major fed- eral action triggering NEPA. DXE involved FHWA, along with FRA, Caltrans, and NDOT, in the development of the proj- ect’s Highway Interface Manual to address safety and security issues and provide guidance for implementing the project within Caltrans and NDOT highway rights-of-way. DXE was also responsible for completing an Emergency Preparedness Plan for review and approval under 49 CFR Part 239 by the FRA Office of Safety. SAFETEA-LU requirements for efficient environmental reviews did not apply to this project because FHWA was not a funding participant or the lead agency. FAA is responsible for the safe use of airspace. The pro- posed project would be located near several aviation facilities, Source: DesertXpress Enterprises, LLC Figure I-2. XpressWest train visualization.

I-4 including McCarran Las Vegas International Airport (LAS), therefore, FAA had to determine under 14 CFR Part 77 whether the project would result in any obstructions to air navigation, navigational aids, or navigational facilities. Impact of These Requirements Interstate design standards became a primary issue for the project. Since high-speed rail is still a relatively new concept in the United States, operational and safety concerns cre- ated policy issues that FHWA had not previously addressed. There was concern that drivers on I-15 could become startled or distracted by a 150-mile-per-hour train traveling in the opposite direction adjacent to the highway. While FRA was concerned that drivers could crash on the highway and dam- age track piers or enter the railroad tracks, FHWA had con- cerns that the train could crash and land on the highway. A highway shutdown for any length of time could have signifi- cant economic impacts as Interstate 15 is the only roadway between Las Vegas and Los Angeles. Mitigation strategies for safety risks could affect the project’s footprint and its envi- ronmental impacts. Employees from the Volpe National Transportation Systems Center were brought in to help facilitate the discussions sur- rounding operational and safety issues among DXE, FRA, and FHWA. The project’s Highway Interface Manual was refined through these discussions and expanded to address additional concerns. Developing the manual required that the team gain a greater understanding of the physics of trains that travel faster than anything else on the Interstate right-of-way and the implications for rail safety. This included understanding the high-speed rail technologies that would be used, how fast trains would be traveling, what would happen if a derailment were to occur, how the project would affect the motoring pub- lic on the highway, implications for the highway-clear zone, what types of barriers would be needed, and how these bar- riers would vary across the different environments through which the system would travel. The work to develop the man- ual ultimately put the project sponsor (DXE) in a good posi- tion to secure FHWA approval for Interstate access. FRA also consulted with FAA early in the EIS process, although it did not expect FAA would have any direct action with the project. At the time, planning was under way for a proposed Southern Nevada Supplemental Airport (SNSA) to be located in the Ivanaph Valley to serve Las Vegas. No direct interface with SNSA was anticipated because it was a paral- lel project to XpressWest. Late in the process, however, FAA raised a concern that the proposed alignment of XpressWest would cross through a designated Runway Protection Zone (RPZ) for SNSA. FRA coordinated with FAA to develop a miti- gation measure to ensure that conflicts would be avoided. Plan- ning for the SNSA was suspended in 2010 due to a decrease in air traffic during the economic downturn. The mitigation measure published in the FRA ROD is subject to change if SNSA planning resumes. FAA also raised a safety concern about the potential conflict that a segment of the high-speed rail alignment would have on the one-engine inoperative zone associated with Runway 25R at LAS. This concern was identified after the DEIS had been published. DXE was required to provide an engineering study to FAA, and FRA mediated to develop mitigation com- mitments to resolve the safety concern. The required engi- neering study delayed the overall schedule for approximately one month. As operating administrations of the U.S. DOT, FHWA, FAA, and FRA had to comply with Section 4(f) of the U.S. DOT Act in conjunction with the environmental review process. Segment 4 of the project would potentially use land from the Mojave National Preserve, a protected resource under Section 4(f). Three alignment options crossed through the preserve. Option 4B was deemed not feasible because it posed conflicts with a planned solar energy project, and Option 4C was developed to avoid these conflicts. Option 4A was initially chosen as the preferred alignment because it was located within the existing I-15 right-of-way and would have less infringement on the undisturbed and undeveloped sur- rounding areas. Because the NPS does not have the statutory authority to grant any private transportation right-of-way through the Mojave National Preserve, Option 4C was devel- oped as an alternative to Segment 4A if the NPS was not able to gain the authority to convey an easement for DXE for the right-of-way. As the DEIS had already been published based on Option 4A, a Supplemental DEIS was prepared covering Option 4C and other changes. Challenges to Multimodal NEPA Studies Relevant to the Project Unique Agency-Specific Program Requirements Under the NEPA Umbrella: FHWA and FAA both had safety concerns that created challenges for the NEPA process. The project’s Highway Interface Manual was developed to provide design guidance to address FHWA safety concerns. Although FAA only participated as a permitting agency, the agency raised late concerns about the preferred alignment conflicting with the proposed SNSA and a runway at LAS. Since these safety concerns could have affected the project’s footprint and environmental impacts, they had to be addressed before the NEPA process was completed. Differing Agency Interpretations of NEPA Require- ments: FRA followed its “Procedures for Considering Envi- ronmental Impacts” in conducting environmental reviews. These procedures did not pose any inconsistencies with other

I-5 agency NEPA requirements, but there were differing expecta- tions on the process. FRA’s role was to lead the environmental process and DXE’s role was to manage the design of the project. It took some time for other agencies to understand that FRA was not responsible for design. While this was not an issue with BLM and NPS since both agencies frequently encounter pri- vate sector proposals, FHWA and the state DOTs were accus- tomed to an environmental process in which the lead public agency is also responsible for design. FHWA expected FRA to take a lead role in the design, however, FHWA’s design concerns actually needed to be communicated with DXE. It took considerable discussion and many meetings among FRA, FHWA, and DXE to communicate effectively on design issues. Anticipating Which Agencies Will Have a Major Fed- eral Action: The agencies with major federal actions were anticipated and engaged through the NEPA scoping process. FRA had two major federal actions—a safety approval and a funding approval. FHWA anticipated the need for access to the Interstate right-of-way and STB approved the creation of the railroad and certification for construction. The role of FAA surfaced later in the process, and the potential for encroaching into the engine inoperative zone at LAS led to the need for supplemental engineering studies that delayed the NEPA process. Efficient Coordination Among Agencies: Leadership and oversight from FRA was critical to ensuring efficient and productive coordination, which was accomplished through regular meetings (in person or via teleconferences or web conferences), document sharing (including administrative drafts during the deliberative phase of the process), letter writ- ing, and e-mails. Although FRA was the lead agency, DXE was also responsible and heavily involved in ensuring that each federal agency received the documentation it needed to pro- vide input during the environmental review process. Working with a consistent group of individuals from each agency made the exchange of information easier and fostered strong work- ing relationships. This coordination helped FRA ensure that all agencies’ needs were met. FRA faced a challenge in trying to develop an environ- mental document that would satisfy the needs of all agen- cies involved. In taking on this task, the agency recognized that there would be a learning curve for all agencies, and that the people involved would have varying levels of expe- rience. It was also critical to keep the lines of communi- cation open and establish the roles of each agency early on, since XpressWest, as a proposed, privately sponsored high-speed railway within the public right-of-way, did not conform to the conventional model for publicly sponsored transportation projects, where the lead public agency is responsible for design. Securing Funding for Multimodal NEPA Studies: The NEPA study was funded entirely by DXE as the project spon- sor. Funding from DXE covered the services of the FRA’s third- party contractor but excluded staff costs for FAA, FHWA, and FRA. The FRA staff person responsible for the preparation of the EIS spent about 50 percent of her time on the effort, but there was no dedicated staff assigned to the project. Other agencies, including FHWA, devoted staff time and assigned individuals to work on the project, but they were not exclu- sively dedicated to it. Strategies/Tactics Used to Overcome Challenges Although DXE did not lead the environmental process, it was heavily involved in overall coordination. DXE played an active role in developing relationships, working proactively to develop information to respond to agency concerns, and meeting with political appointees and elected officials to keep the agencies focused on the project as a priority. DXE was will- ing to meet in person with the different agencies and work to resolve issues to achieve timely conclusions and resolutions. Because in-person meetings were not always possible, web conferences were especially helpful for sharing documenta- tion and reviewing design documents. FHWA brought in the Volpe National Transportation Sys- tems Center as an interested but neutral third party to help DXE, FRA, and FHWA overcome the different perspectives on safety between highway and rail and to resolve some of the language and terminology differences between highways and railways. The Volpe Center ensured that the environmen- tal process kept moving forward and that both agencies were able to resolve their issues. In addition, the mediated discus- sions led to refinement of the Highway Interface Manual. FRA adopted guidance from other sources that did not strictly apply to the agency to address topics that required a more detailed, structured approach. FRA followed FHWA’s Section 4(f) Policy Paper and regulation as well as the Caltrans and NDOT guidance for highway modifications, and incorpo- rated BLM guidance for cultural resource surveys. Lessons Learned Perform a thorough scoping process to identify issues and potential conflicts. Identifying all affected parties and any critical issues and potential conflicts during the early stages of scoping is important to developing an approach to begin to address those issues. Scoping is also critical in establishing the limits of the project and what problems the project is and is not intended to solve. FHWA encoun- tered policy issues because high-speed rail is still a relatively new concept in the United States. While FHWA’s two division

I-6 offices were involved throughout the process, those inter- viewed said that because the project involved issues not yet addressed by current policy, it would have been helpful to involve FHWA headquarters staff earlier in the process to address those policy issues in a timely manner. Consider a range of project alternatives in carrying out the NEPA process. DXE recognized that the NEPA process would work better if the range of project alternatives could be considered in an unencumbered manner. Although the pro- posed route of XpressWest was fairly confined—since Inter- state 15 is the only highway connecting the Los Angeles basin with Las Vegas—several alternatives were considered. The preferred alternative was not identified until the FEIS, after considering environmental analysis results and public and agency comments. To minimize and avoid impacts related to Interstate 15 and the solar project, the EIS process consid- ered alignment changes such as moving the alignment far- ther from the highway, even though this could cause greater impacts to natural resources. Anticipate that participating agencies may have differ- ing expectations. Recognizing that agencies may have differ- ent expectations about roles and how processes will work, even if their basic NEPA requirements are the same, was an important step in overcoming challenges. FHWA expected that the lead agency managing the environmental process would also direct the design of the project, even though the involvement of a private sponsor dictated a different pro- cess. It took education and relationship-building to move past these challenges. Schedule regular meetings and ensure all appropriate parties are involved. Information sharing and develop- ing working relationships with key individuals in each par- ticipating agency proved essential to identifying issues and achieving timely resolutions. The XpressWest NEPA process involved numerous interagency coordination meetings, tele- conferences, working group meetings, and other consulta- tions. Working with a consistent group of individuals made the extensive coordination effort and the exchange of infor- mation easier and ensured that everyone was on the same page as the process moved forward. Enlist a mediator to facilitate meetings and work through challenging issues. A mediator can help agencies build con- sensus and overcome difficult issues by focusing meetings, facilitating communication, drafting language everyone can agree to, and facilitating resolution of issues and inconsisten- cies of internal processes. The mediator was a neutral party with no stake in the environmental process in order to main- tain objectivity. Bibliography Bureau of Land Management. October 31, 2011. “Record of Decision, DesertXpress High-Speed Passenger Train.” Federal Highway Administration. November 18, 2011. “Record of Decision, DesertXpress High-Speed Passenger Train.” Federal Railroad Administration. March 2011. Final Environmental Impact Statement and Final Section 4(f) Evaluation for the Proposed DesertXpress High-Speed Passenger Train. Federal Railroad Administration. July 8, 2011. “Record of Decision, DesertXpress High-Speed Passenger Train.” Federal Railroad Administration; Surface Transportation Board; DesertXpress Enterprises, LLC; and Circlepoint, Inc. February 2006. “Memorandum of Understanding.” Surface Transportation Board. June 25, 2007. Surface Transportation Board Decision, STB Finance Docket 34914, “DesertXpress Enter- prises, LLC—Petition for Declaratory Order.” Surface Transportation Board. October 20, 2011. “Record of Decision, DesertXpress High-Speed Passenger Train.”