Assessing and Managing the Ecological Impacts of Paved Roads (2005) / Chapter Skim
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5 Legal Context for Planning and Policy
5 Legal Context for Planning and Policy
Pages 117-169
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From page 117... ...
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.
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From page 118... ...
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.
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From page 119... ...
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.
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From page 120... ...
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)
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From page 121... ...
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)
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· Is approved by the MPO and the governor for air quality. · Is incorporated into the statewide transportation improvement program (STIP)
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Project Development and Execution After the state planning, MPO long-range planning, MPO shortrange 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.
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From page 124... ...
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)
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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.
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From page 126... ...
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.
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From page 127... ...
: Objective 1 To improve the environmental quality of transportation decisionmaking, 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)
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From page 128... ...
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.
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From page 129... ...
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.
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From page 130... ...
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.
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From page 131... ...
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)
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From page 132... ...
NPDES permits are regularly issued to control turbidity (silt) or other waterborne pollutants from road projects into waterways.
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From page 133... ...
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.
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. Thus, proponents of road projects that will affect wetlands must meet a significant burden to show that there are no alternatives.
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From page 135... ...
. Nonpoint Source Pollution Road projects must also be consistent with state nonpoint-sourcepollution management programs developed under Section 319 (33 USC § 1329 [2003]
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From page 136... ...
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.
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From page 137... ...
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.
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From page 138... ...
Code 1 As described above, LRTPs are long-range transportation planning documents examining a period of 20 years or more (49 USC § 5303(f)
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From page 139... ...
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
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From page 140... ...
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.
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From page 141... ...
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.
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From page 142... ...
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)
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From page 143... ...
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]
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From page 144... ...
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)
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However, such actions as road projects may be authorized to proceed under permits issued by the
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From page 146... ...
. States are eligible for federal funding if they opt to develop a coastal zone management plan, which is approved by NOAA.
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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.
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From page 148... ...
It states that executive departments and agencies are to take appropriate actions to the extent consistent with the law to expedite reviews of highpriority transportation projects and promote environmental stewardship in the nation's transportation system (67 Fed.
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From page 149... ...
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.
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From page 150... ...
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.
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From page 151... ...
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.
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From page 152... ...
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.
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From page 153... ...
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.
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From page 154... ...
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From page 155... ...
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From page 156... ...
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From page 157... ...
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From page 158... ...
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From page 159... ...
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From page 160... ...
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From page 161... ...
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From page 162... ...
of all road projects. In this small set of projects, however, required environmental reviews increased the time of project completion.
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From page 163... ...
. 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.
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From page 164... ...
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From page 165... ...
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From page 166... ...
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.
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From page 167... ...
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.
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From page 168... ...
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.
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From page 169... ...
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.
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