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Clarifying the Scope of Preliminary Design

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Clarifying the Scope of Preliminary Design

This initiative will identify the amount of design work allowable under current law prior to NEPA completion regardless of contracting mechanism and develop guidance to allow this work to be done consistently.

Preliminary Design Maximizes Project Efficiency

Planning ahead is a good idea in most aspects of professional life. It generally leads to better decisionmaking in everything from budgets to management plans. In transportation projects, preliminary design is an important key to time-effectiveness, cost-effectiveness, and environmental responsibility. By clarifying the parameters of acceptable preliminary design activities, a much wider range of efficiencies can be incorporated in highway planning.

Preliminary vs. Final Design. The dividing line between preliminary design and final design is not always clear. Final design means any design activities following preliminary design–but where does preliminary design stop? Preliminary design stops at the point where a declaration of initiation of Final Design begins. The definition of Final Design is identified in the FHWA Directive 6640.1A A Policy on Permissible Project Related Activities During the NEPA Process. Unless there is clarity between preliminary and final design, the NEPA process may be open to challenge as being compromised.

Final design clearly includes the preparation of construction plans and detailed specifications for construction work to be performed. To ensure that those plans and specification will be time-effective and cost-effective, the right steps need to be taken to ensure focused preliminary design .

Taking the Right First Steps. Preliminary design is the stage in which general project location and design concepts are determined. It includes all that is necessary to conduct a NEPA alternatives analysis and review process properly, but good preliminary design goes beyond that. Preliminary design can also include additional activities which do not materially affect the objective consideration of alternatives.

Preliminary design can include a wide range of preliminary engineering and other activities and analyses, including but not limited to:

  • Environmental assessments
  • Topographic surveys
  • Metes and bounds surveys
  • Geotechnical investigations
  • Hydrologic analysis
  • Hydraulic analysis
  • Utility engineering
  • Traffic studies
  • Financial plans
  • Revenue estimates
  • Hazardous materials assessments
  • General estimates of the types and quantities of materials, and other work needed to establish parameters for the final design

NEPA Review Requirements. The National Environment Policy Act (NEPA) review process requires an objective consideration of any reasonable alternatives for projects and the identification of their potential environmental impacts. The purpose and need for the project will establish the correct parameters for choosing reasonable alternatives. For example, if a highway project location is essential in an environmentally sensitive area, relocation may not be a reasonable alternative, but alternatives which include various construction methods or materials might mitigate the environmental impact.

Pitfalls of Misunderstanding Preliminary Design. Highway practitioners are often conservative in which activities they classify as preliminary design. Some consider preliminary design to involve only the activities needed to make a NEPA determination; they view everything else as final design activities. This overly cautious approach creates unnecessary delays to highway projects, because it inadvertently postpones essential planning until it is too late to be effective.

States have the flexibility to pursue many design activities not required for a NEPA determination under preliminary design. When performed concurrently with the NEPA process, these activities can expedite project delivery without affecting eligibility for federal-aid. Examples include, but are not limited to:

  • Soil borings
  • Preliminary traffic control plans
  • Types of grading

Such preliminary design activities must be undertaken in compliance with the provisions in NEPA regulations at 23 CFR Part 771 and 40 CFR Parts 1500-1508. They do not limit the choice of reasonable alternatives (40 CFR 1506.1(a)-(b)).

Clarifying the Scope of Preliminary Design Shortens Project Delivery. The purpose of the "Clarifying the Scope of Preliminary Design" initiative is to explain the difference between preliminary and final design activities. The initiative answers the essential question of which preliminary design activities can be carried out during the NEPA phase.

Many preliminary design activities can be conducted during the NEPA process to shorten overall project delivery without jeopardizing the objectivity requirements and intent of NEPA. Clarifying these will lead to improved project decision-making and reduction in project delivery times.

The FHWA's Role. The Federal Highway Administration (FHWA) is taking the lead in identifying the additional types of design work allowable under current law and regulation within the NEPA project development process. It is focusing on steps that can be done prior to and concurrent with the NEPA approval, regardless of contracting mechanism. By highlighting and clarifying the flexibilities available to states, additional project-specific design can be initiated during NEPA review, as provided in current regulations and statutes.

Guidance and outreach material will ensure that states are consistent in applying the definitions of preliminary design and final design on Federal Aid projects. FHWA's goal is to clarify the flexibilities available to states and integrate them into a State DOT's policies and project development process.

Preliminary design isn't just good sense. It's a time-effective and cost-effective way to address transportation and environmental needs at the same time.

What is preliminary design?

Preliminary design defines general project location and design concepts. Prior to completion of the National Environmental Policy Act (NEPA) review process, any such preliminary engineering and other activities and analyses must not materially affect the objective consideration of alternatives in the NEPA review process."

What kinds of activities are involved in preliminary design?

The types of activities are determined by the project. They can include any combination of the following: environmental assessments, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, and general estimates of the types and quantities of material and other work needed for the final design. A complete description on allowable preliminary design activities are provided in FHWA Order 6640.1A – FHWA Policy on Permissible Project related Activities During the NEPA Process.

Where does preliminary design stop and final design begin?

Final design means any design activities following preliminary design. The dividing line varies from project to project. Examples of final design activities include the preparation of final construction plans and detailed specifications for the performance of construction work.

Is preliminary design primarily used in Design-Build projects?

Although the definition of preliminary design and final design originated from the design-build (DC) regulation, preliminary design is also important element in design-bid-build (DBB) contracting

What are the benefits of this initiative?

Clarifying the scope of preliminary design can improve project decision-making. It can reduce overall project delivery times and cut costs in developing and delivering projects. It also enhances consistency among Federal Highway Administration (FHWA) Division Offices (DOs). Moreover, it can improve agency and staff capacity to make risk-based decisions.

How does preliminary design fit into the NEPA process?

This initiative will help to ensure the integrity of the NEPA process. All preliminary design classified activities that are deemed to not materially affect the objective consideration of alternatives or have adverse environmental impacts can be conducted concurrently with the National Environmental Policy Act (NEPA) analysis. Final design activities cannot be advanced prior to a NEPA determination.

Does preliminary design limit the choice of reasonable alternatives?

No. These activities do not limit the choice of reasonable alternatives. Regulations require that no commitments can be made to any alternative being evaluated in the NEPA process.

How can the perception of bias be minimized?

A perception of bias could cause stakeholders to question the integrity of the NEPA process, so this is a serious concern. Stakeholders might say, "You've already decided on an alternative. This NEPA process is merely a formality." Division Administrators (DAs) must determine whether the level of design activities done prior to the NEPA decision goes too far in focusing on a particular alternative.

What is the role of Division Administrators in controlling the perception of bias?

DAs must consider any possibilities of bias, including the mere perception of bias in considering reasonable alternatives. They must consider whether any proposed preliminary design activities are really relevant to only one alternative being considered. All alternatives must be given fair consideration. Community perceptions should also be monitored, particularly where choices may be controversial.

Who decides which alternatives get funded?

States and other project sponsors decide what projects to fund. But DA's must retain independence and can approve any reasonable alternative under consideration during the NEPA process.

Is preliminary design important in EIS or non-EIS projects?

Both. Preliminary design flexibilities are available for EIS and non-EIS projects.

Who is involved in preliminary design?

To ensure that the best decisions are being made, professionals from different disciplines must be involved. Designers, project managers, environmental, ROW, and construction management must share information. This interdisciplinary approach is essential to cutting time and costs while ensuring high standards.

In Design-Build contracting, a separate notice to proceed is required for final design and construction. Should there also be a notice for preliminary design?

For design-build projects in which a contract is awarded prior to the NEPA decision, the contract should be divided into two phases: notice to proceed 1 and notice to proceed 2.

What is required in the first notice to proceed?

The work in notice to proceed 1 should be limited to preliminary design. The contract should clearly state that no commitment is being made to any alternatives under consideration in the NEPA process. It should also clarify that all alternatives will be fairly considered.

What is required in the second notice to proceed?

The work in notice to proceed 2 should include final design and construction. . The issuance of notice to proceed 2 is conditioned upon the selection of the appropriate alternative in the NEPA decision.

Are there state-specific requirements for preliminary design?

In many cases, yes. DAs should work with their State DOTs to develop State-specific preliminary design policies for:

  • Direct oversight projects;
  • State administered projects;
  • Local public agency projects; and
  • Design-bid-build, design-build, and other project delivery methods that may be used in that State.

Are Division Administrators required to report any preliminary design information to Washington headquarters?

Starting on September 30, 2011, DAs will submit yearly reports to the Office of Project Development and Environmental Review (HEPE-1). These reports must list the number of projects where the SDOT has undertaken preliminary design activities beyond what is necessary to complete the NEPA review process.

Are reporting requirements limited to preliminary design activities listed in Appendix A of the FHWA Order - FHWA Policy on Permissible Project related Activities During the NEPA Process?

No. Reports must include preliminary activities not listed in the definition of preliminary design or Appendix A.

How can I be sure a preliminary design activity complies with FHWA and underlying CEQ regulations?

Until an agency issues a Record of Decision, no action concerning the proposal can be taken that would limit the choice of reasonable alternatives. During the NEPA process, agencies may not undertake any major Federal action that might prejudice the ultimate decision on the program or limit alternatives.

Who is responsible for making sure the design activity design complies with FHWA NEPA regulations?

FHWA will perform the work necessary to complete a Finding of No Significant Impact (FONSI) or an EIS. This work includes environmental studies, related engineering studies, agency coordination and public involvement. Until a project is classified as categorically excluded from further environmental analysis (CE), or a FONSI or Record of Decision (ROD) is signed, no work related to final design activities and ROW acquisition is allowed, except under limited situations (ex. Hardship or Protective Buys)

How will FHWA implement this initiative?

FHWA has issued FHWA Order 6640.1A – FHWA Policy on Permissible Project related Activities During the NEPA Process. This order clarifies what preliminary design activities can be conducted prior to a NEPA determination..

How will SDOTs implement the initiative?

State DOTs in consultation with their FHWA Division office will need to develop an Action Plan that outlines how the FHWA Order will be implemented within their State.

NEPA Related Links:

Regulation

23 CFR 771 - Revised As of July 9, 2009

Prohibition on undertaking final design activities

Under existing FHWA NEPA regulations (23 CFR 771.113), FHWA will perform the work necessary to complete a FONSI or an EIS. This work includes environmental studies, related engineering studies, agency coordination and public involvement. Until a project is classified as a categorical exclusion (CE), or a Finding of No Significant Impact (FONSI) or Record of Decision (ROD) is signed, no work related to final design activities, property negotiation and acquisition (with the exception of hardship and protective buying and early acquisition as provided in 23 CFR 710.501 and 503 and 23 CFR 771.113(d)(1), (3), and (4)), and construction purchases / activities is allowed to proceed.

CEQ Regulations 40 CFR 1500 - 1508

Limitation on design activities during NEPA

Under CEQ Regulations for Implementing NEPA (40 CFR Part 1506.1), until an agency issues a Record of Decision no action concerning the proposal shall be taken which would limit the choice of reasonable alternatives. In addition, while work on NEPA is ongoing, agencies shall not undertake in the interim any major Federal action covered by the progra unless that action would not prejudice the ultimate decision on the program and would not limit alternatives.

23 CFR PART 636--DESIGN-BUILD CONTRACTING

Definition of preliminary design as it related to Federal-Aid projects

In 2007 FHWA adopted definitions of preliminary design and final design in its Design-Build Regulation at 23 CFR 636.103 that the agency will apply across the Federal-aid Highway program, without regard to contracting mechanism. Those definitions, when read together with the FHWA and CEQ NEPA regulations, define design activities that may be allowable prior to completion of the NEPA process (CE, FONSI, or ROD).

FHWA Policy on Permissible Project Related Activities During the NEPA Process

Media

Page last modified on August 13, 2013.
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