September 1, 2010
The Federal Land Transfer Working Group identified two issues related to the National Environmental Policy Act (NEPA) during its initial brainstorming of potential efforts for the group to pursue and develop further guidance for. The two issues include:
The bulk of this guidance addresses the first issue. The second issue is addressed in the "Other Considerations" section of this document.
The National Environmental Policy Act (NEPA) is applicable to all actions with a federal nexus (i.e., funded by a federal agency, requires the approval of a federal agency, or involves the use of federal lands). NEPA requires the lead federal agency to consider the impacts of a proposed action on both the natural and built environments. NEPA is not intended to dictate a lead federal agency's decision, but rather provide thorough analysis to supplement the agency's decision-making process. NEPA requires a disclosure of the potential impacts of a proposed action and dictates a comprehensive documentation of an agency's analysis, findings, and conclusions. The lead federal agency is generally determined by the funding or approval source for the action.
Per authorities provided in 23 U.S.C. 107(d) and 317, property interest in lands owned by the United States and administered by a federal land management agency may be conveyed to a State Department of Transportation for the purposes of constructing, operating, and maintaining a highway facility. These interests are generally conveyed via a highway easement. The authorities outlined in 23 U.S.C. are afforded to the Secretary of Transportation and by delegation to the Federal Highway Administration to complete the transfer. While the state DOT initiates the transfer by identifying property needs associated with a proposed project, the transfer is effectuated by FHWA and the federal land management agency, thereby requiring an approval on the part of both federal agencies. As such, both agencies are obligated to comply with the requirements of NEPA as part of their respective roles in the federal land transfer process.
Given the nature of a federal land transfer, both participating federal agencies are required to ensure compliance with NEPA. There are certainly opportunities to coordinate these efforts, but practically, the development of a transportation project unfolds in a sequential manner that creates the potential for a duplication of work between federal agencies and an unnecessary delay during the review of transfer request.
In general, the process essentially develops in the following basic fashion:
This sequential approach to the process yields two potential disadvantages: 1) a duplication of efforts between federal agencies in preparing the NEPA document for essentially the same approval action; and 2) the delay in reviewing a transfer request application from the land management agency's efforts in preparing the NEPA document.
FHWA's Manual for Federal Land Transfers for Federal Aid Projects attempts to address this issue by recommending that state DOTs and Division Offices invite the federal land management agency to be a cooperating agency in the environmental process, once the project development process begins and potential right-of-way needs over federal lands are identified. This approach, however, does not appear to be universally applied to the transfer process and, thus, issues associated with completing the NEPA requirements occur. There are a number of reasons why that might be:
The Federal Lands Transfer Working Group identified two potential options for addressing this issue. The first is to develop and enter in to a national agreement with key federal land management agencies on how a single NEPA document related to a land transfer requests may be developed. This would essentially promote an adoption of sorts of the NEPA document prepared by the state DOT and FHWA by the federal land management agency.
The second option is to highlight and reinforce the recommendation in our agency's Manual for Federal Land Transfers for Federal Aid Projects that promotes early involvement of the land management agency in the initial development of FHWA/state DOT's NEPA document.
There are certainly advantages and disadvantages to both options. The first option offers the opportunity to implement a consistent, national approach in completing the NEPA requirements associated with a land transfer. It provides a formal agreement between participating agencies that would be easy to disseminate to Division Offices, state DOTs, and federal land management agencies.
The disadvantage to the first option is the logistics associated with developing a national MOU. It would potentially require a significant amount of time and effort to negotiate the agreement and there may be challenges in reaching agreement on an adoption process for the NEPA document and a consensus on an appropriate approach amongst multiple federal land management agencies. Finally, this proposed option appears to be out of the scope and authorities of the Federal Land Transfer Working Group. While the recommendation could be advanced, the actual implementation would likely need to occur through our HQ office, in coordination with the HQ offices of participating federal land management agencies.
The second option is less formal, but it reinforces existing guidance and the approach affords each Division Office and state DOT a significant amount of flexibility in crafting a process that is appropriate for their respective state. This approach may create a certain level of inconsistency amongst the states, but the fundamental process pulling the federal land management agency in to the process earlier would be the basic principle guiding each individual state's approach.
As the second option will essentially consist of recommended practices, it would be much easier to develop and the guidance could be disseminated much quicker than the first option would potentially allow. Finally, the main advantage is that the second option's approach is consistent with existing guidance in the Manual for Federal Land Transfers for Federal Aid Projects and is consistent with FHWA's on-going efforts to ensure a collaborative approach in project development and a better linkage between the various phases of project development.
Given the potential challenges and logistical issues associated with developing a national MOU, the working group opted to pursue the second option. The following section outlines a series of recommendations for Division Offices and state DOTs to consider in completing the environmental documentation associated with a federal land transfer request.
Advantages:
Disadvantages: The state DOT's project team will need to identify the potential for a federal land transfer prior to initiating the environmental process. Once the environmental process is initiated, the project team will need to ensure coordination has occurred with the State DOT's right-of-way section, FHWA, and the federal land management agency to ensure the land agency is afforded the opportunity to assume a cooperating agency status during the development of the NEPA document.
This approach is characterized as a "disadvantage" only in the sense that it may require a deviation from a state DOT's existing normal operating procedures in terms of developing a project. Implementing this recommendation, however, will likely yield tremendous benefits in improved coordination and potential reduction in issues and delays that traditionally manifest in the right-of-way phase of project development.
Advantages: The designation of a primary point of contact with each participating agency will help facilitate the previous recommendation by creating an established communication protocol between the state DOT, Division Office, and land management agency for initiating early coordination on land transfers particularly in the NEPA process. Having an established protocol will help minimize the potential for delay in identifying a contact with the land management agency and ensuring a smooth insertion in to the NEPA process.
Disadvantages: There may be an unwillingness to designate a centralized point of contact for those agencies that process land transfers on a regional or district basis.
Advantages: This recommendation is similar to the first recommendation in the sense that it simply promotes an opportunity to engage the land management agency early in the process. This approach has the potential to yield a number of benefits, including 1) affording the land management agency more time to review a request; 2) provide the land management agency an opportunity to be involved in the consideration of alternatives and development of the environmental document; and 3) decreases the chances of delay in the process by affording the opportunity to address issues or concerns during the preliminary engineering phase, as opposed to the right-of-way phase of project development.
Providing the opportunity for early involvement, also allows the Division Office and state DOT to determine whether or not the land management agency will request any monetary value for their role in the transfer request for example, administrative fees for completing the environmental document, merchantable timber, material sites, etc. prior to granting the easement and, perhaps more importantly, time to come to agreement on whether or not compensation will be provided.
There would have to be agreement between the state DOT, Division Office, and the land management agency that the draft copy is not the formal request and thus, the four month time period that regulations afford the land management agency to consider a request would not begin until a "formal" request is submitted. This would require a two phase approach to land transfer requests a preliminary request that simply serves as an invitation to engage in discussion on the proposal during the PE work; and a second request that serves as the formal request for a letter of concurrence. Presumably the second request would be processed relatively quickly, given the opportunity for early involvement in the development of the project.
The following recommendation is primarily focused on internal coordination within FHWA.
The sharepoint site would simply provide a clearinghouse for guidance developed by Division Offices and state DOTs. The information will likely provide a good starting point for offices considering the development of guidance or for the consideration of improvements to existing guidance.
Traditionally, the development of a NEPA document is focused on each agency's specific role in the process for the land management agency, the NEPA analysis focuses on the requested use of the property and the subsequent impacts from the use of that property for the construction of the transportation facility. For the transportation agency, the focus is on both the short and long term impacts of the proposed construction and use of the transportation facility on the surrounding built and natural environments. The environmental document is generally focused on the specific proposed project and rarely addresses the anticipated long-term maintenance requirements of the facility. This is primarily due to the fact that maintenance efforts are generally "routine" in nature, confined to a previously disturbed area, and are not federal aid eligible.
While there are certainly environmental considerations to be aware of while conducting maintenance activities, federal regulations do not require FHWA to maintain an active role in assessing environmental impacts on maintenance activities due to the fact that maintenance is typically locally or state funded.
However, given the unique partnership created with federal land transfers and the potential concerns that may be raised by a land management agency regarding the environmental impacts associated with "routine and non-routine" maintenance on properties covered by previous federal land transfers, the decision of when it is appropriate to prepare additional environmental analysis for maintenance activities will primarily be driven by individual discussions between State DOTs and the land management agencies. In these situations, the Division Office should maintain an interested observer role, but will not have an approval role in the NEPA analysis, given the lack of a federal action on FHWA's part.
The environmental process has the potential to be a lengthy and complex process. During a federal land transfer, both FHWA and the land management agency have an obligation to ensure compliance with NEPA, as part of their respective approval roles in the transfer process. Adhering to a sequential approach to the traditional project development process has the potential to create unnecessary delay by developing the NEPA document and later transmitting a copy to the land management agency for review and, essentially, adoption.
FHWA's Manual for Federal Land Transfers for Federal Aid Projects promotes early involvement of the land management agency in the initial development of FHWA/state DOT's NEPA document. By assuming a cooperating agency status during the initial development of the environmental analysis, there is an opportunity to avoid a potential duplication of effort within the process and, more importantly, engage the land management agency much earlier in the process, where potential issues or concerns may be more easily resolved without risk of disruption of the project's schedule.
Each state DOT and Division Office will need to determine the value in implementing these recommendations, based on their existing working relationship, frequency of land transfer requests, and existing challenges in completing the transfers in a timely fashion.
The intent of these recommendations is simply to provide flexibility in the application and outline a proposed approach that provides a framework for streamlining the NEPA process associated with land transfers by encouraging extensive early coordination.
Prepared by:
Karen Hider, Oklahoma Division, Realty Officer, 405-254-3344
Brian Hasselbach, Montana Division, ROW & Environmental Programs Manager, 406-441-3908
