AASHTO PG07-2016 AASHTO Practitioner's Handbook - Defining the Purpose and Need and Determining the Range of Alternatives for Transportation Projects (Revision 2).pdf

1、The Practitioners Handbooks are produced by the Center for Environmental Excellence by AASHTO. The Handbooks provide practical advice on a range of environmental issues that arise during the planning, development, and operation of transportation projects. The handbooks are primarily intended for use

2、 by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each Handbook includes: key issues to consider; a background briefing; practical tips for achieving compliance; a list of reference materials. In ad

3、dition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org American Association of State Highway and Transportation Officials Center for Environmental Excellence by AASHTO AASHTO PRACTITIONERS HANDBOO

4、K DEFINING THE PURPOSE AND NEED AND DETERMINING THE RANGE OF ALTERNATIVES FOR TRANSPORTATION PROJECTS This Handbook provides recommendations for defining the purpose and need and determining the range of alternatives in environmental impact statements and environmental assessments for transportation

5、 projects, in accordance with the National Environmental Policy Act (NEPA). Issues covered in this Handbook include: Considering relevant legislation and planning decisions Determining and documenting the need for the project Defining the project purpose Developing and applying alternatives screenin

6、g criteria Coordinating with agencies and involving the public 07 August 2016Copyright 2016, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportation Officials). All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without

7、 written permission of the publisher. Printed in the United States of America. This material is based upon work supported by the Federal Highway Administration under Cooperative Agreement No. DTFH61-07-H-00019. Any opinions, findings, and conclusions or recommendations expressed in this publication

8、are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.Defining the Purpose and Need and Determining the Range of Alternativ

9、es for Transportation Projects 1 Overview This Handbook is intended to provide practitioners with practical suggestions for defining the purpose and need and determining the range of alternatives for highway, public transportation, and railroad projects. The adoption of the purpose and need statemen

10、t is one of the most consequential decisions that the lead agencies make in the National Environmental Policy Act (NEPA) process, because the purpose and need provides the foundation for determining which alternatives will be considered and for selecting the preferred alternative. The purpose and ne

11、ed also can be a major factor in deciding whether a particular alternative can be approved under other laws such as Section 4(f) of the U.S. Department of Transportation (U.S. DOT) Act and Section 404 of the Clean Water Act. Because of its importance, the decision on purpose and need can become a so

12、urce of disagreement and delay in the NEPA process and is frequently a focal point for litigation. This Handbook summarizes key requirements and provides suggestions about how to develop a purpose and need statement that is clear, well-supported, and defensible. Alternatives screening also plays an

13、enormously important role in the NEPA process, because it is the vehicle for deciding which alternatives remain on the table for detailed environmental analysis. Typically, a screening process involves identifying a broad range of potential alternatives and then applying a standard set of evaluation

14、 criteria to eliminate alternatives that do not meet the purpose and need or are otherwise found to be unreasonable. In addition, when the number of reasonable alternatives is very large, similar alternatives may be combined to allow for a manageable number of alternatives to be studied in detail. D

15、isagreements about which alternatives to eliminate from consideration can become a significant source of delay in the NEPA process, and litigation challenges often focus on the adequacy of an agencys rationale for its screening decisions. This Handbook provides an overview of the legal requirements

16、for alternatives screening and provides suggestions for managing this process effectively. The topics covered in this Handbook include: Considering relevant legislation and transportation planning decisions Determining and documenting the need for the project Defining the project purpose Developing

17、and applying alternatives screening criteria and Coordinating with agencies and involving the public Background Briefing This section summarizes key requirements that apply when defining the purpose and need and determining the range of alternatives in NEPA studies for transportation projects. It fo

18、cuses primarily on the requirements for an environmental impact statement (EIS) or environmental assessment (EA) prepared by the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), or Federal Railroad Administration (FRA). Why a Purpose and Need Is Required. The Council on E

19、nvironmental Quality (CEQ) regulations require an EIS to “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 1For an EA, the regulations require a “brief discussion of the need for the proposal.” 2Agencies h

20、ave broad, but not unlimited, discretion to determine the purpose and need. As one court stated, “once an agency has considered the relevant factors, it must define goals for its action that fall somewhere within the range of reasonable choices.” 3 140 CFR 1502.13. 240 CFR 1508.9(b). 3Citizens again

21、st Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1990). 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.2 Defining the Purpose and Need and Determining the Range of Alternatives for Transportation Projects Whether

22、 a Purpose Is Too Narrow. Courts have cautioned agencies against defining the project purpose too narrowly. The most commonly cited rule is that “an agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones

23、 in the agencys power would accomplish the goals of the agencys action, and the EIS would become a foreordained formality.” 4In deciding whether an agencys purpose is “unreasonably narrow,” courts review the factors considered by the agency. Examples of factors that may help to support a purpose and

24、 need include: direction provided by Congress in legislation; objectives identified in the transportation process; factual information in the project record; and input provided by agencies and the public. How the Purpose and Need Statement Is Used. A succinct, well-supported purpose and need stateme

25、nt is a fundamental building block of any EIS. It plays a critically important role under NEPA and other laws: NEPA. The purpose and need statement is a key factor in determining the range of alternatives considered in an EIS. The purpose and need limits the range of alternatives because an agency c

26、an dismiss, without detailed study, any alternative that fails to meet the projects purpose and need. 5 Section 4(f). Under Section 4(f), the U.S. DOT is required to determine whether there is any “feasible and prudent” alternative that avoids the use of significant publicly owned parks, recreation

27、areas, and wildlife or waterfowl refuges, as well as any significant historic sites. 6An alternative that does not meet the purpose of a project is not prudent and therefore can be eliminated from consideration under Section 4(f). 7 Section 404. Under Section 404 of the Clean Water Act, the U.S. Arm

28、y Corps of Engineers is required to determine whether there is any “practicable” alternative that avoids the use of aquatic resources within its jurisdiction. In general, an alternative that does not meet the purpose of a project is not practicable and therefore can be eliminated from consideration

29、under Section 404. 8The determination of “practicability” under Section 404 is distinct from the determination of “reasonableness” under NEPA. The agency responsible for determining “practicability” under Section 404 is the Corps. Requirement to Evaluate “All Reasonable Alternatives.” The CEQ regula

30、tions require an EIS to “rigorously explore and objectively evaluate all reasonable alternatives” and to “devote substantial treatment to each alternative considered in detail so that reviewers may evaluate their comparative merits.” 9The regulations also provide that “for alternatives which were el

31、iminated from detailed study, the EIS should briefly discuss the reasons for their having been eliminated.” 10These requirements have been clarified through guidance, case law, and agency practice. Some key points include: Alternatives can be eliminated for failing to meet purpose and need and/or fo

32、r other reasons. Alternatives can be eliminated in the screening process based on any factor that is relevant to reasonableness, including but not limited to its inability to meet the purpose and need. An alternative that does not meet the purpose and need is, by definition, unreasonable, and for th

33、at reason, it can be eliminated in the screening process. Even if an alternative meets or potentially meets the purpose and need, it can still be rejected as unreasonable based on one or more other factors, including environmental impacts, engineering, and cost, and limited ability to meet purpose a

34、nd need. An alternative may be reasonable even if it is not desired by the project sponsor. The CEQ has explained that “in determining the scope of alternatives to be considered, the emphasis is on what is reasonable rather than on whether the proponent or applicant likes or is itself capable of car

35、rying out a particular alternative. Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.” 114Citizens against Burlington, Inc. v. Busey, 938 F.2d 190,

36、 196 (D.C. Cir. 1990). 5City of Alexandria v. Slater, 198 F.3d 862, 867869 (D.C. Cir. 1999). 649 USC 303. The requirement to consider feasible and prudent avoidance alternatives does not apply if the use has a “de minimis” impact. 723 CFR 774.17 (definition of “feasible and prudent avoidance alterna

37、tive”). 8 40 CFR 230.3(l) (definition of “practicable”). 940 CFR 1502.14(b). 1040 CFR 1502.14(a). 11 CEQ, “Forty Most Asked Questions Concerning CEQs NEPA Regulations” (Mar. 16, 1981), Question 2a. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a viola

38、tion of applicable law.Defining the Purpose and Need and Determining the Range of Alternatives for Transportation Projects 3 An alternative may be reasonable even if it requires legislative change. Courts have held that an alternative is not necessarily unreasonable simply because of the fact that a

39、 legislative change would be needed before the alternative could be implemented. 12This principle does not preclude agencies from taking the need for legislative change into account when determining reasonableness. It simply means that the need for a legislative change, by itself, does not automatic

40、ally make an alternative unreasonable. Studying a “reasonable range” is allowed. The reference in the CEQ regulations to “all reasonable alternatives” implies that every reasonable alternative must be rigorously evaluated, no matter how many reasonable alternatives exist. The CEQ has clarified this

41、requirement as follows: “When there are potentially a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS. . What constitutes a reasonable range of alternatives depends on the nature of the prop

42、osal and the facts in each case.” 13Requirements for an EA. The requirement to consider “all reasonable alternatives” applies to an EIS; for an EA, the CEQ regulations state that an environmental assessment (EA) shall include a “brief discussion” of alternatives. 14Courts have held that the alternat

43、ives analysis required for an EA is less rigorous than the alternatives analysis required for an EIS. 15Consideration of the proposed action and a No Action alternative is often sufficient in an EA, whereas an EIS typically includes a range of action alternatives in addition to the No Action alterna

44、tive. Key Requirements in 23 USC 139. All highway, transit, and multimodal projects for which an EIS is prepared must follow an environmental review process defined in 23 USC 139. Railroad projects requiring an EIS must comply with Section 139 “to the greatest extent feasible.” 16Section 139 include

45、s several important requirements related to the development of the purpose and need and the range of alternatives: Potential Elements of Purpose and Need. Section 139 states that the following purposes can be included in a purpose and need statement: Achieving a transportation objective established

46、in statewide or metropolitan transportation plans; Supporting land use, economic development, or growth objectives established in Federal, state, local, or tribal plans; and Serving national defense, national security, or other national objectives established in Federal laws, plans, or policies. 17

47、Lead Agencies Role. Section 139 gives the lead agency in the NEPA process responsibility for defining the purpose and need and determining the range of alternatives considered. 18The term “lead agency” is defined to include any state or local agency that is serving as a “joint lead agency” and any p

48、roject sponsor that is a state or local government is required to be designated as a joint lead agency. Thus, the lead Federal agency and the state or local project sponsor share the responsibility for defining the purpose and need and determining the range of alternatives. The process does not move

49、 forward until any disagreement between them is resolved. Opportunity for Involvement by Agencies and the Public. Section 139 requires lead agencies to provide an opportunity for involvement for agencies and the public in defining the purpose and need and determining the range of alternatives. The law leaves lead agencies with substantial flexibility in determining how to provide this opportunity, but does state that this opportunity must occur “as early as practicable” in the NEPA process, implying that it cannot s