[Code of Federal Regulations] [Title 49, Volume 6] [Revised as of October 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR520.34] [Page 78-84] TITLE 49--TRANSPORTATION CHAPTER V--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 520_PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS--Table of Contents Subpart B_Procedures Sec. 520.34 Comments on environmental statements prepared by other agencies. (a) All requests for NHTSA's views on a DEIS or a proposed action undergoing environmental review by another agency will be transmitted to the Associate Administrator for Planning and Evaluation for action or referral to TES where appropriate. Offices within NHTSA may be requested by the Associate Administrator for Planning and Evaluation to supply any pertinent information and comments for a coordinated agency response. (b) NHTSA's comments and the comments of any offices responding to a request by the Associate Administrator for Planning and Evaluation should be organized in a manner consistent with the structure of an environmental review set out in Sec. 520.21(e). NHTSA programs that are environmentally related to the proposed action under review should be identified so interrelationships may receive due consideration. (c) Copies of NHTSA's comments on environmental statements prepared by other agencies shall be distributed as follows: (1) The original and 1 copy to the requesting agency; (2) 1 copy to TES-70; and (3) 5 copies to CEQ. (d) Requests by the public for copies should be referred to the agency originating the statement. Attachment 1--Form and Content of Statement 1. Form. a. Each statement will be headed as follows: department of transportation national highway traffic safety administration (Draft) Environmental Impact Statement Pursuant to section 102(2)(C), Pub. L. 91-190; 83 Stat. 853; 42 U.S.C. 4332(2)(C). b. The heading specified above shall be modified to indicate that the statement also covers sections 4(f) of the DOT Act or 106 of the National Historic Preservation Act, when appropriate. c. Each statement will, as a minimum, contain sections corresponding to paragraph 3 herein, supplemented as necessary to cover other matters provided in this Attachment. d. The format for the summary to accompany draft and final environmental statements is as follows: summary (Check one) ( ) Draft ( ) Final; Department of Transportation, National Highway Traffic Safety Administration. Name, address, and telephone number of individual who can be contacted for additional information about the proposed action or the statement. (Note: DOT Order 2100.2 prescribes procedures for reporting public contacts in rulemaking.) (1) Name of Action. (Check one) ( ) Administrative Action. ( ) Legislative Action. [[Page 79]] (2) Brief description of action indicating what States (and counties) are particularly affected. (3) Summary of environmental impact and adverse environmental effects. (4) List alternatives considered. (5)(a) (For draft statements) List all Federal, State, and local agencies from which comments have been requested. (b) (For final statements) List all Federal, State, and local agencies and other sources from which written comments have been received. (6) Dates the draft statement and the final statement if issued were made available to the Council on Environmental Quality and the public. 2. Guidance as to content of statement. The following paragraphs of this Attachment are intended to be considered, where relevant, as guidance regarding the content of environmental statements. This guidance is expected to be supplemented by research reports, guidance on methodology, and other material from the literature as may be pertinent to evaluation of relevant environmental factors. 3. General content. The following points are to be covered: a. A description of the proposed Federal action (e.g., ``The proposed Federal action is approval of a grant application to construct * * *''), a statement of its purpose, and a description of the environment affected, including information, summary technical data, and maps and diagrams where relevant, adequate to permit an assessment of potential environmental impact by commenting offices and the public. (1) Highly technical and specialized analyses and data should generally be avoided in the body of the draft impact statement. Such materials should be appropriately summarized in the body of the environmental statement and attached as appendices or footnoted with adequate bibliographic references. (2) The statement should succinctly describe the environment of the area affected as it exists prior to a proposed action, including other related Federal activities in the area, their interrelationships, and cumulative environmental impact. The amount of detail provided in such descriptions should be commensurate with the extent and expected impact of the action, and with the amount of information required at the particular level of decision making (planning, feasibility, design, etc.). In order to insure accurate descriptions and environmental considerations, site visits should be made where appropriate. (3) The statement should identify, as appropriate, population and growth characteristics of the affected area and any population and growth assumptions used to justify the project or program or to determine secondary population and growth impacts resulting from the proposed action and its alternatives (see paragraph 3c(2)). In discussing these population aspects, the statement should give consideration to using the rates of growth in the region of the project contained in the projection compiled for the Water Resources Council by the Bureau of Economic Analysis of the Department of Commerce and the Economic Research Service of the Department of Agriculture (the OBERS projection). (4) The sources of data used to identify, quantify, or evaluate any or all environmental consequences must be expressly noted. b. The relationship of the proposed action and how it may conform to or conflict with adopted or proposed land use plans, policies, controls, and goals and objectives as have been promulgated by affected communities. Where a conflict or inconsistency exists, the statement should describe the extent of reconciliation and the reasons for proceeding notwithstanding the absence of full reconciliation. c. The probable impact of the proposed action on the environment. (1) This requires assessment of the positive and negative effects of the proposed action is it affects both national and international human environment. The attention given to different environmental factors will vary according to the nature, scale, and location of proposed actions. Among factors to be considered should be the potential effect of the action on such aspects of the environment as those listed in Attachment 2, and in section 520.5(b), supra. Primary attention should be given in the statement to discussing those factors most evidently impacted by the proposed action. (2) Secondary and other foreseeable effects, as well as primary consequences for the environment, should be included in the analyses. Secondary effects, such as the impact on fuel consumption, emissions, or noise levels of automobiles or in the use of toxic or scarce materials, may be more substantial than the primary effects of the original action. d. Alternatives to the proposed action, including, where relevant, those not within the existing authority of the responsible preparing office. Section 102(2)(D) of NEPA requires the responsible agency to ``study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.'' A rigorous exploration and an objective evaluation of the environmental impacts of all reasonable alternative actions, particularly those that might enhance environmental quality or avoid some or all of the adverse environmental effects, are essential. Sufficient analysis of such alternatives and their environmental benefits, costs, and risks should accompany the proposed action [[Page 80]] through the review process in order not to foreclose prematurely options which might enhance environmental quality or have less detrimental effects. Examples of such alternatives include: The alternatives of not taking any action or of postponing action pending further study; alternatives requiring actions of a significantly different nature which would provide similar benefits with different environmental impacts, e.g., low capital intensive improvements, mass transit alternatives to highway construction; alternatives related to different locations or designs or details of the proposed action which would present different environmental impacts. In each case, the analysis should be sufficiently detailed to reveal comparative evaluation of the environmental benefits, costs, and risks of the proposed action and each reasonable alternative. Where an existing impact statement already contains such an analysis its treatment of alternatives may be incorporated, provided such treatment is current and relevant to the precise purpose of the proposed action. e. Any probable adverse environmental effacts which cannot be avoided (such as water or air pollution, noise, undesirable land use patterns, or impacts on public parks and recreation areas, wildlife and waterfowl refuges, or on historic sites, damage to life systems, traffic congestion, threats to health, or other consequences adverse to the environmental goals set out in section 101(b) of NEPA). This should be a brief section summarizing in one place those effects discussed in paragraph 3c that are adverse and unavoidable under the proposed action. Included for purposes of contrast should be a clear statement of how all adverse effects will be mitigated. Where mitigating steps are included in the statement, the responsible official shall see that they are carried out. f. The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity. This section should contain a brief discussion of the extent to which the proposed action involves tradeoffs between short- term environmental gains at the expense of long-term losses, or vice versa, and a discussion of the extent to which the proposed action forecloses future options. g. Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. This requires identification of unavoidable impacts and the extent to which the action irreversibly curtails the range of potential uses of the environment. ``Resources'' means not only the labor and materials devoted to an action but also the natural and cultural resources lost or destroyed. h. An indication of what other interests and considerations of Federal policy are thought to offset the adverse environmental effects of the proposed action identified pursuant to subparagraphs (c) and (e) of this paragraph. The statement should also indicate the extent to which these stated countervailing benefits could be realized by following reasonable alternatives to the proposed action (as identified in subparagraph (d) of this paragraph) that would avoid some or all of the adverse environmental effects. In this connection if a cost-benefit analysis of the proposed action has been prepared, it, or a summary, should be attached to the environmental impact statement, and should clearly indicate the extent to which environmental costs have not been reflected in such analysis. i. A discussion of problems and objections raised by other Federal agencies, State and local entities, and citizens in the review process, and the disposition of the issues involved and the reasons therefor. (This section shall be added to the final environmental statement at the end of the review process.) (1) The draft and final statements should document issues raised through consultations with Federal, State, and local agencies with jurisdiction or special expertise and with citizens, of actions taken in response to comments, public hearings, and other citizens involvement proceedings. (2) Any unresolved environmental issues and efforts to resolve them, through further consultations or otherwise, should be identified in the final statement. For instance, where an agency comments that the statement has inadequate analysis or that the agency has reservations concerning the impacts, or believes that the impacts are too adverse for approval, either the issue should be resolved or the final statement should reflect efforts to resolve the issue and set forth any action that will result. (3) The statement should reflect that every effort was made to discover and discuss all major points of view on the environmental effects of the proposed action and alternatives in the draft statement. However, where opposing professional views and responsible opinion have been overlooked in the draft statement and are raised through the commenting process, the environmental effects of the action should be reviewed in light of those views. A meaningful reference should be made in the final statement to the existence of any responsible opposing view not adequately discussed in the draft statement indicating responses to the issues raised. (4) All substantive comments received on the draft (or summaries of responses from the public which have been exceptionally voluminous) should be attached to the final statement, whether or not each such comment is thought to merit individual discussion in the text of the statement. [[Page 81]] j. Draft statement should indicate at appropriate points in the text any underlying studies, reports, and other information obtained and considered in preparing the statement, including any cost-benefit analyses prepared. In the case of documents not likely to be easily accessible (such as internal studies or reports), the statement should indicate how such information may be obtained. If such information is attached to the statement, care should be taken to insure that the statement remains an essentially self-contained instrument, capable of being understood by the reader without the need for undue cross reference. 4. Publicly owned parklands, recreational areas, wildlife and waterfowl refuges and historic sites. The following points are to be covered: a. Description of ``any publicly owned land from a public park, recreational area or wildlife and waterfowl refuge'' or ``any land from an historic site'' affected or taken by the project. This includes its size, available activities, use, patronage, unique or irreplaceable qualities, relationship to other similarly used lands in the vicinity of the project, maps, plans, slides, photographs, and drawings showing a sufficient scale and detail the project. This also includes its impact on park, recreation, wildlife, or historic areas, and changes in vehicular or pedestrian access. b. Statement of the ``national, State or local significance'' of the entire park, recreational area, refuge, or historic site ``as determined by the Federal, State or local officials having jurisdiction thereof.'' (1) In the absence of such a statement lands will be presumed to be significant. Any statement of ``insignificance'' by the official having jurisdiction is subject to review by the Department as to whether such statement is capricious. (2) Where Federal lands are administered for multiple uses, the Federal official having jurisdiction over the lands shall determine whether the subject lands are in fact being used for park, recreation, wildlife, waterfowl, or historic purposes. c. Similar data, as appropriate, for alternative designs and locations, including detailed cost estimates (with figures showing percentage differences in total project costs) and technical feasibility, and appropriate analysis of the alternatives, including any unique problems present and evidence that the cost or community disruptions resulting from alternative routes reach extraordinary magnitudes. This portion of the statement should demonstrate compliance with the Supreme Court's statement in the Overton Park case, as follows: [The] very existence of the statute indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. 401 U.S. 402, 412 (1971). d. If there is no feasible and prudent alternative, description of all planning undertaken to minimize harm to the protected area and statement of actions taken or to be taken to implement this planning, including measures to maintain or enhance the natural beauty of the lands traversed. (1) Measures to minimize harm may include replacement of land and facilities, providing land or facilities, provision for functional replacement of the facility (see 49 CFR 25.267). (2) Design measures to minimize harm; e.g., tunneling, cut and cover, cut and fill, treatment of embankments, planting, screening, maintenance of pedestrian or bicycle paths and noise mitigation measures all reflecting utilization of appropriate interdisciplinary design personnel. e. Evidence of concurrence or description of efforts to obtain concurrence of Federal, State or local officials having jurisdiction over the section 4(f) property regarding the action proposed and the measures planned to minimize harm. f. If Federally-owned properties are involved in highway projects, the final statement shall include the action taken or an indication of the expected action after filing a map of the proposed use of the land or other appropriate documentation with the Secretary of the Department supervising the land (23 U.S.C. 317). g. If land acquired with Federal grant money (Department of Housing and Urban Development open space or Bureau of Outdoor Recreation land and water conservation funds) is involved, the final statement shall include appropriate communications with the grantor agency. h. TGC will determine application of section 4(f) to public interests in lands, such as easements, reversions, etc. i. A specific finding by the Administrator that there is no feasible and prudent alternative and that the proposal includes all possible planning to minimize harm to the ``4(f) area'' involved. 5. Properties and sites of historic and cultural significance. The statement should document actions taken to preserve and enhance districts, sites, buildings, structures, and objects of historical, architectural, archeological, or cultural significance affected by the action. a. Draft environmental statements should include identification, through consulting [[Page 82]] the National Register and applying the National Register Criteria (36 CFR part 800), of properties that are included in or eligible for inclusion in the National Register of Historic Places that may be affected by the project. The National Register is published in its entirety each February in the Federal Register. Monthly additions and listings of eligible properties are published in the Federal Register the first Tuesday of each month. The Secretary of the Interior will advise, upon request, whether properties are eligible for the National Register. b. If application of the Advisory Council on Historic Preservation's (ACHP) Criteria of Effect (36 CFR part 800) indicates that the project will have an effect upon a property included in or eligible for inclusion in the National Register of Historic Places, the draft environmental statement should document the effect. Evaluation of the effect should be made in consultation with the State Historic Preservation Officer (SHPO) and in accordance with the ACHP's criteria of Adverse Effect (36 CFR part 800). c. Determinations of no adverse effect should be documented in the draft statement with evidence of the application of the ACHP's Criteria of Adverse Effect, the views of the appropriate State Historic Preservation Officer, and submission of the determination to the ACHP for review. d. If the project will have an adverse effect upon a property included in or eligible for inclusion in the National Register of Historic Places, the final environmental statement should include either an executed Memorandum of Agreement or comments from the Council after consideration of the project at a meeting of the ACHP and an account of actions to be taken in response to the comments of the ACHP. Procedures for obtaining a Memorandum of Agreement and the comments of the Council are found in 36 CFR part 800. e. To determine whether the project will have an effect on properties of State or local historical, architectural, archaeological, or cultural significance not included in or eligible for inclusion in the National Register, the responsible official should consult with the State Historic Preservation Officer, with the local official having jurisdiction of the property, and where appropriate, with historical societies, museums, or academic institutions having expertise with regard to the property. Use of land from historic properties of Federal, State and local significance as determined by the official having jurisdiction thereof involves section 4(f) of the DOT Act and documentation should include information necessary to consider a 4(f) determination (see paragraph 4). 6. Impacts of the proposed action on the human environment involving community disruption and relocation. a. The statement should include a description of probable impact sufficient to enable an understanding of the extent of the environmental and social impact of the project alternatives and to consider whether relocation problems can be properly handled. This would include the following information obtainable by visual inspection of the proposed affected area and from secondary sources and community sources when available. (1) An estimate of the households to be displaced including the family characteristics (e.g., minorities, and income levels, tenure, the elderly, large families). (2) Impact on the human environment of an action which divides or disrupts an established community, including where pertinent, the effect of displacement on types of families and individuals affected, effect of streets cut off, separation of residences from community facilities, separation of residential areas. (3) Impact on the neighborhood and housing to which relocation is likely to take place (e.g., lack of sufficient housing for large families, doublings up). (4) An estimate of the businesses to be displaced, and the general effect of business dislocation on the economy of the community. (5) A discussion of relocation housing in the area and the ability to provide adequate relocation housing for the types of families to be displaced. If the resources are insufficient to meet the estimated displacement needs, a description of the actions proposed to remedy this situation including, if necessary, use of housing of last resort. (6) Results of consultation with local officials and community groups regarding the impacts to the community affected. Relocation agencies and staff and other social agencies can help to describe probable social impacts of this proposed action. (7) Where necessary, special relocation advisory services to be provided the elderly, handicapped and illiterate regarding interpretations of benefits, assistance in selecting replacement housing and consultation with respect to acquiring, leasing, and occupying replacement housing. b. This data should provide the preliminary basis for assurance of the availability of relocation housing as required by DOT 5620.1, Replacement Housing Policy, dated June 24, 1970, and 49 CFR 25.53. 7. Considerations relating to pedestrians and bicyclists. Where appropriate, the statement should discuss impacts on and consideration to be given in the development of the project to pedestrian and bicycle access, movement and safety within the affected area, particularly in medium and high density commercial and residential areas. 8. Other social impacts. The general social groups specially benefitted or harmed by the proposed action should be identified in the statement including the following: [[Page 83]] a. Particular effects of a proposal on the elderly, handicapped, non-drivers, transit dependent, or minorities should be described to the extent reasonably predictable. b. How the proposal will facilitate or inhibit their access to jobs, educational facilities, religious institutions, health and welfare services, recreational facilities, social and cultural facilities, pedestrian movement facilities, and public transit services. 9. Standards as to noise, air, and water pollution. The statement shall reflect sufficient analysis of the effects of the proposed action on attainment and maintenance of any environmental standards established by law or administrative determination (e.g., noise, ambient air quality, water quality) including the following documentation: a. With respect to water quality, there should be consultation with the agency responsible for the State water pollution control program as to conformity with standards and regulations regarding storm sewer discharge sedimentation control, and other non-point source discharges. b. The comments or determinations of the offices charged with administration of the State's implementation plan for air quality as to the consistency of the project with State plans for the implementation of ambient air quality standards. c. Conformity to adopted noise standards, compatible, if appropriate, with different land uses. 10. Energy supply and natural resources development. Where applicable, the statement should reflect consideration of whether the project or program will have any effect on either the production or consumption of energy and other natural resources, and discuss such effects if they are significant. 11. Flood hazard evaluation. When an alternative under consideration encroaches on a flood plain, the statement should include evidence that studies have been made and evidence of consultations with agencies with expertise have been carried out. Necessary measures to handle flood hazard problems should be described. In compliance with Executive Order 11296, and Flood Hazard Guidelines for Federal Executive Agencies, promulgated by the Water Resources Council, or how such requirements can be met during project development. 12. Considerations relating to wetlands or coastal zones. Where wetlands or coastal zones are involved, the statement should include: a. Information on location, types, and extent of wetlands areas which might be affected by the proposed action. b. An assessment of the impacts resulting from both construction and operation of the project on the wetlands and associated wildlife, and measures to minimize adverse impacts. c. A statement by the local representative of the Department of the Interior, and any other responsible officials with special expertise, setting forth his views on the impacts of the project on the wetlands, the worth of the particular wetlands areas involved to the community and to the Nation, and recommendations as to whether the proposed action should proceed, and, if applicable, along what alternative route. d. Where applicable, a discussion of how the proposed project relates to the State coastal zone management program for the particular State in which the project is to take place. 13. Construction impacts. In general, adverse impacts during construction will be of less importance than long-term impacts of a proposal. Nonetheless, statements should appropriately address such matters as the following identifying any special problem areas: a. Noise impacts from construction and any specifications setting maximum noise levels. b. Disposal of spoil and effect on borrow areas and disposal sites (include specifications where special problems are involved). c. Measures to minimize effects on traffic and pedestrians. 14. Land use and urban growth. The statement should include, to the extent relevant and predictable: a. The effect of the project on land use, development patterns, and urban growth. b. Where significant land use and development impacts are anticipated, identify public facilities needed to serve the new development and any problems or issues which would arise in connection with these facilities, and the comments of agencies that would provide these facilities. Attachment 2--Areas of Environmental Impact and Federal Agencies and Federal-State Agencies With Jurisdiction by Law or Special Expertise To Comment Thereon Editorial Note: Filed as part of the original document. For text see 39 FR 32546, Sept. 30, 1975. Attachment 3--Offices Within Federal Agencies and Federal-State Agencies for Information Regarding the Agencies' Impact Statements for Which Comments Are Requested Editorial Note: Filed as part of the original document. For text see 39 FR 35248, Sept. 30, 1975. [[Page 84]] Attachment 4--State and Local Agency Review of Impact Statements 1. OBM Revised Circular No. A-95 through its system of clearinghouses provides a means for securing the views of State and local environmental agencies, which can assist in the preparation of impact statements. Under A-95, review of the proposed project in the case of federally assisted projects (Part I of A-95) generally takes place prior to the preparation of the impact statement. Therefore, comments on the environmental effects of the proposed project that are secured during this stage of the A-95 process represent inputs to the environmental impact statement. 2. In the case of direct Federal development (Part II of A-95), Federal agencies are required to consult with clearinghouses at the earliest practicable time in the planning of the project or activity. Where such consultation occurs prior to completion of the draft impact statement, comments relating to the environmental effects of the proposed action would also represent inputs to the environmental impact statement. 3. In either case, whatever comments are made on environmental effects of proposed Federal or federally assisted projects by clearinghouses, or by State and local environmental agencies through clearinghouses, in the course of the A-95 review should be attached to the draft impact statement when it is circulated for review. Copies of the statement should be sent to the agencies making such comments. Whether those agencies then elect to comment again on the basis of the draft impact statement is a matter to be left to the discretion of the commenting agency depending on its resources, the significance of the project and the extent to which its earlier comments were considered in preparing the draft statement. 4. The clearinghouses may also be used, by mutual agreement, for securing reviews of the draft environmental impact statement. However, the Federal agency may wish to deal directly with appropriate State or local agencies in the review of impact statements because the clearinghouses may be unwilling or unable to handle this phase of the process. In some cases, the Governor may have designated a specific agency, other than the clearinghouse, for securing reviews of impact statements. In any case, the clearinghouses should be sent copies of the impact statement. 5. To aid clearinghouses in coordinating State and local comments, draft statements should include copies of State and local agency comments made earlier under the A-95 process and should indicate on the summary sheet those other agencies from which comments have been requested, as specified in Attachment 1.