Opposition Brief — Citizens Environmental Council v. Brinegar

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In The Supreme Court

Of The United States

OCTOBER TERM, 1973

No. 73-943-2

‘

——— -

THE CITIZENS ENVIRONMENTAL COUNCIL, OAK

PARK HOMES ASSOCIATION, CRAIGMONT HOMES

ASSOCIATION, ROBERT J. McELWAIN, PHILLIP L.

CARR, et al.,

Petitioners,

JOHN VOLPE, WILLIAM D. RUCKELSHAUS,

and ROBERT MORRISSEY, et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

FRANK L. JOHNSON

Assistant Attorney General

PAUL W. CLARK

Staff Attorney

Seventh Floor

State Office Building

Topeka, Kansas 66612

(913) 296-3831

Attorneys for Respondent

State Highway Commission of Kansas

Page

ee Ce no 4. ec be casa bene cae ee 1

Argument

1. Reasons for Not Granting a Writ of Certiorari.... 4

2. As to the Citizens Environmental! Council’s Allega-

tion that Sufficient Facts Exist to Set Aside the

Summary Judgment by the District Court which

was Later Affirmed by the Tenth Circuit........ 8

oe eS ee ie Oe ae a ane era ae 9

Appendix A—Department of Transportation Policy and

Procedure Memorandum 90-1 (Excerpts)........... Al

Appendix B—Department of Transportation Policy and

Procedure Memorandum 90-2 ........ccsccccecvese A46

Appendix C—Aerial Photograph (1959) ...Inside Back Cover

Appendix D—Aerial Photograph (1970) ...Inside Back Cover

Table of Authorities

CASES

Ashwell & Co. v. TransAmerican Ins. Co.,

BS & Be. Ve | err rr errr rey 8

Finish Allatoona’s Interstate Right, Inc., v. Volpe,

ia. oe RE a S.C: | rer rrr 6,7

lowa Citizens for Environmental Quality, Inc., v. Volpe,

ee Pere) th we ie | eee 5,9

Pizitz, Inc., d/b/a Pizitz, et al, v. Volpe,

og ef ® Fe Oe ee 6

STATUTES

Federal Rules of Civil Procedure, Rule 56(e)........... 8

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MISCELLANEOUS

Supreme Court of the United States Revised Rules,

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In The Supreme Court

Of The United States

OCTOBER TERM, 1973

No. 73-943-2

THE CITIZENS ENVIRONMENTAL COUNCIL, OAK

PARK HOMES ASSOCIATION, CRAIGMONT HOMES

ASSOCIATION, ROBERT J. McELWAIN, PHILLIP L.

CARR, et al.,

Petitioners,

Vv.

JOHN VOLPE, WILLIAM D. RUCKELSHAUS,

and ROBERT MORRISSEY, et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

STATEMENT OF THE CASE

The facts giving rise to this cause of action are as

follows:

In 1959 a traffic study in the area concerned here

was done in the cities of Overland Park and Lenexa,

Kansas, close to Kansas City, Kansas, and Kansas

City, Missouri. It was proposed that in part a section

of road known as the Switzer By-Pass would be built

which would connect to Interstate highway I-35 and

I-435. At the time the location was chosen, the area

was rural (see Appendix C, Defendants Exhibit Z-1),

although the expectation of an increase in population

in the area was contemplated.

On April 2, 1959, pursuant to 23 U.S.C.A. 128(A),

the Kansas State Highway Commission conducted a

public hearing at Olathe, Kansas, to discuss the pro-

posed by-pass.

On August 26, 1959, the Federal Highway Admin-

istration Division Engineer approved the project.

Approval of the Regional Engineer of the Federal

Highway Administration was also obtained.

In 1962, the Federal Highway Administration’s

Division Engineer, approved the State Highway Com-

mission’s request to acquire the proposed right-of-

way. Right-of-way acquisition occurred between 1962

and 1964 at a time when the area was still rural in

character.

In 1969, Congress enacted 42 U.S.C.A. 4332(2)

(C), the National Environmental Policy Act (NEPA)

which was to become effective January 1, 1970. Sec-

tion 102(2) of NEPA requires all federal agencies

to submit an Environmental Impact Statement (EIS)

in each recommendation for major federal actions

significantly affecting the quality of the human en-

vironment. The Council on Environmental Quality

(CEQ) issued interim guide lines for preparation of

the impact statement. It also provided for a draft

statement and a final statement. Policy and Pro-

aa" Shan NS a EA ee

cedure Memorandum (PPM) 20-8 was issued in

January, 1969, providing for a corridor hearing and

a design hearing. Pursuant to PPM 20-8, the design

hearing provides an opportunity to present views on

major design features including social, economic, en-

vironmental and other affects of alternative designs.

The social, economic and environmental considerations

include the affects of esthetics, noise, air and water

pollution, and displacements of families and busi-

nesses.

On April 23, 1971, a design hearing, pursuant to

PPM 20-8, was held in the City of Overland Park,

Kansas. The final EIS was filed with the CEQ on

August 26, 1971. The EIS was prepared by the state,

federal and private agencies. The EIS analyzed

possible alternative routes, including abandonment of

the project, and concluded that they would be in con-

flict with projected growth patterns. Comments by

Mr. Ruckelshaus, Administrator of the Environmental

Protection Agency, were included.

On November 16, 1971, the Resident Engineer for

the Federal Highway Administration gave the State

Highway Commission of Kansas authorization to

complete plans for the project with the accompanying

design approval.

On November 23, 1971, the plaintiffs’ herein filed

the case at bar in the United States District Court

for the District of Kansas sitting in Topeka, Judge

George Templar presiding. Plaintiffs sought a pre-

liminary and permanent injunction restraining the

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construction of the 2.7 miles of by-pass. Plaintiffs

further sought mandamus to compel an officer of the

United States to perform his duty.

On January 3, 1973, Judge Templar sustained de-

fendants’ motion for summary judgment and dis-

missed the plaintiffs’ cause of action.

Plaintiffs’ filed their appeal to the Tenth Circuit

on January 31, 1973. On April 9, 1978, the Circuit

Court denied the plaintiffs’ motion for injunction

pending appeal. On September 19, 1973, the Tenth

Circuit affirmed the decision of the District Court.

The contract for the construction of the by-pass

was signed on January 23, 1973, calling for a con-

tract price of approximately $4,000,000.00. As of

this writing the project is approximately 75 per cent

complete with 2.1 million dollars having been paid to

the contractors on the project by the State Highway

Commission of Kansas.

ARGUMENT

1. Reasons For Not Granting A Writ Of Certiorari

This Court is well aware that Part V, Rule 19, of

Supreme Court Rules sets out considerations govern-

ing review on certiorari. The Court there set out what

is the general law that review is not a matter of right

but of sound judicial discretion. 1(a) of Rule 19

sets out the federal question decided by a state court

rule. There is no state court involved here, therefore

Rule 1(a) is not applicable.

1(b) sets out that where there seems to be conflict

among the various circuits regarding a question, the

Supreme Court may grant certiorari. In this case

there is no conflict among the circuits concerning the

question of whether the Federal Highway Adminis-

tration should prepare the EIS as opposed to the

-Kansas State Highway Commission, under the super-

vision of the Federal Highway Administration, pre-

paring the EIS for a federally funded project (Jowa

Citizens for Environmental Quality, Inc., v. Volpe

F. 2d (2 Cir. 1973) ; 6 ERC 1088).

The United States Department of Transportation,

Federal Highway Administration, has published PPM

90-1 (Appendix A) which is a 21 page document fur-

nished to the Kansas State Highway Commission.

The purpose of PPM 90-1 is set out in page 1 of that

document and is as follows:

“To provide guidelines to highway departments

and Federal Highway Administration (FHWA)

field offices to assure that the human environ-

ment is carefully considered and national en-

vironment goals are met when developing

federally financed highway improvements.”

A cursory examination of PPM 90-1 reveals that

the Federal Highway Administration is directing the

State Highway Commission in every step of the prep-

aration of the EIS. To say that the federal authorities

delegate the preparation of the EIS is misleading.

When the State Highway Commission is directed, in

every particular, on how to compose an EIS by the

Federal Highway Administration, the Federal High-

way Administration, in fact, draws the EIS.

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The Tenth Circuit, in the case at bar, has held that

the “Secretary of Transportation did not simply rub-

ber stamp the state’s work,” rather adopted it as his

own work; this is perfectly proper (Finish Allatoona’s

Interstate Right, Inc., v. Volpe, 355 F. Supp. 933

(N.D. Ga. 1973) ).

Thus there is not a conflict with “a decision of

another court of appeals on the same matter” regard-

ing the question of whether or not it is proper in this

case for the State Highway Commission to prepare

the EIS.

It should be pointed out that an EIS was made

through a joint effort of state, federal and various

private agencies and that that EIS was reviewed by

the EPA resulting in no comment being made by the

EPA. Some eight months later the EPA wrote the

“May 4, 1972” letter commenting on inadequate in-

formation in the EIS. The letter maintained that

there were inadequacies as to noise standards and air

standards with a recommendation that new studies

should be done in accordance with PPM 90-2. It

should be further noted that PPM 90-2 bears a date

of February 8, 1973, and is appended hereto as Ap-

pendix B. Therefore PPM 90-2 postdates the “May 4

letter” the result of this is that all the standards

required to be complied with were met when the By-

pass was approved by the Federal Highway Adminis-

tration and when construction began.

NEPA does not have retroactive application (Pizitz,

Inc., d/b/a Pizitz, et al, v. Volpe, 467 F.2d 208 (5th

Cir. 1972) ).

The EIS, under discussion, is contained in the peti-

tion for a writ of certiorari beginning at A381 as

Appendix E. An examination of that document to-

gether with PPM 90-1 shows that the federal govern-

ment was in fact directing every step and procedure

in the preparation of the document as well as working

closely with the State Highway Commission to carry

out its duty set out in Title 42 U.S.C. 4332(2).(C)

which is known as Section 102(2) (C) of the NEPA

of 1969, P.L. 91-190.

The State Highway Commission has appended an

aerial photograph of the area, taken in 1959, as

Appendix C (which was State Highway Commission’s

Exhibit Z-1 at trial). Also appended as Appendix D,

is a 1970 photograph of the area in question which

was State Highway Commission’s Exhibit Z-5 at

trial). An examination of these two appendixes shows

that the land was rural farm land when purchased

by the State Highway Commission. Then development

occurred up to and bordering the right-of-way which

had already been purchased by the State Highway

Commission for the purpose of constructing a

highway.

In Finish Allatoona’s, supra, the State Highway

Commission prepared the EIS for a federal project

to cross park land owned by the federal government.

The Court there approved the procedure of the prep-

aration of the EIS. Here we have plowed Kansas

farm ground over which a federally funded highway

was to be built with the state preparing the EIS in

close harmony with, and at the direction of, the Fed-

eral Highway Administration. The Tenth Circuit

correctly approved the process and certiorari would

not be proper.

2. As to the Citizens Environmental Council's Allegation that

sufficient facts exist to set aside the Summary Judgment

by the District Court which was later affirmed by the Tenth

Circuit.

The State Highway Commission contends that both

courts correctly ruled that all the facts were before

the court, and that summary judgment was proper.

The defendants’ had literally exhibits A through

Z-6 at trial for view by the District Court Judge. In

the words of the Tenth Circuit “four affidavits were

filed by the CEQ to oppose the summary judgment.

They are generalized, conclusionary and _ unsub-

stantiated. They are insufficient to create a genuine

factual dispute.”” (Ashwell & Co. v. TransAmerican

Ins. Co., 407 F. 2d 762 (7th Cir. 1969).

While summary judgment was never meant to be

a trial by affidavit, still Rule 56(e) Federal Rules

of Civil Procedure requires something more than a

generalized, conclusionary and unsubstantiated affi-

davit to oppose a motion for summary judgment.

The defendants’, at the trial level, submitted the

affidavit of Robert Morrissey, the Federal Highway

Administration official charged with carrying out

the NEPA in Kansas, and attached their exhibits

thereto in support of their motion for summary judg-

ment.

The affidavit of Morrissey went to what steps were

taken to comply with the applicable law on this par-

ticular project. The affidavit most assuredly went

to the facts put in issue by the pleading. The affi-

davit was that of an expert in a case where expert

testimony is required.

The CEQ presented nothing to challenge the affi-

davit of this expert and summary judgment was

therefore proper.

CONCLUSION

The State Highway Commission contends that re-

view on certiorari is not here proper under the Court’s

own rules, Part V, Rule 19, 1(b), as the Tenth Cir-

cuit’s opinion regarding whether or not the State

Highway Commission may prepare the EIS in con-

junction with and under the supervision of the ap-

propriate federal agencies is not inconsistent with

any other decision of a court of appeals on the same

matter. (Jowa Citizens, supra)

The State Highway Commission further contends

that a declaration by one party in a law suit that

facts exist which are in dispute supported by affi-

davits which are “generalized, conclusionary and un-

substantiated” is not a sufficient basis upon which a

genuine issue of fact might be created to successfully

oppose a motion for summary judgment which is

supported by affidavits of experts in the field in a

case where expert testimony is required concerning

the very fact issues upon which the case turns and

where the affidavit of the expert is unopposed in any

way by the adverse party.

BMESTS PROT IF 4

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It is therefore the position of the State Highway

Commission that the writ of certiorari to the Tenth

Circuit should be denied.

Respectively submitted,

PAUL W. CLARK

Seventh Floor

State Office Building

Topeka, Kansas 66612

(913) 296-3831

Attorney for Respondent

State Highway Commission of Kansas

APPENDIX A

Transmittal 257

90-1

September 7, 1972

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

POLICY AND PROCEDURE MEMORANDUM

Par.

Environmental Impact and Related Statements

1. Purpose

2. Authority

3. Definitions

4. Policy

5. Application

6. Procedures

Appendix A—Procedures on Historic Preserva-

tion

Appendix B—Example of Design Concurrence

Letter

Appendix C—Location Stage Flow Chart

Appendix D—Design Stage Flow Chart

Appendix E—Environmental Statements—Con-

tents and Format

Appendix F—Evaluating Highway Section En-

vironmental Effects

Appendix G—Inter-Agency Review of Draft

Environmental Statements

Appendix H—Selections from PPM 20-8, for

Use in Preparing Environmental Statements

Appendix I—Purchasing Copies of Environ-

mental Statements

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1. PURPOSE

To provide guidelines to highway departments and

Federal Highway Administration (FHWA) field

offices to assure that the human environment is care-

fully considered and national environmental goals are

met when developing federally financed highway im-

provements.

2. AUTHORITY

a. Section 4832(2) (C), Title 42, United States

Code (popularly known as Section 102(2) (C) of the

National Environmental Policy Act of 1969, P.L.

91-190) states in part that all agencies of the Federal

Government shall:

“include in every recommendation or report on

proposals for legislation and other major Federal

actions significantly affecting the quality of the

human environment, a detailed statement by the re-

sponsible officials on - - -

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

Prior to making any detailed statement, the responsi-

ble Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdic-

tion by law or special expertise with respect to any

environmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies which are authorized

to develop and enforce environmental standards, shall

accompany the proposal through the existing agency

review processes.”

b. Section 1653(f), Title 49, United States Code

1/, Section 138, Title 23, United States Code, (here-

after referred to as “Section 4(f)”) permits the

Secretary of Transportation to approve a program or

project which requires the use of publicly owned land

from a park, recreation area, or wildlife and water-

fowl refuge of national, State, or local significance as

determined by the Federal, State or local officials

having jurisdiction thereof, or land from an historic

site of national, State, or local significance as so de-

termined by such officials (hereafter “Section 4(f)

land”’) only if:

(1) there is no feasible and prudent alternative

to the use of such land, and

(2) such program includes all possible plan-

ning to minimize harm to the Section 4(f) land re-

sulting from such use.

c. Section 470f, Title 16, United States Code 2/

1. Section 1653(f), Title 49, United States Code, is

identical to Sections 138, Title 23, United States Code, and

4(f) of the Department of Transportation Act as amended

by Section 18 of the Federal-Aid Highway Act of 1968.”

2. This requirement is also found in Section 106 of the

Nationa] Historic Preservation Act of 1966.

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provides that the head of any Federal agency having

direct or indirect jurisdiction over a proposed Federal

or federally assisted undertaking in any State and the

head of any Federal department or independent agency

having authority to license any undertaking shall,

prior to the approval of the expenditure of any Fed-

eral funds on the undertaking or prior to the issuance

of any license, as the case may be, take into account

the effect of the undertaking on any district, site,

building, structure, or object that is included in the

National Register. The head of any such Federal

agency shall afford the Advisory Council on Historic

Preservation a reasonable opportunity to comment

with regard to such undertaking.

d. Section 1857h-7, Title 42, United States Code

(popularly known as Section 309 of the Clean Air

Act of 1970—P.L. 91-604), provides:

“(a) The Administrator (Environmental Protec-

tion Agency) shall review and comment in writing on

the environmental impact of any matter relating to

duties and responsibilities granted pursuant to this

chapter or other provisions of the authority of the

Administrator, contained in any... (2) newly

authorized Federal projects for construction and any

major Federal agency action (other than a project

for construction) to which Section 4332(2) (C) of

this Title applies . . . Such written comment shall be

made public at the conclusion of any such review.”

3. DEFINITIONS (as used in this memorandum)

a. Highway Section—a substantial length of high-

way between logical termini (major crossroads, popu-

lation centers, major traffic generators, or similar

major highway control elements) as normally in-

cluded in a single location study. (See paragraph 6).

b. Federal Agency Decision—FHWA approval of

the location of a highway improvement (approval of

the design; right-of-way acquisition; the plans, speci-

fications, and estimates (PS&E) or authorization to

construct a project within the highway section is not,

for the purposes of this memorandum, an additional

agency decision. )

(1) A decision for a change in either the high-

way location or design (See paragraph 6p) of suffi-

cient magnitude to require a public hearing or which

significantly alters the environmental impact dis-

cussed in the statement previously filed would be the

basis to prepare and process a supplemental environ-

mental statement. ;

c. Environmental Statement—a written statement

containing an assessment of the anticipated signifi-

cant beneficial and detrimental effects which the

agency decision may have upon the quality of the

human environment for the purposes of:

(1) assuring that careful attention is given to

environmental matters,

(2) providing a vehicle for implementing all

applicable environmental requirements, and

(3) to insure that the environmental impact

is taken into account in the agency decision.

d. Negative Declaration—a written document in

support of a determination that, should the proposed

highway section improvement be constructed, the

anticipated effects upon the human environment will

not be significant.

a A

Drietatsidisc? ver WM WS aya,

e. Highway Agency (HA)—the agency with the

primary responsibility for initiating and carrying

forward the planning, design, and construction of the

highway. For highway sections financed with Federal-

aid highway funds, the HA will normally be the ap-

propriate State highway department. For highway

sections financed with other funds, such as Forest

highways, Park roads, ete., the HA will be the ap-

propriate Federal or State highway agency.

f. Human Environment—the aggregate of all ex-

ternal conditions and influences (aesthetic, ecological,

biological, cultural, social, economic, historical, etc.)

that affect the life of a human.

4. POLICY

It is a national policy that all Federal agencies

promote efforts for improving the relationship be-

tween man and his environment and to make special

effort for preserving the natural beauty of the coun-

tryside and public park and recreational lands, wild-

life and waterfowl] refuges, and historic sites. It is

also national policy that Federal agencies consult with

other appropriate Federal, State, and local agencies;

assess in detail the potential environmental impact in

order that adverse effects are avoided and environ-

mental quality is restored or enhanced, to the fullest

extent practicable; and utilize a systematic, inter-

disciplinary approach which will insure the integrated

use of the natural and social sciences and the environ-

mental design arts in planning and decisionmaking

which may have an impact on man’s environment.

The environmental assessments include the broad

range of both beneficial and detrimental effects.

5. APPLICATION

a. An environmental] statement or combined en-

vironmental/Section 4(f) statement or negative dec-

laration, whichever is appropriate, shall be prepared

and processed in accordance with this memorandum

for each highway section proposed for construction

with funds administered by the FHWA, including in

appropriate cases any section financed from funds

transferred to the FHWA from other agencies, which

receives or received design approval (see paragraph

5e) on or after February 1, 1971.

b. An environmental statement or combined en-

vironmental/Section 4(f) statement, whichever is

appropriate, shall be prepared and processed in ac-

cordance with this memorandum for each highway

section which received design approval on or after

January 1, 1970, and before February 1, 1971, and

which constitutes a major action significantly affect-

ing the environment (see Appendix F, paragraphs 2

and 3) if, in the judgment of the FHWA division

engineer, implementation of the National Environ-

mental Policy Act to the fullest extent possible re-

quires preparation and processing of an environmental

statement. In making his judgment the FHWA divi-

sion engineer should consider, in addition to the writ-

ten reassessment prepared by the HA (see paragraph

5c) for each such highway section, the status of the

design; right-of-way acquisition including demolition

of improvements within the right-of-way; number of

families already rehoused and those yet to be re-

housed; construction scheduling; benefits to accrue

from the proposed highway improvement; significant

impacts; and measures to minimize any adverse im-

pacts of the highway.

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ec. Highway sections which received design ap-

proval on or after January 1, 1970, and before Feb-

ruary 1, 1971, that are classed as a major action are

to be reassessed by the HA in consultation with the

FHWA division engineer or his representative. The

written reassessment should consider if the highway

plans were developed in such a manner as to minimize

adverse environmental consequences.

d. A highway section involving an historic site

included in the National Register of Historic Places

shall be coordinated with the State Liaison Officer

for Historic Preservation and representatives of the

Office of Archeology and Preservation of the National

Park Service, Department of the Interior, as set forth

in Appendix A. The provisions of 16 U.S.C. 470f,

should be satisfied before submitting the final en-

vironment/Section 4(f) statement to the FHWA (see

paragraph 2c).

e. Design approval may be regarded as having

been obtained prior to February 1, 1971, if any one

of the following conditions is satisfied.

(1) Prior to the issuance of revised PPM 20-8

dated January 14, 1969, procedures of the FHWA did

not require a HA to receive a formally documented

FHWA design approval before undertaking right-of-

way acquisition and/or preparation of the plans,

specifications and estimate (PS&E). Therefore, de-

sign approval was that action or series of actions by

which the FHWA indicated to the HA that the essen-

tial elements of the highway as set out in PPM 20-8

were satisfactory or acceptable for preparation of the

PS&E. Such actions may have consisted of review

and comments upon preliminary plans, schematic

drawings, design studies, layouts or reports or uncon-

ditional approval to acquire all the right-of-way for a

project. The HA shall identify those projects (both

Federal-aid and non-Federal-aid) in the above cate-

gory which it anticipates Federal-aid funds will be

requested for a subsequent stage and furnish the

FHWA division engineer for his concurrence a letter

similar to Appendix B of this memorandum citing

the document(s) or action(s) which it believes are

equivalent to design approval. The FHWA division

engineer’s concurrence in the HA’s determination will

serve as verification that the previous actions or ap-

provals were in effect design approval.

(2) Written approval by the FHWA of the

design submitted in accordance with PPM 20-8.

(3) Similar type evidence that an official of

the State highway department approved the design

prior to February 1, 1971, for projects administered

under an approved Secondary Road Plan. Such evi-

dence need not be submitted to the FHWA division

engineer for concurrence but shall be available in the

State highway department’s files.

f. A single environmental statement, or negative

declaration, is applicable to jointly planned undertak-

ings between the FHWA and other Federal agencies.

The lead agency will be responsible for the appropriate

document (i.e. the HA for a proposed highway sec-

tion that also requires a U.S. Coast Guard action for

bridge clearance over navigable water). Highway

section proposals submitted for an FHWA approval

shall include a copy of the statement prepared and

processed by another Federal agency or reference to

such a statement previously furnished to FHWA. A

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highway section in this category will generally be of

the nature where there is no actual transfer of funds

to the FHWA and the FHWA acts only in the capacity

of a review agency or consultant advisor to the other

Federal agency.

g. An environmental statement shall not be re-

quired in connection with any highway section that is

urgently needed because of a national emergency, a

disaster, a catastrophic failure, or similar great

urgency. The HA may request and the FHWA may

exempt such urgently needed highway sections from

the environmental statement requirement after con-

sultation with the Office of the Secretary of Trans-

portation and the Council on Environmental Quality.

6. PROCEDURES (See Appendixes C and D for a

flow chart)

The highway section included in an environmental

statement should be as long as practicable to permit

consideration of environmental matters on a broad

scope. Piecemealing proposed highway improvements

in separate environmental statements should be

avoided. If possible, the highway section should be of

substantial length that would normally be included

in a multi-year highway improvement program.

a. A proposal to develop or improve a highway

section should be coordinated in the early stages with

appropriate local, State, and Federal agencies (PPM

20-8 and IM 50-1-70). Initiation of coordination at

the beginning of the location study will assist in identi-

fying natural and cultural areas of significance,

agency and public concerns, and help in determining

the need for and preparation of an environmental

£9 RSE DG AE TF SE ee a TS SD

All

statement. Existing coordination mechanisms, such

as above cited, (public hearings, Office of Manage-

ment and Budget Circular No. A-95 reviews) and

other established procedures for coordination should

be used to the greatest extent practicable.

(1) The information obtained through coordi-

nation and the highway studies (technical, engineer-

ing, social, economic, and environmental, as appropri-

ate) should be used in making an assessment of the

potential environmental impact (both beneficial and

detrimental) of the proposed action. This environ-

mental assessment should be accomplished utilizing a

systematic, interdisciplinary aipproach to assure that

proper consideration is given to the identification and

evaluation of potential environmental impacts. This

environmental assessment, performed in consultation

with FHWA for all projects, will provide the basis

for determining whether an environmental statement

will be prepared.

(2) The environmental statement and/or Sec-

tion 4(f) statement may be a part of the study report

for the highway location, if desired; however, if in-

cluded in the study report, the statements are to be

consolidated in one place in the report and in a form

that can be reproduced separate from the report.

b. A draft environmental statement shall be pre-

pared only for those sections for which the HA or

division engineer determine that construction and

operation of the highway section will have a signifi-

cant impact upon the environment. Appendix F lists

guidelines to assist in determining significant impacts

associated with the construction and operation of a

highway. In addition, the HA or FHWA may wish to

Al2

consult other local, State and Federal agencies with

specific expertise when determining the significance

of an impact. The draft environmental impact state-

ments, including Section 4(f) information, shall be

prepared and circulated by the HA in cooperation

with the FHWA during the location study. A repre-

sentative of the FHWA division office shall indicate

his review and adoption of the draft environmental

statement by signing and dating before it is released

for comment.

ec. The draft environmental statement, including

necessary Section 4(f) information when required,

is to be circulated by the HA to the appropriate agen-

cies (see Appendix G) for comment, and made avail-

able to the public not later than the first required

notice of location public hearing (30 to 40 days before

date of hearing) or notice of opportunity for a public

hearing as set out in PPM 20-8 (see Appendix H).

If the highway section qualifies for exemption from

public hearing procedures, a draft environmental

statement, if required, (including necessary Section

4(f) information) is to be prepared and circulated

for comment, and made available to the public as early

as practicable. Regardless of whether or not there is

a public hearing, a notice should be placed in the news-

paper advising the public that the draft environmental

impact statement is going to be circulated for review

and comment. The notice should include information

on where the statement is available for review and

how copies can be obtained.

(1) The HA shall request a determination of

significance from the Section 4(f) lands agency and

include the letter requesting such determination and

Ot TERE BIO ee Le SARI GE Sere ett Sa RR RE SER PA SEE:

Al3

the determination, if received, as exhibits to the draft

statement.

(2) An additional location or design public

hearing will not be required for the sole purpose of

presenting and receiving comments on the draft en-

vironmental statement for those projects which were

processed in accordance with procedures in effect at

the time.

(3) The comments received on the draft state-

ment are to be made available at the HA office for

public review.

d. The HA shall furnish 17 copies of each draft

environmental statement to the FHWA division engi-

neer who shall distribute 16 copies to the following

recipients:

FHWA Regional Office aera

FHWA (to the Office of Environmental

Policy, HEV-10) | a

DOT’s Office of Environment and

Urban Systems (TEU) | 3

Council on Environmental Quality (CEQ) 10

722 Jackson Place, NW.

Washington, D. C. 20006

NOTE: The HA is to make distribution to all other

required local, State, and Federal agencies (see Ap-

pendix G).

e. The HA shall announce the availability of and

briefly explain the draft environmental statement or

negative declaration in its presentation at the location

public hearing (or at the highway design hearing

when a draft statement is prepared and circulated in

conjunction with design studies).

UPB LE ANALG LOL URS LIE GOS AER MA SAT PURITY IN

Al4

f. The HA may establish a date not less than 30

days from the date of transmittal, plus a normal time

for mail to reach and be returned from the recipient,

for return of the comments, except 45 days plus mail-

ing time shall be allowed for the Environmental Pro-

tection Agency (EPA) to comment. The FHWA

division engineer should include a similar time period

(30 days plus mailing) for return of comments in his

distribution correspondence. If an agency does not

respond by the indicated date, the HA may assume

the agency had no comments. The HA should en-

deavor to grant requests for a time extension of up to

15 days for return of comments unless a 45 day re-

view period, plus mailing time, was originally estab-

lished.

g. Draft environmental statements shall be avail-

able for review by the public at the HA headquarters;

the State, regional, and metropolitan clearinghouses ;

the FHWA division, regional, and headquarters

offices; and at the appropriate public hearings. The

HA and FHWA may charge non-governmental indi-

viduals and organizations for copies of environmental

statements in accordance with established fee

schedules.

(1) The public and private organizations may

also order copies of draft and final environmental

statements from the National Technical Information

Service, U.S. Department of Commerce (See Ap-

pendix I).

h. Similar procedures apply to highway sections

which have received location approval but did not

have design approval before February 1, 1971. In

such instances the environmental statement, combina-

Al5

tion environmental/Section 4(f) statement or nega-

tive declaration shall be prepared and processed during

the design studies. The final environmental statement

or negative declaration for such highway sections

shall be furnished to FHWA before or with the re-

quest for design approval. If the design public hear-

ing was held prior to the issuance of this memoran-

dum, an additional design public hearing will not be

required for the sole purpose of presenting and re-

ceiving comments on the draft statement. All other

requirements for circulation for comment and avail-

ability to the public will apply.

i. The HA shall prepare a final environmental

statement or combined environmental/4(f) statement

in consultation with the FHWA for each project for

which it prepared and circulated a draft environ-

mental statement following the format in Appendix

E. The final statement shali include a copy of all

comments received and the consideration and disposi-

tion of environmental comments raised at the public

hearing and on the draft statement. The correspond-

ence included in the final statement should contain

marginal notes indicating where in the statement the

comments are treated or discussed (any other suitable

method of showing where the comments are discussed

is satisfactory ).

j. FHWA review and adoption of the final en-

vironmental statement shall be the responsibility of

the Regional Federal Highway Administrator. The

Regional Federal Highway Administrator shall indi-

cate his adoption by signature thereon, and forward

15 signed copies of the final statement to the Office

of Environmental Policy, HEV-10. A copy of a signed

statement may also be returned to the originating

OT A eT ee

Bh aad

OPES

V ake Dinek et |

Al6

office. The HA and FHWA may, upon request of an

individual or organization, make a copy of the state-

ment as signed by the Regional Federal Highway Ad-

ministrator available, but such document should be

marked “NOT Official—Subject to Approval by U.S.

Department of Transportation.”

k. FHWA’s Office of Environmental Policy shall

be responsible for:

(1) submitting copies of the final statement

to TEU,

(2) forwarding copies of the final statement

to CEQ,

(3) informing the Regional Federal Highway

Administrator when CEQ is furnished copies of the

final statement.

l. The Regional Federal Highway Administrator

shall be responsible for:

(1) assuring that a copy of the final statement

as sent to CEQ is furnished the HA; the appropriate

State, regional, and metropolitan clearinghouses; and

the FHWA division, and

(2) assuring that the following time limitations

have expired prior to FHWA’s approval of the location

(or design if the location was previously approved. )

(a) Ninety (90) days have expired since

the draft environmental statement was circulated for

comment, sent to CEQ (postmarked), and made avail-

able to the public as described in 6g.

(b) Thirty (30) days have expired since

the final environmental statement was made available

Al7

to both CEQ and the public. This time period may run

concurrently with the ninety (90) day period.

m. Negative declarations shall be prepared by the

HA when the anticipated impact of construction and

operation of a highway section is determined to be not

significant (not of major importance). Appendix F

outlines several types of highway section improvements

which may warrant a negative declaration; however,

each highway section should be evaluated to determine

whether its impact is significant. Their purpose is to

include in the written record evidence that the highway

section was evaluated and a determination made that

it would have no significant effect upon the quality of

human environment. They should be based on the in-

formation developed during the highway study and

coordination with local, State, and Federal agencies.

n. A negative declaration need not be circulated

for comment, but its availability should be included

in the notice of the public hearing or opportunity for

public hearing. The FHWA division engineer shall

concur in the negative declaration before he approves

the location or design, whichever is appropriate.

o. The HA or FHWA may, based upon comments

at the public hearing, rescind a negative declaration

and prepare and process an environmental statement

if in their judgment significant impacts have been

identified which were not previously considered. It

would not be necessary in such instances to hold addi-

tional public hearings for the purpose of presenting

the draft environmental statement.

p. The HA shall include reference to the previous

environmental statement, negative declaration, or re-

assessment when requesting design approval, authori-

Si et ss bi seston

Al8

zation for right-of-way acquisition, approval of PS&E,

and construction authorization.

(1) A new environmental statement or a sup-

plemental statement will be necessary for a highway

section when the proposal being processed introduces

a new or changed environmental effect of significance

to the quality of environment. The FHWA may also

request an environmental statement for a highway

section which received design approval before Febru-

ary 1, 1971, when in its judgment changes in the high-

way subsequent to the reassessment (see paragraph

5c) introduce significantly different impacts on the

environment.

(2) A-supplemental statement is to be processed

in the same manner as a new environmental statement.

Where the need for a supplemental statement results

from the use of Section 4(f) land only, a Section 4(f)

statement may be prepared in lieu of a supplemental

environmental statement and coordinated with the

Departments of the Interior and Housing and Urban

Development by the HA. The coordinated Section 4(f)

statement, with comments and suggestions and the

HA disposition of same, shall be furnished to the

FHWA for appropriate processing.

q. State highway agencies operating in accord-

ance with a Secondary Road Plan approved pursuant

to 23 U.S.C. 117 have the responsibility for approval

of most Federal-aid project actions, including the

highway location and design. However, environmental

statements and negative declarations require Federal

approvals as indicated in this memorandum.

/s/ R. R. Bartelsmeyer

Acting Federal Highway Administrator

Attachments

Al9

PROCEDURES FOR HISTORIC PRESERVATION

1. The provisions of 16 U.S.C. 470(f) require that

all proposed highway sections that are federally as-

sisted be developed with consideration to effected dis-

tricts, sites, buildings, structures, or objects that are

included in the National Register for Historic Preser-

vation. This authority derives from Section 106 of

the National Historic Preservation Act. Procedures

for compliance have been implemented by the Advisory

Council on Historic Preservation, and the National

Park Service, Department of the Interior, as follows:

a. At the earliest stage of planning or considera-

tion of any undertakings carried out, licensed, or

financially assisted by the Federal Government, the

HA and FHWA should follow these steps:

(1) Consult the National Register of Historic

Places to determine if a National Register property

is involved in the undertaking. The National Register

is maintained by the Office of Archeology and Historic

Preservation, National Park Service, and monthly

addenda are published in the FEDERAL REGISTER.

(2) Apply the “Criteria for Effect.” If there

is no effect, the undertaking may proceed. (See para-

graph 3 of this appendix.) This determination of effect

should be made by the HA in consultation with the

division engineer, the State Liaison Office and a rep-

resentative of the Office of Archeology and Historic

Preservation. If there is documented agreement that

a project will not have an effect on the National

under the National Historic Preservation Act.

(3) If there is an effect, the HA in consulta-

A20

tion with the FHWA division engineer, State Liaison

Officer’ and a representative of the Office of Arche-

ology and Historic Preservation of the National Park

Service shall:

(a) Determine if the effect is adverse—if

not, the undertaking may proceed;

(b) Upon finding an adverse effect, select

and agree upon a prudent and feasible alternative to

remove the adverse effect, in which case the under-

taking may proceed;

alternative, recommend all possible planning to mini-

mize the adverse effect and delay further processing

of the undertaking pending the receipt of comments

from the Advisory Council.

(4) Provide written notice affording the

Advisory Council an opportunity to comment upon

doubtful or unresolved situations of adverse effect

and upon request submit a report of the undertaking.

2. If there is a finding of adverse effect, the proposed

highway section is to be processed in accordance with

these procedures and the Office of Environmental

Policy should be notified and kept informed of further

developments. If it becomes necessary to provide a

written notice affording the Advisory Council on

Historic Preservation an opportunity to comment in

doubtful or unresolved situations of adverse effect,

the Office of Environmental Policy will act as the

coordinating element for the FHWA.

1. State Liaison Officers are appointed by the Governors

to be responsible for State activities under the National His-

toric Preservation Act.

OU er et a DON Ee or Cee

3. Criteria for Effect

a. A federally financed or licenced undertaking

shall be considered to have an effect on a National

and objects, including their settings) when any condi-

tion of the undertaking creates a change in the quality

of the historical, architectural, archeological, or cul-

tural character that qualified the property under the

National Register criteria for listing in the National

b. Generally, adverse effect occurs under condi-

tions which include but are not limited to:

(1) Destruction or alteration of all or part of

a property;

(2) Isolation from or alteration of its sur-

rounding environment;

(3) Introduction of visual, audible, or atmos-

pheric elements that are out of character with the

property and its setting (i.e. introduction of a new

highway or a higher type functional highway, such

as a freeway for an arterial, into the environment of

a historic site).

i tite?

Brrstioiinrenn. ela

A22

EXAMPLE OF DESIGN CONCURRENCE LETTER

Mr. John Doe

Division Engineer

Federal Highway Administration

Dear Mr. Doe:

The initial phases (PE - ROW) for the proposed improvement of State

Route 35 between State Route 64 and Springfield were accomplished without

Federal-aid highway funds. Preliminary drawings, which included the

elements outlined in paragraph 10b(1)(b) of PPM 20-8, were commented upon

in your letters of August 18, 1966, and September 12, 1967. We have,

therefore, determined that your review and comments were equivalent

to design approval of this project.

For your convenience we have included below a space for your con-

currence in our determination.

Sincerely,

Endorsement to (SHD)

Concur Date

Av U6 Wei

Pid NOTLY

TiVa Nt INIWoIViG

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A25

ENVIRONMENTAL STATEMENTS—

CONTENTS AND FORMAT

1. Environmental statements and combination en-

vironmental/Section 4(f) statements (draft and

final) shall have a title page similar to the examples

attached to this Appendix and numbered by the method

shown.

2. The following sections, as a minimum, are to be

covered in environmental statements:

a. A description of the proposed highway improve-

ment and its surroundings. The description should

include the following type information: type of facili-

ty; length; termini; traffic data; right-of-way width

(including existing ROW); iengths on existing and

new location; major design features such as number

of lanes, access control, location of bridges and inter-

changes, etc.; a general description of the surrounding

terrain, existing land use and proposed land use (a

map preferable), and other existing environmental

features; existing highway facilities including their

deficiencies; the need for the proposal; the benefits

to the State, region, and community; an estimate of

when the proposal will be constructed; and the cur-

rent status of the proposal with a brief historical

resume. Inventory of economic factors such as em-

ployment, taxes, property values, etc., should be in-

cluded as appropriate. The description should also

include any involvement with Section 4(f) land

(Paragraph 3 of this Appendix). A vicinity map(s)

shall be furnished which will show the proposed high-

way section and its relationship to surrounding nat-

ural and cultural features such as towns, lakes,

streams, mountains, historic sites, landmarks, institu-

ANGE Ea

OG TET RL

A26

tions, developed areas, principal roads and highways

and similar features that are pertinent to a highway

study. Detailed maps, sketches, pictures, and other

visual exhibits should be used to show specific environ-

mental involvements as necessary. Maps and layouts

of the proposed highway/Section 4(f) land involve-

ment should be sufficiently detailed to give a layman

reviewer a reasonable understanding of the highway

impact and proposed measures to minimize harm.

b. The probable impact of the proposed develop-

ment or improvement. The evaluation and discussion

should specifically emphasize significant beneficial

and detrimental environmental consequences upon the

State or region or community, as appropriate, of build-

ing a new highway into or through an area, or mod-

ernizing the existing highway by upgrading and/or

relocation.

(1) This section, for instance, would discuss

and evaluate the broad impacts on the area or region

such as the problems relating to anticipated increase

in urbanization or the probable impact of displacing

people (if these are significant elements of the high-

way proposal). Efforts to minimize impact should

also be discussed in broad items. For example,

measures necessary to insure proper rehousing should

be discussed and other differences of the alternatives.

The significant environmental impacts of alternative

locations and, as appropriate, designs, including a

“do nothing” alternative is a proper subject for dis-

cussion under “Alternatives” paragraph 2d of this

Appendix.

(2) Impacts upon the narrow band (i. e., about

1000 feet) adjacent to the highway may be included

A27

when significant to the whole of the region or com-

munity. However, the discussions under this section

should address the probable significant impacts of

the highway proposal (as opposed to individual alter-

native locations or designs) which might include the

probable impact upon such elements, factors, and

features listed in paragraph 3 of Appendix F.

ce. Any probable adverse environmental effects

which cannot be avoided should the proposal be imple-

mented such as water or air pollution, effect upon

Section 4(f) land, damage to life systems, urban con-

gestion, threats to health or other consequences adverse

to the environment identified under paragraph 2b of

this Appendix. Adverse effects should include those

which cannot be reduced in severity and those which

can be reduced (but not eliminated) to an acceptable

level unless the reduction is a result of a different

location in which case it should be included in the dis-

cussion of alternatives (paragraph 2d of this Ap-

pendix).

d. Alternatives: The locations and/or designs

studied in detail by the HA are to be described (narra-

tively and with maps and other visual aids, as neces-

sary) and the probable beneficial and/or adverse

effects of each alternate (including a do-nothing al-

ternative) identified to the extent practicable con-

sistent with the scale of the proposed highway

improvement and significance of the impact. The

exploration of alternatives should include an objective

evaluation and analysis of estimated costs (social and

transportation), engineering factors, transportation

requirements, and environmental consequences. The

description of alternatives will include information,

as appropriate, similar to that suggested in paragraph

;

A28

2a of this Appendix. The discussion of environmental

impacts will include more detailed impacts for each

alternative that the broad environmental consequences

for the corridor identified in paragraphs 2b and 2c

of this Appendix. The draft environmental statement

should indicate that all alternatives are under con-

sideration and that a specific alternative will be

selected by the HA following the public hearing. The

final environmental statement will be prepared for

the selected alternative. Unless the final statement

is included in the location study report (design report

when prepared and circulated during design study),

the final statement should include a brief discussion

of the data supporting the selected alternative. This

section should also include a discussion of alternatives

to the use of Section 4(f) lands.

e. The relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity. The short-term

uses should be evaluated (construction, changes in

traffic patterns, the taking of natural features such

as trees, etc., and man-made features such as homes,

churches, etc.) as compared to the long-term effects

(foreseen changes in land use resulting from the high-

way improvement or other similarly related items that

may either limit or expand land use, affect water, air,

wildlife, ete., and other environmental factors.)

f. Any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented. Highways require

use of natural resources such as forest or agricultural

land, however, these are generally not in sufficient

quantity to be significant. The improved access and

transportation afforded by a highway may generate

i en ee ee ee eo ae

A29

other related actions that could reach major propor-

tion and which would be difficult to rescind. An

example would be a highway improvement which pro-

vides access to a nonaccessible area, acting as a cata-

lyst for industrial, commercial, or residential develop-

ment of the area.

g. Where unavoidable adverse environmental

effects are encountered, planning and measures taken

and proposed to minimize harm should be identified.

These include procedural and standard measures

which are required by standard specifications or

standard operating procedures such as erosion con-

trol, stream pollution prevention, borrow pit screening

or rehabilitation, fencing, relocation of people and

businesses, land acquisition procedures, joint develop-

ment, etc. Measures unique to a specific project

should be discussed in detail. Examples of such would

be depressing an urban highway to minimize audio

and visual effects, providing buffer zones for esthetic

purposes, replacement of parklands, etc.

h. Final statements shall incorporate all comments

received on the draft (including environmental com-

ments contained in the public hearing transcript)

along with a discussion of the comments and sugges-

tions. The HA shall describe its disposition of the com-

ments and suggestions (e. g., revisions to the proposed

development or improvement to overcome anticipated

problems or objections; reasons why specific comments

and suggestions could not be accepted; factors of over-

riding importance prohibiting the incorporation of

suggestions, etc.). This section may be added at the

end of the review process in the final text of the

environmental statement.

bP NI RAL AS NE SNG 0RS AIT w= aL Ms es Sa tet DP DIDI A Re Rh PO SA HT

A30

i. Measures to minimize harm to Section 4(f)

lands should be included under a separate paragraph

even though discussed elsewhere in the final state-

ment.

j. Each draft and final environmental statement

shall include a summary sheet. (See paragraph 4 of

this Appendix. )

3. The following information, when pertinent and

available, should be included in the combination en-

vironmental/Section 4(f) statements. (See para-

graphs 2a, 2c, 2d, and 2i of this Appendix.) To the

extent practicable, this information should be in-

cluded in the draft to initiate the necessary inter-

agency review.

a. The description of the project (see paragraph

2a of this Appendix) shall include information about

the Section 4(f) land in sufficient detail to permit

those not acquainted with the project to have an

understanding of the relationship between the high-

way and park and the extent of the impact, such as:

(1) Size (acres or square feet) and location

(maps or other exhibits such as photographs, slides,

sketches, etc., as appropriate).

(2) Type (recreation, historic, etc.).

(3) Available activities (fishing, swimming,

golf, etc.).

(4) Facilities existing and planned (descrip-

tion and location of ball diamonds, tennis courts, ete.

(5) Usage (approximate number of users for

each activity if such figures are available).

(6) Patronage (local, regional, and national).

iON AIT A ALL ie he - A CR ee Pm

(7) Relationship to other similarly used lands

in the vicinity.

(8) Access (both pedestrian and vehicular).

(9) Ownership (city, county, State, etc.).

(10) If applicable, deed restrictions or rever-

sionary clauses.

(11) The determination of significance by the

Federal, State, or local officials having jurisdiction

of the Section 4(f) land.

(12) Unusual characteristics of the Section 4(f)

land (flooding problems, terrain conditions, or other

features that either reduce or enhance the value of

portions of the area).

(18) Consistency of location, type of activity,

and use of the Section 4(f) land with community

goals, objectives, and land use planning.

(14) If applicable, prior use of State or Federal

funds for acquisition or development of the Section

4(f) land.

b. A description of the manner in which the high-

way will affect the Section 4(f) land (include within

paragraph 2c of this Appendix) such as:

(1) The location and amount of land (acres

or square feet) to be used by the highway.

(2) A detailed map or drawing of sufficient

scale to discern the essential elements of the high-

way/Section 4(f) land involvement.

(3) The facilities affected.

(4) The probable increase or decrease in physi-

rc a 8 em ee | ee ee

A32

cal effects on the Section 4(f) land users (noise,

fumes, etc.).

(5) The effect upon pedestrian and vehicular

access to the Section 4(f) land.

ec. A specific statement (with supporting rea-

sons) that there is no feasible and prudent alternative.

(Include in discussion of alternatives, paragraph 2d

of this Appendix. )

d. Information to demonstrate that all possible

planning to minimize harm is or will be included in

the highway proposal. (See paragraph 2i of this Ap-

pendix.) Such information should include:

(1) The agency responsible for furnishing the

highway right-of-way.

(2) Provisions for compensating or replacing

the Section 4(f) land and improvements thereon, in-

cluding the status of any agreements. (Include agreed

upon compensation, replacement acreages, and type

land, etc., when known. )

(3) Highway design features developed to

enhance the Section 4(f) land or to lessen or eliminate

adverse effects (improving or restoring existing

pedestrian or vehicular access, landscaping, esthetic

treatment, etc.).

(4) Coordination of highway construction to

permit orderly transition and continual usage of Sec-

tion 4(f) land facilities (new {facilities constructed

and available for use prior to demolishing existing

facilities, moving of facilities during off-season, etc.).

e. Evidence that the provisions of 16 U.S.C.

470(f) (Section 106 of the Historic Preservation Act

A33

of 1966) have been satisfied when National Register

Properties are involved.

4. Summary Sheet

a. Check Appropriate Box(es)

Administrative Action

( ) Draft ( ) Final

( ) Environmental Statement

( ) Combination Environmental/

Section 4(f) Statement

b. Brief description of highway improvement

indicating route, termini, length, county, city, State,

etc., as appropriate.

ce. Summary of environmental impacts (identified

in paragraphs 2b and 2 ¢ of this Appendix).

d. Summarize alternatives considered (as de-

scribed under paragraph 2d of this Appendix).

e. (1) (For draft statements) List Federal,

State, and local agencies and other organizations from

which comments are being requested.

(2) (For final statements) List Federal,

State, and local agencies and other organizations from

which comments were requested and identify those

that returned written comments.

f. Date draft statement was made available to

CEQ (date mailed) which will also be considered the

date the draft statement was made available to the

public.

atin pamieiaiee

7 - ee

epee

eran

A34

U.S, DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

AND

b Appropriate Highway Agency

DRAFT

FINAL

Whichever is appropriate

~~Environmental Statement or Environmental/Section 4(1) Statement

ADMINISTRATIVE ACTION

for

~~ (Brief Description of Highway Improvement: Route, Termini, County, City, etc.)

THIS HIGHWAY IMPROVEWN ENT IS PROPOSED FOR FUNDING UNDER TITLE 23, UNITED

STATES CODE, THIS STA*EMENT FOR THE IMPROVEMENT WAS DEVELOPED IN CON-

SULTATION WITH THE FEDERAL HIGHWAY ADMINISTRATION AND IS SUBMITTED

PURSUANT TO.

42 U.S.C. 4332(2)(C)

and

(when applicable)

49 U.S.C. 16531

FINAL ONLY

Date Stgnature of Appropriate Highway Reserve 3" x 3°

Agency Official space for DOT

approval

APPROVED AND ADOPTED BY THE FHWA

_ Date Signature of FHWA Reviewing Official

E-4

EE RD RSS TONS I ee

A35

The number placed at the top left-hand corner of the

title page on all draft and final environmental state-

ments is as follows:

FHWA—aAz-EIS-72-01-D or F

FHWA—Name of Federal agency

Az—Name of State (cannot exceed four

characters )

EIS—Environmental Impact Statement

72—Year draft statement was prepared

01—Sequential number of statement for each

calendar year

D or F— D—designates the statement as the draft

statement

F—designates the statement as the final

statement

The first draft statement prepared each year is num-

bered one (1) and other draft statements prepared

in that same year are numbered sequently in accord-

ance with the date prepared. Final statements carry

the same number based upon the date the draft was

prepared.

EVALUATING HIGHWAY SECTION

ENVIRONMENTAL EFFECTS

1. Draft and final environmental statements should

be prepared and processed in accordance with the

procedures required by this memorandum for all high-

way sections falling under one or more of the following

three categories:

a. Highway sections where organized opposition

has occurred or is anticipated to occur.

b. Highway sections significantly affecting his-

Sy eT) eae

GD et i es a ss

A36

toric or conservation lands (public or private) inde-

pendent of whether they are Section 4(f) cases.

ce. Highway sections which are classed as major

actions and are also likely to significantly affect the

quality of the human environment. This category re-

quires a two-step analysis. First, it must be deter-

mined if the proposed highway section is a major

action (paragraph 2 of this Appendix) ; secondly, the

significance of the effects upon the human environ-

ment must be determined (paragraph 3 of this Ap-

pendix).

2. The following should be used to determine whether

a proposal to construct or improve a highway section

is a major action.

a. Highway sections entirely or generally on new

location.

b. Major up-grading of an existing highway sec-

tion resulting in a functional characteristic change

(e. g., a local road becoming an arterial highway).

Such changes usually result by adding lanes, inter-

changes, access control, medians, etc., and require

extensive right-of-way acquisition and construction

(grading, base, paving, bridges, etc.) which have the

potential of significantly affecting the human en-

vironment.

3. Any of the following highway sections should

ordinarily be considered as significantly affecting the

quality of the human environment.

a. A highway section that is likely to have a

significantly adverse impact on natural ecological,

cultural, or scenic resources of national, State or local

significance.

A37

b. A highway section that is likely to be highly

controversial regarding relocation housing resources.

e. A highway section that divides or disrupts an

established community or disrupts orderly, planned

development or is inconsistent with plans or goals that

have been adopted by the community in which the

project is located or causes increased congestion.

d. A highway section which involves inconsistency

with any national, State or local standard relating to

the environment; has a significantly detrimental im-

pact on air or water quality or on ambient noise levels

for adjoining areas; involves a possibility of con-

tamination of a public water supply system; or affects

ground water, flooding, erosion or sedimentation.

The comments, suggestions and information obtained

during the highway studies, including the coordination

and evaluation required by paragraphs 5a and 4c of

PPM 20-8 will in most instances supply the informa-

tion necessary to make the determination required

above.

4. Negative declarations shall be prepared for all

highway sections which are not major actions and for

highway sections, even though classed as major

actions, where it is determined there is no significant

effect upon the quality of human environment as a

result of the study and early coordination. Highway

improvements of the following types are not likely to

have significant impacts upon the environment.

a. Signing, marking, signalization and railroad

protective devices.

b. Acquisition of scenic easements,

a Eo es Te

A38

ce. Modernization of an existing highway by re-

surfacing; less than lane width widening; adding

shoulders; auxiliary lanes for localized purposes

(weaving, climbing, speed-changing, etc.)

d. Correcting substandard curves,

e. Reconstruction of existing stream crossings

where stream channels are not affected,

f. Reconstruction of existing highway/highway

or highway/railroad separations,

g. Reconstruction of existing intersections includ-

ing channelization,

h. Reconstruction of existing roadbed (existing

curb to curb for urban cross sections), including

minor widening, shoulders and additional right-of-

way,

i. Rural two-lane highways on new or existing

location which are found to be generally environ-

mentally acceptable to the public and local, State, and

Federal officials.

INTER-AGENCY REVIEW OF DRAFT

ENVIRONMENTAL STATEMENTS

1. Draft environmental statements are to be circu-

lated to appropriate Federal, State, and local agencies.

State and local agency review comments will be

solicited from State, regional, and metropolitan clear-

inghouses. Federal agencies are those having juris-

diction by law or special expertise with respect to any

environmental impact involved.

2. Careful attention should be given to the selection

of agencies having jurisdiction by law or special ex-

SRE Se SR Dt eI Ce 2 Se ET Sen maT at

A39

pertise in an anticipated impact to avoid the unneces-

sary solicitation of agencies. Appendix II to CEQ’s

guidelines published in the April 23, 1971, Federal

spective areas of jurisdiction by law or special

expertise. A majority of the areas are the concern

of the Departments of Housing and Urban Develop-

ment, the Interior, Agriculture, and the Environ-

mental Protection Agency.

3. The Department of Housing and Urban Develop-

ment (HUD) generally deals with urban aspects of

historic and archeological sites, flood plains and water-

sheds, parks, forests, outdoor recreation, noise, con-

gestion, low-income neighborhoods, and urban

planning. Draft environmental statements in urban

areas and all draft combination environmental/Sec-

tion 4(f) statements should be furnished to HUD for

comment.

a. It is desirable to develop a written understand-

ing with the regional office of HUD about which rural

statements it wishes to review. HUD has delegated

review of environmental statements to its regional

offices.

4. The Department of the Interior has an interest in

several environmental impact areas, including energy

transmission, land use, historic and archeological sites,

flood plains and watersheds, parks, forests, outdoor

recreation, erosion, urban congestion, low-income

neighborhoods, urban planning, rivers, canals, stream

control, and wildlife. It may be advantageous to in-

clude the Department of the Interior in the mailing

list for all draft environmental statements.

5. The Department of Agriculture is oriented to-

;

MERE IOAN MA Rat ON NE

PUY FRAT Pay

A40

wards rural matters. It has an interest in rural

electrical energy transmission, toxins, pesticides,

herbicides, land use, flood plains, watersheds, parks,

forests, outdoor recreation, erosion, rivers, canals,

stream control, and wildlife. Accordingly, it should

be furnished draft statements on rural highway

sections.

6. The Environmental Protection Agency (EPA) has

jurisdiction by law or expertise in all major Federal

actions significantly affecting the environment. The

EPA should be furnished five copies of all draft state-

ments. Comments should be solicited under both Sec-

tion 102(2)(C) of the National Environmental Policy

Act and Section 309 of the Clean Air Act of 1970.

7. The Department of the Army, Office of the Chief

of Engineers (Corps of Engineers), is interested in

land use and management (coastal areas and naviga-

ble waters), flood plains and watersheds, soil and

plant life, transportation (harbors, channels, inlets,

inland waterways, locks and dams, dredged spoil dis-

posal), and water quality and pollution control. Early

coordination is the best guide in determining if the

Corps of Engineers has an interest in commenting on

the highway section. This early coordination will

establish which projects will subsequently require a

Corps of Engineers permit.

8. Other agencies, that should be consulted and fur-

nished a copy of the draft environmental statements

for comment, will usually be identified during early

coordination.

9. Other administrations within the Department of

Transportation will need to be solicited for comment

in some cases such as a proposed highway section with

A41

a bridge over navigable water that requires a permit

from the Coast Guard. The administration from

which comments are sought (preferably local offices)

may be contacted directly by the HA.

10. In its letter asking an agency for comment on any

anticipated environmental impacts for which the

agency has jurisdiction by law or special expertise,

it is suggested that the HA identify which impacts

described in the statement the HA would specifically

wish discussed. The Federal agency should be asked

to comment on each alternative and, if it desires, state

a preference and reasons therefor. When the HA

places a time limit on the commenting period, the

Federal agencies are to be advised at the time com-

ments are solicited and should be informed that if no

comments are received within that time period, the

HA will assume that the review agency has no com-

ments to offer. The HA should clearly indicate where

responding agencies are to return their comments.

Selections from PPM 20-8, dated January 14, 1969,

for use with the National Environmental Policy Act

guidelines:

5. COORDINATION

a. When a State highway department begins con-

sidering the development or improvement of a traffic

corridor in a particular area, it shall solicit the views

of that State’s resources, recreation, and planning

agencies, and of those Federal agencies and local

public officials and agencies, and public advisory

groups which the State highway department knows or

believes might be interested in or affected by the de-

velopment or improvement.

PRT SP PRT ANF

Me BRE NIHAL SB ALR AY EY IAS,

LEMAR RENE MIT APES HOLL BEE TI

SOY CADE

SAVES TO

FESTA HETIL LOPE EAB

"bia iniaaaaiina

A42

6. HEARING REQUIREMENTS

a. Both a corridor public hearing and a design

public hearing must be held, or an opportunity af-

forded for those hearings, with respect to each Fed-

eral aid highway project that:

(1) Ison anew location; or

(2) Would have a_ substantially different

social, economic or environmental effect; or

(3) Would essentially change the layout or

function of connecting roads or streets.

However, with respect to secondary road programs,

two hearings are not required on a project covered

by paragraph 6(a)(1) or (2) unless it will carry an

average of 750 vehicles a day in the year following

its completion.

b. A single combined corridor and highway design

public hearing must be held, or the opportunity for

such a hearing afforded, on all other projects before

route location approval, except as provided in para-

graph 6.c. below.

ce. Hearings are not required for those projects

that are solely for such improvements as resurfacing,

widening existing lanes, adding auxiliary lanes, re-

placing existing grade separation structures, installing

traffic control devices or similar improvements, unless

the project:

(1) Requires the acquisition of additional

right-of-way ; or

(2) Would have an adverse effect upon abut-

ting real property; or

(3) Would change the layout or function of

A43

connecting roads or streets or of the facility being

improved.

7. OPPORTUNITY FOR PUBLIC HEARINGS

a. A State may satisfy the requirements for a

public hearing by (1) holding a public hearing, or

(2) publishing two notices of opportunity for public

hearing and holding a public hearing if any written

requests for such a hearing are received. The pro-

cedure for requesting a public hearing shall be ex-

plained in the notice. The deadline for submission of

such a request may not be less than 21 days after the

date of publication of the first notice of opportunity

for public hearing, and no less than 14 days after the

date of publication of the second notice of opportunity

for public hearing.

8. PUBLIC HEARING PROCEDURE

a. Notice of public hearing:

(1) When a public hearing is to be held a

notice of public hearing shall be published at least

twice in a newspaper having general circulation in

the vicinity of the proposed undertaking. The notice

should also be published in any newspaper having a

substantial circulation in the area concerned; such as

foreign language newspapers and local community

newspapers. The first of the required publications

shall be from 30 to 40 days before the date of the

hearing, and the second shall be from 5 to 12 days

before the date of the hearing. The timing of addi-

tional publications is optional.

(2) In addition to publishing a formal notice

of public hearing, the State highway department shall

A44

mail copies of the notice to appropriate news media,

the State’s resource, recreation, and planning agen-

cies, and appropriate representatives of the Depart-

ments of Interior and Housing and Urban Development.

The State highway department shall also mail copies

to other federal agencies, and local public officials,

public advisory groups and agencies who have re-

quested notice of hearing and other groups or agencies

who, by nature of their function, interest, or responsi-

bility the highway department knows or believes might

be interested in or affected by the proposal.

(8) Each notice of public hearing shall specify

the date, time, and place of the hearing and shall con-

tain a description of the proposal. To promote public un-

derstanding, the inclusion of a map or other drawing as

part of the notice is encouraged. The notice of public

hearing shall specify that maps, drawings, and other

pertinent information developed by the State highway

department and written views received as a result of

the coordination outlined in Paragraph 5.a. will be

available for public inspection and copying and shall

specify where this information is available.

PURCHASING COPIES OF ENVIRONMENTAL

STATEMENTS

1. A copy of any draft or final environmental state-

ment prepared by a Federal agency can be obtained

by sending report number or order number and pay-

ment, and return address to the National Technical

Information Service, Department of Commerce,

Springfield, Virginia 22151.

2. The report number can be obtained from the

FHWA or HA while the order number is found at the

ARH stS < ge ee! >

A45

end of the summary of each statement in the 102

Monitor which is published by the Council on Environ-

mental Quality (722 Jackson Place, NW., Washing-

ton, D.C. 20006) and sent to State clearinghouses

and other interested agencies.

3. Payment is normally $3.00. Copies over 300 pages

require $6.00 and will be noted in the 102 Monitor.

i lk a ial

A46

APPENDIX B

Transmittal 279

90-2

February 8, 1973

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

POLICY AND PROCEDURE MEMORANDUM

Noise Standards and Procedures

1. Purpose

2. Authority

3. Noise Standards

4. Applicability

5. Procedures

Appendix A—Definitions

Appendix B—Noise Standards

1. PURPOSE

To provide noise standards and procedures for use

by State highway agencies and the Federal Highway

Administration (FHWA) in the planning and design

of highways approved pursuant to Title 23, United

States Code, and to assure that measures are taken

in the overall public interest to achieve highway noise

levels that are compatible with different land uses,

with due consideration also given to other social,

economic and environmental effects.

Par.

2. AUTHORITY

Sections 109(h) and (i), Title 23, United States

Code, state that guidelines shall be promulgated “to

A47

assure that possible adverse economic, social, and en-

vironmental effects relating to any proposal project

on any Federal-aid system have been fully considered

in developing such project, and that the final decisions

on the project are made in the best overall public

interest, taking into consideration the need for fast,

safe and efficient transportation, public services, and

the costs of eliminating or minimizing such adverse

effects and the following: (1) air, noise, and water

pollution; . . .” and that “The Secretary, after con-

sultation with appropriate Federal, State, and local

officials, shall develop and promulgate standards for

highway noise levels compatible with different land

uses and after July 1, 1972, shall not approve plans

and specifications for any proposed project on any

Federal-aid system for which location approval has

not yet been secured unless he determines that such

plans and specifications include adequate measures

to implement the appropriate noise level standards.”

3. NOISE STANDARDS

a. Noise standards are appended as Appendix B.

Federal Highway Administration encourages applica-

tion of the noise standards at the earliest appropriate

stage in the project development process.

b. There may be sections of highways where it

would be impossible or impracticable to apply noise

abatement measures. This could occur where abate-

ment measures would not be feasible or effective due

to physical conditions, where the costs of abatement

measures are high in relation to the benefits achieved,

or where the measures required to abate the noise

condition conflict with other important values, such

as desirable esthetic quality, important ecological con-

ry ba lial i

rrr

OOP OE LG IT LAN 8 PN

rates

A48

ditions, highway safety, or air quality. In these situa-

tions, highway agencies should weigh the anticipated

noise impacts together with other effects against the

need for and the scope of the project in accordance

with other FHWA directives (PPM’s 20-8, 90-1, and

90-4).

4. APPLICABILITY

In order to be eligible for Federal-aid participa-

tion, all projects to which the noise standards apply

shall include noise abatement measures to obtain the

design noise levels in these standards unless excep-

tions have been approved as provided herein.

a. Projects to which noise standards apply. The

noise standards apply to all highway projects planned

or constructed pursuant to Title 23, United States

Code, except projects unrelated to increased traffic

noise levels, such as lighting, signing, landscaping,

safety and bridge replacement. Pavement overlays or

pavement reconstruction can be considered as falling

within this category unless the new pavement is of a

type which produces more noise than the type replaced.

b. Approvals to Which Compliance with Noise

Standards Is Prerequisite.

(1) Projects for which location was approved

prior to July 1, 1972: Compliance with noise stand-

ards shall not be a prerequisite to any subsequent

approval provided design approval is secured prior to

July 1, 1974. If design approval is not secured for

such a project prior to July 1, 1974, compliance with

the noise standards shall be a prerequisite to securing

both design approval and approval of plans and speci-

fications. Fiowever, such compliance shall not be a

jaar

tt A 5 SR oO a CE rR

A49

basis for requiring reconsideration of the highway

location or any other approval action which has previ-

ously been taken for such projects.

(2) Projects for which location is approved on

or after July 1, 1972:

(a) If location approval was requested on

or before December 31, 1972, compliance with the

noise standards shall be a prerequisite to obtaining

design approval and approval of plans and specifica-

tions. Compliance with the noise standards shall not

be a prerequisite to obtaining location approval, nor

shall such compliance be a basis for requiring recon-

sideration of the highway location or any other ap-

proval action which has previously been taken for such

projects. Combined location and design approval shall

be handled in the same manner as separate design

approval.

(b) If location approval is requested after

December 31, 1972, compliance with the noise stand-

ards shall be a prerequisite to obtaining location and

design approvals as well as approval of plans and

specifications.

5. PROCEDURES

The noise standards should be implemented at the

earliest appropriate stage in the project development

process. These procedures have been developed ac-

cordingly.

a. Project Development. A report on traffic noise

will be required during the location planning stage

and the project design stage. The reports may be

sections in the location and design study reports, or

NaN

Ty ole

li it il in i lal ta di

EAT RR CEM Se

A50

they may be separate. The procedures for noise

analysis, identification of solutions, coordination with

local officials, and incorporation of noise abatement

measures are as follows:

(1) Nonapplicable Projects. If a State highway

department determines (in accordance with paragraph

4a that noise standards do not apply to a particular

project, the requests for location approval and design

approval shall contain statements to that effect, in-

cluding the basis on which the State made its determi-

nation.

(2) Noise Analysis. For applicable projects,

analyses of noise and evaluation of effects are to be

made during project development studies using the

following general steps:

(a) Predict the highway-generated noise

level as described in the standards for each alternative

under detailed study.

(b) Identify existing land uses or activi-

ties which may be affected by noise from the highway

section.

ing noise levels for developed land uses or activities.

(d) Compare the predicted noise levels

with the design level values listed in the standards.

Also compare the predicted noise levels with existing

noise levels determined in paragraphs 5a(2)(c).

These comparisons will be the basis for determining

the anticipated impact upon land uses and activities.

(e) Based upon the noise impacts deter-

mined in paragraph 5a(2)(d), evaluate alternative

noise abatement measures for reducing or eliminating

the noise impact for developed lands.

(f) Identify those situations where it

appears that an exception to the design noise levels

will be needed. Prepare recommendations to be in-

cluded in the traffic noise report. (This report may

be a portion of the location and design study reports

or it may be a separate report. )

(3) Location Phase and Environmental Impact

Statement Requirements. To the extent this PPM is

applicable to the location phase of projects under para-

graph 4, the noise report shall describe the noise prob-

lems which may be created and the plans for dealing

with such problems for each alternative under de-

tailed study. The level of detail of the noise analysis

in the location phase should be consistent with the

level of detail in which the location study itself is

made. This information including a preliminary dis-

cussion of exceptions anticipated, shall be set forth in

the location study report and summarized in the en-

vironmental impact statement (if one is prepared)

and, as appropriate, at the location hearing (for

location hearings after December 31, 1972). Studies

and reports for highway locations approved before

December 31, 1972, need not include an analysis and

report on noise. In such instances, the noise analysis

and report will be required only for the design

approval.

(4) Design Phase Requirements. The noise

analysis prepared for the location phase is to be up-

dated and expanded using the refined alignment and

design information developed during the design

studies. The report on traffic noise will include a

I rt ecw er Bee BE se a

A52

detailed analysis of the anticipated noise impact,

alternative or proposed abatement measures, discus-

sion of coordination with local officials, and recom-

mended exceptions.

(5) Coordination with Local Officials on Un-

developed Lands. Highway agencies have the responsi-

bility for taking measures that are prudent and

feasible to assure that the location and design of

highways are compatible with existing land use. Local

governments, on the other hand, have responsibility

for land development control and zoning. Highway

agencies can be of considerable assistance to local

officials in these efforts with a view toward pro-

moting compatibility between land development and

highways. Therefore, for undeveloped lands (or

properties) highway agencies shall cooperate with

local officials by furnishing approximate generalized

future noise levels for various distances from the

highway improvement and shall make available infor-

mation that may be useful to local communities to

protect future land development from becoming in-

compatible with anticipated highway noise levels.

(6) Noise Abatement Measures for Lands

Which are Undeveloped at Time of Location Approval.

(a) Noise abatement measures are not

required for lands which are undeveloped at the time

of location approval; however, the highway agency

may incorporate noise abatement measures for such

undeveloped lands in the project design (if approved by

FHWA) when a case can be made for doing so based

on consideration of anticipated future land use, future

need, expected long term benefits, and the difficulty

and increased cost of later incorporating abatement

measures.

A53

(b) For land uses or activities which de-

velop after location approval, noise abatement meas-

ures should be considered for incorporation in the

project in the following situations:

1 It can be demonstrated that all prac-

ticable and prudent planning and design were exer-

cised by the local government and the developer of

the property to make the activity compatible with the

predicted noise levels which were furnished to the

local government and especially that a considerable

amount of time has elapsed between location approval

and highway construction thus limiting local govern-

ment’s ability to maintain control over adjoining land

uses.

2 The benefits to be derived from the

use of highway funds to provide noise abatement

measures is determined to outweigh the overall costs.

3 The noise abatement measures can

be provided within the highway’s proposed right-of-

way or wider rights-of-way or easements acquired

for that purpose.

design noise levels should be applied to lands which

are undeveloped at the time of location approval.

Some of these instances occur where the development

of new land uses or activities is planned at the same

time as the highway location studies. Other instances

occur where planning for the new development has

preceded the highway location studies but the develop-

ment has been delayed. These types of situations

should be treated as though the land use or activity

were in existence at the time of location approval

provided :

POET LISI MIT TE TAD IHD EDSON NIM

I a a rt “Deets 2 TE eet

A5d4

1 The State highway agency is ap-

prised of such prior planning.

2 The construction of the new land use

or activity is started prior to highway construction

or there is good reason to believe that it will start

before highway construction.

(7) Incorporation of Noise Abatement Meas-

ures in Plans and Specifications. For those projects

to which the standards apply, the plans and specifica-

tions for the highway section shall incorporate noise

abatement measures to attain the design noise levels

in the standards, except where an exception has been

granted.

(8) Requests for Exceptions. Requirements

and supporting materials for requests for exceptions

to the design noise levels are described in paragraph

2 of Appendix B to this PPM. To the extent possible,

consistent with the level of detail of the location study,

identifiable exceptions should be reported in the loca-

tion study report. The request for location approval

shall contain or be accompanied by a request for

approval of exceptions that have been identified in

the location stage. Supporting material may be con-

tained in the location study report. Subsequent

requests for review and approval of additional excep-

tions, if any, will be similarly processed in conjunc-

tion with design approval.

b. Federal Participation

(1) Shifts in alignment and grade are design

measures which can be used to reduce noise impacts.

The following noise abatement measures may also be

incorporated in a project to reduce highway-generated

Le Eg -~ - TAD cee LT NE EC ARS Sa ROT Re

A55

noise impacts. The costs of such measures may be

included in project costs.

(a) The acquisition of property rights

(either in fee or a lesser interest) for providing buffer

zones or for installation or construction of noise abate-

ment barriers or devices.

(b) The installation or construction of

noise barriers or devices, whether within the highway

right-of-way or on an easement obtained for that

purpose.

(2) In some specific cases there may be com-

pelling reasons to consider measures to “sound-proof”

structures. Situations of this kind may be considered

on a case by case basis when they involve such public

or non-profit institutional structures as_ schools,

churches, libraries, hospitals, and auditoriums. Pro-

posals of this type, together with the State’s recom-

mendation for approval shall be submitted to FHWA

for consideration.

c. Approval Authority

(1) Exceptions to the Design Noise Levels.

The FHWA Division Engineer is authorized to ap-

prove exceptions to the design noise levels and alter-

nate traffic characteristics for noise prediction as

provided in paragraph 3b, Appendix B.

(2) Noise Prediction Method. Noise levels to

be used in applying the noise standards shall be

obtained from a prediction method approved by

FHWA. The noise prediction method contained in

National Cooperative Highway Research Program

Report 117 and the method contained in Department

of Transportation, Transportation Systems Center

Te he ea an

Ca Ra i al ae ated i

FEET IA ROP NIL EET IN

eer MAMET Py 6

A56

Report DOT-TSC-FHWA-72-1 are approved as of the

date of this issue for use in applying the noise

standards. Other noise prediction methods or varia-

tions of the above should be furnished to the FHWA

Office of Environmental Policy together with sup-

porting and validation information for approval.

R. R. Bartelsmeyer

Acting Federal Highway Administrator

DEFINITIONS (As used in this PPM)

Design Approval—the approval (described in

PPM 20-8) given by the Federal Highway Adminis-

tration (FHWA) (at the request of a State highway

department) based upon a design study report and a

design public hearing or opportunity therefor. This

action establishes FHWA acceptance of a particular

design and is prerequisite to authorization of right-of-

way acquisition and construction.

Design Noise Level—the noise levels established

by the noise standards set forth herein for various

land uses or activities to be used for determining traf-

fic noise impacts and the assessment of the need for

and type of noise abatement treatment for a particular

highway section.

Design Year—the future year used to estimate the

probable traffic volume to be used as one of the pri-

mary bases for the roadway design. A time 20 years

from construction is common for multilane and other

major projects. Periods of 5 or 10 years are not

uncommon for low volume roads.

Developed Land Uses or Activities—those tracts

of land or portions thereof which contain improve-

A57

ments or activities devoted to frequent human use or

habitation. The date of issue of a building permit

(for improvements under construction or subsequently

added) establishes the date of existence. Park lands

in categories A and B of Table 1, Appendix B, include

all such lands (public and private) which are actually

used as parks on the date the highway location is

approved and those public lands formally set aside or

designated for such use by a governmental agency.

Activities such as farming, mining, and logging are

not considered developed activities. However, the

associated residences could be considered as a developed

portion of the tract.

Highway Section—a substantial length of highway

between logical termini (major crossroads, population

centers, major traffic generators, or similar major

highway control elements) as normally included in a

single location study.

L10—the sound level that is exceeded 10 percent

of the time (the 10th percentile) for the period under

consideration. This value is an indicator of both the

magnitude and frequency of occurrence of the loudest

noise events.

Level of Service C—traffic conditions (used and

described in the Highway Capacity Manual-Highway

Research Board, Special Report 87) where speed and

maneuverability are closely controlled by high volumes,

and where vehicles are restricted in freedom to select

speed, change lanes, or pass.

Location Approval—the approval (described in

PPM 20-8) given by the FHWA (at the request of a

State Highway Department) based upon a location

study report and a corridor public hearing or oppor-

I A BRN BREN ae Nt FR etl A Ne lhl AN Ney Ra Aa

A58

tunity therefor. This action establishes a particular

location for a highway section and is prerequisite to

authorization to proceed with the design. (Concurrent

location and design approval is sometimes given for

projects involving upgrading existing roads. In these

instances, location approval is not a prerequisite to

authorization of design. )

Noise Level—the weighted sound pressure level

obtained by the use of a metering characteristic and

weighting A as specified in American National Stan-

dard Specifications S1.4-1971. The abbreviation

herein used is dBA.

Operating Speed—the highest overall speed at

which a driver can travel on a given highway under

favorable weather conditions and under prevailing

traffic conditions without at any time exceeding the

safe speed as determined by the design speed on a

section-by-section basis.

Project Development—studies, surveys, coordina-

tion, reviews, approvals, and other activities normally

conducted during the location and design of a highway

project.

Truck—a motor vehicle having a gross vehicle

weight greater than 10,000 pounds and buses having

a capacity exceeding 15 passengers.

NOISE STANDARDS

1. Design Noise Level/Land Use Relationship

a. Tne design noise levels in Table 1 (page B-4)

are to be used during project development of a high-

way section to determine highway traffic noise impacts

ADR RAE AE EET OTE AM + a oe een ek

A59

associated with different land uses or activities in

existence at the time of location approval. In addition,

the table is to be used to determine the need for abate-

ment measures for traffic generated noise for

developed land uses and activities in existence at the

time of location approval. Exceptions to the design

noise levels may be granted on certain types of high-

way improvements or portions thereof when the condi-

tions outlined in paragraph 2 are met.

b. The exterior noise levels apply to outdoor areas

which have regular human use and which a lowered

noise level would be of benefit. These design noise

level values are to be applied at those points within

the sphere of human activity (at approximate ear

level height) where outdoor activities actually occur.

The values do not apply to an entire tract upon which

the activity is based, but only to that portion in which

the activity occurs. The noise level values need not be

applied to areas having limited human use or where

lowered noise levels would produce little benefit. Such

areas would include but not be limited to junkyards,

industrial areas, railroad yards, parking lots, and

storage yards.

c. The interior design noise level in Category E

applies to indoor activities for those situations where

no exterior noise sensitive land use or activity is

identified. The interior design noise level in Category

E may also be considered as a basis for noise abate-

ment measures in special situations when, in the judg-

ment of FHWA, such consideration is in the best

public interest. In the absence of noise insulating

values for specific structures, interior noise level pre-

dictions may be estimated from the predicted outdoor

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PTI BA”

A60

noise level by using the following noise reduction

factors:

"Hake

Exterior Noise

Level Which

Would

Noise Achieve an

Reduction Interior

Due to Design Noise

Window Exterior of Level of

Building Type Condition the Structure 55 dBA

All Open 10dB 65 dBA

Light Frame Ordinary Sash

Closed 20 75

With Storm

Windows 25 80

Masonry Single Glazed 25 80

Masonry Double Glazed 35 90

Noise reduction factors higher than those shown above

may be used when field measurements of the structure

in question indicate that a higher value is justified.

In determining whether to use open or closed windows,

the choice should be governed by the normal condition

of the windows. That is, any building having year

round air treatment should be treated as the closed

window case. Buildings not having air conditioning

in warm and hot climates and which have open win-

dows a substantial amount of time should be treated

as the open window case.

2. Exceptions

a. The design noise levels set out in these stan-

dards represent the highest desirable noise level con-

ditions. State highway departments shall endeavor to

meet the design noise levels in planning, locating, and

A61

designing highway improvements. However, there

may be sections of highways where it would be im-

practicable to apply noise abatement measures. This

could occur where abatement measures would not be

feasible or effective due to physical conditions, where

the costs of abatement measures are high in relation

to the benefits achieved or where the measures re-

quired to abate the noise condition with other im-

portant values, such as desirable esthetic quality,

important ecological conditions, highway safety, or

air quality.

b. A request for an exception to the design noise

levels can be approved by the FHWA provided the

highway agency has supported its request by a written

summary report demonstrating that the following

steps have been taken and outlining the results.

(1) Identified noise sensitive land uses along

the section of highway in question which are expected

to experience future highway traffic noise levels in

excess of the design levels.

(2) Thoroughly considered all feasible meas-

ures that might be taken to correct or improve the

noise condition.

(3) Weighed the costs or effects of the noise

abatement measures considered against the benefits

which can be achieved as well as against other con-

flicting values such as economic reasonableness, es-

thetic impact, air quality, highway safety, or other

similar values, and thereby established that reduction

of noise levels to desirable design levels is not in the

best overall public interest for that particular high-

way section.

San i

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A62

These decisions must ultimately be based upon case-

by-case judgment. However, every effort should be

made to obtain detailed information on the costs,

benefits and effects involved to assure that final

decisions are based on a systematic, consistent and

rigorous assessment of the overall public interest.

(4) Considered lesser measures that could re-

sult in a significant reduction of noise levels though

not to the design levels, and included such partial

measures in the plans and specifications to the extent

that they meet the test of economic reasonableness,

practicability, and impact on other values, in the

same manner as outlined in paragraph 2b(3).

ce. In reviewing request for exception, the FHWA

will give consideration to the type of highway and the

width of the right-of-way. New freeway projects and

most projects for the major reconstruction or upgrad-

ing of freeways allow for the use of noise control

measures. Noise control measures are progressively

more difficult to apply on other highways, particularly

on local roads and streets because of numerous points

of access, at-grade intersections, limited ability to

acquire additional right-of-way as buffer zones, and

the impossibility of altering roadway grades, con-

structing noise barriers and taking advantage of the

terrain and other natural features.

d. Except in the most unusual situations, excep-

tions will be approved when the predicted traffic

noise level from the highway improvement does not

exceed the existing ambient noise level (originating

from other sources) for the activity or land use in

question.

A63

3. Noise Level Prediction

a. Noise levels to be used in applying these stan-

dards shall be obtained from a predictive method

approved by the FHWA. The predictive method and

the noise level predictions should account for varia-

tions in traffic characteristics (volume, speed, and

truck traffic), topography (vegetation, barriers,

height, and distance), and roadway characteristics

(configuration, pavement type, and grades). In pre-

dicting the noise levels, the following traffic charac-

teristics shall be used:

(1) Automotive volume—the future volume

(adjusted for truck traffic) obtained from the lesser

of the design hourly volume or the maximum volume

which can be handled under traffic level of service C

conditions. For automobiles, level of service C is con-

sidered to be the combination of speed and volume

which creates the worst noise conditions. For those

highway sections where the design hourly volume or

the level of service C condition is not anticipated to

occur on a regular basis during the design year, the

average hourly volume for the highest 3 hours on an

average day for the design year may be used.

(2) Speed—the operating speed (as defined in

the Highway Capacity Manual) which corresponds

with the design year traffic volume selected in para-

graph 3a(1) and the truck traffic predicted from

paragraph 3a(3). The operating speed must be con-

sistent with the volume used.

(3) Truck volume—the design hourly truck

volume shall be used for those cases where either the

design hourly volume or level of service C was used

for the automobile volume.

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A64

Where the average hourly volume for the highest 3

hours on an average day was used for automobile

traffic, comparable truck volumes should be used.

b. There are instances where activities associated

with a particular land use (such as churches, schools,

and resort hotels or residences) do not coincide with

design hourly volumes. This may be particularly true

when the design hourly volumes are seasonally

oriented or where the activity associated with the land

use is somewhat infrequent. There are other instances

where changes in land use can be reasonably expected

to occur before design year volumes are realized. In

such instances, State highway agencies may request

approval to compute noise predictions using traffic

characteristics different from those specified in para-

graph 3a. Such requests should be made on a project-

by-project basis and should be accompanied by a

justification.

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APPENDIX C

FOLD OUT IS TOO LARGE TO BE FILMED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.