Making Sense of Indirect and Cumulative Impacts Analysis

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Making Sense of Indirect and Cumulative Impacts
Analysis

• Lamar S. Smith
• Federal Highway Administration

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Or How I learned to Stop Worrying and Love
Indirect and Cumulative Impacts the short
version
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Why ?

• NEPA and other laws require it
• Provides understanding of total project impacts
• Essential to project decisionmaking
• Others expect it and look for it
• Provides important information to local interests
  and authorities
• Good job will address the concerns and
  expectations of others

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A Few Basic Truths

• Not new or emerging issues
• Not as complicated as you think
• Might be as complex as you think
• Thinking, understanding, and interests vary
• Secondary and indirect interchangeable
• Indirect impacts and cumulative impacts are not
  the same things
• Understanding is key to success

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Direct Impacts

• Caused by the action and occur at the same time
  and place.
• (40 CFR 1508.8)

Direct Environmental Impacts
Project Action
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Indirect Impacts

• Caused by the action and are later in time or
  farther removed in distance, but are still
  reasonably foreseeable
• Growth inducing and other effects on air and
  water and other natural systems, including
  ecosystems, related to induced changes
• in the pattern of land use, and
• population density or growth rate
• (40 CFR 1508.8)

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Indirect Impacts
Indirect Environmental Impacts
Project Action
Related Actions

• Requires forecasting of future conditions,
  probable change, and project influences
• Degree of predictability and confidence
• Impacts may occur away from project area or
  potential area of effect
• Impacts may be positive as well as adverse

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Cumulative Impacts

• Result from incremental impacts of the action
  when added to other past, present, and reasonably
  foreseeable future actions, regardless of agency
  or person that undertakes other actions
• Can result from individually minor but
  collectively significant actions taking place
  over a period of time
• 40 CFR 1508.7

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Cumulative Impacts
Proposed Project
Impacts
Cumulative Impact on Individual Resource
Future Actions
Past Actions
Impacts
Impacts
Reasonably foreseeable includes indirect
actions
Impacts
Other Present Actions
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Cumulative Impact Summary

• Comparison of resource condition, health, and
  sustainability over time
• Analysis on an individual resource basis
• direct affects are the starting point
• Variety of actions, events and causes
• May include natural affects
• Total effect may be beneficial or adverse
• Indirect impacts can be considered a subset of
  cumulative impacts

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Resource Impact Continuum
Past, present and future cumulative affects
Project Impacts
Indirect Impacts
Resource size, function, quality, and condition
over time
Present
Past
Future
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Reasonably Foreseeable

• Reasonably foreseeable events, although
  uncertain, must be probable or likely
• Possible but not probable affects may be excluded
  from NEPA analysis
• Can the event or impact be described with
  sufficient specificity to make consideration
  useful to decisionmaking?
• Based on informed judgment

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Wisdom of the Court

• agency need not speculate about all conceivable
  impacts but it must evaluate the reasonably
  foreseeable effects of the proposed action.
• Dubois v U.S. Dept. of Agriculture
• sufficiently likely to occur, that a person of
  ordinary prudence would take it into account in
  making a decision.
• Sierra Club v. Marsh

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What About Mitigation?

• CEQ defines mitigation as
• avoidance, minimization, and compensation

Direct Environmental Impacts
Project Action
Avoid and minimize
Compensate
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FHWA Mitigation Policy

• Measures necessary to mitigate adverse impacts
  will be incorporated into the action and are
  eligible for Federal funding when the
  Administration determines that
• (1)  The impacts actually result from the
  Administration action and
• (2)  The proposed mitigation represents a
  reasonable public expenditure after considering
  the impacts of the action and the benefits of the
  proposed mitigation measures.
• 23 CFR 771.105(d)

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23 USC 109 Standards

• (h) assure that possible adverse economic,
  social, and environmental effects have been fully
  considered
• 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

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Context

• NEPA
• CWA 404(b)(1) Guidelines
• ESA Section 7
• Section 106
• FEMA Wetlands and Floodplains
• EO 11988 and EO 11990

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Judicial Review

• Procedural not substantive
• Reasonableness and "hard look"
• Inform decisionmakers and the public
• Environmental Impact Statements
• Reasonableness standard
• EIS must be provide reasonably thorough
  discussion
• Finding of No Significant Impact (FONSI)
• Arbitrary and capricious standard
• Deferential to agency technical expertise

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NEPA Process
Transportation Planning
Proposed Action
Coordination and Analysis
YES
NO
Significant Impact ?
Unknown
Significant impact
Listed CE
Documented CE
Environmental Assessment
Notice of Intent Scoping Process
Draft EIS
Coordination and analysis as needed
No significant impacts
Public Comment
Document appropriately
Final EIS
Finding of No Significant Impact (FONSI)
Record of Decision (ROD)
Agency Action
Agency Action
Agency Action
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When To Do It

• Environmental Impact Statements
• Cumulative impact analysis required
• Indirect impacts likely appropriate
• scope of analysis and methodology depends
  on project type and resources involved
• Environmental Assessments
• Cumulative impact analysis required
• Indirect impacts analysis depends on project and
  resources involved
• Categorical Exclusions
• Consider significance of cumulative actions

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Indirect Impacts Evaluation

• Confident that impacts are likely to occur
• Can impacts be sufficiently described and
  specified now to allow for useful evaluation?
• If impacts are not evaluated now, will future
  evaluation of impacts be irrelevant?
• Sierra Club v. Marsh

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Cumulative Impact Analysis

• What is the geographic area affected by the
  project?
• What are the resources affected by the project?
• What are the other past, present, and reasonably
  foreseeable actions that have impacted these
  resources?
• What were those impacts?
• What is the overall impact on these various
  resources from the accumulation of the actions?
• Fritiofson v. Alexander

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Scoping

• Early open discussion and presentation
• Involve the appropriate parties, ask appropriate
  questions for important input
• Focus on the important issues and resources
  adversely affected by the project alternatives
• Agree on methodology, approach and boundaries
• Address others expectations and adequacy of
  analysis
• Be demanding and responsive

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For More Information

• CEQ Handbook,
• FHWA Guidance 1992 and 2003
• EPA Guidance
• NCHRP Report 403 and Desk Reference 466