Environmental Protection Agency (EPA), USACE, and Transportation

The Environmental Protection Agency (EPA) is a broad based agency with responsibility for the Clean Air Act Amendments, the Clean Water Act, the National Environmental Policy Act and many related laws and regulations.

The EPA has probably one of the most complex, informative websites for transportation related issues:  http://www.epa.gov/. Before jumping into the EPA website, though, it is best to remember the above three regimes control much of what goes on in the EPA and in terms of federal funding restrictions

Quantitative Science-Based Legislation

The Clean Air Act and Clean Water Acts are both science-based legislation which contains quantifiable standards.

The Clean Air Act

The Clean Air Act has enormous importance for transportation and transportation funding.  The Clean Air Act has programs and regulations designed to bring “nonattainment” areas into “attainment. The nonattainment areas are polluted with levels of ozone or other pollutants that exceed standards.

Nonattainment or exceedance of the clean air act standards requires an area to develop a State Implementation Program or SIP to get into attainment.

Regulation of pollutants and emissions by Permits v Cap and Trade programs

Many EPA regulations relate to air emissions and emission standards (ceilings) and they are used for a variety of reasons other than just transportation emissions. Many regulations provide for a permit to pollute. Small businesses and most autos operate under such a permit system.

One target of the regulations are stationary emitters (power plants, refineries, cement plants, and certain other industries). There are several programs that have established cap and trade programs (ceilings and trading credits).

Clean Water Act and Section 404 dredge and fill permits; wetlands; flooding & detention

EPA delegates some of its authority to the US Army Corps of Engineers for Clean Water Act permits for dredging and fillingRoads and homes have to get a permit to dredge and fill across “waters of theUnited States.” In H-GAC this is important for building roads and bridges across bodies of water including bayous including streams that are connected to federal waters or navigable waters.

Dredge and fill permits are supposed to be acquired before the FHWA gives final approval for construction in a Record of Decision, but in the Houston District, this often does not happen.

Detention is a major issue not only for federal aid highway projects, but also for local (county and city) projects. Flood protection is supposed to be put in place by the use of detention and retention facilities. Deciding where these facilities will be and who fill fund the acquisition of the facilities can be contentious, but one thing is certain: innocent nearby landowners, who often receive no benefit from road and developer projects, should not have flooding and detention costs shifted to them. Those costs should be borne by road builders and real estate developers. Flood insurance is not a good answer. Innocent landowners should not have to buy flood insurance to protect them from road and builder  caused damage.

The EPA itself also handles the Clean Drinking Water Act which it typically delegates to state agencies such as the Texas Council on Environmental Quality (TCEQ).

Qualitative, Process Legislation

The EPA also is responsible for the promulgation and administration of the National Environmental Policy Act (NEPA) which is primarily qualitative.  Regulations which implement NEPA are handled through the Council on Environmental Quality (CEQ).

Unlike the Clean Air and Clean Water Acts and Highway Noise Standards which are quantitative science-driven regimes requiring substantive abatement of pollution exceedances, NEPA is principally process driven: documentation and consideration, with no particular outcome required to mitigate any disclosed impacts.

Environmental impact analyses for major federal actions are done under the processes of NEPA. These include projects involving federal roads, but also mass transit and port activities. The 3 types of analyses are Environmental Assessment (EA) which is the basic classification, the Environmental Impact Statement (EIS), and the least analyzed projects, Categorical Exclusions, because they are categorically excluded from requiring further environmental documentation.

Some federal aid road projects (those involving federal aid or participation or local projects tying into federal roads) in the TxDOT Houston District that should be analyzed are not or are given a very subpar analysis.

NEPA processes are sometimes required for state transportation projects. Usually the counties and local governments do not participate in NEPA analyses. Several attempts have been made in the Texas Legislature to pass legislation requiring a NEPA analysis for major projects.

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