EDC Training Regional Summit Tysons Corner, VA October 4th, 2010

Date Prepared: 9/28/2010

SHORTENING PROJECT DELIVERY INITIATIVE CLARIFYING THE SCOPE OF PRELIMINARY DESIGN

Preliminary Design Initiative

Planning

NEPA

ROW

Design / Construction

Description: Highlight the existing flexibilities in statute and regulation related to advancing project specific design activities. These flexibilities are available regardless of project delivery mechanism prior to NEPA approval. Leaning Forward Approach to Preliminary Design
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Preliminary Design Overview:

. Benefits: slide 1 of 2

Reduces overall project delivery times;

Streamlined project delivery. Provides guidance on the design activities that can be conducted during the NEPA process;
Clarifies existing flexibilities in regulations.

Improves project decision-making;

More information to the public and agencies.

Preliminary Design Overview:

Benefits: slide 2 of 2 Reduces costs in developing and delivering projects;
Faster delivery to the public.

Enhances consistency among FHWA Division offices & State DOTs; Consistent interpretation of statutes & regulations. Improves agency & staff capacity to make risk-based decisions; and Ensures the integrity of the NEPA process.
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What Can We Do Under Existing Statutes / Regulations ?

The activities that are presumed to be preliminary design and can be carried out prior to final NEPA decision include:
Activities listed in the definition of preliminary design at 23 CFR 636.103: Environmental assessments, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, general estimates of the types and quantities of materials.
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Slide 1 of 2:

What We Want You To Advocate To Your Staff.

Take advantage of existing flexibilities that help allow your State to expedite project delivery. Where feasible, your State should move forward with preliminary design work.
As long as no commitments are made to any alternative being evaluated in the NEPA process and the design work does not prejudice the objective comparison of all alternatives.
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What We Want You To Advocate To Your Staff.

Slide 2 of 2:

Perform preliminary design activities concurrently with the NEPA process in compliance with NEPA regulations at 23 CFR Part 771 and 40 CFR Parts 1500-1508 and These activities typically do not limit the choice of reasonable alternatives as required by 40 CFR 1506.1(a)-(b).
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Preliminary Design: What We Cannot Do!

Final Design Activities that can NOT be advanced prior to NEPA completion:
Any design activities that are not preliminary design. This includes the preparation of final construction plans and detailed specifications for the performance of construction work.

The activities in the definition of final design at 23 CFR 636.103 are considered to be final design. They include final plans, project site plan, final quantities, and final engineers estimate for construction.
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What We Need States to Do.

Interdisciplinary Decision-Making:
Planning Process Systems Planning: Identifies projects and funding Project Development Environmental process, Project Planning and Preliminary Design Key Steps
National Environmental Policy Act (NEPA) Process FHWA decision on alternatives Consult with resource and other agencies Identify necessary environmental permits for construction

Project Implementation Final Design, Right of Way and Construction Key Steps
Comply with Uniform Act for right-of-way acquisition Obtain permits Environmental commitment compliance during construction

Adoption in local/ regional plans Transportation Improvement Program Air Quality plan approval Statewide Transportation Improvement Program Federal certification of planning process

Preliminary Design

Transportation Project Development Process:

Planning System considerations, coordination, conformity, project need Need, alternatives and impact analysis, public / agency coordination, documentation (CE, EA/FONSI, EIS/ROD) Preliminary Design NEPA

NEPA Approval: Location, design concept acceptance

Final Design Right-of-Way

Post NEPA Project Development Activities

Construction

NEPA Processing Options:

(Classes of Action)
Proposed Action Minor Project Coordination and Analysis Significant Impact ? Unknown
Listed Categorical Exclusion (CE) Documented Categorical Exclusion (CE) Environmental Assessment (EA) Significant impact Notice of Intent & Scoping Process Draft Environmental Impact Statement (EIS) Public Comment Final Environmental Impact Statement (EIS) Record of Decision (ROD) Agency Action Agency Action Agency Action

Major Project

NO

YES

Coordination and analysis as needed

Preliminary Design

No significant impacts

Preliminary Design

Document appropriately

Finding of No Significant Impact (FONSI)

Final Design

Preliminary Design Questions to Ask & Consider.

1) Is the design activity in compliance with applicable CEQ regulations? Under CEQ Regulations for Implementing NEPA (40 CFR Part 1506.1), until an agency issues a Record of Decision no action concerning the proposal shall be taken which would limit the choice of reasonable alternatives.
In addition, while work on NEPA is ongoing, agencies shall not undertake in the interim any major Federal action covered by the program unless that action would not prejudice the ultimate decision on the program and would not limit alternatives.

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2) Is the design activity in compliance with FHWA NEPA regulations (23 CFR 771)?

Preliminary Design Questions to Ask & Consider.

FHWA will perform the work necessary to complete a FONSI or an EIS. This work includes environmental studies, related engineering studies, agency coordination and public involvement. Until a project is classified as a CE, or a FONSI or ROD is signed, no work related to final design activities is allowed to proceed.
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Preliminary Design Questions to Ask & Consider.

3) Is the design activity in compliance with FHWAs
Design-Build regulations? In 2007 FHWA adopted definitions of preliminary design and final design in its Design-Build Regulation at 23 CFR 636.103.

The definitions apply across the Federal-aid Highway program, without regard to contracting mechanism. Those definitions, when read together with the FHWA and CEQ NEPA regulations, define design activities that may be allowable prior to completion of the NEPA process (CE, FONSI, or ROD).
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What Can We Do Under Existing Statutes / Regulations ?

Currently, the majority of State DOTs advance Federal-Aid projects through a Design-Bid-Build (DBB) and Design-Build (DB) contracting mechanism.
It is important to note that for the purposes of NEPA, it does not matter under which contract mechanism a Federal- Aid project is advanced. The same flexibilities related to preliminary design that can be carried forward prior to completion of the NEPA process apply to both contract mechanisms.
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What Can We Do Under Existing Statutes / Regulations ?

Preliminary design activities can be conducted prior to completion of the NEPA process if carried out in a manner that would not materially affect the objective consideration of alternatives being considered in the NEPA review process. What do we mean by this? See next slide
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What Can We Do Under Existing Statutes / Regulations ?

The limitation on agency actions during NEPA does not preclude development by applicants of plans or designs or performance of other work necessary to support an application for Federal, State or local permits or assistance. CEQ regulation 40 CFR 1506.1(d) Higher levels of design work are allowed on the preferred alternative to facilitate the development of mitigation measures and concurrent compliance with other applicable laws. 23 USC 139(f)(4)(D)

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What Can We Do Under Existing Statutes / Regulations ?

The amount of engineering design work that can be carried forward and completed through preliminary design, either with or without Federal financial assistance prior to the completion of the NEPA process, will vary from project to project. Determinations of what level of design permitting agencies need, and whether an activity is likely to bias the selection of alternatives or cause adverse environmental effects all are very fact-specific.
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What Can We Do Under Existing Statutes / Regulations ?

Activities presumed to be preliminary design include, but are not limited to:
Activities listed in the definition of preliminary design at 23 CFR 636.103: Environmental assessments, topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, general estimates of the types and quantities of materials.

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What Can We Do Under Existing Statutes / Regulations ?

Other activities: slide 1 of 2 Design and engineering activities to be undertaken for the purposes of defining project alternatives; completing the NEPA alternatives analysis and review process; complying with other related environmental laws and regulations; environmental justice analyses; supporting agency coordination, public involvement, and permit applications; development of environmental mitigation plans; development of typical sections, grading plans, geometric alignment (horizontal alignment, vertical alignment and any clearances necessary to meet approved design criteria), noise wall justifications,
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What Can We Do Under Existing Statutes / Regulations ?

Other activities cont. slide 2 of 2 bridge type/size/location studies, temporary structure requirements, staged bridge construction requirements, structural design (substructure and superstructure), retaining wall design, noise wall design, design exceptions, guardrail length/layout, existing property lines, title and deed research, soil borings, cross sections with flow line elevations, ditch designs, intersection design/configuration, interchange design/configuration, pavement design, storm/sanitary sewer design(plan/profile), culvert design, identification of removal items, quantity estimates, pavement details/elevation tables, and preliminary traffic control plans to be maintained during construction. 21

What Can We Do Under Existing Statutes / Regulations ?

Costs associated with preliminary design activities are eligible for Federal-Aid reimbursement. FHWA is approving the advancement of these additional preliminary design activities earlier in the project development process and will authorize reimbursement for these activities.

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Preliminary Design Project Examples:

Drainage and storm water management. Dredged material quantities. Flexibly adjust amount of preliminary design to meet regulatory requirements, such as bridges affecting regulated wetlands. More detailed design of light rail project elements to reduce cost risk. Core drilling to characterize soils for trench excavation in densely developed urban area.

Drainage and Storm Water Management:

I-95: Florida FL DOT tailored the storm water pond specifications to meet Water Management District requirements. Drainage plans were completed at 60% design versus 30% for remainder of project. Design-build contractor still given opportunity for efficiency while minimizing risks.

Dredged Material Quantities:

Woodrow Wilson Bridge: DC, MD, VA Project sponsors held design competition during the NEPA process for a major design-bid-build bridge project. Resulted in higher level of design information than previously available. Dredged material estimate revised from 40,000 to 550,000 cubic yards. Separate contract was awarded for dredging; final dredged quantity was 330,600 cu yd.

Flexibly Adjust Amount of Preliminary Design:

US 64 Knightdale Bypass: North Carolina Increase level of design to 60% at multiple bridges affecting regulated wetlands. Remainder of project designed to 25-30% where fewer sensitive resources present. Perform more design work to address regulatory and permit requirements to reduce delay.

Tailor Design Work to Reduce Cost Risk:

T-Rex Project: Colorado CO DOT and Regional Transit District tailored preliminary design for different elements. Highway portion: 30% design Light rail system and drainage: 30 to 50% Light rail stations: 70% Result: reduced cost risk during construction

Core Drilling to Characterize Subsurface Soils:

ReTRAC project: Nevada Core drilling on 100 foot centers along railroad tracks for major railroad grade separation project. Improved characterization of soils for trenches and retaining walls. Addressed constructability of alternatives during NEPA process. Allowed project to proceed on schedule in busy downtown urban environment.

Preliminary Design Interactive Example:

Alternatives & Preliminary Design
Project Limit Floodplains Project Limit Industrial Site

Common Alignment

Neighborhood

Common Alignment

Route 101

Historic Site Route 201

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Preliminary Design: What We Cannot Do!

Final Design Activities that can NOT be advanced prior to NEPA completion:
Any design activities that are not preliminary design. This includes the preparation of final construction plans and detailed specifications for the performance of construction work.

The activities in the definition of final design at 23 CFR 636.103 are considered to be final design. They include final plans, project site plan, final quantities, and final engineers estimate for construction.
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How Do We Determine What Activities are Allowed ?

What will guide me on implementing this Initiative? Preliminary Design Directive: On October 1, 2010, the FHWA issued FHWA Order 6640.1A. This Directive establishes FHWAs policy regarding the permissible project related activities that may be advanced prior to the conclusion of the NEPA process regardless whether the activity is necessary to complete the NEPA process or to obtain other environmental permits or approvals. Directive relies on, and clarifies, existing definitions at 23 CFR 636.103 31

How Do We Determine What Activities are Allowed ?

What will be FHWAs policy regarding which project activities may be advanced prior to a NEPA decision? State DOTs and other contracting agencies may perform preliminary design activities prior to a NEPA decision regardless of the project delivery mechanism that is used. The definitions of preliminary design and final design found at 23 CFR 636.103, and clarified in the Directive, shall be relied upon by the FHWA regardless of the project delivery mechanism used.
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How Do We Determine What Activities are Allowed ?

Slide 1 of 2:

Division Administrators and State Chief Engineers must focus on whether the level of activities advanced prior to the NEPA decision goes too far in focusing on a particular alternative. In making this determination, consider and balance any relevant factors, including;

The actual bias on the part of the decision maker that the proposed preliminary design activity to be advanced will create with respect to any alternative under consideration; The perception of bias on the part of the community at large with respect to the advancement of the proposed preliminary design activity;
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How Do We Determine What Activities are Allowed ?

Slide 2 of 2:

The extent to which the proposed preliminary design activity is specific to only one alternative under consideration; The degree of preliminary design activities advanced for any given alternative relative to other alternatives under consideration; The estimated cost of the proposed preliminary design activity standing alone is substantial; and The degree to which the proposed preliminary design activity relates to any specific point of controversy regarding an alternative under consideration.
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How Do We Determine What Activities are Allowed ?

In all cases, regardless of what activities are advanced prior to a NEPA decision, FHWA must exercise independent judgment and retain the discretion to approve any reasonable alternative under consideration.

How Do We Determine What Activities are Allowed ?

What safeguards should be taken to ensure the FHWA does not authorize final design activities? Slide 1 of 2 In project agreements in which Federal funds are authorized for preliminary engineering, a notation should be made that Federal funds are authorized only for preliminary design. The execution or modification of a project agreement to authorize final design for design-bid-build projects shall not occur until after the NEPA decision.
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How Do We Determine What Activities are Allowed ?

Slide 2 of 2:

For design-build contracting, a separate notice to proceed is required for final design and construction by 23 CFR 636.109 and 636.302.

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What Do States Need to Do Now to Implement the Initiative?

Upon issuance of the Preliminary Design Directive, Division Administrators and State Chief Engineers shall work together to develop State specific preliminary design policies for:
Direct oversight projects; State administered projects; Local public agency projects; and Design-bid-build, design-build, and other project delivery methods that may be used in that State.

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What Do States Need to Do Now to Implement the Initiative?

Division offices & State DOTs should begin considering how they will take advantage of the flexibility to pursue further preliminary design activities prior to the completion of the NEPA process. Our Goal: 50% of State DOTs will have adopted the definition of Preliminary Design in project development policies, procedures or recommended practices for Federal-Aid projects. For States which have adopted and implemented the Directive, 50% of the Federal-Aid projects initiated after adoption will have utilized flexibility by December 30, 2011.
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Preliminary Design: Resources

FHWA Order 6640.1A. One Page Briefing Successful Practices (Case Studies) Pending References :
23 CFR 636.103 (Preliminary & Final Design definitions) 23 CFR Part 771 40 CFR Parts 1500-1508 40 CFR 1506.1(a)-(b)
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Preliminary Design - Contacts

Primary contact is your local Division Office and their EDC Coordinator. After coordinating with your Division office, HQ and Resource Center contacts include: Preliminary Design Team Leads:
Harold Peaks: Jon Obenberger: Lamar Smith: Michael Harkins: Team Leader Project Development Team (HEP) (202) 366-1598 Harold.peaks@dot.gov Team Leader Preconstruction Group (HIF) (202) 366-2221 Jon.obenberger@dot.gov Manager of the Env. Technical Services Team (RC) (720) 963-3210 Lamar.Smith@dot.gov Attorney (HCC) (202) 366-4928 Michael.harkins@dot.gov
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Preliminary Design - Contacts

Preliminary Design Team Members:
Neel Vanikar HEPE (202) 366-2068 neel.vanikar@dot.gov Kreig Chip Larson HEPE (202) 366-2056 Kreig.larson@dot.gov Michael Matzke HIF (202) 366-4658 Michael.matzke@dot.gov David Gamble - RC (410) 962-0982 dave.gamble@dot.gov Mary Ann Rondinella - RC (720) 963-3207 maryann.rondinella@dot.gov R. Keith Moore - HEPE (202) 366-0524 keith.moore@dot.gov
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Preliminary Design - Questions

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Questions on the Preliminary Design Initiative:

What are your reactions to this initiative proposal?
What are the pros and cons? What would you change or modify in the approach? Can you foresee how this initiative might improve the process?

Are there particular barriers to this initiative being successful? What additional information do you need to help you make this initiative a success? How should all of us best go about getting our staff to participate?