Executive Order 13274

Purpose and Need Work Group

Baseline Report

Revised Draft

March 15, 2005

ICF Consulting conducted the research and prepared this draft report. The report was reviewed by the Purpose and Need Work Group and incorporates its comments and recommendations to the Task Force.

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Acknowledgements

This report was prepared under the direction of the Executive Order 13274 Purpose and Need Work Group, whose membership included the following individuals.

Pamela Stephenson	Federal Highway Administration, Work Group Chair
Dinah Bear	Council on Environmental Quality
April Marchese	Federal Highway Administration
Joseph Ossi	Federal Transit Administration
Christopher VanWyk	Federal Transit Administration
Lynne Pickard	Federal Aviation Administration
Michon Washington	Federal Aviation Administration
Joseph Burns	US Fish and Wildlife Service
Ann Campbell	Environmental Protection Agency
Tonya Code	Environmental Protection Agency
James Gavin	Environmental Protection Agency
Jennifer Moyer	US Army Corps of Engineers
Charles Kirk Stark	US Army Corps of Engineers
Ellen G LaFayette	US Forest Service

The report was prepared by the following ICF Consulting staff:

Alan Summerville	Senior Vice President
Michael Grant	Project Manager
Brantley Fry	Senior Associate
Todd Stribley	Senior Associate
Neil Sullivan	Senior Associate

Executive Summary
1. Purpose of Report
2. How Laws and Regulations Address Purpose and Need Statements
3. Challenges Associated with Developing Purpose and Need Statements
4. Existing Guidance and Training on Purpose and Need Statements
5. Recommendations for Next Steps
Appendix A: Laws and Implementing Regulations, and Executive Orders
Appendix B: Agency Interview Discussion Questions
Appendix C: List of EISs Reviewed
Appendix D: Case Law
Appendix E: Sample Purpose and Need Statements
Appendix F: Guidance Documents
Appendix G: Training Courses

Executive Summary

This report presents baseline information developed for the Purpose and Need Work Group to report to the Task Force established under the Executive Order (EO) 13274, Environmental Stewardship and Transportation Infrastructure Project Review. At the conclusion of the report are the Work Group's recommendations for next steps for Task Force consideration.

The identification and documentation of the purpose and need for a proposed transportation infrastructure project are important components of environmental review under the National Environmental Policy Act (NEPA) and under certain other environmental laws and regulations. This report is intended to provide an understanding of requirements and resources relevant to purpose and need statements and of the associated challenges. While the great majority of transportation projects do not experience problems related to purpose and need, there have been sufficient instances of problems and project delays attributed to purpose and need to frustrate applicants and agencies, and to warrant further examination and corrective action.

The report presents a summary of laws, regulations, and executive orders that are related to purpose and need for transportation projects, as a foundation for understanding the roles and responsibilities of Federal agencies and how agencies interact on purpose and need. The report identifies challenges and impediments that may result in agency disagreements and project delays, based on a review of a sample of Environmental Impact Statements (EIS), analysis of case law, and discussions with agency practitioners. The report also identifies attributes of good purpose and need statements and opportunities for improvements. Finally, the report contains information on guidance documents and selected training programs, including an assessment of guidance and training needs.

Laws, Regulations, and Executive Orders

Laws, executive orders, and regulations do not appear to conflict or call for different approaches to the formulation or content of purpose and need statements. The 404(b)(1) Guidelines issued under Section 404 of the Clean Water Act, for permits by the U.S. Army Corps of Engineers for discharges of dredged or fill material into waters of the United States, including wetlands, is the only requirement outside of NEPA that specifically calls for the development of a purpose statement. Other laws, regulations, and executive orders identified in the report may indirectly affect purpose and need. Section 4(f) of the Department of Transportation Act, for example, imposes a substantive duty to determine there is no feasible and prudent alternative, which implicitly requires a robust project purpose and need to justify the determination.

Various agency responsibilities play a role in the Federal scrutiny applied to purpose and need. Under Section 309 of the Clean Air Act, the U.S. Environmental Protection Agency (EPA) has the obligation to review and publicly comment on the environmental impacts of major Federal actions, and EPA's implementing guidance includes EPA's review of the technical adequacy and accuracy of the methodology used to demonstrate the need for a project in cases where this affects the identification of reasonable and feasible alternatives. Other instances arise due to agency statutory responsibilities for protecting particular resources. Resource agencies take a harder look to be satisfied that a project's purpose and need provides a reasonable justification for potential adverse effects on protected resources.

While impediments to purpose and need statements and the disagreements that sometimes arise among Federal agencies do not appear to stem from differences or conflicts written into the underlying laws, multiple laws do assign to different Federal agencies environmental review and permitting responsibilities that either explicitly or implicitly include purpose and need considerations. In turn, these multiple agency responsibilities sometimes result in different agency interpretations of how a purpose and need statement should be scoped and written to meet statutory requirements, what the statement should include, and whether the statement for a particular project is justified and described appropriately. Interlocking Federal agency responsibilities can frustrate agencies and applicants alike when conflicting views of purpose and need for an individual transportation project cause long delays, extra work, and interagency disagreements that are aired in a contentious public arena.

Challenges Associated with Developing Purpose and Need Statements

The challenges identified in the baseline report are categorized under three subheadings:

1) crafting a purpose and need statement, 2) purpose and need integration/coordination with other laws, and 3) economic development as part of the transportation purpose and need.

Crafting a Purpose and Need Statement

Issues that sometimes arise relate to the appropriate complexity and length of a purpose and need statement, the proper scope of purpose and need (e.g., a narrow statement versus a broad need statement), and the justification supporting purpose and need.

A good purpose and need statement should be concise, easy to read, readily understandable, and focus on the essential needs and goals of the project which generally relate to transportation issues (e.g., mobility, capacity, safety, reliability). It should be supported by data justifying the need and should focus on the transportation problem without being so narrowly focused that it constrains the range of reasonable alternatives. Overly long and rambling statements muddy the purpose and need and confuse reviewers. They may also heighten suspicion that wordiness masks a weak project purpose and need.

Transportation agencies and resource agencies may add environmental elements to purpose and need statements as desired goals or benefits of the proposed project, without making them part of the stated purpose. While environmental protection in general or protection of a particular resource is important for any project and is the reason environmental reviews are required, an environmental protection goal should not be part of the purpose and need statement unless it is a primary purpose of a transportation project (e.g., FAA has authority to approve grants for airport noise projects, so noise mitigation would be a primary purpose in such a case).

The scope of the purpose and need statement is important. Resource agencies have expressed concern that transportation agencies are too narrowly focused on the proposed project solution and define purpose and need accordingly. Broader purpose and need statements might allow for a wider range of reasonable alternatives. For example, it makes a difference if the need is for improved ground transportation from Point A to Point B, instead of the more specific need for a highway. Similar examples can be provided for major airport infrastructure projects. On the other hand, transportation agencies find that very broad definitions of purpose and need, as well as wide-ranging alternatives, are usually not within the range of what is reasonable, feasible, or prudent. At the same time, broader scope should not be neglected where it is appropriate. There is fertile ground for improved interagency guidance on the proper scoping of purpose and need, including when statements are too narrow and when broader statements are unreasonable.

Purpose and Need Integration/Coordination with Other Laws

FHWA and FTA have issued a joint legal memorandum and guidance (February 2005) that present how the transportation planning process can be linked with the NEPA decision making process, especially for purpose and need statements and alternative development. The transportation planning process and the NEPA process work in harmony when the planning process provides the basis or foundation for the purpose and need statement in a NEPA document. To the extent regional or systems-level analyses and choices in the transportation planning process help to form the purpose and need statement for a NEPA document, such planning products should be given great weight by FHWA and FTA, consistent with Congressional and Court direction to respect local sovereignty in planning.

In addition to NEPA, DOT and other Federal agencies are responsible for complying with other environmental laws that have requirements influencing purpose and need. These include, but are not limited to, the Clean Water Act, Clean Air Act, Endangered Species Act, etc. Interagency disagreements over purpose and need can occur as agencies view projects through the lens of their particular interests and strive to comply with multiple laws as individually interpreted by the different agencies. Questions arise about the appropriate level of discretion for a lead agency, the underlying need for a proposed action, and the appropriate level of review by and authority of resource agencies. The most common disagreements are between DOT agencies and the resource agencies that have jurisdiction over a potentially affected resource.

The deference due to the lead agency and the responsibility of the lead agency in the development of project purpose and need has received recent attention. Vision 100—Century of Aviation Reauthorization Act, signed into law in December 2003, directly addresses this issue by establishing a coordinated environmental review process for airport capacity enhancement projects and designated aviation safety and security projects. Notwithstanding any other provision of law, agencies participating in such a coordinated environmental review process shall be bound by the project purpose and need as defined by the Secretary of Transportation with respect to any environmental review, analysis, opinion, permit, license, or approval.

In 2003, the Council on Environmental Quality (CEQ) in a letter exchange with DOT addressed agency deference for the NEPA process. According to the 2003 letter from CEQ's James Connaughton to Secretary Mineta, "Joint lead or cooperating agencies should afford substantial deference to the DOT agency's articulation of purpose and need." FTA/FHWA guidance issued in 2003 expands on some of the points made in the letter from CEQ by stating that other Federal agencies should only raise questions regarding DOT's purpose and need statements when those questions relate to substantive or procedural problems important to that agency's independent legal responsibilities.

However, there still remain outstanding questions about the practical application of deference as agencies carry out their environmental review and permit responsibilities at the project level. Interagency guidance offering more practical details on deference, perhaps using case study examples, would be useful.

The report cites the NEPA/404 merger process as an example of how the NEPA environmental review process can be consolidated with another requirement, obtaining a permit for discharge of dredged or fill material into waters of the U.S., under Section 404 of the Clean Water Act. This has proved to be a useful and fairly efficient approach for many highway projects, where Section 404 purpose and need issues are most commonly encountered. However, experience in some states is mixed and there continues to be rough spots. Under NEPA, a purpose and need statement should be written broadly enough to support a reasonable range of alternatives. Under Section 404, a project purpose statement must support an evaluation of "practicable" alternatives. "Reasonable" and "practicable" are defined by the regulations implementing NEPA and Section 404, respectively. Ideally, to streamline the environmental review process, the alternatives considered under NEPA would satisfy Section 404 requirements. In practice, this does not always happen, for example, because the NEPA project purpose and need statement, from which project alternatives are identified, is developed before the Section 404 permitting process is initiated. As a result, the alternatives considered under NEPA may be different than those considered during the Section 404 environmental review process. Problems arise when the least environmentally damaging practicable alternative (LEDPA) to the aquatic environment, as identified under Section 404, was not included in the NEPA evaluation of alternatives. While merger agreements get all decision makers to the table early, which is helpful in understanding the overall purpose and need for the transportation project, it is also important to identify aquatic resources involvement as early as possible. This allows for a Section 404 project purpose statement to be identified in a timely fashion that results in an analysis of alternatives complementary to the NEPA analysis.

An issue worthy of further exploration is the extent to which differences in the application of NEPA and Section 404 by Federal agencies actually drive differences in approaches to purpose and need. It can be problematic for a project, as well as confusing and frustrating for an applicant, if a Section 404 project purpose is different from the transportation purpose of the lead agency and leads to different alternatives that may not address the key transportation needs.

Economic Development as part of the Transportation Purpose and Need

Although not a common occurrence, the inclusion of economic development as a sole purpose and need can be controversial and raise uncertainties for both the transportation agency and resource agencies. In these cases, the primary issue is the question of whether or not economic development is an appropriate justification for transportation projects. It is not a primary or sole justification used for airport or transit infrastructure projects. Other issues involve the range of alternatives (especially non-transportation), and the degree of examination of indirect impacts associated with secondary development. Conflicts may also arise when economic development is considered as part of a project purpose and need and further examination of these cases is warranted.

Guidance and Training

While various individual agency guidance materials and a number of training courses include purpose and need, they do not specifically address how to manage the cross-agency purpose and need concerns identified by agencies and applicants, and described in this baseline report. Individual agency interpretative guidance on purpose and need, in fact, appears to be a contributing factor to a stovepipe approach that can lead to disconnects and disagreements among Federal agencies.

Recommendations

Based on the information compiled in this baseline report and building upon the existing guidance issued by CEQ in 2003 and Vision 100 legislation as appropriate, the Purpose and Need Work Group recommend additional work in order of priority that should be endorsed and promoted by the Task Force agencies.

1) That additional investigation should focus on the extent to which Federal agency interpretations and applications of laws and other requirements within their jurisdiction are causing purpose and need conflicts, the key drivers of the conflicts (e.g., different approaches to purpose and need under NEPA and Section 404), and options for avoiding or resolving conflicts. Case studies of previous projects that experienced substantial problems may be used to identify areas that need particular attention. Case studies of complex or controversial projects that successfully avoided conflicts at purpose and need may also illustrate good practices of where the process worked well.

2) That additional guidance should be developed to clarify the roles of lead transportation agencies and other engaged agencies in achieving purpose and need statements for transportation projects that give appropriate deference to transportation agencies so that projects are not subjected to long delays as agencies grapple with differences. When dealing with deference, it is important to maintain the integrity of other agencies' responsibilities and to comply with all applicable environmental requirements. Case studies may also be useful for this task.

3) That the Work Group begin to develop interagency guidance addressing the need for responsibly scoped, concise, and clearly written purpose and need statements. The guidance should include examples of appropriate and well-crafted purpose and need statements. The guidance should also provide advice on what special considerations apply, if any, in two circumstances: 1) if economic development is the sole purpose and need for a project; and 2) when economic development is considered as part of the purpose and need for a project.

1. Purpose of Report

This report presents baseline information developed for the Purpose and Need Work Group established under Executive Order (EO) 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews. This document is designed for the EO Task Force and for practitioners in transportation and resource agencies to provide a baseline understanding of requirements and resources relevant to purpose and need statements, challenges being faced that sometimes lead to project delays, and mechanisms to improve the development of purpose and need statements. Drawing on the results of literature reviews, reviews of environmental impact statements (EISs), and discussions with over 40 practitioners (federal transportation agencies, federal resource agencies, state departments of transportation, metropolitan planning organizations, and consultants), the report describes laws and regulations, case law, guidance documents, and selected training available relevant to purpose and need. It is organized in three main sections:

How Laws and Regulations Address Purpose and Need Statements (Section 2) - This section presents a summary of laws, regulations, and executive orders as they relate to project purpose and need for transportation projects, as a basis for understanding the roles and responsibilities of Federal agencies in the context of these requirements.
Challenges Associated with Developing Purpose and Need Statements (Section 3) - This section provides a summary of key issues and impediments faced when developing purpose and need statements, based on a review of EISs, analysis of case law, and discussions with practitioners. This section is organized around three issues identified in the Purpose and Need Work Group's Work Plan: 1) crafting a purpose and need statement; 2) purpose and need integration/coordination with other laws, and 3) economic development as part of the purpose and need. It identifies attributes of good purpose and need statements and opportunities to improve development of such statements.
Guidance Materials and Training Programs (Section 4) - This section contains information on guidance documents and selected training programs relevant to purpose and need. It also includes an assessment of guidance and training needs, based on discussions with staff from Federal, State, and local agencies.

The report concludes with Recommended Next Steps (Section 5) for Task Force review.

2. How Laws and Regulations Address Purpose and Need Statements

The Council of Environmental Quality's (CEQ) regulations for implementing NEPA (40 CFR 1502.13) require a brief discussion of "purpose and need" of a proposed action in order to provide context and understanding of alternatives developed. The regulations state that the purpose and need statement "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." The purpose and need statement is essentially the foundation of the NEPA decision-making process. It provides the rationale and justification for undertaking a major federal action. It also affects the range of alternatives to be studied, and ultimately, the selected alternative. The purpose and need and the alternatives are weighed against potential environmental impacts in agency environmental reviews and decision-making processes.

Several laws, regulations, and Executive Orders directly or indirectly address the purpose and need statement. A well-crafted and justified purpose and need statement is needed in order to assess the adequacy of alternatives being considered, which is vital to meeting legal requirements.

The DOT is the "lead federal agency" under NEPA for transportation projects that it funds or approves, and as such, has the responsibility to define the purpose and need. At the same time, DOT and other federal agencies may have responsibilities under other laws and regulations that relate to the purpose and need statement.

Having a well-justified purpose and need is vital to meeting the requirements of several laws and regulations, including Section 404 of the Clean Water Act, Section 4(f) (49 U.S.C. 303), Section 309 of the Clean Air Act, and Section 106 of the National Historic Preservation Act. Although the development of a purpose and need statement is not specifically addressed in some of these law and regulations, several of them have requirements regarding the consideration of alternatives, which in turn, requires a well-defined project purpose and need statement to frame the development of alternatives. Without a well-defined and justified purpose and need, it will be difficult to determine which alternatives are reasonable, prudent and practicable, and it may be impossible to dismiss the no-build alternative. Appendix A includes a summary description of all laws, regulations, and executive orders identified that that relate to the development of purpose and need statements. These include the following:

Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers is responsible for defining the purpose of the project in consideration of issuance of a permit for discharge of dredged or fill material into waters of the United States, including wetlands. The project purpose is used for evaluating practicable alternatives under the Section 404(b)(1) Guidelines, the substantive environmental criteria used in evaluating such discharges. The Section 404(b)(1) Guidelines requires the Corps to prepare the project purpose statement; determine if there are alternatives to first avoid, and then minimize adverse impacts to aquatic resources; and select the least environmentally damaging practicable alternative (LEDPA). The Corps permit regulations (33 CFR 320-331) state that, as a general matter, the Corps assumes that proposed projects are economically viable and that there is need for a project. However, the regulations also state that the Corps may question the need for the project from the public interest perspective, if circumstances warrant it. Under its CWA Section 404 authorities, EPA is responsible for the development and interpretation of the environmental criteria used by the Corps in evaluating permit applications and maintains a review and comment role in the issuance of Section 404 permits.
Under Section 4(f), DOT may not approve the use of land from a significant publicly owned public park, recreation area, or wildlife and waterfowl refuge, or any significant historic site unless a determination is made that: (i) There is no feasible and prudent alternative to the use of land from the property; and (ii) The action includes all possible planning to minimize harm to the property resulting from such use.
Under Section 309 of the Clean Air Act, EPA has the obligation to review and publicly comment on the environmental impacts of major federal actions including actions that are the subject of EISs. According to EPA guidance on its review responsibilities, as part of its review, EPA may comment on the technical adequacy and accuracy of the methodology used to demonstrate the need of the project in cases where this affects the identification of reasonable and feasible alternatives.
Under Section 106 Regulations of the National Historic Preservation Act, SHPO/THPOs, Indian tribes, and Native Hawaiian organizations, other consulting parties, and organizations and individuals who may be concerned with the possible effects of an agency action on historic properties should be prepared to consult with agencies early in the NEPA process, when the purpose of and need for the proposed action as well as the widest possible range of alternatives are under consideration. (36 CFR 800.8(a)(2))
Executive Order 11990 on Wetlands directs agencies to avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative.
Executive Order 11988, Floodplain Management, as amended by Executive Order 12148, directs agencies, in furtherance of NEPA, the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, to avoid to the extent possible the long and short term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative.

The various laws, regulations, and executive orders do not appear to conflict with NEPA in regard to how purpose and need statements should be written or what content should be included in order to comply with legal requirements. The Section 404(b)(1) Guidelines are the only regulations outside of NEPA's implementing regulations that specifically call for development of a purpose statement. In accordance with the Application for Department of the Army Permit (33 CFR 325), block 19, Project Purpose, and its associated instructions, the applicant must "Describe the purpose and need for the proposed project. What it will be used for and why? Also include a brief description of any related activities to be developed as the result of the proposed project. Give the approximate dates you plan to begin and complete all work." All the other laws, regulations, or executive orders primarily relate to examination and selection of alternatives for the project, which in turn, must rely on a valid and supported purpose and need statement.

As a result, it appears that any impediments to developing purpose and need statements, and disagreements that sometimes arise among Federal agencies do not stem from differences or conflicts in the underlying laws. However, multiple laws do assign to different Federal agencies environmental review and permitting responsibilities that either explicitly or implicitly include purpose and need considerations. In turn, these multiple agency responsibilities sometimes result in different agency interpretations of how a purpose and need statement should be scoped and written to meet statutory requirements, what the statement should include, and whether the statement for a particular project is justified and described appropriately. Interlocking Federal agency responsibilities can frustrate agencies and applicants alike when conflicting views of purpose and need for an individual transportation project cause long delays, extra work, and interagency disagreements that are aired in a contentious public arena.

Disagreements sometimes engender disputes over the roles and responsibilities of resource agencies with respect to the purpose and need statement, and to what extent they should defer to the lead transportation agency. There have been recent efforts both within the executive and legislative branch to address this issue. In 2003, CEQ issued a letter addressing the deference that should be afforded by joint lead or cooperating agencies to DOT on transportation projects in the NEPA process. Joint FTA/FHWA guidance, also issued in 2003, expands on some of the points in the CEQ letter.

Vision 100—Century of Aviation Reauthorization Act, signed into law in December 2003, directly addresses this issue by establishing a coordinated environmental review process for airport capacity enhancement projects and designated aviation safety and security projects. Notwithstanding any other provision of law, agencies participating in such a coordinated environmental review process shall be bound by the project purpose and need as defined by the Secretary of Transportation with respect to any environmental review, analysis, opinion, permit, license, or approval.

There still remain outstanding questions about the practical application of deference as agencies carry out their environmental responsibilities at the project level.

3. Challenges Associated with Developing Purpose and Need Statements

The Purpose and Need Work Group identified three issues as potential sources of interagency disagreement and delay in the environmental review process related to purpose and need:

Crafting a Purpose and Need Statement - Questions often arise regarding what information and justification should be included in a purpose and need statement, and how broad or narrow the scope should be in order to satisfy the requirements of the NEPA and other laws.
Purpose and Need Integration/Coordination With Other Laws. As noted earlier, in addition to NEPA, DOT is responsible for complying with environmental laws that have particular requirements governing purpose/need and alternatives, and other Federal agencies also have responsibilities under NEPA and other environmental laws that bear on transportation projects. Agency disagreements over project purpose and need can result in disparate judgments on reasonable alternatives, and different agency judgments on alternatives that need to be considered to comply with applicable laws can raise basic questions on project purpose and need.
Economic Development as part of the Transportation Purpose and Need. There is confusion over the identification of economic development as part of the purpose and need for a transportation project.

This section discusses each of these issues, and other related observations regarding the state of the practice related to purpose and need statements, drawing from a review of case law, discussions with NEPA practitioners from both DOT and resource agencies (see Appendix B for a list of discussion questions), and through a review of transportation related EISs (see Appendix C for a list of EISs reviewed). It discusses common characteristics of purpose and need statements and characteristics that transportation and resource agency staff agree make for a good purpose and need statement. It also addresses the NEPA/404 merger process, and how this has worked to resolve or create challenges in regard to developing purpose and need statements.

Throughout this discussion, it is important to note that while DOT and resource agency staff indicated that they do encounter impediments on some projects, many of the staff members stated that purpose and need statements are not a source of project delay for most projects. The projects that do encounter impediments tend to be large and controversial, and may have notable effects on wetlands, threatened or endangered species, or land use. In general, FTA projects tend to have fewer interagency disagreements associated with purpose and need statements than FAA and FHWA projects, likely because transit projects typically occur in built environments with comparatively less impact on regulated natural resources (e.g., wetlands or threatened or endangered species) than highway or aviation projects, and tend to face less controversy regarding evaluation of alternatives compared to other transportation projects.

3.1 Crafting a Purpose and Need Statement

Questions often arise regarding what information should be included in a purpose and need statement in order to satisfy the requirements of NEPA and other laws. Issues that sometimes arise relate to: (1) the appropriate complexity and length of a purpose and need statement, (2) the scope of the statement (e.g., a narrow statement versus a broad statement), and (3) the justification supporting the purpose and need, among other issues.

In addition to DOT, purpose and need statements for transportation purposes are shaped by the State departments of transportation (State DOTs), metropolitan planning organizations (MPOs), and transit and airport authorities that propose projects. For highway projects, FHWA and the State DOTs tend to work as a team in preparing the purpose and need statement, with the State DOT usually crafting the statement and FHWA reviewing and advising on the statement. The level of involvement of the FHWA staff varies by project. For airport projects, FAA is a granting agency that reviews the purpose and need statement provided by an applicant (i.e., sponsor of a public use airport) in comparison to FAA's forecast of aviation need. FAA must be satisfied and take responsibility for the purpose and need statement in the NEPA document.

Some uncertainties or problems that have been encountered in the development of purpose and need statements may relate to poor understanding of characteristics of good purpose and need statements by project sponsors or others. In other cases, there are interagency disagreements about how the purpose and need is defined.

3.1.1 Characteristics of Good Purpose and Need Statements

Practitioners generally agree on characteristics that make a good purpose and need statement:

The statement should be concise, easy-to-read, and readily understandable.
It should focus on essential needs and goals for the project, which generally relate to transportation issues (e.g., mobility, safety, reliability); it should be careful to delineate other desirable elements (e.g., environmental protection, scenic improvements) as separate from the purpose and need.
It should be supported by data that justifies the need. The data may be included in a discussion of background, as an appendix or on file in the administrative record.
It should focus on the problems that need to be addressed, and for which a proposed project is being considered, (e.g., the purpose is to improve safety along a highway segment that has a high accident rate), and should not be written in a way that focuses on the solution or too narrowly constrains the range of alternatives (e.g., the purpose is to widen the highway).

Although these characteristics seem "common sense", purpose and need statements often fall short in some of these areas, particularly regarding the length and complexity of the statement. The discussion below describes some of the common problems encountered and some of the opportunities for improvement.

3.1.2 Appropriate Complexity and Length of a Statement

One of the larger problems with purpose and need statements (and some would say with EISs in general) is their length and complexity. Many purpose and need statements for proposed transportation projects are over ten pages long and encompass a wide range of different purposes and needs, making it difficult for the public and resource agencies to discern the core needs motivating the proposed project. Although the purpose and need statement is designed to provide a concise description to the public and decision makers about why the project is being proposed, it often becomes difficult to identify the primary need if a wide range of needs are discussed.

The following is a brief summary of the purpose and need statements from EISs reviewed for this report:

FTA - Of eight EISs reviewed, the purpose and need statements tended to be long (more than 10 pages) with detailed background and historical information.
FAA - Of six EISs reviewed, the purpose and need statements tended to focus on the role of FAA to approve or not approve the proposal brought before the Agency by a project sponsor (e.g., airport authority); the statements focused on safety considerations, airport capacity, airspace constraints, and noise issues associated with the proposals.
FHWA - Of the 17 EISs reviewed, the length of the purpose and need statements varied from 5 to 32 pages. Most of these documents had a brief purpose statement followed by a detailed and much more lengthy need statement.

The general consensus among DOT and resource agency staff members participating in discussions was that the purpose and need statement should be concise, meaning no more than about one page in length, although it could be supported by a discussion of background/context or more detail on the problems being addressed. Recent guidance documents from CEQ and FHWA call for the development of a short statement. According to a letter from James Connaughton of CEQ to DOT Secretary Mineta (May 2003), the purpose and need statement should "typically be only one or two paragraphs long." In its Joint Guidance on Purpose and Need, FHWA and FTA acknowledge, "While a short purpose and need statement may not be possible for a few transportation projects, every effort should be made to develop a concise purpose and need statement that focuses on the primary transportation challenges to be addressed."

Common problems occur when purpose and need statements do not focus on the primary purpose and need for a project and mix secondary goals and objectives with the purpose and need. Some of the FHWA EISs that were reviewed included a discussion of all possible elements that can be considered benefits of the project rather than addressing the main need. Extraneous information can lead to imprecise, long, and confusing purpose and need statements. Such statements are perceived by some resource agencies as not disclosing the underlying need and either purposely or inadvertently clouding the issues that form the basis for the proposed action.

Sometimes jargon and complex language also make the statement difficult to read. Staff charged with writing the purpose and need statement need to know how to write clearly and in simple terms. The statement needs to be written for the general public, and not use overly complex terminology. The CEQ NEPA regulations require agencies to write documents in plain English and make them accessible to the general public. Lengthy and disorganized purpose and need statements hinder both public and resource agency understanding of the need for and purpose of a proposed transportation project. Without a clear understanding of the primary purpose and need, resource agencies will sometimes provide comments on possible alternatives that do not always match the DOT agency's desired range of alternatives based on the primary need.

Sample Structure for Purpose & Need Section of an Environmental Document

Introduction / Background – A short discussion of the context for the project, including location, background on an existing facility;

Purpose – A very clear, concise description of the primary goals the project is expected to attain (usually no more than one or two paragraphs);

Need – A description of the problems or unsatisfactory conditions that currently exist or are expected with the existing facility or project area;

Other Goals and Objectives – A description of desired outcomes that are not central to the purpose and need, but are nonetheless important considerations.

The general consensus among the agency staff members participating in the discussions is that the purpose and need for a project should focus on the primary transportation problem(s) and goal for the project. It should lay out clearly:

1) the "purpose," which states why the project is being proposed and articulates the positive outcomes that are intended;
2) the "need," which describes the key problem or problems that are being addressed.

Typically, the purpose and need statement should be preceded by a background section that provides the context and sets the stage for the purpose and need statement. Such information could include information on the long-range transportation plans that were used to support the purpose and need, background on an existing facility, or the role and authority of the agency.

Following the purpose and need statement, a section on "desirable" outcomes that are not the central purpose can be identified. The discussion of secondary goals and objectives should be distinct from the purpose and need. These attributes should not be used as the main factor in determining which alternatives should be analyzed or carried forward but can be used in order to support selection of a preferred alternative. Staff members suggested that safety, mobility, and capacity should usually be the main purposes of transportation projects, and that clearly identifying the essential needs rather than a long list of desirable attributes would provide for a clear and concise purpose and need statement.

Several examples of muddied purpose and need statements were provided by practitioners. For instance, one State DOT staff person described a project where safety was clearly the primary purpose of a highway improvement project, but the purpose and need was expanded to include other issues. In this case, the facility was in a mountainous area on a roadway with a high rate of crashes and serious fatalities, including conflicts between personal vehicles and 18-wheeler trucks. Based on input from environmental and community groups, the desire for recreational opportunities for hikers and bicyclists in the area also made its way into the purpose and need statement. This created problems because each of the alternatives being developed then included hiker/biker trails, even though incorporating such facilities into the terrain and maintaining the focus on safety would be extremely difficult. Ultimately, the purpose and need was revised to recognize the core need of the project was safety and other aspects fell in the category of "desirable" attributes or objectives.

Another individual described a project to replace a crumbling bridge in the vicinity of a historically important and heavily used state park. Although the primary purpose of the project was clearly to make the bridge safe, preservation of the park also made its way in as part of the purpose and need statement. In this case, it took six months of discussions to reach agreement on the purpose and need, which ultimately included twelve objectives related to preservation of the park. In this case, agency negotiations were perceived as adding delay in a case where the primary purpose and need was clear and should have been simple to develop.

For certain projects, environmental protection may be the primary purpose. For example, FAA has legislative authority to fund airport noise compatibility projects and certain airport emissions projects. However, for the bulk of transportation projects, most staff across federal agencies agreed that although environmental protection and community enhancement are important goals, these issues should not be a part of the purpose and need statement itself. This approach is supported by guidance documents from Utah and Oregon DOTs that promote inclusion of a goals and objectives section that can include information beyond the core purpose and need.

3.1.3 Scope of the Statement

Disagreements can sometimes arise regarding the scope of the statement and its degree of specificity. This problem sometimes arises if the purpose and need statement is written too narrowly focusing on the solution rather than the problems that the proposed action is designed to address.

Court decisions indicate that the purpose and need for a proposed project cannot be defined in terms so unreasonably narrow that only one alternative would accomplish the goals of the project (City of New York v. U.S. Department of Transportation, 715 F.2d 732 (2^nd Cir 1983), appeal dismissed 465 U.S. 1055 (1984)). In Citizens Against Burlington v. Busey, 938 F.2d 190, 198 (DC Cir 1991), the Court ruled that an agency "may not define the objectives of its action in terms so unreasonably narrow that only one alternative...would accomplish the goals of the agency's action, and the EIS would become a foreordained formality. Nor may any agency frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish these goals and the project would collapse under the weight of the possibilities."

Courts typically defer to agency judgment in defining goals of proposed projects so long as the statement is reasonable. The court in Trout Unlimited v. Morton, 509 F. 2d 1276 (9^th Cir. 1974) found that an agency need not consider all of the possible alternative actions in the environmental analysis; it is only required to look at those that are reasonable in light of the project's stated purpose. In Citizens Against Burlington v. Busey, 938 F.2d 190, 199 (DC Cir 1991), the Court ruled that the decision focused on whether or not to approve an airport plan, and not on the applicant's rational for selecting which airport to expand. The D.C. Circuit stated that "NEPA commands agencies to discuss alternatives to the proposed 'major Federal actions . . . and not to alternatives to the applicant's proposal.'"(See Appendix D for a summary of case law addressing purpose and need.)

In some cases, resource agencies have expressed concern that transportation agencies are too narrowly focused on solutions that address only one mode, or fail to recognize options that do not involve development of infrastructure. For instance, FHWA may be proposing a highway project, but some resource agency staff feel that the project purpose and need statement should be written in a way that allows non-highway infrastructure alternatives, such as consideration of transit, demand management, and improved transportation system management. For example, rather than stating that "the purpose of the proposed project is to expand highway capacity from point A to point B" a broader statement may read "the purpose of the proposed project is to improve mobility of people, goods, and services between point A and point B." Broader statements might allow for alternatives to highway capacity, such as providing enhanced transit services and demand management to improve mobility and reduce congestion, or reducing speed limits to improve safety.

Transportation agency staff acknowledge the difficulty of examining multi-modal alternatives and options that extend beyond infrastructure development. Development of multi-modal alternatives is often challenging or nonproductive due to the obstacles in responding to a transportation demand with an alternate modal solution. The transportation agency view is that very broad definitions of purpose and need, as well as wide-ranging alternatives, are usually not within the range of what is reasonable, feasible, or prudent—but broader scope should not be neglected where it is appropriate. Institutional factors can also play a role, given the modal structure of most transportation authorities and agencies, and the expertise of staff involved in the study. An example of a NEPA document considering multimodal alternatives is a Federal Railroad Administration's EIS that looked at building a high speed rail system through most of California. In this case, the purpose and need statement was written broadly enough to allow for the consideration of alternatives in the EIS that involved a combination of airport and highway expansion to move people between the various locations studied for the rail system. The nature of a high-speed rail system is somewhat unique. Most surface transportation projects come out of a long-range planning process, and the modal option is already determined by the time a project is going through an EIS.

FHWA staff sometimes struggle to resolve issues regarding the proper scope of the purpose and need statement and consideration of broader alternatives with resource agencies. In an attempt to resolve these issues when they involve cooperating agencies, FHWA has consulted with the CEQ on the deference that should be provided to the lead Federal agency in the preparation of the purpose and need statement during the NEPA process. Also, FHWA/FTA encourage the transportation planning process for long range plans to review different modes of transportation and link the various modes of transportation. In some metropolitan areas, the highway agencies are trying to engage the resource agencies in the transportation planning process so that they have earlier input on purpose and need statements.

Similarly, for FAA projects that involve siting new airports or increasing major airport capacity, resource agencies sometimes perceive that FAA purpose and need statements are too narrowly focused. They would like to see statements that allow for a broader range of alternatives, such as expansion of a different airport or alternate airport locations. However, FAA's view is that far-reaching alternatives are not usually reasonable when evaluated in light of a thorough knowledge of aviation factors, the growing national and international demand for air transportation, practical and environmental expansion constraints of other airports, and the inability of such alternatives to be implemented. For airport projects, the purpose and need and range of alternatives are also constrained by the nature of the mode (i.e., alternative airports are extremely difficult to locate and to finance) and the lack of alternative project applicants, which are generally local airport authorities and air service providers. FAA conducts discussions to educate FAA project staff of the concerns of the resource agencies, as well as to educate the staff of the resource agencies of the aviation factors and extent of authority of FAA.

3.1.4 Justification Supporting the Purpose and Need

Data to support the stated need for a project is important in order to justify the need and ensure greater interagency and public understanding of why the project is being proposed. The inclusion of vague or suspect information into a purpose and need statement and the lack of data were identified as deficiencies that sometimes lead to interagency disagreement and/or project delays. As an example, one FHWA staff person identified a project where safety was initially identified as a project purpose, but the accident data did not support the need. As a result, the statement was revised to focus on economic development.

One point of disagreement that sometimes occurs regarding justification for a purpose and need statement is the use of local plans and zoning. Resource agencies in some cases are uncomfortable when DOT agencies use these documents as justification for a project's need since a jurisdiction may have re-zoned an area to make way for and support future development that is contingent on a highway project. Therefore, using the local planning documents to support the need for a project may create a self-fulfilling prophesy. In such cases, the resource agencies may note that it was the highway project that caused the rezoning or expected development. Transportation agencies, on the other hand, feel that they must rely on the local land use plans as a baseline for growth that is expected or desired for a region.

Aviation forecasting data is usually an important input into demonstrating the need for an airport project. For FAA projects, resource agency staff indicated that they sometimes question whether FAA performs its own analysis of the forecast data provided by an applicant, as such data are often the basis for the purpose and need statement. FAA staff indicated that they do independently analyze the data provided by an applicant, and a review of airport EISs found that FAA typically includes an extensive background discussion within the purpose and need section that clarifies the role, authority, and procedure implemented by FAA in preparing an EIS, which includes a review of planning and forecast data provided by an applicant in comparison with FAA's own data. FAA performs additional analysis, as necessary to be satisfied that the underlying support for the purpose and need of a proposed project is sound. In cases where FAA and the project sponsor disagree on the forecast data that underlies the need for a project, the difference of opinion is normally resolved based on further analysis. Both the FAA and sponsor positions may be presented in the EIS. In a few rare cases where FAA did not find sufficient aviation need to support a grant and there were no environmental or other reasons to prohibit the project, FAA, approved the airport layout plan to allow the sponsor to implement the project with its own funds, but did not commit Federal financial resources to implement the project.

3.1.5 Relationship to Transportation Planning Process

FHWA and FTA have issued a joint legal memorandum and guidance (February 2005) that present how the transportation planning process can be linked with the NEPA decision making process. Most of the remainder of this section is excerpted from the legal memorandum from D.J. Gribbin, Chief Counsel of FHWA to Cindy Burbank and David Vossolo.

The transportation planning process and the NEPA process work in harmony when the planning process provides the basis or foundation for the purpose and need statement in a NEPA document. To the extent regional or systems-level analyses and choices in the transportation planning process help to form the purpose and need statement for a NEPA document, such planning products should be given great weight by FHWA and FTA, consistent with Congressional and Court direction to respect local sovereignty in planning.

The transportation planning process required by 23 U.S.C. 134 and 135 and 49 U.S.C. 5303-5306 sets the stage for future development of transportation projects. As part of the transportation planning process, States and local metropolitan planning organizations (MPOs) must develop long-range transportation plans to address projected transportation needs. In addition, they must create transportation improvement programs (TIPs or STIPs), which identify a list of priority projects to be carried out in the next three years to implement the plan. To receive Federal funding, transportation projects must come from a TIP or STIP. As a result, much of the data and decision making undertaken by state and local officials during the planning process carry forward into the project development activities that follow the TIP or STIP. This means that the planning process and the environmental assessment required during project development by the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4231 et seq.) should work in tandem, with the results of the transportation planning process feeding into the NEPA process. Congress has put great emphasis on the transportation planning process for shaping transportation decisions, and has retained and refined that emphasis in surface transportation law over decades.

Transportation agency staff and others indicated that ideally, the purpose and need for highway and transit projects should come out of the long-range transportation planning process. That is the point at which systemwide needs are analyzed and projects are moved forward for programming. In practice, though, the environmental analyses produced during the NEPA process are sometimes disconnected from the analyses used to prepare transportation plans, transportation improvement programs, and supporting corridor or subarea studies. Analyses and decisions occurring during transportation planning can be ignored or redone in the NEPA process, resulting in a duplication of work and delays in implementation of transportation projects. However, transportation practitioners acknowledge that the hand off between planning and project development is not often done well and resource agencies may not accept planning decisions and analysis for use in NEPA.

The Major Investment Study (MIS) process was supposed to help create the linkage between long-range planning and project development by requiring an MIS study to be conducted as part of the metropolitan planning process. The MIS focused on a single major investment or corridor and involved identification of a "locally preferred alternative." In practice, however, when an MIS was conducted prior to NEPA, the results often did not transfer directly to the NEPA document, and when the MIS was conducted during the NEPA process, little value was added. As a result, the MIS requirement was eliminated by Congress in TEA-21.

For studies, analyses or conclusions from the transportation planning process to be used in the NEPA process, they must meet certain standards established by NEPA. This is because the information and products coming from the planning process must be sufficiently comprehensive that the Federal government may reasonably rely upon them in its NEPA analysis and documentation. Transportation planning processes vary greatly from locality to locality. Some transportation planning processes will already meet these standards, while others might need some modification to do so. The purpose and need statement in a NEPA document is where the planning process and the NEPA process most clearly intersect. A sound planning process is a primary source of the project purpose and need. It is through the planning process that state and local governments determine what the transportation needs of an area are, which of transportation needs they wish to address, and in what time frame they wish to address them. Indeed, that is what the law requires from the planning process and actually prevents projects that do not come from the planning process from going forward.

The purpose and need statement, at a minimum, is a statement of the transportation problem to be solved by the proposed project. It is often presented in two parts: broad goals and objectives, and a description of the transportation conditions (congestion, safety, etc.) underlying the problem. The long-range transportation plan also includes goals and objectives similar to "purpose and need" but on a broader scale, since it typically covers a wider area and spans at least twenty years. These goals and objectives are often identified through extensive public outreach, sometimes called "visioning" or "alternative futures" exercises. The purpose and need statement for a transportation project should be consistent with and based on the goals and objectives developed during the planning process.

Getting input from Federal agencies as transportation goals and objectives are developed during the planning process is advisable and would be consistent with the cooperative relationship envisioned by statute and reinforced by courts. Such participation would give Federal agencies a better insight into the needs and objectives of the locality and would also provide an important opportunity for Federal concerns to be identified and addressed early in the process. These concerns could include issues that might be raised by Federal agencies in considering permit applications for projects designed to implement the transportation plan. However, the responsibility for local planning lies with the metropolitan planning organization or the State, not the Federal government.

In many cases, the goals and objectives in the transportation plan are supported by a needs assessment and problem statement describing current transportation problems to be addressed. Although the goals and objectives in the long-range transportation plan will be broader than what is appropriate for a specific project, they can be the foundation for the purpose and need to be used in a NEPA document. For example, they can be used to generate corridor-level purpose and need statements, during planning, for use in NEPA documents. The challenge is to ensure what comes from the long-range transportation plan is not so general as to generate a range of alternatives that are not responsive to the problem to be solved.

Despite the challenges, there are several examples of innovative approaches to better tie the project purpose and need to work coming out of the planning phase. For example:

In the Transportation Improvement Program (TIP) prepared by the Metropolitan Transportation Commission (MTC), the metropolitan planning organization for the San Francisco Bay Area, there is a one to two sentence purpose and need statement for each project included in the TIP. The statement identifies the primary goals (e.g., safety, capacity), and can be used as a good starting point in developing the purpose and need for a project as part of the NEPA process.
North Carolina DOT developed purpose and need guidelines for developing planning-level purpose and need statements for projects that have received transportation planning assistance by the Statewide Planning (SWP) Branch of NCDOT. This effort aims to more efficiently transition from transportation planning to project planning. Planning level purpose and need statements will only include information that is typically generated during the systems planning process, and will be used to develop project level purpose and need statements that are sufficient to comply with NEPA.
Caltrans' Purpose and Need Team Final Report and Recommendations, dated July 2003, explains how quality purpose and need statements are developed and refined iteratively from planning through project approval. According to the document, broad participation from many functional units as members of the Project Development Team, and data retention and transmission, are key factors in the successful development and refinement of sound purpose and need statements. The purpose and need within a specific corridor is further refined in the Transportation Concept Report, and during the Project Initiation Document (PID) phase, the purpose and need for individual projects is developed based on the earlier system or corridor planning. Project purpose and need takes its final and most refined form during the Project Approval and Environmental Document (PA&ED) phase.
The Idaho Transportation Department (ITD) developed the Idaho Corridor Planning Guidebook (1998), which describes how to conduct transportation corridor planning to integrate transportation planning with land-use planning, and to coordinate local and state transportation planning efforts. Chapter 5 of the guidebook focuses on establishing a statement of purpose and need, and identifying the goals for the corridor, which could then be used to support project purpose and need in the NEPA process.

For FAA projects, the planning process is performed by the airport operator, typically local or regional airport authorities. Airport master plans, which are funded by FAA grants and involve FAA technically, rely heavily on the forecasted operations (flights) at a particular airport or for a particular region. These master plans are used to develop proposed airport expansion projects. Planning on a larger scale may also be undertaken to evaluate the need for the development of a new airport. Planning studies provide information that feeds into project purpose and need statements.

3.1.6 Evolving / Iterative Process for Developing the Statement

Several transportation practitioners described the purpose and need statement as something that can evolve from planning through the project development process, as new information is collected and developed. They noted that the statement does not need to be static. It can be and should be reexamined, and the lead agency should be fluid enough to consider changes to the purpose and need. Several transportation agency staff identified examples of cases where the purpose and need changed as a project matured.

This approach is consistent with FHWA's document, "The Importance of Purpose and Need in Environmental Documents" (September 18, 1990), which states:

The purpose and need section of the project may, and probably should, evolve as information is developed and more is learned about the project and the corridor. For example, assume that the only known information with regard to purpose and need is that additional capacity is needed between points x and y. At the outset, it may appear that commuter traffic to a downtown area is the problem and only this traffic needs to be served. A wide range of alternatives may meet this need. As the studies progress, it may be learned that a shopping center, university, major suburban employer, and other traffic generators contribute substantially to the problem and require transportation service. In this case, the need is further refined so that not only commuter trips but also student, shopping, and other trips will be accommodated.

These refinements would clearly reduce and limit the number of alternatives which could satisfy the project's purpose and need, thereby reducing the number and range of reasonable, prudent and practicable alternatives. If an alternative is suggested that does not serve the university or other traffic generator, and such service is a vital element of the project, the alternative may be eliminated from future study since it does not meet the need for the project.

Resource agencies, however, sometimes are skeptical of changes in the purpose and need for a project, since it appears that the need is being crafted to fit the project rather than the other way around. This can lead to disagreement or lack of trust between the resource agency and the DOT agency. Disagreements sometimes occur if the purpose and need statement was revised to reflect local land use plans that have changed over time, particularly if there are questions about induced growth due to the project and if it appears that land use plans were revised to reflect the transportation project.

Several states recommend use of an iterative process to develop the project purpose and need. For example, as noted earlier, Caltrans' Purpose and Need Team Final Report and Recommendations, explains how quality purpose and need statements are developed and refined iteratively from planning through project approval. It explains how the purpose and need for a project evolves from system or corridor planning through the Project Initiation Document (PID) phase, through the Project Approval and Environmental Document (PA&ED) phase. During PA&ED, Environmental Planning prepares the environmental document that publicly discloses the intent and the supporting evidence for the project. By the end of PA&ED the purpose and need has been finalized.

As another example of an interactive process, Oregon developed the Collaborative Environmental and Transportation Agreement for Streamlining (CETAS). The agreement was approved in April 2001 by ten agencies, including the Oregon Department of Transportation (ODOT), the Federal Highway Administration (FHWA), the US Army Corps of Engineers, the US Environmental Protection Agency, the US Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS), and several state resource and regulatory agencies. Agencies scope projects to determine if they should follow the Major Transportation Projects Agreement, a part of the CETAS which guides the review of projects likely to require an Environmental Assessment or Environmental Impact Statement. At monthly meetings, agencies receive project briefings and concur on Purpose and Need, Range of Alternatives, Criteria for Selection, and Preferred Alternative. Once concurrence is reached, issues are not revisited unless major changes occur, such as ODOT project changes or new endangered species listings. Scoping projects standardizes the review process, keeping agencies on track and allowing time and resources to be used efficiently on projects with significant environmental impacts.

3.1.7 Examples of Well-Crafted Purpose and Need Statements

Appendix E provides two examples of statements from highway EIS that generally follow the characteristics of good purpose and need statements. Many of the other EISs reviewed for this report contained some characteristics of good statements but fell short in some areas. It would be useful to collect additional examples to highlight good practices for a range of different types of highway, transit, and airport projects.

3.2 Purpose and Need Integration/Coordination with Other Laws

As noted earlier (in Section 2), in addition to NEPA, DOT is responsible for complying with environmental laws that have requirements influencing purpose and need and alternatives. Equally important, DOT is responsible for its own statutory responsibilities for safety, mobility, economic productivity and security, all of which influence purpose and need. Other Federal agencies also have responsibilities under NEPA and other environmental laws (e.g., Clean Water Act, Clean Air Act, Endangered Species Act, Historic Preservation Act) that bear on transportation projects.

Interagency disagreements over purpose and need can occur as agencies strive to comply with multiple laws as interpreted by the different agencies. Agency disagreements on a transportation project's purpose and need can result in disparate judgments on the range of reasonable alternatives that would satisfy the purpose and need. Likewise, different agency judgments on alternatives that need to be considered to comply with applicable laws can raise basic questions on project purpose and need. Questions about the appropriate level of discretion for a lead agency in the development of a purpose and need statement, the underlying need for a proposed action, the appropriate level of review by and authority of resource agencies, and the appropriate level of consideration to state/local zoning, fiscal, land use and other policies have been a source of disagreement and delay.

Questions arise most often on highway projects where 404 permits must be issued, and where the Army Corp has the ability to approve or deny permits to discharge fill into waters of the U.S., including wetlands. For transit and airport projects, 404 permit issues centering on purpose and need are less numerous than for highway projects, and only encountered on a small proportion of their proposed projects. However, when permit issues do occur, they can have sizeable repercussions in terms of interagency conflicts, disparate Federal messages to applicants and the public, and delays. For highway projects, in order to reduce duplication and potential delays associated with development of divergent NEPA purpose and need statements and Section 404 project purpose statements, a number of states have implemented NEPA and 404 merger agreements. The 404 merger agreements call for the concurrent completion of the NEPA document and the 404 permit application for FHWA projects. However, in some cases, the NEPA/404 merger process has also led to disagreements as the merger process calls for concurrence on the project purpose and need.

This section summarizes observations on issues associated with the discretion of the lead Federal agency in responding to comments on the purpose and need statement by resource agencies, and issues that have arisen where a NEPA/404 merger process has been implemented.

3.2.1 Deference to Lead Agency

Disagreements sometimes have occurred between the DOT agencies and the resource agencies with jurisdiction by law over a potentially affected resource. On the one hand, the DOT agencies have statutory mission to improve the nation's transportation system and have authority as the lead agency for the NEPA document of a transportation project, with the technical expertise to define the transportation purpose and need for the project. On the other hand, the resource agencies have statutory authority to protect their respective resources (e.g., EPA reviews the adequacy of EISs under Section 309 of the Clean Air Act and has other authority under the Clean Air Act and Clean Water Act, the USACE and EPA have the authority to protect waters of the U.S. under Section 404 of the Clean Water Act, USFWS has authority under the Endangered Species Act, etc).

The resource agencies often see the purpose and need in advance of the Draft EIS (e.g. during scoping or during regulatory consultations), and view their review of the purpose and need statement as one of their primary opportunities to help frame the alternatives under consideration. Alterations of the purpose and need statement proposed by a resource agency are often designed to provide additional alternatives that would potentially avoid or minimize the adverse impact on a protected resource. This, in turn, can be a source of disagreement between agencies if there are divergent opinions on how the purpose and need should be framed.

Questions about the role and responsibilities of agencies in crafting a purpose and need statement have sometimes been at the center of disagreements. In response to critical comments on purpose and need statements, DOT staff often noted that resource agencies do not have transportation mission responsibility or the technical expertise to comment on the underlying needs analysis and that comments are sometimes unsubstantiated. Many DOT staff indicated that the development of the purpose and need statement should be a solely DOT agency function and that the resource agencies should not question the purpose and need statement. Other DOT staff acknowledged the desire of resource agencies to comment on purpose and need statements for proposed actions that may have significant effects on natural resources and other areas. Comments provided by resource agencies tend to question the underlying need for the action and highlight the value of the resource under their protection in relation to the need for the action, e.g. preserving wildlife habitat or corridors versus the need to build a new or bigger road to reduce traffic. Many of the resource agency staff emphasized the importance of their input into purpose and need statements as part of the NEPA process and meeting their statutory requirements.

Resource agencies sometimes act as cooperating agencies. Given questions about the roles and responsibilities of federal agencies in the development of the purpose and need statement, DOT Secretary Mineta requested clarification from CEQ regarding cooperating agencies. According to the 2003 letter from CEQ's James Connaughton to Secretary Mineta, for the NEPA process, "Joint lead or cooperating agencies should afford substantial deference to the DOT agency's articulation of purpose and need." The 2003 joint FTA/FHWA guidance addresses some of the points made in the letter from CEQ:

Due to the deference afforded the lead agency in developing the EIS, other Federal agencies should only raise questions regarding DOT's purpose and need statements when those questions relate to substantive or procedural problems (including omission of factors) important to that agency's independent legal responsibilities. Such questions should be raised immediately, and, if necessary, elevated to higher level decision-makers within both the DOT and the commenting agency.

For proposed transportation actions where other Federal agencies do not have separate decision making responsibilities, FHWA or FTA has the sole authority and responsibility for defining the purpose and need statement. While it is entirely appropriate for other agencies to comment on the purpose and need statement, both during early coordination and in response to the draft environmental impact document, other agencies cannot require FHWA or FTA to alter the purpose and need statement.

In the case of airport projects, when resource agencies have questioned the FAA's purpose and need statements, FAA works with those agencies to better explain the aviation factors, rationale for the airport development, and their statutory authority and role in airport development. New provisions in FAA's Vision 100 legislation give the Secretary of Transportation additional authority to be the final arbiter of the purpose and need for airport capacity enhancement projects and designated aviation safety and security projects, as described in Section 2 of this report.

3.2.2 NEPA/404 Merger Process

Background on the Merger Process

The NEPA/404 merger process is designed to consolidate the environmental review process associated with documents prepared under NEPA and individual permits prepared under Section 404 of the Clean Water Act. The consolidation of the environmental review process is designed to expedite the overall environmental review process by concurrently preparing the NEPA document and the Section 404 permit application. FHWA pursued the merger agreements with the states, EPA, USACE and other parties as the majority of the FHWA projects involve waters of the U.S., including wetlands. The merger process mostly affects FHWA, because FAA and FTA are not included as signatories in the merger agreements, as noted below. [1] As of September 2002, 29 states had adopted agreements to merge the FHWA NEPA process and the CWA permitting process (Section 404) administered by the USACE with oversight by EPA.

The merger agreements tend to have three or four concurrence points including:

Purpose and Need Statement
Alternatives Carried Forward (analyzed in EIS)
Selection of Preferred Alternative under NEPA and Least Environmental Damaging Practicable Alternative (LEDPA) under Section 404 of the CWA
Impact Minimization (note, this is sometimes included with number 3 and termed "mitigation plan")

These concurrence points are considered sequentially, with each point building upon the previous one. At each concurrence point, a signatory to the merger agreement is able to review the items associated with each concurrence point and provide comments. Included with each merger agreement is a dispute settlement process. The design of the merger agreements anticipates that concurrence at each concurrence point will be achieved. However, in more controversial projects, the probability of non-concurrence may increase. Therefore, a process is needed to resolve disputes at any one of the concurrence points when one or more agencies do not concur. Merger agreements in Illinois, Iowa, and Nebraska specify that for such situations, within 30 days of a finding of non-concurrence at one of the designated points, the FHWA and state DOT will meet with the agencies involved to determine the direction for resolution of the dispute. The direction for resolution will be agreed upon through consensus of the agencies involved.

Depending on the specific merger agreement for dispute resolution or non-concurrence, the NEPA document or Section 404 permit process may continue whether or not attempts to reach concurrence are successful. However, if the dispute remains unresolved, any agency in non-concurrence retains the option to elevate its concerns through existing, formalized dispute elevation procedures. This will encourage all participating agencies to very carefully consider and accommodate the concerns raised by the resource agencies prior to finalization of a NEPA document and submission of a Section 404 permit application.

Issues Faced in the Merger Process

In general, practitioners involved in the NEPA / 404 Merger Process state that the process, as intended, has helped to expedite the environmental review process by ensuring that concurrence on purpose and need occurs during the early phases of EIS development. Since the purpose and need statement is the foundation for the identification and selection of alternatives for consideration, this avoids potential backtracking and aids in defining practicable alternatives to meet the requirements of a Section 404 permit.

DOT agency and resource agency staff generally indicated that although there may be a period of learning how the process works and how to work with DOT and resource agency staff, after a NEPA / 404 merger process has been active for a few years, it becomes a fairly effective process. Such efficiencies result primarily from the establishment of working relationships, and understanding the values and meeting the expectations of the resource and DOT agencies. One of the most commonly cited benefits of the merger process is increased communication and understanding of issues, which enables issues to be addressed cooperatively and early on.

Resource agency staff and other stakeholders indicated that early participation in project planning has proven to be effective in the early identification and resolution of project issues. FHWA staff indicated that a benefit from merger agreements has been that the process gets the agencies involved and achieves concurrence at key points in the process, which eliminates having to revisit issues that were agreed upon previously. For some USACE districts, the merger agreement has streamlined the process by concentrating the issues at one meeting rather than several time-consuming reviews and also has helped reduce redundancy. One of the clearest benefits to project development comes from improved communication, which can help to ensure that environmental concerns are addressed early and help to strengthen environmental stewardship; these issues are most often raised during consideration of project alternatives.

On the other hand, in some cases, agencies have found that the merger process can create some of its own difficulties. Concerns expressed by transportation agency staff regarding the merger process seem to primarily relate to three issues: 1) allowing too much transportation decision making authority to resource agencies; 2) elevating 404/wetlands issues above other environmental and community concerns; and 3) delay associated with gaining concurrence with all parties involved in the agreement.

In some cases, DOT staff members have indicated that they believe the 404 merger agreements have provided resource agency staff too much authority in crafting the purpose and need of a transportation project. Since the merger process requires concurrence of all parties involved, some transportation agencies have felt that it gives resource agencies an opportunity to question purpose and need even when concerns do not relate to the 404 permit. Some DOTs perceived that resource agency staff sometimes attempt to control the process (e.g., stop a highway project from proceeding or advance an environmental agenda) through objections to the purpose and need statement. In cases where broader environmental concerns are being raised, philosophical differences regarding the need for the highway project versus other non-highway alternatives can lead to delay, which works against the goal of the merger process itself.

Without the merger agreement, resource agencies would comment on the purpose and need statement, but need not concur. In such cases, recent guidance by FHWA/FTA based on consultation with CEQ, indicates that cooperating agencies should give substantial deference to the DOT in defining the transportation project purpose and need. However, unresolved issues may resurface later during the environmental review process (e.g., during the public comment period of an EIS). Addressing resource agency comments on purpose and need later in the process could lead to project delays that merger agreements were intended to minimize. With the merger process, more time may be required to craft the purpose and need statement. For instance, staff from Caltrans indicated that the merger process often requires a large amount of back and forth discussions and negotiation in order to come to agreement on the purpose and need. Without the merger agreement, this staff indicated that Caltrans would consult with the agencies, but would not expend as much time and resources in negotiation.

Some states have chosen not to participate in the merger process. For example, Texas DOT has signed a merger agreement but chose not to implement the merger process since it prefers to have the resources agencies comment on the purpose and need statement, without the responsibility of concurrence. Caltrans staff suggested the merger agreement should be applied more selectively and depend on the project scope and possible size of impacts. Small and medium-size projects, for instance, may not need to go through the NEPA/404 merger agreement since the purpose and need, alternatives, and impacts are more straightforward. In general, staff members indicated that the development of alternatives, rather than the development of a project purpose statement is more challenging and controversial. However, the merger process sometimes can slow down the process by requiring discussion and negotiation at each point, and issues relating to alternatives often come up early in discussion of purpose and need.

Another issue faced in the NEPA / 404 Merger Process relates to differences in how the NEPA purpose and need is defined in relation to the Section 404 project purpose. Under NEPA, a purpose and need statement should be written broadly enough to support a "reasonable" range of alternatives. Under Section 404, a project purpose statement must support an evaluation of "practicable"alternatives. "Reasonable" and "practicable" are defined by the regulations implementing NEPA and Section 404, respectively. Ideally,

to streamline the environmental review process, the alternatives considered under NEPA would satisfy Section 404 requirements. In practice, this does not always happen, for example, because the NEPA project purpose and need statement, from which project alternatives are identified, is developed before the Section 404 permitting process is

initiated. As a result, the alternatives considered under NEPA may be different than those considered during the Section 404 environmental review process. Problems arise when the least environmentally damaging practicable alternative (LEDPA) to the aquatic environment, as identified under Section 404, was not included in the NEPA evaluation of alternatives. Therefore, while a merger agreement gets all the decision makers to the table early, which is helpful in developing understanding of the overall purpose and need for the transportation action, it is also important to identify aquatic resource involvement as early as possible. This allows for a Section 404 project purpose statement to be identified in a timely fashion and results in an analysis of alternatives complementary to the NEPA analyses.

At least one State DOT indicated that the Army Corps in some cases wants to include its project purpose in the NEPA purpose and need statement. This can be problematic if the Section 404 project purpose focuses on water resource issues and does not really address the key needs associated with the proposed transportation project. Since several State DOTs indicated that some resource agencies have tried to incorporate environmental goals into the purpose and need statement, it appears that additional guidance and training may be needed regarding the proper scope of the statement and roles in the NEPA/404 merger process.

3.3 Economic Development as part of the Transportation Purpose and Need

The inclusion of economic development as a purpose and need can be controversial, and raise uncertainties both for the transportation agency proposing the project and for resource agencies that review the statement. Uncertainties generally relate to three issues:

Questions about whether economic development is an appropriate justification for transportation projects, given limited analytical information about whether a transportation project can actually fulfill the stated purpose and deliver on its promises of economic development;
Questions about the range of alternatives that should be considered, and specifically, whether non-transportation options should be examined; and
Questions about the extent to which indirect impacts associated with secondary development must be examined, and how to address all of the development-related impacts given other statutory requirements.

In cases where economic development is not the primary purpose and need but is one of several goals, questions have also sometimes arisen over how, and whether, the DOT is presenting economic development within the purpose and need statement.

Throughout this discussion, it is important to note that inclusion of economic development in the purpose and need statement is not a common occurrence. Based on discussions with agency staff, it appears that economic development has been used as the primary purpose and need in only a few EISs, and has appeared more often as a secondary goal or ancillary benefit. Projects where economic development is the primary purpose were usually highway projects in rural areas. Agency staff from both FTA and FAA indicated that they cannot fund or advance projects with economic development as the sole stated purpose and need; they must have a primary transportation need. However, FAA will acknowledge the economic development goals of an applicant for an airport project, and so economic development goals have been incorporated into the purpose and need statement for some airport projects.

3.3.1 Appropriate Use of Economic Development in the Purpose and Need Statement

Although most transportation projects stem from a transportation-related need (e.g., congestion problems, lack of access, safety problems), transportation agencies recognized that economic development can be the primary purpose and need for highway projects in rural areas, and for certain projects mandated by Congress. Justifying these projects on the basis of a transportation problem would simply not be possible, since data would not substantiate a traffic or safety problem. In these cases, the transportation needs are inextricably linking to the underlying need for economic development in economically depressed or underutilized areas.

Several examples of highway projects where economic development was a key component of the project purpose and need were noted, including:

I-73 in Southwestern Virginia (Martinsville to Roanoke)
Mon-Fayette Highway in Southwestern Pennsylvania
Lackawanna Valley Industrial Highway in Pennsylvania

One of the challenges faced by transportation agencies is that it is often difficult to analytically demonstrate that a transportation project will result in the economic development that it is intended to bring. Resource agency staff may not be comfortable with research available linking road building with economic development and may want to see more data. Consequently, transportation agency staff have sometimes been placed in an awkward position of defending a highway project for economic development purposes that were pushed by local governments or Congress. Such projects and the political pressure that sometimes accompanies those projects can pose a challenge for both DOT and resource agencies in terms of defining an adequate purpose and need statement.

DOT and resource agency staff generally agreed that economic development should not be included in the purpose and need statement unless it is the primary reason for proposing the project. Inclusion of economic development in the statement is not useful if development is simply a goal or would result from the implementation of the project, but not the primary justification for a project. In these cases, inclusion of economic development in the purpose and need statement can create confusion among the public and resource agency staff. Some staff said that economic development should be more appropriately considered ancillary benefits, not as the purpose and need for a transportation project.

In response to concerns of this nature, for example, on the I-69 EIS, in Texas, the document was revised to say that the project will 'enhance' economic development, but the focus of the purpose and need statement is on transportation needs. Also, for the Kentucky TransAmerica Corridor (Future I-66) project, FHWA and Kentucky DOT are making an effort to distinguish "needs" from "benefits." In crafting the purpose and need statement, FHWA and Kentucky DOT have decided that the project's purposes are transportation-related but that economic development will be a benefit to many communities in the corridor.

Although this approach seems agreeable to most agency staff, some resource agency staff felt that DOT agencies take pains to justify projects on the basis of transportation needs, even when economic development is a primary motivator. As a result, there is some perception, rightly or wrongly, that economic development is being given less profile than it should be as a motivator for the project, and that a more open and forthright discussion of economic development as one of the purposes for the project should be included to better inform the public and decision makers about why the project is being proposed.

3.3.2 Range of Alternatives that Should be Considered

One of the most difficult issues raised when economic development is a primary purpose and need for a project is what range of alternatives should be examined. Specifically, should non-transportation infrastructure strategies be examined? If the primary need does not relate to transportation system function, but economic conditions, perhaps options such as education programs, workforce training, etc. could help to address some of the underlying causes. Some resource agency staff felt if economic development really is the need, the highway agency proposing the project should examine other ways to stimulate development. This is problematic from the perspective of FHWA due to limitations in expertise on non-transportation strategies and its inability to fund non-transportation projects.

There is some recognition among all agency staff that it would be very difficult for FHWA to analyze broad alternatives beyond transportation projects. However, examining some of the issues surrounding regional economic development strategies at the planning phase could help to identify whether the transportation project really does help to meet the need and what other actions are necessary or might be more effective. Understanding the region's economic development strategy helps in determining the extent to which the strategy is reliant on improvements to the transportation infrastructure system. Thus, exploring the economic development potential of a transportation project early in the environmental review and planning process can support the development of a more substantiated purpose and need statement.

As depicted in the figure below, a region's economic development strategy defines the economic sectors that will serve as the primary focal points for development (such as agriculture, manufacturing, telecommunications, etc.). Once a region has identified those sectors (based on indicators such as comparative advantage), transportation and other infrastructure needs can be assessed, specific investments can be identified, alternative investments can be weighed against one another, and the economic development impacts of alternatives can be determined by demonstrating the reliance of specific development initiatives on highway improvements and/or by investigating the incremental benefits that can be accrued from investments in highways. This approach allows for a more direct link between specific development initiatives and highway needs, and can supplement analyses that are based on more conventional approaches such as benefit-cost analysis.

3.3.3 Concerns About Addressing Indirect Effects

Indirect and cumulative effects to resources from development need to be addressed under NEPA regulations regardless of the project purpose. Including economic development in the purpose and need statement can raise questions about the level of analysis that should be devoted to indirect environmental effects associated with the proposed action. If the purpose and need statement is based on economic development, the NEPA document should be specific in stating where the economic development is expected to occur and what environmental impacts are expected from the secondary development. However, as noted in the Indirect and Cumulative Impacts Work Group Baseline Report, many EISs historically have not provided detailed analyses of indirect impacts. When economic development is part of the stated purpose and need, limited analyses of indirect impacts are perceived by some resource agencies as a substantial weakness that needs to be addressed. This has been an issue on both highway and airport projects.

4. Existing Guidance and Training on Purpose and Need Statements

4.1 Guidance Documents

While the laws, regulations, and Executive Orders do not provide significant detail on how a purpose and need statement should be developed, there is some guidance on the subject. Appendix F contains a bibliography of some NEPA guidance that includes modules on purpose and need statements.

4.1.1 Federal Guidance

There are several Federal-level guidance documents focused on the purpose and need statement within NEPA documents in Appendix F. These guidance documents address issues such as the content of the purpose and need statement and agency roles and responsibilities in the development of purpose and need statements. For instance, in 1990, FHWA developed a paper on "The Importance of Purpose and Need in Environmental Documents", which describes basic elements of a purpose and need statement, and includes a list of items which may assist in the explanation of the need for the proposed action, such as an explanation of project status, transportation demand, modal interrelationships, and social demands or economic development. EPA's guidance on "Policy and Procedures for the Review of Federal Actions Impacting the Environment" provides information on EPA's role and responsibilities for reviewing the technical adequacy and accuracy of the EIS's methods for estimating the need for the proposed action in cases where this affects the definition of reasonable and feasible alternatives.

Correspondence between DOT Secretary Mineta and James Connaughton of CEQ in May 2003 focused on the issue of the appropriate exercise of authority by lead and cooperating agencies in determining purpose and need for the NEPA process. This document, in turn, was followed by the FTA-FHWA "Joint Guidance on Purpose and Need," which addressed the points made in the letter from James Connaughton, such as how much deference should be given to DOT's articulation of purpose and need by joint lead or cooperating agencies and when it is appropriate for such agencies to raise questions about DOT's purpose and need statements. The guidance concentrates on the deference that should be given to lead agencies by cooperating agencies in the development of purpose and need statements, and also provides guidance on appropriate statement length, style, and scope.

4.1.2 State-level Guidance

Several State DOTs have also developed guidance documents focused on the purpose and need statement, and generally focus on the form and content of the purpose and need statement. For instance, Utah and Oregon have produced similar documents that defined "purpose," "need," and "goals and objectives." The definitions are explicit in that the "goals and objectives" section is the only appropriate place for project elements beyond the identified state transportation issues, such as environmental protections, and that the purpose and need should be reserved for the expression of and supporting evidence for a transportation problem.

The State-level guidance documents also offer specific advice on the process of crafting the purpose and need statement. For instance, the Caltrans "Purpose and Need Team Final Report and Recommendations" presents examples of helpful information sources to reference when developing supporting information for purpose and need statements (e.g., Regional Transportation Plans, California Transportation Plan, and Statewide and Federal Systems & Designations). North Carolina DOT's guidance provides an example outline of a purpose and need section (i.e., Introduction, Summary of Need, Summary of Purpose, Background Information, Roadway Conditions, Safety Analysis, System Linkages, and Social and Economic Conditions), and then details what each element in the outline should contain.

4.2 Available Training Programs

In addition to guidance documents, training programs can be important in helping to communicate the concepts and approaches outlined in guidance documents into practices. A compilation of training courses relevant to purpose and need is included in Appendix G. The compilation includes information on topics covered in each course, course duration, target audience, locations, and contact information.

This compilation serves two roles: 1) it can be made available to staff in State DOTs, FHWA, State and Federal resource agencies, and consultants to raise their awareness of the various training opportunities available; and 2) the Task Force can use the information in order to identify opportunities for interagency coordination or adoption of training programs and to help ensure that any new guidance or recommendations that come from the Task Force can be incorporated into relevant training programs.

Discussion of purpose and need is generally included in general or introductory NEPA courses, and typically appears to consume between five and ten percent of the course content. Consequently, there appears to be relatively little formal training available regarding development of the NEPA purpose and need statements for transportation projects, or for coordination between the NEPA purpose and need and the Section 404 project purpose statement.

4.3 Guidance and Training Needs

DOT and resource agency staff generally indicated that there is not a need for formal training programs dedicated solely to the purpose and need statement, but several staff indicated that new Federal guidance and related improved training modules within courses would be helpful to clarify issues related to crafting a purpose and need statement.

Specifically, it would be helpful to have more clear guidance on how to write a purpose and need statement clearly. The existing guidance documents may be a source of confusion on this point, with some staff interpreting the guidance as encouraging discussion of a wide range of needs. According to the 1990 FHWA paper on "The Importance of Purpose and Need in Environmental Documents":

The purpose and need should be as comprehensive and specific as possible. For example, rather than simply stating that additional capacity is needed between two points, information on the adequacy of current facilities to handle the present and projected traffic, (e.g., what capacity is needed and the level of service for the existing and proposed facilities) should be discussed. Other information on factors such as safety, system linkage, social demands, economic development, and modal interrelationships, etc., that the proposed project will attempt to address, should be described as fully as possible.

Similarly, the FHWA Technical Advisory T 6640.8A (1987) seems to imply that a wide range of different factors should be discussed in the purpose and need statement. It contains a list of nine items "which may assist in the explanation of the need": 1) Project Status, 2) System Linkage, 3) Capacity, 4) Transportation Demand, 5) Legislation, 6) Social Demands or Economic Development, 7) Modal Interrelationships, 8) Safety, and 9) Roadway Deficiencies.

The range of factors that are listed in these documents may be responsible for some of the confusion regarding the extent to which a wide variety of goals should be incorporated into the purpose and need statement. Some staff members noted that FHWA guidance documents are probably being misinterpreted by some as implying that all of these factors should be addressed and described in the purpose and need statement, thereby contributing to long and confusing discussions of purpose and need.

The 2003 joint FHWA/FTA guidance states that "The purpose and need statement should be as concise and understandable as possible.... [E]very effort should be made to develop a concise purpose and need statement that focuses on the primary transportation challenges to be addressed." However, several state DOT and other staff indicated that it would be helpful to have more specific guidance related to crafting a quality purpose and need statement. They pointed out that it would be particularly helpful to identify lessons learned in crafting a purpose and need statement, and to document examples of good purpose and need statements.

5. Recommendations for Next Steps

That additional investigation should focus on the extent to which Federal agency interpretations and applications of laws and other requirements within their jurisdiction are causing purpose and need conflicts, the key drivers of the conflicts (e.g., different approaches to purpose and need under NEPA and Section 404), and options for avoiding or resolving conflicts. Case studies of previous projects that experienced substantial problems may be used to identify areas that need particular attention. Case studies of complex or controversial projects that successfully avoided conflicts at purpose and need may also illustrate good practices of where the process worked well.
That additional guidance should be developed to clarify the roles of lead transportation agencies and other engaged agencies in achieving purpose and need statements for transportation projects that give appropriate deference to transportation agencies so that projects are not subjected to long delays as agencies grapple with differences. When dealing with deference, it is important to maintain the integrity of other agencies' responsibilities and to comply with all applicable environmental requirements. Case studies may also be useful for this task.
That the Work Group begin to develop interagency guidance addressing the need for responsibly scoped, concise, and clearly written purpose and need statements. The guidance should include examples of appropriate and well-crafted purpose and need statements. The guidance should also provide advice on what special considerations apply, if any, in two circumstances: 1) if economic development is the sole purpose and need for a project; and 2) when economic development is considered as part of the purpose and need for a project.

Appendix A:
Laws and Implementing Regulations,
and Executive Orders

Laws and Implementing Regulations, and Executive Orders	Agency	Summary	Relation to Purpose and Need
General Laws and Regulations
National Environmental Policy Act: 42 U.S.C. 4321-4335 40 CFR Part 1500 23 CFR 771 49 CFR 520	CEQ	NEPA declares it a national policy to encourage productive and enjoyable harmony between man and the environment and promote efforts to better understand and prevent damage to ecological systems and natural resources important to the nation. Agencies are required to prepare a detailed environmental impact statement for any major Federal action significantly affecting the environment. The Act also establishes the Council on Environmental Quality to review government policies and programs for conformity with NEPA.	The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action. (Sec. 1502.13)
Executive Order 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations	EPA, All Agencies	Requires each Federal agency to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States.	Relates to selection of an alternative, which in turn depends on a well-justified purpose and need statement.
Transportation Laws and Regulations
Transportation Equity Act for the 21st Century of 1998 (TEA-21) and Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) 23 U.S.C. 103(i)(13) 23 U.S.C. 133(b)(11) 16 U.S.C. 1261 23 CFR 771 23 CFR 777: Mitigation of Impacts to Wetlands and Natural Habitat	DOT	TEA-21 builds on the initiatives established in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), which was the previous major authorizing legislation for surface transportation. This new Act combines the continuation and improvement of current programs with new initiatives to meet the challenges of improving safety as traffic continues to increase at record levels, protecting and enhancing communities and the natural environment as we provide transportation, and advancing America's economic growth and competitiveness domestically and internationally through efficient and flexible transportation. The National Intermodal Transportation System shall: Consist of all forms of transportation in a unified, interconnected manner, including the transportation systems of the future, to reduce energy consumption and air pollution while promoting economic development and supporting the Nation's preeminent position in international commerce. Include a National Highway System which consists of the National System of Interstate and Defense Highways and those principal arterial roads which are essential for interstate and regional commerce and travel, national defense, intermodal transfer facilities, and international commerce and border crossings. Include significant improvements in public transportation necessary to achieve national goals for improved air quality, energy conservation, international competitiveness, and mobility for elderly persons, persons with disabilities, and economically disadvantaged persons in urban and rural areas of the country. Provide improved access to ports and airports, the Nation's link to world commerce. Give special emphasis to the contributions of the transportation sector to increased productivity growth. Social benefits must be considered with particular attention to the external benefits of reduced air pollution, reduced traffic congestion and other aspects of the quality of life in the United States. Must be operated and maintained with insistent attention to the concepts of innovation, competition, energy efficiency, productivity, growth, and accountability. Practices that resulted in the lengthy and overly costly construction of the Interstate and Defense Highway System must be streamlined. Be adapted to "intelligent vehicles", "magnetic levitation systems", and other new technologies wherever feasible and economical, with benefit cost estimates given special emphasis concerning safety considerations and techniques for cost allocation. Calls out Wetlands Mitigation Banks: Sec. 1006-1007	Provides general objectives for transportation projects. May be used to support the purpose of a project.
Vision 100—Century of Aviation Reauthorization Act (Vision 100) 49 U.S.C. 47171(j) 49 U.S.C. 47106(c)(1)(C)	DOT	Vision 100 continues the requirement dating from 1970 aviation legislation that the Secretary may approve an application for funding for an airport development project involving the location of an airport, runway, or major runway extension that has a significant adverse effect on natural resources (including fish and wildlife, natural, scenic, and recreation assets, water and air quality, or another factor affecting the environment) only after finding that no possible and prudent alternative to the project exists and that every reasonable step has been taken to minimize the adverse effect. New provisions in Vision 100 establish an expedited, coordinated environmental review process for airport capacity projects at congested airports and certain aviation safety and security projects designated by the FAA Administrator. With respect to these categories of projects, a Federal or State agency that is participating in the coordinated environmental review process shall be bound by the project purpose and need as defined by the Secretary for any environmental review, analysis, opinion, permit, license, or approval that must be issued by the agency, notwithstanding any other provision of law.	Broad mandate for agencies to be bound by the Secretary's determination of purpose and need for projects specified for the coordinated environmental review process in Vision 100. No specific mention of purpose and need for new airport, runway, or major runway extension projects; it is a compliance issue that may influence the selection of an alternative.
Transportation Act (Section 4(f)): 49 U.S.C. 303 23 CFR 771.135	DOT	The Section 4(f) legislation provides protection for publicly owned parks, recreation areas, historic sites (regardless of ownership), wildlife and/or waterfowl refuges from conversion to a transportation use. The Federal Highway Administration (FHWA) may not approve the use of land from a significant publicly owned park, recreation area, or wildlife and waterfowl refuge, or any significant historic site unless a determination is made that: i) There is no feasible and prudent alternative to the use of land from the property; and (ii) The action includes all possible planning to minimize harm to the property resulting from such use. (Sec. 771.135(a))	Relates to selection of an alternative, which in turn depends on a well-justified purpose and need statement in order to assess feasible and prudent alternatives.(
Air, Land, and Water Laws and Regulations
Clean Air Act (as amended), Transportation Conformity Rule: 23 U.S.C. 109(j) 42 U.S.C. 7521 (a) Sanctions: 42 U.S.C. 7509, sec.179 (b) sec. 110 (m) (P.L. 101-549) 40 CFR 93	EPA	The primary objective of the Clean Air Act is to establish Federal standards for various pollutants from both stationary and mobile sources and to provide for the regulation of polluting emissions via state implementation plans. In addition, the amendments are designed to prevent significant deterioration in certain areas where air quality exceeds national standards, and to provide for improved air quality in areas which do not meet Federal standards ("nonattainment" areas). Section 309 of the CAA directs EPA to review and comment on both the adequacy of the analysis and the environmental impacts of certain federal actions, including those subject to NEPA's EIS requirement, and to make those reviews public. Under section 309, EPA evaluates both the nature of the impacts and the sufficiency of the environmental analysis. If the proposing agency (the "lead" agency) does not make sufficient revisions and the project remains environmentally unsatisfactory, EPA may refer the matter to the President's Council on Environmental Quality for mediation.	No specific mention of purpose and need. EPA's review of an EIS focuses on the adequacy of the EIS and the impact evaluation.
Wilderness Act: 16 U.S.C. 1131-1136 36 CFR 293: Wilderness--primitive areas 43 CFR 19; Wilderness Preservation, 43 CFR 8560: Management of Designated Wilderness Areas 50 CFR 35: Wilderness preservation and management	DOI and USDA	DOI and USDA to review every roadless area of 5,000 or more acres and every roadless island (regardless of size) and determine its suitability and establish restrictions on activities that can be undertaken on a designated area.	Relates to selection of an alternative, which in turn depends on a well-justified purpose and need statement.
Wild and Scenic Rivers Act: 16 U.S.C. 1271-1287 36 CFR 297: Wild and Scenic Rivers	DOI and USDA	Establishment of a National Wild and Scenic Rivers System for the protection of rivers with important scenic, recreational, fish and wildlife, and other values. Rivers are classified as wild, scenic or recreational. The Act designates specific rivers for inclusion and