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Lance Hanf, HCC-WE

Lance Hanf, HCC-WE. CUMULATIVE & INDIRECT IMPACTS FHWA 2006 ENVIRONMENTAL CONFERENCE. a. 40 CFR ' 1508.7 Cumulative Impact:.

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Lance Hanf, HCC-WE

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  1. Lance Hanf, HCC-WE CUMULATIVE & INDIRECT IMPACTS FHWA 2006 ENVIRONMENTAL CONFERENCE

  2. a. 40 CFR ' 1508.7 Cumulative Impact:

  3. THE IMPACT ON THE ENVIRONMENT WHICH RESULTS FROM THE INCREMENTAL IMPACT OF THE ACTION WHEN ADDED TO OTHER PAST, PRESENT, AND REASONABLY FORESEEABLE FUTURE ACTIONS REGARDLESS OF WHAT AGENCY (FEDERAL OR NON-FEDERAL) OR PERSON UNDERTAKES SUCH OTHER ACTIONS.

  4. . Kleppe v. Sierra Club, 427 U.S. 390 (1976). • Pre-CEQ regs. • b. Coal permits and leasing program over 4 states. • Court: Scope of EIS is only for proposed projects. • Courts won=t substitute their judgment of that of the agency. • . • A Agency must take a hard look at environmental impacts. • f. Standard of review is under the Administrative Procedures Act. Is agencies finding arbitrary and capricious? Highly deferential standard of review. (Not Qs of Law). • c. EIS must still look at the cumulative impacts of other projects.

  5. Fritiofson v. Alexander, 772 F2d. 1225 (5th Cir. 1985) • a. COE permit for 475-unit development on 145-acre tract. Galveston Island, Texas. • b. Lots of other past, present and future developments in this area. • c. Sensitive area as suggested by NMFS and USF&W and concerned with cumulative impacts. • d. COE AIn the absence of any study concerning Galveston Island, the cumulative effects of this and similar projects cannot be estimated with any degree of success.A

  6. C Court required a 5-step cumulative-effects study: 1. Area where effects will be felt from project. 2. Impacts that are expected from project. 3. Identify other past, present and reasonably foreseeable actions with similar impacts and this area. 4. What those impacts are. 5. Overall impact if the individual impacts accumulate.

  7. Legal Issues in Cumulative Impact Analysis: • a. How far in the future is still Areasonably foreseeable.@ How much certainty? • b. What is the geographic area that we look at? More than one? • c. What is the role of planning documents and zoning laws? Oregon v. Texas? • d. What if there is no baseline information on resources or past project impacts? • e. How far back in time do you go? • f. How do you figure out synergistic effect?

  8. Legal Issues in Cumulative Impact Analysis: • Do we look at indirect impacts when we do our cumulative impact evaluation? • What responsibility do we have to mitigate other’s impact? • Lists of projects do not satisfy the test. Need to focus on the resource. • Do we need to show a trend?

  9. (Cont.)Legal Issues in Cumulative Impact Analysis:

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