Environmental Division Updates
On July 15, 2020, the Council on Environmental Quality (CEQ) announced its final rule modernizing the NEPA regulations to streamline the development of infrastructure projects and promote better decision making by the Federal government.
Executive Order 13927, Accelerating the Nation's Economic Recovery From the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities, was issued on June 4, 2020. The Executive Order contains environmental streamlining procedures associated with the COVID-19 national emergency.
On August 19, 2019, the U.S. DOT issued Interim Policy on Page Limits for NEPA Documents and Focused Analyses, intended to improve the quality and reduce the length of documents prepared for compliance with NEPA.
The Agencies (FRA, FHWA and FTA) developed guidance providing clarity and consistency to the NEPA re-evaluation process consistent with their environmental regulations. This guidance document is not legally binding in its own right and conformity with this document (as distinct from existing statutes and regulations cited in this document) is voluntary only.
The Surface Transportation Project Delivery Program (STPD Program) allows the Secretary of Transportation to assign, and the State to assume, the Secretary's responsibilities under the National Environmental Policy Act (NEPA) and related environmental laws for certain transportation projects (NEPA Assignment). The STPD Program is authorized under 23 U.S.C. § 327 and is implemented through regulations promulgated by the Federal Highway Administration, FRA, and the Federal Transit Administration (23 CFR part 773).
On January 31, 2019 the State of California, acting by and through the California State Transportation Agency and California High-Speed Rail Authority (CHSRA), applied to assume the FRA’s Federal environmental responsibilities under NEPA and other federal environmental laws for projects necessary for the design, construction, and operation of the California HSR System; projects that directly connect to the California HSR System; and the ACEforward project. The FRA published the State’s application and a draft Memorandum of Understanding (MOU) in the Federal Register.
Based on the application and after considering public comments, FRA granted the State’s request. FRA Administrator Batory and Governor Newsom executed the MOU, which was effective on July 23, 2019. CHSRA is subject to annual audits by FRA for the first four years of the executed MOU. After the fourth year, FRA will continue to monitor the State’s compliance with the MOU. FRA’s auditing and monitoring will be carried out consistent with the MOU.
This regulation increases efficiency for the preparation of environmental documents and accelerates project delivery by providing new tools for FRA and project sponsors to use, including:
- Applying the same environmental regulations (and Section 4(f) requirements, 23 CFR Part 774) to rail projects that FHWA and FTA already use.
- Updating and expanding the number of categorical exclusions for rail projects.
- Allowing FRA to use FHWA and FTA categorical exclusions as appropriate.
DOT Publishes Final Rule – Continuing Efforts to Streamline the Environmental Process
On October 29, 2018, FRA, the Federal Highway Administration (FHWA), and Federal Transit Administration (FTA) published a Final Rule in the Federal Register amending 23 CFR Part 771, Environmental Impact and Related Procedures, and 23 CFR Part 774, Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 4(f)). The regulation is effective November 28, 2018.
The Final Rule adds FRA to 23 CFR Parts 771 and 774. It also includes updates responding to the Fixing America’s Surface Transportation Act (FAST Act) and allows FRA to follow the same flexible environmental procedures as FHWA and FTA.
The Final Section 106 Program Comment was approved by the Advisory Council on Historic Preservation (ACHP) on August 17, 2018. The full text is available in the ACHP’s Federal Register Notice published on August 24, 2018. The Program Comment is available for use by any Federal agency having an undertaking that may affect rail properties located in railroad or rail transit rights-of-way (ROW).
The Final Program Comment is comprised of two parts: 1) A comprehensive list of maintenance, repair, and upgrade activities that are likely to have effects to historic rail properties that are minimal or not adverse and are therefore exempt from Section 106 review (exempted activities list); and 2) An optional Project Sponsor-led, property-based approach that ultimately may further streamline the Section 106 review process for transportation-related projects in railroad and rail transit ROW.
The Program Comment required USDOT to publish guidance for implementing the property-based approach before this part of the Program Comment is effective and available to Project Sponsors. USDOT provided an opportunity for stakeholder review and comment on the draft guidance in July 2019. USDOT finalized the guidance on October 11, 2019, and it is available here.
Questions regarding application of the Program Comment to FRA projects may be sent to: FRA.106Exemption@dot.gov .
One Federal Decision Executive Order (E.O.) 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, was issued on August 15, 2017. It requires Federal agencies to process environmental reviews and authorization decisions for “major infrastructure projects” as One Federal Decision and sets a government-wide goal of reducing, to two years, the average time for each agency to complete the required environmental reviews and authorization decisions for major infrastructure projects, as measured from the date of publication of a notice of intent to prepare an environmental impact statement (EIS).
Per E.O. 13807, a "major infrastructure project" is defined as an infrastructure project for which multiple authorizations by Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it will prepare an EIS under NEPA, 42 U.S.C. 4321 et seq., and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.
On April 9, 2018, the U.S. Department of Transportation and several other Departments, including Interior, Agriculture, Commerce, Housing and Urban Development, Energy, Homeland Security, Environmental Protection Agency, U.S. Army Corps of Engineers, Federal Energy Regulatory Commission, Advisory Council on Historic Preservation, and the Federal Permitting Improvement Steering Council, signed a Memorandum of Understanding implementing the One Federal Decision under E.O. 13807.