By

Peter Whitfield

06 November 2018

Transportation Agencies Update Environmental Review Process for Infrastructure Projects

Regulations issued Monday could create a faster, less duplicative environmental review process for transportation infrastructure projects. Under the rule, the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA) will share a single set of Section 4(f) and National Environmental Policy Act (NEPA) regulations, with minor differences. 83 Fed. Reg. 54,480 (Oct. 29, 2018). The agencies explain that the changes “will provide a more consistent and predictable process for potential project sponsors, especially those that engage in environmental reviews for more than one mode of surface transportation.” Id. at 54,482. By joining the 23 C.F.R. part 771 regulations, FRA also fulfills its obligation under the Fixing America’s Surface Transportation (FAST) Act. The regulations go into effect November 28. (more…)

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03 January 2018

Incidental Take of Migratory Birds No Longer Prohibited by the Migratory Bird Treaty Act

On Dec. 22, 2017, the U.S. Department of the Interior (DOI) issued Memorandum M-370501, which concludes that the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, does not prohibit the incidental taking of migratory birds. DOI now reads the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing or attempting to do the same as applying only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests or their eggs. The opinion is significant because it reverses DOI’s prior interpretation of the MBTA as prohibiting incidental taking or killing of migratory birds. Because the MBTA is a strict liability criminal statute, meaning that a violation can occur regardless of whether the violator acted with intent, Memorandum M-37050 is also significant because it likely will reduce potential criminal exposure on project developers and operators.

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