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.

Project proponents should bear in mind three key features of the updated regulations: a streamlined approach to finalizing the NEPA analysis, a modified list of NEPA categorical exclusions for all three agencies and modified triggers for Section 4(f) review. Additionally, various other changes likely will result in more efficient NEPA review.

Changes to NEPA regulations. The revised NEPA regulations emphasize efficiency and coordination among federal agencies, specifying that agencies should coordinate environmental reviews to the “maximum extent practicable and consistent with Federal law.” 83 Fed. Reg. at 54,493 (amending 23 C.F.R. § 771.105). Additionally, the revised regulations instruct the lead agency to combine a final environmental impact statement (EIS) and record of decision “to the maximum extent practicable.” Id.at 54,504 (amending 23 C.F.R. § 771.124).

The rule also expedites the NEPA review process by identifying 22 actions that can qualify as categorical exclusions with FRA approval. 23 C.F.R. 771.116(c). These actions include upgrades made as part of a repair or replacement activity or to address existing conditions; training contracts; geotechnical testing for preliminary design or environmental analysis or permitting purposes; and environmental restoration, remediation, pollution prevention and mitigation activities. Of note, the FRA has the option to apply a categorical exclusion within a railroad right-of-way. 83 Fed. Reg. at 54,486. The agencies can also rely on each other’s categorical exclusion lists where applicable. Id. at 54,482.

Several other changes could further reduce regulatory burdens:

  • The agencies have adopted a policy of encouraging programmatic — instead of case-by-case — approaches for environmental reviews. 23 C.F.R. 771.105(b).
  • Within 45 days of publishing a notice of intent to prepare an EIS, the agency must invite any participating agencies. 23 C.F.R. 771.111(d).
  • Within 90 days of publishing the notice of intent, the lead agency must establish a coordination plan and schedule for preparation of an EIS. 23 C.F.R. 771.123(b)(2).

Changes to Section 4(f) regulations. Under the new regulations, certain types of transportation projects on park and recreation lands, wildlife and waterfowl refuges, and historic sites will no longer require Section 4(f) approval. These projects include maintenance, preservation, rehabilitation, operation, modernization, reconstruction or replacement of historic transportation facilities or railroad or rail transit lines that are in use or were historically used for the transportation of goods or passengers. 23 C.F.R. 774.13(a)(2)–(3). The rule explains that railroad or rail transit lines include bridges and tunnels, railroad-highway crossings and other safety projects funded by FHWA. 83 Fed. Reg. at 54,491.

What’s next. The regulations go into effect November 28. The FRA regulations will apply to projects where the FRA is the lead agency and environmental review begins after November 28. Project proponents should closely review the new regulations to determine how they could affect their ongoing and anticipated projects.

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