Department of Transportation Revises Its Rules Affecting Environmental Review of Transportation Projects

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On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.

These changes are required to implement recent federal legislation: Moving Ahead for Progress in the 21st Century Act (MAP-21), enacted in 2013, and Fixing America’s Surface Transportation Act (FAST), enacted in 2015. This legislation is intended to expedite the efficient conduct of federal environmental reviews for many transportation projects. The revised rules, largely located at 23 C.F.R. Part 771, are effective on November 28, 2018. Section 771.101 provides that Part 771 prescribes the policies and procedures for the FHWA, the FRA, and the FTA for implementing NEPA, and supplements the NEPA regulations of the Council on Environmental Quality.

These regulations set forth all DOT requirements under NEPA for processing of highway, public transportation and railroad actions. The overall policy is to have, insofar as it is possible to do so, all environmental investigations, reviews and consultations be coordinated as a single process, with compliance with all applicable environmental requirements reflected in the environmental review document.

In addition, “programmatic approaches” (to reduce the need for project-by-project review and needless repetition) be developed for environmental compliance, alternative courses of action be evaluated and decisions made based on a balanced consideration of the need for safe and efficient transportation, public involvement and a systematic interdisciplinary approach be essential parts of the process, and that measures “necessary to mitigate adverse impacts” be incorporated into the action.

The rule lists categorial exclusions for FRA, FHWA, and FTA-regulated projects, including some described as “cross-agency” categorical exclusions, to promote flexibility in the review process.

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