[Federal Register Volume 65, Number 102 (Thursday, May 25, 2000)]
[Proposed Rules]
[Pages 33960-33992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13022]
[[Page 33959]]
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Part IV
Department of Transportation
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Federal Aviation Administration
Federal Transit Administration
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23 CFR Parts 771, 1420 and 1430
49 CFR Parts 622 and 623
NEPA and Related Procedures for Transportation Decisionmaking,
Protection of Public Parks, Wildlife and Waterfowl Refuges, and
Historic Sites; Proposed Rule
Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 /
Proposed Rules
[[Page 33960]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 771, 1420, and 1430
Federal Transit Administration
23 CFR Parts 1420 and 1430
49 CFR Parts 622 and 623
[FHWA Docket No. FHWA-99-5989 ]
FHWA RIN 2125-AE64; FTA RIN 2132-AA43
NEPA and Related Procedures for Transportation Decisionmaking,
Protection of Public Parks, Wildlife and Waterfowl Refuges, and
Historic Sites
AGENCIES: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA and the FTA are issuing this notice of proposed
rulemaking to update and revise their National Environmental Policy Act
of 1969 (NEPA) implementing regulation for projects funded or approved
by the FHWA and the FTA. The current regulation was issued in 1987 and
experience since that time as well as changes in legislation, most
recently by the Transportation Equity Act for the 21st Century (TEA-
21), call for an updated approach to implementation of NEPA for FHWA
and FTA projects and actions. Under this proposed rulemaking, the FHWA/
FTA regulation for implementing NEPA would be redesignated and revised
to further emphasize using the NEPA process to facilitate effective and
timely decisionmaking.
This NPRM is being issued concurrently with another notice of
proposed rulemaking on metropolitan and statewide transportation
planning. This coordinated approach to rulemaking will further the goal
of the FTA and the FHWA to better coordinate the results of the
planning processes with project development activities and decisions
associated with the NEPA process.
DATES: Comments must be received on or before August 23, 2000. For
dates of public information meetings see Supplementary Information.
ADDRESSES: Submit written, signed comments to the docket number
appearing at the top of this document. You must submit your comments to
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street,
SW., Washington, DC 20590-0001. All comments will be available for
examination at the above address between 9 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. To receive notification
of receipt of comments you must include a pre-addressed, stamped
envelope or postcard. For addresses of public information meetings see
Supplementary Information.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Fred Skaer, (202)
366-2058, Office of Planning and Environment, HEPE, or Mr. L. Harold
Aikens, (202) 366-0791, Office of the Chief Counsel, HCC-31. For the
FTA: Mr. Joseph Ossi, (202) 366-0096, Office of Planning, TPL-22, or
Mr. Scott Biehl, (202) 366-0952, Office of the Chief Counsel, TCC-30.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL401, by using the universal resource locator
(URL):http://dms.dot.gov. It is available 24 hours each day, 365 days
each year. Please follow the instructions online for more information
and help.
An electronic copy of this document may be downloaded by using a
modem and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at:
http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www.access.gpo.gov/nara.
Contents of Preamble
Background on the NEPA Rule
Overall Strategy for Regulatory Development
Relationship to U.S. DOT's Statewide and Metropolitan
Planning Regulation and other Rulemaking Efforts
Section-by-Section Analysis of the Proposed Rule for
NEPA and Related Procedures for Transportation Decisionmaking
Section-by-Section Analysis of the Proposed Rule for
Protection of Public Parks, Wildlife and Waterfowl Refuges, and
Historic Sites.
Public Information Meetings
We will hold a series of seven public briefings within the comment
period for the NPRM. The purposes of these briefings is to explain the
content of the NPRM and encourage public input to the final rulemaking.
The meetings will address this NPRM, the companion NPRM on the
metropolitan and statewide planning process and the NPRM on Intelligent
Transportation Systems Architecture consistency. The meetings will be
scheduled from approximately 8 a.m. to 5 p.m. at the locations listed
below. Changes in the information below will be made available after
the publication of this NPRM through the FHWA and the FTA websites,
other public announcement avenues and the newsletters and websites of
major stakeholder groups. Individuals wishing information but without
access to these sources may contact the individuals listed above.
The structure of the meetings will emphasize brief presentations by
the DOT staff regarding the content of the NPRM. A period for
clarifying questions will be provided. Under current statutory and
regulatory provisions, the DOT staff will not be permitted to engage in
a substantive dialog regarding what the content of the NPRMs and the
final regulations should be. Attendees wishing to express ideas and
thoughts regarding the final content of the rules should direct those
comments to the docket. Briefing sites will include: Boston, MA,
Auditorium, Volpe National Transportation Systems Center, 55 Broadway,
June 9, 2000; Atlanta, GA, Westin Peachtree Plaza Hotel, 210 Peachtree
Street, June 20, 2000; Washington, D.C., Marriott Metro Center, 775
12th Street, NW, June 23, 2000; Chicago, IL, Holiday Inn Mart Plaza,
350 North Orleans Street, June 27, 2000; Denver, CO, Marriott City
Center, 1701 California Street, June 30 , 2000; Dallas, TX, Hyatt
Regency Hotel Dallas, 300 Reunion Boulevard, July 11, 2000; and, San
Francisco, CA, Radisson Miyako, 1625 Post Street, July 19, 2000.
As part of the outreach process planned for these proposed rules,
the FHWA/FTA will be conducting a national teleconference on June 15,
2000 from 1 to 4 p.m., e.t., through the auspices of the Center for
Transportation and the Environment at North Carolina State University.
The teleconference will be accessible through numerous downlink
locations nationwide and further information can be obtained from Ms.
Katie McDermott at [email protected] or (919) 515-8034. The purpose of
the teleconference is to describe the proposed new statewide and
metropolitan planning, NEPA implementation, and Intelligent
Transportation Systems (ITS) rules.
An overview of each of the three notices of proposed rulemakings
(NPRMs) will be presented and the audience (remote and local) will have
opportunities to ask questions and seek clarification of FHWA/FTA
proposals. By sponsoring this teleconference it is
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hoped that interest in the NPRMs is generated, that stakeholders will
be well informed about FHWA/FTA proposals, and that interested parties
will participate in the rulemaking process by submitting written
suggestions, comments and concerns to the docket.
Background
The FHWA and the FTA propose to update and revise the current
regulation and guidance implementing the NEPA (42 U.S.C. 4321 et seq.)
for transportation projects using Federal funds or requiring Federal
approval.
In this notice of proposed rulemaking, we are clearly communicating
that our NEPA responsibilities include an affirmative duty to
facilitate the development of transportation proposals which represent
responsible stewardship of community and natural environmental
resources. In the 13 years since the NEPA regulation was last issued,
the nature of the highway and transit programs has evolved to reflect
our country's changing transportation needs and the impact that the
transportation network can have on a complex set of environmental,
community, and economic considerations. What has not changed is the
role of State and local officials and Federal land management agency
decision makers to define transportation investment strategies, plan
for a future transportation system that best reflects their community
needs, and select and set priorities for transportation projects.
The NPRM was developed by an interagency Task Force of the FHWA and
the FTA with input from other DOT modal agencies, the U.S.
Environmental Protection Agency (EPA), other Federal agencies and the
Office of the Secretary, U.S. DOT. The Task Force reviewed all input
received from the outreach process which is described below and through
other sources that communicate regularly with U.S. DOT. In addition,
input was provided from the field staff of the FHWA and the FTA.
Over the past thirteen years we have developed an increased
understanding of effective environmental analysis, a greater commitment
to prevention of adverse environmental impacts, and a realization of
the increased value of integrated agency and public coordination. Given
these developments, our role to ensure that transportation projects are
developed through a more effective and collaborative NEPA process at
the State, local, and Federal levels becomes that much more pivotal.
Our environmental rule reflects the understanding that NEPA is an
important tool for helping make transportation decisions, rather than
justifying decisions already made. In addition, we believe that a more
coordinated approach to planning and project development (the NEPA
process plus additional project level actions needed to prepare for
project implementation) will contribute to more effective and
environmentally sound decisions regarding investment choices and trade-
offs.
By including the environmental streamlining provision in TEA-21,
section 1309 of Public Law 105-178, 112 Stat. 108 at 232, the Congress
intended that transportation planning and environmental considerations
be better coordinated and that project delivery schedules be improved
through a process that is efficient, comprehensive, and streamlined.
Growing awareness of the need for a Federal role that would oversee
development of a coordinated environmental review process is tempered
with congressional intent that State and local decisions be respected.
The most important Federal role in the transportation decisionmaking
process is one where the FHWA and the FTA would facilitate other
Federal agencies' early involvement and participation in NEPA
activities so that redundant processes are identified and avoided. We
will, in our role as lead agencies, highlight opportunities to use NEPA
as a mechanism to address statutory responsibilities at Federal, State,
and local levels of government. During the TEA-21 outreach process,
there has been very strong support from our transportation and
environmental partners for a better managed NEPA process which reflects
these basic features: coordination, flexibility, and efficiency.
For these reasons, it is clear that a fundamentally new approach to
NEPA is needed, one that emphasizes strong environmental policy,
collaborative program solving approaches involving all levels of
government and the public early in the process, and integrated and
streamlined coordination and decisionmaking processes. Proposed
approaches are included in this notice of proposed rulemaking. This
NPRM fully supports ``protection and enhancement of communities and the
natural environment,'' one of five U.S. DOT strategic goals.
Translating this strategic direction into day-to-day operations
requires that appropriate changes be made to regulations and
nonregulatory operating guidance.
Overall Strategy for Regulatory Development
Our strategy for regulatory development has three principal
elements: (1) Outreach and listening to stakeholders; (2) developing
improvements that will allow the FHWA, the FTA, States and metropolitan
areas to demonstrate measurable progress toward achieving congressional
intent and objectives; and (3) seeking ways to improve coordination and
performance, both internally and with our Federal partner agencies.
Input to Development of Notice of Proposed Rulemaking
We have used several venues to obtain feedback on how to improve
the administration of NEPA. Of principal importance was the NEPA 25th
Anniversary Workshop held in Chattanooga, Tennessee in 1995.
Participants included a diverse group of governmental and
nongovernmental individuals representing transportation and community
interests, as well as those interested in protecting the natural
environment. The blueprint document that resulted from the NEPA
Workshop underscores the need for a fundamentally new approach to NEPA,
one that focuses on decisionmaking rather than compliance.
The FHWA and the FTA, in concert with the Office of the Secretary
and other modal administrations within the U.S. DOT, developed and
implemented an extensive public outreach process on all elements of the
TEA-21. The process began shortly after the legislation was enacted on
June 9, 1998, and various types of outreach activities have been
underway since that time. The initial six-month Departmentwide outreach
process included twelve regional forums and over 50 focus groups and
workshops (63 FR 40330, July 28, 1998). The U.S. DOT heard from over
3,000 people including members of Congress, Governors and Mayors, other
elected officials, transportation practitioners at all levels,
community activists and environmentalists, freight shippers and
suppliers, and other interested individuals. The input received was
valuable and has helped us shape implementation strategy, guidance, and
regulations.
With respect to the planning and environmental provisions of TEA-
21, we learned a great deal through the twelve regional forums and
focus group sessions and subsequently implemented a second, more
focused phase of outreach which included issuing a discussion paper,
``TEA-21 Planning and Environmental Provisions: Options for
Discussion,'' FHWA/FTA, February 1999. The content of the Options Paper
reflected input received up to that time and built upon the existing
statewide
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and metropolitan planning regulations and our NEPA implementing
regulation. We released the Options Paper on February 9, 1999, and
received comments through April 30, 1999. More than 150 different sets
of comments were received from State Departments of Transportation
(DOTs), Metropolitan Planning Organizations (MPOs), counties, regional
planning commissions, other Federal agencies, transit agencies, bicycle
advocacy groups, engineering organizations, consultants, historical
commissions, environmental groups, and customers-- the American public.
These comments were all reviewed and taken into consideration in the
development of this NPRM. Another element of outreach has included
meetings with our key stakeholder groups, other Federal agencies, and
the regional and field staff within our agencies.
This proposed rule will be one part of a widespread agency effort
to provide clear and consistent guidance on how the NEPA process can be
most effectively used to help applicants make transportation decisions
which reflect a concern for social, economic, and environmental well-
being. It provides the framework upon which we, along with State DOTs,
MPOs, transit agencies, and Federal land management agencies, can base
our approach to transportation decisionmaking.
We recognize that a wide range of issues exist in the realm of
transportation and the environment. Our outreach effort associated with
TEA-21, as well as feedback to the Options Paper, have highlighted many
areas of concern for which the FHWA and the FTA policy should be more
clearly articulated. However, not all of these areas will be directly
addressed as part of this rule. For many topics for which we feel
regulatory treatment is unnecessary or inappropriate, we intend to
issue a comprehensive package of materials to provide detailed,
nonregulatory information on how to incorporate such considerations
into the NEPA process. In addition, certain other topics will be the
subject of individual, separate regulations or guidance.
The comprehensive package of informational materials is envisioned
as a replacement both for the 1987 FHWA Technical Advisory 6640.8a on
environmental documents and the FTA (formerly Urban Mass Transportation
Administration) Circular 5620.1 \1\ on environmental assessments. The
timing of its development is intended to be consistent with the
development of the regulations that will result from this NPRM. We
anticipate that the comments we receive on the NPRM will help guide the
creation of the informational materials, as well as the regulations.
Thus, a more complete picture of our approach will be presented.
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\1\ The FHWA and the FTA internal directives are available for
inspection and copying as prescribed at 49 CFR part 7.
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Further, we have been working with Federal environmental agencies
to implement the environmental streamlining provisions of TEA-21. The
results of those activities are described in the section-by-section
analysis discussion later in this preamble.
The TEA-21 outreach effort and comments on the Options Paper have
all helped guide us in developing this notice of proposed rulemaking.
Comments on this NPRM are welcomed and will be taken into account prior
to the issuance of a final regulation containing updated NEPA
implementation requirements.
Relationship to U.S. DOT's Statewide and Metropolitan Planning
Regulation and Other Rulemaking Efforts
There are four additional rulemaking activities either underway or
planned which relate closely to this notice of proposed rulemaking.
These include: the joint FHWA/FTA rules on statewide and metropolitan
planning and on section 4(f), and the FHWA rules on acquisition of
right-of-way and decision-build contracting. The relationship with the
statewide and metropolitan planning rulemaking is described below, and
the TEA-21 provisions and input received through the Options Paper on
the other three issue areas follows:
Statewide and Metropolitan Planning
Concurrent with the release of this notice of proposed rulemaking,
the U.S. DOT is issuing a notice of proposed rulemaking to update and
revise its statewide and metropolitan planning regulations (23 CFR part
450 and 49 CFR part 613). As proposed in these coordinated rulemaking
actions, the statewide and metropolitan planning rule and the NEPA and
transportation decisionmaking rules would both be moved to new parts:
1410 and 1420, respectively. This co-location is intended to underscore
the integrated nature of transportation planning and the NEPA process.
We intend to ensure that the regulatory provisions governing
statewide and metropolitan planning and NEPA work in a consistent and
complementary fashion, and result in sound transportation decisions. We
view the changes in TEA-21 as opportunities to improve and integrate
planning and environmental processes to support more effective
decisionmaking and it is in this context that both notices of proposed
rulemaking were developed. It is our intent to establish consistency
between the two regulations to allow our State and local transportation
partners that choose to conduct social, economic, and environmental
analysis at the planning stage to incorporate that analysis at the
project development phase. This approach offers options for integrating
project development efficiencies into the overall planning process,
where States, MPOs, and transit agencies deem such action appropriate
and desirable.
Section 4(f) (49 U.S.C. 303)
We propose to move the reference and citation for section 4(f) \2\
in title 23 of the Code of Federal Regulations. This proposal removes
the provisions on section 4(f) from the NEPA rule and establishes a
separate regulation for section 4(f). Years of applying section 4(f) to
new and unprecedented situations have led to a history of case
experience which must be reflected in the regulation. As a result, the
rules governing section 4(f) have grown to the point that they warrant
their own part in the regulations. We can envision a separate effort to
revise and update the section 4(f) rule; however, we are proposing
minor changes at this time. Nevertheless, we invite comment on
suggested changes to the Section 4(f) rule of a more substantive
nature. A comprehensive package of informational materials that will be
released concurrent with this final regulation will elaborate on the
continued fully integrated relationship between the NEPA process and
the section 4(f) evaluation process.
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\2\ Section 4(f) of the Department of Transportation Act, which
protected certain public lands and all historic sites, technically
was repealed in 1983 when it was codified without substantive
change, as 49 U.S.C. 303. This regulation continues to refer to
section 4(f) because it would create needless confusion to do
otherwise; the policies section 4(f) engendered are widely referred
to as ``section 4(f)'' matters. A provision with the same meaning is
found at 23 U.S.C. 138 and applies only to FHWA actions.
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The information within the proposed section 4(f) regulation has not
changed in concept. However, new information has been added to bring
the administration of section 4(f) evaluations up-to-date with FHWA and
FTA programs such as Transportation Enhancements, Transit Enhancements,
the Symms National Trail Program, etc. There has been little
substantive change in the requirements of the section 4(f) regulation;
rather the format of the information presented has been changed
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to reflect these program changes and proposed organizational changes.
The separation of the section 4(f) and NEPA procedures into
separate regulations is not intended to fragment compliance with
section 4(f) and NEPA. Our intent is to continue a fully integrated
implementation under the unified and coordinated process provided by
the NEPA procedures as an umbrella for addressing all relevant
responsibilities, including section 4(f). Placing the two regulations
in sequence within the Code of Federal Regulations, with cross
references between them, is intended to communicate the continued
integration of section 4(f) and the NEPA process.
Right-of-Way Acquisition
Section 1301 of the TEA-21 allows the value of land acquired by a
State or local government without Federal assistance to be credited to
the State share of a federally-assisted project which uses that land.
However, the law stipulated that the land acquisition must not
influence the environmental assessment of the project, including the
need to construct the project, the consideration of alternatives, and
the selection of a specific location.
The FHWA considered, under a separate rulemaking, covering ``Right-
of-Way Program Administration'' published as a final rule in the
December 21, 1999, Federal Register, an ``early acquisition'' policy to
accommodate the acquisition of land or other property interests
(including ``at-risk'' activities) by State or local agencies that may
be deemed necessary while NEPA considerations are being concluded.
These acquisitions would be considered ``at-risk'' in that the Federal
reimbursement for a share of the acquisition costs would be forthcoming
only if the acquired property is subsequently used in a federally-
assisted project. Interested parties should refer to the December 21,
1999, final rulemaking (64 FR 71284-71297) in the Federal Register.
Advance right-of-way acquisition was the subject of considerable
debate during the TEA-21 outreach efforts. Several commenters including
the Capital Area MPO in Albany, NY, argued that the advance acquisition
of right-of-way in rapidly growing areas is desirable, cost effective
and good policy. These commenters view land acquisition as
environmentally neutral, in that unused land can be disposed of, often
at a profit. Others, including the National Coalition to Defend NEPA,
noted the inherent conflict between allowing advance right-of-way
acquisition and corridor preservation initiatives, and the selection of
a preferred alternative as part of the NEPA process. The National
Coalition to Defend NEPA argues that purchase of land represents a
commitment to a particular project location and that it, therefore,
would influence the assessment of the project under NEPA.
Design-Build Contracting
Section 1307 of the TEA-21 permits a State or local transportation
agency to award a design-build contract during project development
provided that final design shall not commence before the NEPA process
has been completed.
We have been concerned about design-build contracts (also called
``turnkey'' contracts) for federally-assisted projects being let before
the NEPA process has been completed. To do so could give the appearance
that the State or local transportation agency is fully committed to a
single course of action, and that the NEPA process is simply a
clearance exercise and not a true decisionmaking process. There may,
however, be some situations in which design-build procurement can be
structured to allow for the design-builders to work on an alternative
emerging from the NEPA process. Our agencies recognize that the
emerging interest in design-build contracting may warrant specific
regulatory language or guidance addressing the relationship between
design-build procurement and NEPA.
During the TEA-21 outreach efforts, some commenters suggested that
design-build contracting provisions could include clauses that would
preclude work on construction or the ``building'' of projects until
after the NEPA Record of Decision \3\ is made. The American Road and
Transportation Builders Association (ARTBA) suggested that any work
done on projects using this type of procurement method would be ``at-
risk'' until the NEPA Record of Decision is announced, meaning that the
work may have to be discarded if the NEPA process ultimately results in
selection of an alternative project. In these cases, the State or local
agency would not be eligible to receive Federal reimbursement until
that time, and only if the action was consistent with the Record of
Decision. The Virginia DOT suggested that design-build procurement
awards should not be made until after the NEPA process had been
concluded, at which point the specifics of the location and design
decisions would be known. This approach has been used by the FTA in its
Turnkey Demonstration Program. The Orange County Transportation
Corridors Agency suggested that having a design-build agency on board
at the earliest possible time is actually environmentally beneficial,
since it can contribute valuable input in a timely way, to arrive at
implementable and cost effective recommendations.
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\3\ NEPA Record of Decision is the documentation of final action
by the FHWA and the FTA regarding their decision on a project action
(final alternative chosen, impacts, mitigation and basis for
decision, etc.) addressed in an Environmental Impact Statement.
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For highway projects, the FHWA's Office of Infrastructure is
responsible for developing regulations which implement this TEA-21
provision. It is currently engaged in fact-finding and consultation
among transportation partners including the American Association of
State Highway and Transportation Officials (AASHTO), and anticipates
beginning the formal rulemaking process next year. Achieving a balance
between realizing the fullest time-savings potential of design-build
contracting and maintaining the integrity of the NEPA process will be
the subject of considerable discussion during that rulemaking process.
Our agencies intend to adopt consistent policies on the NEPA-
related aspects of the design-build issue for two reasons: (1) Transit
projects should not have procedural disadvantages in comparison to
highway projects, and (2) Federal transit law (49 U.S.C. 5304(e))
requires that the FTA and the FHWA conform their NEPA processes to each
other's.
Section-by Section Analysis of the Proposed Rule on NEPA and
Related Procedures for Transportation Decisionmaking
This section of the notice of proposed rulemaking includes a
section-by-section analysis of the proposed rule on NEPA and
incorporates summary information on comments received on the Options
Paper. All comments on the Options Paper are contained in the docket.
The comments are, of necessity, summarized in each of the relevant
sections of the proposed rule and are intended to provide an overall
perspective on the comments submitted to the FHWA and the FTA. Details
on specific comments and input can be obtained by reviewing the
materials in the docket.
The proposed regulations have been reordered as to content and
organized into the following four subparts:
Subpart A--Purpose, Policy, and Mandate;
Subpart B--Program and Project Streamlining;
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Subpart C--Process and Documentation Requirements; and
Subpart D--Definitions.
The following table highlights the reordering and organization for
each proposed subpart:
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Proposed Section Current Section
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Subpart A--Purpose, Policy, and Mandate None.
1420.101 Purpose of this regulation... 771.101 Purpose.
1420.103 Relationship of this 771.103 [Reserved]
regulation to the CEQ regulation and
other guidance.
1420.105 Applicability of this 771.109(a) Applicability and
regulation. responsibilities and
771.111(f) Early coordination,
public involvement, and
project development.
1420.107 Goals of the NEPA process.... None.
1420.109 The NEPA umbrella............ 771.105 Policy.
1420.111 Environmental justice........ 771.105 Policy.
1420.113 Avoidance, minimization, 771.105 Policy.
mitigation, and enhancement
responsibilities.
Subpart B--Program and Project None.
Streamlining.
1420.201 Relationship of planning and None.
project development processes.
1420.203 Environmental streamlining... None.
1420.205 Programmatic approvals....... None.
1420.207 Quality assurance process.... 771.125 Final environmental
impact statements.
1420.209 Alternate procedures......... None.
1420.211 Use of this part by other None.
U.S. DOT agencies.
1420.213 Emergency action procedures.. 771.131 Emergency action
procedures.
Subpart C--Process and Documentation None.
Requirements.
1420.301 Responsibilities of the 771.109 Applicability and
participating parties. responsibilities.
1420.303 Interagency coordination..... 771.111 Early coordination,
public involvement, and
project development.
1420.305 Public involvement........... 771.111 Early coordination,
public involvement, and
project development.
1420.307 Project development and 771.111 Early coordination,
timing of activities. public involvement, and
project development, and
None................................... 771.113 Timing of
administration activities.
1420.309 Classes of actions........... 771.115 Classes of actions.
1420.311 Categorical exclusions....... 771.117 Categorical exclusion.
1420.313 Environmental assessments.... 771.119 Environmental
assessments.
1420.315 Findings of no significant 771.121 Findings of no
impacts. significant impacts.
1420.317 Draft environmental impact 771.123 Draft environmental
statements. impact statements.
1420.319 Final environmental impact 771.125 Final environmental
statements. impact statements.
1420.321 Record of decision........... 771.127 Record of decision.
1420.323 Re-evaluations............... 771.129 Re-evaluations.
1420.325 Supplemental environmental 771.130 Supplemental
impact statements. environmental impact
statements.
Subpart D--Definitions................. None.
1420.401 Terms defined elsewhere...... None.
1420.403 Terms defined in this part... 771.107 Definitions.
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Subpart A--Purpose, Policy and Mandate
This proposed subpart sets out the framework for the FHWA/FTA NEPA
process. It complements and supplements the United States Council on
Environmental Quality (CEQ) provisions that serve a similar function
for the entire Federal government.
Section 1420.101 Purpose of This Regulation
Current Sec. 771.101 would be redesignated as Sec. 1420.101 and
revised to establish that the focus of the proposed regulation is to
conduct a decisionmaking process for transportation projects that,
under NEPA, integrates and streamlines compliance with all
transportation and environmental laws applicable to decisionmaking
during project development. Reference is made to the regulations for
transportation planning as being a contributing factor to this
decisionmaking process.
Section 1420.103 Relationship of This Regulation to the CEQ Regulation
and Other Guidance
The proposed Sec. 1420.103 does not appear in the current
regulation. It clarifies that this regulation is to be read as a
supplement to the CEQ's governmentwide regulations for implementing
NEPA (40 CFR parts 1500-1508) and contains specific provisions for
Federal surface transportation actions under our jurisdiction. Further,
the proposed section acknowledges that, in addition to issuing revised
NEPA regulations, we will conduct and fulfill our responsibilities
under NEPA using any combination of approaches including, but not
limited to, nonregulatory guidance, training, and technical assistance.
The CEQ regulations cover regulatory definition and general
environmental procedural requirements (e.g., acceptable development and
evaluation of an acceptable range of alternatives). These are not
repeated in this proposed rule because we want to avoid confusion by
repeating or paraphrasing CEQ requirements. Reproducing requirements in
the FHWA and the FTA environmental regulations that are identical to
CEQ requirements could create potential conflicts and confusion as to
the applicability of CEQ provisions not reproduced. Instead, the chosen
approach makes a discernible connection between the different
regulations, and provides the
[[Page 33965]]
opportunity for general practitioners to increase their familiarity
with and understanding of the CEQ regulations, a familiarity of which
is essential to their ability to comply fully with all of the
environmental requirements applicable to transportation projects.
Section 1420.105 Applicability of This Regulation
The proposed section revises current Secs. 771.109 and 771.111,
Applicability and responsibilities and Early coordination, public
involvement, and project development, respectively. The language
appearing in paragraph (a) of the proposed section is a shortened
version of paragraph (a) of current Sec. 771.109. Paragraph (b) in the
proposed section is essentially the existing criteria for allowable
segmentation of projects, taken from paragraph (f) of Sec. 771.111.
Section 1420.107 Goals of the NEPA Process
Proposed section Sec. 1420.107 is to be read in close conjunction
with the subsequent proposed Sec. 1420.109. Section 1420.107 would
establish the goals of the FHWA/FTA transportation decisionmaking
process. The goals are drawn from a variety of statutory mandates,
including NEPA itself, and provisions of the various transportation
laws that authorize our programs. The NEPA process is a partnership
among Federal, State, and local governments and, at times, private
entities. Our intent in this section is to establish a common
understanding within the partnership of the goals to be achieved
through the NEPA process.
The FHWA and the FTA reaffirm their role as lead Federal agencies,
and underscore their responsibility to manage the NEPA process with the
objective of achieving these goals. This responsibility extends to
ensuring that Federal NEPA decisions pay appropriate deference to State
and local decisions made in good faith and not coerce a particular
Federal point of view. State and local decisions made with full
consideration of a broad range of social, economic, and environmental
factors, and with the advice of appropriate Federal and other State
resource agencies (i.e., the agencies responsible under law for the
protection or management of natural and community resources) and with
public involvement are those most likely to advance the NEPA goals.
Section 1420.109 The NEPA Umbrella
Proposed Sec. 1420.109 would replace portions of current
Sec. 771.105, Policy. The proposed section sets forth our basic policy
regarding how the decisionmaking process for surface transportation
projects is to be conducted . The proposed section states the intent of
our agencies to use the NEPA process as the overarching procedural
construct under which the varied legal requirements, environmental
issues, and public interests relevant to the transportation decision
are brought to bear; hence the term ``NEPA umbrella'' is used to
describe the concept. The consideration of a proposed action under NEPA
concludes with a decision made in the best overall public interest: one
that balances the need for safe and efficient transportation with the
project's social, economic, environmental benefits and impacts, and the
attainment of relevant environmental protection goals.
Experience in administering the NEPA process has shown that many
practitioners do not fully understand or practice our approach of using
the NEPA process as an umbrella for integrating their studies, reviews,
or consultations and satisfying all relevant requirements in a single,
integrated decisionmaking process. Instead, many have chosen to
approach the various requirements as obstacles or hurdles to be
addressed in a less than comprehensive fashion. Many delayed projects
or failed processes can be traced back to a disintegrated and
disconnected approach to meeting NEPA and other requirements. This
section of the regulation is intended to clarify the preferred approach
and explicitly demonstrate the multitude of factors that can influence
Federal decisionmaking. Setting forth these expectations will
contribute to a better, more efficient and timely NEPA process, one
that is envisioned in the TEA-21 and highlighted in its section 1309 on
environmental streamlining.
Section 1420.111 Environmental Justice
Subsequent to the previous regulatory revision in 1987, the 1994
Executive Order 12898 on Environmental Justice was issued to address
disproportionately high and adverse human health and environmental
effects of Federal government programs, policies, and activities on
minority populations and low income populations. This section would be
added to present regulatory language from our policy on environmental
justice that is articulated in the DOT Order 5610.2 on Environmental
Justice (62 FR 18377, April 15, 1997).
Section 1420.113 Avoidance, Minimization, Mitigation, and Enhancement
Responsibilities
This section would present our policy regarding NEPA's mandate that
Federal agencies, to the fullest extent possible, use all practicable
means to restore and enhance, and avoid or minimize any possible
adverse effects of their actions upon the quality of the human
environment.
Our policy towards correcting adverse impacts is contained in the
hierarchical but not necessarily sequential concepts of avoidance,
minimization, and mitigation of impacts, and in the evaluation of
environmental enhancements. The policy is consistent with the CEQ's
approach to mitigation presented in 40 CFR 1500.2(f) and elsewhere, and
would revise the language concerning mitigation of adverse impacts
currently provided at Sec. 771.105(d). The proposed language reflects
also the broadened Federal funding eligibility for enhancement
measures, such as transportation enhancement activities and transit
enhancements, enacted with ISTEA and TEA-21. The section would address
the eligibility for Federal funding (to the extent authorized by law),
of measures to avoid, minimize, or mitigate impacts, or to provide or
implement enhancements.
Our general responsibility for ensuring that mitigation is carried
out would be presented in paragraph (d) of the proposed section, NEPA
Commitments. These provisions would be redesignated from
Sec. 771.109(b) to streamline the subject matter of the new
regulations; the original text would be revised to detail the
responsibility for implementing mitigation measures and environmental
enhancements that resulted from commitments made in the FHWA/FTA NEPA
process.
Subpart B--Program and Project Streamlining
This subpart would group together a set of provisions aimed at
improving the NEPA process, either on individual projects or on a
programwide basis, so that transportation decisions can be made in a
timely and environmentally sensitive manner. It would respond in part
to the TEA-21 chapter on flexibility and streamlining, which addresses
major investment study integration (section 1308) and contains the
provisions on environmental streamlining (section 1309).
Section 1420.201 Relation of Planning and Project Development
Processes
This section would clarify the relationship of the transportation
[[Page 33966]]
planning process and the project development process which is the
subject of this NPRM. It reflects coordination with our concurrent
proposed Metropolitan and Statewide Planning regulations; Sec. 1420.318
of that proposed rule, and its preamble, provide further discussion of
the relationship between the planning and project development
processes. The section also stresses that the record of prior
transportation planning activities, such as development of purpose and
need and the systems-level evaluation of alternatives, shall be
incorporated into the scoping or early coordination phases of an EIS or
EA, respectively, in order to establish the alternatives to be advanced
to the NEPA process.
Our agencies feel it is essential to clarify the nature of the
linkage between planning and the NEPA process in this NPRM. The
transportation planning process needs to be better coordinated with the
project development/NEPA process so that transportation planning
decisions can ultimately support the development of the individual
projects which arise from transportation plans. During the TEA-21
outreach efforts, opinions varied over whether regulatory language or
guidance should be used to integrate planning and programming
activities, but most commenters agreed that the linkage between
planning and project development needs to be cultivated. Many
commenters, including the AASHTO and many State DOTs, opposed any
regulatory language which would place requirements of NEPA into the
planning process. Others, including the National Coalition to Defend
NEPA, pointed to the need for the core values of the NEPA process to be
incorporated into the planning process and suggested that regulatory
language is in order.
The Options Paper discussed the notion that the establishment of
purpose and need and the broad scale evaluation of alternatives can
often be best accomplished during the planning process. How to frame
the statement of purpose and need so that it is neither too narrow nor
too broad is a continuing challenge. If too narrowly conceived, purpose
and need can constrain the process with an unreasonably limited set of
possible solutions; if too broadly constructed purpose and need may
lead to an unmanageably large set of alternatives that unnecessarily
bog down the process. Options to provide clearer direction regarding
what constitutes an acceptable statement of purpose and need are being
explored and we invite specific comments on this issue.
There was considerable support for allowing States and MPOs the
option of addressing purpose and need in the planning process, and even
to initiate the NEPA process at that time. This would allow
stakeholders to conduct broad ranging planning and subregional studies,
reach agreement on purpose and need during the planning process, and
benefit from such analyses by using them directly in the NEPA process.
There was also strong support for establishing a point during the NEPA
process at which the participants would discuss and concur in a
statement of purpose and need.
However, a considerable number of commenters, including many State
DOTs and MPOs, objected to any mandate for the determination of purpose
and need during planning and argued that it would burden the planning
process and add considerable delay by seeking a determination of need
at an inappropriate juncture.
The Surface Transportation Policy Project (STPP) recommended a two-
stage NEPA process where the first phase would evaluate the range of
social, fiscal, and environmental costs and benefits of various
alternative visions for a corridor or community. Based on this
evaluation, an initial statement of purpose and need would be
articulated. This purpose and need statement would be very broad, an
articulation of the goals for the area already arrived at through the
planning process, for example. The STPP proposed that a wide field of
inquiry would be maintained at this stage. Subsequent to this phase of
evaluation, and once a detailed review of options is complete, an
agency would have the information necessary to propose a revised, more
specific statement of purpose and need. It would be this revised
statement of purpose and need that would serve as the basis for a
detailed review of alternatives under NEPA. Under both phases, the
choice of a project purpose would be subject to public input.
The Environmental Law and Policy Center argued for the allowance of
lower-cost and lesser impact project alternatives to be selected
through the NEPA process even if they do not fully meet the stated
purpose and need. Both the U.S. EPA and the U.S. Department of Interior
argued for broadly defined purpose and need during planning to ensure
that a full range of modal alternatives are considered.
The National Coalition to Defend NEPA expressed concern over the
development of purpose and need during planning. It felt this could
prematurely preclude options and alternatives and argued that, until
the DEIS is completed, insufficient information is available with which
to make such decisions. In short, it is concerned that defining purpose
and need so early (in planning) could have the effect of ``setting in
stone'' projects without adequate consideration of alternatives.
Commenters asked for examples, best practices and information on
issues related to purpose and need determination, and there was general
consensus that improvements in defining purpose and need are warranted.
They felt that the difficulties articulated in the Options Paper
relating to broad versus narrow statements of purpose and need are
indeed real problems and that our agencies could provide useful
guidance in this area.
We intend to provide continuity between the systems planning and
project development processes so that the results of analysis performed
during the planning stage, including project purpose and need,
alternatives, public input, and environmental concerns are brought
forward into project development. The proposed integration of the
planning and project development process embodied in this regulation
would enable a more broadly defined statement of purpose and need to be
addressed at appropriate points in the integrated process.
There has also been much discussion of the standing given to
planning decisions on alternatives to be advanced or dropped from
consideration. The proposed regulation envisions an active discussion
of this issue during scoping, with the involvement of the responsible
planning agencies (i.e., the MPO and/or the State DOT). Ultimately, the
U.S. DOT agency, in cooperation with the applicant, must decide the
range of alternatives to be evaluated in detail in the NEPA document.
The proposed regulation allows these agencies to recognize planning
decisions made with adequate supporting documentation. Though the form
and content of this support will not be specified in the regulation, we
expect to see some or all of the following offered in this context:
technical studies as envisioned by proposed Sec. 1420.318(b),
documentation of public reviews and comments, formal policy board
resolutions in the case of MPO actions, or other supporting materials.
For proposed major transit investments, this review will also decide
whether the documented planning activities constitute the Alternatives
Analysis required by 49 U.S.C. 5309(e) or, alternatively, if the
requirement must still be satisfied in the NEPA process.
We propose to provide more detailed treatment on the subjects of
purpose and
[[Page 33967]]
need, and the development, analysis, and evaluation of alternatives in
the comprehensive package of informational materials. This would
include how to address alternatives which in the past have been
rejected for not fully meeting traditional concepts of purpose and
need. Further, we plan to showcase examples of successful practices
which demonstrate how effective integration of planning and project
development can protect communities and environmental resources and
save time in providing needed transportation improvements.
Examples of issues that might be covered include: the further
consideration of alternatives that may not fully meeting traditional
concepts of purpose and need; more broadly defined purpose and need
statements during the planning stage so that a full range of modal
alternatives are considered; an alternative analysis that examines non-
construction alternatives that use transportation demand strategies;
and flexibility to encourage the consideration of alternatives which
may have lower than originally desired levels of transportation service
if there are cost, time, and impact savings that justify the lower
levels of transportation service.
We are soliciting comments on a suggestion that specifically
addressing the requirements of the major investment study in the
planning process would enhance that process by forging a clearer link
between the planning and the project-level NEPA processes, leading to
greater streamlining at the project level.
Section 1420.203 Environmental Streamlining
This new section would be added to reflect the requirements of
section 1309 of the TEA-21. The basic premise of section 1309 of the
TEA-21 was to address concerns relating to delays, unnecessary
duplication of efforts and costs associated with the development of
highway and transit projects. Section 1309 also stipulates that nothing
in section 1309 shall affect the applicability of NEPA or any other
federal environmental statute or affect the responsibility of any
federal offices to comply with or enforce such statutes. The rule
responds to the TEA-21 environmental streamlining provisions by
establishing a process intended to coordinate Federal agency
involvement in major highway and transit projects with the goals of
identifying decision points and potential conflicts as early as
possible, integrating the NEPA process as early as possible,
encouraging the full and early participation of all relevant agencies,
and establishing coordinated time schedules for agencies to act on a
project.
This proposed section of the regulation establishes the
``coordinated environmental review process'' which section 1309 of the
TEA-21 directed the Secretary of Transportation to develop and
implement. Paragraph (a) lays out the elements of this coordinated
environmental review process, providing a substantive but flexible set
of actions to be taken by the U.S. DOT in cooperation with the
applicant to ensure that the goals of section 1309 are met. An
important element of this coordinated environmental review process is
reaching closure among the Federal agencies on the scoping process.
This paragraph calls for agency concurrence at the end of scoping,
which could take various forms depending upon the mutual understandings
and agreements of the Federal agencies. In the event of nonconcurrence,
this paragraph provides also for means to resolve interagency
disagreements at the earliest possible time. Paragraph (b) describes
the process for applying the coordinated environmental review process
to State level environmental reviews. Paragraph (c) would implement the
provisions of the statute which allow the Secretary to decide not to
apply section 1309 to the preparation of an environmental assessment.
Paragraph (d) would implement the CEQ NEPA regulation provisions on
paperwork reduction and clarifies that the NEPA documentation need not
explicitly contain a finding that a particular impact does not exist.
For example, if the environmental inventory revealed that there were no
wetlands in the project area, a specific finding indicating that the
project would have no impacts on wetlands would not be required. This
provision would help to focus NEPA documents on important issues in
accordance with the CEQ NEPA regulations' provision on paperwork
reduction.
One consistent theme that emerged through the outreach process
pointed to the need for early and up-front involvement of Federal
agencies in the NEPA process and for close coordination and cooperation
among the Federal agencies throughout the process. The State DOTs, the
MPOs, the National Association of County Engineers, the U.S. EPA, and
the U.S. Department of Interior all felt that Federal agency
involvement is critical to successful implementation of the
environmental streamlining provisions. They also recommend that our
field offices and the resource agencies' field offices throughout the
country have the authority to participate in, review, and respond to
issues associated with the NEPA process.
Inasmuch as stakeholder sentiments echoed a need for early
collaboration and close coordination with all interested and affected
parties, they also strongly reinforced the need for flexibility at the
State and local levels for implementing the goals of streamlining. A
``one-size-fits-all'' regulatory approach was soundly rejected by an
overwhelming majority of stakeholders, other Federal agencies,
practitioners, project sponsors, and field offices.
We believe that successful implementation of environmental
streamlining must be based upon a number of principles, and are
pursuing a process that will ensure effective environmental
decisionmaking in a timely manner. Both transportation and resource
agencies must improve their environmental review processes. The U.S.
DOT will provide national leadership on environmental streamlining, and
is working with CEQ and headquarters offices of the EPA, the U.S. Army
Corps of Engineers, the U.S. Fish and Wildlife Service, the U.S.
National Park Service, the U.S. National Oceanic and Atmospheric
Administration, the Advisory Council on Historic Preservation and
others to obtain commitments to better decisionmaking. The framework
for this commitment to the environment and to streamlining the
environmental process is set forth in the national Memorandum of
Understanding (MOU) which was entered into by the aforementioned
agencies in July 1999.\4\ We fully expect to track the commitments
reflected in the national MOU. We recognize that tangible progress will
evolve locally, and State by State, at different rates, based largely
on good working relationships and trust established among the agencies
at the field office level.
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\4\ This Memorandum of Understanding is available electronically
from FHWA's website at http://www.fhwa.dot.gov/environment/strming.htm.
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We are proposing to implement the environmental streamlining
requirements largely outside of the regulatory process through the
following means: (1) U.S. DOT memoranda of understanding with Federal
or State agencies; (2) establishment of dispute resolution processes;
(3) streamlining pilot efforts; (4) authorization of the U.S. DOT to
approve State DOT or transit agency requests to reimburse Federal
agencies for expenses associated with meeting expedited time frames;
and (5) establishing performance measures to evaluate and measure
success in both
[[Page 33968]]
environmental stewardship and environmental streamlining. We have
established an environmental streamlining page on the FHWA website to
keep the public up to date on our ongoing activities and resources
(http://www.fhwa.dot.gov/environment/strming.htm). We are also
providing a detailed description of our work to date on the following:
(1) National MOU
The central effort on the national MOU has been to craft an
agreement among agencies which demonstrates a commitment to key
principles and upon which further agreements can be executed at a local
or regional level to address more specific issues. Establishing and
maintaining clear and frank communication has been at the heart of the
national MOU and would be the primary guide to further interagency
agreements.
The process of developing the national MOU was aimed chiefly at
responding to the concerns regarding early and up-front involvement of
Federal agencies in the NEPA process and for close coordination and
cooperation between Federal agencies throughout the process. We are
working with representatives of other Federal agencies at the
headquarters and field levels to develop a common understanding of the
environmental streamlining provision and a coordinated implementation
strategy. The development of the national MOU has followed the
suggestion of AASHTO, Association of Metropolitan Planning
Organizations (AMPO), and many State DOTs that the MOU include broad
principles of agreement on how the NEPA process would be carried out
but that project-specific or program-specific MOU's need to be
developed at the State, regional, or local level, based upon these
broad principles, and tailored to specific local circumstances or
projects.
(2) Dispute Resolution Procedures
Procedures for resolving conflict at the national, regional, and
State levels are under development. Mediation methods and systems for
alternative dispute resolution are being developed and training
programs in these methods will be established. This approach will
enable parties to seek timely intervention over disputes during the
project development process, as a way to circumvent and minimize the
number of environmentally unacceptable projects that may otherwise be
referred to CEQ for resolution, by either reestablishing consensus on
the need for the project or reaching consensus to drop the project
entirely. Alternative dispute resolution strategies will be defined so
that they can be effectively applied to improve institutional
relationships among parties or to resolve conflicts surrounding
specific project issues.
On the matter of dispute resolution procedures, commenters made
three key points. They felt that explicit time frames for document
reviews are needed and should be agreed to, to the fullest extent
possible, up-front in the process. Secondly, they supported an approach
where the parties to the MOU agree, at an early stage, on the level of
information and detail that is needed at various steps in the NEPA
process. Resource agencies expressed frustration with the timing and
level of detail of information that they are asked to consider and act
upon, and State and local implementing agencies expressed frustration
due to uncertainties over what specific information and level of detail
would be required of them by the Federal resource, regulatory and
permitting agencies. A third point made by many stakeholders was that
procedures on coordination, documentation, and communications should be
agreed to as early as possible. They felt that this would help to
resolve differences that arise at various points in the process and
which can contribute to delays.
(3) Pilot Efforts Are One Effective Mechanism for Testing and
Evaluating Change
One specific topic suggested for pilot projects was from the North
Carolina DOT and the American Road and Transportation Builders
Association, which suggested the testing of alternative approaches to
gaining interagency cooperation during the NEPA process. The Virginia
DOT suggested that pilot project efforts should be directed at finding
ways to resolve differences between Federal agencies. A third
suggestion was that pilot projects should test approaches to providing
States flexibility in carrying out the NEPA process.
Not all commenters supported the concept of pilot projects,
however, and the National Coalition to Defend NEPA questions the legal
authority of our agencies to conduct pilot projects and cautioned
against using pilot projects to ``back-door'' the NEPA process. It was
also concerned that pilot efforts not only involve partnership
development between Federal and non-Federal partners and resource
permitting agencies, but also include groups representing the public as
well.
Based on the input received on the issue of pilot efforts, we are
not proposing to establish a formal process for pilots at this time,
through regulation or any other means. Instead, we will participate in
pilot efforts on a case-by-case basis. These pilot efforts might be
focused on a single project or on improving a particular process, but
would not include the delegation of Federal NEPA responsibilities to
States that was considered but not enacted in the TEA-21. We will
continue to coordinate closely with the U.S. EPA, the AASHTO and others
who are developing pilot efforts, and will actively assist in sharing
information on efforts including lessons learned.
(4) Use of Titles 23 and 49, U.S.C., Funds To Pay for Environmental
Agency Work
The agency reimbursement language in the environmental streamlining
provisions of the TEA-21 offers an opportunity to partially overcome an
historic obstacle, that Federal agencies cannot involve themselves in
the process early enough or regularly enough due to resource
constraints within agencies. The TEA-21 includes specific conditions
allowing States and transit agencies to use Federal transportation
funds for reimbursement of expenses related to work done to meet the
expedited time schedules required by section 1309 of the TEA-21. In
addition, other statutory authorities exist for agency reimbursement,
and we are exploring the full range of options for reimbursing agencies
through any of the available authorities. Furthermore, approaches to
developing collaborative efforts with other Federal agencies are being
explored in order to develop model reimbursement agreements, and to
facilitate the implementation of such agreements by Federal agency
field staff.
Due to the need for flexibility and the different practices and
needs of various State and resource agencies, it was determined that
nonregulatory guidance would most appropriately address the use of
Federal transportation funds for reimbursing costs associated with
streamlining. Hence, we engaged participation by many other affected
Federal agencies to develop a single guidance package that would be
useful to transportation and environmental agencies, including State
DOT's and transit agencies and Federal, State, and local resource
agencies. The breadth of situations that might be addressed under this
provision was such that the guidance does not try to anticipate them
all. Rather, it reinforces the Federal government's belief in effective
interagency coordination and
[[Page 33969]]
demonstrates a commitment from Headquarters offices to support field
efforts in implementing this provision of the TEA-21.
There were a number of comments on this TEA-21 provision and a
suggestion from the American Road and Transportation Builders
Association that the principles to apply to reimbursement should
include a provision that reimbursement for Federal agency activities to
expedite NEPA reviews must be linked to a specific project, set of
tasks, and person or position to be involved on behalf of the Federal
agency. Others, including the Nevada and Missouri DOTs, felt that
reimbursing an agency for working on one project over another is not a
good approach. Reimbursing agencies for doing their jobs, it was
argued, would introduce a bias into the NEPA process which would result
in an expedited review or enhanced level of participation on some
projects over others.
(5) Performance Measures
Our agencies have a joint effort underway to evaluate the
timeliness and the effectiveness of the NEPA process at arriving at
decisions that are in the best overall public interest. Further
information on this effort can be obtained from the FHWA.
Section 1420.205 Programmatic Approvals
Section 1420.205 would be added to establish in regulation the
FHWA/FTA practice of using programmatic environmental approvals as one
way of addressing recurring situations in a streamlined manner.
This practice has been especially effective with categorical
exclusions for meeting the NEPA requirements in uncomplicated and non-
controversial situations. One example of this are programmatic
categorical exclusion approvals in which FHWA and a State DOT
established a set of environmental impact thresholds, which, if not
exceeded, allow the State DOT to apply the categorical exclusion
approval without a project specific review by FHWA. Periodically, the
FHWA reviews a sample of projects after-the-fact to ensure that the
approval was appropriately applied. Other examples of programmatic
approvals include section 4(f) approvals for minor uses of parkland and
approval to delegate certain USDOT responsibilities under the recently
issued regulations implementing section 106 of the National Historic
Preservation Act. The proposed section explicitly recognizes the
appropriateness of programmatic approaches for compliance with NEPA and
related statutes, but does not specify the types of actions for which
programmatic approaches would be created. Programmatic approaches to
meeting the NEPA requirements which would not directly involve project
level Federal approvals would be subject to periodic process reviews to
ensure that they are being properly applied. This would enable the
Federal agencies to focus limited resources on more problematic
project-level decisions and to maintain a quality assurance role for
projects with beneficial or de minimis environmental impacts. There was
general support for such an approach in comments on the Options Paper.
We invite comments on public notice and interagency coordination
processes appropriate for making programmatic approvals.
Section 1420.207 Quality Assurance Process
This new proposed section would establish an internal
responsibility for our agencies to employ appropriate quality
management methods to assure that the NEPA responsibilities are carried
out in a competent and timely manner. Such a process is intended to
streamline the process by institutionalizing lessons learned throughout
the administration of our programs and NEPA so that mistakes are not
repeated and innovative approaches are fully implemented.
The requirements in the current regulation for legal sufficiency
review of Final Environmental Impact Statements (FEIS) and prior
concurrence of the Headquarters on certain FEISs would be incorporated
into this proposed section. These processes have proven helpful in
assuring the quality of analysis, coordination, and documentation and
can prevent costly and timely lawsuits and conflicts. As proposed, the
nature of legal sufficiency review and the threshold for requiring
prior concurrence at Headquarters would not be specified in regulation,
but would be the subject of internal orders.
Section 1420.209 Alternate Procedures
This new section would be added to establish the procedures for
processing and approving alternate procedures for complying with this
regulation. This would give us the flexibility to partner with CEQ and
State DOTs or transit agencies on NEPA reinvention efforts that achieve
the goals of the NEPA process by using alternate methods or procedures
that are more in tune with and supportive of non-Federal decisionmaking
requirements.
Section 1420.211 Use of This Part by Other U.S. DOT Agencies
In 1993, the U.S. DOT National Performance Review effort
recommended that the NEPA procedures of the various modes be blended
into a single process. Efforts to accomplish this unified procedure
were purposely delayed until after passage of the surface
transportation reauthorization which became TEA-21. Recent discussions
within the U.S. DOT are now pointing toward a dual effort, one element
of which would cover the entire department, the other of which is this
proposed regulation covering just the FHWA and the FTA. To advance the
first element, U.S. DOT would revise the U.S. DOT Order on NEPA to
update the departmentwide statement of environmental policy and to
remove barriers to collaboration between the U.S. DOT modes on NEPA
issues. It would provide authority for one U.S. DOT agency to use the
NEPA procedures of another U.S. DOT agency or to act as the agent for
another U.S. DOT agency when a situation warrants. This proposed
section clarifies in regulation that the internal order is considered
legally sufficient to provide these authorities. The further action at
the departmental level to amend the U.S. DOT Order on NEPA is under
development.
Most Options Paper commenters, including State DOTs, MPOs,
associations, and authorities supported a coordinated approach to NEPA
within the U.S. DOT and its modal administrations. There was strong
support for the elimination of differences in how the FHWA and the FTA
manage the NEPA process and for a consolidation of these approaches in
the updated regulation. In addition, there was strong support from New
York DOT, the American Road and Transportation Builders Association and
others for the elimination of provisions duplicating the CEQ
regulations, which many thought would lead to a streamlined regulation.
Finally, many commenters supported the notion of the FHWA and the FTA
having strong oversight over the NEPA process. Equally important,
commenters noted, is that there be a true partnership between Federal
agencies and State and local agencies.
Section 1420.213 Emergency Action Procedures
This proposed section would contain the provision currently found
at 23 CFR 771.131.
[[Page 33970]]
Subpart C--Process and Documentation Requirements
This proposed subpart describes the requirements of carrying out
the NEPA process, including establishing the roles of various
governmental agencies and the public in the process, determining the
appropriate level of environmental documentation under NEPA, and laying
out the procedural requirements for processing NEPA documents. It
complements and supplements the CEQ regulations that provide the
general NEPA framework for the entire Federal government. In addition
to the regulatory requirements described in this subpart, the FHWA's
and FTA's comprehensive package of informational materials will provide
detailed nonregulatory approaches to many of the subjects herein.
Section 1420.301 Responsibilities of the Participating Parties
This is a new section that addresses some of the items currently
contained within Sec. 771.109. Paragraph (a) of the proposed section
utilizes the current CEQ regulations (40 CFR 1500-1508) to define terms
and set forth concepts, such as: Lead and cooperating agencies; the
relationship between Federal agencies, applicants, and contractors; and
enhancing the efficiency of the NEPA process through cooperation
between Federal, State, and local agencies.
Paragraph (b) would clarify in regulation current practice for
administering the NEPA process for projects implemented directly by the
Federal government on Federal lands. Namely, it is a shared
responsibility of the U.S. DOT and the Federal land management agency.
The precise nature of the responsibility is specified in agreements or
standard operating procedures.
In the previous regulations, the provision in 23 CFR 771.109(c) on
agency responsibilities is largely repetitive of what is also found in
CEQ's regulations on NEPA. For this rulemaking effort, we are reluctant
to propose regulatory language which simply restates existing sections
of another regulation, and would streamline this section accordingly.
Paragraph (c) of the proposed section addresses the use of contractors
in the NEPA process for contracting for environmental and engineering
services. The proposed rule allows a State to procure the services of a
consultant, under a single contract, for environmental impact
assessment and for subsequent post-NEPA engineering and design work in
accordance with the provisions of 23 U.S.C. 112(g), as amended by the
TEA-21.
Section 1205 of the TEA-21 allows a State to procure under a single
contract, the services of a consultant to prepare environmental
documents for a project, and to perform subsequent final engineering
and design work on the project. This would only occur if the State
conducted a review assessing the objectivity of the environmental
documentation. Experience has shown that, although on many projects
consultants do prepare the bulk of the detailed analyses and NEPA
documentation, this process involves close oversight by the State or
local public agency and by the lead Federal agency. It is the ongoing
responsibility of our agencies to ensure that all consultant work
reflected in the NEPA process and documentation meets appropriate
standards of objectivity and professionalism.
The contracting provisions were included in the TEA-21 to clarify
our agencies' positions on the use of contractors for environmental and
engineering design work for Federal transportation projects, and were
chiefly aimed at addressing concerns of potential conflict of interest
on the part of the consultants.
The U.S. DOT believes that more detailed nonregulatory guidance
will best address the specifics of disclosure statements, other
requirements of 40 CFR 1505.5(c), and the requirement for a review of
the objectivity of the environmental document.
Generally speaking, commenters on the Options Paper felt that
current level of oversight and review is sufficient, and that
additional documentation to ensure objectivity is unnecessary. The EPA
suggested the need for the development of Federal procedures for
monitoring, investigating, and resolving conflicts that might result
from this TEA-21 provision.
Section 1420.303 Interagency Coordination
The proposed section would revise the current Sec. 771.111 (a)
through (e). The proposed section would simplify the current section by
focusing on key terms and concepts that are the basis of an integrated
decisionmaking process conducted under the NEPA umbrella. For example,
the proposed section features the term ``interagency coordination'' to
supplement the current ``early coordination'' in order to better
express the collaborative intent of the FHWA/FTA NEPA process. The
proposed section provides an explanation of the role and function of
interagency coordination in the NEPA process. The term ``interested
agencies'' would be added. The proposed section briefly outlines a
procedure for notifying affected Federal, State, and local entities of
the availability of approved documents for classes of action other than
an EIS.
Scoping and early coordination can set the tone, positive or
negative, for subsequent project development activities. Experience has
shown that many of the conflicts which delay Federal approvals of
highway and transit projects are somewhat predictable, and might be
better anticipated and managed by using the scoping process as an early
warning system. In addition, the development of interest-based
negotiating and collaborative problem solving skills can help to craft
implementable solutions. Two possible solutions emerged through the
outreach process that could assist Federal agencies and applicants in
performing more effective project scoping. One approach to the scoping
of complex projects is that agencies agree on review schedules, but
only after sufficient information on issues has emerged to allow them
to gauge the required level of effort for their respective agencies.
Another approach might make the scoping process, as part of an
aggressive, high visibility project management role by our agencies as
the lead Federal agenc(ies), a mechanism for identifying the issues,
and agreeing on roles, time frames and methodologies associated with
advancing the project, and possibly memorializing that agreement in a
project MOU.
Both program reviews and feedback from stakeholders indicate that
the FHWA and the FTA need to take a stronger leadership role in the
NEPA process. Commenters including the National Coalition to Defend
NEPA, the AASHTO, the American Road and Transportation Builders
Association, and others reinforced this point in their comments on the
Options Paper. These groups said that the FHWA and the FTA staff should
attend meetings and serve as conflict resolution agents and mediators
between other agencies. Also, they told us that we should provide
information, such as, handbooks, best practices on scoping, and
training for practitioners. As was the case in many areas, stakeholders
including MPOs, State DOTs and others feel that much progress can be
made in better integrating environmental and other considerations into
the planning process through training, examples of where new approaches
are working, handbooks and other useful materials.
Many of the detailed considerations of the scoping process are
outside the
[[Page 33971]]
scope of this proposed rule, and will be addressed separately.
Effective project scoping and interagency coordination is a chief topic
of our environmental streamlining efforts, and will be given more
detailed treatment in the comprehensive package of informational
materials to be issued in conjunction with the final rule. Scoping may
also be the subject of further guidance on its own. We will make full
use of input received through the outreach efforts, as well as through
our ongoing coordination with transportation and environmental
agencies, in the development of this additional guidance.
Section 1420.305 Public Involvement
Current Sec. 771.111(h) would be redesignated as Sec. 1420.305. It
remains relatively unchanged for State DOTs except that the separate
requirements specific to the FHWA and the FTA programs would be
deleted; and new references specific to public involvement procedures,
notification requirements, and accommodations for those with
disabilities would be added. A requirement would be added to
specifically ascertain if public involvement is warranted whenever a
reevaluation is being conducted. Also a minimum 45-day public comment
period would be established whenever public involvement procedures are
initially adopted or revised.
The proposed rule also aims to consolidate requirements of our two
agencies for public involvement so that the U.S. DOT can offer a more
consistent approach on this subject. Based upon comments to the Options
Paper, there was resounding support for a consistent approach to public
involvement requirements between the FHWA and the FTA and this was
cited by the National Coalition to Defend NEPA as one way to make the
planning process more accessible and understandable to the public. This
consolidation may mean that some transit agencies may have to formalize
their public involvement procedures through board adoption, or revise
their procedures to ensure their applicability to the NEPA process. The
FTA does not expect to find many transit agencies without existing
adopted procedures applicable to project development, but invites
comment on this concern. We recognize the importance of public
involvement to informed decisionmaking, and have issued a number of
publications which provide nonregulatory guidance on how to increase
the effectiveness of applicants' public involvement efforts.
The new Sec. 1420.305(d) recognizes the need for public involvement
on certain re-evaluations where the elapsed time may have altered
public expectations.
Section 1420.307 Project Development and Timing of Activities
Current Sec. 771.113 would be redesignated as Sec. 1420.307 and
revised. The proposed section would clarify the circumstances in which
the FHWA/FTA would not approve initiation and funding for certain
activities, such as, final design activities. The proposed section
would encourage compliance with the requirements of all applicable
environmental laws, regulations, executive orders, and other related
requirements be demonstrated prior to approval of the final
environmental documents or categorical exclusion (CE) designation.
Conditions under which agencies responsible for metropolitan and
statewide planning would be notified in order to satisfy the planning
and programming requirements of proposed 23 CFR part 1410 would be
identified.
However, under the NPRM the FHWA and the FTA would not prevent
State and local governments and private entities from taking certain
actions that are ``at risk'' of being rendered useless by the final
NEPA decision. Such actions include final design or land acquisition
prior to NEPA approval, but do not include those that would have an
adverse impact, such as, demolition or construction. The FHWA and the
FTA would view at risk activities that actually substantially harm
environment as so subverting the NEPA process that we would inform
applicants that the action would be ineligible for FHWA or FTA
financial assistance. The FHWA and the FTA would not finance such ``at
risk'' actions, and would not allow their decisions to be influenced by
the actions taken by others. For projects that will be federally-
funded, the present regulation prohibits final design and land
acquisition (with certain limited exceptions) prior to the completion
of the NEPA process. The enforcement of this prohibition has been
confounded by the fact that specific funding sources, especially for
smaller projects, are often not identified until late in project
development. Hence, the applicability of the Federal requirements that
attach only to Federal funding sources is not yet determined at the
time the ``at risk'' activities are initiated.
We are considering issuing guidance on how to handle such
situations, especially in terms of disclosure responsibilities.
We propose to clarify that full compliance with the transportation
conformity rule (40 CFR parts 51 and 93) is required prior to the
approval of the final EIS, FONSI or CE \5\ designation. As a result,
this proposal would allow preliminary engineering for project
development activities to be done prior to final NEPA approval without
having to meet conformity requirements. We request public comment on
our proposed clarification.
---------------------------------------------------------------------------
\5\ Environmental Impact Statement (EIS), Finding of No
Significant Impact (FONSI), categorical exclusion (CE).
---------------------------------------------------------------------------
We believe that this proposed change is allowed under current
regulations. While the conformity rule requires that a project come
from a conforming plan and transportation improvement program (TIP)
before final NEPA approval, the rule does not explicitly specify that
the project must be in a conforming plan and TIP in order to initiate
the NEPA process. In fact, 40 CFR 93.126, table 2, identifies as
exempt, ``engineering to assess social, economic, and environmental
effects of the proposed alternatives to that action.'' We feel that
this is an important distinction that may help to improve the quality
of the NEPA process leading to more effective, efficient, and
environmentally sound judgments, without compromising the planning
process and air quality analysis.
We believe that the emissions impacts of the project should be
considered as early as possible and continue to encourage the inclusion
of projects in the plan and TIP conformity analysis as early as
feasible prior to the completion of the NEPA process where it is
feasible. Earlier inclusion of the project in the plan and TIP is
beneficial for the overall development of the plan and TIP because
regional analysis is used as a long term indicator of the area's
emissions impacts and associated problems. Early analysis of projects
in the plan and TIP allows a more comprehensive long term assessment of
how emissions impacts can be minimized, whether through changes in the
timing of projects or changes to the composition of the plan and TIP.
However, a major problem with this approach is that it is
counterproductive to corridor planning, prejudges alternatives and can
limit thorough exploration of all feasible alternatives throughout the
project development process. It can be counterproductive to, rather
than supportive of, good long term transportation systems planning in
certain circumstances. The reason for this is that in order for a
project to be included in the regional plan and TIP and regional
analysis prior to
[[Page 33972]]
completion of NEPA, certain assumptions must be made about the project
and related emissions impacts. It is difficult to define project design
concept and scope that early in the planning process, especially for
those projects requiring the highest level of environmental review and
scrutiny. When taking complex projects through the project development
process, it is very difficult to simply define two points of connection
to the network, the number of lanes and facility type (that which is
needed for regional analysis). Complex projects and corridor projects
often examine multimodal options, some of which are not fully developed
until later in the NEPA process. Under this scenario, the assumptions
for regional analysis for conformity purposes may encourage an overly
narrow alternatives analysis and constrain the environmental review
process. We request comment on whether similar experiences have
occurred in practice when accounting for preliminary engineering for
project development in regional conformity analyses.
It is important to note that, under this proposal, preliminary
development of new projects could proceed during a conformity lapse,
since such activities would not need to meet conformity requirements.
However, final NEPA documents on new projects could not be approved
under this proposal until a new conforming plan and TIP are in place.
We believe the frequency requirements for conformity are sufficient
to ensure that full emissions impacts of the projects are accounted for
before projects move into the final design; therefore, long term risks
are minimal and the projects must be included in the regional
conformity emissions analysis prior to the completion of NEPA. The
regional emissions analysis and conformity determinations can be made
as frequently as once a year, but at a minimum at least every three
years; therefore, it is reasonable to allow environmental reviews and
the NEPA process to be initiated without the project being included in
the conformity analysis.
Section 1420.309 Classes of Actions
Current Sec. 771.115 would be redesignated as Sec. 1420.309 and the
text would remain the same, except for the addition of certain
intercity railroad and intermodal actions.
Section 1420.311 Categorical Exclusions
The proposed Sec. 1430.311 would make several changes from the list
of CEs in the current Sec. 771.117 to reflect changes in the FHWA and
the FTA programs since 1987. Modal limitations would be eliminated
wherever possible. In addition, the CEs would be reordered and
regrouped so that similar actions are listed together. The CEs would
continue to be organized into two major groupings: those in paragraph
(c) that require no further U.S. DOT agency approval, and those in
paragraph (d) that require a written demonstration that the CE is
appropriate. Paragraph (c) would clarify the need for NEPA approval by
the U.S. DOT agency for listed CEs to which other environmental laws
(e.g., section 106 of the National Historic Preservation Act) apply.
The proposed changes in CEs in paragraph (c) would be as follows:
Paragraph (c)(1) (non-construction activities) would incorporate
the text of current Sec. 771.117(c)(1), (c)(20), and part of (c)(16)
without substantive change. It would add designations to the National
Highway System to the list.
Paragraph (c)(2) (resurfacing) would move part of the text of
current Sec. 771.117(d)(1) to paragraph (c). Experience has shown that
simple resurfacing of an existing pavement does not require additional
written information for a CE determination.
Paragraph (c)(3) (routine maintenance) is not explicitly covered in
the current Sec. 771.117, but it is an important program activity,
especially for transit with the re-definition of preventive maintenance
as a capital expense.
Paragraph (c)(4) (ITS elements) is not explicitly covered in the
text of current Sec. 771.117. Installation of isolated ITS elements is
proposed for paragraph (c), but an areawide coordination of multiple
ITS elements that would have greater impact on the transportation
system is proposed for paragraph (d)(2).
Paragraph (c)(5) (safety programs) would incorporate the text of
current Sec. 771.117(c)(4) and would add a current CE of the Federal
Railroad Administration related to safety.
Paragraph (c)(6) (support facility improvements) would incorporate
the current Sec. 771.117(c)(12), but would extend it to cover toll
facilities, control centers, and vehicle test centers, facilities that
are similar in size and activity to those in the current CE.
Paragraph (c)(7) (carpool programs) uses a defined term to
incorporate the text of current Sec. 771.117(c)(13) except that carpool
activities requiring land acquisition and construction (such as new
parking lots) would be excluded and covered in paragraph (d)(6).
Paragraph (c)(8) (emergency repairs) would incorporate the text of
current Sec. 771.117(c)(9), but extends it to cover modes other than
highways.
Paragraph (c)(9) (operating assistance) would incorporate the
second part of the text of current Sec. 771.117(c)(16) without
substantive change.
Paragraph (c)(10) (vehicle acquisition) would incorporate the text
of current Sec. 771.117(c)(17) without substantive change.
Paragraph (c)(11) (purchase and lease of equipment) would
incorporate the text of current Sec. 771.117(c)(19), but would extend
it to cover leases and the capital cost of contracting for transit
services.
Paragraph (c)(12) (vehicle rehabilitation) would incorporate the
current Sec. 771.117(c)(14), but would extend it to cover conversions
to alternative fuels.
Paragraph (c)(13) (track maintenance) would incorporate the text of
current Sec. 771.117(c)(18), but would extend it to cover wayside
systems in addition to tracks and railbeds.
Paragraph (c)(14) (bicycle-pedestrian facilities) would incorporate
the text of current Sec. 771.117(c)(3) except that bicycle and
pedestrian projects requiring land acquisition and construction (such
as bike paths on new right-of-way) would be excluded and covered in
paragraph (d)(19).
Paragraph (c)(15) (ADA accessibility) would incorporate the text of
current Sec. 771.117(c)(15) without substantive change.
Paragraph (c)(16) (signing, etc.) would incorporate the text of
current Sec. 771.117(c)(8) without substantive change.
Paragraph (c)(17) (property management) would incorporate the text
of current Sec. 771.117(c)(2), (5), and (11), and similar property
management activities under the transit program. In addition, disposal
of excess property would be moved from Sec. 771.117(d)(6) because
experience has shown that the sale or transfer of property does not
have significant impact in and of itself, and the U.S. DOT agency does
not have the statutory authority to control the subsequent use of
property after it has been sold by the applicant.
Paragraph (c)(18) (transportation enhancements) would incorporate
the text of current Sec. 771.117(c)(7) and (10), and would add other
transportation enhancement activities and transit enhancements to the
list.
[[Page 33973]]
Paragraph (c)(19) (noise walls) would incorporate the current
Sec. 771.117(c)(6) without substantive change.
Paragraph (c)(20) (mitigation banking) would be added due to the
transportation enhancement provisions and changes in the mitigation
policies of Federal resource agencies that allow or encourage this form
of mitigation.
The proposed changes in CEs in paragraph (d) would be as follows:
Paragraph (d)(1) (highway rehabilitation) would incorporate the
text of current Sec. 771.117(d)(1) except that simple resurfacing is
now proposed to be moved to paragraph (c) and would not require a
written CE demonstration.
Paragraph (d)(2) (operational improvements) would incorporate part
of the text of current Sec. 771.117(d)(2), with clarification through
examples of the ITS systems that would be covered.
Paragraph (d)(3) (safety improvements) would incorporate parts of
the text of current Sec. 771.117(d)(2) and (3) without substantive
change. It would add safety-related programs of recent importance
including seismic retrofit and mitigation of wildlife hazards.
Paragraph (d)(4) (bridge rehabilitation) would incorporate part of
the text of current Sec. 771.117(d)(3) with the clarification that the
approaches to the bridge or tunnel would also be included in the
project and that historic bridges and bridges providing access to
ecologically sensitive areas are excluded.
Paragraph (d)(5) (bridge replacement) would incorporate the
remaining part of the text of current Sec. 771.117(d)(3). If
applicable, ``section 106'' (National Historic Preservation Act (16
U.S.C. 470 et seq.)), ``4(f)'' (49 U.S.C. 303), ``section 404''
(Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 to
1376)) and coastal zone management issues must be addressed in the CE
documentation and coordinated with the other agencies in accordance
with those statutes.
Paragraph (d)(6) (parking facilities) would incorporate activities
from the current Sec. 771.117(c)(13) and (d)(4), but would apply to all
parking facilities, not just those on transportation fringes, if the CE
conditions are met.
Paragraph (d)(7) (new operations centers) would be added as a CE
primarily covering the construction of buildings to house the control
centers from which ITS systems are operated and managed.
Paragraph (d)(8) (support facility construction) would incorporate
the text of current Sec. 771.117(d)(5) with the addition of other
similarly sized support facilities.
Paragraph (d)(9) (access control) would incorporate the text of
current Sec. 771.117(d)(7) without substantive change.
Paragraph (d)(10) (track improvements) would incorporate the text
of current Sec. 771.117(c)(18) in situations where land acquisition is
needed.
Paragraph (d)(11) (storage yards and shops) would incorporate the
text of current Sec. 771.117(d)(8) and (11) without substantive change.
Paragraph (d)(12) (building renovation) would incorporate the text
of current Sec. 771.117(d)(9) without substantive change.
Paragraph (d)(13) (transfer facilities) would incorporate the text
of current Sec. 771.117(d)(10) without substantive change.
Paragraph (d)(14) (ferry facilities) would be added as an explicit
statement that work on existing ferry facilities may be a CE, but
concern for water-related impacts necessitates its inclusion in
paragraph (d) so that a written CE demonstration must be provided.
Paragraph (d)(15) (rail service demonstrations) would be added as a
CE, based on our experience with previous similar cases. If the service
demonstration were to lead to proposal for permanent service involving
Federal financial support, that permanent project would be separately
evaluated for its impacts.
Paragraph (d)(16) (advance land acquisition) would have three parts
to it as follows:
(1) Paragraph (d)(16)(i) would allow the acquisition primarily of
underutilized private railroad rights-of-way (ROW). It reflects current
FTA practice where present or recent rail operations on the ROW ensure
that adjacent land uses remain generally compatible with the continued
transportation use of the ROW;
(2) Paragraph (d)(16)(ii) would respond to the provisions of the
TEA-21 section 1301 without attempting to elaborate on those
provisions. Such elaboration would be covered in separate guidance on
the issue of advance land acquisition; and,
(3) Paragraph (d)(16)(iii) would incorporate the text of current
Sec. 771.117(d)(12) covering hardship and protective acquisitions,
without substantive change.
Paragraph (d)(17) (joint development) would incorporate part of the
text of current Sec. 771.117(d)(6) without substantive change.
Paragraph (d)(18) (bicycle facilities) would incorporate activities
covered in the text of current Sec. 771.117(c)(3). With this change,
bicycle projects involving land acquisition and construction would
require a written CE demonstration.
Paragraph (d)(19) (storm water management) would add a new CE that
covers a transportation enhancement activity that may involve land
acquisition and construction of storm water detention or retention
ponds. It is, therefore, proposed to be included in the list where a CE
demonstration is required.
Paragraph (d)(20) (historic transportation facilities) would add a
new CE that covers a transportation enhancement activity that will have
section 106 (historic preservation) implications. It is, therefore,
proposed to be included in the list where a CE demonstration is
required.
Paragraph (d)(21) (other transportation enhancements) would add a
new CE that covers the other transportation enhancement activities and
transit enhancements that are not explicitly listed.
We propose additional, nonregulatory guidance on situations where a
group of different, but related, categorically excluded actions may
need to be evaluated as a whole if they have a net effect that warrants
further environmental analysis (e.g., ITS projects throughout a
corridor).
Some commenters including the Michigan DOT, the AASHTO and others
requested that advance right-of-way acquisition be added to the
categorical exclusion list. The U.S. EPA was concerned about
coordinating any expansions of the list with other Federal agencies and
was particularly concerned about wetlands mitigation needs. The Ohio
DOT suggested that rather than expand the list of categorical
exclusions, our agencies develop ``thresholds of significance'' whereby
projects within those thresholds would be those considered for
categorical exclusions. Finally, a number of commenters, including the
Ventura County Transportation Commission, the ARTBA, and the Oregon DOT
supported the categorical exclusion of transportation enhancement
activities and suggested categorically excluding congestion mitigation
and air quality program (CMAQ) eligible projects. We have considered
these comments in devising the proposed list. Nevertheless, we invite
comment on these suggestions and on the appropriateness of the
activities proposed to be categorically excluded, including whether or
not specific activities should be included in the list under paragraph
(c) or the list under paragraph (d). We encourage commenters to provide
examples or information drawn from their
[[Page 33974]]
experience bearing on the appropriateness of the proposed categorical
exclusions. We also invite comments on the practice, begun with the
1987 regulation, of using an open-ended list of examples of activities
that can be categorically excluded only after appropriate documentation
has been prepared and approved on a case-by-case basis by the USDOT
agency.
Section 1420.313 Environmental Assessments
Current Sec. 771.119 would be redesignated as Sec. 1420.313 with
some minor editing changes.
Section 1420.315 Findings of No Significant Impact
Current Sec. 771.121 would be redesignated as Sec. 1420.121 with
minor editing changes.
Section 1420.317 Draft Environmental Impact Statements
The proposed section would revise the current Sec. 771.123 by
expanding the description of both public involvement procedures and the
information products developed in accordance to the proposed 23 CFR
part 1410. Paragraph (b) would specifically indicate that the scoping
process must consider the results of the planning process including
public involvement and interagency coordination. Items related to
mitigation would be expanded to include environmental enhancements.
Paragraph (b) would now emphasize public involvement and interagency
coordination. Paragraph (c) would add language to our goals and
policies in terms of implementing NEPA. The discussion on the use of
consultants in the development of the draft EIS would be removed to
avoid repetition with proposed Sec. 1420.301.
Section 1420.319 Final Environmental Impact Statements
Current Sec. 771.125 would be redesignated as Sec. 1420.319.
Information would be added in paragraph (a)(1) to require any
additional environmental studies, public involvement, and/or
coordination to consider refinements of alternatives and mitigation to
be presented in the FEIS.
Section 1420.321 Record of Decision
Current Sec. 771.127 would be redesignated as Sec. 1420.321. In
paragraph (a), the information about preparation of the notice of
availability would be expanded to indicate where and to whom the notice
should be provided. In paragraph (c), wording would be added to
emphasize that mitigation and enhancement features associated with the
selected alternative become enforceable conditions of any U.S. DOT
actions.
Section 1420.323 Re-evaluations
Current Sec. 771.129 would be redesignated as Sec. 1420.323.
Paragraphs (a) through (c) are essentially unchanged from the current
regulation. Paragraph (d) has been added to ensure public involvement
and interagency coordination when the situation warrants. Guidance will
be provided on this subject. We invite comment on how effective the
proposed reevaluation provision would be in addressing projects which
are implemented over an extended period of time, with construction
occurring under multiple contracts. We also invite comment on the
appropriate role of public involvement in reevaluations.
Section 1420.325 Supplemental Environmental Impact Statements
Current Sec. 771.130 would be redesignated as Sec. 1420.325. It is
essentially unchanged from the current regulation except that
supplementation now includes consideration of public involvement and
interagency coordination.
Section-by-Section Analysis of the Proposed Rule on Protection of
Public Parks, Wildlife and Waterfowl Refuges, and Historic Sites
For ease of reference, a distribution table is provided for the
current sections and proposed sections as follows:
----------------------------------------------------------------------------------------------------------------
Current Section Proposed Section
----------------------------------------------------------------------------------------------------------------
None........................................ 1430.101 Purpose.
771.109(a)(1) and(2) and part of 771.135(b). 1430.105 Applicability.
771.135(a).................................. 1430.103 Mandate.
771.135(c) and (e).......................... 1430.109 Significance.
771.135(p)(1),(2),(4), and (7).............. 1430.107 Use of land.
771.135(d),(f),(g),(h), and (p)(5).......... 1430.111 Exceptions.
771.135(a)(2), part of (b), part of (i), 1430.113 Evaluations under NEPA.
(j),(k),(l),(p)(3), and (p)(6).
771.135(m) and (o).......................... 1430.115 Separate evaluations.
771.135(i)[last sentence]................... 1430.117 Programmatic evaluations.
771.135(o).................................. 1430.119 Linkage to planning.
None........................................ 1430.121 Definitions.
----------------------------------------------------------------------------------------------------------------
Section 1430.101 Purpose
This new section would be added to state that this regulation
implements 49 U.S.C. 303 and 23 U.S.C. 138 (section 4(f)).
Section 1430.103 Mandate
Current Sec. 771.135(a)(1) would be redesignated as Sec. 1430.103
without substantive change in text.
Section 1430.105 Applicability
Current Secs. 771.109(a)(1) and (2) provide the basis for this
proposed section. Also, part of Sec. 771.135(b) would be incorporated
to make clear that the U.S. DOT agency decides the applicability of
section 4(f).
Section 1430.107 Use of Land
Current Sec. 771.135(p)(1), (2), (4), and (7) would be redesignated
as Sec. 1430.107 without substantive change.
Section 1430.109 Significance of the Section 4(f) Resource
Current Sec. 135(c) and (e) would be redesignated as Sec. 1430.109
without substantive change.
Section 1430.111 Exceptions
Current Sec. 771.135(d), (g), (h), and (p)(5) would be redesignated
as Sec. 1430.111 without substantive change. The proposed section also
incorporates the current Sec. 771.135(f), except that the consultation
requirement has been modified to be consistent with the new 36 CFR part
800 recently published by the Advisory Council on Historic
Preservation. As proposed, the provision is silent with respect to the
relationship between ``adverse effects'' under 36 CFR part 800 and
``constructive use'' under this regulation. We invite comment as to
whether or not a specific relationship should be established in this
regulation. We also invite comment as to other measures that we might
take to better
[[Page 33975]]
coordinate the section 4(f) process with the process established under
36 CFR 800. The proposed section also has three new provisions in
paragraphs (a), (b), and (c), stating that section 4(f) would not apply
to park roads, parkways, trails, transportation enhancement activities,
and transit enhancements where the purpose of the U.S. DOT agency
approval of transportation funding is to improve the section 4(f)
resource.
Section 1430.113 Section 4(f) Evaluations and Determinations Under the
NEPA Umbrella
Current Sec. 771.135(a)(2), (j), (k), (l), (p)(3), (p)(6), most of
(i), and part of (b) would be redesignated as Sec. 1430.113 without
substantive change. The proposed section also would include a new
provision in proposed paragraph (b) allowing consideration of the
products of the planning process in the section 4(f) evaluation. Both
the current and proposed regulation continue to codify in regulation
language of the Supreme Court decision in Overton Park (401 U.S. 402
(1971)) that an avoidance alternative must be preferred unless the
evaluation demonstrates that there are ``unique problems or unusual
features associated with it, or that the cost, the social, economical,
or environmental impacts, or the community disruption resulting from
such alternatives reach extraordinary magnitudes.'' We invite comment
on whether or not this standard deserves further definition in
regulation or in guidance in light of changes to the highway program in
the years since the court's decision. In particular, we would
appreciate views on whether or not the qualitative importance or value
of the section 4(f) resource should be explicitly taken into account in
determining whether or not an avoidance alternative is ``feasible and
prudent,'' especially when balancing the impacts of the various
alternatives.
Section 1430.115 Separate Section 4(f) Evaluations
Current Sec. 771.135(m) and (n) would be redesignated as
Sec. 1430.115 without substantive change.
Section 1430.117 Programmatic Section 4(f) Evaluations
The last sentence of current Sec. 771.135(i) would be redesignated
as Sec. 1430.117, including a new explanatory introductory sentence.
The proposed provision would provide a clear regulatory basis for
programmatic section 4(f) evaluations and approvals, a practice which
the Department of Transportation has used from time to time. For
example, programmatic section 4(f) evaluations have been prepared for
the following situations: Bikeways, historic bridges, projects
involving minimal use of property for historic properties and projects
involving minimal use of parkland. We invite suggestions of additional
situations that would be appropriate subjects of future programmatic
section 4(f) evaluations.
Section 1430.119 Linkage with Transportation Planning
Current Sec. 771.135(o) would be redesignated as Sec. 1430.119 and
would remain substantively unchanged except that the concept of a
preliminary section 4(f) evaluation has been extended to the planning
process in exactly the same way it previously applied to first-tier
EISs.
Section 1430.121 Definitions
A new Sec. 1430.121 would be added to provide a consistent set of
definitions of terms used in the planning regulations (23 CFR part
1410), the NEPA regulation (23 CFR part 1420), and this regulation (23
CFR part 1430).
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination using the docket number appearing at the top of this
document in the docket room at the above address or via the electronic
addresses provided above. The FHWA and the FTA will file comments
received after the comment closing date in the docket and will consider
late comments to the extent practicable. The FHWA and the FTA may,
however, issue a final rule at any time after the close of the comment
period. In addition to late comments, the FHWA and the FTA will also
continue to file in the docket relevant information becoming available
after the comment closing date, and interested persons should continue
to examine the docket for new material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined that this proposed action is a significant
regulatory action within the meaning of Executive Order 12866, and
under the Department of Transportation regulatory policies and
procedures because of substantial State, local government,
congressional, and public interest. These interests involve receipt of
Federal financial support for transportation investments, appropriate
compliance with statutory requirements, and balancing of transportation
mobility and environmental goals. We anticipate that the economic
impact of this rulemaking will be minimal. Most costs associated with
these rules are attributable to the provisions of the TEA-21, the
ISTEA, the Clean Air Act (as amended), and other statutes including
earlier highway acts.
We consider this proposal to be a means to simplify, clarify, and
reorganize existing regulatory requirements. There have been no changes
to NEPA or CEQ regulations. These rules would merely revise existing
NEPA regulations of the FHWA and the FTA and conform those regulations
to the environmental streamlining requirements of TEA-21. In response
to congressional direction in TEA-21, the U.S. DOT is proposing to
implement improved coordinated environmental review processes for
highway and transit projects. States have been carrying out statewide
transportation planning activities with title 23, U.S.C., and FTA
planning and research funds for many years. Neither the individual nor
the cumulative impact of this action would be significant because this
action would not alter the funding levels available to the States for
Federal or federally-assisted programs covered by the TEA-21.
The amendments impose no additional requirements. The environmental
streamlining process under section 1309 of TEA-21 establishes
coordinated environmental review processes by which U.S. DOT would work
with other Federal agencies to assure that major highway and transit
projects are advanced according to cooperatively determined time
frames. Such processes have been incorporated into a memorandum of
understanding between U.S. DOT and other Federal agencies.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
602), we have evaluated the effects of this rule on small entities,
such as local governments and businesses. The TEA-21 provides the
flexibility for these agencies to provide the resources necessary to
meet any time limits established under environmental streamlining.
Additionally, the FHWA has issued guidance concerning transportation
funding for Federal agency coordination using a full range of options
for reimbursement under appropriate authorities. Accordingly, the FHWA
and the FTA certify that this action would not have a significant
economic impact on a substantial
[[Page 33976]]
number of small entities. This proposed action would merely update and
clarify existing procedures. We specifically invite comments on the
projected economic impact of this proposal, and will actively consider
such information before completing our Regulatory Flexibility Act
analysis when adopting final rules.
Environmental Impacts
We have also analyzed this proposed action for the purpose of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.), and
preliminarily conclude that this action would not have any effect on
the quality of the human and natural environment and is therefore
categorically excluded under 23 CFR 771.117(c)(20). The TEA-21 directs
the implementation of a coordinated environmental review process for
highway construction projects, yet, also ensures that such concurrent
review shall not result in a significant adverse impact to the
environment or substantively alter the operation of Federal law. Time
periods for review shall be consistent with time periods established by
the Council on Environmental Quality under 40 CFR 1501.8 and 1506.10.
As stated in the TEA-21, nothing in section 1309 (the environmental
streamlining section) shall affect the applicability of NEPA or any
other Federal environmental statute or affect the responsibility of any
Federal officer to comply with or enforce any such statute.
Executive Order 13132 (Federalism Assessment)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, dated
August 4, 1999, and it has been determined that this action does not
have a substantial direct effect or sufficient Federalism implications
on States and local governments that would limit the policymaking
discretion of the States. Nothing in this document directly preempts
any State law or regulation. The TEA-21 directs the DOT to establish an
integrated NEPA review and permitting process and to encourage
approvals as early as possible in the scoping and planning process, yet
also to maintain an emphasis on a strong environmental policy.
Throughout the proposed regulation there is an effort to keep
administrative burdens to a minimum.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway planning and construction (or 20.217, Motor Carrier Safety).
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this program.
Unfunded Mandates Reform Act of 1995
This rule does not impose a Federal mandate resulting in the
expenditure by State, local, tribal governments, in the aggregate, or
by the private sector, of $100 million or more in any one year. (2
U.S.C. 1531 et seq.).
Paperwork Reduction Act
This proposal contains no new collection of information
requirements for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520. This notice of proposed rulemaking would encourage
the coordination of approvals by Federal agencies involved in the NEPA
process and could reduce the level of recordkeeping.
The information prepared by non-Federal parties pursuant to this
proposed regulation is exempt from the requirements of the Paperwork
Reduction Act. First, the collection of information does not entail
reporting of information in response to identical questions. NEPA
documents do not involve answering specific questions; they address
issues relating to the requirements of multiple Federal environmental
statutes. There are too many variables relating to the proposed action,
the location in which the action is to be taken, and the statutes that
are implicated (and to what extent) to permit a standardized format or
content. The issues to be addressed in NEPA documents are therefore
determined on a case by case basis. Each is a one of a kind document.
Second, the information is not requested of non-Federal entities
but of Federal agencies. The State and local transportation departments
and transit agencies compiling information are voluntarily serving as
consultants to FHWA and FTA for their own convenience. As the proposers
of the actions subject to NEPA, and the owners, operators, and
maintainers of the resulting facility, and key decisionmakers regarding
the choices involved in project development, it is easier for them to
prepare the NEPA documents. Information is not requested of outside
entities except within the PRA exception relating to ``facts or
opinions submitted in response from general solicitations of comments
for the general public (5 CFR 1320.3(h)(4).''
Third, State and local departments of transportation and transit
agencies develop this information reported to FHWA/FTA as a normal part
of doing business. NEPA documents contain engineering and environmental
information that is integral to developing projects in a way that
conforms to State and local laws. The development of engineering and
environmental information is an unavoidable step in project development
whether or not the Federal government is involved. We invite comments
on this analysis.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and does not
concern an environmental risk to healthy or safety that may
disproportionately affect children.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 771
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Public lands, Recreation areas,
Reporting and recordkeeping requirements.
23 CFR Part 1420
Environmental impact statements, Grant programs--transportation,
Highways and roads, Mass
[[Page 33977]]
transportation, Reporting and recordkeeping requirements.
23 CFR Part 1430
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Mass transportation, Public lands,
Recreation areas, Reporting and recordkeeping requirements, Wildlife
refuges.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Mass transportation, Reporting and recordkeeping requirements.
49 CFR Part 623
Environmental protection, Grant programs--transportation, Mass
Transportation, Public lands, Recreation areas, Reporting and
recordkeeping requirements, Wildlife refuges.
Federal Highway Administration
23 CFR Chapter I
For reasons set forth in the preamble, and under the authority of
23 U.S.C. 109, 128, 134, 138, and 315, the Federal Highway
Administration proposes to amend Chapter I of title 23, Code of Federal
Regulations, as follows:
PART 771--[REMOVED]
1. Remove part 771.
23 CFR Chapter IV
For reasons set forth in the preamble, the Federal Highway
Administration and the Federal Transit Administration propose to amend
proposed Chapter IV in title 23, Code of Federal Regulations (published
elsewhere in this Federal Register), as set forth below:
2. Add parts 1420 and 1430 to read as follows:
PART 1420--NEPA AND RELATED PROCEDURES FOR TRANSPORTATION
DECISIONMAKING
Subpart A--Purpose, Policy, and Mandate
Sec.
1420.101 Purpose.
1420.103 Relationship of this regulation to the CEQ regulation and
other guidance.
1420.105 Applicability of this part.
1420.107 Goals of the NEPA process.
1420.109 The NEPA umbrella.
1420.111 Environmental justice.
1420.113 Avoidance, minimization, mitigation, and enhancement
responsibilities.
Subpart B--Program and Project Streamlining
1420.201 Relation of planning and project development processes.
1420.203 Environmental streamlining.
1420.205 Programmatic approvals.
1420.207 Quality assurance process.
1420.209 Alternate procedures.
1420.211 Use of this part by other U.S. DOT agencies.
1420.213 Emergency action procedures.
Subpart C--Process and Documentation Requirements
1420.301 Responsibilities of the participating parties.
1420.303 Interagency coordination.
1420.305 Public involvement.
1420.307 Project development and timing of activities.
1420.309 Classes of actions.
1420.311 Categorical exclusions.
1420.313 Environmental assessments.
1420.315 Findings of no significant impact.
1420.317 Draft environmental impact statements.
1420.319 Final environmental impact statements.
1420.321 Record of decision.
1420.323 Re-evaluations.
1420.325 Supplemental environmental impact statements.
Subpart D--Definitions
1420.401 Terms defined elsewhere.
1420.403 Terms defined in this part.
Authority: 23 U.S.C. 109, 128, 134, 138 and 315; 42 U.S.C.
2000d-2000d-4, 4321 et seq., and 7401 et seq.; 49 U.S.C. 303,
5301(e), 5303, 5309, and 5324 (b) and (c); 49 CFR 1.48, and 1.51; 33
CFR 115.60(b); 40 CFR parts 1500-1508.
Subpart A--Purpose, Policy, and Mandate
Sec. 1420.101 Purpose.
The purpose of this part is to establish policies and procedures of
the Federal Highway Administration (FHWA) and the Federal Transit
Administration (FTA) for implementing the National Environmental Policy
Act of 1969 (NEPA) as amended, and to supplement the regulation of the
Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508.
In concert with 23 CFR 1410 this part sets forth a NEPA process that
integrates and streamlines the compliance with all applicable
transportation and environmental laws that govern Federal
transportation decisionmaking.
Sec. 1420.103 Relationship of this regulation to the CEQ regulation
and other guidance.
The CEQ regulation lays out NEPA responsibilities for all Federal
agencies. This FHWA/FTA regulation supplements the CEQ regulation with
specific provisions regarding the FHWA/FTA approach to implementing
NEPA for the Federal surface transportation actions under their
jurisdiction. For a full understanding of NEPA responsibilities
relative to the FHWA/FTA actions, the reader must refer to both this
regulation and the CEQ regulation. In addition, the FHWA/FTA will rely
on nonregulatory guidance materials, training courses, and
documentation of best practices in the management of their NEPA
responsibilities. The available materials and training course schedules
are posted on the FHWA and the FTA web sites and can be obtained by
contacting Planning and Environment Program Manager, Federal Highway
Administration, Washington, DC 20590 or Associate Administrator for
Planning, Federal Transit Administration, Washington, DC 20590.
Sec. 1420.105 Applicability of this part.
(a)(1) The provisions of this part and the CEQ regulation apply to
actions where a U.S. DOT agency exercises sufficient control and has
the statutory authority to condition the action or approval. Actions
taken by the applicant or others that do not require any U.S. DOT
agency approval or over which a U.S. DOT agency has no discretion,
including, but not limited to, projects or maintenance on Federal-aid
highways or transit systems not involving Federal-aid funds or
approvals, and actions from which the U.S. DOT agency are excluded by
law or regulation, are not subject to this part.
(2) This part does not apply to, or alter approvals by the U.S. DOT
agencies made prior to the effective date of this part.
(3) NEPA documents accepted or prepared by the U.S. DOT agency
after the effective date of this part shall be developed in accordance
with this part.
(b) In order to ensure meaningful evaluation of alternatives and to
avoid commitments to transportation improvements before they are fully
evaluated, the actions covered by each environmental impact statement
(EIS) or environmental assessment (EA), or designated a categorical
exclusion (CE) shall:
(1) Have independent utility or independent significance, i.e., be
usable and be a reasonable expenditure even if no additional
transportation improvements in the area are made;
(2) Connect logical termini, if linear in configuration, and be of
sufficient length or size to address environmental matters over a
sufficiently wide area that all reasonably foreseeable impacts are
considered; and
(3) Not restrict consideration of alternatives for other reasonably
[[Page 33978]]
foreseeable transportation improvements.
Sec. 1420.107 Goals of the NEPA process.
(a) It is the intent of the U.S. DOT agencies that the NEPA
principles of environmental stewardship and the Transportation Equity
Act for the 21st Century (TEA-21) objective of timely implementation of
transportation facilities and provision of transportation services
should guide Federal, State, local, and tribal decisionmaking on all
transportation actions subject to these laws. Accordingly, in
administering their responsibilities under numerous transportation and
environmental laws, the U.S. DOT agencies will manage the NEPA process
to maximize attainment of the following goals:
(1) Environmental ethic. Federal actions reflect concern for, and
responsible choices that preserve, communities and the natural
environment, in accordance with the purpose and policy direction of
NEPA (42 U.S.C. 4321 and 4331), and the specific mandates of statutes,
regulations, and executive orders.
(2) Environmental justice. Disproportionate adverse effects on
minority and low income populations are identified and addressed; no
person, because of handicap, age, race, color, sex, or national origin,
is excluded from participating in, denied the benefits of, or subject
to discrimination under any U.S. DOT agency program or activity
conducted in accordance with this regulation.
(3) Integrated decisionmaking. Federal transportation approvals are
coordinated in a logical fashion with other Federal reviews and
approvals, and with State, local, and tribal governmental actions, and
actions by private entities, in recognition of interdependencies of
decisions by the various parties and the procedural umbrella that the
NEPA process provides for facilitating decisionmaking.
(4) Environmental streamlining. Federal transportation and
environmental reviews and approvals are completed in a timely fashion
through a coordinated review process.
(5) Collaboration. Transportation decisions are made through a
collaborative partnership involving Federal, State, local, and tribal
agencies, communities, interest groups, private businesses, and
interested individuals.
(6) Transportation problem solving. Transportation decisions
represent cost effective solutions to current and future problems based
on an interdisciplinary evaluation of alternative courses of action.
(7) Financial stewardship. Public funds are used to achieve the
maximum benefit for the financial investment in accordance with
governing statutes and regulations.
Sec. 1420.109 The NEPA umbrella.
(a) In keeping with the above goals, it is the policy of the FHWA/
FTA that the NEPA process be the means of bringing together all legal
responsibilities, issues, and interests relevant to the transportation
decision in a logical way to evaluate alternative courses of action,
and that it lead to a single final decision regarding the key
characteristics of a proposed action (such as, location, major design
features, mitigation measures, and environmental enhancements). This
decision shall be made in the best overall public interest based on a
balanced consideration of the need for safe and efficient
transportation; the social, economic, and environmental benefits and
impacts of the proposed action; and the attainment of national, State,
tribal, and local environmental protection goals.
(b) Any environmentally related study, review, or consultation
required by Federal law should be conducted within the framework of the
NEPA process to assure integrated and efficient decisionmaking. The
State is encouraged to conduct its activities during the NEPA process
toward the same goal.
(c) Federal responsibilities to be addressed in the NEPA process
whenever applicable to the decision on the proposed action include, but
are not limited to the following protections of:
(1) Individual rights:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-
2000d-4) and related statutes;
(ii) Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601 et seq.), as amended;
(iii) Americans with Disabilities Act (42 U.S.C. 12101 et seq.);
(iv) 49 U.S.C. 5332, nondiscrimination;
(v) 49 U.S.C. 5324(a), relocation requirements;
(vi) 23 U.S.C. 128 and 49 U.S.C. 5323(b), public hearing
requirements;
(2) Communities and community resources:
(i) Executive Order 12898 (59 FR 7629, 3 CFR, 1995 comp., p. 859),
environmental justice for minority and low-income populations;
(ii) 49 U.S.C. 303, protection of public parks and recreation
areas;
(iii) 23 U.S.C. 109(h), economic, social, and environmental effects
of highways;
(iv) 49 U.S.C. 5324(b), economic, social, and environmental effects
of transit;
(v) 23 U.S.C. 109(i), highway noise standards;
(vi) Clean Air Act (23 U.S.C. 109(j), 42 U.S.C. 7509 and 7521(a) et
seq.), as amended;
(vii) Safe Drinking Water Act (42 U.S.C. 201 and 300);
(viii) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201-4209);
(ix) National Flood Insurance Act (42 U.S.C. 1401, 2414, 4001 to
4127);
(x) Solid Waste Disposal Act (Public Law 89-272; 42 U.S.C. 6901 et
seq.);
(xi) Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901
et seq.);
(xii) Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(xiii) Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. 11001 to 11050);
(3)Cultural resources and aesthetics:
(i) 49 U.S.C. 303, protection of historic sites;
(ii) National Historic Preservation Act (16 U.S.C. 470 et seq.);
(iii) 23 U.S.C. 109(h), economic, social, and environmental effects
of highways;
(iv) 49 U.S.C. 5324(b), economic, social, and environmental effects
of transit;
(v) 23 U.S.C. 109(i), highway noise standards;
(vi) Clean Air Act (23 U.S.C. 109(j), 42 U.S.C. 7509 and 7521(a) et
seq.), as amended;
(vii) Safe Drinking Water Act (42 U.S.C. 201 and 300);
(viii) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201-4209);
(ix) National Flood Insurance Act (42 U.S.C. 1401, 2414, 4001 to
4127);
(x) Solid Waste Disposal Act (Public Law 89-272; 42 U.S.C. 6901 et
seq.);
(xi) Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901
et seq.);
(xii) Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(xiii) Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. 11001 to 11050);
(3) Cultural resources and aesthetics:
(i) 49 U.S.C. 303, protection of historic sites;
(ii) National Historic Preservation Act (16 U.S.C. 470 et seq.);
(iii) 23 U.S.C. 109(h), economic, social, and environmental effects
of highways;
(iv) 49 U.S.C. 5324(b), economic, social, and environmental effects
of transit;
[[Page 33979]]
(v) Archeological and Historic Preservation Act (16 U.S.C. 469);
(vi) Archeological Resources Protection Act (16 U.S.C. 470aa to
47011);
(vii) Act for the Preservation of American Antiquities (16 U.S.C.
431 to 433);
(viii) American Indian Religious Freedom Act (42 U.S.C. 1996 et
seq.);
(ix) Native American Grave Protection and Repatriation Act (25
U.S.C. 3001 to 3013);
(x) 23 U.S.C. 144(o), historic bridges;
(xi) 23 U.S.C. 530, wildflowers;
(xii) 23 U.S.C. 131, 136, 319, highway beautification;
(4) Waters and water-related resources:
(i) 23 U.S.C. 109(h), economic, social, and environmental effects
of highways;
(ii) 49 U.S.C. 5324(b), economic, social, and environmental effects
of transit;
(iii) Federal Water Pollution Act, as amended (33 U.S.C. 1251 to
1376);
(iv) Wild and Scenic Rivers Act (16 U.S.C. 1271 to 1287);
(v) Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460);
(vi) Water Bank Act (16 U.S.C. 1301 to 1311);
(vii) Executive Order 11990 (42 FR 26961; 3 CFR, 1977 comp., p.
121), protection of wetlands;
(viii) Emergency Wetlands Resources Act of 1986 (16 U.S.C. 3921 to
3931);
(ix) Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.);
(x) Executive Orders 11988 (42 FR 26951; 3 CFR, 1977 comp., p.
1171) and 12148 (44 FR 43239; 3 CFR, 1979 comp., p. 412), floodplain
management;
(5) Wildlife, plants and natural areas:
(i) Endangered Species Act of 1973 (7 U.S.C. 136, 16 U.S.C. 1531 to
1543);
(ii) 49 U.S.C. 303, protection of wildlife and waterfowl refuges;
(iii) 23 U.S.C. 109(h), economic, social, and environmental effects
of highways;
(iv) 9 U.S.C. 5324(b), economic, social, and environmental effects
of transit;
(v) Marine Protection Research and Sanctuaries Act of 1972 (16
U.S.C. 1431 to 1445, 33 U.S.C. 1401 to 1445);
(vi) Fish and Wildlife Coordination Act (16 U.S.C. 661 to 666);
(vii) Wilderness Act (16 U.S.C. 1131 to 1136);
(viii) Wild and Scenic Rivers Act (16 U.S.C. 1271 to 1287);
(ix) Coastal Zone Management Act of 1972 (16 U.S.C. 1451 to 1464);
(x) Coastal Barrier Resources Act (16 U.S.C. 3501 to 3510, 42
U.S.C. 4028);
(xi) National Trails System Act (16 U.S.C. 1241 to 1249);
(xii) Executive Order 13112 (64 FR 6183), Invasive Species.
Sec. 1420.111 Environmental justice.
(a) In accordance with the goals established in Executive Order
12898, as implemented by DOT Order 5610.2 and the FHWA Order
6640.23,\1\ and the requirements of the Civil Rights Act of 1964, Title
VI, and its implementing regulations, proposed actions shall be
developed in a manner to avoid or mitigate disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, on low income populations and minority
populations. Adverse effects can include a denial of or reduction in
benefits.
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\1\ These documents are available for inspection and copying as
prescribed at 49 CFR part 7.
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(b) In performing an environmental analysis of proposed actions,
applicants must analyze data necessary to determine whether the actions
will have disproportionately high and adverse effects on low income and
minority communities. When disproportionately high and adverse effects
are found, the applicant must identify measures to address these
disproportionate effects, including actions to avoid or mitigate them,
or it must explain and justify why such measures cannot be taken.
(c) The findings and determinations made pursuant to paragraphs (a)
and (b) of this section must be documented as part of the NEPA document
prepared for the proposed action, or in a supplemental document if the
NEPA process has been completed.
(d) In accordance with Executive Order 12898, DOT Order 5610.2, and
the FHWA Order 6640.23, nothing in this section is intended to, nor
shall create, any right to judicial review of any action taken by the
agency, its officers or its recipients taken under this section to
comply with such Orders.
Sec. 1420.113 Avoidance, minimization, mitigation, and enhancement
responsibilities.
(a) In accordance with the goals established in Sec. 1420.107, it
is the policy of the FHWA and the FTA that proposed actions be
developed as described in this section, to the fullest extent
practicable. For the purposes of this section, ``practicable'' means a
common sense balancing of environmental values with safety,
transportation need, costs, and other relevant factors in
decisionmaking. No additional findings or paperwork are required.
(1) Adverse social, economic, and environmental impacts to the
affected human communities and the natural environment should be
avoided.
(2) Where adverse impacts cannot be avoided, proposed measures
should be developed to minimize adverse impacts.
(3) Measures necessary to mitigate unavoidable adverse impacts be
incorporated into the action, or should be part of a mitigation program
completed in advance of the action.
(4) Environmental enhancements should be evaluated and incorporated
into the action as appropriate.
(b) Mitigation measures and environmental enhancements shall be
eligible for Federal funding to the fullest extent authorized by law.
(c) NEPA commitments.
(1) It shall be the responsibility of the applicant in cooperation
with the U.S. DOT agency to implement those mitigation measures and
environmental enhancements, stated as commitments in the final EIS/ROD,
EA/FONSI, or CE prepared or supplemented pursuant to this regulation,
unless the commitment is modified or eliminated in a supplemental final
EIS/ROD, EA/FONSI or CE, or re-evaluation approved by the U.S. DOT
agency.
(2) If a final EIS/ROD, EA/FONSI, CE, or other U.S. DOT agency
approval commits to coordination with another agency during the final
design and construction phase, or during the operational phase of the
action, the applicant is responsible for such coordination, unless the
commitment is removed in a supplemental final EIS/ROD, EA/FONSI or CE,
or re-evaluation approved by the U.S. DOT agency.
Subpart B--Program and Project Streamlining
Sec. 1420.201 Relationship of planning and project development
processes.
(a) The planning products described in Sec. 1410.318 shall be
considered early in the NEPA process. The FTA and the FHWA encourage
all Federal, State and local agencies with project level
responsibilities for investments included in a transportation plan to
participate in the planning process so as to maximize the usefulness of
the planning products for the NEPA process and eliminate duplication.
(b) Applicants preparing documents under this part shall, to the
maximum extent useful and practicable, incorporate and utilize
analyses, studies, documents, and other sources of information
developed during the transportation planning processes of 23 CFR part
1410 and other planning processes in satisfying the requirements of the
NEPA process. The provisions of 40 CFR 1502.21 (incorporation by
reference) will be used as appropriate.
[[Page 33980]]
(c) During scoping for an EIS or early coordination for an
environmental assessment, the U.S. DOT agency and the applicant shall,
in consultation with the transportation planning agencies responsible
for inclusion of the project in the metropolitan (if applicable) and
statewide plan and program, review the record of previously completed
planning activities, including any existing statement of purpose and
need and evaluation of alternatives. Where the U.S. DOT agency, in
cooperation with the applicant, determines that planning decisions are
adequately supported, the detailed evaluation of alternatives required
under Sec. 1420.313(b) or Sec. 1420.317(c) may be limited to the no
action and reasonable alternatives requiring further consideration. In
deciding which of the evaluations and conclusions of the planning
process are adequately supported and may be incorporated during the
NEPA process, the U.S. DOT agency and the applicant shall take into
account the following:
(1) The validity and completeness of the supporting analyses,
(2) The public involvement process associated with those planning
products,
(3) The degree of coordination with Federal, State, and local
resource agencies with interest in or authority over the ultimate
action(s); and
(4) The level of formal endorsement of the analyses and conclusions
by participants in the planning process.
Sec. 1420.203 Environmental streamlining.
(a) For highway and mass transit projects requiring an
environmental impact statement, an environmental assessment, or an
environmental review, analysis, opinion, or environmental permit,
license, or approval by operation of Federal law, as lead Federal
agency, the U.S. DOT agency, in cooperation with the applicant, shall
perform the following:
(1) Consult with the applicant regarding the issues involved, the
likely Federal involvement, and project timing.
(2) Early in the NEPA process, contact Federal agencies likely to
be involved in the proposed action to verify the nature of their
involvement and to discuss issues, methodologies, information
requirements, time frames and constraints associated with their
involvement.
(3) Identify and use the appropriate means listed in 40 CFR 1500.4
and 1500.5 for reducing paperwork and reducing delay.
(4) Document the results of such consultation and distribute to the
appropriate Federal agencies for their concurrence, identifying at a
minimum the following:
(i) Federal reviews and approvals needed for the action,
(ii) Those issues to be addressed in the NEPA process and those
that need no further evaluation,
(iii) Methodologies to be employed in the conduct of the NEPA
process,
(iv) Proposed agency and public involvement processes, and
(v) A process schedule.
(5) Identify, during the course of completing the NEPA process,
points of interagency disagreement causing delay and immediately take
informal measures to resolve or reduce delay. If these measures are not
successful in a reasonable time, the U.S. DOT agency shall initiate a
dispute resolution process pursuant to section 1309 of the TEA-21.
(b) A State may request that all State agencies with environmental
review or approval responsibilities be included in the coordinated
environmental review process and, with the consent of the U.S. DOT
agency, establish an appropriate means to assure that Federal and State
environmental reviews and approvals are fully coordinated.
(c) At the request of the applicant, the coordinated environmental
review process need not be applied to an action not requiring an
environmental impact statement.
(d) In accordance with the CEQ regulations on reducing paperwork
(40 CFR 1500.4), NEPA documents prepared by DOT agencies need not
devote paper to impact areas and issues that are not implicated in the
proposed action and need not make explicit findings on such issues.
Sec. 1420.205 Programmatic approvals.
(a) Nothing in this part shall prohibit the U.S. DOT agency from
making approvals which apply to future actions consistent with the
conditions established for such programmatic approvals.
(b) Applicants shall cooperate with the U.S. DOT agency in
conducting program evaluations to ensure that such programmatic
approvals are being properly applied.
Sec. 1420.207 Quality assurance process.
(a) The FHWA and the FTA shall institute a process to assure that
actions subject to this part meet or exceed legal requirements and are
processed in a timely manner.
(b) For actions processed with an environmental impact statement,
this process shall include a legal sufficiency review and may require
the prior concurrence of the Headquarters office in accordance with
procedures established by the FTA and the FHWA.
Sec. 1420.209 Alternate procedures.
(a) An applicant may propose to the U.S. DOT agency alternative
procedures for complying with the intent of this part with respect to
its actions.
(b) The U.S. DOT agency shall publish such alternative procedures
in the Federal Register for notice and comment and shall consult with
the CEQ pursuant to 40 CFR 1507.3.
(c) After taking into account comments received, and negotiating
with the applicant appropriate changes to such alternative procedures,
the U.S. DOT agency shall approve such alternative procedures only
after making a finding that the alternative procedures will be fully
effective at complying with NEPA and related responsibilities.
Sec. 1420.211 Use of this part by other U.S. DOT agencies.
As authorized by the Secretary, other U.S. DOT agencies may use
this part for specific actions or categories of actions under their
jurisdiction.
Sec. 1420.213 Emergency action procedures.
Requests for deviations from the procedures in this part because of
emergency circumstances shall be referred to the U.S. DOT agency for
evaluation and decision in consultation with the CEQ in accordance with
40 CFR 1506.11.
Subpart C--Process and Documentation Requirements
Sec. 1420.301 Responsibilities of the participating parties.
(a) The CEQ regulation establishes rules for lead agencies (40 CFR
1501.5) and cooperating agencies (40 CFR 1501.6). It also encourages
Federal agencies to cooperate with State and local agencies to
eliminate duplication (40 CFR 1506.2) and defines the relationship
between Federal agencies, applicants, and contractors (40 CFR 1506.5).
(b) For actions on Federal lands that are developed directly by the
U.S. DOT agency in cooperation with the Federal land management agency,
responsibilities for management of the NEPA process shall be as
established by interagency agreement or procedure.
(c) Use of contractors.
(1) The U.S. DOT agency or an applicant may select and use
contractors, in accordance with applicable contracting procedures, and
the provisions of 40 CFR 1506.5(c), in support of their respective
roles in the NEPA process. An applicant which is a
[[Page 33981]]
State agency with statewide jurisdiction may select a contractor to
assist in the preparation of an EIS. Where the applicant is not a State
agency with statewide jurisdiction, the applicant may select a
contractor, after coordination with the U.S. DOT agency to assure
compliance with 40 CFR 1506.5(c) relative to conflict of interest.
Contractors that have a role in the actual writing of a NEPA document
shall execute a disclosure statement in accordance with 40 CFR
1506.5(c), specifying that such contractor has no financial or other
interest in the outcome of the action (other than engineering with the
exception allowed by paragraph (c)(2) of this section, if applicable),
and will not acquire such an interest prior to the approval of the
final NEPA document by the U.S. DOT agency or the termination of the
contractor's involvement in writing the NEPA document, whichever occurs
first.
(2) A State may procure the services of a consultant, under a
single contract, for environmental impact assessment and subsequent
engineering and design work, provided that the State conducts a review
that assesses the objectivity of the NEPA work in accordance with the
provisions of 23 U.S.C. 112(g).
Sec. 1420.303 Interagency coordination.
(a) Interagency coordination during the NEPA process involves the
early and continuing exchange of information with interested Federal,
State, local public agencies, and tribal governments. Interagency
coordination should begin early as part of the planning process and
continue through project development, the preparation of an appropriate
NEPA document, and, by agreement, into the implementation stage of the
action. Interested agencies include those that express a continuing
interest in any aspect of the actions during the planning process and
project development processes. They include those agencies whose
jurisdiction, responsibilities, or expertise may involve any aspect of
the action or its alternatives. The purpose of interagency coordination
is to aid in determining the class of action, the scope of the NEPA
document, the identification of key issues, the appropriate level of
analysis, methods of avoidance, minimization, and mitigation of adverse
impact, opportunities for environmental enhancement, and related
environmental requirements. Coordination early in the NEPA process must
extend beyond agencies consulted during the planning process to those
agencies whose interest begins only when preliminary designs of
alternative actions are being developed. The appropriate frequency and
timing of coordination with a particular agency will depend on the
interests of the agency consulted.
(b) Federal land management entities, neighboring States, and
tribal governments, that may be significantly affected by the action or
by any of the alternatives shall be notified early in the NEPA process
and their views solicited by the applicant in cooperation with the U.S.
DOT agency.
(c) Upon U.S. DOT agency written approval of an EA, FONSI, separate
section 4(f) determination, or CE designation, the applicant shall send
a notice of availability of the approved document, or a copy of the
approved document itself, to the affected units of Federal, State, and
local government. The notice shall briefly describe the action and its
location and impacts. Cooperating agencies shall be provided a copy of
the approved document.
Sec. 1420.305 Public involvement.
(a) The applicant must have a continuing program of public
involvement which actively encourages and facilitates the participation
of transportation and environmental interest groups, citizens groups,
private businesses, and the general public including minority and low
income populations through a wide range of techniques for communicating
and exchanging information. The applicant shall use the products of the
public involvement process developed during planning pursuant to 23 CFR
1410.212 and 1410.316, whenever such information is reasonably
available and relevant, to provide continuity between the public
involvement programs.
(b) Each applicant developing projects under this part must adopt
written procedures to carry out the public involvement requirements of
this section and 40 CFR 1506.6, and, as appropriate, 23 U.S.C. 128, and
49 U.S.C. 5323(b) and 5324(b). The applicant's public involvement
procedures shall apply to all classes of action as described in
Sec. 1420.309 and shall be developed in cooperation with other
transportation agencies with jurisdiction in the same area, so that, to
the maximum extent practicable, the public is presented with a
consistent set of procedures that do not vary with the transportation
mode of the proposed action or with the phase of project development.
Where two or more involved parties have separate established
procedures, a cooperative process for determining the appropriate
public involvement activities and their consistency with the separate
agency's procedures will be cooperatively established.
(c) Public involvement procedures must provide for the following:
(1) Coordination of public involvement activities with the entire
NEPA process and, when appropriate, with the planning process. The
procedures also must provide for coordination and information required
to comply with public involvement requirements of other related laws,
executive orders, and regulations;
(2) Early and continuing opportunities for the public to be
informed about, and involved in the identification of social, economic,
and environmental impacts and impacts associated with relocation of
individuals, groups, or institutions;
(3) The use of an appropriate variety of public involvement
activities, techniques, meeting and hearing formats, and notification
media;
(4) A scoping process that satisfies the requirements of 40 CFR
1501.7;
(5) One or more public hearings or the opportunity for hearing(s)
to be held at a convenient time and place that encourage public
participation, for any project which requires the relocation of
substantial numbers of people, substantially changes the layout or
functions of connecting transportation facilities or of the facility
being improved, has a substantial adverse impact on abutting property,
substantially affects a community or its mass transportation service,
otherwise has a substantial social, economic, environmental or other
effect, or for which the U.S. DOT agency determines that a public
hearing is in the public interest;
(6) Reasonable notice to the public of either a public hearing or
the opportunity for a public hearing where a hearing is determined
appropriate. Such notice shall indicate the availability of explanatory
information;
(7) Where appropriate, the submission to the U.S. DOT agency of a
transcript of each public hearing and a certification (pursuant to 23
U.S.C. 128 or 49 U.S.C. 5324(b)(2)) that a required hearing or hearing
opportunity was offered. The transcript should be accompanied by copies
of all written statements from the public, submitted either at the
public hearing or during an announced period after the public hearing;
(8) Specific procedures for complying with the public and agency
involvement and notification requirements for the following: EAs,
Findings of no significant impact (FONSI), Draft EISs, Final EISs, and
Records of decision (ROD);
[[Page 33982]]
(9) Reasonable accommodations for participation by persons with
disabilities, including, upon request, the provision of auxiliary aids
and services for understanding speakers at meetings and environmental
documents.
(d) Where a re-evaluation of NEPA documents is required pursuant to
Sec. 1420.323, the U.S. DOT agency and the applicant will determine
whether changes in the project or new information warrant additional
public involvement.
(e) A minimum public comment period of 45 days shall be provided
prior to the initial adoption or substantial revision of public
involvement procedures.
(f) Public involvement procedures in effect as of the date of this
part remain valid, but will be reviewed periodically for effectiveness.
Sec. 1420.307 Project development and timing of activities.
(a) The FHWA and/or the FTA will not approve the initiation and
will not authorize funding for final design activities, property
acquisition (except the types of advance land acquisitions described in
Sec. 1420.311(d)(16)), purchase of construction materials or transit
vehicles, or construction, until the following have been completed:
(1)(i) The action has been classified as a categorical exclusion
(CE), or
(ii) A FONSI has been approved, or
(iii) A final EIS has been approved, made available for the
prescribed period of time, and a record of decision has been signed;
(2) The U.S. DOT agency has received transcripts of public hearings
held, and any required certifications that a hearing or opportunity for
a hearing was provided; and
(3) The planning and programming requirements of 23 CFR part 1410
have been met.
(b) Before completion of the NEPA document, if it becomes apparent
that the preferred alternative will not be consistent with the design
concept and scope of the action identified in the relevant plan and
TIP, the applicant shall immediately notify the State agency
responsible for the State TIP, and, in metropolitan areas, the MPO, so
that the planning and programming requirements of 23 CFR part 1410 can
be satisfied prior to the approval of a final EIS, Record of Decision,
FONSI or CE.
(c) Compliance with the requirements of all applicable
environmental laws, regulations, executive orders, and other related
requirements as set forth in Sec. 1420.109 should be completed prior to
the approval of the final EIS, FONSI, or the CE designation. If full
compliance is not possible by the time the final EIS or FONSI is
prepared, the final EIS or FONSI should reflect consultation with the
appropriate agencies and provide reasonable assurance that the
requirements will be met. However, full compliance with the U.S. EPA's
conformity regulation at 40 CFR parts 51 and 93 is required prior to
the approval of the ROD, FONSI or CE designation. Approval of the NEPA
document constitutes adoption of DOT agency findings and determinations
that are contained therein unless otherwise specified. The FHWA
approval of the appropriate NEPA document will constitute its finding
of compliance with the report requirements of 23 U.S.C. 128. The FTA
approval of the appropriate NEPA document indicates compliance with 49
U.S.C. 5324(b) and fulfillment of the grant application requirements of
49 U.S.C. 5323(b), if such requirements are applicable to the action.
(d) The completion of the requirements set forth in this section is
considered the U.S. DOT agency's acceptance of the location of the
action and design concepts described in the NEPA document unless
otherwise specified by the approving official. However, such acceptance
does not commit the U.S. DOT agency to approve any future grant request
to fund the preferred alternative.
Sec. 1420.309 Classes of actions.
(a) Class I (EISs). Actions that significantly affect the
environment require an EIS (40 CFR 1508.27). The following are examples
of actions normally requiring an EIS:
(1) A new controlled access freeway.
(2) A highway project of four or more lanes on a new location.
(3) New construction or major extension of fixed rail transit
facilities (e.g., rapid rail, light rail, automated guideway transit).
(4) New construction or major extension of a separate roadway for
buses or high occupancy vehicles not located within an existing highway
facility.
(5) New construction or major extension of an intercity railroad
not located within existing railroad right-of-way.
(6) A multimodal or intermodal facility that includes or requires
any of the other Class I actions.
(b) Class II (Categorical Exclusions). Actions that do not
individually or cumulatively have a significant environmental impact
are excluded from the requirement to prepare an EA or EIS. A specific
list of CEs normally not requiring NEPA documentation is set forth in
Sec. 1420.311(c). Additional actions not listed may be designated as
CEs pursuant to Sec. 1420.311(d), if documented environmental studies
demonstrate that the action would not, either individually or
cumulatively, have a significant environmental impact.
(c) Class III (EAs). Actions in which the significance of the
environmental impact is not clearly established. All actions that are
not Class I or II are Class III. All actions in this class require the
preparation of an EA to determine the appropriate, subsequent NEPA
document (i.e., Findings of no significant impact or EIS).
Sec. 1420.311 Categorical exclusions.
(a) Categorical exclusions (CEs) are actions which meet the
definition contained in 40 CFR 1508.4, and are known, on the basis of
past experience with similar actions, not to involve significant
environmental impacts. They are actions which: Do not induce
significant impacts to planned growth or land use for the area; do not
require the relocation of significant numbers of people; do not have a
significant impact on any natural, cultural, recreational, historic or
other resource; do not involve significant air, noise, or water quality
impacts; do not have significant impacts on travel patterns; or do not
otherwise, either individually or cumulatively, have any significant
environmental impacts.
(b) Any action which normally would be classified as a CE but could
involve unusual circumstances will require the U.S. DOT agency, in
cooperation with the applicant, to conduct appropriate environmental
studies to determine if the CE classification is proper. Such unusual
circumstances include:
(1) Unique environmental impacts;
(2) Substantial controversy on environmental grounds;
(3) Significant impact on properties protected by 49 U.S.C. 303
(section 4(f)) or section 106 of the National Historic Preservation
Act; or
(4) Inconsistencies with any Federal, State, or local law,
requirement or administrative determination relating to the
environmental aspects of the action.
(c) The following actions meet the criteria for CEs in the CEQ
regulation (40 CFR 1508.4) and Sec. 1420.311(a) of this regulation. If
other environmental laws (i.e., those listed in Sec. 1420.109(c)) do
not apply to the action, then it does not require any further NEPA
approval by the U.S. DOT agency. If the U.S. DOT agency is not sure of
the applicability of one of these CEs or of other environmental laws to
a particular proposed action, the applicant will be
[[Page 33983]]
required to provide supporting documentation in accordance with
paragraph (d) of this section. The following are CEs:
(1) Activities which do not involve or lead directly to
construction, such as program administration (e.g., personnel actions,
procurement of consulting services or office supplies); the
promulgation of rules, regulations, directives, and legislative
proposals; planning and technical studies; technical assistance
activities; training and research programs; technology transfer
activities; research activities as defined in 23 U.S.C. 501-507;
archaeological planning and research; approval of a unified planning
work program; development and establishment of management systems under
23 U.S.C. 303; approval of project concepts under 23 CFR part 476;
preliminary engineering to define the elements of a proposed action or
alternatives so that social, economic, and environmental effects can be
assessed; Federal-aid system revisions which establish classes of
highways; and designation of highways to the National Highway System.
(2) Modernization of a highway by resurfacing.
(3) Routine maintenance or minor rehabilitation of existing
transportation facilities, including pavements, tracks, railbeds,
bridges, structures, stations, terminals, maintenance shops, storage
yards, and buildings, that occurs entirely on or within the facility,
where there is no change in the character and use of the facility, and
no substantial disruption of service or traffic; purchase of associated
capital maintenance items; preventive maintenance of transit
facilities, vehicles, and other equipment.
(4) Incorporation of an Intelligent Transportation Systems (ITS)
element into an existing transportation facility or service, including
the development, purchase, installation, maintenance, improvement, and
operation of a traveler information system, incident management and
emergency response system, traffic management and control system,
security system, or MAYDAY system that enables public agencies to
detect and respond to emergency situations.
(5) Activities included in the State's highway safety program under
23 U.S.C. 402; enforcement of railroad safety regulations, including
the issuance of emergency orders.
(6) Improvement of existing rest areas, toll collection facilities,
truck weigh stations, traffic management and control centers, and
vehicle emissions testing centers where no substantial land acquisition
or traffic disruption will occur.
(7) Carpool and vanpool projects, as defined in 23 U.S.C. 146, if
no substantial land acquisition or traffic disruption will occur.
(8) Emergency repairs of highways, roads and trails under 23 U.S.C.
125; emergency repair of transit or railroad facilities after a natural
disaster or catastrophic failure.
(9) Operating assistance to transit agencies.
(10) Acquisition of buses, rail vehicles, paratransit vehicles, and
transit-support vehicles, where the use of these vehicles can be
accommodated by existing facilities or by new facilities which are
themselves CEs.
(11) Purchase or installation of operating or maintenance equipment
to be located within an existing transportation facility with no
significant impacts off the site; lease of existing facilities,
vehicles, or other equipment for use in providing transit services;
capital cost of contracting for transit services.
(12) Bus and rail car rehabilitation, including the retrofit or
replacement of vehicles for alternative fuels, where the use of these
vehicles can be accommodated by existing facilities or new facilities
which are themselves CEs.
(13) Improvement of existing tracks, railbeds, communications
systems, signal systems, security systems, and electrical power systems
when carried out within the existing right-of-way without substantial
service disruption.
(14) Construction of bicycle and pedestrian lanes, paths, and
facilities within existing transportation facilities or right-of-ways;
installation of equipment for transporting bicycles on transit
vehicles.
(15) Alterations to transportation facilities or vehicles in order
to make them accessible by persons with disabilities.
(16) Installation of fencing, signs, pavement markings, small
passenger shelters, traffic signals, lighting, and railroad warning
devices where no substantial land acquisition or traffic disruption
will occur.
(17) Transfer of Federal lands pursuant to 23 U.S.C. 317 when the
subsequent action is not an FHWA action; approvals of disposals of
excess right-of-way; transfer of surplus assets, in accordance with 49
U.S.C. 5334(g); approval of utility installations along or across a
transportation facility.
(18) Landscaping, streetscaping, public art and other scenic
beautification; control and removal of outdoor advertising; acquisition
of scenic easements and scenic or historic sites for the purpose of
preserving the site.
(19) Installation of noise barriers or other alterations to
existing facilities to provide for noise reduction; alterations to
existing non-historic buildings to provide for noise reduction.
(20) Contributions to statewide or regional efforts to conserve,
restore, enhance, and create wetlands or wildlife habitats.
(d) Additionally, for individual proposed actions to be
categorically excluded under this section, the applicant shall submit
documentation which demonstrates that the specific conditions or
criteria for these CEs are satisfied, that significant environmental
effects will not result, that the applicant's public involvement
process is consistent with the procedures adopted pursuant to
Sec. 1420.305, that any appropriate interagency coordination has
occurred, and that any other applicable environmental laws (e.g., those
listed in Sec. 1420.109(c)) have been satisfied. This demonstration may
require investigations of specific areas of impact to determine whether
the CE criteria are satisfied. If the DOT agency is not certain that
the appropriateness of the CE has been demonstrated, additional
documentation or an EA or EIS will be required of the applicant.
Examples of actions for which a CE demonstration may be possible
include, but are not limited to:
(1) Modernization of a highway through restoration, rehabilitation,
reconstruction, adding shoulders, or adding auxiliary lanes (e.g.,
parking, weaving, turning, climbing lanes), or travel lanes in the
median of an existing facility, including any such action necessary to
accommodate other transportation modes on an existing facility.
(2) Transportation operational improvements, including those that
use ITS, such as, freeway surveillance and control systems, traffic
signal monitoring and control systems, transit management systems,
electronic fare payment systems, and electronic toll collection
systems.
(3) Transportation safety improvements and programs; hazard
eliminations, including construction of grade separation to replace
existing highway-railway grade crossings; projects to mitigate hazards
caused by wildlife; and seismic retrofit of existing transportation
facilities or structures.
(4) Rehabilitation or reconstruction of tunnels, bridges, and other
structures, and the approaches thereto.
(5) Modification or replacement of an existing bridge on
essentially the same alignment or location.
[[Page 33984]]
(6) Construction of parking facilities or carpool and vanpool
projects that involve land acquisition and construction.
(7) Construction of new buildings to house transportation
management and control centers, carpool and vanpool operations centers,
or vehicle emissions testing centers.
(8) Construction of new rest areas, toll collection facilities,
truck weigh stations or auto emissions testing or safety testing
facilities.
(9) Approvals for changes in highway access control.
(10) Improvement of existing tracks, railbeds, communications
systems, signal systems, security systems, and electrical power
systems, including construction of sidings or passing tracks; extension
or expansion of rail electrification on existing, operating rail lines.
(11) Construction of new bus or rail storage and maintenance
facilities in undeveloped areas or areas used predominantly for
industrial or transportation purposes, where such facility is
compatible with existing zoning, the site is located on or near a
street with adequate capacity to handle anticipated traffic, and there
is no significant air or noise impact on the surrounding community.
(12) Renovation, reconstruction, or improvement of existing rail,
bus, and intermodal buildings and facilities, including conversion to
use by alternative-fuel vehicles.
(13) Construction of bus transfer facilities (an open area
consisting of passenger shelters, boarding areas, kiosks and related
street improvements) or intermodal transfer facilities, when located in
a commercial area or other high activity center in which there is
adequate street capacity for projected traffic.
(14) Rehabilitation, renovation, or improvement of existing ferry
terminals, piers, and facilities.
(15) Short-term demonstrations of rail service on existing tracks.
(16) An acquisition of land or property interests that meets the
criteria of paragraph (d)(16)(i), (ii) or (iii) of this section may be
evaluated against the criteria for a CE in the CEQ regulations (40 CFR
1508.4) and paragraph (a) of this section separately from any planned
action that would use the land or property interests. Any subsequent
action that would use the acquired right-of-way or property interests
and would require a DOT agency action must be separately reviewed in
accordance with this part prior to any construction on, or change in
the land. The following types of acquisitions may qualify as CEs:
(i) Acquisition of an existing transportation right-of-way which is
linear in its general configuration and is not publicly owned, such as
a railroad or a private road, for the purpose of either maintaining
preexisting levels of transportation service on the facility or of
preserving the right-of-way for a future transportation action or
transportation enhancement activity.
(ii) Acquisition of land, easements, or other property interests
with the intent of preserving alternatives for a future transportation
action, where the following conditions are met: The transportation
action that would use the land or property interests has been
specifically included in a transportation plan for the area adopted
pursuant to 23 CFR part 1410 and such plan has been found by the U.S.
DOT agency to conform to air quality plans in accordance with 40 CFR
parts 51 and 93, if applicable; and the acquisition will not limit the
evaluation of alternatives to the planned action that would use the
land or property interests including shifts in alignment that may be
required.
(iii) Acquisition of land or property interests for hardship or
protective purposes where the following conditions are met: The
transportation action that would use the land or property interests has
been specifically included in a transportation plan for the area
adopted pursuant to 23 CFR part 1410 and such plan has been found by
the U.S. DOT agency to conform to air quality plans in accordance with
40 CFR parts 51 and 93, if applicable; the hardship and protective
buying will be limited to a particular parcel or a small number of
parcels related to the planned transportation action; and the
acquisition will not limit the evaluation of alternatives to the
planned action that would use the land or property interests, including
shifts in alignment that may be required.
(17) Approvals for joint or limited use of right-of-way, where the
proposed use does not have significant adverse impacts.
(18) Construction of a bicycle transportation facility on its own,
new right-of-way.
(19) Mitigation of water pollution due to storm water runoff from
transportation facilities.
(20) Rehabilitation and operation of historic transportation
buildings, structures, or facilities (including historic railroad or
bus facilities and canals).
(21) Transportation enhancement activities and transit enhancements
defined in 23 U.S.C. 101 and 49 U.S.C. 5302.
Sec. 1420.313 Environmental assessments.
(a) An EA shall be prepared by the applicant in consultation with
the U.S. DOT agency for each action(s) that is not a CE and does not
clearly require the preparation of an EIS, or where the U.S. DOT agency
believes an EA would assist in determining the need for an EIS.
(b) The EA shall evaluate the social, economic, and environmental
impacts of the proposed action, reasonable alternatives that would
avoid or reduce adverse impacts, measures which would mitigate adverse
impacts, and environmental enhancements if any that would aid in
harmonizing the action with the surrounding community. The EA shall
discuss compliance with other related environmental laws, regulations,
and executive orders.
(c) The EA is subject to U.S. DOT agency approval before it is made
available to the public as a U.S. DOT agency document.
(d) For actions that require an EA, the applicant, in consultation
with the U.S. DOT agency, shall do the following:
(1) Conduct interagency coordination in accordance with
Sec. 1420.303, beginning at the earliest appropriate time, to advise
agencies of the proposed action and to achieve the following
objectives: Determine which aspects of the proposed action have
potential for social, economic, or environmental impact; identify
alternatives and measures which might avoid or mitigate adverse
impacts; identify environmental enhancements that might aid in
harmonizing the action with the surrounding community; and identify
other environmental review and coordination requirements which should
be performed concurrently with the EA. The results of interagency
coordination to the time of EA approval by the U.S. DOT agency shall be
included in the EA.
(2) Provide for public involvement in accordance with the
procedures established pursuant to Sec. 1420.305. Public involvement to
the time of EA approval by the U.S. DOT agency shall be summarized in
the EA.
(e) The EA need not be circulated for comment but the document must
be made available for inspection in public places readily accessible to
the affected community in accordance with paragraphs (f) and (g) of
this section. Notice of availability of the EA, briefly describing the
action(s) and its impacts, or a copy of the EA, shall be sent by the
applicant to the affected units of Federal, State and local government.
[[Page 33985]]
(f) When, in accordance with the public involvement procedures
established pursuant to Sec. 1420.305, a public hearing on an action
evaluated in an EA is held, the following shall occur:
(1) The EA shall be available at the public hearing and for a
minimum of 15 days in advance of the public hearing.
(2) The notice of the public hearing in local newspapers shall
announce the availability of the EA and where it may be obtained or
reviewed.
(3) Pursuant to 40 CFR 1501.4(c) comments shall be submitted in
writing to the applicant or the U.S. DOT agency within 30 days of
publication of the notice of availability of the EA unless the U.S. DOT
agency determines, for good cause, that a different period is
warranted.
(g) When, in accordance with the public involvement procedures
established pursuant to Sec. 1420.305, a public hearing on an action
evaluated in an EA is not held, the following shall occur:
(1) The applicant shall place a notice in a newspaper(s) similar to
a public hearing notice at an appropriate stage of development of the
action.
(2) The notice shall advise the public of the availability of the
EA, state where information concerning the action may be obtained, and
invite comments from all parties with an interest in the social,
economic, or environmental aspects of the action.
(3) Pursuant to 40 CFR 1501.4(c) comments shall be submitted in
writing to the applicant or the U.S. DOT agency within 30 days of the
publication of the notice unless the U.S. DOT agency determines, for
good cause, that a different period is warranted.
(h) If no significant impacts are identified, the applicant shall
consider the public and agency comments received; revise the EA as
appropriate; furnish the U.S. DOT agency a copy of the revised EA, the
public hearing transcript, where applicable, and copies of any comments
received and responses thereto; and recommend a FONSI. The revised EA
shall also document compliance, to the fullest extent possible, with
other related environmental laws, regulations, and executive orders
applicable to the action, or provide reasonable assurance that the
requirements will be met. Full compliance with the transportation
conformity rule (40 CFR parts 51 and 93) and the planning regulation
(23 CFR part 1410) is required before completion of the FONSI.
(i) If, at any point in the EA process, the U.S. DOT agency
determines that the action is likely to have a significant impact on
the environment, the preparation of an EIS will be required.
(j) Any action which normally would be classified as an EA but
could involve unusual circumstances, such as, substantial controversy
on community impact and/or environmental grounds, will require the U.S.
DOT agency, in cooperation with the applicant, to determine if the EA
is the appropriate level of documentation.
Sec. 1420.315 Findings of no significant impact.
(a) The U.S. DOT agency will review the EA and other documents
submitted pursuant to Sec. 1420.313 (e.g., copies of any hearing
transcript and written comments, and the applicant's responses). If the
U.S. DOT agency agrees with the applicant's recommendation of a FONSI,
it will make such finding in writing and incorporate by reference the
EA and any other related documentation.
(b) Pursuant to 40 CFR 1501.4(e)(2), for proposed actions which are
either similar to ones normally requiring an EIS or are without
precedent and the U.S. DOT agency is processing the action with an EA
and expects to issue a FONSI, copies of the EA and proposed FONSI shall
be made available for review by the public and affected units of
government for a minimum of 30 days before the U.S. DOT agency makes
its final decision. This public availability shall be announced by a
notice similar to a public hearing notice.
(c) After a FONSI has been made by the U.S. DOT agency, a notice of
availability of the FONSI shall be sent by the applicant to the
affected units of Federal, State and local government, and the document
shall be available from the applicant and the U.S. DOT agency upon
request by the public. Notice shall also be sent to the State
intergovernmental review contacts established under Executive Order
12372.
(d) Where substantial changes are made to the project and/or its
potential impacts after the public review period for the EA, the
applicant, pursuant to Sec. 1420.323(c), shall make copies of the
revised EA and the FONSI available for review by the public and
affected units of government for a minimum of 30 days before the U.S.
DOT agency makes its final decision, unless the U.S. DOT agency
determines, for good cause, that a different period is warranted.
(e) If another Federal agency has issued a FONSI on an action which
includes an element proposed for U.S. DOT agency action, the U.S. DOT
agency will evaluate the other agency's EA/FONSI. If the U.S. DOT
agency determines that this element of the action and its environmental
impacts have been adequately identified and assessed, the U.S. DOT
agency will issue its own FONSI in accordance with paragraphs (a), (b),
(c) and (d) of this section, incorporating the other agency's FONSI and
any other related documentation. If environmental issues have not been
adequately identified and assessed, the U.S. DOT agency will require
appropriate environmental studies to complete the assessment.
Sec. 1420.317 Draft environmental impact statements.
(a) A draft EIS shall be prepared when the U.S. DOT agency
determines that the action(s) is likely to cause significant impacts on
the environment or if the preparation of an EIS is otherwise
appropriate. When the decision has been made by the U.S. DOT agency to
prepare an EIS, the U.S. DOT agency will publish a Notice of Intent (40
CFR 1508.22) in the Federal Register. Applicants must announce the
intent to prepare an EIS by appropriate means at the local level in
accordance with the public involvement procedures established pursuant
to Sec. 1420.305.
(b) The U.S. DOT agency, in cooperation with the applicant, will
publish the Notice of Intent and begin a scoping process to establish
the scope of the draft EIS and the work necessary for its preparation.
The documented results of the planning process relevant to the action,
including the public involvement and interagency coordination that has
occurred, must be considered in scoping. Scoping is normally achieved
through the actions taken to comply with the public involvement
procedures and interagency coordination required by Secs. 1420.303 and
1420.305. The scoping process will: Review the range of alternatives
and impacts and the major issues to be addressed in the EIS; aid in
determining which aspects of the proposed action have potential for
social, economic, or environmental impact; help identify measures which
might mitigate adverse environmental impacts; identify environmental
enhancements that might aid in harmonizing the action with the
surrounding community; identify other environmental review and
coordination requirements that must be performed concurrently with the
EIS preparation; and achieve the other objectives of 40 CFR 1501.7 and
environmental streamlining (Sec. 1420.203). If a public scoping meeting
is to be held, it must be announced in the U.S. DOT agency 's Notice of
Intent and by an appropriate means at the local level.
[[Page 33986]]
(c) The draft EIS shall be prepared by the U.S. DOT agency in
cooperation with the applicant or, where permitted by 40 CFR 1506.5, by
the applicant with appropriate guidance and participation by the U.S.
DOT agency. The draft EIS shall evaluate all reasonable alternatives
and may rely on information developed in accordance with 23 CFR part
1410. The draft EIS shall discuss the reasons why other alternatives,
which may have been considered, were eliminated from detailed study.
The draft EIS shall evaluate the social, economic, and environmental
impacts of the proposed action, reasonable alternatives that would
avoid or reduce adverse impacts, measures which would mitigate adverse
impacts, and environmental enhancements that would aid in harmonizing
the action with the surrounding community. Alternatives must be
sufficiently well-defined to allow full evaluation of the specific
alignment and design variations that would avoid or minimize adverse
impacts. The draft EIS shall summarize the public involvement and
interagency coordination to the time of its approval. The draft EIS
shall also summarize the studies, reviews, consultations, and
coordination required by other related environmental laws, regulations,
and executive orders to the extent appropriate at this stage in the
environmental process.
(d) The U.S. DOT agency, when satisfied that the draft EIS complies
with NEPA requirements, will approve the draft EIS for circulation by
signing and dating the cover sheet.
(e) A lead, joint lead, or a cooperating agency shall be
responsible for printing and distributing the draft EIS. The initial
printing of the draft EIS shall be in sufficient quantity to meet
requests for copies which can reasonably be expected from agencies,
organizations, and individuals. Normally, copies will be furnished free
of charge. However, with U.S. DOT agency concurrence, the party
requesting the draft EIS may be charged a fee which is not more than
the actual cost of reproducing the copy and also must be informed of
the nearest location where the draft EIS may be reviewed without
charge.
(f) The draft EIS shall be circulated for comment by the applicant
on behalf of the U.S. DOT agency. The draft EIS shall be made available
to the public and transmitted to agencies for comment no later than the
time the document is filed with the Environmental Protection Agency in
accordance with 40 CFR 1506.9. The draft EIS shall be transmitted to
the following:
(1) Public officials, interest groups, and members of the public
known to have an interest in the proposed action or alternatives;
(2) Federal, State and local government agencies expected to have
jurisdiction or responsibility over, or interest or expertise in, the
action, and to the State intergovernmental review contacts established
under Executive Order 12372; and
(3) Neighboring States and Federal land management entities which
may be affected by any of the alternatives.
(g) Public hearing requirements are to be carried out in accordance
with the provisions of Sec. 1420.305 and this section. Whenever a
public hearing is held, the draft EIS shall be available at the public
hearing and for a minimum of 15 days in advance of the public hearing.
The availability of the draft EIS shall be mentioned, and public
comments requested, in any public hearing notice and at any public
hearing presentation. If a public hearing is not held, a notice shall
be placed in a newspaper similar to a public hearing notice advising
where the draft EIS is available for review, how copies may be
obtained, and where the comments should be sent.
(h) Through the U.S. Environmental Protection Agency's notice of
availability (40 CFR 1506.10), the U.S. DOT agency shall establish a
period of not less than 45 days for the receipt of comments on the
draft EIS. The draft EIS or a transmittal letter sent with each copy of
the draft EIS shall identify where comments are to be sent and when the
comment period ends.
Sec. 1420.319 Final environmental impact statements.
(a)(1) After circulation of a draft EIS and consideration of
comments received, a final EIS shall be prepared by the U.S. DOT agency
in cooperation with the applicant or, where permitted by 40 CFR 1506.5,
by the applicant with appropriate guidance and participation by the
U.S. DOT agency. Preparation of the final EIS will involve such
additional public involvement, interagency coordination, and
engineering or environmental studies as are necessary to consider the
appropriateness of refinements in the alternatives and the
incorporation of mitigation measures and environmental enhancements in
response to comments received on the draft EIS.
(2) Every reasonable effort shall be made to resolve interagency
disagreements on actions before processing the final EIS. If major
issues remain unresolved, the final EIS shall identify those issues and
the coordination and other efforts made to resolve them.
(3) The final EIS shall evaluate all reasonable alternatives
considered and identify the preferred alternative. It shall also
discuss substantive comments received on the draft EIS and responses
thereto, summarize public involvement and interagency coordination, and
describe the environmental design features, including mitigation
measures and environmental enhancements, that are incorporated into the
proposed action. Environmental design features or other mitigation
measures presented as commitments in the final EIS shall be
incorporated into the action. The final EIS shall also document
compliance with other related environmental laws, regulations, and
executive orders applicable to the action, and, if full compliance is
not possible, provide reasonable assurance that the requirements will
be met.
(b) The U.S. DOT agency will indicate approval of the final EIS by
signing and dating the cover page. Approval of the final EIS does not
commit the U.S. DOT agency to approve any future grant request.
(c) The initial printing of the final EIS shall be in sufficient
quantity to meet the request for copies which can be reasonably
expected from agencies, organizations, and individuals. Normally,
copies will be furnished free of charge. However, with U.S. DOT agency
concurrence, the party requesting the final EIS may be charged a fee
which is not more than the actual cost of reproducing the copy and also
must be informed of the nearest location where the final EIS may be
reviewed without charge.
(d) The final EIS shall be transmitted to any persons,
organizations, or agencies that made substantive comments on the draft
EIS and to anyone requesting a copy, no later than the time the
document is filed with the U.S. EPA. In the case of lengthy documents,
the U.S. DOT agency may allow alternative circulation processes in
accordance with 40 CFR 1502.19. The applicant shall publish a notice of
availability in local newspapers and make the final EIS available
through the mechanism established pursuant to DOT Order 4600.13 \2\
which implements Executive Order 12372. The final EIS shall be
available for public review at the applicant's offices and at
appropriate DOT agency offices for at least 30 days after the U.S. EPA
publication of the Federal Register notice of availability. Copies
should also be made available for public review at institutions such as
local government
[[Page 33987]]
offices, libraries, and schools, as appropriate.
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\2\ This document is available for inspection and copying as
prescribed in 49 CFR part 7.
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Sec. 1420.321 Record of decision.
(a) The U.S. DOT agency will complete and sign a record of decision
(ROD) no sooner than 30 days after the U.S. EPA publication in the
Federal Register of the notice of availability for the final EIS or 90
days after the U.S. EPA publication of the notice for the draft EIS,
whichever is later. The ROD will present the basis for the decision as
specified in 40 CFR 1505.2, summarize any mitigation measures and
environmental enhancements that have been incorporated into the action,
and document any required section 4(f) approval in accordance with 23
CFR part 1430. Until the ROD has been signed, no further approvals
relative to the action may be given except those for administrative
activities taken to secure further project funding and for other
activities consistent with the limitation on actions in 40 CFR 1506.1.
The applicant, in coordination with the U.S. DOT agency shall publish a
notice of availability of the ROD for public review in a newspaper of
general circulation, and, to the extent practicable, provide the
approved ROD to all persons, organizations, and agencies that received
a copy of the final EIS pursuant to Sec. 1420.319(d).
(b) After issuance of a ROD, the U.S. DOT agency shall issue a
revised ROD if it wishes to approve an alternative which was not
identified as the preferred alternative but was fully evaluated in the
final EIS or proposes to make substantial changes to the mitigation
measures or findings discussed in the original ROD. Before issuing the
revised ROD, the U.S. DOT agency shall consider whether additional
notification, interagency coordination, and public involvement are
needed in accordance with Sec. 1420.303 and Sec. 1420.305. To the
extent practicable the approved revised ROD shall be provided to all
persons, organizations and agencies that received a copy of the Final
EIS pursuant to Sec. 1420.319(d).
(c) Upon approval of the ROD, the mitigation and environmental
enhancements in the final EIS associated with the alternative selected
in the ROD become enforceable conditions of any subsequent grant
related to the action or other DOT agency approval of the action. The
U.S. DOT agency will ensure implementation of mitigation and
environmental enhancements as described in Sec. 1420.113.
Sec. 1420.323 Re-evaluations.
(a) A written evaluation of the draft EIS shall be prepared by the
applicant in cooperation with the U.S. DOT agency if a final EIS is not
approved by the U.S. DOT agency within three years from the date of the
draft EIS circulation. The purpose of this evaluation is to determine
whether a supplement to the draft EIS or a new draft EIS is needed.
(b) A written evaluation of the final EIS will be required before
further approvals may be granted if major steps to advance the action
(e.g., authority to undertake final design, authority to acquire a
significant portion of the right-of-way, or approval of the plans,
specifications and estimates) have not occurred within three years
after the approval of the final EIS, final EIS supplement, or the last
major DOT agency approval or grant.
(c) After approval of the EIS, FONSI, or CE designation, the
applicant shall consult with the U.S. DOT agency prior to requesting
any major approvals or grants to establish whether or not the approved
environmental document or CE designation remains valid for the
requested U.S. DOT action. These consultations will be documented when
determined necessary by the U.S. DOT agency.
(d) A re-evaluation under this section shall include additional
notification, interagency coordination, and public involvement as
appropriate in accordance with Sec. 1420.303 and Sec. 1420.305.
Sec. 1420.325 Supplemental environmental impact statements.
(a) A draft EIS or final EIS may be supplemented whenever the U.S.
DOT agency determines that supplementation would improve
decisionmaking, better inform the agency or the public, or serve other
purposes. An EIS shall be supplemented whenever the U.S. DOT agency
determines that:
(1) Changes to the proposed action would result in significant
environmental impacts that were not evaluated in the EIS.
(2) New information or circumstances relevant to environmental
concerns and bearing on the proposed action or its impacts would result
in significant environmental impacts not evaluated in the EIS.
(b) A supplemental EIS will not be necessary where:
(1) The changes to the proposed action, new information, or new
circumstances result in the actual lessening of adverse environmental
impacts evaluated in the EIS without causing other environmental
impacts that are significant and were not evaluated in the EIS; or
(2) The U.S. DOT agency decides to approve an alternative fully
evaluated in an approved final EIS but not identified as the preferred
alternative. In such a case, a ROD shall be prepared and circulated in
accordance with Sec. 1420.321.
(c) Where the U.S. DOT agency is uncertain of the significance of
the new impacts, the applicant will develop appropriate environmental
studies or, if the U.S. DOT agency deems appropriate, an EA to assess
the impacts of the changes, new information, or new circumstances. If,
based upon the studies, the U.S. DOT agency determines that a
supplemental EIS is not necessary, the U.S. DOT agency shall so
indicate in the project file.
(d) A supplement is to be developed using the same process and
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except
that scoping is not required. Public involvement and interagency
coordination commensurate with the nature and scope of the supplemental
EIS shall be conducted in accordance with Sec. 1420.305 and the public
involvement procedures developed thereunder.
(e) In some cases, a supplemental EIS may be required to address
issues of limited scope, such as the extent of proposed mitigation or
the evaluation of location or design variations for a limited portion
of the overall project. Where this is the case, the preparation of a
supplemental EIS shall not necessarily prevent the granting of new
approvals; require the withdrawal of previous approvals; or require the
suspension of project activities for any activity not directly affected
by the supplement. If the changes in question are of such magnitude to
require a new evaluation of the entire action, or more than a limited
portion of the overall action, the U.S. DOT agency shall suspend any
activities which would have an adverse environmental impact or limit
the choice of reasonable alternatives, until the supplemental EIS is
completed.
Subpart D--Definitions
Sec. 1420.401 Terms defined elsewhere.
The definitions contained in the CEQ regulation (40 CFR 1508) and
in titles 23 (23 U.S.C. 101) and 49 of the United States Code (49
U.S.C. 14202) are applicable except as modified in Sec. 1420.403.
[[Page 33988]]
Sec. 1420.403 Terms defined in this part.
The following definitions apply to this part and to part 1430 of
this chapter:
Action means a surface transportation infrastructure or service
investment (e.g., highway, transit, railroad, or mixed mode) proposed
for direct implementation by the U.S. DOT agency or for the U.S. DOT
agency financial assistance; and other activities, such as, joint or
multiple use of right-of-way, changes in access control, that require a
U.S. DOT agency approval or permit, but may or may not involve a
commitment of Federal funds; and other FHWA or FTA program decisions,
such as, promulgation of regulations and approval of programs, unless
specifically defined by statute or regulation as not being an action.
Applicant means the Federal, State or local governmental authority
that the U.S. DOT agency works with to conduct environmental studies
and prepare environmental documents. For transportation actions
implemented by the Federal government on Federal lands, the U.S. DOT
agency or the Federal land management agency will take on the
responsibilities of the applicant described herein.
Environmental enhancement means a measure which contributes to
blending the proposed project harmoniously with its surrounding human
communities and the natural environment and extends beyond those
measures necessary to mitigate the specific adverse impacts resulting
from a proposed transportation action. This includes measures eligible
for Federal funding, such as transportation enhancement activities or
transit enhancements, and measures funded by the applicant or by
others.
Environmental studies means the investigations of potential social,
economic, or environmental impacts conducted:
(1) As part of the metropolitan or statewide transportation
planning process under 23 CFR part 1410,
(2) To determine the NEPA class of action and scope of analysis,
and/or
(3) To provide information to be included in a NEPA decision
process.
Hardship acquisition means the early acquisition of property by the
applicant at the property owner's request to alleviate particular
hardship to the owner, in contrast to others, because of an inability
to sell his/her property. This is justified when the property owner can
document on the basis of health, safety, or financial reasons that
remaining in the property poses an undue hardship compared to others.
Planning process means the process of developing metropolitan and
statewide transportation plans and programs in accordance with 23 CFR
part 1410.
Protective acquisition means the purchase of land to prevent
imminent development of a parcel which is needed for a proposed
transportation corridor or site. Documentation must clearly demonstrate
that development of the land would preclude future transportation use
and that such development is imminent. Advance acquisition is not
permitted for the sole purpose of reducing the cost of property for a
proposed project.
Section 4(f) means the provision in law which provides protection
to certain public lands and all historic properties (now codified in 49
U.S.C. 303 and 23 U.S.C. 138).
Transportation conformity means the process for assuring or
conformity of transportation projects, programs, and plans with the
purpose of State plans for attainment and maintenance of air quality
standards under the U.S. EPA regulation at 40 CFR parts 51 and 93. The
process applies only to areas designated as nonattainment or
maintenance for a transportation related pollutant.
U.S. DOT agency means the FHWA, the FTA, or the FHWA and the FTA
together. In addition, U.S. DOT agency refers to any other agency
within the U.S. Department of Transportation that uses this part as
provided for in Sec. 1420.209.
U.S. DOT agency approval means the approval by FHWA/FTA of the
applicant's request relative to an action. The applicant's request may
be for Federal financial assistance, or it may be for some other U.S.
DOT agency approval that does not involve a commitment of Federal
funds.
PART 1430--PROTECTION OF PUBLIC PARKS, WILDLIFE AND WATERFOWL
REFUGES, AND HISTORIC SITES
Sec.
1430.101 Purpose.
1430.103 Mandate.
1430.105 Applicability.
1430.107 Use of land.
1430.109 Significance of the section 4(f) resource.
1430.111 Exceptions.
1430.113 Section 4(f) evaluations and determinations under the
NEPA umbrella.
1430.115 Separate section 4(f) evaluations.
1430.117 Programmatic section 4(f) evaluations.
1430.119 Linkage with transportation planning.
1430.121 Definitions.
Authority: 23 U.S.C. 138 and 315; 49 U.S.C. 303; 49 CFR 1.48
and 1.51.
Sec. 1430.101 Purpose.
The purpose of this part is to implement 49 U.S.C. 303 and 23
U.S.C. 138 which were originally enacted as section 4(f) of the
Department of Transportation Act of 1966 and are still commonly
referred to as section 4(f).
Sec. 1430.103 Mandate.
(a) The U.S. DOT agency may approve a transportation project that
uses publicly owned land from a significant public park, recreation
area, or wildlife and waterfowl refuge, or any land from a significant
historic site only if the U.S. DOT agency has determined that:
(1) There is no feasible and prudent alternative to the use of land
from the property; and
(2) The project includes all possible planning to minimize harm to
the property resulting from such use.
(b) [Reserved]
Sec. 1430.105 Applicability.
(a) This part applies to transportation projects that require an
approval by the U.S. DOT agency, where the U.S. DOT agency has
sufficient control and the statutory authority to condition the project
or approval.
(b) The U.S. DOT agency will determine the applicability of section
4(f) in accordance with this part.
(c) This part does not apply to or alter approvals by the U.S. DOT
agency made prior to the effective date of this regulation.
Sec. 1430.107 Use of land.
(a) Except as set forth in paragraph (b) of this section and
Sec. 1430.111, use of land occurs:
(1) When land is permanently incorporated into a transportation
facility;
(2) When there is a temporary occupancy of land that is adverse to
the statutory purpose of preserving the natural beauty of that land, as
determined by the criteria in paragraph (b) of this section; or
(3) When there is a constructive use of land as determined by the
criteria in paragraph (c) of this section.
(b) A temporary occupancy of land occurs when the use is so minimal
that it does not constitute a use within the meaning of section 4(f)
(Sec. 1420.403) when the following conditions are satisfied:
(1) The duration of the occupancy must be temporary, i.e., less
than the time needed for construction of the project, and there should
be no change in ownership of the land;
(2) Scope of the work must be minor, i.e., both the nature and the
magnitude of the changes to the section 4(f) resource are minimal;
[[Page 33989]]
(3) There are no anticipated permanent adverse physical impacts,
nor will there be interference with the activities or purposes of the
resource, on either a temporary or permanent basis;
(4) The land being used must be fully restored, i.e., the resource
must be returned to a condition which is at least as good as that which
existed prior to the project; and
(5) There must be documented agreement of the appropriate Federal,
State, or local officials having jurisdiction over the resource
regarding the above conditions.
(c) A constructive use of section 4(f) land occurs when the
transportation project does not incorporate land from the section 4(f)
resource, but the impacts of the project on the resource due to its
proximity are so severe that the activities, features, or attributes
that qualify the resource for the protection of section 4(f) are
substantially impaired. The U.S. DOT agencies have reviewed the
following situations and have determined that constructive use occurs
when:
(1) The projected noise level increase attributable to the
transportation project substantially interferes with the use and
enjoyment of a noise-sensitive facility that is a resource protected by
section 4(f), such as hearing the performances at a public outdoor
amphitheater, sleeping in the sleeping area of a public campground,
enjoyment of a historic site where a quiet setting is a generally
recognized feature or attribute of the site's significance, or
enjoyment of an urban park where serenity and quiet are significant
attributes;
(2) The proximity of the project to the section 4(f) resource
substantially impairs aesthetic features or attributes of a resource
protected by section 4(f), where such features or attributes make an
important contribution to the value of the resource. For example,
substantial impairment of visual or aesthetic qualities occurs where a
transportation structure is located in such proximity that it obstructs
or eliminates the primary views of an architecturally significant
historical building, or substantially detracts from the setting of a
park or historic site which derives its value in substantial part from
its setting;
(3) The project restricts access to the section 4(f) property and,
as a result, substantially diminishes the utility of the resource;
(4) The vibration impact from operation of the project
substantially impairs the use of a section 4(f) resource, such as
vibration levels from a rail project that are great enough to affect
the structural integrity of a historic building or substantially
diminish the utility of the building; or
(5) The ecological intrusion of the project substantially
diminishes the value of wildlife habitat in a wildlife or waterfowl
refuge adjacent to the project or substantially interferes with the
access to a wildlife or waterfowl refuge, when such access is necessary
for established wildlife migration or critical life cycle processes.
Sec. 1430.109 Significance of the section 4(f) resource.
(a) Consideration under section 4(f) is required when the Federal,
State, or local officials having jurisdiction over a park, recreation
area or refuge determine that the entire section 4(f) resource is
significant. In the absence of such a determination, the section 4(f)
land will be presumed to be significant, unless the U.S. DOT agency and
the officials with jurisdiction have agreed, formally or informally,
that the resource is not significant. The U.S. DOT agency will review
the significance determination to assure its reasonableness.
(b) Section 4(f) applies to all properties on or eligible for the
National Register of Historic Places. The U.S. DOT agency, in
cooperation with the applicant, will consult with the State Historic
Preservation Officer (SHPO) and appropriate local officials to identify
such historic sites. Section 4(f) applies only to historic sites on or
eligible for the National Register unless the U.S. DOT agency
determines that the application of section 4(f) to a historic site is
otherwise appropriate.
Sec. 1430.111 Exceptions.
(a) Consideration under section 4(f) is not required for any park
road or parkway project developed in accordance with 23 U.S.C. 204.
(b) Consideration under section 4(f) is not required for trail-
related projects funded through the Symms National Recreational Trails
Act of 1991 (16 U.S.C. 1261).
(c) Consideration under section 4(f) is not required for
``transportation enhancement activities'' as defined in 23 U.S.C.
101(a) and transit enhancements as defined in 49 U.S.C. 5302(a)(15) if:
(1) The use of the section 4(f) property is solely for the purpose
of preserving or enhancing the activities, features, or attributes that
qualify the property for section 4(f) protection; and
(2) The Federal, State, or local official having jurisdiction over
the property agrees in writing that the use is solely for the purpose
of preserving or enhancing the section 4(f) activities, features, or
attributes of the property and will, in fact, accomplish this purpose.
(d) Where Federal lands or other public land holdings (e.g., State
forests) are administered under statutes permitting management for
multiple uses and are, in fact, managed for multiple uses, section 4(f)
applies only to those portions of such lands which function as
significant public parks, recreation areas, or wildlife refuges, or
which are designated in the plans of the administering agency as being
for, significant park, recreation, or wildlife purposes or historic
sites. The determination as to which lands so function or are so
designated, and the significance of those lands, shall be made by the
officials having jurisdiction over the lands. The determination of
significance shall apply to the entire area of lands which so function
or are so designated. The U.S. DOT agency will review these
determinations to assure their reasonableness.
(e) Consideration under section 4(f) is not required for the
restoration, rehabilitation, or maintenance of transportation
facilities that are on or eligible for the National Register when:
(1) Such work will not adversely affect the historic qualities of
the facility that caused it to be on or eligible for the National
Register, and
(2) The SHPO has been consulted and has not objected to the U.S.
DOT agency finding in paragraph (e)(1) of this section.
(f) Archeological sites.
(1) Section 4(f) applies to all archeological sites on or eligible
for inclusion in the National Register, including those discovered
during construction except as set forth in paragraph (f)(2) of this
section. When section 4(f) requirements apply to archeological sites
discovered during construction, the section 4(f) process will be
expedited. In such cases, the evaluation of feasible and prudent
alternatives will take into account the level of investment already
made in the project. The review process, including the consultation
with other agencies, will be shortened as appropriate.
(2) Section 4(f) requirements do not apply to archeological sites
where the U.S. DOT agency, after consultation with the SHPO, determines
that the archeological resource is important chiefly because of what
can be learned by data recovery and has minimal value for preservation
in place. This exception applies both to situations where data recovery
is undertaken or where the U.S. DOT agency decides, with agreement of
the SHPO, not to recover the data in the resource.
[[Page 33990]]
(g) Designations of park and recreation lands, wildlife and
waterfowl refuges, and historic sites are sometimes made, and
determinations of significance changed, late in the development of a
project. With the exception of the treatment of archeological resources
in paragraph (f) of this section, the U.S. DOT agency may permit a
project to proceed without consideration under section 4(f) if the
property interest in the section 4(f) lands was acquired for
transportation purposes prior to the designation or change in the
determination of significance and if an adequate effort was made to
identify properties protected by section 4(f) prior to acquisition.
(h) Constructive use normally does not occur when:
(1) Compliance with the requirements of section 106 of the National
Historic Preservation Act and 36 CFR part 800 for proximity impacts of
the proposed action, on a site listed on or eligible for the National
Register of Historic Places results in an agreement of no adverse
effect;
(2) The projected traffic noise levels of a proposed nearby highway
project do not exceed the FHWA noise abatement criteria given in Table
1, 23 CFR part 772, or the projected operational noise levels of a
proposed nearby transit project do not exceed the noise impact criteria
in the FTA guidelines (Federal Transit Administration, Transit Noise
and Vibration Impact Assessment, April 1995, available from the FTA
offices);
(3) The projected noise levels exceed the relevant threshold in
paragraph (h)(2) of this section because of high existing noise, but
the increase in the projected noise levels if the proposed project is
constructed, when compared with the projected noise levels if the
project is not built, is barely perceptible (3 dBA or less);
(4) A proposed transportation project will have proximity impacts
on a section 4(f) property, but a governmental agency's right-of-way
acquisition, an applicant's adoption of project location, or the U.S.
DOT agency approval of a final NEPA document established the location
of the project before the designation, establishment, or change in the
significance of the section 4(f) property. However, if the property in
question is a historic site that would be eligible for the National
Register except for its age at the time that the project location is
established, and construction of the project would begin after the site
became eligible, then constructive use of the historic site may occur
and such use must be evaluated;
(5) There are proximity impacts to a proposed public park,
recreation area, or wildlife refuge, but the proposed transportation
project and the resource are concurrently planned or developed. The
following examples of such concurrent planning or development include,
but are not limited to:
(i) Designation or donation of property for the specific purpose of
such concurrent development by the entity with jurisdiction or
ownership of the property for both the potential transportation project
and the section 4(f) resource; or
(ii) Designation, donation, planning or development of property by
two or more governmental agencies, with jurisdiction for the potential
transportation project and the section 4(f) resource, in consultation
with each other;
(iii) Overall (combined) proximity impacts caused by a proposed
project do not substantially impair the activities, features, or
attributes that qualify a resource for protection under section 4(f);
(iv) Proximity impacts will be mitigated to a condition equivalent
to, or better than, that which would occur under a no-build scenario;
(v) Change in accessibility will not substantially diminish the
utilization of the section 4(f) resource; or
(vi) Vibration levels from project construction activities are
mitigated, through advance planning and monitoring of the activities,
to levels that do not cause a substantial impairment of the section
4(f) resource.
Sec. 1430.113 Section 4(f) evaluations and determinations under the
NEPA umbrella.
(a) Alternatives to avoid the use of section 4(f) properties and
measures to minimize harm to such land shall be developed and evaluated
by the applicant in cooperation with the U.S. DOT agency. Such
evaluation shall be initiated early when alternatives are under study.
An alternative that avoids section 4(f) property must be preferred
unless the evaluation demonstrates that there are unique problems or
unusual factors associated with it, or that the cost, the social,
economic, or environmental impacts, or the community disruption
resulting from such alternative reach extraordinary magnitudes.
(b) In accordance with the concept of the NEPA umbrella in 23 CFR
1420.109, the section 4(f) evaluation is normally presented in the
draft environmental impact statement (EIS), the environmental
assessment (EA), or the categorical exclusion (CE) documentation. The
evaluation may incorporate relevant information from the planning
process in accordance with Sec. 1430.119. A separate section 4(f)
evaluation may be necessary as described in section Sec. 1430.115.
(c) The section 4(f) evaluation shall be provided for coordination
and comment to the officials having jurisdiction over the section 4(f)
property and to the U.S. Department of the Interior, and as appropriate
to the U.S. Department of Agriculture and the U.S. Department of
Housing and Urban Development. A minimum of 45 days shall be
established by the U.S. DOT agency for receipt of comments.
(d) When adequate support exists for a section 4(f) determination,
the discussion in the final EIS, the finding of no significant impact
(FONSI), the CE documentation, or the separate section 4(f) evaluation
shall specifically address the following:
(1) The reasons why the alternatives to avoid a section 4(f)
property are not feasible and prudent; and
(2) All measures incorporated into the project that will be taken
to minimize harm to the section 4(f) property.
(e) The U.S. DOT agency is not required to determine that there is
no constructive use. However, such a determination may be made at the
discretion of the U.S. DOT agency. When a constructive use
determination is made, it will be based, to the extent it reasonably
can, upon the following:
(1) Identification of the current activities, features, or
attributes of a resource that qualify it for protection under section
4(f) and which may be sensitive to proximity impacts;
(2) An analysis of the proximity impacts of the proposed project on
the section 4(f) resource. If any of the proximity impacts will be
mitigated, only the net impact need be considered in this analysis. The
analysis should also describe and consider the impacts which could
reasonably be expected if the proposed project were not implemented,
since such impacts should not be attributed to the proposed project;
and
(3) Consultation, on the above identification and analysis, with
the Federal, State, or local officials having jurisdiction over the
park, recreation area, refuge, or historic site.
(f) For actions processed with an EIS, the U.S. DOT agency will
make the section 4(f) determination either in its approval of the final
EIS or in the record of decision (ROD). Where the section 4(f) approval
is documented in the final EIS, the U.S. DOT agency will summarize the
basis for its section 4(f) approval in the ROD. Actions requiring the
use of section 4(f) property, and
[[Page 33991]]
proposed to be processed with a FONSI or classified as a CE, shall not
proceed until the U.S. DOT agency has given notification of section
4(f) approval. For these actions, any required section 4(f) approval
will be documented in the FONSI, in the CE approval, if one is
provided, or in a separate section 4(f) document.
(g) The final section 4(f) evaluation will be reviewed for legal
sufficiency.
Sec. 1430.115 Separate section 4(f) evaluations.
(a) Circulation of a separate section 4(f) evaluation will be
required when:
(1) A proposed modification of the alignment or design would
require the use of section 4(f) land after the CE, FONSI, draft EIS, or
final EIS has been processed;
(2) A proposed modification of the alignment, design, or measures
to minimize harm after an original section 4(f) approval, would result
in a substantial increase in the use of section 4(f) land or a
substantial reduction in the measures to minimize harm included in the
project;
(3) The U.S. DOT agency determines, after processing the CE, FONSI,
draft EIS, or final EIS that section 4(f) applies to a property; or
(4) An agency whose actions are not subject to section 4(f)
requirements is the lead agency for the NEPA process on an action that
involves section 4(f) property and requires a U.S. DOT agency action.
(b) If the U.S. DOT agency determines under paragraph (a) of this
section or otherwise, that section 4(f) is applicable after the CE,
FONSI, or ROD has been processed, the decision to prepare and circulate
a section 4(f) evaluation will not necessarily require the preparation
of a new or supplemental NEPA document. Where a separately circulated
section 4(f) evaluation is prepared after the CE, FONSI, or ROD has
been processed, such evaluation does not necessarily:
(1) Prevent the granting of new approvals;
(2) Require the withdrawal of previous approvals; or
(3) Require the suspension of project activities for any activity
not affected by the new section 4(f) evaluation.
Sec. 1430.117 Programmatic section 4(f) evaluations.
The U.S. DOT agency, in consultation with the U.S. Department of
the Interior and other agencies, as appropriate, may make a
programmatic section 4(f) determination for a class of similar
projects. Uses of section 4(f) land covered by a programmatic section
4(f) evaluation shall be documented and coordinated as specified in the
programmatic section 4(f) evaluation.
Sec. 1430.119 Linkage with transportation planning.
(a) An analysis required by section 4(f) may involve different
levels of detail where the section 4(f) involvement is addressed during
the planning process or in a tiered EIS.
(b) When a planning document or a first-tier EIS is intended to
provide the basis for subsequent project development as provided in
Sec. 1420.201 and 40 CFR 1502.20, the detailed information necessary to
complete the section 4(f) evaluation may not be available at that stage
in the development of the action. In such cases, an evaluation should
be made of the potential impacts that a proposed action will have on
section 4(f) land and whether those impacts could have a bearing on the
decision to be made. A preliminary determination may be made at this
time as to whether there are feasible and prudent locations or
alternatives for the action to avoid the use of section 4(f) land. This
preliminary determination shall consider all possible planning to
minimize harm, to the extent that the level of detail at this stage
allows. It is recognized that such planning at this stage will normally
be limited to ensuring that opportunities to minimize harm at
subsequent stages in the project development process have not been
precluded by decisions made at this stage. This preliminary
determination is then incorporated into official planning documents or
the first-tier EIS.
(c) A section 4(f) approval made when additional design details are
available will include a determination that:
(1) The preliminary section 4(f) determination made pursuant to
paragraph (a) remains valid; and
(2) The criteria of Sec. 1430.103 and Sec. 1430.113(a) have been
met.
Sec. 1430.121 Definitions.
The definitions contained in 23 CFR 1420.403, 23 U.S.C. 101(a), 49
U.S.C. 5302, and 40 CFR part 1508 are applicable to this part.
Federal Transit Administration
49 CFR Chapter VI
For the reasons set forth in the preamble, the Federal Transit
Administration proposes to amend chapter VI of title 49, Code of
Federal Regulations, as follows:
3. Revise part 622 to read as follows:
PART 622--NEPA AND RELATED PROCEDURES FOR TRANSPORTATION
DECISIONMAKING
Subpart A--Purpose, Policy, and Mandate
Sec.
622.101 Cross-reference to subpart A of 23 CFR part 1420.
Subpart B--Program and Project Streamlining
622.201 Cross-reference to subpart B of 23 CFR part 1420.
Subpart C--Process and Documentation Requirements
622.301 Cross-reference to subpart C of 23 CFR part 1420.
Subpart D--Definitions
622.401 Cross-reference to subpart D of 23 CFR part 1420.
Authority: 23 U.S.C. 109, 128, 134 and 138; 42 U.S.C. 2000d-
2000d-4, 4321 et seq., and 7401 et seq.; 49 U.S.C. 303, 5301(e),
5303, 5309, and 5324(b) and (c); 49 CFR 1.51.
Subpart A--Purpose, Policy, and Mandate
Sec. 622.101 Cross-reference to subpart A of 23 CFR part 1420.
The regulations for complying with this subpart are set forth in
subpart A of 23 CFR part 1420.
Subpart B--Program and Project Streamlining
Sec. 622.201 Cross-reference to subpart B of 23 CFR part 1420.
The regulations for complying with this subpart are set forth in
subpart B of 23 CFR part 1420.
Subpart C--Process and Documentation Requirements
Sec. 622.301 Cross-reference to subpart C of 23 CFR part 1420.
The regulations for complying with this subpart are set forth in
subpart C of 23 CFR part 1420.
Subpart D--Definitions
Sec. 622.401 Cross-reference to subpart D of 23 CFR part 1420.
The regulations for complying with this subpart are set forth in
subpart D of 23 CFR part 1420.
4. Add a new part 623 to read as follows:
[[Page 33992]]
PART 623--PROTECTION OF PUBLIC PARKS, WILDLIFE AND WATERFOWL
REFUGES, AND HISTORIC SITES
Sec.
623.101 Cross-reference to 23 CFR part 1430.
Authority: 49 U.S.C. 303; 49 CFR 1.51.
Sec. 623.101 Cross-reference to 23 CFR part 1430.
The regulations for complying with 49 U.S.C. 303 are set forth in
23 CFR part 1430.
Issued on: May 18, 2000.
Vincent F. Schimmoller,
Acting Executive Director, Federal Highway Administration.
Nuria I. Fernandez,
Acting Administrator, Federal Transit Administration.
[FR Doc. 00-13022 Filed 5-19-00; 1:15 pm]
BILLING CODE 4910-MR-P