[Federal Register Volume 88, Number 224 (Wednesday, November 22, 2023)]
[Notices]
[Pages 81519-81526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25786]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36488]


Desertxpress Enterprises, LLC--Authority To Construct and 
Operate--Petition for Exemption From 49 U.S.C. 10901--Passenger Rail 
Line Between the Victor Valley, Cal. and Rancho Cucamonga, Cal.

    On April 13, 2021, DesertXpress Enterprises, LLC, a Nevada limited 
liability company, d/b/a Brightline West (DesertXpress),\1\ filed a 
petition under 49 U.S.C. 10502 for an exemption from the prior approval 
requirements of 49 U.S.C. 10901 to construct and operate an 
approximately 50-mile high-speed passenger rail line between the Victor 
Valley, in Southern California, and Rancho Cucamonga, Cal. (the RC 
Line). DesertXpress plans to operate as a common carrier providing 
passenger rail service on the rail line to be constructed. DesertXpress 
does not plan to provide freight rail service. No comments opposing the 
transportation merits of DesertXpress' petition were filed.
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    \1\ On September 17, 2018, DesertXpress' ownership group entered 
into an agreement to sell the company to Brightline Holdings LLC 
(Brightline). Fortress Inv. Grp. LLC--Continuance in Control--Cent. 
Me. & Que. Ry., FD 36225, slip op. at 1-2 (STB served Oct. 11, 
2018). Brightline's acquisition of DesertXpress was consummated on 
March 4, 2019. (DesertXpress Pet. 2 n.2.)
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    On July 12, 2021, the Board instituted a proceeding under 49 U.S.C. 
10502.\2\ As discussed below, the Board, through the Office of 
Environmental Analysis (OEA), participated in the environmental and 
historic review of the RC Line as a cooperating agency

[[Page 81520]]

under the lead of the Federal Railroad Administration (FRA). This 
thorough environmental review took a ``hard look'' at environmental 
impacts, selected a preferred alternative, and recommended 
environmental mitigation conditions to avoid or minimize the selected 
alternative's potential environmental impacts. After considering the 
entire record on both the transportation and the environmental issues, 
the Board will grant DesertXpress' petition for exemption, subject to 
environmental conditions.
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    \2\ On July 21, 2023, DesertXpress filed a letter requesting 
that the Board expedite a final decision in this proceeding. On July 
27, 2023, U.S. Representative Dina Titus filed a letter urging the 
Board to expeditiously consider DesertXpress' petition.
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Background

    In DesertXpress Enterprises, LLC--Construction & Operation 
Exemption--in Victorville, Cal. and Las Vegas, Nev., FD 35544 (STB 
served Oct. 25, 2011), the Board exempted from the prior approval 
requirements of 49 U.S.C. 10901 DesertXpress' proposal to construct and 
operate an approximately 190-mile high-speed passenger rail line 
between Las Vegas, Nev., and the Victor Valley (the LV Line).\3\ The RC 
Line will extend from a point of connection with the southern terminus 
of the LV Line in the Victor Valley to Rancho Cucamonga. (DesertXpress 
Pet. 4.) The RC Line's alignment will be entirely within the I-15 
right-of-way except for the final mile at Rancho Cucamonga, which will 
exit the I-15 right-of-way, proceed west along 8th Street and terminate 
adjacent to the Southern California Regional Rail Authority's 
(Metrolink's) Rancho Cucamonga train station on the south side of 8th 
Street west of Milliken Avenue.\4\ (Id. at 5.) DesertXpress' Rancho 
Cucamonga station will link DesertXpress' train services with the 
passenger services operated by Metrolink and the bus rapid transit 
system. (Id. at 6.) DesertXpress states that connecting its service to 
Metrolink's rail system in this manner will create a seamless all-rail 
option for travel between Las Vegas and points throughout the greater 
Los Angeles, Cal., Orange County, Cal., and San Bernardino, Cal. 
metropolitan areas. (Id. at 14.) The RC Line will be built and operated 
on a dedicated, fully grade-separated right-of-way with no at-grade 
crossings. (Id. at 4.) It will consist of a single main-line track with 
passing sidings and will be dedicated exclusively to high-speed 
passenger service. (Id. at 4, 18.)
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    \3\ The LV Line has not yet been constructed. On March 27, 2019, 
DesertXpress filed a petition to reopen the Board's October 25, 2011 
decision, in which DesertXpress requested that the Board approve 
changes to the alignment of the LV Line, including moving the 
proposed terminus approximately four miles from the City of 
Victorville to the Town of Apple Valley, both situated in the Victor 
Valley. The Board will address the proposed alignment changes to the 
LV Line in a separate decision.
    \4\ An additional DesertXpress station in the City of Hesperia, 
Cal. (south of Victorville) is also planned. (DesertXpress Pet. 5.)
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    DesertXpress currently plans to operate 50 trains per day (25 in 
each direction) between Las Vegas and Rancho Cucamonga. (Id. at 7.) 
Trains will depart from both Las Vegas and Rancho Cucamonga at 45-
minute intervals and will operate at speeds up to 180 miles per hour. 
(Id.) The first trains will depart Rancho Cucamonga and Las Vegas at 
5:30 a.m. with the final trains arriving in Rancho Cucamonga and Las 
Vegas at approximately 11:30 p.m. and 1:00 a.m., respectively. (Id.)
    The RC Line is forecasted to attract approximately 1.5 million 
additional passengers to DesertXpress' train service, compared to the 
LV Line standing alone, by the third year of revenue operations. (Id. 
at 6.) Travelers on the RC Line will include both passengers traveling 
between Las Vegas and Southern California and passengers traveling 
between the Victor Valley and Rancho Cucamonga stations. (Id.) 
According to DesertXpress, the service between Victor Valley and Rancho 
Cucamonga is expected to attract more than half a million riders 
annually by the second year of service and the RC Line is expected to 
double the number of westbound passengers who choose DesertXpress train 
service for their travel from Las Vegas to Southern California. (Id.)
    DesertXpress plans to commence construction of the RC Line as soon 
as practicable following approval of its petition. (Id. at 11.) 
According to DesertXpress, the estimated cost of constructing the RC 
Line is approximately $2 billion and Brightline plans to finance the 
construction with a blend of tax-exempt bonds, taxable debt, and 
equity. (Id.)
    Several parties filed comments in response to DesertXpress' 
petition. The only comment on the transportation merits was filed on 
May 13, 2021 by the Allied Rail Unions \5\ stating that they support 
DesertXpress' petition. On May 5, 2021, the San Manuel Band of Mission 
Indians (San Manuel Band) filed comments on environmental issues and a 
request for an extension of time to file further comments. The Board 
granted that request in a decision served on May 19, 2021. In addition, 
the San Manuel Band, Morongo Band of Mission Indians (Morongo Band), 
and the National Parks Conservation Association (NPCA) filed comments 
regarding environmental issues on June 3, 2021, June 4, 2021, and June 
8, 2021, respectively. On June 22, 2021, DesertXpress filed a reply to 
the comments of San Manuel Band, Morongo Band, and NPCA.
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    \5\ The Allied Rail Unions is a group of unions composed of the 
Brotherhood of Maintenance of Way Employes Division/IBT; Brotherhood 
of Railroad Signalmen; International Association of Sheet Metal, 
Air, Rail and Transportation Workers-Mechanical Division; and 
National Conference of Firemen and Oilers, 32BJ/SEIU.
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Discussion and Conclusions

    Rail Transportation Analysis. The construction of new rail lines 
requires prior Board authorization through issuance of a certificate 
under 49 U.S.C. 10901 or, as requested here, through an exemption under 
49 U.S.C. 10502 from the prior approval requirements of section 10901. 
Section 10901(c) directs the Board to authorize rail line construction 
proposals unless it finds the proposal ``inconsistent with the public 
convenience and necessity.'' See Alaska R.R.--Constr. & Operation 
Exemption--a Rail Line Extension to Port MacKenzie, Alaska, FD 35095, 
slip op. at 5 (STB served Nov. 21, 2011), aff'd sub nom. Alaska 
Survival v. STB, 705 F.3d 1073 (9th Cir. 2013). Thus, Congress has 
established a presumption that rail construction projects are in the 
public interest unless shown otherwise. See N. Plains Res. Council v. 
STB, 668 F.3d 1067, 1091-92 (9th Cir. 2011); Mid States Coal. for 
Progress v. STB, 345 F.3d 520, 557 (8th Cir. 2003).
    Under section 10502(a), the Board ``shall exempt'' a proposed rail 
line construction from the detailed application procedures of section 
10901 when it finds that: (1) those procedures are not necessary to 
carry out the rail transportation policy of 49 U.S.C. 10101 (RTP); and 
(2) either (a) the proposal is of limited scope, or (b) the full 
application procedures are not necessary to protect shippers from an 
abuse of market power.
    Based on the record in this proceeding, the Board concludes that 
the proposed construction qualifies for an exemption from the section 
10901 prior approval requirements. Simply put, this is a project with a 
lot of upside and little, if any, downside, one that has the potential 
for broad public benefits, and one for which no issues about the 
project's current or future financial viability, including any negative 
effects of financial nonviability, have been raised.\6\ Extending 
DesertXpress' previously approved service between Las Vegas and Victor 
Valley further south to Rancho Cucamonga and

[[Page 81521]]

providing a connection to Metrolink's rail service there supports the 
RTP. It will provide additional transportation options for travelers 
throughout the greater Los Angeles, Orange County and San Bernardino 
metropolitan areas, thereby reducing congestion on the I-15 freeway, 
while also reducing air pollution and overall fuel consumption. Thus, 
the RC Line will help ``to ensure the development and continuation of a 
sound rail transportation system with effective competition among rail 
carriers and with other modes,'' 49 U.S.C. 10101(4), and will 
``encourage and promote energy conservation.'' 49 U.S.C. 10101(14). In 
addition, constructing the RC line to extend DesertXpress' service will 
help ``foster sound economic conditions in transportation,'' 49 U.S.C. 
10101(5), by increasing demand for DesertXpress' service. As noted 
above, it is projected that the RC Line will attract an additional 1.5 
million passengers to DesertXpress' train service annually. An 
exemption will also minimize the time and administrative expense 
associated with obtaining Board approval and expedite the introduction 
of a new rail service for millions of travelers and will therefore both 
``reduce regulatory barriers to entry into and exit from the 
industry,'' 49 U.S.C. 10101(7), and ``provide for the expeditious 
handling and resolution of . . . proceedings required or permitted to 
be brought [before the Board].'' 49 U.S.C. 10101(15). Other aspects of 
the RTP would not be adversely affected.
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    \6\ See Mid States Coal. for Progress v. Surface Transp. Bd., 
345 F.3d 520, 552 (8th Cir. 2003).
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    In addition, consideration of the RC Line under section 10901 here 
is not necessary to protect shippers from an abuse of market power. The 
RC Line will not be used to provide freight rail transportation to 
shippers, nor will it cause any shipper to lose access to any rail 
options.\7\
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    \7\ Because regulation of the proposed construction and 
operation is not needed to protect shippers from the abuse of market 
power, the Board need not determine whether the transaction is 
limited in scope. 49 U.S.C. 10502(a)(2).
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    Environmental Analysis. The National Environmental Policy Act 
(NEPA) requires federal agencies to examine the environmental effects 
of proposed federal actions and to inform the public concerning those 
effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 
97 (1983). Under NEPA and related environmental laws, the Board must 
consider significant potential beneficial and adverse environmental 
impacts in deciding whether to authorize a railroad construction 
project as proposed, deny the proposal, or grant it with conditions 
(including environmental mitigation conditions). Lone Star R.R. Track 
Constr. & Operation Exemption--in Howard Cnty., Tex., FD 35874, slip op 
at 4 (STB served Mar. 3, 2016). While NEPA prescribes the process that 
must be followed, it does not mandate a particular result. Robertson v. 
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Once the 
adverse environmental effects have been adequately identified and 
evaluated, an agency may conclude that ``other values outweigh the 
environmental costs.'' Id.
    In every exemption case, the Board considers both the 
transportation merits and the environmental impacts in deciding whether 
to authorize the proposed action. With respect to environmental issues, 
the Board, through OEA, participated in the environmental and historic 
review of the RC Line as a cooperating agency under the lead of FRA. 
FRA prepared an Environmental Assessment (EA) in accordance with NEPA, 
the National Historic Preservation Act (NHPA), and related 
environmental laws to evaluate the potential environmental and historic 
impacts of the RC Line. The EA analyzed both a Build Alternative and 
No-Build Alternative (i.e., No-Action Alternative), and FRA identified 
the Build Alternative as the preferred alternative. (EA xv, 10-14.) The 
EA also identified mitigation measures to reduce potential 
environmental impacts. (EA 57-58, 61-63, 67, 90-102, 137-38, 173-76, 
192, 198-200.) The EA was made available for public review and comment 
between October 28, 2022, and November 28, 2022.
    On July 12, 2023, FRA issued a Finding of No Significant Impact 
(FONSI), which incorporated the EA by reference. The FONSI concluded 
that the Build Alternative would not significantly impact the quality 
of the human environment and should be authorized subject to 
appropriate environmental mitigation (FONSI 15 & Attach. A). The FONSI 
also addressed the public comments on the EA. The comments received on 
the EA were minor and the responses to the comments were limited to 
factual corrections or explanations of why the comments did not warrant 
further response. (FONSI 2.)
    Concurrently with preparation of the EA, FRA initiated consultation 
under Section 106 of NHPA, which included efforts to identify, 
evaluate, and assess effects to historic properties that could be 
impacted by the RC Line.\8\ (EA 138-58.) FRA concluded that 
construction and operation of the RC Line would have no adverse effects 
on resources listed in or eligible for listing in the National Register 
of Historic Places. (Id.) The California State Historic Preservation 
Officer (SHPO) did not object to FRA's finding of no adverse effect for 
the RC Line. FRA issued a final Finding of Effect report and made a 
finding of no adverse effect for the RC Line on June 30, 2023. (Id. at 
13-14.) Accordingly, no historic mitigation was imposed. (Id. at 8, 10 
& Attach. A.)
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    \8\ The Board participated as a consulting party in FRA's 
Section 106 consultation process, along with the Advisory Council on 
Historic Preservation, DesertXpress, Caltrans, City of Fontana, City 
of Ontario, City of Rancho Cucamonga, City of Rialto, City of 
Victorville, Federal Highway Administration, U.S. Army Corps of 
Engineers, and the United States Forest Service. (FONSI 13). As part 
of that process, FRA consulted with the Chairpersons of and/or 
Tribal Historic Preservation Officers for the Chemheuvi Indian 
Tribes, the Colorado River Indian Tribes, the Morongo Band of 
Mission Indians, the San Fernando Band of Mission Indians, the 
Soboba Band of Luiseno Indians, and the Twenty-Nine Palms Band of 
Mission Indians, and identified tribal contacts for the Yuhaaviatam 
of San Manuel Nation (formerly the San Manuel Band). (Id.)
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    OEA prepared a memorandum making final environmental 
recommendations for this proceeding (Environmental Memo), which is 
attached to this decision. The Environmental Memo summarizes the 
environmental and historic review process, the potential environmental 
impacts of the construction and operation of the RC Line, and FRA's 
mitigation measures to minimize those impacts. (Environmental Memo 3-
8.) The Environmental Memo recommends that the Board adopt FRA's EA and 
the conclusions in the FONSI, and that it impose the environmental 
mitigation measures set forth in Attachment A to the FONSI as 
conditions to any decision authorizing construction and operation of 
the RC Line. (Environmental Memo 8-9.)
    The Board's Analysis of the Environmental Issues. The Board adopts 
FRA's analysis and conclusions in both the EA and FONSI. The Board is 
satisfied that OEA, together with FRA and the cooperating agencies, has 
taken the requisite ``hard look'' at the potential environmental 
impacts associated with DesertXpress' proposal and properly determined 
that, with the recommended environmental mitigation in the FONSI, the 
RC Line will not have potentially significant environmental impacts and 
that preparation of an Environmental Impact Statement is unnecessary.
    As noted above, San Manuel Band, Morongo Band, and NPCA filed 
comments regarding environmental issues. However, those comments raise 
concerns regarding FRA's

[[Page 81522]]

environmental and historic review process with respect to the proposed 
modified alignment of the LV Line. (San Manuel Band Comments 1-2, May 
5, 2021; Morongo Band Comments 1-2; NPCA Comments 1.) The LV Line is 
not at issue in this proceeding and parties were given the opportunity 
in DesertXpress Enterprises, LLC, Docket No. FD 35544, to provide 
comments in the LV Line proceeding. See DesertXpress Enters., LLC, FD 
35544, slip op. 1-2 (STB served Dec. 3, 2020) (providing 20-day period 
for filing of public comments). Accordingly, comments regarding the 
modified alignment of the LV Line will not be considered in this 
proceeding.
    In addition, San Manuel Band and NPCA urge the Board not to permit 
an exemption from review under the California Environmental Quality Act 
(CEQA). (San Manuel Band Comments 2-3, June 3, 2021; NPCA Comments 2.) 
However, the only issue for the Board in this case is whether to grant 
DesertXpress' petition seeking an exemption from 49 U.S.C. 10901. 
Moreover, state permitting or preclearance requirements like CEQA are 
categorically preempted under 49 U.S.C. 10501(b) as to any lines and 
facilities that are an integral part of the national rail 
transportation system. EPA--Pet. for Declaratory Ord., FD 35803, slip 
op. at 7 (STB served Dec. 30, 2014); see also City of Auburn v. United 
States, 154 F.3d 1025, 1031 (9th Cir. 1998). Indeed, the Board 
previously found that section 10501 preempted the application of CEQA 
to the LV Line.\9\ DesertXpress Enters., LLC--Pet. for Declaratory 
Ord., FD 34914, slip op. at 5 (STB served June 27, 2007). Because 
CEQA's permitting requirements could be used to deny or significantly 
delay construction of the RC Line, CEQA review is preempted in this 
proceeding as well.\10\
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    \9\ Although the California High-Speed Rail Authority conducted 
an environmental review under CEQA as well as NEPA for the 
California High-Speed Train System--a project within the Board's 
jurisdiction--it ``elected'' to apply CEQA on its own volition and, 
in its environmental documentation, reserved the right to assert 
federal preemption in response to any potential legal challenge to 
its CEQA compliance. Cal. High-Speed Rail Auth.--Pet. for 
Declaratory Ord., FD 35861, slip op. at 1-2, 11 (STB served Dec. 12, 
2014); see also Cal. High-Speed Rail Auth.--Constr. Exemption--in 
Merced, Madera, & Fresno Cntys., Cal., FD 35724 et al., slip op. at 
3 n.6 (STB served Dec. 20, 2022) (finding that the ``Board is only 
required to comply with NEPA'' and related federal environmental 
laws despite FRA and California High-Speed Rail Authority conducting 
joint NEPA and CEQA review).
    \10\ While the RC Line will be an intrastate line located 
completely within California, it will connect to the LV Line, which 
will extend into Nevada. Therefore, the RC Line will be part of the 
interstate rail network and will be subject to the Board's 
jurisdiction. See e.g., 49 U.S.C. 10501(a)(2)(A) (stating that the 
Board has jurisdiction over rail transportation between a place in 
``a State and a place in the same or another State as part of the 
interstate rail network''); Cal. High-Speed Rail Auth.--Pet. for 
Declaratory Ord., FD 35724, slip op. at 13-14 (STB served June 13, 
2013) (finding that a rail line to be located completely within 
California was subject to Board jurisdiction because it would have 
extensive interconnectivity with Amtrak, an interstate passenger 
rail carrier).
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    The project's transportation merits--expanding the broader 
DesertXpress passenger service to provide more seamless transportation 
to and from Southern California and Las Vegas, as well as providing a 
passenger rail option between Rancho Cucamonga and Victor Valley--are 
manifest. And the environmental and historic impacts have been 
thoroughly analyzed as required under NEPA and NHPA, with environmental 
mitigation imposed as appropriate. Accordingly, the Board grants 
DesertXpress' petition for exemption.
    This action, as conditioned, will not significantly impact the 
quality of the human environment or the conservation of energy 
resources.
    It is ordered:
    1. Under 49 U.S.C. 10502, the Board exempts DesertXpress' 
construction and operation of the RC Line from the prior approval 
requirements of 49 U.S.C. 10901, subject to the requirement that 
DesertXpress build the FRA-preferred Build Alternative.
    2. The Board adopts the environmental mitigation measures set forth 
in Attachment A to the FONSI and imposes them as conditions to the 
exemption granted here.
    3. Notice will be published in the Federal Register.
    4. Petitions for reconsideration must be filed by December 6, 2023.
    5. This decision is effective, December 16, 2023.

    Decided: November 15, 2023.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.

Appendix

Surface Transportation Board

Washington, DC 20423
[GRAPHIC] [TIFF OMITTED] TN22NO23.254

Office of Environmental Analysis

MEMORANDUM

TO: Martin Oberman, Chairman; Karen Hedlund, Vice Chairman; Patrick 
Fuchs, Member; Michelle Schultz, Member; Robert Primus, Member

Cc: Mai Dinh, Director, Office of Proceedings

FROM: Danielle Gosselin, Director, Office of Environmental Analysis

DATE: October 20, 2023

SUBJECT: Docket No. FD 36488, DesertXpress Enterprises, LLC--
Construction and Operation Exemption--Passenger Rail Line Between 
Victor Valley and Rancho Cucamonga, Cal.: Environmental Memorandum

    This memorandum summarizes the environmental and historic review 
conducted for the proposed 49-mile high-speed rail line between the 
Victor Valley and Rancho Cucamonga, California (RC Line or Project). 
The proposed RC Line would be part of the electrified high-speed 
passenger railroad system that DesertXpress Enterprises, LLC, d/b/a 
Brightline West (Brightline West) intends to construct and operate 
between Southern California and Las Vegas, Nevada. The memorandum 
also presents the Office of Environmental Analysis' (OEA) final 
recommendations to the Board regarding adoption of the Environmental 
Assessment (EA) for the Project, including the selection of the 
build alternative as the preferred alternative, and the 
environmental mitigation that should be imposed if the Board 
authorizes the RC Line.

Introduction

    The Board, through OEA, participated in the environmental review 
of the RC Line as a cooperating agency under the lead of the Federal 
Railroad Administration (FRA). FRA prepared an EA in accordance with 
the National Environmental Policy Act (NEPA), the National Historic 
Preservation Act (NHPA), and related environmental laws to evaluate 
the potential environmental and historic impacts of the RC Line. The 
EA analyzed both a Build Alternative and No-Build Alternative (i.e., 
No-Action Alternative), and FRA identified the Build Alternative as 
the Preferred Alternative. (EA xv, 10-14.) The EA also identified 
mitigation measures to reduce potential environmental impacts. (EA 
57-58, 61-63, 67, 90-102, 137-38, 173-76, 192, 198-200.) The EA was 
made available for public review and comment between October 28, 
2022, and November 28, 2022.
    On July 12, 2023, FRA issued a Finding of No Significant Impact 
(FONSI), which incorporated the EA by reference,\1\ and which 
concluded that the Build-Alternative would not significantly impact 
the quality of the human environment and should be authorized 
subject to appropriate

[[Page 81523]]

environmental mitigation. (FONSI 15, 17 & Attachment A.) The FONSI 
summarized the Project's potential construction and operations 
impacts, as well as FRA's proposed mitigation measures, and 
addressed the public comments on the EA. (FONSI 7-13 & Attachment 
C.)
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    \1\ The FONSI attached an errata sheet making certain 
corrections to the EA. (FONSI, Attachment B.) FRA used an errata 
sheet in lieu of a Final EA because the comments received on the EA 
were minor and the responses to the comments were limited to factual 
corrections or explanations of why the comments did not warrant 
further response. (FONSI 2.)
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    OEA has independently reviewed the EA and FONSI and agrees with 
FRA's analysis and conclusions. Further, OEA has determined that the 
EA adequately assesses the potential environmental and historic 
impacts of the RC Line and complies with the Board's 
responsibilities under NEPA, NHPA, and related environmental laws. 
OEA also concurs with FRA's selection of the Build-Alternative as 
the Preferred Alternative. Therefore, in any decision authorizing 
construction and operation of the RC Line, OEA recommends that the 
Board: (1) adopt the EA and FRA's conclusions in the FONSI; (2) 
approve construction and operation of FRA's Build-Alternative for 
the RC Line; and (3) impose the environmental mitigation in 
Attachment A to the FONSI.

Background

    On April 13, 2021, Brightline West filed a petition for 
exemption with the Board under 49 U.S.C. 10502 to construct and 
operate the RC Line. Brightline West proposes to construct the RC 
Line within the Interstate-15 (I-15) right-of way for 48 miles and 
on existing transportation corridors for the last mile into the 
proposed Rancho Cucamonga station. (FONSI 1.) The RC Line would 
include two new rail stations--one in Hesperia and one in Rancho 
Cucamonga, both in California.\2\ (Id.)
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    \2\ A station at Victorville connecting the RC Line to the 
separate high-speed passenger rail project between the Victor Valley 
and Las Vegas, Nevada, was approved by the Board in 2011. 
DesertXpress Enters., LLC, et al.--Constr. & Operation Exemption--in 
Victorville, Cal. & Las Vegas, Nev., FD 35544, slip op. at 2, 5 (STB 
served Oct. 25, 2011). On March 27, 2019, Brightline West petitioned 
the Board to reopen the 2011 decision to permit construction of the 
Victor Valley-Las Vegas line along a different route than what had 
been previously approved. The project modifications also include 
moving the Victorville station to within the Town of Apple Valley. 
The Victor Valley-Las Vegas line has involved a separate 
environmental review and is currently pending before the Board.
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    The purpose of the RC Line is to provide an alternative 
transportation option (in addition to cars) between the Los Angeles 
metropolitan region and the High Desert of San Bernardino County. 
(FONSI 3.) Trains are expected to operate daily every 60 minutes 
between the Victor Valley and Rancho Cucamonga. (Id. at 1.) The trip 
between the Victor Valley and Rancho Cucamonga will be approximately 
35 minutes. Service will be coordinated with existing and planned 
Metrolink service at the Rancho Cucamonga station to provide a 
convenient connection between the RC Line and commuter rail systems. 
(Id.) Trains traversing over the RC Line would be capable of 
reaching a top speed of approximately 140 miles per hour. (Id.)

Summary of Environmental Impacts and Mitigation Measures

    The charts below from FRA's FONSI provide an overview of the 
potential construction and operations impacts of the RC Line, and 
the associated mitigation measures to minimize these impacts.

------------------------------------------------------------------------
                            Long-term operational
       Analysis area            impacts of the           Mitigation
                             selected alternative
------------------------------------------------------------------------
Transportation............  The Rancho Cucamonga   During Project
                             station will result    design, Brightline
                             in traffic impacts     West will coordinate
                             to three               with SBCTA,
                             intersections that     Caltrans, Rancho
                             are projected to       Cucamonga, and
                             operate at             Hesperia to
                             unacceptable level     incorporate
                             of service during      intersection
                             the 2025 Opening       improvements to
                             Year conditions        lessen or avoid
                             during peak periods    adverse impacts to
                             and will also          traffic to the
                             degrade the level of   extent feasible,
                             service at the         including optimizing
                             Milliken Avenue/7th    signal timing to
                             Street Intersection    reflect changes in
                             compared to the 2045   traffic flows in
                             No Build scenario.     station areas during
                                                    operation of the
                                                    Project.
                            Operation of the       Brightline West will
                             Project would          coordinate with
                             increase demand for    local transit
                             local transit at the   agencies to identify
                             Hesperia station,      opportunities to
                             such that the hourly   best serve the needs
                             volume of passengers   of transit users at
                             desiring to depart     the Hesperia and
                             the station via bus    Rancho Cucamonga
                             will likely exceed     stations without
                             the available bus      significantly
                             capacity during any    affecting other
                             single hour. At the    transit services.
                             Rancho Cucamonga      Brightline West will
                             station, the Project   develop and
                             will impact            implement a parking
                             passengers utilizing   demand management
                             regional rail on       plan prior to
                             Sunday, when there     operation of the
                             is a 5-hour period     Project to manage
                             in the late            increasing parking
                             afternoon/early        demand at the
                             evening with only      Hesperia and Rancho
                             one train in each      Cucamonga stations.
                             direction.
                            Based on ridership
                             estimates, parking
                             at the Hesperia and
                             Rancho Cucamonga
                             stations will exceed
                             the amount of
                             existing and planned
                             spaces at the
                             station in the 2045
                             Horizon Year.
Land Use and Community      None.................  None.
 Facilities.
Socioeconomic Environment.  None.................  None.
Cultural Resources........  None.................  None.
Aesthetics................  The Project would      During the design
                             have a permanent       phase, Brightline
                             impact on views of     West will design
                             the San Gabriel and    rail features,
                             San Bernardino         including bridge
                             Mountains, as well     pillars/columns,
                             as the Southern        raised tracks,
                             California Edison      trains, catenary
                             Boulder Dam-San        structures, crash
                             Bernardino             barriers, retaining
                             transmission lines     walls, abutments,
                             from northbound I-     fencing, and
                             15, looking north      embankments to blend
                             toward the split of    with or represent
                             northbound and         the surrounding
                             southbound I-15 as     desert or urban
                             it climbs toward the   environment.
                             summit of Cajon Pass.  Features will be
                                                    created or stained
                                                    in muted desert
                                                    colors. Bright
                                                    colors and highly
                                                    reflective materials
                                                    will be avoided, as
                                                    feasible. Project
                                                    elements defined in
                                                    the design process
                                                    will include visual
                                                    elements that
                                                    contribute to a
                                                    sense of place and a
                                                    memorable experience
                                                    for motorists,
                                                    pedestrians, and
                                                    rail passengers.
                                                    Concrete will be
                                                    embossed with
                                                    patterns, where
                                                    appropriate, that
                                                    are indicative of
                                                    the surrounding
                                                    environment and that
                                                    create a visual link
                                                    between the railway
                                                    features and their
                                                    surroundings and
                                                    will be similar in
                                                    character to recent
                                                    nearby freeway
                                                    projects.
Water Quality.............  The Project will       To protect water
                             result in permanent    quality, Brightline
                             increased impervious   West will install
                             surface along the      permanent water
                             rail alignment and     quality treatment
                             the proposed           devices in
                             Hesperia station,      accordance with the
                             which will increase    National Pollutant
                             the amount of          Discharge
                             stormwater runoff      Elimination System
                             and nonpoint-source    (NPDES) permit
                             pollution in some      obtained for the
                             areas, affecting 48    Project (Mitigation
                             ephemeral or           Measure WQ-7).
                             intermittent          Brightline West will
                             drainage features.     redesign and resize
                                                    the existing
                                                    drainage features to
                                                    accommodate the
                                                    potential increase
                                                    in runoff along the
                                                    rail alignment.
                                                    Additionally,
                                                    stormwater treatment
                                                    will be designed in
                                                    accordance with the
                                                    Caltrans Project
                                                    Planning and Design
                                                    Guide (PPDG). The
                                                    100-year, 24-hour
                                                    storm event will be
                                                    used to determine
                                                    the appropriate size
                                                    of drainage
                                                    facilities need for
                                                    the Project
                                                    (Mitigation Measure
                                                    WQ-8).

[[Page 81524]]

 
Wetlands and Stream Areas.  During Project         Prior to
                             operation, railway     construction,
                             crossings over         Brightline West will
                             Debris Cone Creek,     coordinate with
                             Cajon Wash/Creek,      USACE to obtain a
                             and Lytle Creek will   jurisdictional
                             require new            determination for
                             structures in the      aquatic resources.
                             channels. All          If applicable,
                             crossings will         Brightline West will
                             result in less than    obtain any required
                             0.1 acre of            permits and
                             permanent fill. The    implement all
                             Project will have no   required permit
                             permanent impacts on   conditions.
                             the Mojave River
                             itself, but a small
                             portion (less than
                             0.01 acre) of
                             wetlands associated
                             with the Mojave
                             River will be
                             permanently impacted.
Floodplains...............  None.................  None.
Biological Resources......  Approximately 64       Brightline West will
                             acres of native        implement mitigation
                             vegetation habitat     and compensation
                             types will be          strategies
                             permanently            identified during
                             converted to           consultation with
                             transportation uses    USFWS and documented
                             by the Project.        in USFWS' Biological
                             Permanent impacts      Opinion. Brightline
                             occur in a wide        West will also
                             variety of habitat     obtain an Incidental
                             types; most            Take Permit for
                             permanent impacts      Endangered Species
                             would occur in         Act (ESA)-listed
                             Desert Scrub           species. Refer to
                             habitats (37 acres).   Attachment A, for a
                                                    list and description
                                                    of Mitigation
                                                    Measures BIO-1
                                                    through BIO-57.
Geology, Soils, and         Seismic activity       Brightline West will
 Seismicity.                 during operation       hire qualified
                             could result in        geologists and
                             impacts related to     geotechnical
                             surface fault          engineers to conduct
                             rupture, ground        geotechnical
                             shaking, and           investigations along
                             liquefaction because   the Project
                             the Project            alignment for
                             alignment crosses or   potential hazards
                             comes within 1,000     related to geology,
                             feet of four major     soils, seismicity.
                             faults: the Sierra     Brightline West will
                             Madre, the San         incorporate
                             Jacinto, the San       recommendations of
                             Andreas, and the       the evaluation that
                             Cleghorn faults.       avoid or minimize
                                                    hazardous impacts
                                                    and will be
                                                    implemented prior to
                                                    design and
                                                    construction. Refer
                                                    to Attachment A for
                                                    a list and
                                                    description of
                                                    Mitigation Measures
                                                    GEO-2 through GEO-8.
Air Quality and Greenhouse  None. The Project      None.
 Gas.                        will not result in
                             exceedances of the
                             de minimis
                             thresholds for
                             criteria pollutants
                             in the applicable
                             air basins. As
                             ridership increases
                             during the operation
                             period, the Project
                             will reduce
                             emissions of both
                             criteria pollutants
                             and GHGs by
                             providing an
                             alternative to
                             passenger car travel
                             and reducing vehicle
                             miles traveled
                             within the South
                             Coast Air Basin and
                             Mojave Desert Air
                             Basin, resulting in
                             a beneficial impact
                             to air quality and
                             reductions in
                             greenhouse gas
                             emissions.
Energy Resources..........  None.................  None.
Noise and Vibration.......  None.................  None.
Safety and Security.......  None.................  None.
Environmental Justice.....  The Project will not   None.
                             result in
                             disproportionately
                             high and adverse
                             human health or
                             environmental
                             effects on minority
                             populations and low-
                             income populations.
------------------------------------------------------------------------


------------------------------------------------------------------------
                                  Temporary
                             construction-related
       Analysis area            impacts of the           Mitigation
                             selected alternative
------------------------------------------------------------------------
Transportation............  None.................  None.
Land Use and Community      None.................  None.
 Facilities.
Socioeconomic Environment.  None.................  None.
Cultural Resources........  None.................  None.
Aesthetics................  Changes in visual      Brightline West will
                             quality from           implement measures
                             construction will      to minimize
                             result from            nighttime light
                             implementation of      spillover onto
                             standard industry      adjacent properties,
                             practices, including   to reduce glare for
                             the use of temporary   freeway motorists,
                             lighting, fences,      and to prevent
                             barriers,              visible lighting
                             stockpiling of         overflow into the
                             materials, and the     natural dark sky of
                             use of heavy           the desert at night.
                             equipment, and will    Visual screening,
                             result in temporary    such as fences, will
                             visual disturbances    be erected along
                             to natural visual      construction and
                             resources.             staging areas as
                                                    appropriate.
                                                   Landscaping and
                                                    native vegetation
                                                    that is cleared for
                                                    temporary
                                                    construction areas
                                                    (TCA) will be
                                                    replaced by
                                                    Brightline West
                                                    within one year of
                                                    the completion of
                                                    construction at any
                                                    location along the
                                                    alignment.
Water Quality.............  Construction of the    Brightline West will
                             Project will impact    implement Best
                             water quality from     Management Practices
                             activities involving   (BMP) during
                             soil disturbance,      construction and
                             excavation, cutting/   operation of the
                             filling,               Project to minimize
                             stockpiling, and       impacts on aquatic
                             grading. Grading       resources
                             could result in        (Mitigation Measure
                             increased erosion      WQ-1), comply with
                             and sedimentation of   the statewide
                             surface waters.        National Pollutant
                             Stormwater runoff      Discharge
                             from TCAs could        Elimination System
                             contain sediment and   (Mitigation Measure
                             other contaminants,    WQ-2), implement a
                             and could carry        stormwater pollution
                             contaminants to        prevention program
                             drainages,             (SWPPP) (Mitigation
                             groundwater, and       Measure WQ-3),
                             impaired water         implement a spill
                             bodies.                prevention, control
                                                    and countermeasures
                                                    plan (SPCC)
                                                    (Mitigation Measure
                                                    WQ-4), locate TCAs
                                                    to avoid key water
                                                    features (Mitigation
                                                    Measure WQ-5), and
                                                    obtain water from
                                                    existing,
                                                    commercially
                                                    available water
                                                    sources (Mitigation
                                                    Measure WQ-6).
Wetlands and Streams......  Construction of        Brightline West will
                             bridges over the       contract with a
                             Bell Mountain Wash,    qualified biologist,
                             Mojave River, Brush    who will be on site
                             Creek, Cleghorn        prior to and during
                             Creek, Cajon Wash/     construction of the
                             Creek and Lytle        Project to identify
                             Creek, will involve    and protect aquatic
                             work in the Ordinary   resources. The
                             High Water Mark        biologist will
                             (OHWM). The Project    define the
                             may require            boundaries of the
                             temporary soil         aquatic resources
                             disturbance and        and will supervise
                             vegetation clearing    the placement of
                             within the Mojave      exclusion fencing to
                             River riparian area    protect those areas
                             and in and around      during all project
                             other drainages        activities.
                             along the corridor.    Additionally, a silt
                                                    fence around the
                                                    construction areas
                                                    adjacent to aquatic
                                                    resources will
                                                    protect the
                                                    resources, including
                                                    waters of the United
                                                    States (WOTUS), from
                                                    runoff and spills
                                                    associated with
                                                    construction
                                                    activities, if any.
                                                   Aquatic resources
                                                    that are affected by
                                                    construction
                                                    activities (e.g.,
                                                    clearing, ground
                                                    disturbance) will be
                                                    restored by
                                                    Brightline West with
                                                    native vegetation
                                                    within one year of
                                                    the completion of
                                                    construction at any
                                                    location along the
                                                    alignment.

[[Page 81525]]

 
Floodplains...............  Project construction   Brightline West will
                             will involve the use   implement BMPs prior
                             of heavy, earth-       to construction to
                             moving equipment in    minimize the
                             the floodplains of     temporary effects on
                             the Mojave River and   floodplains, and
                             Lytle Creek, and       construction
                             near the floodplains   equipment and
                             of Etiwanda Channel    materials will not
                             and Hawker-Crawford    be stored within the
                             Channel Construction   floodplain.
                             activities within      Brightline West will
                             floodplains will       return any temporary
                             likely result in       effects on
                             temporary impacts      floodplains to
                             such and minor         preconstruction
                             erosion and runoff     conditions.
                             on floodplains.
Biological Resources......  Construction of the    Brightline West will
                             project would have     implement mitigation
                             temporary impacts on   and compensation
                             approximately 2,206    strategies
                             acres of various       identified during
                             types of wildlife      consultation with
                             habitat. The most      USFWS and documented
                             common habitat types   in USFWS' Biological
                             would be Urban         Opinion. Brightline
                             (1,787 acres),         West will also
                             Desert Scrub (168      obtain an Incidental
                             acres), and Mixed      Take Permit for ESA-
                             Chaparral (128         listed species.
                             acres). Construction   Refer to Attachment
                             impacts would          A, for a list and
                             include disturbance    description of
                             of vegetation and      Mitigation Measures
                             soils, construction    BIO-1 through BIO-
                             noise, hydrologic      57.
                             modifications,
                             facilitation of
                             invasive species,
                             and changes in
                             habitat elements
                             that increase or
                             decrease populations
                             of predators or prey
                             species.
Geology, Soils, and         Construction of the    Brightline West will
 Seismicity.                 Project may result     retain qualified
                             in impacts related     geologists and
                             to ground fissures     geotechnical
                             due to pile driving.   engineers to conduct
                                                    geotechnical
                                                    investigations along
                                                    the Project
                                                    alignment for
                                                    potential hazards
                                                    related to geology,
                                                    soils, seismicity.
                                                    Recommendations of
                                                    the evaluation that
                                                    avoid or minimize
                                                    hazardous impacts
                                                    will be implemented
                                                    prior to design and
                                                    construction
                                                    (Mitigation Measure
                                                    GEO-1).
Air Quality and Greenhouse  Construction of the    Prior to construction
 Gas.                        Project will           activities,
                             temporarily generate   Brightline West will
                             emissions of both      develop and
                             criteria pollutants    implement a fugitive
                             and GHGs. However,     dust control plan
                             the Project will not   and utilize
                             result in              additional means to
                             exceedances of the     reduce construction
                             de minimis             period emissions of
                             thresholds for         air pollutants, such
                             criteria pollutants    as solar powered
                             in the applicable      signal boards.
                             air basins. The
                             Project will result
                             in short-term
                             increases in GHG
                             emissions from
                             construction
                             activities.
Energy Resources..........  None.................  None.
Noise and Vibration.......  Construction of the    Brightline West will
                             Project will result    require the
                             in short-term noise    contractors to
                             impacts to resources   prepare a detailed
                             due to elevated        Noise Control Plan
                             noise levels           (Mitigation Measure
                             associated with        NOI-1) in
                             construction           coordination with a
                             activities,            qualified noise
                             including              monitor prior to
                             construction           construction.
                             equipment, diesel      Brightline West will
                             engines, impact pile   comply with all
                             driving and            applicable local
                             jackhammering.         noise regulations to
                                                    minimize temporary
                                                    construction noise
                                                    and vibration
                                                    impacts (Mitigation
                                                    Measure NOI-2).
Hazardous Materials.......  Construction of the    Brightline West will
                             Project may result     prepare a Hazardous
                             in the release of      Materials Management
                             hazardous materials    Plan (HMMP) prior to
                             through disturbance    application for
                             of identified          permits for
                             hazardous materials    demolition, grading,
                             sites and using        or construction, as
                             hazardous materials,   required by the
                             either of which may    State of California
                             result in impacts on   (Mitigation Measure
                             human health. There    HAZ-1). The HMMP
                             is also the            shall be reviewed
                             potential to           and approved by
                             encounter previously   either the office of
                             unidentified           the State Fire
                             hazardous materials    Marshall or the San
                             along the Project      Bernardino County
                             footprint.             Certified Unified
                                                    Program Agency
                                                    (CUPA). Activities
                                                    identified in the
                                                    HMMP will be
                                                    implemented by
                                                    Brightline West
                                                    throughout the
                                                    construction period.
Safety....................  Construction of the    Brightline West will
                             Project will involve   implement
                             use of heavy           construction safety
                             equipment on site,     requirements during
                             earthwork, and other   construction, per
                             major construction     regulatory
                             activities,            requirements,
                             including the          including California
                             transportation of      Division of
                             overweight and         Occupational Safety
                             oversized materials.   and Health (Cal
                             Throughout             OSHA) Construction
                             construction,          Safety Orders and
                             workers and nearby     California Public
                             community members      Utilities Commission
                             could be exposed to    (CPUC) General Order
                             hazards, which could   No. 176.
                             affect human health
                             or present to safety
                             from construction
                             site hazards and
                             accidents,
                             associated with
                             construction site
                             equipment and
                             activities.
                            Project construction
                             could temporarily
                             increase fire risks
                             in the high fire
                             hazard severity
                             zones (FHSZ) due to
                             the storage and use
                             of flammable or
                             combustible
                             materials, operation
                             of vehicles and
                             heavy machinery.
                            The Rancho Cucamonga
                             and Hesperia
                             stations will not be
                             located within FSHZ
                             zones.
Environmental Justice.....  The Project will not   None.
                             result in
                             disproportionately
                             high and adverse
                             human health or
                             environmental
                             effects on minority
                             populations and low-
                             income populations.
------------------------------------------------------------------------

Historic Review Under Section 106

    Concurrently with preparation of the EA, FRA initiated 
consultation under Section 106 of the NHPA, which included efforts 
to identify, evaluate, and assess effects to historic properties 
that could be impacted by the RC Line. (EA 138-58.) As part of that 
process, FRA consulted with the Chairpersons of and/or Tribal 
Historic Preservation Officers for the Chemheuvi Indian Tribes, the 
Colorado River Indian Tribes, the Morongo Band of Mission Indians, 
the San Fernando Band of Mission Indians, the Soboba Band of Luiseno 
Indians, and the Twenty-Nine Palms Band of Mission Indians, and 
identified tribal contacts for the Yuhaaviatam of San Manuel Nation. 
(FONSI 13.) The Board participated as a consulting party in FRA's 
Section 106 consultation process, along with the Advisory Council on 
Historic Preservation, Brightline West, Caltrans, City of Fontana, 
City of Ontario, City of Rancho Cucamonga, City of Rialto, City of 
Victorville, Federal Highway Administration, United States Army 
Corps of Engineers, and the United States Forest Service. (Id.)
    FRA concluded that construction and operation of the RC Line 
would have no adverse effects on resources listed in or eligible for 
listing in the National Register of Historic Places. (Id.) On May 
22, 2023, the California State Historic Preservation Officer did not 
object to FRA's finding of no adverse effect for the RC Line. FRA 
issued a final Finding of Effect report and made a finding of no 
adverse effect for the Project on June 30, 2023. (Id. at 13-14.) 
Accordingly, no historic mitigation was imposed. (Id. at 8, 10 & 
Attachment A.)

OEA's Final Environmental Recommendations

    After participating in FRA's environmental review, OEA concludes 
that the EA adequately assesses the potential environmental and 
historic impacts associated with the RC Line and concurs with the 
conclusions reached by FRA in the FONSI. Accordingly, OEA recommends 
that the Board adopt FRA's EA and the conclusions in the FONSI, and 
that it impose the environmental mitigation attached to the FONSI at 
Attachment A as conditions to any decision authorizing construction 
and operation of the RC Line. OEA concludes that FRA's mitigation 
measures are adequate to address the potential environmental and 
historic impacts of the RC Line. Therefore,

[[Page 81526]]

OEA does not recommend any additional environmental or historic 
mitigation.

[FR Doc. 2023-25786 Filed 11-21-23; 8:45 am]
BILLING CODE 4915-01-P