[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Notices]
[Pages 29621-29624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-12365]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No. DOT-OST-2025-0171]
Procedures for Considering Environmental Impacts
AGENCY: Office of the Secretary (OST), DOT.
ACTION: Notice of availability; request for comments.
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SUMMARY: The U.S. Department of Transportation (DOT) is updating DOT
Order 5610.1C ``Procedures for Considering Environmental Impacts,''
which establishes procedures for complying with the National
Environmental Policy Act (NEPA). The Order was last updated in 1985.
This update is necessary in light of the recent recission of the
Council on Environmental Quality's (CEQ's) NEPA procedures, which DOT's
procedures were designed to supplement. In addition, the update
incorporates provisions from the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Moving
Ahead for Progress in the 21st Century Act (MAP-21); the Fixing
America's Surface Transportation (FAST) Act, the Infrastructure
Investment and Jobs Act (IIJA); and the Fiscal Responsibility Act of
2023 (FRA 2023) related to the environmental review process. The
updated Order promotes collaboration and efficiencies in the
implementation of NEPA and modernizes the processes and procedures for
environmental review. This update enables DOT to conduct coordinated,
consistent, predictable, and timely environmental reviews, thus
reducing unnecessary burdens and delays.
DATES: Comments must be submitted by August 4, 2025. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Please submit your comments by only one of the following
means, identifying your submission by docket number DOT-OST-2025-0171.
All electronic submissions must be made to the U.S. Government
electronic site at http://www.regulations.gov.
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Instructions: All comment submissions must include the agency name,
docket name, and docket number (DOT-OST-2025-0171). Submit two copies
of your comments if you submit them by mail. For confirmation that OST
received your comments, include a self-addressed stamped postcard. Note
that all comments received will be posted without change to
www.regulations.gov, including any personal information provided. DOT
solicits comments from the public to better inform the Department's
process. For information on DOT's compliance with the Privacy Act,
please visit https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents and
comments received, go to https://www.regulations.gov/ at any time or to
the U.S. Department of Transportation, 1200 New Jersey Avenue SE,
Docket Operations, M-30, West Building Ground Floor, Room W12-140,
Washington, DC 20590 between 9 a.m. and 5 p.m. Eastern Time, Monday
through Friday, except Federal holidays.
The Order will also be available at www.transportation.gov/transportation-policy/nepa.
FOR FURTHER INFORMATION CONTACT: Rhonda Solomon, Interim Director,
Infrastructure Permitting Improvement Center, 202.366.5397,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Statutory Authority
The National Environmental Policy Act, as amended, 42 U.S.C. 4321-
4347 (NEPA), requires all Federal agencies to assess the environmental
impact of their actions. 42 U.S.C. 4332(2)(C). The CEQ previously
issued regulations at 40 CFR parts 1500-1508 (CEQ regulations)
implementing NEPA that were binding on Federal agencies. On February
25, 2025, CEQ issued an interim final rule to remove the existing
implementing regulations consistent with Executive Order (E.O.) 14154,
Unleashing American Energy. See Removal of National Environmental
Policy Act Implementing Regulations, (90 FR 10610; Feb. 25, 2025). This
action was necessitated by and consistent with Executive Order (E.O.)
14154, Unleashing American Energy (90 FR 8353; January 29, 2025), in
which President Trump rescinded President Carter's E.O. 11991, Relating
to Protection and Enhancement of Environmental Quality (42 FR 26967;
May 24, 1977), which was the basis CEQ had invoked for its authority to
make the CEQ Regulations to begin with. DOT's NEPA implementing
procedures, which were a supplement to those CEQ regulations, thus
stand in obvious need of fundamental revision. President Trump in E.O.
14154 further directed agencies to revise their NEPA implementing
procedures consistent with the E.O., including its direction to CEQ to
rescind its regulations.
In addition, Congress recently amended NEPA in significant part, in
the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed
on June 3, 2023, in which Congress added substantial detail and
direction in Title I of NEPA, including in particular on procedural
issues that CEQ and individual acting agencies had previously addressed
in their own procedures. DOT recognized the need to update its
procedures in light of these legislative changes. Since DOT's
procedures were originally designed as a supplement to CEQ's NEPA
regulations, DOT had been awaiting CEQ action before revising its
procedures, consistent with CEQ direction. See 40 CFR 1507.3(b) (2024);
see also 86 FR 34154 (June 29, 2021). However, with CEQ's regulations
now rescinded, and with DOT's implementing procedures still unmodified
more than two years after the legislation, it is important that DOT
move quickly to conform its procedures to the statute as amended.
Finally, the Supreme Court on May 29, 2025 issued its decision in
Seven County Infrastructure Coalition v. Eagle County, Colorado, 145
No. 23-975, 605 U.S. Ct. 1497 __, 2025 WL 1520964 (2025), in which it
described the ``transform[ation]'' of NEPA from its roots as ``a modest
procedural requirement,'' into a significant ``substantive roadblock''
that ``paralyze[s]'' ``agency decisionmaking.'' Id. at 1513 (quotations
omitted). The Supreme Court explained that part of that problem had
been caused by decisions of lower courts, which it rejected, issuing a
``course correction'' mandating that courts give ``substantial
deference'' to reasonable agency
[[Page 29622]]
conclusions underlying its NEPA process. Id. at 1513-14. But the Court
also acknowledged, and through its course correction sought to address,
the effect on ``litigation-averse agencies'' which, in light of
judicial micromanagement, had been ``tak[ing] ever more time and to
prepare ever longer EISs [environmental impact statements] for future
projects.'' Id. at 1513. DOT, thus, is updating its procedures to align
its actions with the Supreme Court's decision and streamline its
process of ensuring reasonable NEPA decisions. This revision has thus
been called for, authorized, and directed by all three branches of
government at the highest possible levels.
DOT has reviewed its current implementing procedures and has
developed this Order in consultation with CEQ. This Order is effective
immediately upon publication of this notice in the Federal Register;
however, the Department is providing an opportunity for public review
and comment of this Order, which will inform any future revisions.
B. Background
NEPA establishes a national environmental policy of the federal
government to use all practicable means and measures to foster and
promote the general welfare, create and maintain conditions under which
man and nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future generations of
Americans. NEPA Section 101, 42 U.S.C. 4331(a). NEPA Section 102(2)
requires Federal agencies to prepare detailed environmental statements
on major Federal actions significantly affecting the quality of the
human environment. 42 U.S.C. 4332(2)(C).
There have been numerous statutory changes to NEPA since the last
update to DOT's NEPA procedures in 1985. In 2005, Congress enacted 23
U.S.C. 139, ``Efficient environmental reviews for project
decisionmaking,'' a streamlined environmental review process for
highway, transit, and multimodal transportation projects through the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU), Public Law 109-59, sec. 6002 (2005).
In 2012, Congress declared it in the national interest to
accelerate transportation project delivery and reduce costs, and ensure
that transportation planning, design, and construction are completed in
an efficient and effective manner in the Moving Ahead for Progress in
the 21st Century Act (MAP-21), Public Law 112-141, sec. 1301 (2012)
(set out at 23 U.S.C. 101 note).
In 2015, Congress directed the Department to implement a variety of
reforms to streamline and accelerate its environmental review process.
See Fixing America's Surface Transportation Act (FAST) Act, Public Law
114-94 (2015).
On November 15, 2021, the Bipartisan Infrastructure Law was enacted
as the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58).
The IIJA modified the environmental requirements at 23 U.S.C. 139
(``Efficient environmental reviews for project decisionmaking and One
Federal Decision''), which applied to the Federal Highway
Administration (FHWA), Federal Railroad Administration (FRA), and
Federal Transit Administration (FTA). The IIJA also modified 23 U.S.C.
138 (Section 4(f) Requirements) and added a new 23 U.S.C. 157 (National
Environmental Policy Act (NEPA) Reporting Program).
The Fiscal Responsibility Act of 2023 (FRA 2023) was signed into
law on June 3, 2023. FRA 2023 amended the NEPA statute, including
limiting the scope of major Federal action, limiting the scope of an
environmental impact statement (EIS) review, and limiting the
alternatives in an EIS. In addition, the FRA 2023 amendments
established page and time limits for environmental assessments (EAs)
and EISs, outlined specific roles for lead agencies, and directed a
lead agency to prescribe procedures to allow a project sponsor to
prepare an EA or EIS under the supervision of the agency. Further, FRA
2023 provided guidelines for the use of analysis from a prior
programmatic environmental review document in a subsequent document for
a specified time period, and a streamlined process for adopting another
agency's categorical exclusions (CEs).
C. Expected Impact of the Order
This Order revises the internal procedures of the Department,
promoting consistent implementation across the Department of its
responsibilities under NEPA while still allowing flexibility for each
of the Department's Operating Administrations (OAs) to carry out its
own mission. These policies and procedures provide consistency, aid
efficiency, reduce duplication, and refocus agency practice on
fostering informed decisionmaking, rather than generating paperwork.
The Department expects that this Order will reduce unnecessary delays.
The Department also expects the changes to increase the availability
and use of CEs, early collaboration, and dispute resolution and
coordination techniques, and to improve timely completion of the
environmental review process.
The Order outlines the Department's interpretations of existing law
and provides guidelines for agency procedure and practice with respect
to NEPA compliance. The Order does not in fact, nor does it intend to,
govern the rights and obligations of any party outside the federal
government. Further, nothing contained in the Order is intended or
should be construed to limit the Department's other authorities or
legal responsibilities.
D. Reliance Interests
In deciding to revise its Order, the Department acknowledges that
third parties may claim to have reliance interests in the Department's
existing NEPA procedures. But revised agency procedures will have no
effect on sufficiently advanced ongoing NEPA reviews, where the
Department, following CEQ guidance, has held that it will continue to
apply existing procedures. Moreover, as the Supreme Court has just
explained, NEPA ``is a purely procedural statute'' that ``imposes no
substantive environmental obligations or restrictions.'' Seven County,
145 S.Ct. at 1507. Any asserted reliance interests grounded in
substantive environmental concerns, such interests are not in accord
with the best meaning of the law and are entitled to ``no . . .
weight.'' Dep't of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891, 1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the Department holds
that they are ``outweigh[ed]'' by ``other interests and policy
concerns.'' Id. Namely, the complex web of regulations that preexisted
the 2023 amendments to NEPA and these new procedures repeatedly ``led
to more agency analysis of separate projects, more consideration of
attenuated effects, more exploration of alternatives to proposed agency
action, more speculation and consultation and estimation and
litigation,'' which in turn has meant that ``[f]ewer projects make it
to the finish line,'' or even ``to the starting line.'' Seven County,
145 S.Ct. at 1513-14. This has increased the cost of projects
dramatically, ``both for the agency preparing the EIS and for the
builder of the project,'' resulting in systemic harms to America's
infrastructure and economy. Id. Correspondingly, the
[[Page 29623]]
wholesale revision and simplification of this regime, effectuated by
these Procedures, is necessary to assure ensure efficient and
predictable reviews, with significant upsides for the economy and for
projects of all sorts. This set of policy considerations drastically
outweighs any claimed reliance interests in the preexisting procedures.
The Department has revised its NEPA implementing procedures to
conform to the 2023 statutory amendments, to respond to President
Trump's direction in E.O. 14154 to, ``[c]onsistent with applicable law,
prioritize efficiency and certainty over any other objectives,
including those of activist groups, that do not align with the policy
goals set forth in section 2 of [that] order or that could otherwise
add delays and ambiguity to the permitting process,'' and to address
the pathologies of the NEPA process and NEPA litigation as identified
by the Supreme Court. Where the Department has retained an aspect of
its preexisting NEPA implementing procedures, it is because that aspect
is compatible with these guiding principles; where the Department has
revised or removed an aspect, it is because that aspect is not so
compatible.
II. Summary of Revisions
The Department is revising its current procedures, DOT Order
5610.1C, ``Procedures for Considering Environmental Impacts,''
originally issued in 1979, 44 FR 56420 (Oct. 1, 1979), and updated in
1982 and 1985 (1985 procedures).\1\ This Order updates and modernizes
the 1985 procedures to reflect current departmental NEPA practice. The
Department has proposed several revisions to the 1985 NEPA procedures
that have not been finalized to date. Comments received on these
revisions to the DOT NEPA procedures in response to the publication of
proposed Order 5610.1D in the Federal Register on December 20, 2016, 81
FR 92966, and the publication of a proposed rule in the Federal
Register on November 23, 2020, 85 FR 74640 were considered in
developing the revisions to this Order. The Order comprehensively
updates the 1985 procedures. This Order updates the organization of the
1985 procedures to align with current Department organization,
practice, and policies to implement the DOT NEPA policies and the FRA
2023 amendments to NEPA more effectively and efficiently. The Order
reduces ambiguity regarding the entities responsible for taking the
actions specified in the Order. To improve readability, this Order
designates ``OA'' as the entity responsible for conducting NEPA
analyses and defines ``OA'' to include a Secretarial Office that
carries out its own NEPA responsibilities (as opposed to an office that
relies on an OA's expertise to prepare the NEPA document). This Order
also updates the names of the relevant offices that have
responsibilities, including the Office of Environment and Office of the
General Counsel (and relevant subdivisions thereof). The Order applies
to the Department's programs and actions, and, to the extent possible,
avoids creating conflicts with existing OA programs and actions. DOT
did not include the Attachments of the 1985 procedures, which provided
a list of the States and localities with EIS requirements as well as
guidance for contents of Statements. This Order also updates
terminology for consistency with modern NEPA practice and the
Department's current operations, including updating the definition of
``major federal action'' and distinguishing between ``related actions''
and ``connected actions.''
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\1\ Available at https://www.transportation.gov/sites/dot.gov/files/docs/Procedures_Considering_Environmental_Impacts_5610_1C.pdf.
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This Order updates the 1985 procedures to account for relevant
project delivery provisions and other streamlining efforts included in
SAFETEA-LU, MAP-21, the FAST Act, IIJA, and the FRA 2023 amendments to
NEPA that apply departmentwide. Accordingly, the Order reflects the
Department's modern NEPA practices and unique project delivery
statutory authorities by providing direction on analyzing multimodal
projects in an expedited and streamlined manner, enhancing early
coordination, and incorporating a process that allows the OAs to
utilize each other's CEs. The Order also incorporates agency practice,
including environmental review tracking requirements, and provides
accountability for agency compliance with NEPA as recently amended by
Congress.
The Order seeks to faithfully implement the recent significant
changes to NEPA prescribed by Congress, instruction provided by the
President, and guidance provided by the Supreme Court. The Order
modernizes the 1985 procedures to streamline and improve efficiency of
the environmental review process; expedite project delivery; provide
enhanced customer service to stakeholders through consistent
implementation of NEPA across the Department and, where possible,
provide support for the Department's OAs to apply OA-specific NEPA
implementing procedures to their specific programs; and balance the
needs of all OAs. These reforms are intended to ensure that NEPA
documents inform and, to the extent appropriate, involve the public,
focus on the significant issues that require analysis, and foster
informed decisionmaking based on an understanding of the potential
action's environmental impacts.
Other revisions include removing references to the rescinded CEQ
regulations, allowing reliance on previously prepared EISs, EAs, and
CEs, expanding upon DOT's emergency environmental review process,
setting forth procedures for applicant-prepared environmental
documents, and setting forth procedures for the use of programmatic
environmental documents.
Federal Highway Administration (FHWA), Federal Railroad
Administration (FRA), and Federal Transit Administration (FTA) NEPA
implementing procedures will remain in 23 CFR part 771 because those
agencies have specific statutory provisions related to 23 U.S.C. 139
projects that do not apply departmentwide. In addition, Federal
Aviation Administration (FAA) NEPA implementing procedures will remain
in separate procedures in FAA Order 1050.1. Both 23 CFR part 771 and
Order 1050.1 have been revised to be consistent with this Order to the
extent possible.
This Order cancels DOT Order 5610.1C, ``Procedures for Considering
Environmental Impacts,'' issued September 18, 1979, and amended July
13, 1982 and July 30, 1985. In addition, it cancels and incorporates
the following OA's individual NEPA implementing procedures: PHMSA Order
5610.3, ``Procedures for Considering Environmental Impacts,'' dated
January 16, 2025; FMCSA Order 5610.1, ``National Environmental Policy
Act Implementing Procedures and Policy for Considering Environmental
Impacts,'' issued March 2004; MARAD Order 600-1, issued July 23, 1985;
and St. Lawrence Seaway Order SLSDC 10-5610.1C, issued May 28, 1981.
This Order will be effective immediately as an interim order but may be
updated based on comments received.
Sections 1-25 of the Order apply to all of the OAs departmentwide.
The Subparts in A-E contain information specific to each OA. The
contents of these subparts previously existed in the OA's individual
NEPA implementing procedures. Most of the changes from existing orders
to the procedures listed in Subparts A-E are non-substantive changes.
There have been no
[[Page 29624]]
modifications to any OA CEs, including technical amendments.
However, the Department does plan to supplement this Order in the
near future to establish new CEs, and to revise existing CEs, including
the technical corrections needed. The following provides an overview of
the contents of Subparts A through E.
Subpart A provides the OA-specific NEPA procedures not covered in
Sections 1-25 for the Great Lakes St. Lawrence Seaway Development
Corporation (GLS). GLS NEPA procedures were originally located in St
Lawrence Seaway Order SLSDC 10-5610.1C, issued May 28, 1981. In
addition to listing the OA specific procedures in this subpart, GLS
makes minor updates.
Subpart B provides the OA-specific NEPA procedures not covered in
Sections 1-25 for the Federal Motor Carrier Safety Administration
(FMCSA). FMCSA NEPA procedures were originally located in FMCSA Order
5610.1, ``National Environmental Policy Act Implementing Procedures and
Policy for Considering Environmental Impacts,'' issued March 2004. In
addition to listing the OA specific procedures in this subpart, FMCSA
makes minor updates.
Subpart C provides the OA-specific NEPA procedures not covered in
Sections 1-25 for the Maritime Administration (MARAD). MARAD NEPA
procedures were originally located in MARAD Order 600-1, issued July
23, 1985. In addition to listing the OA specific procedures in this
subpart, MARAD makes minor updates. MARAD also makes updates to the
Determination of the Level of NEPA Review, specifically the
identification of Deepwater Port license applications and large port
infrastructure projects as major actions. MARAD adds a section specific
to the OA procedures for long-lead time purchases and pre-NEPA field
investigations in NEPA and Agency Decisionmaking to clarify the
procedures for complex projects and the needs to secure construction
materials and equipment prior to the completion of NEPA. In addition,
MARAD adds an OA specific update to Procedures for Applicant-Prepared
Environmental Documents to add Roles and Responsibilities, a section
for applicant prepared NEPA documents, and clarify their levels of NEPA
review.
Subpart D provides OA-specific NEPA procedures not covered in
Sections 1-25 for the National Highway Traffic Safety Administration
(NHTSA). NHTSA NEPA procedures were originally located in regulations
at 49 CFR part 520. These regulations will be rescinded through a
separate rulemaking. In addition to listing the OA specific procedures
in this subpart, NHTSA makes minor updates.
Subpart E provides OA-specific NEPA procedures not covered in
Sections 1-25 for the Pipeline and Hazardous Materials Safety
Administration (PHMSA). PHMSA's NEPA procedures were originally located
in PHMSA Order 5610.3, ``Procedures for Considering Environmental
Impacts,'' dated January 16, 2025.
Appendix A lists the existing Departmental CEs. No modifications
have been made from the 1985 procedures.
Issued in Washington, DC.
Loren Smith,
Deputy Assistant Secretary for Transportation Policy.
[FR Doc. 2025-12365 Filed 7-1-25; 2:30 pm]
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