[Federal Register Volume 91, Number 79 (Friday, April 24, 2026)]
[Notices]
[Pages 22206-22213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-08098]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36652]
Green Eagle Railroad, LLC--Construction and Operation Exemption--
in Maverick County, Tex.
On December 14, 2023, Green Eagle Railroad, LLC (GER), a noncarrier
subsidiary of Puerto Verde Holdings (PVH), filed a petition for
exemption under 49 U.S.C. 10502 from the prior approval requirements of
49 U.S.C. 10901 to construct and operate approximately 1.335 miles of
new, double-tracked common carrier rail line in Maverick County, Tex.
(Line). The Line would extend from a bridge (Bridge) crossing the U.S.-
Mexico border over the Rio Grande to connect with Union Pacific
Railroad Company (UP) at about milepost 31 of UP's Eagle Pass
Subdivision and route rail and commercial motor vehicle (CMV) traffic
around the urban center of the City of Eagle Pass, Tex. According to
GER, rail traffic moving across the border between the City of Eagle
Pass, Tex., and Piedras Negras, Coahuila, Mex., currently crosses a
single-tracked bridge connecting to a rail line owned and operated by
UP and also utilized by BNSF Railway Company (BNSF) via trackage rights
on the U.S. side and to a rail line owned by the Mexican federal
government with rail operations concessioned to Ferrocarril Mexicano,
S.A. de C.V. (Ferromex) on the Mexican side. (Pet. 2.) GER seeks to
enter into agreements with UP and BNSF for this traffic to move to the
Line after construction. (Id. at 7.)
On March 13, 2024, the Board instituted a proceeding under 49
U.S.C. 10502(b). Green Eagle R.R.--Constr. & Operation Exemption--in
Maverick Cnty., Tex., FD 36652, slip op. at 1 (STB served Mar. 13,
2024). Then, on March 29, 2024, pursuant to the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4370m-11, the Board's Office of
Environmental Analysis (OEA) issued a notice of intent to prepare an
environmental impact statement (EIS) and invited public comment. Green
Eagle R.R., FD 36652 (STB served Mar. 29, 2024). OEA issued another
notice on July 8, 2024, informing the public of the availability of the
Final Scope of Study (Final Scope) for the EIS. Green Eagle R.R., FD
36652 (STB served July 8, 2024). OEA issued a Draft EIS on March 14,
2025, analyzing the potential environmental impacts of the Line and
requesting public comments.
A Final EIS, which responded to the substantive comments received
on the Draft EIS, was issued on August 6, 2025. The Final EIS
recommends environmental conditions to avoid, minimize, or mitigate the
potential environmental impacts of the proposed construction and
operation of the Line.
On January 30, 2026, the Board served a decision directing GER to
file a supplemental brief to answer questions so that the Board could
fully assess the proposal under the exemption criteria of section
10502. See Green Eagle R.R., FD 36652 (STB served Jan. 30, 2026).
After considering the rail transportation policy (RTP) at 49 U.S.C.
10101, including how the potential environmental impacts may implicate
that policy, the Board will grant GER's petition for exemption,
authorizing GER to construct and operate over the Southern Rail
Alternative (OEA's environmentally preferred alternative), subject to
the environmental mitigation measures in the attached Appendix.
Background
GER explains that the Line is part of PVH's Puerto Verde Global
Trade Bridge project (Project), a proposal to create a new trade
corridor for freight traffic and CMVs extending from Eagle Pass across
the U.S.-Mexico border and approximately 17.79 miles into the Mexican
State of Coahuila. (Pet. 1.) In addition to the Line, other components
of the Project corridor include the GER line in Mexico connecting to
Ferromex at the Ferromex Rio Escondido Yard; a new CMV roadway running
parallel to the railroad tracks in the U.S. and Mexico; the Bridge,
which would cross the Rio Grande River with two spans to carry the
railroad tracks and CMV roadway; and customs inspections facilities,
including a customs control tower between the Line and CMV roadway to
allow for combined multimodal cargo inspection. (Id. at 1-2, 6.) GER
further states that it has discussed the Project with UP and BNSF and
seeks to enter agreements with the carriers to shift their cross-border
traffic to the Line. (Id. at 7.) GER expressly represents that it would
not begin construction of the Line absent such agreements. (GER Suppl.
7.)
According to GER, the purpose of the construction and operation of
the Line as part of the larger Project is to ``develop an economically
viable solution to meet the needs for border infrastructure
improvements that will increase safety and facilitate crucial
binational trade between the United States and Mexico.'' (Pet. 2.) GER
notes that the project addresses issues
[[Page 22207]]
identified in the Texas Department of Transportation's 2021 Texas-
Mexico Border Transportation Master Plan (BTMP), which analyzed
capacity at the border and provided recommendations to ease congestion.
(Id. at 3-5, 7.) The BTMP found that the Eagle Pass Port of Entry is
already heavily used, with use projected to increase. (Id. at 3.)
However, according to GER, the current infrastructure is not well-
suited for the projected increased use, as the single-tracked border
crossing limits train speeds and freight capacity and prevents
simultaneous two-way operations, thus negatively impacting the economy.
(Id. at 3-5.) In addition, GER notes that insufficient security
infrastructure has impacted rail service. (Id. at 4.) GER states that
rail traffic moving across the border at Eagle Pass currently crosses a
single-tracked bridge connecting to a line owned by UP on the U.S. side
and owned by the Mexican federal government and operated by Ferromex on
the Mexican side.\1\ (Id. at 2.) On the U.S. side, this traffic now
traverses nine at-grade rail crossings in the City of Eagle Pass.\2\
(Id.) As noted above, GER says that its proposed construction and
operation of the Line is not viable without agreements with UP and BNSF
to shift their traffic to the Line, and GER informs the Board that it
will not begin construction absent such agreements. (Env't Comment EI
34039, GER Letter 5; GER Suppl. 7.)
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\1\ BNSF also operates on the U.S. side of the line via trackage
rights obtained as a condition of the UP-Southern Pacific merger.
See Union Pac. Corp.--Control & Merger--S. Pac. Rail Corp., 1 S.T.B.
233, 410-11, 562 (1996).
\2\ Of the nine public at-grade crossings, two are currently
closed to vehicular traffic. (Final EIS 1-2 n.3.)
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GER states that its Line would bypass the current at-grade
crossings in the City of Eagle Pass by creating a new, double-tracked
corridor with zero at-grade crossings between the interchange point
with UP and the Bridge. (Pet. 5-6.) GER explains that the Project
corridor is designed to be constructed and operated ``under the theory
that a moving train is a safe train,'' so the Line, like the rest of
the Project, will be fully fenced, monitored, and patrolled, allowing
continuous movement across the border. (Id. at 6-7, 14-15.) The
petition notes that from September 19-23, 2023, UP and BNSF had to
embargo service at Eagle Pass because Ferromex temporarily suspended
service due to migrants climbing aboard railcars and suffering injuries
or fatalities. (Id. at 4.) GER also says it will provide U.S. Customs
and Border Protection (CBP) and the Mexican National Customs Agency
(ANAM) with equipment to conduct non-intrusive inspections of all rail
cars crossing the border. (Id. at 6-7.) GER notes that it intends to
utilize international train crews to limit train stops at the border.
(Id. at 6.) The petition states that the Line, as part of the larger
Project, will result in a safer, more efficient border crossing for
rail traffic that facilitates competition with the Canadian Pacific
Kansas City Railway (CPKC) Port of Entry at Laredo, Tex., mitigates
congestion and other negative economic impacts, eases burdens on the
nearby communities, and reduces the risk of any security- or safety-
related events that could impact rail service and trade. (Id. at 4-5,
14-16.)
GER argues that its proposed line qualifies for an exemption under
section 10502 because an application for construction and operation
authority under 49 U.S.C. 10901 is not necessary to carry out the RTP;
an exemption would promote several provisions of the RTP; and requiring
an application is not necessary to protect shippers from an abuse of
market power and construction and operation of the Line is limited in
scope. (Pet. 11-17.)
Under Executive Order 13867, presidential permits are required for
the construction and operation of certain facilities and land
transportation crossings at the U.S. borders. Exec. Order No. 13867, 84
FR 15,491-93 (Apr. 10, 2019). The Executive Order states that it is
intended to streamline the presidential permitting process and
facilitate the expeditious delivery of advice to the President to
promote cross-border infrastructure. Id. After an application is
received by the Secretary of State, the Secretary advises the President
whether the issuance of a presidential permit would serve the foreign
policy interests of the United States. Id. PVH, with Maverick County,
Tex., as its public entity sponsor, applied for a presidential permit
for this Project to the Secretary of State in October 2023, (Pet. 11),
and a presidential permit was granted on May 31, 2024. See Authorizing
Maverick Cnty., Tex., to Construct, Maintain, & Operate a Vehicular,
Pedestrian, & Rail Border Crossing near Eagle Pass, Tex., at the Int'l
Boundary Between the U.S. & Mex. (Presidential Permit), 89 FR 48,247-50
(May 31, 2024).
The Board has received letters supporting GER's petition from U.S.
Senators John Cornyn and Ted Cruz; then-U.S. Representative Tony
Gonzales; Texas State Representative Eddie Morales, Jr.; and Maverick
County Judge Ramsey English Cant[uacute]. (See Hon. Cornyn & Hon. Cruz
Letter, Feb. 16, 2024; Hon. Gonzales Letter, May 24, 2024; Hon. Morales
Letter, Jan. 16, 2024; Hon. Cant[uacute] Letter, Jan. 18, 2024.) The
Eagle Pass Housing Authority (EPHA) submitted a comment urging the
Board to ``conduct due diligence'' regarding ``minimizing noise,
vibration and possible chemical spills.'' (See EPHA Letter, Apr. 30,
2024.)
UP filed comments opposing GER's petition for exemption on August
25, 2025. UP argues that the Board should deny GER's petition and
require a full application if GER wants to proceed with its proposal.
In contrast with GER's expressed optimism in working with UP and BNSF,
UP states that it ``has no intent to discontinue using its border
crossing at Eagle Pass.'' (UP Comment 10.) UP also questions the
Project's financial and operational viability in the event both
crossings are used, and it disputes that the petition shows that the
Line serves the public interest or meets the criteria for an exemption
under section 10502. (Id. at 10-15.) UP argues that GER simply seeks to
insert itself as an additional rail carrier in the middle of existing
UP-Ferromex and BNSF-Ferromex cross-border routes, rather than creating
a new, competitive, more efficient option for shippers. (Id. at 12.)
According to UP, this proposal ``would raise rail transportation costs
and reduce service quality'' because every cross-border movement with
GER would require three rail carriers rather than two, thereby
weakening UP's and BNSF's ability to compete with CPKC's cross-border
operations in Laredo, Tex. (Id. at 12-13.)
The Board also received comments opposing the petition from the
Eagle Pass Border Coalition (EPBC) on September 8, 2025. EPBC posits
that the Board's EIS is inadequate, arguing that it did not include
adequate mitigation, consider cumulative impacts, or adequately
consider impacts to water quality, wetlands, flood risk, aquatic
ecosystems, air quality, traffic, and noise resulting from GER's
proposal. (See EPBC Comment.) EPBC also argues that the Board should
require GER to file a full application, (id. at 14), and that the Line
is not in the public interest (id. at 5, 11-12).
GER responded to UP's comments and EPBC's comments on September 15,
2025, and September 22, 2025, respectively. In its response to UP, GER
argues that a full application is not necessary and that the Board
should grant its petition. GER maintains that the Line would serve the
public interest because it resolves problems cited in the BTMP, because
there is a Congressional presumption that construction projects are in
the public interest, and because GER's presidential permit was granted,
[[Page 22208]]
confirming that the proposal is in the foreign policy interests of the
United States. (GER Reply 3-5, Sept. 15, 2025.) GER also reiterates
that the proposed Line construction satisfies the criteria for an
exemption because it is consistent with the RTP. (Id. at 7-16.) In
response to EPBC, GER argues that EPBC does not adequately demonstrate
its interest in this proceeding, unduly expands the scope of issues
raised by conflating the Board's NEPA obligations with separate
applicant obligations under the Clean Water Act, and fails to argue any
of the factors for requiring an application instead of a petition for
exemption. (GER Reply 6-9, Sept. 22, 2025.) GER also argues that the
EIS took the ``hard look'' required by NEPA. (Id. at 10-14.)
On January 30, 2026, the Board served a decision directing GER to
file a supplemental brief so that the Board could fully assess the
proposal under the exemption criteria of section 10502. See Green Eagle
R.R., FD 36652 (STB served Jan. 30, 2026). The Board asked questions
regarding the effect this proposal might have on shippers and shipping
costs, the status of the proposed line in Mexico and the line that
connects Ferromex to the UP-owned bridge at Eagle Pass, the status of
negotiations or discussions with UP and BNSF, and GER's previous
representation that it ``would be unable to construct and/or operate''
the Line if it were ``unable to attract all cross border rail traffic.
(Id. at 3-4 (quoting Env't Comment EI 34039, GER Letter 5).) The Board
also invited UP and BNSF to respond to the first three questions and
directed them to clarify where their respective crew changes currently
take place. (Id. at 4.)
GER, UP, and BNSF each made supplemental filings in response to the
Board's order on February 13, 2026.\3\ GER describes the current track
in Mexico connecting Ferromex to UP's bridge \4\ and states that it has
no information at this time as to any plan in Mexico to decommission
that track. (GER Suppl. 4-5.) GER notes that it has had preliminary
discussions with UP and BNSF, which are protected by non-disclosure
agreements, (id. at 5-6), and responds that its ``vision is to operate
like other port and terminal operators that manage congested areas,''
and that ``[l]ike other port and terminal operators, GER would provide
neutral service to interchange partners and carload customers such that
no competitive harm would arise from GER's operations,'' (id. at 1).
GER states that it expects the impact on shipping costs to be
negligible because the proposal is a value-add for shippers and could
potentially be offset by grants, and that if all rail traffic currently
crossing the border at Eagle Pass shifts to GER, it would be because
GER reached agreements with UP and BNSF to shift their traffic and
utilize the infrastructure GER proposes to build, thus negating any
potential competitive harms or operational challenges that may
otherwise arise. (Id. at 1-2.) The proposal, according to GER, is
intended to address current and potential operational harms identified
in the BTMP and improve overall efficiency at the border. (Id. at 2.)
Furthermore, GER again represents that it ``would not start building
the Proposed Line absent agreements from UP and BNSF to shift their
traffic to the Proposed Line post-construction.'' (Id. at 7.)
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\3\ On March 23, 2026, GER filed a letter providing updates
regarding funding for the Project and discussions with the City of
Eagle Pass. On April 10, 2026, Judge Cant[uacute] filed a further
update on behalf of Maverick County. On April 13, 2026, the City of
Eagle Pass replied to GER's March 23 letter, stating, among other
things, that on April 7, 2026, the Eagle Pass City Council
determined that it would not enter into a memorandum of
understanding with PVH regarding a proposed partnership along with
Maverick County.
\4\ GER and UP describe the current line in Mexico differently:
GER describes it as single-track mainline with operational sidings
and storage track (GER Suppl. 4-5), while UP states that the line is
double tracked (UP Suppl. 4).
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UP, in its supplement, argues that GER's proposal to construct and
operate the Line would harm shippers because GER is not proposing to
construct enough track to hold an average train clear of the yard in
the United States between the Bridge and the connection point with UP
and because the proposal increases the number of carriers required to
complete the cross-border movement, thus increasing complexity and cost
without increasing the number of independent routing options for
shippers. (UP Suppl. 4-5.) According to UP, GER recently reinitiated
discussions with UP, but has still not resolved UP's operational
concerns. (Id. at 2.) UP also contends that the current line in Mexico
has ample capacity to support cross-border operations and that UP is
continuing to enhance its operations on the current line within the
United States. (Id. at 3-4.) UP informs the Board that it ``began using
international crews on November 20, 2025, which allowed it to shift
most crew changes from the [current] bridge to Clark's Park Yard,''
that it plans to construct a new lead at the north end of Clark's Park
Yard, and that it anticipates the construction of a second main line
from the border to begin as early as 2028. (Id. at 3.)
BNSF responds that its crew changes occur on the current bridge and
that it has been participating in preliminary discussions with GER and
providing comments regarding certain design aspects that have been
shared with BNSF. (BNSF Suppl. 1-2.) BNSF states that it is important
BNSF has equal access to the Line and that the preliminary plans shared
by GER with BNSF indicate that GER intends to provide equal access to
BNSF and UP. (Id. at 2.)
Discussion
Rail Transportation Policy Analysis. The construction and operation
of new railroad lines require prior Board authorization, either through
a certificate under 49 U.S.C. 10901 or, as requested here, an exemption
under 49 U.S.C. 10502 from the prior approval requirements of section
10901. ``In either case, the [statute] expresses a clear presumption in
favor of approving railways.'' Seven Cnty. Infrastructure Coal. v.
Eagle Cnty., 605 U.S. 168, 194 (2025) (Sotomayor, J., concurring); see
also N. Plains Res. Council v. STB, 668 F.3d 1067, 1091-92 (9th Cir.
2011) (agreeing that there is a statutory ``presumption for
construction''); Mid States Coal. for Progress v. STB, 345 F.3d 520,
552 (8th Cir. 2003) (same). Section 10901(c) directs the Board to grant
rail construction proposals unless it finds the proposal ``inconsistent
with the public convenience and necessity.'' 49 U.S.C. 10901(c); see
Mid States, 345 F.3d at 552 (quoting current 49 U.S.C. 10901(c));
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) (addressing the Board's construction exemption process), aff'd
sub nom. Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 2013).
Under section 10502(a), the Board shall, to the maximum extent
consistent with Title 49, subtitle IV, part A, exempt a transaction
when the Board finds that: (1) application of a statutory provision is
not necessary to carry out the RTP of 49 U.S.C. 10101; and (2) either
(A) the proposal is of limited scope, or (B) application of the
provision is not necessary to protect shippers from an abuse of market
power. Congress thus has directed the Board to exempt a rail
construction proposal from the requirements of the full application
process--even if significant in scope--so long as the application of
section 10901 is not necessary to carry out the RTP and not needed to
protect shippers from market power abuse. See Alaska Survival, 705 F.3d
at 1082-83; Vill. of Palestine v. ICC, 936 F.2d 1335, 1337, 1340 (D.C.
Cir. 1991).
Proceeding type. According to UP, the Board should deny GER's
petition and
[[Page 22209]]
require it to file an application if GER wants to move forward with its
project. (UP Comment 14.) UP argues that the Line would impose costs on
UP, BNSF, and shippers for a line that would be duplicative,
inefficient, and financially infeasible, rendering the Line unsuitable
for consideration under section 10502. (Id.) UP argues that the Line
would undermine the RTP, citing 49 U.S.C. 10101(3)-(5), (9), and (14).
(UP Comment 12-15.)
UP points to Board statements regarding the benefits of eliminating
interchanges and claims that by inserting a duplicative line and a
third carrier into the current cross-border route at Eagle Pass, GER
would raise transportation costs and reduce service quality. (UP
Comment 12-14.) According to UP, this would weaken UP's and BNSF's
ability to use Eagle Pass to compete with CPKC's Laredo crossing. (Id.
at 13.) UP further argues that GER will increase costs for UP and
shippers because GER is not constructing sufficient infrastructure to
avoid disruptions to rail traffic. (Id. at 13-14.) UP contends that the
duplicative nature of the Line and the additional costs would be
inconsistent with the section 10101(9) policy of encouraging honest and
efficient management of railroads. (Id. at 14.) UP claims that the Line
would undermine sections 10101(3)-(5) because the viability of the Line
depends on UP and BNSF agreeing to move their Eagle Pass traffic to the
Line, but UP states it will not agree to do that. (Id. at 13-14.) UP
argues that the current route provides sufficient capacity, but that UP
has plans for infrastructure and operational improvements regardless.
(Id. at 14.) Finally, citing section 10101(14), UP argues that the Line
would undermine energy conservation because, while GER's route between
its proposed connection to Union Pacific's line and the border will be
shorter than Union Pacific's route between the same point and the
border, GER's proposed route between the connection and Ferromex's Rio
Escondido Yard is longer than Union Pacific's current route, resulting
in a net increase in fuel consumption. (Id.) Similarly, EPBC argues
that the Board should require a full application ``and address water
quality, air quality and human health risks.'' \5\ (EPBC Comment 14.)
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\5\ GER argues that EPBC does not adequately demonstrate its
interest in this proceeding. (GER Reply 6, Sept. 22, 2025.) EPBC
states that it is a non-profit organization that ``works to ensure a
future in which frontline communities are no longer isolated or
voiceless from state or federal decision making that affect our
home, where we have an active role in the evolution of our community
and preservation of our culture.'' (EPBC Comment 1). The Board will
permit EPBC to participate in this proceeding given its uncontested
role in advocating for communities potentially affected by the Line.
See City of Phila.--Pet. for Declaratory Ord., FD 36768, slip op. at
5 (STB served Sept. 24, 2025) (explaining that ``intervention is
discretionary'' and denying participation due to lack of interest
(citing Knauf Fibre Glass GmbH v. Alton & S. Ry., NOR 39739 (ICC
served May 9, 1986))); see also 49 CFR 1101.2(d).
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As discussed below, the Board has sufficient information in the
record to consider GER's petition and conclude that an exemption is
warranted under section 10502(a). See Townline Rail Terminal--Constr. &
Operation Exemption--in Suffolk Cnty., N.Y., FD 36575, slip op. at 6-8
(STB served Nov. 15, 2023). As a threshold matter, if GER is unable to
negotiate an agreement with UP, presumably one that addresses UP's
concerns regarding operational issues, transfer costs, and competition,
the Line will not be built. GER has repeatedly stated that construction
and operation of the Line is not viable without agreements with UP and
BNSF to shift their traffic to the Line, and GER has explicitly stated
that it will not begin constructing the Line absent such agreements.
(Env't Comment EI 34039, GER Letter 5; GER Suppl. 7.) OEA's
environmental and historic review accordingly relied on GER's
representation that the rail traffic at Eagle Pass would be rerouted to
GER's proposed Line for this proposal to come to fruition. (See Final
EIS at O-2; Env't Comment EI 34039, GER Letter 5.) In addition, GER
stated in its presidential permit application that the Bridge ``will
connect directly to [the Libramento Norte] bypass to reroute commercial
vehicle and freight rail traffic outside of urban areas,'' (Pet., Ex. B
at 45), and the presidential permit mandates that ``[t]he permittee
shall make no substantial change'' to the operations authorized by the
permit without approval from the President, Presidential Permit, Art.
12.
The Board considers GER's repeated on-the-record statements that it
will not construct and operate the Line without reaching agreements
with UP and BNSF as material to GER's proposal. The Board has relied on
this representation in its assessment of the petition and record below.
In the event GER seeks to change its proposal with regard to whether it
would construct the Line without an agreement from both UP and BNSF,
GER is obligated to inform the Board prior to commencing construction
so that the Board may assess the changes and take any appropriate
action. The Board will also require GER to file a status report in six
months on the progress of the Project, followed by annual status
reports thereafter. Those status reports must include updates on the
progress of negotiations with UP and BNSF.
Under these circumstances, requiring an application would not have
resulted in a different analysis of the issues raised by EPBC and UP.
As noted above, a clear presumption exists in favor of construction
projects, whether an applicant seeks Board authorization by filing an
application under section 10901 or, as GER has done, by filing a
petition for exemption under section 10502. See Seven Cnty., 605 U.S.
at 194 (Sotomayor, J., concurring); N. Plains, 668 F.3d at 10901-92;
Mid States, 345 F.3d at 552. Section 10901(c) directs the Board to
grant construction authority for proposals that are not deemed
``inconsistent with the public convenience and necessity.'' See Mid
States, 345 F.3d at 552 (emphasis omitted). Here, through its petition,
GER has demonstrated that its proposal serves the public interest, if
carried out subject to the environmental conditions imposed by the
Board. In addition, as the record shows, an extensive environmental
review was conducted by OEA in its preparation of an EIS--the level of
environmental review that the Board has often conducted in rail
construction projects, regardless of whether the applicant files an
application under section 10901 or a petition for exemption under
section 10502. That process included a thorough analysis of the
potential environmental issues and a reasonable range of alternatives
for the Line (given GER's representations) and included ample
opportunity for public participation and input.
Given this framework and a record that shows the benefits of the
Line, a formal application is not required and would be inconsistent
with Congress's directive that the Board exempt such proposals to the
maximum extent consistent with Title 49, subtitle IV, part A.
Analysis under section 10502. As noted above, the Board must exempt
a proposed rail line construction when it finds that application of the
provisions of section 10901 is not necessary to carry out the RTP and
not needed to protect shippers from market power abuse. Based on the
record here, the Board concludes that the proposed construction
qualifies under section 10502 for an exemption from the prior approval
requirements of section 10901.
First, construction and operation of the Line would help meet the
needs of the public by fostering and enhancing the development and
continuation of a sound rail transportation system with effective
competition between rail
[[Page 22210]]
carriers and other transportation modes and would help ensure sound
economic conditions in transportation and cooperation between carriers.
49 U.S.C. 10101(4), (5). Although, as UP contends, GER's proposal to
construct and operate the Line would increase the number of carriers
required to complete the cross-border movement and might create
additional operational complexity, (UP Comment 7-11), GER has
repeatedly represented that it would not construct the Line without
reaching agreement with UP and BNSF for their Eagle Pass traffic to
move to the Line post-construction. The Board believes both Class Is
have ample experience in railroad management and the capabilities to
negotiate cooperative deals with other carriers in advance of their own
interests and can refuse to enter agreements with GER if operational
issues cannot be resolved.
Further, any additional operational complexity could be offset by
other beneficial features of the Line that would improve safety,
security, capacity, and fluidity at Eagle Pass, thus addressing
concerns identified in the BTMP. Capacity and fluidity would be
enhanced by double-tracking, the absence of at-grade crossings, and the
use of international crews that would not need to stop on the Bridge.
Moreover, safety and security at Eagle Pass would be improved through
GER's plans to fence, monitor, and patrol the Project premises and
operate trains continuously so they need not stop on the Bridge. GER
also proposes to provide CPB and ANAM with equipment to conduct non-
intrusive inspections of all rail cars crossing the border, further
enhancing these benefits. These benefits could make Eagle Pass a more
attractive option for shippers and improve competition with CPKC's
crossing at Laredo.
Although UP alleges that shipping rates might be impacted due to
GER's costs of building and operating costs, those concerns are
speculative \6\ and could, in theory, apply to any construction
project. GER has indicated that it continues to seek financing options,
including grants, to minimize impact on shippers and that Board
approval of the Line is critical to that effort.\7\ (GER Suppl. 3.) GER
further notes that the Line offers the possibility of better cross-
border service at Eagle Pass if it is ultimately built and operated in
cooperation with the Class Is, believing that the improved speed,
consistency, fluidity, and security could ultimately contribute to
lower total logistics costs by reducing in-transit inventory carrying
costs, damaged or stolen goods, and production disruptions. (Id.)
Moreover, with the goal to enhance competition with Laredo, plus GER's
stated intention to provide a neutral service that provides a value-add
for shippers, the Board expects the Line could be attractive for
shippers given the new potential benefits. On top of these potential
benefits, the Board notes the Project, having received a presidential
permit, has been reviewed for its service in the foreign policy
interests of the United States. See Exec. Order No. 13867.\8\
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\6\ GER states that project costs could be offset by U.S. and
Mexico infrastructure grants. (GER Suppl. 2-3.)
\7\ GER also represents that it would not construct the Line
without obtaining agreement from UP and BNSF to move their Eagle
Pass traffic to the Line post-construction.
\8\ The Board need not consider UP's argument that the Line will
not be financially viable if less than all cross-border traffic
moves to the Line post-construction, (UP Comment 10-11), because GER
has represented that it will not start construction without
agreements with UP and BNSF to shift all their Eagle Pass traffic.
As discussed above, the Board considers this representation material
to the proposal.
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Second, the Line would also promote the operation of transportation
facilities and equipment without detriment to public health and safety.
49 U.S.C. 10101(8). In addition to the Line's above-noted safety and
security improvements, there would be minimal environmental impacts--
and in some cases, environmental benefits--with the final environmental
mitigation conditions recommended by OEA, as explained below. And by
reducing the travel distance within the United States, number of stops,
and idle time, the Line would increase energy efficiency, thereby
encouraging and promoting energy conservation.\9\ 49 U.S.C. 10101(14);
(Final EIS 3-50).
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\9\ While UP argues that additional mileage on the Mexican side
of the proposed route will undermine energy conservation, the
Board's jurisdiction is limited to the Line itself and its effects.
49 U.S.C. 10501(a)(2)(F).
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Third, exempting the proposed construction and operation from the
requirements of section 10901 would promote the RTP by minimizing the
need for regulatory control over the rail transportation system and
reducing regulatory barriers to entry. 49 U.S.C. 10101(2), (7). Other
aspects of the RTP would not be adversely affected.
Consideration of the proposed construction and operation of the
Line under section 10901 also is not necessary to protect shippers from
an abuse of market power.\10\ As explained, the Line could improve
shippers' competitive options by expanding rail capacity and providing
a more efficient rail crossing at Eagle Pass to better compete with the
CPKC Laredo Port of Entry. GER expects to provide neutral interchange
service to UP and BNSF, and again, the Line will not be built without
those carriers' agreement.\11\ Furthermore, the Board's predecessor,
the Interstate Commerce Commission, has previously explained, ``[i]n
determining whether regulation is necessary to protect shippers from an
abuse of market power, a significant consideration is whether the
participating shippers actually seeking transportation are concerned
about an abuse of market power.'' Rail Gen. Exemption Auth.--Pet. of
AAR to Exempt Rail Transp. of Selected Commodity Groups, 9 I.C.C.2d
969, 973 (Sept. 17, 1993). No shippers have opposed GER's petition, let
alone expressed any concern about a carrier potentially abusing its
market power here.
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\10\ Given this finding regarding the lack of need for shipper
protection, the Board need not determine whether the transaction is
limited in scope. 49 U.S.C. 10502(a)(2).
\11\ In response to questions about the possible removal or
decommissioning of the rail line in Mexico connecting Ferromex to
the UP International Railroad Bridge at Eagle Pass, see Green Eagle
R.R., FD 36652, slip op. at 3-4 (STB served Jan. 30, 2026), GER
confirmed ``Mexico's strategic desire to reroute rail traffic away
from the city center and along the path proposed by the GER
corridor.'' (GER Suppl. 5.) The Board's analysis of the Project
could be impacted should the Ferromex line in Mexico be removed or
decommissioned, or planned for removal or decommissioning, which
would leave UP and BNSF with no choice but to agree to shift their
traffic to GER and/or to keep their traffic on GER. Should such
removal or decommissioning occur, the Board would consider reopening
this proceeding to assess whether further Board action is warranted.
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Environmental Analysis. NEPA requires federal agencies to examine
the environmental impacts of proposed federal actions and to inform the
public concerning those effects. See Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, 462 U.S. 87, 97 (1983). Under NEPA and related
environmental laws, the Board must analyze environmental impacts prior
to deciding whether to authorize the construction of a new rail line 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). The Board has ``substantial discretion'' in
assessing the facts relevant to its environmental review and the
relevant impacts. Seven Cnty., 605 U.S. at 181. It also has ``broad
latitude'' to ``draw a `manageable line''' regarding the scope of its
inquiry. Id. at 182 (citing DOT v. Pub. Citizen, 541 U.S. 752, 767
(2004)). NEPA does not require that the Board evaluate potential
[[Page 22211]]
environmental effects arising from ``future or geographically separate
projects,'' ``particularly'' those over which the Board does not
``exercise regulatory authority.'' id. at 186-89; see also id. at 186-
87 (``Importantly, the textually mandated focus of NEPA is the
`proposed action'--that is, the project at hand--not other future or
geographically separate projects that may be built (or expanded) as a
result of or in the wake of the immediate project under
consideration.'') (citing 42 U.S.C. 4332(2)(C)).
Moreover, while NEPA prescribes a process that must be followed, it
does not mandate a particular result. See id. at 177 (citing Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)). Nor does
NEPA otherwise impose any ``substantive constraints on the agency's
ultimate decision to build, fund, or approve a proposed project.'' Id.
at 180 (emphasis in original); see also Robertson, 490 U.S. at 350-51.
Rather, in making such decisions, the Board may ``weigh environmental
consequences as [it] reasonably sees fit under its governing statute
and any relevant substantive environmental laws.'' See Seven Cnty., 605
U.S. at 173, 177 (citing Robertson, 490 U.S. at 350).
There has been a thorough environmental and historic review here.
On March 29, 2024, OEA published a Notice of Intent to Prepare an EIS
and a Draft Scope of Study (Draft Scope) in the Federal Register and
requested comments. 89 FR 22,204. During the subsequent comment period,
OEA held three public meetings \12\ and met with relevant federal,
state and local agencies to discuss the scope of the Project.\13\ After
considering all comments received, OEA published a Final Scope in the
Federal Register on July 8, 2024. 89 FR 55,995. Among other things, the
Final Scope identified the purpose and need of the Project, summarized
the comments received on the Draft Scope, and explained that, in
addition to the No-Action Alternative, the EIS would evaluate two build
alternatives.
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\12\ At each meeting, simultaneous translation and
interpretation from English to Spanish and Spanish to English was
provided. In addition, throughout the EIS process, all written
materials were made available in both English and Spanish. Any
comments received in Spanish were translated and addressed as
appropriate.
\13\ The U.S. Coast Guard participated in the environmental
review as a cooperating agency, and multiple other agencies
participated as consulting agencies, including U.S. Fish and
Wildlife Service (FWS), the International Boundary and Water
Commission, the U.S. Department of State, and the U.S. Army Corps of
Engineers.
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OEA issued the Draft EIS on March 14, 2025. See Green Eagle R.R.,
FD 36652 (STB served May 20, 2025). The Line itself in the United
States is the only part of the Project that requires licensing
authority from the Board. However, because GER and PVH intend to
construct and operate the Line and the associated CMV facility as a
single port of entry for freight rail and CMV traffic, and because
other federal agencies are relying on the Board's environmental review
to meet their own environmental review requirements, the EIS analyzed
the effects of constructing and operating the associated CMV facility
along with the Line.\14\ The Draft EIS considered a No-Action
Alternative and two build alternatives, the Southern Rail Alternative
(GER's preferred alignment) and the Northern Rail Alternative. (Draft
EIS 2-6.) Under either of the build alternatives, the Project itself
would not generate new or additional traffic but would eliminate
traffic going through downtown Eagle Pass by rerouting it from the UP
mainline to the Line. (Id. at 2-15.) Both alternatives include
approximately 1.3 miles of secure, double-tracked rail line extending
from the existing UP mainline to the Bridge, as well as the associated
CMV facility, which would be constructed in a flat area of undeveloped
farmland. (Id. at 2-8 to 2-18, 3-85.)
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\14\ Although the EIS analyzed the effects of constructing and
operating the associated CMV facility, the Board lacks the
jurisdiction to require mitigation for that facility. (Draft EIS 4-
1.)
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The Draft EIS identified and evaluated the potential environmental
impacts that the alternatives would have on freight rail safety, grade
crossing safety, grade crossing delay, noise and vibration, air
quality, energy, cultural resources, biological resources, water
resources, land use, visual quality, roadway capacity, roadway safety,
topography, geology, soils, hazardous waste sites, and socioeconomics.
(Id. at 2-21, 3-1 to 3-2.) Overall, OEA concluded that the two build
alternatives would have similar impacts. OEA ultimately concluded that
the Southern Rail Alternative would be the environmentally preferrable
option, noting that the potential impacts of that alternative would be
similar to, or less than, those of the Northern Rail Alternative,
except for visual impacts. (Id. at 2-21 to 2-22.) OEA determined that
the lesser impacts of the Southern Rail Alternative on noise and water
resources would compensate for its greater visual impacts. (Id.)
OEA concluded that the environmentally preferred Southern Rail
Alternative would provide beneficial impacts on freight rail safety,
grade crossing safety and delay, air quality, and energy. (Id. at 3-7,
3-10, 3-13, 3-48, 3-50.) In particular, as noted above, relocating all
freight traffic from the UP mainline to the Line would have a
beneficial impact on grade crossing delays because current delays at
all existing public at-grade crossings in Eagle Pass would be
eliminated. (Id. at 3-13.) The Southern Rail Alternative would impact
species listed or proposed for listing under the Endangered Species
Act: the Texas hornshell (a mussel species listed as endangered), the
Mexican fawnsfoot (a proposed endangered mussel species) and the
monarch butterfly (a proposed threatened species). (Id. at 3-65.)
Accordingly, OEA coordinated with FWS and developed two mitigation
measures that it recommends to ensure compliance with Section 7 of that
Act (16 U.S.C. 1536), as well as the Migratory Bird Treaty Act (16
U.S.C. 703-712). (See Draft EIS 3-65, 4-3.)
OEA found that operation of the Southern Rail Alternative would
cause severe noise impacts to three noise receptors in the vicinity of
the Barrera Street Bridge. (Id. at 3-34.) However, with OEA's
recommended noise mitigation measures, there would be no severe noise
impacts.\15\ (See id. at 3-42, 4-2.) Furthermore, because the Southern
Rail Alternative would reroute rail traffic out of downtown Eagle Pass,
it would eliminate existing severe noise impacts to 1,980 receptors.
(Id. at 3-42.) OEA also found that the Southern Rail Alternative would
have minor impacts on water quality due to ground disturbance during
construction. (Id. at 3-77 to 3-78.) Finally, in consultation with the
Texas State Historic Preservation Officer (SHPO), OEA determined that
the Southern Rail Alternative and the associated CMV facility would
have no adverse effect on National Register of Historic Places-eligible
properties, as none are present in the Project's Area of Potential
Effects. (Id. at 3-54.) However, because archeological resources may be
present deep underground in the floodplain, OEA recommends mitigation
requiring GER to conduct archeological surveys prior to constructing
the Bridge piers and to provide a construction
[[Page 22212]]
monitoring plan.\16\ (Id. at 3-54, 4-2 to 4-3.)
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\15\ During the EIS process, GER stated that it intends to
install 20-foot-high noise barriers on both sides of the tracks
between the inspection facility and the western end of the
Stormwater Channel Bridge, except on the Barrera Street Bridge and
the U.S. 277 Bridge. (Final EIS 3-34.) OEA determined that the gaps
in the noise barriers on those two bridges would cause severe
impacts to three noise receptors along the Southern Rail
Alternative. (Id.) Given the severe impacts to those noise
receptors, OEA recommends mitigation requiring GER to install noise
barriers on both sides of both bridges as well. (Id. at 3-34, 4-2.)
\16\ OEA also concluded that the Line and the associated CMV
Facility would have no impact or minimal impacts on the following
resource areas: Topography, Geology, Soils, and Hazardous Waste
Sites; and Socioeconomics. (Final EIS App. I & L.)
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On August 6, 2025, OEA issued a Final EIS. OEA received 104 written
and verbal comments on the Draft EIS from 92 unique commenters, and OEA
responded to all substantive comments in the Final EIS. (See Final EIS,
App. O.) Where appropriate, OEA clarified information and explained its
analyses contained in the Draft EIS. (See id.) For example, several
commenters claimed that the Draft EIS unreasonably assumed all freight
traffic via Eagle Pass would use the Line. (See id. at O-2 to O-3, O-6
to O-7.) OEA responded, noting GER's representation that it would not
construct or operate the Line if it is unable to attract all cross-
border freight traffic moving through Eagle Pass, which GER has since
reiterated. (Id. at O-2 (citing Env't Comment EI 34039, GER Letter 5);
see also GER Suppl. 7.) Therefore, OEA reasonably analyzed the Line
based on the assumption that GER would move all freight traffic at
Eagle Pass between Mexico and the U.S. (Final EIS at O-3.) And, as
discussed above, GER's representation is material to its proposal and
to the Board's analysis, such that GER is obligated to inform the Board
prior to construction if there are developments that change this
representation. In response to a comment about impacts from the portion
of the Project that would be located in Mexico, OEA explained that the
scope of the Project over which the Board and other federal agencies
have jurisdiction is the portion within the United States and, as a
result, an analysis of impacts within Mexico is unlikely to yield
information that would be useful to the Board's decision-making
process. See Seven Cnty., 605 U.S. at 183. OEA further noted that
Mexico has its own environmental permitting processes to which the
Project would be subject. Ultimately, none of the comments required
additional analysis or substantive changes to the Draft EIS. (Final EIS
at S-5.)
As noted above, after OEA issued the Final EIS, EPBC filed a
comment challenging the adequacy of the EIS. (See EPBC Comment.) Much
of EPBC's concerns relate to the U.S. Army Corps of Engineers' (USACE)
and the Texas Commission on Environmental Quality's (TDEC) permitting
and certification processes under Sections 404 and 401 of the Clean
Water Act (CWA) (33 U.S.C. 1341 and 33 U.S.C. 1344), which EPBC
conflates with the requirements of NEPA. (See EPBC Comment 3-7, 9-11,
13-14.) As explained in the EIS, these processes are separate from the
Board's NEPA and approval processes. (Final EIS at 1-3 to 1-5, 3-66, 4-
1, O-15 to O-19.) GER would be required to complete the permitting
processes and execute any reasonable permitting requirements of other
agencies, including USACE and TDEC, pursuant to their regulatory
schemes. (Id. at 1-5, 3-69, 3-72, 3-74, 4-1.) Further, OEA addressed
potential impacts to water resources in the Final EIS and found that
these impacts would not be significant and would be minimized due to
existing regulatory requirements. (See id. at 2-25, 3-66 to 3-78, O-17
to O-19 (addressing water quality impacts and the location within the
100-year floodplain but still finding minimal impacts).)
The remainder of EPBC's comment largely reiterates issues that were
already raised during the environmental review process and addressed in
the EIS.\17\ (See id. at 3-95 (addressing past, present, and reasonably
foreseeable future projects and actions that might have impacts that
could combine with the impacts of the Line); 2-22, 2-24 to 2-25, 3-54
to 3-66, 4-3 (addressing potential impacts to ecosystems, including on
plant communities and wildlife habitat in the portion of the Rio Grande
watershed affected by the Line and recommending mitigation); 3-42 to 3-
48, App. H, O-5, O-12 to O-13 (addressing impacts on air quality,
finding only temporary, localized, and below de minimis impacts from
construction-related emissions and reduced operation-related
emissions); 3-27 to 3-42, 4-2, App. G, O-11 to O-12 (addressing noise
impacts and recommending mitigation); 3-15 to 3-22, App. E, O-11
(addressing and finding no impacts to roadway capacity with the
installation of a traffic signal); 1-1 to 1-3, 2-7, O-6 (explaining how
the Line would serve the stated purpose and need); 1-7, O-7 to O-8
(concluding that additional public meetings were not warranted or
required by NEPA).) OEA determined whether mitigation would be
necessary to address potential impacts resulting from the Line, and
contrary to EPBC's claims, the recommended mitigation measures are
reasonable and adequate. (Id. at 4-2 to 4-3.)
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\17\ EPBC also claims that the Line is not in the public
interest. (EPBC Comment 5, 11-12.) This issue relates to the
transportation merits of the Line and is addressed above.
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After reviewing the entire environmental record, the Board is
satisfied that OEA has appropriately examined the potential
environmental impacts associated with the proposed construction and
operation of the Line. The EIS (Draft and Final) adequately identified
and assessed the environmental impacts of the Line, carefully
considered a reasonable range of alternatives (including the No-Action
Alternative), and recommended mitigation measures to avoid or minimize
potential environmental impacts. Accordingly, the Board will adopt the
analysis and conclusions made by OEA in the EIS, including OEA's final
recommended environmental mitigation measures set forth in the Appendix
to this decision. For the reasons explained in the EIS, the Board finds
that the Southern Rail Alternative--OEA's environmentally preferred
alternative--best satisfies the purpose and need for the Line while
minimizing potential impacts on noise and water resources when compared
to the Northern Rail Alternative. The Board's exemption will be granted
for the Southern Rail Alternative, as indicated below.
Conclusion
Construction and operation of the Line in the manner presented by
GER would offer shippers a more fluid freight rail option crossing the
U.S.-Mexico border, which would increase safety and security. These
improvements may, in turn, encourage competition with other border
crossings, foster strong economic conditions in transportation and
enhance the development and continuation of a sound rail transportation
system. In light of GER's material representation that it will not
begin construction absent agreements with UP and BNSF to shift their
Eagle Pass traffic to the Line post-construction, shippers will be
protected from the potential operational issues that might result from
adding another carrier to the traffic pattern at issue here. Those
agreements will also help ensure shipper access to each interchange
partner. And with OEA's final recommended mitigation, any potential
environmental impacts will be minimized.
After carefully considering the transportation merits and
environmental issues, the Board, considering the entire record, finds
that GER's petition for exemption under section 10502 should be
granted. The Board is authorizing construction and operation of OEA's
recommended environmentally preferred alternative--the Southern Rail
Alternative--as proposed, subject to compliance with the environmental
mitigation measures in the Appendix.
It is ordered:
[[Page 22213]]
1. Under 49 U.S.C. 10502, the Board exempts from the prior approval
requirements of 49 U.S.C. 10901 GER's construction and operation of the
Southern Rail Alternative for the above-described Line.
2. The Board adopts the environmental mitigation measures set forth
in the Appendix to this decision and imposes them as conditions to the
exemption granted here.
3. GER must file a status report as directed by October 22, 2026,
then annually thereafter.
4. Notice will be published in the Federal Register.
5. Petitions for reconsideration must be filed by May 12, 2026.
6. This decision is effective on the date of service.
Decided: April 22, 2026.
By the Board, Board Members Fuchs, Hedlund, and Schultz.
Eden Besera,
Clearance Clerk.
APPENDIX
Noise
MM-Noise-01. GER shall install noise barriers on both sides of the
proposed U.S. 277 and Barrera Street bridges to address the severe
noise impacts on three receptors that OEA identified. (See Final EIS,
Receptors 38, 41, and 42 in Chapter 3, Affected Environment and
Environmental Consequences, Figure 3.6-5.)
Cultural Resources
MM-Cultural-01. Prior to drilling piles for new bridge piers on the
rail line, GER shall conduct additional archaeological surveys via deep
mechanical trenching of floodplain areas in the Area of Potential
Effects to confirm the presence or absence of deeply buried
archaeological deposits.
MM-Cultural-02. GER shall prepare and provide to OEA a construction
monitoring plan no later than 30 days prior to the start of
construction of the rail line and abide by the provisions of the plan,
including any revisions by OEA, during rail construction activities.
The plan shall address the following:
1. Training procedures to familiarize construction personnel with
the identification and appropriate treatment of historic properties;
2. Monitoring of rail construction activities by a qualified
professional archaeologist;
3. Provisions for the unanticipated discovery of archaeological
sites or associated artifacts during construction activities, including
procedures for notifying OEA and the Texas Historical Commission (THC)
or Tribal Historic Preservation Officer (THPO), pursuant to 36 CFR
800.13(b), in the event of an unanticipated discovery; and
4. Provisions for complying with the Native American Graves
Protection and Repatriation Act (25 U.S.C. 3001-3013) and other
applicable federal, state, and local laws and regulations in the event
of an unanticipated discovery of unmarked human remains during rail
construction activities.
Biological Resources
MM-Biological-01. To ensure compliance with Section 7 of the
Endangered Species Act (16 U.S.C. 1536), GER shall implement the
conservation, minimization, and mitigative measures developed with the
U.S. Fish and Wildlife Service (USFWS) during the Section 7
consultation process for the protection of the federally listed or
proposed threatened and endangered species that could be affected by
the rail line, as stipulated in the letter from USFWS to OEA dated June
16, 2025, and the biological assessment prepared by OEA. (See Final
EIS, App. K.)
MM-Biological-02. To ensure compliance with the Migratory Bird
Treaty Act (16 U.S.C. 703-712), GER shall clear vegetation in
preparation for construction of the rail line before or after the
breeding bird nesting season to avoid inadvertent removal of active
nests (i.e., nesting adults, young, or eggs). If clearing is required
during nesting season, GER shall consult with OEA and USFWS on
appropriate nest survey methods for that area prior to any clearing or
construction activities.
[FR Doc. 2026-08098 Filed 4-23-26; 8:45 am]
BILLING CODE 4915-01-P