Environmental Review Toolkit
Accelerating Project Delivery

Successes in Stewardship
Monthly Newsletter
February 2006

Easing the Transition to SAFETEA-LU: FHWA Provides Useful Tools

Photo of Interstate 70 Eisenhower Memorial Tunnel in Colorado.
While new portions of SAFETEA-LU exempt the Interstate System as a whole from historic site status, historically significant elements of the system, such as Interstate 70 Eisenhower Memorial Tunnel in Colorado, may be excluded from the exemption.

One of the largest transportation bills in U.S.history was signed by President George W. Bush on August 10, 2005. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) provides $244.1 billion in funding for highways, highway safety, and transit. To promote more efficient and effective Federal surface transportation programs, SAFETEA-LU addresses transportation issues of national significance — including Environmental Stewardship — while giving State and local transportation decision makers more flexibility to solve transportation problems in their communities.

With this new flexibility comes responsibility; the staff of Federal, State, and local agencies need to understand fully the implications of SAFETEA-LU's revisions and additions to transportation law and policy. To ease this transition, the Federal Highway Administration's (FHWA) Office of Planning, Environment, and Realty is preparing interim SAFETEA-LU guidance, found at http://www.fhwa.dot.gov/hep/legreg.htm.

This month's issue of Successes in Stewardship covers four SAFETEA-LU sections that address transportation planning and project delivery and that are particularly relevant to Environmental Stewardship. These sections include:

  • Section 6004: State Assumption of Responsibility for Categorical Exclusions
  • Section 6005: Surface Transportation Project Delivery Pilot Program
  • Section 6007: Exemption of Interstate System
  • Section 6009: Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites.

Later this year, the newsletter will discuss additional updates, along with new guidance on other relevant SAFETEA-LU sections.

States May Assume Responsibility for Categorical Exclusions

SAFETEA-LU Section 6004 allows the U.S. Department of Transportation (USDOT) to assign to States the responsibility for determining whether or not a project is a categorical exclusion (CE). It also allows States to assume — for projects classified as CEs — some, all, or none of the other Federal responsibilities, such as environmental review, consultation, or other action, but does not assign responsibility for government-to-government consultation.

The assignment of these responsibilities to a State will be governed by a Memorandum of Understanding (MOU), subject to public notice and comment prior to execution. The term of the MOU is for up to three years, after which time it can be renewed. The State's performance of the MOU provisions will be monitored and considered when the MOU is renewed. The USDOT can terminate the entire MOU, terminate any individual responsibility assigned, or exclude a project from the MOU if there is evidence that the State is not meeting the responsibilities assumed in the MOU.

Presently, the MOU template and additional guidance are being drafted, revised, and sent to multiple Federal agencies for comment.

A New Pilot Program for NEPA Delegation

Section 6005 of SAFETEA-LU established a new pilot program for five States (Alaska, California, Ohio, Oklahoma, and Texas), allowing them to apply to USDOT to assume all FHWA environmental responsibilities under the National Environmental Policy Act (NEPA) and other environmental laws (excluding the Clean Air Act and transportation planning requirements). Under this pilot — states may request assignment of FHWA's environmental responsibilities on either a project-specific or programmatic basis.

To become eligible, a State must submit an application demonstrating that it has the financial resources and staffing capability to assume NEPA and other environmental responsibilities. Upon approval, a State must enter into a written agreement with FHWA covering the scope of the assigned authorities and the methods the State intends to employ to fully meet the newly assigned responsibilities. Under the pilot, a State will be fully responsible and legally liable for NEPA and other environmental decisions it makes on projects included within the scope of the assignment. A Notice of Proposed Rulemaking for the application requirements has been prepared and should be published in the Federal Register shortly.

FHWA is also producing guidelines for other aspects of the program where rulemaking is not required. These guidelines, which will be available in May 2006, will cover aspects of the program such as preparing the written agreements, developing performance standards, and planning for the audits which are required to be conducted by FHWA twice a year for the first two years of the assignment and once a year thereafter until the program terminates on August 10, 2011.

Interstate System Exempt from Historic Status

Other Interim Guidance
soon to be released ...


FHWA is updating and issuing SAFETEA-LU guidance regularly. In Summer 2006, Successes in Stewardship will address the pertinent sections of SAFETEA-LU not covered in this issue, including:
  • Section 6001: Environmental Considerations for Planning
  • Section 6002: Project Development Process
  • Section 6010: Environmental Review of ITS Deployments.

This year marks the 50th anniversary of the Dwight D. Eisenhower National System of Interstate and Defense Highways (Interstate System). As the system approached this signigicant milestone, transportation and historic preservation officials recognized its significance and realized that parts of the Interstate System could potentially be considered eligible for inclusion in the National Register of Historic Places (National Register) and therefore be subject to Section 106 and Section 4(f). This new legislation is intended to work in tandem with the Historic Preservation Exemption under Section 106 of the National Historic Preservation Act and Section 4(f) of the Department of Transportation Act of 1966.

Section 6007 is intended to work in tandem with the Historic Preservation Exemption under Section 106 to effectively exclude the vast majority of the Interstate System from review as historic property under both Sections 106 and 4(f). The exemptions do not apply to historically important, distinctive features of the system, such as certain bridges, tunnels, and rest stops of national or extraordinary signifigance. When designated by FHWA, such features will be excluded from the provisions of the exemption.

FHWA is conducting facilitated meetings with each State and preparing a draft list of exclusions to the exemptions. This draft list will then be made available to the public for additional consideration before finalizing the list in June 2006.

Simplifying the Section 4(f) Process

Section 6009 of SAFETEA-LU, which contains the first substantive revision to Section 4(f) of the USDOT Act of 1966, simplifies the approval of projects that have only a de minimis impact on lands that are subject to the provisions of Section 4(f): public parks, recreation lands, wildlife and waterfowl refuges, and historic sites. De minimis impacts related to publicly owned parks, recreation areas, and wildlife and waterfowl refuges are those that do not "adverserly affect the activities, features and attributes" of the Section 4(f) resource. For historic sites, a de minimis impact is defined as a "no adverse effect" or "no historic properties affected" in compliance with Section 106. Under the new provisions, once the USDOT determines that a transportation use of Section 4(f) property results in a de minimis impact, analysis of avoidance alternatives is not required and the Section 4(f) evaluation process is complete.

In addtion to the de minimis impact provison, Section 6009 requires the US DOT to issue regulations that clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives under section 138 of title 23 and section 303 of title 49, United States Code.

Section 6009 also requires the USDOT to examine and report on the effectiveness of the new process three years after its implementation. The study will evaluate:

  1. The implementation processes developed and the resulting efficiencies
  2. The postconstruction effectiveness of any impact mitigation and avoidance commitments adopted as part of projects; and
  3. The number of projects determined to have de minimis impacts.

De minimis guidance is currently available on the FHWA website at http://www.fhwa.dot.gov/hep/guidedeminimis.htm.

Keeping Current on SAFETEA-LU Guidance

The current interim guidance is the first of many SAFETEA-LU resources being developed by FHWA's Office of Planning, Environment, and Realty. In the coming months, more detailed guidance will be released periodically to help make the transition from TEA-21 to SAFETEA-LU smooth and successful. To keep up to date, regularly visit the FHWA SAFETEA-LU website at http://www.fhwa.dot.gov/safetealu/index.htm and the FHWA Office of Planning, Environment, and Realty's SAFETEA-LU information at http://www.fhwa.dot.gov/hep/ under "HEP Topics of Special Interest."

Contact Information

NEPA Pilot:
Ruth Rentch
Office of Project Development
& Environmental Review
400 Seventh Street, SW
Washington, DC 20590
Phone: 202-366-2054

Categorical Exclusions:
Owen Lindauer
Office of Project Development
& Environmental Review
400 Seventh Street, SW
Washington, DC 20590
Phone: (202) 366-2655
4(f) Process
Lamar Smith
Office of Project Development
& Environmental Review
400 Seventh Street, SW
Washington, DC 20590
Phone: 202-366-8994

Interstate Exemption
MaryAnn Naber
Office of Project Development
& Environmental Review
400 Seventh Street, SW
Washington, DC 20590
Phone: (202) 366-2060

SAFETEA-LU News

Section 6007 guidance has recently been released by the FHWA. Section 6007 allows the bulk of the Interstate Highway System to be exempt from consideration as a historic property under Section 4(f). To obtain more information about this or any other guidance released by the FHWA, please visit the FHWA's website on legislation and guidance, http://www.fhwa.dot.gov/hep/legreg.htm.

"Successes in Stewardship" is a Federal Highway Administration newsletter highlighting current environmental streamlining and stewardship practices from around the country. To subscribe, visit the Registration Site, or call 617-494-3137.
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