The new environmental review process involves many stakeholders through the new "participating agencies" category, including Federal, Local, State, and Tribal agencies.
When President George W. Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) in August 2005, he was not only signing a bill allocating money and resources to specific projects and regions, he was also signing a bill that created a new and improved environmental review process for environmental impact statements (EISs) developed for transportation projects. This new process is intended to promote efficient project management by Federal lead agencies and enhanced opportunities for coordination with the public and other agencies.
To help the staff of Federal, State, and local agencies comprehensively understand the implications of SAFETEA-LU's revisions and additions to transportation law and policy, the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) have prepared joint guidance on SAFETEA-LU's Section 6002 "Efficient Environmental Reviews for Project Decision-making."
This newsletter will explore these changes to the environmental review process established under the National Environmental Policy Act (NEPA), including new roles, responsibilities, deadlines, and limitations. SAFETEA-LU guidance released by the FHWA can be found at http://www.fhwa.dot.gov/environment/. Also, see the February issue for coverage of Sections 6004, 6005, 6007, and 6009.
New Guidelines Explain Significant Changes to the Environmental Review Process
Agencies follow the environmental review process when preparing documents, such as EISs, required for a project under NEPA, or when completing any environmental permit, approval, review, or study required for a project under any Federal law other than NEPA. The purpose of the Section 6002 guidance is to describe what and how things need to be done differently as a result of SAFETEA-LU. This guidance describes:
- The roles of the lead, participating, and cooperating agencies;
- The overall strengthened management role of the Federal lead agency;
- The new requirements for coordinating and scheduling agency reviews;
- The requirement for a coordination plan for public and agency participation during the environmental review process;
- The allowance for a higher level of detail for the identified preferred alternative to develop mitigation or to comply with other environmental laws, if it will not bias the final decision;
- The broadened authority for States to use Federal aid to ensure timely environmental reviews; and
- A process for resolving interagency disagreements.
New Process Defines Roles and Responsibilities to Encourage Participation
The new environmental review process applies to highway projects, as well as public transportation, transportation capital, and multimodal projects. Several new requirements are intended to increase participation. The "participating agencies" category was created to ensure that interested agencies have a chance to comment during specific phases of the environmental review process. Participating agencies can be any Federal, State, Tribal, or local government agency. The participating agencies, along with the public, must have the opportunity to provide input on the project's purpose and need as well as the range of alternatives. The new process also requires a coordination plan to structure the lead agency's interaction with the participating agencies and the public.
Section 6002 Is
Though some of SAFETEA-LU's requirements may take months to implement, Section 6002 took effect immediately after SAFETEA-LU became law. Section 6002 applies to all projects starting on or after August 11, 2005, except as exempted under Section 6002b.
The lead agency must designate the participating agencies and must also collaborate with them on the development of the coordination plan and the methodology to be used for the alternatives analysis.
Lead agencies are also required to have coordination plans for the environmental review process. The purpose of the coordination plan is to structure the lead agency's interaction with the participating agencies and the public. Coordination plans should be developed early in the environmental review process and should outline the points for review and comment by the participating and cooperating agencies, as well as by the public. Prior to the enactment of SAFETEA-LU, FHWA policy required a negotiated schedule for the NEPA process for all EAs and EISs. This policy remains in effect and is further strengthened by SAFETEA-LU.
New Deadlines and Limitations on Agency Reviews
To expedite the resolution of issues that may affect the timeliness of transportation project development, Section 6002 also establishes new time limits on review and comment periods for cooperating and participating agencies as well as the public. Comments on Draft EISs must be submitted within 60 days after publication in the Federal Register. A period of 30 days is to be established for all other comment periods. A different deadline may be extended by the lead agency "for good cause." Section 6002 also establishes a 180-day statute of limitations on litigation of claims. The 180-day time period commences with publication of a notice in the Federal Register for a final permit, license, or approval. This limitation can be applied to all transportation projects, regardless of whether they were developed under Section 6002 or were grandfathered under the former regulations.
FHWA's guidance on SAFETEA-LU's environmental review process should be helpful to anyone planning or participating in the preparation of an EIS under NEPA. It is designed to answer questions about EIS development and the roles of the public and government agencies. This guidance does not supersede any previous guidance or regulations promulgated under NEPA. Section 6002 of SAFETEA-LU does not reduce resource agencies' authority or reduce the public opportunities for comments. It is meant to promote good project management through coordination, scheduling, and early resolution of issues and can result in an efficient and streamlined process.
FHWA and FTA have jointly issued a Notice of Proposed Rulemaking on Statewide and Metropolitan Transportation Planning. This proposes the revision of regulations governing the development of metropolitan transportation plans and programs for urbanized areas, State transportation plans and programs, and the regulations for Congestion Management Systems, and invites public comment. Click here for the complete ruling.
FHWA Office of Project Development
and Environmental Review
400 Seventh Street, SW
Washington, DC 20590