Environmental Provisions of the FAST Act

On December 4, 2015, President Obama signed into law the “Fix America’s Surface Transportation Act,” Public Law 114-94 ("FAST Act").  As finally enacted, the FAST Act exceeds 400 pages in length.  This paper reviews those provisions related to the environment.  To facilitate review against other provisions of the FAST Act, the sequence below follows the order in which each item appears in the Act, not the relative importance of each section.  Section numbers refer to sections of the FAST Act.  References to the “Secretary” mean the Secretary of Transportation, unless otherwise specified.  References to the “Department” mean the United States Department of Transportation or US DOT, unless otherwise noted.  The complete FAST Act is at: https://www.congress.gov/114/bills/hr22/BILLS-114hr22enr.pdf

There are numerous and extensive provisions that make changes to the existing sections of the highway and transit laws, as well as provisions that improve the rail environmental review process.  A new agency is established designed to improve environmental processes government-wide.  However, for highway and transit projects, Congress may have missed a number of opportunities to make more aggressive changes that could have resulted in a much more efficient environmental review processes. 

Section 1109.  Surface Transportation Block Grant Program.
This section changes the Surface Transportation Program, 23 U.S.C. §133, into a “block grant program.”  This section is not a true block grant program because it does not clearly assign full responsibility to the states.  For example, the law requires consultation with metropolitan planning organizations (“MPO”) or other local officials.  Nevertheless, an argument may be made that since project selection is now a state responsibility (or a shared responsibility with state, local and MPO officials), that the National Environmental Policy Act of (“NEPA”) does not apply.  There was considerable litigation about this point when block grants were developed for the Community Development Block Grant Program.  However, it is pretty clear that the mere contribution of federal funds is enough to invoke NEPA.  See Ely v. Velde, 497 F.2d 252 (4th Cir. 1974).  Under Section 1109, it is not clear that there are no federal responsibilities once the state selects a project.

Section 1114.  Congestion Mitigation and Air Quality Improvement Program (“CMAQ”)
The amendments to the CMAQ program are rather limited, see 23 U.S.C. §149.  In a number of places, the law was clarified that maintenance areas are also eligible for CMAQ funding.  Some relief was provided for rural PM2.5 nonattainment areas from demonstrating cost effectiveness, and CMAQ eligibility was expanded to include projects to reduce PM2.5 emissions from landside port nonroad and on-road equipment in PM2.5 nonattainment and maintenance areas.

Section 1301.  Satisfaction of Requirements for Certain Historic Sites.
This section contains the amendments to Section 4(f) of the Department of Transportation Act of 1966 (“Section 4(f)”), and, although it largely codifies existing practice, further solidifies the already close relationship between Section 106 of the National Historic Preservation Act of 1966 (“Section 106”) and Section 4(f).  The amendments to 23 U.S.C. §138 and 49 U.S.C. §303 are identical.  The FAST Act adds new subsection (e) which:

1. Charges the Secretary, in consultation with the Secretary of the Interior and the Executive Director of the Advisory Council on Historic Preservation (“ACHP”) to align, to the maximum extent practicable, the requirements of Section 4(f) with the requirements of NEPA and Section 106, including this issuance of regulations (note: as passed the language contains some technical errors).
2. Provides that when the Secretary determines pursuant to a NEPA analysis that there is no feasible and prudent avoidance alternative to a significant historic site, and that determination is concurred in by the State or Tribal Historic Preservation Office (“SHPO/THPO”), the Secretary of the Interior, and the ACHP, then that determination may appear in the record of decision (“ROD”) without the need to prepare a separate Section 4(f) analysis, as is presently the case.  The concurrences must appear in the ROD and be published on a website within three days of receipt all concurrences by the Secretary.  
3. Provides that when there is a finding of no feasible and prudent avoidance alternative concurred in by the SHPO (or THPO), the Secretary of the Interior and the ACHP, then the Secretary may use the Section 106 process to comply with the requirement in Section 4(f) to undertake all possible planning to minimize harm. 

These changes represent only minor changes from existing practice.  The Federal Highway Administration’s (“FHWA”) and Federal Transit Administration’s (“FTA”) NEPA regulations expressly integrate Section 106 procedures already, the Section 4(f) analysis and determination are already made part of the environmental impact statement (“EIS”) or environmental assessment (“EA”), and the mitigation agreement process under Section 106 typically produces a mitigation plan or requirement that corresponds to all possible planning to minimize harm.

Finally, note that Section 1303 of the Act exempts certain common post 1945 bridges and culvers from Section 4(f) protection.

Section 1304.  Efficient Environmental Reviews for Project Decisionmaking.

This section makes a number changes to 23 U.S.C. §139, expanding the breadth of the provision to include all US DOT agencies in the definition of multimodal projects and strengthening a number of measures added to the law by the Moving Ahead for Progress in the 21st Century Act (“MAP-21”).  Thus:

1. Although still focused on highway and transit projects, the section 139 procedures will now apply to multimodal projects, meaning any project that requires approval of more than one operating administration or secretarial office of the Department.  As written, this may not have to have involvement of FHWA or FTA. 
2. Although encouraging the use of programmatic reviews, provisions are added to require transparency and clarity about how programmatic reviews are used and what information they contain, as well as ensuring openness and public comment.  In addition, a rulemaking implementing the provisions related to programmatic reviews is required no later than one year after the enactment of the FAST Act.
3. Greatly strengthens the push to reduce multiple NEPA documents by: 
   a.  Requiring the lead agency to (i) identify other federal and non-federal agencies (i.e., participating agencies) that may have an interest in the project not later than 45 days after the date of publication of a notice of intent to prepare the environmental documentation and (ii) consider and respond to comments received from participating agencies during the environmental review process on matters within the special expertise of those participating agencies;
   b.  Requiring participating agencies to provide comments, responses, studies or methodologies within their areas of special expertise and to use the environmental review process to address any environmental concerns  of the participating agencies; and 
   c.  Directing the lead agency to develop an environmental document sufficient to satisfy the requirements for all federal approvals, actions, and permits to the maximum extent possible, and participating agencies to provide cooperation and timely information to assist the lead agency in the development of the environmental document.
    
4. Imposes specific time frames for response by federal agencies during the project initiation process, such as:
   a.  Requiring written determination (or request for additional information) by the Secretary no later than 45 days after the date on which the project initiation notification is received; an
   b.  Permitting the project sponsor to request an operating administration or secretarial office as the lead agency and requiring the Secretary to respond to such a request not later than 45 days after receipt.
   
   In addition, Section 1304 requires the lead agency to develop an “environmental checklist” to help a project sponsor identify potential natural, cultural, and historic resources in the area of the project.
    
5. Provides additional guidance on the alternatives analysis, including:
   a.  Requiring the lead agency to offer the opportunity for "involvement,"¹ in the alternatives analysis to participating agencies and the public as early as practicable in the environmental review process;
   b.  Requiring that the range of alternatives developed under the alternatives analysis are used for all federal environmental reviews and permits required for the project; and
   c.  Reducing duplication between the alternatives analysis required for compliance with NEPA and any evaluation of alternatives conducted as a part of the metropolitan transportation planning process or under state environmental laws.
6. Requires the lead agency to establish a plan for coordinating public and agency participation in and comment during the environmental review process not later than 90 days after the date of publication of a notice of intent to prepare environmental documentation.
7. Forecloses the opportunity for any issue resolved by the lead agency with concurrence of participating agencies to be reconsidered unless significant new information arises and further defines the financial penalties on federal agencies that do not meet approval dates related to environmental documentation.
8. Clarifies the ability of public entities receiving federal financial assistance to provide funding to federal and state agencies to conduct certain activities related to the environmental review process and requires that the public entity and affected federal and/or state agency enter into an agreement establishing projects and priorities to be addressed by the use of the federal funds.
9. Attempts to accelerate the decisionmaking process by permitting the lead agency to use an errata sheet to respond to minor comments on a final environmental impact statement (“FEIS”) and develop a single document that consist of an FEIS and ROD, unless the FEIS makes substantial changes to the proposed action or there are significant new circumstances relevant to the proposed action or its impacts.
10. Establishes a website where the status and progress of projects requiring environmental documentation is made public, and requires participation from federal agencies and states with delegated authority and encourages participation from state and local agencies.

Section 1305.  Integration of Planning and Environmental Review.
This section rewrites 23 U.S.C. §168 relating to the interplay of the planning process and the environmental review process, specifically:

1. Introduces the idea of the “relevant agency,” which is either the lead agency for a project (as defined in 23 U.S.C. §139(a)) or a cooperating agency with responsibility for environmental permits, approvals, reviews, or studies required under federal law other than NEPA.
2. Permits not only adoption and use of all or a portion of a “planning product” during the environmental review process, but also incorporation by reference of said planning products, which include any decision, analysis, study or other documented information resulting from the metropolitan or statewide transportation planning process.
3. Expands the planning decisions from planning products that may be adopted or incorporated by reference and used in the environmental review process to include the purpose and need for the proposed action and the preliminary screening of alternatives, in addition to the following:

a.  the necessity of tolling, private financing, or other special financial assistance;

b.  the general travel corridor or modal choice;

c.  methodologies for analysis; and

d.  programmatic level mitigation for potential impacts of a project.

Section 1307.  Technical Assistance for States
Section 1307 adds a new subsection to 23 U.S.C. §326 -- State Assumption of Responsibility for Categorical Exclusions--- providing for technical assistance, training and other support.  This clarifies that such support is appropriate.  This section also modifies the procedures for terminating the state assumption by adding a number of procedural steps which must occur prior to actual termination.

Section 1308.  Surface Transportation Project  Delivery Program
This section amends 23 U.S.C. §327 and enhances the oversight and auditing responsibilities of the Secretary over states that have assumed the responsibility for actions required of the Secretary under federal environmental laws.  It also provides that the Secretary may terminate a state for failing to carry out its responsibilities properly.  These provisions give additional authority for provisions already in the state/federal contracts governing the delegation of federal authority. 
The section also provides for training of state officials in order to enhance their capacity to implement the delegation. 

Section 1309.  Program for Eliminating Duplication of Environmental Reviews
This provision adds 23 U.S.C. §330, and establishes a new pilot for up to five states to test whether state environmental law can be substituted for NEPA and related regulations and Executive Orders.  Note that only NEPA, and not additional federal environmental laws, are covered by this pilot.

To be eligible, a state must already be participating in the Surface Transportation Project Delivery Program (23 U.S.C. §327).  This will significantly limit the number of states eligible for this new program.  However, it also ensures that the same agency (the state Department of Transportation, or state DOT) carries out both NEPA and other environmental requirements, albeit with a mixture of state and federal requirements.

For a state to participate in the pilot, it must submit to the Secretary a detailed application describing the state laws, regulations, and financial resources that demonstrate that these are at least as stringent as the federal laws and regulations it seeks to replace.  The state must also have sought public input on its application, and it must explain how it intends to apply its laws and procedures during the pilot. 

The Secretary must receive the concurrence of the Chair of the Council on Environmental Quality (“CEQ”) in order to approve the state application, and, after review, must enter into an agreement with the governor or a top ranking official of the state DOT responsible for construction that sets forth the terms of the pilot. 

In a very unusual provision, federal district court is given exclusive jurisdiction over any civil action against the state challenging compliance with the state environmental laws substituting NEPA laws and regulations under the pilot.  Lawsuits must be brought within two years of publication in the Federal Register of notice of a state license, permit or approval made under the state laws and regulations approved for the pilot.  Note that this is different from approvals made under federal laws, which have 150 day window for filing a similar challenge.  Section 330 also provides for the possibility of a supplemental environmental review, which creates a new two year window for bringing suit. 

The state may provide up to 25 municipalities with the ability to operate local environmental reviews consistent with the state approved procedures.

The Secretary, in consultation with the Chair of CEQ, may terminate a state program at any time after giving notice and an opportunity to correct the issues that led to the possibility of termination. 

Finally, the Secretary is charged with providing a report to Congress within two years of the effective date of Section 330.  The Secretary, in consultation with the Chair of the CEQ, is directed to issue regulations implementing Section 330 within 270 days of the effective date of the Section.  It is not clear that the Secretary has to wait that long before accepting and, if appropriate, approving state applications filed before the issuance of final regulations. 

Section 1310.  Application of Categorical Exclusions for Multimodal Projects.
This section revises the ability initially granted in MAP-21 of a lead authority to apply the categorical exclusions (“CE”) designated by a cooperating authority to a multi-modal project.  Notably:

1. The lead authority may apply CEs designated under NEPA and implementing regulations and procedures of a cooperating authority for a proposed multi-modal project if it:
   a.  Makes a determination, with concurrence of the cooperating authority, on the applicability of the CE and that the multi-modal project satisfies the conditions for a CE under NEPA.
   b.  Follows the implementing regulations of the cooperating authority.
   c.  Determines that the proposed multi-modal project does not have significant impact on the environment, either individually or cumulatively, and does not merit additional analysis or documentation through an EIS or EA due to extraordinary circumstances.
2. A cooperating authority is required to provide expertise to the lead authority on aspects of the multi-modal project for which it has expertise.

Section 1311.  Accelerated Decisionmaking in Environmental Reviews.
A new section is inserted at 49 U.S.C. §304a that broadens a provision of MAP-21 to all programs administered by the Department, accelerating the environmental review process by:

1. Permitting the lead agency to use an errata sheet to respond to minor comments on an FEIS and develop a single document that consists of a FEIS and ROD, unless the FEIS makes substantial changes to the proposed action or there are significant new circumstances relevant to the proposed action or its impacts, in substantially the same way as implemented under Section 1304 of the FAST Act (applying to Title 23).
2. Allowing the Department to adopt and incorporate by reference documents and information to avoid duplication of analyses, including:
   a.  Adopting documents of other operating administrations or secretarial offices within the Department, such as a draft environmental impact statement (“DEIS”), an EA, or an FEIS if the proposed action is substantially the same as the project considered in the document, the operating administration concurs with that decision, and the action is consistent with NEPA.
   b.  Incorporating by reference all or a portion of a DEIS, EA, or FEIS if the incorporated information is cited in source document, is briefly described, is reasonably available for inspection by interested persons with in the time period for review, and does not include proprietary information.

Section 1312. Improving State and Federal Agency Engagement in Environmental Reviews
This section adds 49 U.S.C. §307, a provision already in 23 U.S.C. §139(j) for highway and transit projects.  It allows any recipient of any US DOT funding to transfer funds to federal agencies (including the Department), state agencies, and Indian tribes to facilitate the timely environmental review of projects using US DOT funds.  The agencies receiving funds must use them to accelerate the review of US DOT projects, and sign an agreement with agency that is the recipient of US DOT funding. 

Section 1313.  Aligning Federal Environmental Reviews. 
This Section adds 49 U.S.C. §310, and requires the Secretary, in cooperation with the federal agencies likely to have review and approval responsibilities over US DOT actions, to establish coordinated and concurrent reviews.  This process shall ensure that:

1. The purpose and need and range of alternatives are sufficient to provide agencies with jurisdiction sufficient information to enable concurrent environmental review and permitting.
2. Purpose and need environmental issues are addressed and resolved during the scoping process, and other issues are resolved during the course of preparing the EIS, to enable concurrent reviews and approvals.
3. Issues are resolved in an expedited manner.

Section 1313 also charges the Secretary to create a checklist that provides a list of the agencies with jurisdiction, their responsibilities and requirements, and ensures that US DOT environmental documents address the purpose and need and range of alternatives required by agencies with jurisdiction.  The purpose is to improve coordination with these agencies. 

Finally, this section requires the Secretary to host annual “collaboration sessions” with US DOT agencies and other agencies with jurisdiction over US DOT projects to address areas where interagency collaboration could be improved.  This includes improving working relationships with state and local officials. These collaboration sessions shall also include consultation with state and local officials involved in the permitting and approval of infrastructure projects. 

Section 1314.  Categorical Exclusion for Projects of Limit Federal Assistance.
This section amends existing law by indexing to inflation the project limits for the categorical exclusion of projects receiving limited federal assistance.  See 23 C.F.R. §771.117(b)(23).

Section 1315.  Programmatic Agreement Template.
In Section 1318 of MAP-21, the Department was required to issue a rulemaking adding certain new CEs to the Department’s regulations and to find opportunities to enter into programmatic agreements with states that establish efficient administrative procedures for carrying out environmental and other project reviews.  Section 1315 of the FAST Act provides additional guidance regarding the programmatic agreement template, requiring the Secretary to:

1. Develop a programmatic agreement template that provides for efficient and adequate procedures for evaluating federal CE actions.
2. Use the programmatic agreement template upon request from a state, and modify the template only upon consent of the state.
3. Establish a method to verify that CEs are evaluated and documented consistently by any state that used the template programmatic agreement.
4. Revise the regulations at 23 C.F.R. § 771.117(g) not later than 30 days after the date of enactment to allow a programmatic agreement to include responsibility for CE determinations not only for CEs under 23 C.F.R. § 771.117 (c) and (d), but also under 40 C.F.R. § 1508.4 and identified in the programmatic agreement.

Section 1317.  Modernization of the Environmental Review Process.
This section requires the Secretary to consider the use of current technology to improve the information presented in NEPA documents, including, searchable databases, better mapping and geographic information, integrating fiscal information, and other innovative technologies.  Agencies with jurisdiction should find ways to provide information in a concise format, compatible with US DOT systems (that is, better interagency coordination on technology issues).  Finally, the section requires a report to Congress in one year.

Section 1318.  Assessment of Progress on Accelerating Project Delivery
This section directs the Comptroller General to report to Congress in two years on the effectiveness of the streamlining provisions of this Act, as well as those of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (or, “SAFETEA-LU”) and MAP-21, and make recommendations on the effectiveness of these provisions and on possible additional streamlining measures. 

Section 1415.  Administrative Provisions to Encourage Pollinator Habitat and Forage of Transportation Rights-of-Way.
This section is aimed at encouraging the creation of habitat, forage areas and native plantings that benefit Monarch butterflies, other native pollinators, and honey bees. 

Section 1422.  Emergency Exemptions.
This section puts into law a number of provisions governing procedures applicable to emergencies.  It specifically applies the emergency procedures of the CEQ regulations to highway reconstruction due to emergencies (40 C.F.R. §506.11), requires the application of Environmental Protection Agency’s general permit dealing with stormwater discharge for highway reconstruction projects, and requires the application of emergency projects under 33 C.F.R. §325.2(e)(4) (Section 404 permits), the National Historic Preservation Act, the Endangered Species Act, and other federal environmental laws. 

Section 9001.  National Surface Transportation and Innovative Finance Bureau.
This section creates a new office within the Office of the Secretary of Transportation that centralizes administration of the Department’s credit and innovative finance programs.  It amends Title 49 of the U.S. Code by adding a new Section 116.  Although it is not clear how responsibility for complying with NEPA insofar as credit financed projects will be divided within the Department, the bureau is charged with identifying ways of improving the environmental review and permitting of projects and programs within the scope of its jurisdiction.

Sections 11501 through 11502.  Short Title and Treatment of Improvements to Rail and Transit Under Preservation Requirements.

Sections 11501 and 11502 incorporate the Track, Railroad, and Infrastructure Network Act (“TRAIN Act”) into the statutory schemes at 23 U.S.C. § 138 and 49 U.S.C. § 303.  Specifically, Section 11502:

1. Indicates that improvement to, or the maintenance, rehabilitation, or operation of, railroad or rail transit lines that are in use or were historically used for the transportation of goods or passengers will not be considered a use of an historic site regardless of whether the line is on or eligible for the National Register of Historic Places.
2. Excepts from the exemption above stations and bridges or tunnels located on railroad lines that have been abandoned or transit lines that are not in use.  This language, when read with the language below, is ambiguous but for purposes of this article is interpreted to mean railroad lines that have been abandoned in accordance with Surface Transportation Board regulation and transit lines that are not in, and not intended to return to, use.
3. Clarifies that the exception above does not apply to bridges or tunnels located on railroad or transit lines over which service has been discontinued or that have been railbanked or otherwise reserved for the transportation of goods and services.  As stated above, when read together these provisions of the TRAIN Act are ambiguous.  For purposes of this article, it appears that bridges or tunnels located on railroad or transit lines over which service has been discontinued means a temporary suspension of use of the bridge or tunnel for transportation purposes.

Section 11503.  Efficient Environmental Reviews.
Section 11503 applies to intercity passenger rail, including Amtrak, and:

1. To the extent applicable, applies the project development procedures described in 23 U.S.C. § 139 to any railroad project that requires the approval of the Secretary under NEPA, including:
   a.  Requiring the Secretary to incorporate into agency regulations aspects of project development procedures determined appropriate by the Secretary; but
   b.  Limiting claims arising under federal law seeking judicial review of a permit, license, or approval issued by a federal agency unless they are filed within two years after notice in the Federal Register.
2. Requires the Secretary to survey the use by the Federal Railroad Administration of CEs in transportation projects since 2005, and publish a review of the survey in the Federal Register, not later than six months after enactment of the Passenger Rail Reform and Investment Act of 2015 (“PRRIA”).  It should be noted that PRRIA is included under the rail title of the FAST Act.
3. Not later than one year after the enactment of PRRIA, requires the Secretary to publish a notice of proposed rulemaking proposing new and existing CEs for railroad projects that require the approval of the Secretary and establishing a process for considering new CEs to the extent that the CEs meet the criteria under 40 C.F.R. § 1508.4.

Title XLI – Federal Permitting Improvement
This title addresses ways of improving NEPA review and permitting for large projects (in excess of $200 million).  Most highway and transit projects are excluded, as are certain water resources development projects.  The title is complex, requiring a review of existing processes and the development of proposals to improve those processes.  It establishes the “Federal Permitting Improvement Council,” which is composed of the heads of 13 cabinet departments and agencies.  The Council staff includes an Executive Director appointed by the President.  The Council has the authority to step into the environmental review of projects to facilitate the process.  A full explanation of this extensive new provision is not provided here.  It is worthy of a separate article that explains and explores this new entity properly. 

1.   This is an unusual word at this point in the statute, but other provisions seem to indicate that this, for the public, means an opportunity to comment, although a state might provide more.