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NEPA Process

Recent Developments

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FHWA Announces MOU with Nebraska for CE Assignment

The Federal Highway Administration has announced the signing of a memorandum of understanding with the Nebraska Department of Transportation to assign certain federal environmental review responsibilities to the state. The MOU outlines how Nebraska DOT will implement the program to assume federal authority under the National Environmental Policy Act. The MOU assigns to the state decisions related to highway projects that fall under categorical exclusions. For more information, link to the announcement. (9-5-18)

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Arizona DOT Pursues NEPA Assignment Authority

The Arizona Department of Transportation (ADOT) has announced its draft application to assume Federal Highway Administration authority to conduct environmental reviews under the National Environmental Policy Act. The agency requests authority over projects that require environmental assessments or environmental impact statements. ADOT currently has responsibility over categorical exclusions through a separate agreement with the FHWA. Alaska, California, Florida, Ohio, Texas, and Utah have already assumed federal authority under the Surface Transportation Project Delivery Program. For more information, link to the announcement and the draft NEPA application. (6-29-18)

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Nebraska DOT Pursues NEPA Assignment Authority

The Nebraska Department of Transportation has announced its intention to pursue assignment of Federal Highway Administration authority to conduct environmental reviews under the National Environmental Policy Act. NDOT is pursuing assignment categorical exclusion authority first, followed by full NEPA assignment. NDOT expects NEPA assignment will help expedite project delivery and provide more flexibility in project decision-making, while preserving environmental quality. NDOT expects to receive CE assignment in 2018 and full NEPA assignment in 2019. More information is available on NDOT’s NEPA assignment web page. (7-6-18)

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CEQ Seeks Input on Updates to NEPA Regulations

The Council on Environmental Quality is seeking input on potential changes to implementing regulations under the National Environmental Policy Act. In an advance notice of proposed rulemaking, CEQ said it is seeking comments on how environmental reviews could be more timely, efficient, and conducted in a concurrent and synchronized manner. CEQ also seeks comments on ways to avoid duplication of effort and ensure optimal interagency coordination, as well as numerous areas regarding the scope of NEPA reviews, regulatory provisions that are obsolete or need to be updated, and those that could be improved with regard to mitigation and other requirements. Comments are due July 20, 2018. For more information, link to the Federal Register notice. (6-26-18)

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Tool To Share State Public Involvement Resources Developed by FHWA

The Federal Highway Administration has developed a reference tool that compiles public involvement-related resources from state transportation agencies. The tool provides information and links to resources from each state transportation department including state long range transportation plans and statewide public involvement plans. The tool also provides links to resources on public involvement under the National Environmental Policy Act, plans for involving those with limited English proficiency, Title VI plans, environmental justice policy statements, and Native American tribal consultation resources. For more information, link to the tool. (5-22-18)

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NEPA Assignment Audit Reports Issued for Florida and Ohio

The Federal Highway Administration has announced draft audit reports for Florida and Ohio under the Surface Transportation Project Delivery Program. The program allows state departments of transportation to assume environmental review responsibilities for federally funded highway projects in the state. One report is the first audit report for the Florida Department of Transportation (FDOT) under a Dec. 14, 2016, memorandum of understanding (MOU). The other is the second annual audit for the Ohio Department of Transportation (ODOT) under an Oct. 15, 2015, MOU. The reports document successful practices related to program management, quality assurance/quality control, legal sufficiency, training, and performance measures. The FDOT report has one finding of noncompliance related to insufficient documentation in project files, and the ODOT report has findings of noncompliance related to required nondisclosure language as well as project-level issues related to public involvement, environmental justice, environmental commitments, and fiscal constraint. For more information, link to the FDOT notice and the ODOT notice. (4-18-18)

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FHWA Issues Instructions on Travel and Land Use Forecasting

The Federal Highway Administration has issued instructions for reviewing travel and land use forecasting elements in documents prepared under the National Environmental Policy Act (NEPA). The instructions provide an overview of why forecasting is important and the relationship between forecasting and the various stages of the NEPA process. The instructions also include concerns, risks, and key points regarding forecasting and the project scoping, purpose and need, the range of alternatives, and effects analyses. In addition, the instructions discuss procedures for handling changes during the NEPA process and how to reevaluate a NEPA decision prior to the next FHWA major approval. The instructions include examples and considerations for FHWA reviewers. The instructions supplement the 2010 Interim Guidance on the Application of Travel and Land Use Forecasting in NEPA and were released along with a frequently asked questions document. For more information, link to the instructions. (2-21-18)

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GAO Report Finds Some Improvement, Data Gaps in NEPA Assignment

A report assessing the use of project streamlining provisions under the National Environmental Policy Act and whether they have accelerated project delivery has been issued by the Government Accountability Office. The report found that, of provisions that mainly created new categorical exclusions, 10 out of 17 of these provisions were used by 30 or more state DOTs and generally sped up projects. The report also found that, of the six states assigned NEPA authority for highway projects, California reported that it has reduced environmental impact statement review time from 16 years to 6 years. However, both California and Texas have faced challenges in establishing baselines, such as how many and which projects to include, and the other four states had not reported results. Additionally, the report found a need for developing evaluation methodologies, including baseline time frames and timeliness measures. For more information, link to the report. (1-30-18)

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Agencies Update Proposal on Environmental Review Procedures

Federal highway, transit, and rail agencies have issued a supplemental proposed rule that would revise the joint FHWA/FTA procedures that implement the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act. The original proposal would revise an exception for park road parkway projects to apply to federal lands transportation facilities, address advance acquisition of real property interests, and expand the emergency actions covered by categorical exclusions. The supplement would add the Federal Railroad Administration to Section 4(f) regulations. The supplement also would update the FHWA/FTA's regulations due to new exceptions created by the Fixing America’s Surface Transportation Act. The agencies also are seeking comments regarding the current FHWA and FTA definition of “existing operational right-of-way” in their respective categorical exclusion sections. Comments are due Nov. 28. For more information, link to the notice. (9-29-17)

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U.S. DOT Proposal Would Allow Use of State Laws Instead of NEPA

Federal highway, transit and rail agencies have proposed a pilot program that would allow up to five states to conduct environmental reviews and make project approval decisions under their own state environmental laws instead of the National Environmental Policy Act (NEPA). Proposed jointly by the Federal Highway Administration, Federal Transit Administration, and Federal Railroad Administration, the program would only apply to states that already have been assigned federal environmental review authority for highway projects. States also must have environmental review laws that are comparable to or more stringent than NEPA. For more information, link to the proposal. (9-28-17)

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TRB Webinar Addresses Ways to Expedite the NEPA Process

The Transportation Research Board has announced a webinar to discuss ways to navigate the National Environmental Policy Act (NEPA) process. The webinar will address how to expedite projects through the NEPA process and whether a project will end up in a lawsuit. The webinar also will address whether a NEPA document will hold up in court and include presentations on what contributes to a project’s inability to obtain expedited NEPA decisions. The webinar is scheduled for Oct. 31, 2017. For more information and to register, link to the announcement.

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