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MAP-21 MULTIMODAL PROJECTS AND ELIGIBILITY TO USE THE 49 U.S.C § 304 PROCESS

Posted 02/12/2014

This guidance addresses the application of categorical exclusions (CEs) for multimodal projects, as specified in Section 1314 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). It is effective as of October 1, 2012. Section 1314 amends 49 U.S.C. § 304 to create an environmental review process that, under certain conditions, allows one Department of Transportation (DOT) operating administration or agency, the operating authority under 49 USC 304, (OA) to use the CE of another OA. DOT expects this multi-CE process to be used primarily for individual projects, although MAP-21 provides the flexibility to apply it to a group of projects or to a program of projects.

Question 1: What is a multimodal project under 49 U.S.C. § 304?

Answer 1: The term “multimodal project” in 49 U.S.C. § 304 has the same meaning given to the term in 23 U.S.C. § 139(a). A “multimodal project” is a project that involves the participation of more than one Department of Transportation administration or agency and is either fully or partially funded under Title 23, U.S. Code or under Chapter 53 of Title 49, U.S. Code.

Question 2: When is a multimodal project eligible to use the 49 U.S.C. § 304 process?

Answer 2: A multimodal project may be eligible to use the process outlined in 49 U.S.C. § 304 when:

  • The project is funded under a single grant agreement;
  • The project has components that require the expertise or approval of more than one OA or secretarial office to assess the environmental impact of those components;
  • Each component of the project falls under one of the OA’s or the Department’s CEs;
  • The component of the project to be covered by the CE of the cooperating authority has independent utility; and
  • The project is either fully or partially funded under Title 23 or Chapter 53 of Title 49.

Question 3: What does it mean that the authorities granted under 49 U.S.C. § 304 “may be exercised for a multimodal project, class of projects, or program of projects that are carried out under [Title 49]”?

Answer 3: 49 U.S.C. § 304(b) states that “[t]he authorities granted in this section may be exercised for a multimodal project, class of projects, or program of projects that are carried out under [title 49].” The phrases “class of projects” and “program of projects” are not specifically defined in statute, but usually appear in statutory provisions related to environmental review and transportation planning. Under this provision, in addition to multimodal projects, the 49 U.S.C. § 304 process may apply to classes of related multimodal projects and programs of related multimodal projects that routinely require the use of another OA’s CE. Under this section, multimodal projects and classes of projects either fully or partially funded under Title 23 or Chapter 53 of Title 49 are eligible to use the 49 U.S.C. § 304 process. In addition, programs of projects funded under Title 49 are eligible to use the 49 U.S.C. § 304 process.

Question 4: If a project is not eligible to use the 49 U.S.C. § 304 process, what other processes are available for the environmental review of multimodal projects?

Answer 4: For multimodal projects that do not qualify to use the 49 U.S.C. § 304 process outlined here, each involved OA may apply its own CE to its project component that has independent utility or, in the absence of an appropriate CE, an OA should prepare an EA.

LEAD AND COOPERATING AUTHORITIES

Question 5: What is a lead authority?

Answer 5: The lead authority, as defined by 49 U.S.C. § 304(a)(2), is the OA or secretarial office that administers the grant funding and is responsible for the environmental review of the multimodal project. Under the statutory requirements, a lead authority must make the determination that:

  • The components of the project that fall under its expertise satisfy the conditions for a CE under its NEPA implementing regulations or procedures;
  • The proposed project would not individually or cumulatively have a significant impact on the environment; and
  • The proposed project does not involve extraordinary circumstances that would merit additional environmental analysis in an environmental assessment or environmental impact statement.

Question 6: What is a cooperating authority?

Answer 6: A cooperating authority, as defined by 49 U.S.C. § 304(a)(1), is an OA or secretarial office that is not the lead authority, but that has expertise regarding a component of the multimodal project and its potential environmental impacts. The cooperating authority:

  • Provides expertise to the lead authority on aspects of the project on which it has expertise; and
  • Reviews the project on behalf of the lead authority and determines the project component for which the OA is responsible satisfies the conditions for a CE under its NEPA implementing regulations or procedures and Section 304.

Question 7: Do the terms “lead authority” and “cooperating authority” differ from the terms “lead agency” and “cooperating agency” as defined in the CEQ regulations?

Answer 7: Yes. The terms “lead authority and “cooperating authority” have specific meaning in the context of 49 U.S.C. § 304 and differ from the terms “lead agency” and “cooperating agency” as they are used in CEQ’s regulations implementing NEPA. In particular, the terms “lead authority” and “cooperating authority” apply only to DOT OAs and secretarial offices and apply only in the context of the process described in 49 U.S.C. § 304, in which the lead authority may adopt a CE of the cooperating authority if various conditions are met. In contrast, under the CEQ regulations implementing NEPA, a “lead agency” is the agency with primary responsibility for preparing a NEPA document and a “cooperating agency” is a Federal agency other than the lead agency that has jurisdiction by law or special expertise regarding an environmental impact involved in a proposed major Federal action or reasonable alternative. See 40 CFR §§ 1501.5, 1501.6, 1508.5.

Question 8: Does the lead authority have the largest component of the project?

Answer 8: Not necessarily; under the statute, the lead authority must administer the grant agreement.

Question 9: Can State authorities act as lead and cooperating authorities?

Answer 9: Yes. 23 U.S.C. § 327(a)(2) allows for the assignment of certain “responsibilities of the Secretary” to a State, including those responsibilities related to the NEPA process. In addition, under 23 U.S.C. § 326, the Secretary may assign, and States may assume, responsibility for applying CEs. If a State has entered into an agreement with the Secretary to assume such NEPA responsibilities, the State could act as a lead authority or a cooperating authority under 49 U.S.C. § 304, if permissible under the terms of the agreement.

FUNDING

Question 10: Are projects funded with discretionary funding eligible to use the 49 U.S.C. § 304 process?

Answer 10: Yes, discretionary programs would be eligible to use the Section 304 process so long as the projects also receive funding under Title 23 or Chapter 53 of Title 49, in addition to the discretionary funding. 

Question 11: Can private or local funds be used for part of the project?

Answer 11: Yes. Section 304 requires that the multimodal project be “funded under 1 grant agreement administered by the lead authority.” This language allows for the use of other funding sources (e.g., state and local) in addition to DOT funding. This outside funding would not need to be transferred to the Federal Government.

Question 12: Is there a limit to the number of agencies that can be signatories to the grant agreement?

Answer 12: No. 49 U.S.C. § 304 does not limit the number of agencies that may sign a grant agreement.

Question 13: Can a single grant agreement encompass multiple funding sources?

Answer 13: Yes, so long as the project meets the funding requirements specified in 49 U.S.C. § 304 (i.e., full or partial funding under Title 23 or chapter 53 of Title 49).

PROCESS AND COORDINATION

Question 14: Which agency is responsible for performing coordination and implementing CEs and how does this role differ between the lead authority and cooperating authority? What is the general process envisioned by 49 U.S.C. § 304?

Answer 14: The lead authority is responsible for administering the grant as well as for coordination and completion of the environmental review. This includes coordinating the environmental review of project components and any associated permits and other approvals needed for the project to proceed. Once the lead authority identifies an appropriate multimodal project that would qualify under 49 U.S.C. § 304, the lead authority should request the assistance of the appropriate cooperating authority. Under the statute, a cooperating authority “shall provide modal expertise to the lead authority on aspects of the multimodal project in which the cooperating authority has expertise” (emphasis added). While the statute mandates involvement of the cooperating authority, it also provides some flexibility on the degree of involvement. For example, the cooperating authority would also either: (1) carry out the review of the component for which it has expertise (see 49 U.S.C. § 304(d)(2)); or (2) approve the lead authority’s review of the component for which the cooperating authority has expertise (see 49 U.S.C. § 304(c)(4)(B)). In either case, the cooperating authority would concur with the applicability and analysis of its CE and the lead authority would remain responsible for the project as a whole. The lead and cooperating authorities should agree, at the outset of the project, on the level of involvement the cooperating authority will have in the interpretation and application of its CE.

Question 15: What does it mean to have “modal expertise?”

Answer 15: Under 49 U.S.C. § 304, the lead or cooperating authority—whether an OA or a secretarial office—must have “modal expertise” regarding the component of the project for which its CE is being applied. “Modal expertise” exists when the lead or cooperating authority has jurisdiction by law or expertise with respect to the particular component or its potential environmental impacts. Therefore, OST as well as the OAs may have “modal expertise” under this provision.

Question 16: Under (c)(4)(A), does the cooperating authority follow its NEPA implementing procedures or the lead authority’s procedures?

Answer 16: The cooperating authority follows its own NEPA regulations or procedures to determine that a CE applies to the component(s) of the project for which the cooperating authority has modal expertise. When the lead authority is applying the cooperating authority’s CE in consultation with the cooperating authority on a project component (as discussed above), the lead authority will follow the cooperating authority’s NEPA regulations or procedures for that component.

Question 17: How is independent utility determined?

Answer 17: Whether a component of the project has independent utility is determined on a fact-specific basis. The lead authority uses its NEPA implementing regulations or procedures to make this determination in consultation with the cooperating authority.

Question 18: Which Operating Administration determines whether extraordinary circumstances exist?

Answer 18: The OA whose CE applies to a component of a particular multimodal project determines, using its NEPA implementing regulations or procedures, whether there are extraordinary circumstances that merit additional analysis and documentation in an EA or EIS. The lead authority is responsible for determining whether extraordinary circumstances apply to the project as a whole.

Page last modified on February 13, 2014.
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