September 2, 2005
This joint FHWA/FTA interim guidance is intended for the use of FHWA and FTA field offices in working with their State/local planning partners and grantees in implementing SAFETEA-LU. Short summaries of key changes to the statutory requirements for planning and environmental reviews are provided, followed by guidelines for how FHWA Division and FTA Region Offices should administer and oversee highway and transit programs during this TEA-21/SAFETEA-LU transitional period. This interim guidance covers planning, air quality, and environmental requirements that are jointly administered by FHWA and FTA. Additional information and case study examples of the new or changed requirements under SAFETEA-LU will be developed, as appropriate.
FHWA and FTA will be issuing separate interim guidance on SAFETEA-LU provisions and funding programs that each agency will be administering separately.
[Note: Section I of this document has been incorporated into and/or superseded by the FHWA/FTA Final Rule on statewide and metropolitan transportation planning and programming and congestion management processes / systems which was published in the Federal Register on February 14, 2007 and became effective on March 16, 2007. This Final Rule can be accessed at:
HTML version: http://www.gpo.gov/fdsys/pkg/FR-2007-02-14/html/07-493.htm PDF version: http://www.gpo.gov/fdsys/pkg/FR-2007-02-14/pdf/07-493.pdf (394KB).
To view the text which was incorporated into and/or superseded by the FHWA/FTA Final Rule, please go to Superseded Planning Provisions, Section I - ed.]
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Section 6011 - Transportation Conformity: Makes several changes to the transportation conformity process including:
EPA is required to promulgate revised regulations to implement changes not later than 2 years after the enactment of SAFETEA-LU. Although the EPA is required to promulgate a rule, some or all of these provisions may be effective even before the rule is issued. We are working with EPA to develop interim guidance on how to implement these provisions while the rule is being developed. We expect to supplement this guidance document by issuing additional interim guidance in coordination with EPA as soon as possible.
Section 6002 - Efficient Environmental Reviews for Project Decisionmaking: Prescribes a new environmental review process for highway, public transportation capital, and multimodal projects. It is mandatory for EISs and optional for EAs, at the discretion of the Secretary. It specifies changes from current NEPA procedures, including new obligations for a public comment process for project Purpose and Need and for project Alternatives, and requires the development of a coordination plan and schedule that must be provided to all participating agencies and made available to the public. The provision allows States to continue operating under environmental review processes approved by the Secretary under TEA-21 authority. All highway and transit EISs for which the NOI was published after 8/11/05 must follow the new process (except as provided by Section 6002(b), as described below) while highway and transit EISs for which a NOI was published prior to 8/11/05 may continue as "grandfathered" under prior law.
For highway projects only, the FHWA Division and State may wish to transition ongoing EIS projects to the new process, if advantageous to the project, and where they can demonstrate that the new requirements for coordination with agencies and the public have been met through the existing project development process (i.e., interagency merger agreements, public workshops that included early identification of purpose and need and alternatives, etc).
Under Section 6002(b), States have the option of continuing to advance projects under processes "approved" under TEA-21's Section 1309 authority. Please discuss with your State whether or not they would like to continue any such existing environmental review process. In such a case, please request that the State provide FHWA written documentation indicating the intent to follow previously established processes, either as a program or for individual projects. The state should include an explanation as to how the process falls under this provision. This documentation must be sufficient to stand up in court in case of a legal challenge to not following the new 6002 process. You should obtain written Headquarters concurrence before informing a State that they may follow a pre-existing environmental review process for EIS projects in lieu of following the new Section 6002 process. FHWA will be providing more comprehensive guidance on the new process for new and on-going highway EISs, as well as the application of the "existing process" provision within the next 90 days.
For transit projects, FTA does not have any processes specifically approved under TEA-21's section 1309, so the SAFETEA-LU option of grandfathering such processes is not generally helpful. For multimodal highway-transit projects for which FHWA and FTA are co-lead agencies, FTA will make every effort to follow FHWA's lead in complying with this provision. FTA will be providing further guidance on compliance with this provision within the next 90 days. The FTA Regional office and sponsoring transit agency may transition an ongoing transit EIS to the new process, if it is deemed advantageous to the project, and if the new requirements for coordination with agencies and the public have been essentially followed during the project development process up to now. [FTA does not expect any ongoing EISs to meet these conditions, but please contact Joe Ossi in TPE if one does.]
Section 6002 - Statute of Limitations: Creates 23 U.S.C. 139 (l) which, establishes a 180-day statute of limitations on litigation. However, the 180-day clock starts with publication of a notice in the Federal Register that a permit, license or approval action is final. Heretofore, notices regarding RODs and FONSIs have not been published in the Federal Register, so a new process for publication will be required. This provision is effective immediately and may be exercised independently of whether or not the new environmental review process under Section 6002 was followed.
For highway projects, within the next 30 days, HCC will specify a process for publishing notices of the finality of RODs and FONSIs, as well as 404 permits and possibly other Federal actions in the Federal Register, so they can benefit from this provision. It is assumed that most "approvals" (e.g., Section 106 MOAs) will be completed by RODs or FONSIs and a separate notice would not be required, unless there is a substantial lapse of time between the FHWA decision and other federal action, such as subsequent issuance of a U.S. Army Corps of Engineers permit. This provision is discretionary and should be decided on a case-by-case basis, especially for EA/FONSI documents, depending on an assessment of controversy and likelihood for litigation. The standard statute of limitation time frame of 6 years will be used for those projects, approvals or permits that do not publish the Federal Register notice.
Section 6004 - State Assumption of Responsibility for Categorical Exclusions: Allows the Secretary to delegate responsibility for categorical exclusion (CE) determinations to states, subject to criteria to be established by the Secretary. Also allows for delegation of the Secretary's responsibilities for other environmental reviews (e.g., 4(f) of the Department of Transportation Act) for projects classified as CEs. May not include delegation of government-to-government consultation with Federally-recognized Indian tribes. US DOT is to implement this provision through individual MOUs with states, after public notice and comment. Within the next 3-4 months, FHWA and FTA will develop guidance and a template memorandum of understanding (MOU) for FHWA Divisions and FTA Regions to use in carrying out this provision. States may not use this authority for specific projects until an MOU is in place. FHWA Divisions should begin discussing with the State its preferences as to which DOT authorities it wishes to assume under this provision (e.g., CE determination, Section 4(f) approval, coordination under various Federal laws, highway CEs only or both highway and transit CEs, etc.) Our assumption is that most States will want to assume all responsibilities allowed by law for highway projects. If transit projects will also be included, the FTA Regional office must be brought into the discussion. Please note that Section 6004 permits delegation of the specified responsibilities of the Secretary only to the States, not to transit agencies that are not State agencies. FHWA Divisions should discuss the systems and procedures the State will use to assure that the Section 6004 authority is appropriately exercised.
Section 6009 - Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites): The requirements of Section 4(f) of the Department of Transportation Act will be considered satisfied with respect to a Section 4(f) resource if it is determined that a transportation project will have only a "de minimis impact" on the 4(f) resource. The provision allows avoidance, minimization, mitigation and enhancement measures to be considered in making the de minimis determination. The Agencies with jurisdiction must concur in writing with the determination. For historic properties the de minimis criteria are defined as "no adverse affect" or no "historic properties affected" under Section 106 of the National Historic Preservation Act. The de minimis criteria for parks, recreation areas and wildlife and waterfowl refuges were not clearly defined in the law but are generally minor impacts not adversely affecting the activities, features or attributes of the Section 4(f) resource. In addition, Section 6009 requires the Secretary to promulgate regulations within 1 year after the date of enactment to 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. The de minimis provision for historic properties can be applied immediately for those projects in which a draft Section 4(f) evaluation has not been distributed. Section 106 compliance is essential to the de minimis finding and therefore, the assessment of effects should be documented on a property-by-property basis. For parks, recreation areas, wildlife and waterfowl refuges, US DOT will have to issue guidance to allow application of the de minimis provision. The process for developing the guidance is underway and is expected to be complete within one month but is subject to change depending on the need to coordinate with other agencies.
Section 6010 - Environmental Review of Activities that Support Deployment of Intelligent Transportation Systems: Requires the Secretary to initiate rulemaking within 1 year to establish Intelligent Transportation System (ITS) activities as CEs, "to the extent appropriate." This applies to multi-modal ITS projects. Also requires the Secretary to develop a national programmatic agreement for ITS and Section 106 of the National Historic Preservation Act. Most ITS activities already qualify as CEs. FHWA and FTA are not aware of delays in implementing ITS activities due to environmental reviews, including Section 106. Within US DOT, a determination will be needed as to the lead DOT agency for implementing this section, since several DOT agencies have ITS interests and responsibilities.