Section 6002 establishes a 180-day statute of limitations (SOL) on claims against USDOT and other Federal agencies for certain environmental and other approval actions. The SOL established by SAFETEA-LU applies to a permit, license, or approval action by a Federal agency if:
If no SOL notice is published, the period for filing claims is not shortened from what is provided by other parts of Federal law. If other Federal laws do not specify a statute of limitations, then a 6-year claims period applies.
Because FHWA and FTA programs differ, FHWA and FTA have developed slightly different processes for implementing the Section 6002 SOL provision. Part A of this Section 3 covers the FHWA process, and Part B covers the FTA process. Appendix E, which contains detailed guidance on implementing the SOL provisions, applies only to FHWA and projects for which it is the Federal lead agency.
The Federal lead agencies expect to handle the publication of all SOL notices under Section 6002. On intermodal projects, FHWA and FTA typically will issues separate SOL notices. However, on a case-by-case basis, the notices may be combined for efficiency purposes or other reasons.
Despite the differences in the implementation procedures between the FTA and FHWA, the agencies stress that they interpret the scope and intent of the SAFETEA-LU SOL provision in the same way and that their implementation decisions are based solely on administrative differences between the FTA and FHWA programs.
PART A: FHWA Process for Implementing the Statute of Limitations
This FHWA portion of the SOL guidance discusses publication of SOL notices for Federal agency actions on Federal-aid highway projects. The information is based on current perspectives on the law and its administration. As experience with the application of the law provides new insights or presents new issues, FHWA will update its guidance on implementation of the SOL provision in SAFETEA-LU.
The SOL provision is intended to expedite the resolution of issues affecting transportation projects. Whether a SOL notice is needed or is the best way to achieve such resolution on a project is a risk management decision. A determination should include consideration of the nature of the Federal laws under which decisions were made for the project, the actual risk of litigation, and the potential effects if litigation were to occur several years after the FHWA NEPA decision or other Federal agency decisions. A SOL notice can be used for a highway project regardless of the category of documentation used under NEPA. FHWA anticipates that it will publish notices for most EIS projects and many EA projects. FHWA does not expect SOL notices to be used for projects that are CEs under 23 CFR 771.117(c). FHWA anticipates that the notice may be appropriate for documented CE projects under 23 CFR.771.117(d).
FHWA encourages efforts to help stakeholders and the public to understand this change in the law. For that reason, FHWA believes that it would be useful to include a statement summarizing the SOL provision in future NEPA documents (See Appendix E, Question E-23).
Detailed guidance on FHWA SOL notices is contained in Appendix E. This guidance replaces interim guidance issued by FHWA on December 1, 2005. This guidance includes sample forms and examples to assist the FHWA Division Offices in preparing notices for FR publication (Appendix E). FHWA recommends that the Division Offices coordinate with FHWA field counsel when preparing the notices.
Part B: FTA Process for Implementing the Statute of Limitations
To implement this provision, FTA intends to use rolling publication of FR notices announcing its environmental approvals. When a ROD, FONSI, separate Section 4(f) determination, or other final environmental approval is signed by an FTA Regional Administrator, copies will be transmitted to the project sponsor and to the FTA Office of Planning and Environment (TPE). TPE will notify all FTA regional offices of the impending FR publication of a NEPA SOL notice. If any FTA regional office indicates that another environmental approval action is expected within one week to 10 days, FR publication of the SOL notice will be postponed in order to include the forthcoming environmental approval in the notice; otherwise, the SOL notice for the one approval action will be processed immediately.
In addition, FTA or the project sponsor will post the FTA approval document (ROD, FONSI, etc.), including any attachments, on the Internet. The FR notice will direct any interested party to the web site where the FTA approval document of interest is posted. The FR notice also will name an FTA contact person who can provide a copy of any FTA approval document upon request by a party who does not have Internet access.