Section 1305 Efficient Environmental Reviews for Project Decisionmaking under 23 U.S.C. 139 Questions & Answers
Section 1305(a) Flexibility
Question EE-1: What does MAP-21 Section 1305(a) direct the Secretary to do regarding programmatic approaches?
Answer EE-1: MAP-21 Sec. 1305(a) (23 U.S.C. 139(b)(3)) directs the Secretary:
- to initiate a rulemaking to allow for the use of programmatic approaches to conduct environmental reviews, and
- prior to the rulemaking, to consult with relevant Federal, State, and Indian tribal agencies and the public on the appropriate use and scope of the programmatic approaches.
This provision is designed to develop a rule that allows the conduct of environmental reviews that eliminate repetitive discussions of the same issues, focus on the actual issues ripe for analysis at each level of review, and are consistent with NEPA and other applicable laws. Information on opportunities to participate in these activities will be provided in the future.
Question EE-2: What elements should be taken into account in the development of programmatic approaches?
Answer EE-2: Under 23 U.S.C. 139(b)(3)(B)(iii), at a minimum programmatic reviews should:
- Promote transparency, including of the analyses and data used, the treatment of any deferred issues raised by agencies or the public, and the temporal and spatial scales to be used for analysis;
- Use accurate and timely information in the reviews;
- Describe the relationship between programmatic analysis and future tiered analysis;
- Describe the role of the public in the creation of future tiered analysis; and
- Be made available to other relevant Federal and State agencies, Indian tribes, and the public.
Question EE-3: What opportunities for public participation are included in section 1305(a)?
Answer EE-3: The statute requires the Secretary, before initiating the required rulemaking for the use of programmatic approaches to environmental reviews, to consult with the public as well as relevant Federal agencies and State resource agencies, State departments of transportation, and Indian tribes, on the use and scope of programmatic approaches. The law also requires the Secretary to ensure that programmatic reviews describe the role of the public in the creation of future tiered analysis and that programmatic reviews are available to the public. In addition, any proposed rule under this provision must be subject to at least a 60-day notice and comment period.
Section 1305(b) Federal Lead Agency
Question EE-4: Does MAP-21 allow one modal administration to be designated as a Federal Lead Agency for the environmental review process if more than one USDOT administration is involved in a project?
Question Answer EE-4: Yes. Section 1305(b) of MAP-21 amends Section 139(c) of title 23, United States Code and allows the Secretary to designate a single Federal Lead Agency for purposes of environmental review if the project requires approval from more than one modal administration. Currently, the modes follow procedures in USDOT Order 5610.1C (Procedures for Considering Environmental Impacts), which incorporates a referral to CEQ under 40 C.F.R. 1501.5(e) if the agencies are unable to agree through the coordination process.
Question EE-5: What determines which modal administration should be the Federal Lead Agency for the environmental review process?
Answer EE-5: Future guidance, consistent with CEQ NEPA regulations at 40 C.F.R. 1501.5(c), will be issued on the process for approving and documenting the Secretary's designation of a Federal Lead Agency.
Section 1305(c) Participating Agencies
Question EE-6: Does MAP-21 contain provisions that affect participating agencies?
Answer EE-6: Yes. Section 1305(c) of MAP-21 amends 23 U.S.C. 139(d) by:
- Directing participating agencies to comply with the environmental review process requirements in Section 139, as amended by MAP-21;
- Requiring participating and cooperating agencies to carry out their obligations under applicable laws concurrently with the lead agency's environmental review process, unless doing so would impair their ability to conduct needed analysis or otherwise carry out those obligations; and
- Requiring participating and cooperating agencies to formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.
Section 1305(d) Project Initiation
Question EE-7: What is changed by MAP-21 Section 1305 (d) concerning documentation required for project initiation?
Answer EE-7: MAP-21 allows the project sponsor to submit any relevant documents that contain the required information (i.e., the type of work, termini, length, Federal approvals anticipated, and general location of the proposed project), including the draft notice of intent, to satisfy the project initiation requirement. (23 U.S.C. 139(e)(2))
Section 1305(e) Coordination and Schedule
Question EE-8: What is changed by MAP-21 Section 1305(e) relating to the project schedule and the participating agencies?
Answer EE-8: The participating agencies must now concur on the project schedule if a project schedule is included in the project coordination plan. (23 U.S.C. 139(g)(1)(B)(i)
Section 1306 Accelerated Decisionmaking
Question AD-1: How does MAP-21 Section 1306 on accelerated decisionmaking change 23 U.S.C. 139(h) regarding issue identification and resolution?
Answer AD-1: Section 1306 of MAP-21 replaces the SAFETEA-LU language on "Issue Resolution" previously located in 23 U.S.C. 139(h)(4) with three distinct processes: one to accelerate interim decision-making prior to the issuance of a record of decision (new Section 139(h)(4)), another involving a revised issue resolution and referral process (new Section 139(h)(5)), and a third prescribing penalties to Federal agencies for not making decisions within prescribed timelines (new Section 139(h)(6)). USDOT will be developing guidance to address the section 1306 provisions.
Question AD-2: Who can initiate the new 23 U.S.C. 139(h)(5) issue resolution process under MAP-21 Section 1306?
Answer AD-2: A Federal agency with jurisdiction, the lead agency, a project sponsor, or the Governor of a State in which the project is located may request an issue resolution meeting to be conducted by the lead agency.
Question AD-3: Are there other provisions in Section 1306 on accelerating decisionmaking?
Answer AD-3: Yes. New Section 139(h)(7) provides that adequate resources made available under Title 23 shall be devoted to ensuring NEPA reviews are completed on an expeditious basis and that the shortest existing applicable process under NEPA is implemented. The section also requires reports to Congress every 120 days after October 1, 2012 on the status and progress of two groups of projects and activities: (1) those required to prepare an annual financial plan under 23 U.S.C. 106(i); and (2) a sample of not less than 5% of projects requiring an EIS or EA in each State.
Section 1307 Assistance to Affected Federal and State Agencies
Question AD-4: Does MAP-21 still allow Federal funds to be spent for staffing at other Federal agencies?
Answer AD-4: Yes. However, prior to a State agency providing Federal funds for dedicated staffing at an affected Federal agency, the affected Federal agency and the State agency shall enter into a MOU that establishes the projects and priorities to be addressed by the use of the funds. (23 U.S.C. 139(j))
Section 1308 Limitations on Claims
Question AD-5: Has MAP-21 changed the statute of limitations (SOL) for seeking judicial review of project decisions, and when does it become effective?
Answer AD-5: Yes. MAP-21 reduces the amount of time that a party or entity can bring a claim from 180 days to 150 days after publication of a Section 139(l) notice in the Federal Register. The change is effective as of October 1, 2012. Section 139(l) statute of limitations notices that are published in the Federal Register after October 1, 2012, should use the 150-day time limit. (23 U.S.C. 139(l)(1))
Question AD-6: Does MAP-21 modify the way SOL notices are issued?
Answer AD-6: No. With the exception of a shorter SOL timeframe, the considerations and requirements are the same as the previous 180-day SOL notices. All SOL notices published prior to October 1, 2012, must still use the 180-day timeframe established in SAFETEA-LU.
Question AD-7: Can the 150-day SOL be used on a project where the project decisions occurred prior to October 1, 2012, but no SOL notice has been published?
Answer AD-7: Yes. The SOL notice provides the applicable timeframe. If there has not been a SOL notice issued for the project, a 150-day SOL notice can be issued on or after October 1, 2012, for any final agency action, regardless of that action's date, since the publication of the notice initiates the statute of limitations time period.