FTA Revised Environmental Review Process Guidance

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Appendix C – FHWA/FTA Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Review

The Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) are issuing this interim joint guidance on implementing Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Accelerated Decisionmaking in Environmental Reviews. Section 1319(a) provides for the preparation of a Final Environmental Impact Statement (FEIS) by attaching errata sheets to the Draft Environmental Impact Statement (DEIS) if certain conditions are met. In addition, section 1319(b) requires, to the maximum extent practicable, and unless certain conditions exist, that the lead agency will develop a single document that combines the FEIS and Record of Decision (ROD).

The purpose of this interim guidance is to assist FHWA Division and Federal Lands Offices, and FTA Regional Offices in implementation of the Section 1319 provisions, effective on October 1, 2012, for surface transportation projects. This interim guidance applies to FHWA and FTA.⁵ At a later date, FHWA and FTA will conduct a rulemaking to propose revising the joint FHWA and FTA National Environmental Policy Act (NEPA) implementing regulations (23 CFR Part 771) to reflect the changes made as a result of MAP-21.

Section 1319(a) "Final EIS Errata Sheet Approach"
The use of errata sheets attached to the DEIS in-lieu of a traditional FEIS is currently allowed under the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR 1503.4(c)). The language in Section 1319(a) reflects the CEQ regulations and addresses circulation and filing of a FEIS using errata sheets. FHWA guidance on an "abbreviated FEIS" -the term that FHWA uses for the approach of preparing an FEIS using errata sheets—is documented in FHWA Technical Advisory T6640.8A, Section VI, Options for Preparing Final EISs.

Under Section 1319(a), the use of an errata sheet is appropriate when comments received on a DEIS are minor, and the lead agency's responses to those comments are limited to factual corrections or explanations of why the comments do not warrant further response. When applying this provision, FHWA/FTA should include the errata sheets and the information required in an FEIS (described below) in an attachment to the DEIS; this documentation must undergo the legal sufficiency review required by 23 CFR 771.125.

The errata sheets should include, at a minimum, the following information:

1. A list of the factual corrections made to the DEIS with references to the relevant page numbers in the DEIS;

2. A list and explanation of why the DEIS comments do not warrant further FHWA/FTA response in the FEIS, citing the sources, authorities, or reasons that support the position of the agency; and

3. If appropriate, an indication of the specific circumstances that would trigger FHWA/FTA's reappraisal or further response, particularly information that could lead to a re-evaluation (23 CFR 771.129) or supplemental environmental impact statement (23 CFR 771.130).

In addition, the errata sheets should contain a separate section that includes the following information, as outlined in 23 CFR 771.133 and in section VI(C) of FHWA Technical Advisory T6640.8A:

1. Identification of the preferred alternative and a discussion of the reasons why it was selected;
2. Final 23 U.S.C. & § 138/49 U.S.C. & § 303 (Section 4(f)) evaluation, if applicable;
3. Findings, including any on wetlands, floodplains, and section 106 effects, as applicable;
4. List of commitments for mitigation measures for the preferred alternative;
5. Copy or summary of comments received on the DEIS and public hearing and responses (and identification of any coordination activities that have taken place since issuance of the DEIS); and
6. Identification of any other findings to be made in compliance with all applicable environmental laws, regulations, Executive Orders, and other related requirements (with associated agency consultation documentation) where there is reasonable assurance that full compliance will occur after issuance of the FEIS (23 CFR 771.133).

Section 1319(b) "Single Final EIS and ROD Document"
Section 1319(b) directs the lead agency, to the maximum extent practicable, to expeditiously develop a single document that consists of an FEIS and ROD, unless certain conditions exist. Traditionally, and in accordance with the CEQ Regulations (40 CFR 1506.10(b) (2)), FEIS and ROD documents are issued as separate documents with a minimum 30-day period between the FEIS and ROD. Section 1319(b) directs the lead agency, to the maximum extent practicable, to combine the FEIS and ROD into a single document unless: 

1. The FEIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns; or

2. There are significant new circumstances or information relevant to environmental concerns and that bear on the proposed action or the impacts of the proposed action.

This provision is applicable to all FHWA/FTA proposed projects for which an FEIS is issued on or after October 1, 2012. Until FHWA and FTA complete a rulemaking including this provision in their NEPA implementing regulations or until final guidance is issued, FHWA Division and Federal Lands Offices and FTA Regional Offices should consult with their respective Headquarters staff prior to implementing the provisions. The applicable requirements for both an FEIS and ROD must be met for issuance of a combined FEIS/ROD document, and all applicable guidance should be followed.⁶ These requirements include that the project must be in the fiscally constrained Metropolitan Transportation Plan (MTP) and Transportation Improvement Program (TIP), or from a fiscally constrained Statewide Transportation Planning Program (STIP) (23 CFR Part 450), and, in air quality nonattainment and maintenance areas, comply with conformity regulations under the Clean Air Act and EPA requirements (42 U.S.C. & § 7506(c) and 40 CFR Part 93).

Whether combining the FEIS and ROD is practicable is a determination specific to the EIS process for a particular proposed project. In light of the statutory purposes of MAP-21 provisions on expediting project delivery, including the section 1319 purpose of accelerating environmental reviews and decisionmaking, FHWA and FTA will consider the facts and circumstances relevant to the EIS process when deciding whether the use of a combined FEIS/ROD process for a particular project is practicable.  This could include consideration of the following:

1. Are there any coordination activities that are more effectively completed after the FEIS is available? For example, if there is a need to develop a more detailed mitigation plan, or if a joint lead or cooperating agency requests separate FEIS and ROD documents in order to accommodate its decisionmaking requirements, then FHWA/FTA may determine that a separate FEIS and ROD provides a more effective and efficient decisionmaking process.

2. Are there any unresolved interagency disagreements over issues that need identification in the FEIS under 23 CFR 771.125(a)(2)? In these situations, it may be necessary to keep the FEIS and ROD as separate documents, so that FHWA/FTA can continue to work towards issue resolution prior to issuance of a ROD.  For example, if the publication of a separate FEIS will sharpen the issues and rationale for a proposed resolution, then separate FEIS and ROD documents will provide FHWA/FTA a better opportunity to resolve such disagreements.

3. Is there a substantial degree of controversy? FHWA/FTA may decide not to combine an FEIS and ROD in these situations if the agencies believe that issuing the FEIS as a separate document could help to resolve the controversy. For example, the opportunity to review additional comments submitted after the FEIS may assist FHWA/FTA to develop additional mitigation commitments that could be included in the ROD to address the controversy.

4. Does the DEIS identify the preferred alternative from among the comparatively evaluated reasonable alternatives?⁷ If the DEIS does not identify the preferred alternative, then FHWA/FTA should provide agencies and the public with an opportunity after issuance of the FEIS for an informed assessment related to impacted resources and environmental concerns of the preferred alternative. Whenever possible, FHWA/FTA should work with project

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⁵ This interim guidance only addresses the applicability of Section 1319 to FHWA and FTA. This interim guidance applies to NEPA reviews of proposed projects, including tiered and programmatic EISs, but does not address NEPA reviews for rulemakings. The content of this interim guidance may be supplemented or superseded at a later date.

⁶For information on these requirements, see 23 CFR Part 771. Additional resources are available online at www.fhwa.dot.gov/environment/ and www.fta.dot.gov/13835_5222.html.

⁷ Pursuant to 40 CFR 1502.14(e), agencies must "identify [their] preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference."

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