FHWA and FTA Issue New Guidance On MAP-21 Exclusions

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On July 6, 2012 President Obama signed into law MAP-21, which, among other things, contained new National Environmental Policy Act ("NEPA") requirements for the Federal Transit Administration ("FTA") and Federal Highway Administration ("FHWA").  Earlier this month, pursuant to a mandate in MAP-21, FTA and FHWA adopted new regulations governing the implementation of two new categorical exclusions.  The two new categorical exclusions apply to (1) projects within an existing right-of-way, and (2) projects receiving limited Federal funding.  

NEPA is the Federal equivalent to the California Environmental Quality Act (CEQA).  The benefit of qualifying for one of these two new categorical exclusions is that the FTA and FHWA will not require the preparation of an environmental assessment or environmental impact statement, both of which often require a great deal of time and money.  Of particular note, the regulations state that the categorical exclusion for projects within an existing right-of-way does not apply to "construction of a project in an undeveloped area simply because the real property interests were previously acquired," because the "use of the modifier 'existing' to describe the operational right-of-way means that a transportation facility must already exist at the location where the proposed project will be built."  The regulations detail a number of other important nuances and caveats, so be sure to consult the regulations (or better yet, your NEPA expert) before you assume that a project qualifies for one of these new categorical exclusions.