FTA And FHWA Issue New MAP-21 Guidance That Could Penalize Wildlife Agencies

by Nossaman LLP
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The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or environmental assessment for a "highway project, public transportation capital project, or multimodal project," any other Federal agency that has the authority to issue or deny a permit, license, or other approval related to the project shall act by:  "(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and (II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969."  23 U.S.C. 139(h)(6)(B)(i)(I) and (II).  Further, if the Federal agency fails to act within this time period, MAP-21 authorizes the rescission of federal funds from the delinquent Federal agency.  23 U.S.C. 139(h)(6)(B)(i).  Depending on the type of project, and subject to certain caps, the penalty could amount to as much as $20,000 per week for each week until a final decision is made.  

On March 28, 2014, the FTA and FHWA issued a joint guidance document interpreting the penalty provisions described above.  Notably, the joint guidance document states that the penalty provisions apply to, among other decisions, "determinations, concurrences, and other information that concludes an informal or formal consultation process [under the Endangered Species Act] that is necessary in order for a project to proceed."  Thus, at first blush, it appears that the penalty provision might finally spur the Federal wildlife agencies to complete their formal section 7 consultations in a somewhat timely manner (while the Endangered Species Act establishes a 135-day deadline for completion of formal section 7 consultations, the Federal wildlife agencies routinely fail to meet this statutory time period).  However, the joint guidance document also provides a get out of jail free card. 

As explained in the joint guidance document, the 180-day clock will not begin until the Federal agency confirms receipt of a "complete" application or formal request.  And, the FTA and FHWA have decided to leave the Federal agency with the "responsibility to make the determination of whether an application or formal request for a permit, license, or other approval is complete and track the 180-day period for their review."  Thus, as explained in the joint guidance document, a Federal agency can avoid any penalties if it deems the application or formal request incomplete, and provides the FTA or FHWA with a similar notification.  As explained in the joint guidance document, a Federal agency can also stop the clock, even if it has received a complete application, if it "routinely requests additional information from the applicant as it progresses through its review."  In this situation, the 180-day clock would not start again until the Federal agency confirms receipt of the additional information.

The joint guidance document also explains that a Federal agency can avoid penalties by requesting a "no-fault certification" demonstrating that the agency is not able to render a decision because it has not received necessary information from another agency, or there is significant new information or circumstances that require additional analysis. 

In light of the budget cuts already impacting a number of Federal agencies (e.g., EPA, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers), the ability to avoid weekly penalties of up to $20,000 by simply requesting additional information may be too tantalizing to pass up.  And, if that is the case, do the penalty provisions actually expedite the necessary review or slow it down?  

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