USDOT Proposes Regulations Allowing States To Assume USDOT Responsibilities For Environmental Review Under NEPA And Other Laws

by Perkins Coie
Contact

On August 30, 2013, the U.S. Department of Transportation (USDOT) proposed regulations for the Surface Transportation Project Delivery Program, a program that allows states to assume federal environmental review authority for highway, public transit and rail transportation projects.[1]  The proposed regulations define the scope of authority that states may assume and outline the application procedures and eligibility requirements.  

The SAFETEA-LU Pilot Program

In 2005, as part of the transportation bill known as SAFETEA-LU, Congress created a pilot program under 23 U.S.C. § 327.[2]  Under this program, five states were allowed to assume the responsibilities of the Federal Highway Administration (FHWA) for compliance with the National Environmental Policy Act (NEPA) and other federal environmental laws.  As a condition of obtaining FHWA’s environmental review responsibilities, the state was required to agree that its decisions pursuant to the program could be challenged in federal court.

As required by SAFETEA-LU, FHWA issued regulations that defined the application requirements for the pilot program.  The regulations were codified in 23 C.F.R Part 773.

Only one state—California—participated in the SAFETEA-LU pilot program.  According to a study prepared by the California Department of Transportation (Caltrans), the pilot program was very successful.  The Caltrans study reported a median time savings of 11.6 months for projects requiring an Environmental Assessment under NEPA, and a remarkable 89.9 months, more than seven years, in time savings for projects requiring an Environmental Impact Statement. [3]  The same study also found significant time savings for other environmental reviews, including a savings of 5.6 months for Section 7 consultation under the Endangered Species Act.    

Expanded Authority in MAP-21

In 2012, as part of the transportation bill known as MAP-21, Congress broadened the scope of the delegation program under 23 U.S.C. § 327.[4]  Key changes included:

  • Making the program permanent, not a pilot.
  • Opening the program to all states.
  • Allowing the USDOT to assign its responsibilities to states not only for highway projects, but also for public transit, rail and multimodal projects. 

MAP-21 also made several other changes, including:

  • A state cannot be required to give up existing flexibility as a condition of assuming USDOT’s responsibilities.
  • A state can terminate its participation with 90 days’ notice to USDOT.
  • A state can use federal funds for attorney fees incurred in defending lawsuits that challenge actions taken by the State under the program.

MAP-21 also required the USDOT to amend the regulations in 23 C.F.R. Part 773, which define the application requirements for the program.

The Proposed Regulations

The proposed regulations were issued jointly by the FHWA, the Federal Transit Administration (FTA), and the Federal Railroad Administration (FRA).  They update existing regulations to reflect the expanded scope of the program under MAP-21.  They address such issues as: the types of projects that can (and cannot) be assigned to a state; the scope of authority that a state may assume; the conditions that must be met for a state to participate in the program; and the required contents of a state application. 

Key details about the proposed regulations include:

  • Which agencies can assign their responsibilities?
    The proposed regulations would allow the assignment of the responsibilities of FHWA, FTA and FRA.
  • Who can assume the responsibilities? 
    Under the statute, USDOT’s responsibilities could be assigned only to a “state.”  “State” would be defined to include “any agency under the direct jurisdiction of the Governor of any of the 50 States or Puerto Rico, or the mayor in the District of Columbia, which is responsible for implementing highway, railroad, public transportation, or multimodal projects eligible for assignment.”  The definition of “state” would exclude “agencies of local governments, transit authorities or commissions under their own board of directors, or State-owned corporations.”  In addition, the proposed regulations would specifically require that the responsibilities of FHWA and FRA be assigned to a state department of transportation (state DOT); FTA’s responsibilities could be assigned to any entity that falls within the definition of “state.”
  • What types of responsibilities can be assigned? 
    The proposed regulations would allow assignment of responsibilities under NEPA and other federal environmental laws, including Section 106 of the National Historic Preservation Act, Section 7 of the Endangered Species Act, and Section 4(f) of the Department of Transportation Act.  The regulations would impose the following restrictions on the types of responsibilities that could be assigned:
    • Responsibilities for compliance with other environmental laws would not be assigned to a state unless a state assumes responsibility for compliance with NEPA.
    • Responsibility for USDOT’s project-level conformity determinations under Section 176(c) of the Clean Air Act could not be assigned to a state.
    • Responsibility for USDOT’s oversight of the transportation planning process requirements under 23 U.S.C. §§ 134 and 135 could not be assigned to a state, nor could USDOT’s responsibilities relating to consultations with Tribal governments.
    • Responsibilities under non-environmental statutes could not be assigned to a state.  As defined in the proposed regulations, these would include USDOT’s responsibilities for approvals of changes to Interstate access, issuance of Buy America waivers, and approval of Interstate and National Highway System design exceptions.

The proposed regulations also recognize that a state can assume USDOT’s environmental responsibilities for compliance with Executive Orders, such as the Executive Orders on wetlands, floodplains and environmental justice.

  • What types of projects can be assigned? 
    The proposed regulations would allow the assignment of USDOT’s responsibilities for highway, transit, rail and multimodal projects.  Responsibility for rail and public transit projects could not be assigned unless a state assumes responsibility for highway projects as well.  The proposed regulations also would place several additional restrictions on assignment:
    • Responsibility could not be assigned to a state for projects that cross state boundaries or that cross, or are located at, international boundaries.
    • Responsibility could not be assigned to a state for projects designated as “high risk” under 23 U.S.C. § 106, although this term is not defined in either the statute or the proposed regulations.  MAP-21 amended 23 U.S.C. § 106 to prohibit FHWA from authorizing states to approve final design plans for “high risk” projects.
    • Responsibility for Federal Lands Highways projects could not be assigned except for projects that are designed and constructed by a state, rather than by FHWA.
  • What responsibilities can be assigned for a multimodal project? 
    The proposed regulations specifically request input on options for defining the types of multimodal projects eligible for assignment to states.  The rulemaking discusses three options, and expresses a preference for Option 1.
    • Option 1: Option 1 would allow assignment of the USDOT’s responsibilities for actions of FHWA, FTA and FRA, but would not allow assignment of the responsibilities of other USDOT agencies, e.g., the Federal Aviation Administration (FAA).  If a multimodal project required FHWA and FAA approval, the state (acting on behalf of FHWA) would work with FAA to complete the required reviews.
    • Option 2: Option 2 is broader than Option 1.  It would allow assignment of any USDOT responsibilities for a multimodal project, including responsibilities for elements other than highway, public transit and rail—e.g., airports, motor carrier safety, ports and pipeline/hazardous materials safety.  USDOT has expressed uncertainty about whether MAP-21 was intended to authorize such assignments.
    • Option 3: Option 3 is narrower than Option 1.  It would allow assignment of USDOT responsibility for multimodal projects only if the state has obtained assignment of USDOT’s responsibilities for all aspects of the project.  For example, if the project involved highway and rail elements, the state could not conduct the environmental review unless the state has assumed responsibilities of both FHWA and FRA for that type of project.  USDOT states that this option would be easier to administer but may be overly restrictive.
  • Can a state assume responsibility for some projects, but not all?  
    Yes.  The statute says that a state can assume NEPA responsibilities for “1 or more” highway, public transit, rail or multimodal projects.  Pursuant to the statute, the proposed regulations would allow a state to assume responsibility for specific projects, or for a class of projects—for example, all highway projects located outside the Interstate System.  The state also could assume responsibility for all projects, except to the extent that USDOT has specifically excluded projects from delegation, e.g., “high risk” projects.
  • Can a state assume responsibility for some types of NEPA documents, but not all?
    No.  The proposed regulations  “would not permit assignment of only select aspects of the NEPA responsibilities (e.g., developing and approving only EAs and FONSIs).”  This provision means that the state would need to accept an agency’s NEPA responsibilities in full for those projects covered by the assignment.
  • Can a state assume responsibility for some other federal environmental laws, but not all? 
    Yes.  The statute allows the state to assume “all or part” of the USDOT’s responsibilities under other environmental laws, if the state has assumed the USDOT’s responsibility for compliance with NEPA.  Pursuant to the statute, the preamble to the proposed regulations states that the state “must seek all NEPA responsibilities, but may seek either all, some, or none of the Secretary’s responsibilities with respect to the other Federal environmental laws.”
  • Can a state be required to give up existing flexibility as a condition of assuming USDOT responsibilities under this program? 
    No.  As amended by MAP-21, the statute provides that “Secretary may not require a State, as a condition of participation in the program, to forego project delivery methods that are otherwise permissible for projects.”  Prior to MAP-21, FHWA had required a state, as a condition of participating in the program, to forego its ability to acquire rights-of-way and conduct final design with state funds prior to completion of NEPA.  Under MAP-21, states cannot be required to give up that flexibility.
  • What conditions must be met before a state can assume USDOT responsibilities?
    The proposed regulations specify several conditions that must be met in order for a state to be eligible to participate in the program, including:
    • The state must “waive sovereign immunity”—that is, accept the jurisdiction of the federal courts, so that lawsuits challenging the state’s compliance with federal laws in making decisions pursuant to the program can be brought in federal court.
    • The state must have in place laws that authorize the state to take actions necessary to carry out the responsibilities it assumes.
    • The state must have in place laws comparable to the federal Freedom of Information Act (FOIA).
    • The state must demonstrate that it has the financial resources necessary to carry out the responsibilities being assumed.
  • What issues are not addressed in the rulemaking? 
    Some aspects of the program are not addressed in the proposed regulations.  For example, the proposed rules do not address:
    • Auditing and monitoring requirements.
    • Contents of the Memorandum of Understanding under which USDOT assigns responsibilities to the state.
    • Responsibilities associated with litigation, including use of federal funds to pay for attorneys fees’ incurred by a state.

Conclusion

Based on California’s successful experience with the pilot program, other states may be interested in participating in the Surface Transportation Project Delivery Program.  Interested states should review the proposed regulations, which address the scope of federal responsibility that may be assigned and summarize the application and eligibility requirements.  Comments on the proposed rule are due on October 29, 2013.  The rulemaking docket is FHWA-2013-0022.[5]

[1] Surface Transportation Project Delivery Program Application Requirements, 78 Fed. Reg. 53,712 (Aug. 30, 2013).

[2] Section 6005, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. Law No. 109-59 (Aug. 10, 2005).

[3] Caltrans, “Median Time Savings for Caltrans Environmental Documents and Coordination Completed under the NEPA Assignment Pilot Program” (table), available on Caltrans website.

[4] Section 1313, Moving Ahead for Progress in the 21st Century Act (MAP-21), P.L. 112-141 (July 6, 2012).

[5] The docket is available at: https://www.federalregister.gov/articles/2013/08/30/2013-20912/surface-transportation-project-delivery-program-application-requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie
Contact
more
less

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.