Federal Transportation Agencies Issue Interim NEPA Guidance

On January 14, 2013, the Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) issued joint guidance for implementing Section 1319 of the new Transportation Bill to streamline the final steps in the National Environmental Policy Act (NEPA) process regarding producing a Final Environmental Impact Statement (FEIS) and issuing the Record of Decision (ROD). Streamlining of the NEPA process for road and rail projects was an essential component of the October 1, 2012 transportation bill, Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. No. 112-141) (to be codified at 42 U.S.C. § 4332(a)).

This new statute amends NEPA, and therefore the law will apply to all federal agencies and any federal action subject to NEPA. The recently issued transportation guidance will be of special interest to transportation agencies and private clients relying upon new or upgraded roads and transit. This new guidance encourages abbreviated FEIS documents, using simple errata sheets and the draft EIS, rather than producing another lengthy document. The guidance also provides criteria for merging the FEIS and the ROD into a single document. Each of these provisions is described within.

The "Abbreviated" or "Errata Sheet" FEIS Approach

MAP-21 encouraged brief FEIS documents to streamline the NEPA process. Currently, the Council on Environmental Quality (CEQ) NEPA implementation regulations (40 C.F.R. 1503.4(c)) allow a Draft EIS (DEIS) to be finalized using an errata sheet rather than producing an FEIS, and FHWA guidance allows for an "abbreviated FEIS." To encourage these streamlined practices, Section 1319(a) of MAP-21 specifies the circumstances where FHWA and FTA may use an errata to a DEIS in lieu of an FEIS. In this manner, disputes over the sufficiency of streamlined NEPA documents should be minimized.

The law provides that the agencies may supplement the DEIS with an errata sheet when the responses to comments are minor and confined to factual corrections or explanation as to why the agency does not need to respond further. The errata must contain a list of the corrections and the DEIS page number for reference, an explanation for the comments that the agencies consider not warranting a further response (including the sources, authorities and reasons for that position), and, where appropriate, information regarding circumstances where the agency may consider a re-evaluation or supplemental EIS. The errata sheet must also...