Ready For Comment: Transportation Agencies Propose New National Environmental Policy Act Categorical Exclusions

On February 28, 2013, the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) issued a Notice of Proposed Rulemaking (NPR) to provide interested parties with the opportunity to comment on two new Categorical Exclusions (CEs) under the National Environmental Policy Act (NEPA). The new CEs are proposed as required by 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)). Projects that qualify for a CE are excluded from NEPA's requirement to prepare an environmental assessment (EA) or an environmental impact statement (EIS). As required by MAP-21, the NPR proposes CEs for highway and transit projects that:

Occur within an existing operational right-of-way; or Receive less than 5 million dollars of federal funds, or, where the total project cost is less than 30 million dollars, receive federal funds for less than 15 percent of the total project cost. This rulemaking is another step in the implementation of MAP-21 by FHWA and FTA.1 In 2011, the Department of Transportation conducted a review of existing CEs and considered the need for additional CEs in response to Executive Order 13563, "Improving Regulation and Regulatory Review."2 MAP-21 required the FHWA and FTA to conduct a comprehensive review of CE use since 2005 and requests for new CEs and, based on the information gathered in the survey, to propose additional CEs through rulemaking. Based on the environmental provisions of MAP-21, we expect announcements of modified regulations for additional categorical exclusions, as well as programmatic environmental reviews or guidance concerning integration of planning and environmental review, a process for approving and documenting a lead federal agency, a four-year accelerated complex project schedule, and programmatic mitigation plans.

Although MAP-21 promises to streamline the environmental review process for qualifying transportation projects, project proponents will still need to have a big-picture strategy to make their projects a success and take full advantage of the MAP-21 benefits. Venable has extensive experience assisting clients with the development and planning of transportation projects, including integration of technical and legal information and creation of legally defensible project records for agency action. We can assist project proponents in determining whether their projects qualify for...