News & Publications

Rail Law Alert No. 4

FTA and FHWA Announce Rule Streamlining NEPA Process

On February 7, 2013, the Federal Transit Administration (FTA) and the Federal Highway Administration (FHWA) jointly published a Final Rule focused on streamlining those agencies’ National Environmental Policy Act (NEPA) processes for approving federally funded transit projects.  Environmental Impact and Related Procedures, 78 Fed. Reg. 8,964 (Feb. 7, 2013).  FTA and FHWA initiated the NEPA streamlining rulemaking process in response to an August 31, 2011, Presidential Memorandum entitled “Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review.”  The Final Rule also responds to Executive Order 13563, which directs administrative agencies to review existing regulations to determine how to improve effectiveness and reduce the burden of compliance.  The Final Rule became effective immediately.

The most significant of the Final Rule’s changes is the establishment of a number of categorical exclusions (CEs) applicable exclusively to FTA-funded projects.  CEs are actions that federal agencies have determined, in fulfilling their NEPA responsibilities, to have no significant individual or cumulative environmental impacts.  An applicant whose project meets the criteria for a categorical exclusion does not need to conduct or document its NEPA review process to the same extent as applicants with projects that do not qualify, resulting in significant time and cost savings.  Previously, CEs for FTA-funded transit projects were listed together with CEs for FHWA-funded road and highway projects under 23 C.F.R. § 771.117.  The Final Rule establishes a separate section, codified at 23 C.F.R. § 771.118, which lists FTA-specific CEs and includes associated procedures that mirror those found in § 771.117 for road and highway projects.  The provisions of 23 C.F.R. § 771.117 will now apply only to FHWA-funded projects.