On September 19, 2013, the Federal Highway Administration (“FHWA”) and the Federal Transit Administration (“FTA”) jointly issued a Notice of Proposed Rulemaking (“NPRM”) proposing changes to their procedures for implementing the National Environmental Policy Act (“NEPA”) to help streamline project approval.  The NPRM proposes to add new Categorical Exclusions (“CEs”), categories of actions that do not significantly impact the environment and therefore do not require detailed agency environmental review.  The Moving Ahead for Progress in the 21st Century Act (“MAP-21”) directed the Secretary of Transportation to review previous transportation projects and solicit input from the public in order to make NEPA project reviews more efficient.  The NPRM follows MAP-21’s mandate.  Public comments on the NPRM must be received on or before November 18, 2013.

Three of FTA’s proposed new CEs qualify as “(c)-list” CEs (named for the subsection in which they appear, 23 C.F.R. § 771.118(c)), which FTA categorically excludes from detailed review because they almost never involve significant environmental impacts.  The new proposed (c)-list CEs cover: (1) bridge removal and related activities when the removal is completed consistent with and in full compliance with other applicable federal regulations; (2) preventative maintenance; and (3) localized geotechnical and other informational investigations for preliminary design, environmental analysis, and permitting purposes.   FTA has also proposed two new “(d)-list” CEs (found at 23 C.F.R. § 771.118(d)), which qualify for exclusion from agency review upon submission of documentation demonstrating that certain criteria are met and that the action will not result in significant environmental effects.  FTA’s additional (d)-list CEs cover: (1) minor transportation facility realignment for rail safety reasons, and (2) modernization or minor expansions of transit structures and facilities outside existing right-of-way.

FHWA CEs are found at 23 C.F.R. §§ 771.117(c) and (d).  Among the CEs that FHWA proposes is a (c)-list CE that previously appeared as a (d)-list CE to permit construction of a grade separation to replace at-grade railroad crossings or to permit bridge rehabilitation, reconstruction or replacement.  Because under certain conditions such projects may adversely affect the natural and historical environment in a manner inconsistent with a categorical exclusion, FHWA has provided additional requirements under the newly revised 23 C.F.R. § 771.117(e) that would prohibit use of this CE under certain circumstances.  These circumstances include where the project triggers certain impact findings under the National Historic Preservation Act, 23 U.S.C. § 138 or 49 U.S.C. § 303 (“Section 4(f)”), or the Endangered Species Act.