23 U.S.C. § 139 : US Code - Section 139: Efficient environmental reviews for project decisionmaking

Search 23 U.S.C. § 139 : US Code - Section 139: Efficient environmental reviews for project decisionmaking

(a) Definitions. - In this section, the following definitions
apply:
(1) Agency. - The term "agency" means any agency, department,
or other unit of Federal, State, local, or Indian tribal
government.
(2) Environmental impact statement. - The term "environmental
impact statement" means the detailed statement of environmental
impacts required to be prepared under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(3) Environmental review process. -
(A) In general. - The term "environmental review process"
means the process for preparing for a project an environmental
impact statement, environmental assessment, categorical
exclusion, or other document prepared under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(B) Inclusions. - The term "environmental review process"
includes the process for and completion of any environmental
permit, approval, review, or study required for a project under
any Federal law other than the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(4) Lead agency. - The term "lead agency" means the Department
of Transportation and, if applicable, any State or local
governmental entity serving as a joint lead agency pursuant to
this section.
(5) Multimodal project. - The term "multimodal project" means a
project funded, in whole or in part, under this title or chapter
53 of title 49 and involving the participation of more than one
Department of Transportation administration or agency.
(6) Project. - The term "project" means any highway project,
public transportation capital project, or multimodal project that
requires the approval of the Secretary.
(7) Project sponsor. - The term "project sponsor" means the
agency or other entity, including any private or public-private
entity, that seeks approval of the Secretary for a project.
(8) State transportation department. - The term "State
transportation department" means any statewide agency of a State
with responsibility for one or more modes of transportation.
(b) Applicability. -
(1) In general. - The project development procedures in this
section are applicable to all projects for which an environmental
impact statement is prepared under the National Environmental
Policy Act of 1969 and may be applied, to the extent determined
appropriate by the Secretary, to other projects for which an
environmental document is prepared pursuant to such Act.
(2) Flexibility. - Any authorities granted in this section may
be exercised for a project, class of projects, or program of
projects.
(c) Lead Agencies. -
(1) Federal lead agency. - The Department of Transportation
shall be the Federal lead agency in the environmental review
process for a project.
(2) Joint lead agencies. - Nothing in this section precludes
another agency from being a joint lead agency in accordance with
regulations under the National Environmental Policy Act of 1969.
(3) Project sponsor as joint lead agency. - Any project sponsor
that is a State or local governmental entity receiving funds
under this title or chapter 53 of title 49 for the project shall
serve as a joint lead agency with the Department for purposes of
preparing any environmental document under the National
Environmental Policy Act of 1969 and may prepare any such
environmental document required in support of any action or
approval by the Secretary if the Federal lead agency furnishes
guidance in such preparation and independently evaluates such
document and the document is approved and adopted by the
Secretary prior to the Secretary taking any subsequent action or
making any approval based on such document, whether or not the
Secretary's action or approval results in Federal funding.
(4) Ensuring compliance. - The Secretary shall ensure that the
project sponsor complies with all design and mitigation
commitments made jointly by the Secretary and the project sponsor
in any environmental document prepared by the project sponsor in
accordance with this subsection and that such document is
appropriately supplemented if project changes become necessary.
(5) Adoption and use of documents. - Any environmental document
prepared in accordance with this subsection may be adopted or
used by any Federal agency making any approval to the same extent
that such Federal agency could adopt or use a document prepared
by another Federal agency.
(6) Roles and responsibility of lead agency. - With respect to
the environmental review process for any project, the lead agency
shall have authority and responsibility -
(A) to take such actions as are necessary and proper, within
the authority of the lead agency, to facilitate the expeditious
resolution of the environmental review process for the project;
and
(B) to prepare or ensure that any required environmental
impact statement or other document required to be completed
under the National Environmental Policy Act of 1969 is
completed in accordance with this section and applicable
Federal law.
(d) Participating Agencies. -
(1) In general. - The lead agency shall be responsible for
inviting and designating participating agencies in accordance
with this subsection.
(2) Invitation. - The lead agency shall identify, as early as
practicable in the environmental review process for a project,
any other Federal and non-Federal agencies that may have an
interest in the project, and shall invite such agencies to become
participating agencies in the environmental review process for
the project. The invitation shall set a deadline for responses to
be submitted. The deadline may be extended by the lead agency for
good cause.
(3) Federal participating agencies. - Any Federal agency that
is invited by the lead agency to participate in the environmental
review process for a project shall be designated as a
participating agency by the lead agency unless the invited agency
informs the lead agency, in writing, by the deadline specified in
the invitation that the invited agency -
(A) has no jurisdiction or authority with respect to the
project;
(B) has no expertise or information relevant to the project;
and
(C) does not intend to submit comments on the project.
(4) Effect of designation. - Designation as a participating
agency under this subsection shall not imply that the
participating agency -
(A) supports a proposed project; or
(B) has any jurisdiction over, or special expertise with
respect to evaluation of, the project.
(5) Cooperating agency. - A participating agency may also be
designated by a lead agency as a "cooperating agency" under the
regulations contained in part 1500 of title 40, Code of Federal
Regulations.
(6) Designations for categories of projects. - The Secretary
may exercise the authorities granted under this subsection for a
project, class of projects, or program of projects.
(7) Concurrent reviews. - Each Federal agency shall, to the
maximum extent practicable -
(A) carry out obligations of the Federal agency under other
applicable law concurrently, and in conjunction, with the
review required under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), unless doing so would impair the
ability of the Federal agency to carry out those obligations;
and
(B) formulate and implement administrative, policy, and
procedural mechanisms to enable the agency to ensure completion
of the environmental review process in a timely, coordinated,
and environmentally responsible manner.
(e) Project Initiation. - The project sponsor shall notify the
Secretary of the type of work, termini, length and general location
of the proposed project, together with a statement of any Federal
approvals anticipated to be necessary for the proposed project, for
the purpose of informing the Secretary that the environmental
review process should be initiated.
(f) Purpose and Need. -
(1) Participation. - As early as practicable during the
environmental review process, the lead agency shall provide an
opportunity for involvement by participating agencies and the
public in defining the purpose and need for a project.
(2) Definition. - Following participation under paragraph (1),
the lead agency shall define the project's purpose and need for
purposes of any document which the lead agency is responsible for
preparing for the project.
(3) Objectives. - The statement of purpose and need shall
include a clear statement of the objectives that the proposed
action is intended to achieve, which may include -
(A) achieving a transportation objective identified in an
applicable statewide or metropolitan transportation plan;
(B) supporting land use, economic development, or growth
objectives established in applicable Federal, State, local, or
tribal plans; and
(C) serving national defense, national security, or other
national objectives, as established in Federal laws, plans, or
policies.
(4) Alternatives analysis. -
(A) Participation. - As early as practicable during the
environmental review process, the lead agency shall provide an
opportunity for involvement by participating agencies and the
public in determining the range of alternatives to be
considered for a project.
(B) Range of alternatives. - Following participation under
paragraph (1), the lead agency shall determine the range of
alternatives for consideration in any document which the lead
agency is responsible for preparing for the project.
(C) Methodologies. - The lead agency also shall determine, in
collaboration with participating agencies at appropriate times
during the study process, the methodologies to be used and the
level of detail required in the analysis of each alternative
for a project.
(D) Preferred alternative. - At the discretion of the lead
agency, the preferred alternative for a project, after being
identified, may be developed to a higher level of detail than
other alternatives in order to facilitate the development of
mitigation measures or concurrent compliance with other
applicable laws if the lead agency determines that the
development of such higher level of detail will not prevent the
lead agency from making an impartial decision as to whether to
accept another alternative which is being considered in the
environmental review process.
(g) Coordination and Scheduling. -
(1) Coordination plan. -
(A) In general. - The lead agency shall establish a plan for
coordinating public and agency participation in and comment on
the environmental review process for a project or category of
projects. The coordination plan may be incorporated into a
memorandum of understanding.
(B) Schedule. -
(i) In general. - The lead agency may establish as part of
the coordination plan, after consultation with each
participating agency for the project and with the State in
which the project is located (and, if the State is not the
project sponsor, with the project sponsor), a schedule for
completion of the environmental review process for the
project.
(ii) Factors for consideration. - In establishing the
schedule, the lead agency shall consider factors such as -
(I) the responsibilities of participating agencies under
applicable laws;
(II) resources available to the cooperating agencies;
(III) overall size and complexity of the project;
(IV) the overall schedule for and cost of the project;
and
(V) the sensitivity of the natural and historic resources
that could be affected by the project.
(C) Consistency with other time periods. - A schedule under
subparagraph (B) shall be consistent with any other relevant
time periods established under Federal law.
(D) Modification. - The lead agency may -
(i) lengthen a schedule established under subparagraph (B)
for good cause; and
(ii) shorten a schedule only with the concurrence of the
affected cooperating agencies.
(E) Dissemination. - A copy of a schedule under subparagraph
(B), and of any modifications to the schedule, shall be -
(i) provided to all participating agencies and to the State
transportation department of the State in which the project
is located (and, if the State is not the project sponsor, to
the project sponsor); and
(ii) made available to the public.
(2) Comment deadlines. - The lead agency shall establish the
following deadlines for comment during the environmental review
process for a project:
(A) For comments by agencies and the public on a draft
environmental impact statement, a period of not more than 60
days after publication in the Federal Register of notice of the
date of public availability of such document, unless -
(i) a different deadline is established by agreement of the
lead agency, the project sponsor, and all participating
agencies; or
(ii) the deadline is extended by the lead agency for good
cause.
(B) For all other comment periods established by the lead
agency for agency or public comments in the environmental
review process, a period of no more than 30 days from
availability of the materials on which comment is requested,
unless -
(i) a different deadline is established by agreement of the
lead agency, the project sponsor, and all participating
agencies; or
(ii) the deadline is extended by the lead agency for good
cause.
(3) Deadlines for decisions under other laws. - In any case in
which a decision under any Federal law relating to a project
(including the issuance or denial of a permit or license) is
required to be made by the later of the date that is 180 days
after the date on which the Secretary made all final decisions of
the lead agency with respect to the project, or 180 days after
the date on which an application was submitted for the permit or
license, the Secretary shall submit to the Committee on
Environment and Public Works of the Senate and the Committee on
Transportation and Infrastructure of the House of Representatives
-
(A) as soon as practicable after the 180-day period, an
initial notice of the failure of the Federal agency to make the
decision; and
(B) every 60 days thereafter until such date as all decisions
of the Federal agency relating to the project have been made by
the Federal agency, an additional notice that describes the
number of decisions of the Federal agency that remain
outstanding as of the date of the additional notice.
(4) Involvement of the public. - Nothing in this subsection
shall reduce any time period provided for public comment in the
environmental review process under existing Federal law,
including a regulation.
(h) Issue Identification and Resolution. -
(1) Cooperation. - The lead agency and the participating
agencies shall work cooperatively in accordance with this section
to identify and resolve issues that could delay completion of the
environmental review process or could result in denial of any
approvals required for the project under applicable laws.
(2) Lead agency responsibilities. - The lead agency shall make
information available to the participating agencies as early as
practicable in the environmental review process regarding the
environmental and socioeconomic resources located within the
project area and the general locations of the alternatives under
consideration. Such information may be based on existing data
sources, including geographic information systems mapping.
(3) Participating agency responsibilities. - Based on
information received from the lead agency, participating agencies
shall identify, as early as practicable, any issues of concern
regarding the project's potential environmental or socioeconomic
impacts. In this paragraph, issues of concern include any issues
that could substantially delay or prevent an agency from granting
a permit or other approval that is needed for the project.
(4) Issue resolution. -
(A) Meeting of participating agencies. - At any time upon
request of a project sponsor or the Governor of a State in
which the project is located, the lead agency shall promptly
convene a meeting with the relevant participating agencies, the
project sponsor, and the Governor (if the meeting was requested
by the Governor) to resolve issues that could delay completion
of the environmental review process or could result in denial
of any approvals required for the project under applicable
laws.
(B) Notice that resolution cannot be achieved. - If a
resolution cannot be achieved within 30 days following such a
meeting and a determination by the lead agency that all
information necessary to resolve the issue has been obtained,
the lead agency shall notify the heads of all participating
agencies, the project sponsor, the Governor, the Committee on
Environment and Public Works of the Senate, the Committee on
Transportation and Infrastructure of the House of
Representatives, and the Council on Environmental Quality, and
shall publish such notification in the Federal Register.
(i) Performance Measurement. - The Secretary shall establish a
program to measure and report on progress toward improving and
expediting the planning and environmental review process.
(j) Assistance to Affected State and Federal Agencies. -
(1) In general. - For a project that is subject to the
environmental review process established under this section and
for which funds are made available to a State under this title or
chapter 53 of title 49, the Secretary may approve a request by
the State to provide funds so made available under this title or
such chapter 53 to affected Federal agencies (including the
Department of Transportation), State agencies, and Indian tribes
participating in the environmental review process for the
projects in that State or participating in a State process that
has been approved by the Secretary for that State. Such funds may
be provided only to support activities that directly and
meaningfully contribute to expediting and improving
transportation project planning and delivery for projects in that
State.
(2) Activities eligible for funding. - Activities for which
funds may be provided under paragraph (1) include transportation
planning activities that precede the initiation of the
environmental review process, dedicated staffing, training of
agency personnel, information gathering and mapping, and
development of programmatic agreements.
(3) Use of federal lands highway funds. - The Secretary may
also use funds made available under section 204 for a project for
the purposes specified in this subsection with respect to the
environmental review process for the project.
(4) Amounts. - Requests under paragraph (1) may be approved
only for the additional amounts that the Secretary determines are
necessary for the Federal agencies, State agencies, or Indian
tribes participating in the environmental review process to meet
the time limits for environmental review.
(5) Condition. - A request under paragraph (1) to expedite time
limits for environmental review may be approved only if such time
limits are less than the customary time necessary for such
review.
(k) Judicial Review and Savings Clause. -
(1) Judicial review. - Except as set forth under subsection
(l), nothing in this section shall affect the reviewability of
any final Federal agency action in a court of the United States
or in the court of any State.
(2) Savings clause. - Nothing in this section shall be
construed as superseding, amending, or modifying the National
Environmental Policy Act of 1969 or any other Federal
environmental statute or affect the responsibility of any Federal
officer to comply with or enforce any such statute.
(3) Limitations. - Nothing in this section shall preempt or
interfere with -
(A) any practice of seeking, considering, or responding to
public comment; or
(B) any power, jurisdiction, responsibility, or authority
that a Federal, State, or local government agency, metropolitan
planning organization, Indian tribe, or project sponsor has
with respect to carrying out a project or any other provisions
of law applicable to projects, plans, or programs.
(l) Limitations on Claims. -
(1) In general. - Notwithstanding any other provision of law, a
claim arising under Federal law seeking judicial review of a
permit, license, or approval issued by a Federal agency for a
highway or public transportation capital project shall be barred
unless it is filed within 180 days after publication of a notice
in the Federal Register announcing that the permit, license, or
approval is final pursuant to the law under which the agency
action is taken, unless a shorter time is specified in the
Federal law pursuant to which judicial review is allowed. Nothing
in this subsection shall create a right to judicial review or
place any limit on filing a claim that a person has violated the
terms of a permit, license, or approval.
(2) New information. - The Secretary shall consider new
information received after the close of a comment period if the
information satisfies the requirements for a supplemental
environmental impact statement under section 771.130 of title 23,
Code of Federal Regulations. The preparation of a supplemental
environmental impact statement when required shall be considered
a separate final agency action and the deadline for filing a
claim for judicial review of such action shall be 180 days after
the date of publication of a notice in the Federal Register
announcing such action.