New Categorical Exclusions
The U.S. Department of Transportation announced a final rule last week regarding Environmental Impact and Related Procedures. This final rule amends the Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) joint procedures that implement the National Environmental Policy Act (NEPA) by adding new categorical exclusions (CE) for projects within an existing operational right-of-way and projects receiving limited Federal funding, as described in sections 1316 and 1317, respectively:
- Projects entirely within an existing operational right-of-way
- Projects under certain funding levels
As of February 12, 2014, grantees may be able to use these two new CEs for FTA-funded projects.
The first new CE (23 C.F.R. 771.118(c)(12)) covers projects that would take place entirely within the existing operational right-of-way (ROW). The Federal Register Notice of the final rule includes some helpful discussion of what those terms mean and can be found here: http://www.gpo.gov/fdsys/pkg/FR-2014-01-13/pdf/2014-00370.pdf. Among other things,
- The ROW must already be disturbed for transportation purposes, or it must be maintained for purposes directly associated with a currently operating facility (for example, drainage areas, clear zones, culverts, rest areas, security buffers, etc.)
- It may include non-contiguous ROW (e.g., associated with transit power substations, off-site mitigation areas, etc.).
- It includes bike and pedestrian facilities and park-and-ride lots as well as traditional ROWs.
- It does not include property that is left over from a previous project and has been set aside for future use, nor property that has been acquired for the proposed project.
The second new CE (23 CFR 771.118(c)(13)) applies to projects that either
- Receive less than $5 million in total Federal funding, or
- Have an estimated cost of not more than $30 million, of which less than 15 percent is federally funded. Projects may not, of course, be segmented in order to meet the funding limits.
Note that under 23 CFR 771.118(c)(2), “any action which normally would be classified as a CE but could involve unusual circumstances will require FTA, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper.” Also, as always, even if the proposed action qualifies for an FTA CE, non-NEPA requirements may still apply under the Clean Water Act, Endangered Species Act, National Historic Preservation Act, Section 4(f), National Historic Preservation Act, or other authorities. These laws may require FTA to gather and analyze information, or to coordinate and consult in ways that are independent of FTA’s NEPA CE determination. Finally, some of these requirements may involve actions by other Federal agencies (such as approvals or issuance of permits) that could trigger a different level of NEPA review for those Federal agencies. These requirements must be met before the action can proceed, regardless of the availability of a CE for the transportation project under 23 CFR Part 771.
FTA is planning a webinar in the next few weeks with additional information. For further information, contact Region 10’s Dan Drais at 206-220-4465 or email email@example.com.