§ 139. Efficient environmental reviews for project decisionmaking and One Federal Decision

§ 139. Efficient environmental reviews for project decisionmaking and One Federal Decision

(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) Authorization.— The term “authorization” means any environmental license, permit, approval, finding, or other administrative decision related to the environmental review process that is required under Federal law to site, construct, or reconstruct a project.

(3) Environmental document.— The term “environmental document” includes an environmental assessment, finding of no significant impact, notice of intent, environmental impact statement, or record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(4) 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.).

(5) 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 and schedule, including a timetable 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.).

(6) 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.

(7) Major project.—

(A) In general.— The term “major project” means a project for which—

(i) multiple permits, approvals, reviews, or studies are required under a Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(ii) the project sponsor has identified the reasonable availability of funds sufficient to complete the project;

(iii) the project is not a covered project (as defined in section 41001 of the FAST Act (42 U.S.C. 4370m)); and

(iv)

(I) the head of the lead agency has determined that an environmental impact statement is required; or

(II) the head of the lead agency has determined that an environmental assessment is required, and the project sponsor requests that the project be treated as a major project.

(B) Clarification.— In this section, the term “major project” does not have the same meaning as the term “major project” as described in section 106(h).

(8) Multimodal project.— The term “multimodal project” means a project that requires the approval of more than 1 Department of Transportation operating administration or secretarial office.

(9) Project.—

(A) In general.— The term “project” means any highway project, public transportation capital project, or multimodal project that, if implemented as proposed by the project sponsor, would require approval by any operating administration or secretarial office within the Department of Transportation.

(B) Considerations.— In determining whether a project is a project under subparagraph (A), the Secretary shall take into account, if known, any sources of Federal funding or financing identified by the project sponsor, including any discretionary grant, loan, and loan guarantee programs administered by the Department of Transportation.

(10) 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.

(11) 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, including major projects, for which an environmental impact statement is prepared under the National Environmental Policy Act (42 U.S.C. 4321 et seq.) of 1969 and may be applied, as requested by a project sponsor and 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, and any requirements established under this section may be satisfied, for a project, class of projects, or program of projects.

(3) Programmatic compliance.—

(A) In general.— The Secretary shall allow for the use of programmatic approaches to conduct environmental reviews that—

(i) eliminate repetitive discussions of the same issues;

(ii) focus on the actual issues ripe for analyses at each level of review; and

(iii) are consistent with—

(I) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(II) other applicable laws.

(B) Requirements.— In carrying out subparagraph (A), the Secretary shall ensure that programmatic reviews—

(i) promote transparency, including the transparency of—

(I) the analyses and data used in the environmental reviews;

(II) the treatment of any deferred issues raised by agencies or the public; and

(III) the temporal and spatial scales to be used to analyze issues under subclauses (I) and (II);

(ii) use accurate and timely information, including through establishment of—

(I) criteria for determining the general duration of the usefulness of the review; and

(II) a timeline for updating an out-of-date review;

(iii) describe—

(I) the relationship between any programmatic analysis and future tiered analysis; and

(II) the role of the public in the creation of future tiered analysis;

(iv) are available to other relevant Federal and State agencies, Indian tribes, and the public; and

(v) provide notice and public comment opportunities consistent with applicable requirements.

(c) Lead Agencies.—

(1) Federal lead agency.—

(A) In general.— The Department of Transportation, or an operating administration thereof designated by the Secretary, shall be the Federal lead agency in the environmental review process for a project.

(B) Modal administration.— If the project requires approval from more than 1 modal administration within the Department, the Secretary may designate a single modal administration to serve as the Federal lead agency for the Department in the environmental review process for the 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 (42 U.S.C. 4321 et seq.).

(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 (42 U.S.C. 4321 et seq.) 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;

(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 (42 U.S.C. 4321 et seq.) is completed in accordance with this section and applicable Federal law;

(C) to consider and respond to comments received from participating agencies on matters within the special expertise or jurisdiction of those agencies; and

(D) to calculate annually the average time taken by the lead agency to complete all environmental documents for each project during the previous fiscal year.

(7) Process improvements for projects.—

(A) In general.— The Secretary shall review—

(i) existing practices, procedures, rules, regulations, and applicable laws to identify impediments to meeting the requirements applicable to projects under this section; and

(ii) best practices, programmatic agreements, and potential changes to internal departmental procedures that would facilitate an efficient environmental review process for projects.

(B) Consultation.— In conducting the review under subparagraph (A), the Secretary shall consult, as appropriate, with the heads of other Federal agencies that participate in the environmental review process.

(C) Report.— Not later than 2 years after the date of enactment of the Surface Transportation Reauthorization Act of 2021, 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 report that includes—

(i) the results of the review under subparagraph (A); and

(ii) an analysis of whether additional funding would help the Secretary meet the requirements applicable to projects under this section.

(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.— Not later than 45 days after the date of publication of a notice of intent to prepare an environmental impact statement or the initiation of an environmental assessment, the lead agency shall identify 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.—

(A) Requirement.— A participating agency shall comply with the requirements of this section.

(B) Implication.— Designation as a participating agency under this subsection shall not imply that the participating agency—

(i) supports a proposed project; or

(ii) 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 participating agency and cooperating agency shall—

(A) carry out the obligations of that 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 conduct needed analysis or otherwise 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.

(8) Single environmental document.—

(A) In general.— Except as inconsistent with paragraph (7) and except as provided in subparagraph (D), to the maximum extent practicable and consistent with Federal law, all Federal authorizations and reviews for a project shall rely on a single environmental document for each kind of environmental document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under the leadership of the lead agency.

(B) Use of document.—

(i) In general.— To the maximum extent practicable, the lead agency shall develop environmental documents sufficient to satisfy the requirements for any Federal approval or other Federal action required for the project, including authorizations by other Federal agencies.

(ii) Cooperation of participating agencies.— Other participating agencies shall cooperate with the lead agency and provide timely information to help the lead agency carry out this subparagraph.

(C) Treatment as participating and cooperating agencies.— A Federal agency required to make an approval or take an action for a project, as described in subparagraph (B), shall work with the lead agency for the project to ensure that the agency making the approval or taking the action is treated as being both a participating and cooperating agency for the project.

(D) Exceptions.— The lead agency may waive the application of subparagraph (A) with respect to a project if—

(i) the project sponsor requests that agencies issue separate environmental documents;

(ii) the obligations of a cooperating agency or participating agency under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) have already been satisfied with respect to the project; or

(iii) the lead agency determines that reliance on a single environmental document (as described in subparagraph (A)) would not facilitate timely completion of the environmental review process for the project.

(9) Participating agency responsibilities.— An agency participating in the environmental review process under this section shall—

(A) provide comments, responses, studies, or methodologies on those areas within the special expertise or jurisdiction of the agency; and

(B) use the process to address any environmental issues of concern to the agency.

(10) Timely authorizations for major projects.—

(A) Deadline.— Except as provided in subparagraph (C), all authorization decisions necessary for the construction of a major project shall be completed by not later than 90 days after the date of the issuance of a record of decision for the major project.

(B) Detail.— The final environmental impact statement for a major project shall include an adequate level of detail to inform decisions necessary for the role of the participating agencies and cooperating agencies in the environmental review process.

(C) Extension of deadline.— The head of the lead agency may extend the deadline under subparagraph (A) if—

(i) Federal law prohibits the lead agency or another agency from issuing an approval or permit within the period described in that subparagraph;

(ii) the project sponsor requests that the permit or approval follow a different timeline; or

(iii) an extension would facilitate completion of the environmental review and authorization process of the major project.

(e) Project Initiation.—

(1) In general.— The project sponsor shall notify the Secretary of the type of work, termini, length and general location of the proposed project (including any additional information that the project sponsor considers to be important to initiate the process for 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.

(2) Submission of documents.— The project sponsor may satisfy the requirement under paragraph (1) by submitting to the Secretary any relevant documents containing the information described in that paragraph, including a draft notice for publication in the Federal Register announcing the preparation of an environmental review for the project.

(3) Review of application.— Not later than 45 days after the date on which the Secretary receives notification under paragraph (1), the Secretary shall provide to the project sponsor a written response that, as applicable—

(A) describes the determination of the Secretary—

(i) to initiate the environmental review process, including a timeline and an expected date for the publication in the Federal Register of the relevant notice of intent; or

(ii) to decline the application, including an explanation of the reasons for that decision; or

(B) requests additional information, and provides to the project sponsor an accounting regarding what documentation is necessary to initiate the environmental review process.

(4) Request to designate a lead agency.—

(A) In general.— Any project sponsor may submit to the Secretary a request to designate the operating administration or secretarial office within the Department of Transportation with the expertise on the proposed project to serve as the Federal lead agency for the project.

(B) Secretarial action.—