Section 1315 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) legislation signed by the president in July 2012 contains a categorical exclusion (CE) from the environmental review requirements of the National Environmental Policy Act (NEPA) for emergency actions affecting public transportation systems. 

A final rule written by the Federal Highway Administration and the Federal Transit Administration (FHA/FTA) jointly implementing this provision was published in the February 19, 2013, Federal Register, and became effective immediately to help expedite repairs to transit systems in New York and New Jersey that were devastated by Hurricane Sandy.  Transit operations in these two states serve about 40 percent of all transit riders in the country.

Section 1315 was welcomed by many state transportation agencies as well as companies that undertake transportation projects, which are often frustrated by the requirement for NEPA reviews when attempting to obtain federal funding to expeditiously return roads, bridges, and train systems to operation following natural disasters.  However, environmentalists expressed concern about the scope of such a CE and its possible extension to areas that are not sufficiently related to transit to justify an exclusion from environmental reviews.  The FHA/FTA rule attempts to address these concerns.

Same footprint

Section 1315 authorizes the CE for the repair or reconstruction of any road, highway, or bridge that is in operation or under construction when damaged by an emergency declared by the president or by the governor of a state and concurred to by the Secretary of Transportation.  The CE is contingent on the repair/reconstruction meeting two conditions:

• It must be in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration.
• It must be commenced within a 2-year period beginning on the date of the declaration.

Section 1315 also instructs the Secretary of Transportation to develop rules for “reasonable alternatives” to providing federal funding for roads, highways, and bridges that repeatedly require repair and reconstruction activities.  In other words, the rulemaking would need to provide some assurances that the CE would not be used to fund repairs for damage that was not caused or only minimally caused by the disaster. 

Ancillary facilities included

The final FHA/FTA rule allows the CE provided three conditions are met:

• The repair, reconstruction, restoration, retrofitting, or replacement applies to any road, highway, bridge, tunnel, or transit facility (such as a ferry dock or bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes) that is in operation or under construction when damaged.
• The project occurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction).
• The project is commenced within a 2-year period beginning on the date of the declaration.

Unusual circumstances

In the preamble to the rule, the FHA/FTA expanded on the regulatory language in several important ways.  For example:

• The availability of the CE does not exempt the applicability of other environmental requirements such as Section 7 of the Endangered Species Act and Section 404 permitting under the Clean Water Act. 
• As with all other CEs, the Section 1315 CE may not be established if the action normally has significant environmental impacts either individually or cumulatively and may not be applied to a proposed action if there are unusual circumstances.  For example, a CE may not be used if the action induces significant impacts to planned growth or land use for the area; requires the relocation of significant numbers of people; has significant impacts on any natural, cultural, recreational, historic, or other resource; involves significant air, noise, or water quality impacts; or has significant impacts on travel patterns.

Probably the key phrase in the final language is the requirement that the project “substantially conforms to the preexisting design, function, and location as the original”  (emphasis added).  One intent of the phrase is to limit the amount of ground disturbance or resource impact.  For example, the CE would probably not be granted to a project that spills outside the existing right-of-way, at least not without additional environmental review.  But, while not allowing construction of a facility that is substantially different in nature, the phrase also allows for “some deviation” from the original footprint.