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October 03, 2012
NEPA exclusion for transportation emergencies

In conformance with a requirement included in transportation legislation signed by President Obama on July 6, 2012, two federal agencies are proposing to amend a key categorical exclusion (CE) under the National Environmental Policy Act (NEPA) for emergency repair or construction of roads and bridges.

NEPA requires that federal agencies prepare environmental assessments (EAs) or far more complex environmental impact statements (EISs) for any federal undertaking that may affect the environment.  However, the undertaking may be categorically excluded from an EA or EIS if it meets certain criteria that a federal agency has previously determined as having no significant environmental impact.  Agencies develop lists of actions that are normally categorically excluded from environmental evaluation under their NEPA regulations.

MAP-21

The proposal would amend the current CE in the Federal Highway Administration (FHWA) regulations. The CE excludes emergency repairs made during and immediately following a disaster to restore essential traffic, minimize the extent of the damage, or protect the remaining facilities provided the work is not intended for bridges that have been permanently closed to vehicular traffic because of imminent danger of collapse due to a structural deficiency or physical deterioration (as specified in 23 USC 125–Emergency Relief).

The proposed amendment responds to the Moving Ahead for Progress in the 21st Century Act (MAP-21), which contains a new requirement that the FHWA and the Federal Transit Association (FTA) publish a proposal to issue a CE for the repair or reconstruction of any road, highway, or bridge damaged by an emergency that is either:

  • Declared by the governor of the state and concurred with by the Secretary of Transportation, or
  • Declared by the president under the Stafford Act if such repair or reconstruction activity is in the same location with the same capacity, dimensions, and design as the original road, highway, or bridge as before the declaration and is commenced within a 2-year period beginning on the date of the declaration.

Possible CE expansion

The FHWA and FTA are also seeking public comments on possibly expanding the emergency CE (23 CFR 771.117(c)(9)) to include activities that in some cases might be outside the scope of the exclusion.  Such activities include construction of engineering and design changes to a damaged facility to meet current design standards and construction of engineering and design changes to deal with future extreme weather events and sea level rise.

Periodic reviews

Public comment is also being sought by the agencies regarding MAP-21 Section 1315(b), which requires the transportation agencies to conserve federal resources and protect public safety and health by conducting periodic evaluations to determine whether there are reasonable alternatives to roads, highways, or bridges that repeatedly require repair and reconstruction.  There are no equivalent requirements to perform such reviews in existing FHWA/FTA environmental regulations.  The transportation agencies state that they will use public input to address the Section 1315(b) provision in separate rulemaking.

The FHWA/FTA proposal was published in the October 1, 2012, FR.

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