/>iThe Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Railroad Administration (FRA) (the Agencies) recently issued updated guidance for implementing 23 U.S.C. § 139 (Section 139). Section 139 contains special procedures and requirements for the environmental review and permitting process for surface transportation and multimodal projects. The new guidance — officially titled “Section 139 Environmental Review Process: Efficient Environmental Reviews for Project Decisionmaking and One Federal Decision” (Guidance) — is effective immediately. The Agencies will accept public comments on the Guidance until February 18, 2025. This article highlights some of its significant features.
Background
Section 139 was first enacted in 2005 as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 139 was innovative as an early effort to improve the efficiency of environmental reviews under the National Environmental Policy Act (NEPA) for highway and transit projects. Aspects of Section 139 later formed the basis for other NEPA streamlining measures such as Title 41 of the Fixing America's Surface Transportation (FAST) Act, President Trump’s since-revoked Executive Order 13807, and the NEPA amendments in the Fiscal Responsibility Act.
The updated Section 139 Guidance is long overdue. FHWA and FTA’s prior version of the Section 139 guidance document was published in 2006. In the ensuing 18 years, Section 139 was amended by multiple surface transportation reauthorization laws (the Moving Ahead for Progress in the 21st Century Act in 2012, the FAST Act in 2015, and the Infrastructure Investment and Jobs Act in 2021); NEPA was amended by the Fiscal Responsibility Act in 2023; and the Agencies (in 2018) and the Council on Environmental Quality (CEQ) (in 2020, 2022, and 2024) revised their regulations implementing NEPA.
Notable Aspects of the New Section 139 Guidance
Applicable Version of Section 139
As noted above, Section 139 was first enacted in 2005 and was amended in 2012, 2015, and 2021. The Guidance clarifies that the applicable version of the statute is the version in effect “at the time the project was initiated (e.g., publication of a notice of intent (NOI) to develop a new environmental impact statement (EIS), or a determination to proceed with an environmental assessment (EA) that will follow the Sec. 139 environmental review process).” For projects undergoing supplemental environmental review, the Guidance states that the applicable version of the statute is the version in effect at the time of the NOI for the supplemental EIS or EA (if a NOI is published) or at the time the project was initiated (if a NOI is not published for the supplemental environmental review). These applicability rules could affect a lead agency’s decision whether to publish an optional NOI for an EA or a supplemental environmental review.
The Guidance states that as a “limited exception” to the general rule described above, a supplemental EIS is exempt from the Section 139 requirements if the original EIS was “under active development” during the eight months prior to August 11, 2005 (the date of SAFETEA-LU’s enactment). The Guidance does not explain the statutory or other legal basis for this exception. This exception is similar to an exception in the prior version of the guidance for “an EIS that was under active development during the 8 months prior to August 11, 2005, and that is being re-scoped due to changes in plans or priorities, even if a revised [NOI] is published.”
As another exception, the Guidance states that FRA will not apply Section 139 to “any railroad project for which the Secretary [of Transportation] approved the funding arrangement under title 49, U.S. Code, before December 4, 2015” (the date of the FAST Act’s enactment). While this exception is consistent with 49 U.S.C. § 24201(e), the Guidance does not acknowledge that this statutory section also covers “any existing environmental review process, program, [or] agreement” for a railroad project as of the date of the FAST Act’s enactment.
Applying Section 139 to Railroad Projects
One of the most notable changes in the Guidance is the addition of FRA as an author and changes throughout the document explaining how FRA will apply Section 139. When initially enacted in 2005, Section 139 applied only to highway and public transportation capital projects; the previous version of the Section 139 guidance was issued only by FHWA and FTA. After the FAST Act was enacted, Section 139 applied to railroad projects “to the greatest extent feasible.” (49 U.S.C. § 24201(a).) The Guidance dispenses with that qualifier, suggesting that Section 139 applies categorically to all railroad and FRA projects.
“Major Project” Determinations
Certain aspects of Section 139 apply only to “major projects,” defined as a project for which (1) multiple permits, approvals, reviews, or studies are required under a federal law other than NEPA; (2) “the project sponsor has identified the reasonable availability of funds sufficient to complete the project;” (3) the project is not a covered project under Title 41 of the FAST Act; and (4) an EIS is required or, if an EA is required, the project sponsor requests that the project be treated as a major project. (23 U.S.C. § 139(a)(7).) The Guidance explains the information that FHWA, FTA, and FRA each will consider to determine whether a project has a reasonable availability of funding. The Guidance states that the federal lead agency will determine whether a project is a major project during project initiation.
Harmonizing Section 139 with the Fiscal Responsibility Act’s NEPA Amendments
The Guidance states that Section 139’s timeframes for major projects “apply in lieu of” the deadlines in NEPA. For major projects, Section 139 requires, “to the maximum extent practicable and consistent with applicable Federal law,” a schedule consistent with an agency average of not more than two years for the completion of the environmental review process for major projects. (23 U.S.C. § 139(g)(1)(B)(iii).) NEPA, as amended by the Fiscal Responsibility Act, establishes deadlines of two years for completion of an EIS and one year for completion of an EA. (42 U.S.C. § 4336a(g).) These two timing provisions are not necessarily irreconcilable. And the Guidance does not address how its interpretation is consistent with 23 U.S.C. § 139(g)(1)(C) (which states that a schedule “shall be consistent with any other relevant time periods established under Federal law) and 23 U.S.C. § 139(k)(2) (which states that nothing in Section 139 “shall be construed as superseding, amending, or modifying” NEPA).
The Guidance states that Section 139’s 200-page limit for an EIS — which applies “notwithstanding any other provision of law” (23 U.S.C. § 139(n)(3)), unlike the schedule provision described above — takes precedence over NEPA’s generally applicable page limits (150 pages, or 300 pages for a proposed action of “extraordinary complexity”).
For other provisions that are not in direct conflict — including those related to lead agency responsibilities, the project’s purpose and need statement, and considerations for using a single environmental document for all federal agency reviews and decisions — the Guidance states that Section 139 “supplements” the requirements in NEPA.
Applicable Page Limits and Deadlines
The Guidance includes two appendices with tables depicting the applicable page limits (Appendix F) and timing requirements (Appendix G) for EAs and EISs based on the date the environmental document was initiated. Curiously, the tables do not reference the 2023 NEPA amendments (which were effective upon enactment on June 3, 2023). And the tables do not recognize that agencies “may apply” CEQ’s current NEPA regulations “to ongoing activities and environmental documents” begun before the effective date of the regulations (July 1, 2024) (40 C.F.R. § 1506.12).
Applicability of Section 139 to Projects Not Having an EIS
Section 139 provides that its project development procedures apply to projects for which an EIS is prepared and “may be applied” to other projects for which an environmental document is prepared “as requested by a project sponsor and to the extent determined appropriate by the Secretary [of Transportation].” (23 U.S.C. § 139(b)(1).) The Guidance states that FHWA will determine whether, and to what extent, to apply the Section 139 process requirements to non-EIS projects “on a project-by-project basis.” The Guidance states that, in general, FRA and FTA will apply the Section 139 process requirements only to EIS projects but may apply them, in whole or in part, to non-EIS projects “depending on the circumstances of the project; these provisions could include the statute of limitations (SOL) on claims or the joint lead agency approach.”
Concurrence Points on Purpose and Need Statement and Alternatives
The Guidance states that lead agencies should, as a “best practice,” obtain written concurrence from cooperating agencies on a draft purpose and need statement and the preliminary range of alternatives before publishing the NOI, as well as later concurrence on the preferred alternative. The Guidance also states that if the purpose and need statement or the range of alternatives are modified “after consideration of the public comments received in response to the publication of the NOI, the Federal lead agency should obtain additional written concurrence from the cooperating agencies prior to publishing the Draft EIS.” While concurrence is a well-intentioned practice, it could result in unnecessary delays in the environmental review process, especially to the extent the Guidance encourages lead agencies to obtain concurrence from cooperating agencies that do not have jurisdiction to issue any authorization for the project.
Pre-NOI Activities
The Guidance encourages lead agencies to conduct significant work before publishing the NOI. This includes identifying and inviting cooperating and participating agencies, soliciting public comment on the draft purpose and need statement and preliminary range of alternatives, obtaining written concurrence from cooperating agencies on a draft purpose and need statement and preliminary range of alternatives, developing a draft coordination plan and project schedule, developing a public involvement plan, determining the extent of environmental analysis needed for each resource, identifying potentially significant environmental issues, and identifying potential mitigation strategies.
Requesting Extensions of Established Schedules or Deadlines
The Guidance states that project applicants may request an extension to a schedule or deadline by submitting a request in writing to the lead agency at least 45 days before the deadline, “explaining the project’s status, explaining why an extension is needed, and providing a proposed updated schedule. The NEPA federal lead agency will determine whether an extension will be granted. A schedule extension should be requested if a project’s schedule is not expected to meet a deadline for completion of the EIS or EA.”
Notices of Statute of Limitations on Claims
The Guidance describes each of the Agencies’ different processes related to publishing notices in the Federal Register to trigger Section 139’s short statute of limitations on claims pursuant to 23 U.S.C. § 139(l) (150 days for highway, transit, and multimodal projects) or 49 U.S.C. § 24201(a)(4) (2 years for railroad projects). (If no such notice is published, NEPA’s generally applicable six-year limitations period would apply.) The Guidance includes an explanation of “risk management factors” that FHWA (but not FTA or FRA) will consider when deciding whether to publish such a notice for a project.
Planning and Environmental Linkages
The Guidance explains how statutory and regulatory authorities allow for transportation planning documents and state environmental review processes to be used during the NEPA process to inform the purpose and need statement, alternatives, description of environmental setting, and identification of environmental impacts and mitigation. The Guidance states that FHWA encourages the use of Planning and Environmental Linkages under the provisions of both 23 U.S.C. § 139(f)(4)(E) and 23 U.S.C. § 168 to the extent practicable, whereas FTA’s preference is to follow the Planning and Environmental Linkages approach in 23 C.F.R. part 450 instead of 23 U.S.C. § 139(f)(4)(E). The Guidance notes that 23 U.S.C. § 139(f)(4)(E) applies to railroad projects and encourages railroad project sponsors to coordinate with FRA on integrating planning (including the Corridor Identification and Development Program) with the NEPA process.
Using Errata Sheets for a Final EIS and Issuing a Combined Final EIS and Record of Decision
The Guidance incorporates, with some changes, many aspects of the Department of Transportation’s “Guidance on the Use of Combined Final Environmental Impact Statements/Records of Decision and Errata Sheets in National Environmental Policy Act Reviews” (Apr. 25, 2019).
Applicability of Section 139 and Guidance to NEPA Assignment States
The Guidance states that Section 139 applies to projects for which a state has assumed the Department of Transportation’s responsibilities under NEPA and other environmental laws pursuant to the Surface Transportation Project Delivery Program under 23 U.S.C. § 327. The Guidance is silent on whether Section 139 applies to projects covered by the more limited categorical exclusion assignment program under 23 U.S.C. § 326. As to the applicability of the Guidance itself to NEPA assignment projects, the Guidance suggests that states participating in the NEPA assignment program “should coordinate with FHWA, FRA, or FTA, as appropriate, regarding the applicability of this guidance.”
Process Charts
The Guidance includes, as Appendix H, two detailed charts depicting a “recommended best practice timeline” for completing the NEPA and permitting processes for EAs and major project EISs. These charts depict how other state and federal agencies’ permitting processes can be coordinated to achieve the timeframes required by NEPA and Section 139.
Next Steps
As an interim final guidance, the Guidance is effective immediately while the Agencies solicit public comments. The deadline to provide comments on the Guidance is February 18, 2025. The Agencies will then make any changes they determine to be appropriate and will issue a final guidance. Notably, this work will occur during the incoming Trump administration, and the final guidance may reflect the priorities of the Agencies’ new leadership.
