Conference report on h. R. 3, Safe, accountable, flexible, efficient transportation equity act: a legacy for users

   Sec. 6007.

   This section amends section 5214(c) of title 49, U.S.C. to authorize States to enter into compacts or agreements for the purpose of formal planning cooperation and coordination, since some projects are multi-state in nature.

   Sec. 6008.

   This section directs the Secretary to issue regulations that are consistent with the unified transportation planning provisions in this title relating to the Clean Air Act.

   Senate Bill

   Sec. 1501.

   This section amends 23 U.S.C. 134(f) and 135(c) to add factors that may be considered during the transportation planning process. It also gives States and metropolitan planning organizations (MPOs) the flexibility to determine, after soliciting and considering comment from the public, which of the specific factors are most appropriate for the State or metropolitan area to consider. Current language in the statute that bars court review of failure to consider specified planning factors is retained.

   Current law requires the planning process to provide for consideration of projects and strategies that will, among other things, protect and enhance the environment and improve quality of life. The items added by section 1501 provide planners with more direction as to what those concepts mean, but do not constitute a checklist with every item requiring consideration by every State and MPO. Instead, the legislation allows each State and MPO to decide which specific factors are appropriate for consideration. Early identification of potential environmental concerns may help reduce or avoid delays during environmental review. The Secretary is given no authority to review, for purposes of planning certification, the determination of appropriate factors made by a State or MPO.

   Sec. 1502.

   This section amends 23 U.S.C. 134(g) and 135(e) to require MPOs and States to consult with various other agencies when developing the long range transportation plan. Consultation shall include comparison of the transportation plan to conservation plans or maps and inventories of natural or historic resources (if such plans, maps or inventories are available) or consideration of areas where wildlife crossing structures may be needed. The section also requires that the long-range plan include a discussion of potential habitat, hydrological, and environmental mitigation activities that may assist in compensating for loss of habitat, wetlands and other environmental functions, including areas that may have the greatest potential to restore and maintain the habitat types and hydrological and environmental function affected by the plan.

   The requirement for transportation planners to consult with appropriate resource agencies to compare transportation plans with available State conservation plans or maps and available inventories of natural or historic resources, as well as to identify areas where wildlife crossing structures may be needed, will help planners to identify and potentially avoid or minimize impacts of transportation projects on these resources and thereby facilitate more efficient environmental reviews of individual projects.

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However, for various reasons including financial constraints, State conservation plans or maps or inventories of natural or historic resources do not exist for many areas. This legislation does not require the creation of such plans, maps, or inventories. Consideration of areas where wildlife crossing structures may be needed is required only with respect to transportation programs and strategies for the future. A review of the current infrastructure is not required. The discussion of potential mitigation activities and areas in which to carry out those activities is intended to encourage States to think strategically, particularly for habitat and wetlands mitigation. The level of detail of this discussion should correspond to the level of detail contained in the rest of the plan. For example, a conceptual transportation plan may, but is not required to, include specific size or location details that would generally be determined during the environmental review stage.

   Sec. 1504.

   This section amends 23 U.S.C. 134(g) and 135(e) to provide that States and MPOs improve public involvement in the planning process. To the maximum extent practicable, States and MPOs shall hold any public meetings at convenient and accessible locations and times, employ visualization techniques, and provide for publication of publicly available planning materials in electronically accessible formats, such as the world wide web.

   Use of advancing technology to publish plans and better articulate potential benefits and impacts of transportation plans will improve community awareness during the planning process. Early identification of community concerns may help reduce or avoid delays during the environmental review stage. MPOs, particularly small MPOs, and States have limited resources to apply toward meeting numerous planning requirements. Therefore, each MPO and State should use its own discretion in allocating resources for improved utilization of technology.

   Sec. 1704.

   This section amends title 23 to ensure metropolitan planning in certain areas. Section 1705 supplements funding for the transportation planning process with 1% of all funds apportioned through the Federal Lands Highway Program to the Lake Tahoe Region.

   Conference Substitute

   The Conference adopts the House provisions with several modifications. First, it does not create a new chapter 52 of title 49, United States Code, but rather amends title 23 and chapter 53 of title 49, United States Code, to contain identical planning provisions (23 U.S.C. 134 and 49 U.S.C. 5303 Metropolitan planning and 23 U.S.C. 135 and 49 U.S.C. 5304 Statewide planning).

   The House provision is modified to require metropolitan plans to be updated every 5 years in areas designated attainment.

   Sections 134(h)(1)(B) and (C), and 135(d)(1)(B) and (C) modify existing law to give added emphasis to security and safety by making each a separate planning factor.

   The Conference adopts the Senate section 1502 modified to require a discussion of types of potential environmental mitigation activities and potential areas to carry out such activities in the plan and to require consultation, including, as appropriate, comparison of transportation plans with State conservation plans or maps, if available, or with inventories of natural or historic resources, if available

   The Conference incorporates a modified participation plan found in Senate section 6005 into the House provision. Senate section 1504 on methods of public participation and publication of the plan is also incorporated into the House provision.

   The modified House provision retains current law section 134 of title 23 regarding the listing in the TIP of projects funded under chapter 2 of title 23, United States Code.

   The Conference adopts a modified rulemaking requirement found in Senate section 6005. The Secretary is required to issue, within 180 days of enactment, regulations specifying the types of data to be included in the required annual listing of projects.

   The Conference also removed references to activities and requirements under section 139 of title 23, United States Code, as proposed in the House bill since the Conference did not adopt that provision.

   The Conference adopts the Senate language on transportation planning funding for the Lake Tahoe region.

   The Conference does not adopt the House language requiring the Secretary to issue regulations implementing the changes to transportation planning relating to the Clean Air Act.

   SECTION 6002. EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT DECISIONMAKING

   House Bill

   Sec. 6002.

   Subsection (a) recognizes Enlibra principles as a sound basis for interaction among Federal, state, and local governments and Indian tribes. It encourages the adoption of these principles in the development of highway construction and transit projects. This section is intended as a statement of policy. It is not intended to establish enforceable rights or to modify any existing legal standards applicable to the environmental review process for such projects.

   Subsection (b) creates a new Subchapter C of Chapter 52 of Title 49 to address efficient environmental reviews for project decisionmaking.

   Subchapter C--Efficient Environmental Reviews for Project Decisionmaking

   Section 5251. Definitions and Applicability.

   This section sets forth definitions applicable to this subchapter.

   Section 5252. Project Development Procedures.

   This section establishes comprehensive project development procedures for projects that require the approval of the U.S. Department of Transportation. These procedures must be followed for all projects that require preparation of an environmental impact statement (EIS) under NEPA and may be followed for any project that involves preparation of an environmental assessment (EA) or categorical exclusion (CE). The decision about whether to use these procedures for EA or CE projects is committed to the discretion of the Secretary of Transportation, acting in consultation with the project sponsor.

   Subsection (a) establishes the U.S. Department of Transportation as the lead agency in the environmental review process for any highway, transit, or multimodal project that requires the Department's approval. As the lead agency, the Department is responsible for the overall direction of the environmental review process. The specific responsibilities of the lead agency are defined in this section. This section also requires any project sponsor that is a state or local government entity receiving funds under Title 23 or Title 52 to serve as a ``joint lead agency'' in the environmental review process. The Federal lead agency and the State or local agency jointly constitute the ``lead agency'' for purposes of this section; accordingly, any decisions to be made by the lead agency under this section must be made jointly by the Federal lead agency and the State or local government that serves as project sponsor. A project sponsor that is not a State or local government (e.g., a project sponsor that is a private company) cannot serve as a joint lead agency.

   Subsection (b) establishes a new concept of a ``participating agency.'' This concept is intended to be distinct from, and more inclusive than, the concept of a ``cooperating agency'' as established in the Council on Environmental Quality (CEQ) regulations for the NEPA process. The status of ``cooperating agency'' generally has been assigned only to those agencies that are expected to play an extensive role--in particular, an agency that has a permitting responsibility with respect to a project. The term ``participating agency'' is intended to be more inclusive, so that it encompasses all cooperating agencies as well as any other agencies that submit comments, participate in inter-agency review meetings, or otherwise are engaged in the environmental review process. The lead agency must identify agencies that may have an interest in the project and extend an invitation to participate. The legislation specifically states that designation as a participating agency does not signify support for a project; it is simply a means of identifying the universe of agency participants who must be consulted by the lead agency during the process.

   Subsection (c) establishes a new requirement for a project initiation notice. The purpose of this requirement is to provide an opportunity for the project sponsor to identify the specific highway project, transit project, or multimodal project that is being proposed for evaluation in the environmental review process. At the discretion of the project sponsor, the project initiation notice may include a general description of policies, plans, studies, legislation, or other materials that relate to the proposed project. Such information shall be considered by the lead agency in determining the scope of review needed in the environmental review process, including decisions on issues such as the definition of the proposed action, the purpose and need, the range of alternatives, and the approach to evaluating secondary and cumulative impacts.

   Subsection (d) makes the lead agency responsible for defining the purpose and need, following an opportunity for involvement by other agencies and the public, and identifies the types of objectives that may be included in a statement of purpose and need. The level of involvement required under this section shall be determined by the lead agency on a case by case basis, taking into account the overall size and complexity of the project. The opportunity for involvement in developing the purpose and need may be combined with other public involvement and agency coordination activities, including involvement in developing the range of alternatives to be considered. The lead agency's definition of purpose and need is not binding on other agencies that have independent responsibilities to comply with NEPA. However, other agencies shall show substantial deference to the purpose and need as defined by the lead agency as required under applicable Council on Environmental Quality (CEQ) guidance, dated May 12, 2003; nothing in this section shall be construed to limit or override the guidance provided in that memorandum, or to preempt or limit any obligations to comply with the National Environmental Policy Act (NEPA) and the regulations issued to implement NEPA including those issued by CEQ. The list of project objectives provided in this section is not intended to be exhaustive; these are examples

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of the types of objectives that may be included in a purpose and need statement for a highway, transit, or multimodal project.

   Subsection (e) makes the lead agency responsible for defining the range of alternatives to be considered, following an opportunity for involvement by other agencies and the public. The level of involvement required under this section shall be determined by the lead agency on a case by case basis, taking into account the overall size and complexity of the project. The opportunity for involvement in determining the range of alternatives may be combined with other public involvement and agency coordination activities, including involvement in developing the purpose and need. This section also establishes that the lead agency is responsible for determining the methodologies to be used in evaluating alternatives, and requires that determination to be made in collaboration with the participating agencies. In this context, collaboration means a cooperative and interactive process. It is not necessary for the lead agency to reach consensus with the participating agencies on these issues; the lead agency must work cooperatively with the participating agencies and consider their views, but the lead agency remains responsible for decisionmaking. However, the intent is to require meaningful deliberation about alternatives, as evidenced by the subsection specifying that, should the lead agency develop a preferred alternative, this must not hinder impartial decisionmaking on other alternatives.

   Subsection (f) is intended to establish default comment deadlines that apply in the absence of a specific decision by the lead agency to allow a longer period for comments to be submitted. This section establishes 60 days as the norm for comments on a Draft EIS and 30 days for all other comment/review periods. Lead agencies should provide public notice about when a comment period starts and concludes. The legislation allows the lead agency the flexibility to establish a shorter or longer time frame if there is good cause to do so. In addition, this section allows the lead agency to extend the comment deadline at any time in the environmental review process; while it is preferable to establish a realistic schedule as early as possible, this section does not establish a specific point in the process by which time extensions must be granted.

   Subsection (g) establishes a process for identifying and resolving issues that have the potential to delay the environmental review process or prevent an agency from granting a permit or other approval that is needed for a project. The participants in the environmental review process are encouraged to use similar procedures, to the extent practicable, to identify and resolve issues prior to initiation of the environmental review process. Nothing in this section is intended to preclude or limit any ongoing or future efforts by individual States to adopt procedures that call for agency coordination and dispute resolution efforts during the pre-NEPA planning stages of a project.

   Subsection (i) is intended to allow federal highway and transit funds to be provided to other State and Federal agencies to support activities that directly and meaningfully contribute to expediting and improving transportation project delivery. These funds may be used to support activities related to the review of a specific project during the environmental review process, such as reviewing and commenting on environmental documents or attending meetings. These funds also may be used to support activities that contribute to more efficient environmental reviews through early coordination activities prior to initiation of the environmental review (NEPA) process, and also may be used to support activities that contribute to improvements at a programmatic level, such as training of agency personnel, information gathering and mapping, and development of programmatic agreements.

   Sec. 6009.

   This section amends section 5252 of title 49, United States Code, by adding new subsections (j) and (k)

   Subsection 5252(j) provides that, except as set forth under subsection 5252(k), nothing in section 5252 shall affect the reviewability of any final Federal agency action in a court of the United States. A savings clause provides that nothing in section 5252 shall be construed as superseding, amending, or modifying NEPA or any other Federal environmental statute.

   Subsection 5252(k) establishes a 90-day period for filing any lawsuit challenging a permit, license, or approval issued by a federal agency for a highway or transit project. This period starts when the lead agency gives public notice that a final decision has been issued and that a 90-day period for requesting judicial review has begun. This limitation is intended to apply to any permit, license, or approval issued by a state agency acting under authority delegated by a federal agency pursuant to federal law. The purpose of this limitation is to ensure that any claims challenging a highway project for failure to comply with federal law are filed within 90 days after the final agency action that is the subject of the legal challenge.

   Senate Bill

   Sec. 1511.

   Section 1511, subsection (a), creates a new section 326 of title 23, U.S.C., which authorizes the use of and sets forth a process for agencies to prepare environmental review documents, studies, approvals, and permits required by Federal law for approval of a transportation project.

   Section 326(a) defines, for purposes of the section, the terms agency, environmental impact statement, environmental review process, project, project sponsor, and State transportation department. Subsection (b) establishes the Department as the lead agency and allows the process laid out in this section to be used by the lead agency either at the request of the project sponsor or with the concurrence of the project sponsor; (c) lists the responsibilities of the lead agency; and (d) sets out the responsibilities of the cooperating agencies.

   Section 326(e) directs the lead agency to develop a coordination plan, which shall include a workplan and a schedule. Default deadlines are included in the case of the collaborative process failing to establish comment deadlines. Subsections (f) and (g) describe the process for developing the project purpose and need and alternatives, respectively. Current standards are left unchanged, but opportunity for public comment is specifically provided.

   Section 326(h) sets out a process for resolving inter agency disputes that arise during the environmental review process; (i) directs the Secretary to establish a program to measure and report progress toward improving and expediting the planning and National Environmental Policy Act (NEPA) review process; (j) continues authority for the Secretary to provide funds to other agencies to assist them in carrying out the environmental review process for a project; and (k) clarifies that nothing in this section affects judicial review or the applicability of any Federal environmental statutes. Section 1511, subsection (b) repeals section 1309 of the Transportation Equity Act for the 21st Century (112 Stat. 232). Section 1511(c) clarifies that the repeal of section 1309 of TEA-21 and the enactment of section 1511(a) does not affect any existing State environmental review process, program, agreement or funding arrangement approved by the Secretary under section 1309 of TEA-21.

   Section 1309 of TEA-21 directed the Secretary of Transportation to `develop and implement a coordinated environmental review process for highway construction and mass transit projects.' To date, regulations implementing section 1309 have not been issued. Section 1511 of this legislation replaces section 1309 of TEA-21 and is intended to facilitate faster and more efficient completion of transportation projects without diminishing environmental protections contained in law.

   The process established is for complying with current environmental laws, it does not amend or override any current law. As in TEA-21, agencies are encouraged to conduct their reviews, analyses, and studies concurrently with the review required under the NEPA. Under this process, interested parties will be involved in the earlier stages of the review required under the NEPA.

   The Department, as the lead agency, will be responsible for identifying and inviting cooperating agencies; developing an agency coordination plan, including a workplan and a schedule; and determining the purpose and need of a project and the alternatives to be considered. Whereas current practice involves cooperating agency designations for only those few agencies that will play a major role in reviewing the project, this process expands the meaning of the term to include all agencies that have an interest in or special expertise regarding the project or its potential impacts.

   Public involvement is also enhanced under this process. In addition to leaving unchanged any current opportunities for public comment, this process includes new opportunity for public comment during the determination of project purpose and need and selection of alternatives to be considered.

   Finally, the legislation leaves unchanged the authorization from TEA-21 for States to use their Federal transportation dollars as assistance to resource agencies in order to expedite resource agency activities in the environmental review process.

   Conference Substitute

   The Senate recedes to House section 6002 modified to amend title 23, United States Code, instead of title 49 and with the following further modifications:

   Section 6002(a). The House recedes to the Senate.

   Section 6002(b). The Senate recedes to the House.

   Section 139(a). The Senate recedes to the House. Section 139(b). The Senate recedes to the House. In addition, the Conference substitute preserves current regulations under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with regard to agencies acting as Joint Lead Agencies under this section (section 139(c)(2)). The Conference substitute defines the roles and responsibilities of the Lead Agency (section 139(c)). The Conference Substitute requires federal agencies to the maximum extent practicable to carry out concurrent reviews (section 139(d)(7)). The Conference Substitute requires that for the purpose of informing the Secretary that the environmental review process should be initiated, the project sponsor shall notify the Secretary of certain details of the proposed project (section 139(e)). The Conference Substitute requires that a Lead Agency establish a plan for agency participation and comment on the environmental review process that may be incorporated into a memorandum of understanding (section 139(g)). The Conference Substitute permits the Lead Agency to establish a schedule for completion of the environmental review process and requires the