Environmental Division Updates
On November 15, 2021, President Joseph R. Biden signed the Bipartisan Infrastructure Law—a generational investment in America’s intermodal transportation system of which freight and passenger rail is an integral part and an engine of our economy. The investments will:
- Help make our nation’s rail network safer, more reliable, resilient, sustainable, and equitable.
- Improve the lives of Americans, create good paying jobs, and lay the foundation for America to compete in the 21st Century.
What Does This Mean for FRA?
The Bipartisan Infrastructure Law, also referred to as the Infrastructure Investment and Jobs Act or H.R. 3684 Pub. L. 117-58, will provide unprecedented Federal funding for rail improvement projects in America. Over the next five years, that means greatly expanding existing FRA programs and creating new programs to enhance our nation’s rail network. The Bipartisan Infrastructure Law includes $102 billion in total rail funding, including $66 billion from advanced appropriations, and $36 billion in authorized funding.
To learn more about the Bipartisan Infrastructure Law and Rail, watch the video from FRA Administrator Amit Bose and view the links for additional information.
The DOT Climate Action Plan for Resilience establishes an updated Climate Action Plan that focuses on actions to bolster adaptation and increase resilience. This Plan builds from the previous Climate Action Plans prepared in 2012 and 2014, respectfully. The plan identifies 5 priority actions the Department will focus on:
- Incorporate Resilience into DOT Grant and Loan Programs;
- Enhance Resilience Throughout the Project Planning and Development Process;
- Ensure Resiliency of DOT Facilities and Operational Assets;
- Ensure Climate-ready Services and Supplies; and
- Improve Climate Education and Research on Resilience.
The plan also has sections on agency actions to enhance resilience at DOT facilities and ensure climate-ready supply of products and services.
The updated U.S. DOT Title VI Order 1000.12C strengthens FRA’s Title VI implementation by providing policy direction, practices and standards ensuring Title VI compliance. Title VI regulations are designed to provide equal opportunity and access in all programs by ensuring nondiscrimination on the basis of race, color, or national origin (including limited English proficiency).
On May 14, 2021, the U.S. DOT created Order 5610.2C, Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This Order updates environmental justice procedures for the U.S. DOT in response to the Memorandum of Understanding on Environmental Justice signed by the heads of Federal agencies on August 4, 2011.
The White House EJ Advisory Council issued its final report (pursuant to EO 14008) of recommendations for Justice40, the Climate and Economic Screening Tool, and EO 12898 Revisions.
On January 27, 2021, President Biden signed Executive Order (EO) 14008, “Tackling the Climate Crisis at Home and Abroad” which created a government-wide “Justice40 Initiative” that aims to deliver 40 percent of the overall benefits of relevant federal investments to disadvantaged communities. Through the implementation of this Administration priority, the Department will develop a methodology to identify disadvantaged communities and benefits for Justice40-covered programs, consistent with guidance from the Office of Management and Budget (OMB) and relevant statutory authorities.
The Justice40 Initiative is also aligned with the goals of EO 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” and will be implemented as part of the Department’s broader equity agenda.
On December 28, 2020, FRA, together with the Federal Transit Administration (FTA) and the Federal Highway Administration (FHWA), issued the Pilot Program for Eliminating Duplication of Environmental Reviews Final Rule. Section 1309 of the Fixing America’s Surface Transportation (FAST) Act directed the Secretary of Transportation to establish a pilot program authorizing up to two states to conduct environmental reviews and make approvals for projects under state environmental laws and regulations, instead of National Environmental Policy Act (NEPA), under certain circumstances.
Final rule 85 FR 84213 became effective on January 27, 2021.
On December 8, 2020, FRA and the FTA jointly issued a Federal Register notice to adopt the FHWA’s nationwide programmatic Section 4(f) evaluations for certain transportation projects having a net benefit to Section 4(f) properties and for certain transportation projects that use historic bridges.
Adoption notice 85 FR 79072 became effective on January 7, 2021.
On July 15, 2020, the Council on Environmental Quality (CEQ) announced its final rule modernizing the NEPA regulations to streamline the development of infrastructure projects and promote better decision making by the Federal government.
Final rule 85 FR 43304 became effective on September 14, 2020.
On August 19, 2019, the U.S. DOT issued Interim Policy on Page Limits for NEPA Documents and Focused Analyses, intended to improve the quality and reduce the length of documents prepared for compliance with NEPA.
The Agencies (FRA, FHWA, and FTA) developed guidance providing clarity and consistency to the NEPA re-evaluation process consistent with their environmental regulations. This guidance document is not legally binding in its own right and conformity with this document (as distinct from existing statutes and regulations cited in this document) is voluntary only.
The Surface Transportation Project Delivery Program (STPD Program) allows the Secretary of Transportation to assign, and the State to assume, the Secretary's responsibilities under the NEPA and related environmental laws for certain transportation projects (NEPA Assignment). The STPD Program is authorized under 23 U.S.C. § 327 and is implemented through regulations promulgated by the FHWA, FRA, and the FTA (23 CFR part 773).
On January 31, 2019, the State of California, acting by and through the California State Transportation Agency and California High-Speed Rail Authority (CHSRA), applied to assume the FRA’s Federal environmental responsibilities under NEPA and other Federal environmental laws for projects necessary for the design, construction, and operation of the California HSR System; projects that directly connect to the California HSR System; and the ACEforward project. The FRA published the State’s application and a draft Memorandum of Understanding (MOU) in the Federal Register.
Based on the application and after considering public comments, FRA granted the State’s request. FRA Administrator Batory and Governor Newsom executed the MOU, which was effective on July 23, 2019. CHSRA is subject to annual audits by FRA for the first four years of the executed MOU. After the fourth year, FRA will continue to monitor the State’s compliance with the MOU. FRA’s auditing and monitoring will be carried out consistent with the MOU.
This regulation increases efficiency for the preparation of environmental documents and accelerates project delivery by providing new tools for FRA and project sponsors to use, including:
- Applying the same environmental regulations (and Section 4(f) requirements, 23 CFR Part 774) to rail projects that FHWA and FTA already use.
- Updating and expanding the number of categorical exclusions for rail projects.
- Allowing FRA to use FHWA and FTA categorical exclusions as appropriate.
U.S. DOT Publishes Final Rule – Continuing Efforts to Streamline the Environmental Process
On October 29, 2018, FRA, the FHWA, and FTA published a Final Rule in the Federal Register, 83 FR 54480, amending 23 CFR Part 771, Environmental Impact and Related Procedures, and 23 CFR Part 774, Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 4(f)). The regulation is effective November 28, 2018.
The Final Rule adds FRA to 23 CFR Parts 771 and 774. It also includes updates responding to the Fixing America’s Surface Transportation Act (FAST Act) and allows FRA to follow the same flexible environmental procedures as FHWA and FTA.
The Final Section 106 Program Comment was approved by the Advisory Council on Historic Preservation (ACHP) on August 17, 2018. The full text is available in the ACHP’s Federal Register Notice, 83 FR 42920, published on August 24, 2018. The Program Comment is available for use by any Federal agency having an undertaking that may affect rail properties located in railroad or rail transit rights-of-way (ROW).
The Final Program Comment is comprised of two parts: 1) A comprehensive list of maintenance, repair, and upgrade activities that are likely to have effects to historic rail properties that are minimal or not adverse and are therefore exempt from Section 106 review (exempted activities list); and 2) An optional Project Sponsor-led, property-based approach that ultimately may further streamline the Section 106 review process for transportation-related projects in railroad and rail transit ROW.
The Program Comment required U.S. DOT to publish guidance for implementing the property-based approach before this part of the Program Comment is effective and available to Project Sponsors. U.S. DOT provided an opportunity for stakeholder review and comment on the draft guidance in July 2019. U.S. DOT finalized the Final Guidance for Implementing the Optional Property-Based Approach to Exempting Consideration of Effects to Rail Properties within Rail Rights-of-Way on October 11, 2019.
Questions regarding application of the Program Comment to FRA projects may be sent to: FRA.106Exemption@dot.gov .