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Federal Regulations

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Process Summary
Federal Regulations

The Council on Environmental Quality (CEQ) regulations for implementing the National Environmental Policy Act (NEPA), 40 CFR 1500-1508, provide the basic framework for all federal agencies to follow in complying with the law. The Federal Highway Administration (FHWA) has developed regulations as described in Title 23 - Code of Federal Regulations, Subchapter H- Right-of-Way and Environment, Parts 771, Subparts Environmental Impact and Related Procedures (commonly referred to as 23 CFR 771).
FHWA regulation prescribes the policies and procedures of the FHWA and the Federal Transit Administration (FTA), formerly the Urban Mass Transportation Administration (UMTA), for implementing NEPA. This regulation sets forth all FHWA, FTA, and Department of Transportation (DOT) requirements under NEPA for the processing of highway and urban mass transportation projects.

For transportation decision-making, FHWA adopted a policy of managing the NEPA process as an "umbrella" under which all other environmental laws, executive orders and regulations are considered, prior to the final decision on a proposed action or project. The FHWA/NEPA process is designed for transportation officials to make project decisions that balance engineering and transportation needs with the consideration of social, economic, and environmental factors. The process allows for access and input from a wide variety of parties, including the affected public, businesses, stakeholders and interest groups, and agencies at all levels of government.

It is the policy of FHWA to ensure that:

  • To the fullest extent possible, all environmental investigations, reviews and consultations are to be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental document required by this regulation. FHWA and UMTA have supplementary guidance on the format and content of NEPA documents for their programs. This includes a list of various environmental laws, regulations and executive orders which may be applicable to projects. The FHWA Technical Advisory T6640.8A, October 30, 1987, and the UMTA supplementary guidance are available from the respective FHWA and UMTA headquarters and field offices as prescribed in 49 CFR Part 7, Appendices D and G.
  • Alternative courses of action are to be evaluated and decisions are to be made in the best overall public interest, based upon a balanced consideration of the need for safe and efficient transportation; of the social, economic, and environmental impacts of the proposed transportation improvement; and of national, state, and local environmental protection goals.
  • Public involvement and a systematic interdisciplinary approach are to be essential parts of the development process for proposed actions.
  • Measures necessary to mitigate adverse impacts are to be incorporated into the action. These measures are eligible for federal funding when the administration determines that the impacts for which the mitigation is proposed actually result from the Administration action, and that the proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures. In determining the latter, the administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a federal statute, executive order, or administration regulation or policy.
  • No person, because of handicap, age, race, color, sex, or national origin, is to be excluded from participating in, or denied benefits of, or be subject to discrimination under any administration program or procedural activity required by or developed pursuant to this regulation.

There are three classes of actions that prescribe the level of documentation required in the NEPA process.

  1. Environmental Impact Statement (Class I action)
    Actions that significantly affect the environment require an Environmental Impact Statement (EIS) (40 CFR 1508.27). The following are examples of actions that normally require an EIS:

    • A new controlled access freeway
    • A highway project of four or more lanes on a new location
    • New construction or extension of fixed rail transit facilities (e.g., rapid rail, light rail, commuter rail, automated guideway transit)
    • New construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing highway facility

  2. Categorical Exclusion (Class II action)
    Actions that do not individually or cumulatively have a significant environmental effect are excluded from the requirement to prepare an EA or EIS. A specific list of Categorical Exclusions (CE) normally not requiring NEPA documentation is set forth in Sec. 771.117(c). When appropriately documented, additional projects may also qualify as CEs pursuant to Sec. 771.117(d).

  3. Environmental Assessment (Class III action)
    Actions in which the significance of the environmental impacts is not clearly established. All actions that are not Class I or II are Class III. All actions in this class require the preparation of an Environmental Assessment (EA) to determine the appropriate environmental document required.

NEPA flowchart


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