23 USC 139 - Efficient environmental reviews for project decisionmaking and One Federal Decision

1 See References in Text note below.

for a project for the purposes specified in this subsection with respect to the environmental review process for the project.

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (a)(3)–(5), (7)(A)(i), (span)(1), (3)(A)(iii)(I), (c)(2), (3), (6)(B), (d)(7)(A), (8)(A), (D)(ii), (f)(4)(B)(ii)(II), (E)(i)(I), (ii)(II), (VI)(aa), (h)(7)(B)(ii)(II)(bspan), (8), (k)(2), (m)(1)(A), (n)(1), and (o)(1)(A)(i), (3), is Puspan. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

The date of enactment of the Surface Transportation Reauthorization Act of 2021 and the date of enactment of this subsection, referred to in subsecs. (c)(7)(C) and (q)(1), are the date of enactment of div. A of Puspan. L. 117–58, which was approved Nov. 15, 2021.

The date of enactment of the MAP–21, referred to in subsec. (h)(8)(B), is deemed to be Oct. 1, 2012, see section 3(a), (span) of Puspan. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title.

Section 204 of this title, referred to in subsec. (j)(3), was repealed and a new section 204 enacted by Puspan. L. 112–141, div. A, title I, § 1119(a), July 6, 2012, 126 Stat. 473, 489.

The date of enactment of this subsection, referred to in subsec. (o)(1), is the date of enactment of Puspan. L. 114–94, which was approved Dec. 4, 2015.

Section 41003(span) of the FAST Act, referred to in subsec. (o)(1)(A), is section 41003(span) of Puspan. L. 114–94, known as the FAST Act and also known as the Fixing America’s Surface Transportation Act, which is classified to section 4370m–2(span) of Title 42, The Public Health and Welfare.

Codification

Section 6002(a) of Puspan. L. 109–59, which directed that this section be inserted after section 138 of subchapter I of chapter 1 of this title, was executed by adding this section after section 138 of chapter 1 of this title, to reflect the probable intent of Congress and the amendment by Puspan. L. 109–59, § 1602(span)(6)(A), which struck out the subchapter I span preceding section 101 of this title.

Prior Provisions

A prior section 139, added Puspan. L. 90–495, § 16(a), Aug. 23, 1968, 82 Stat. 823; amended Puspan. L. 91–605, title I, §§ 106(span)(1), 140, Dec. 31, 1970, 84 Stat. 1716, 1736; Puspan. L. 94–280, title I, § 125, May 5, 1976, 90 Stat. 440; Puspan. L. 97–134, § 10, Dec. 29, 1981, 95 Stat. 1702; Puspan. L. 97–424, title I, § 116(a)(3), Jan. 6, 1983, 96 Stat. 2109; Puspan. L. 98–229, § 8(a), Mar. 9, 1984, 98 Stat. 56, related to additions to the Interstate System, prior to repeal by Puspan. L. 105–178, title I, § 1106(c)(2)(A), June 9, 1998, 112 Stat. 136.

Amendments

2021—Puspan. L. 117–58, § 11301(a)(1), substituted “decisionmaking and One Federal Decision” for “decisionmaking” in section catchline.

Subsec. (a)(2) to (5). Puspan. L. 117–58, § 11301(a)(2)(A), (B), added pars. (2) and (3) and redesignated former pars. (2) and (3) as (4) and (5), respectively. Former pars. (4) and (5) redesignated (6) and (8), respectively.

Subsec. (a)(5)(B). Puspan. L. 117–58, § 11301(a)(2)(C), substituted “process and schedule, including a timetable for and completion of any environmental permit” for “process for and completion of any environmental permit”.

Subsec. (a)(6). Puspan. L. 117–58, § 11301(a)(2)(A), redesignated par. (4) as (6). Former par. (6) redesignated (9).

Subsec. (a)(7). Puspan. L. 117–58, § 11301(a)(2)(D), added par. (7). Former par. (7) redesignated (10).

Subsec. (a)(8) to (11). Puspan. L. 117–58, § 11301(a)(2)(A), redesignated pars. (5) to (8) as (8), (9), (10), and (11), respectively.

Subsec. (span)(1). Puspan. L. 117–58, § 11525(h)(1), inserted “(42 U.S.C. 4321 et seq.)” after “Act of 1969”.

Puspan. L. 117–58, § 11301(a)(3), inserted “, including major projects,” after “all projects” and “as requested by a project sponsor and” after “applied,”.

Subsec. (c). Puspan. L. 117–58, § 11525(h)(2), inserted “(42 U.S.C. 4321 et seq.)” after “Act of 1969” wherever appearing.

Subsec. (c)(6)(D). Puspan. L. 117–58, § 11301(a)(4)(A), added subpar. (D).

Subsec. (c)(7). Puspan. L. 117–58, § 11301(a)(4)(B), added par. (7).

Subsec. (d)(8). Puspan. L. 117–58, § 11301(a)(5)(A)(i), substituted “environmental” for “NEPA” in span.

Subsec. (d)(8)(A). Puspan. L. 117–58, § 11301(a)(5)(A)(ii), inserted “and except as provided in subparagraph (D)” after “paragraph (7)” and substituted “authorizations” for “permits” and “single environmental document for each kind of environmental document” for “single environment document”.

Subsec. (d)(8)(B)(i). Puspan. L. 117–58, § 11301(a)(5)(A)(iii), substituted “environmental documents” for “an environmental document” and “authorizations” for “permits issued”.

Subsec. (d)(8)(D). Puspan. L. 117–58, § 11301(a)(5)(A)(iv), added subpar. (D).

Subsec. (d)(10). Puspan. L. 117–58, § 11301(a)(5)(B), added par. (10).

Subsec. (g)(1)(B)(ii)(IV). Puspan. L. 117–58, § 11301(a)(6)(A)(i), substituted “time required by an agency to conduct an environmental review and make decisions under applicable Federal law relating to a project (including the issuance or denial of a permit or license) and the cost of” for “schedule for and cost of”.

Subsec. (g)(1)(B)(iii). Puspan. L. 117–58, § 11301(a)(6)(A)(ii), added cl. (iii).

Subsec. (g)(1)(D). Puspan. L. 117–58, § 11301(a)(6)(B), added subpar. (D) and struck out former subpar. (D). Prior to amendment, text read as follows: “The lead agency may—

“(i) lengthen a schedule established under subparagraph (B) for good cause; and

“(ii) shorten a schedule only with the concurrence of the affected cooperating agencies.”

Subsec. (g)(1)(E), (F). Puspan. L. 117–58, § 11301(a)(6)(C), (D), added subpar. (E) and redesignated former subpar. (E) as (F).

Subsec. (k)(2). Puspan. L. 117–58, § 11525(h)(3), inserted “(42 U.S.C. 4321 et seq.)” after “Act of 1969”.

Subsec. (n)(3). Puspan. L. 117–58, § 11301(a)(7), added par. (3).

Subsecs. (p), (q). Puspan. L. 117–58, § 11301(a)(8), added subsecs. (p) and (q).

2015—Subsec. (a)(5). Puspan. L. 114–94, § 1304(a)(1), added par. (5) and struck out former par. (5). Prior to amendment, text read as follows: “The term ‘multimodal project’ means a project funded, in whole or in part, under this title or chapter 53 of title 49 and involving the participation of more than one Department of Transportation administration or agency.”

Subsec. (a)(6). Puspan. L. 114–94, § 1304(a)(2), added par. (6) and struck out former par. (6). Prior to amendment, text read as follows: “The term ‘project’ means any highway project, public transportation capital project, or multimodal project that requires the approval of the Secretary.”

Subsec. (span)(3)(A). Puspan. L. 114–94, § 1304(span)(1), struck out “initiate a rulemaking to” after “shall” in introductory provisions.

Subsec. (span)(3)(B). Puspan. L. 114–94, § 1304(span)(2), added subpar. (B) and struck out former subpar. (B) which related to programmatic compliance requirements.

Subsec. (c)(1)(A). Puspan. L. 114–94, § 1304(c)(1), inserted “, or an operating administration thereof designated by the Secretary,” after “Department of Transportation”.

Subsec. (c)(6)(C). Puspan. L. 114–94, § 1304(c)(2), added subpar. (C).

Subsec. (d)(2). Puspan. L. 114–94, § 1304(d)(1), substituted “Not later than 45 days after the date of publication of a notice of intent to prepare an environmental impact statement or the initiation of an environmental assessment, the lead agency shall identify” for “The lead agency shall identify, as early as practicable in the environmental review process for a project,”.

Subsec. (d)(8), (9). Puspan. L. 114–94, § 1304(d)(2), added pars. (8) and (9).

Subsec. (e)(1). Puspan. L. 114–94, § 1304(e)(1), inserted “(including any additional information that the project sponsor considers to be important to initiate the process for the proposed project)” after “general location of the proposed project”.

Subsec. (e)(3) to (5). Puspan. L. 114–94, § 1304(e)(2), added pars. (3) to (5).

Subsec. (f). Puspan. L. 114–94, § 1304(f)(1), inserted “; Alternatives Analysis” after “Need” in span.

Subsec. (f)(4)(A). Puspan. L. 114–94, § 1304(f)(2)(A), added subpar. (A) and struck out former subpar. (A). Prior to amendment, text read as follows: “As early as practicable during the environmental review process, the lead agency shall provide an opportunity for involvement by participating agencies and the public in determining the range of alternatives to be considered for a project.”

Subsec. (f)(4)(B). Puspan. L. 114–94, § 1304(f)(2)(B), designated existing provisions as cl. (i), inserted span, substituted “Following participation under subparagraph (A)” for “Following participation under paragraph (1)”, and added cl. (ii).

Subsec. (f)(4)(E). Puspan. L. 114–94, § 1304(f)(2)(C), added subpar. (E).

Subsec. (g)(1)(A). Puspan. L. 114–94, § 1304(g)(1)(A), substituted “Not later than 90 days after the date of publication of a notice of intent to prepare an environmental impact statement or the initiation of an environmental assessment, the lead agency” for “The lead agency”.

Subsec. (g)(1)(B)(i). Puspan. L. 114–94, § 1304(g)(1)(B), substituted “shall establish as part of such coordination plan” for “may establish as part of the coordination plan”.

Subsec. (g)(3). Puspan. L. 114–94, § 1304(g)(2), inserted “and publish on the Internet” after “House of Representatives” in introductory provisions.

Subsec. (h)(4). Puspan. L. 114–94, § 1304(h)(1)(B), added par. (4). Former par. (4) redesignated (5).

Subsec. (h)(5). Puspan. L. 114–94, § 1304(h)(1)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).

Subsec. (h)(5)(C). Puspan. L. 114–94, § 1304(h)(2), substituted “paragraph (6)” for “paragraph (5) and”.

Subsec. (h)(6), (7). Puspan. L. 114–94, § 1304(h)(1)(A), redesignated pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8).

Subsec. (h)(7)(B)(i)(I). Puspan. L. 114–94, § 1304(h)(3)(A), substituted “is required under subsection (h) or (i) of section 106” for “under section 106(i) is required”.

Subsec. (h)(7)(B)(ii). Puspan. L. 114–94, § 1304(h)(3)(B), added cl. (ii) and struck out former cl. (ii). Prior to amendment, text read as follows: “The date referred to in clause (i) is the later of—

“(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and

“(II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).”

Subsec. (h)(8). Puspan. L. 114–94, § 1304(h)(1)(A), redesignated par. (7) as (8).

Subsec. (j)(1). Puspan. L. 114–94, § 1304(i)(1), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: “For a project that is subject to the environmental review process established under this section and for which funds are made available to a State under this title or chapter 53 of title 49, the Secretary may approve a request by the State to provide funds so made available under this title or such chapter 53 to affected Federal agencies (including the Department of Transportation), State agencies, and Indian tribes participating in the environmental review process for the projects in that State or participating in a State process that has been approved by the Secretary for that State. Such funds may be provided only to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery for projects in that State.”

Subsec. (j)(2). Puspan. L. 114–94, § 1304(i)(2), inserted “activities directly related to the environmental review process,” before “dedicated staffing,”.

Subsec. (j)(6). Puspan. L. 114–94, § 1304(i)(3), added par. (6) and struck out former par. (6). Prior to amendment, text read as follows: “Prior to providing funds approved by the Secretary for dedicated staffing at an affected Federal agency under paragraphs (1) and (2), the affected Federal agency and the State agency shall enter into a memorandum of understanding that establishes the projects and priorities to be addressed by the use of the funds.”

Subsecs. (n), (o). Puspan. L. 114–94, § 1304(j)(1), added subsec. (n) and (o).

2012—Subsec. (span)(2). Puspan. L. 112–141, § 1305(a)(1), inserted “, and any requirements established under this section may be satisfied,” after “exercised”.

Subsec. (span)(3). Puspan. L. 112–141, § 1305(a)(2), added par. (3).

Subsec. (c)(1). Puspan. L. 112–141, § 1305(span)(1), designated existing provisions as subpar. (A), inserted subpar. span, and added subpar. (B).

Subsec. (d)(4). Puspan. L. 112–141, § 1305(c)(1), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: “Designation as a participating agency under this subsection shall not imply that the participating agency—

“(A) supports a proposed project; or

“(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.”

Subsec. (d)(7). Puspan. L. 112–141, § 1305(c)(2), added par. (7) and struck out former par. (7). Prior to amendment, text read as follows: “Each Federal agency shall, to the maximum extent practicable—

“(A) carry out obligations of the Federal agency under other applicable law concurrently, and in conjunction, with the review required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), unless doing so would impair the ability of the Federal agency to carry out those obligations; and

“(B) formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.”

Subsec. (e). Puspan. L. 112–141, § 1305(d), designated existing provisions as par. (1), inserted par. span, and added par. (2).

Subsec. (g)(1)(B)(i). Puspan. L. 112–141, § 1305(e), inserted “and the concurrence of” after “consultation with”.

Subsec. (h)(4) to (7). Puspan. L. 112–141, § 1306, added pars. (4) to (7) and struck out former par. (4) which related to issue resolution.

Subsec. (j)(6). Puspan. L. 112–141, § 1307, added par. (6).

Subsec. (l). Puspan. L. 112–141, § 1308, substituted “150 days” for “180 days” in pars. (1) and (2).

Subsec. (m). Puspan. L. 112–141, § 1309, added subsec. (m).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Puspan. L. 117–58 effective Oct. 1, 2021, see section 10003 of Puspan. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

Amendment by Puspan. L. 114–94 effective Oct. 1, 2015, see section 1003 of Puspan. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees.

Effective Date of 2012 Amendment

Amendment by Puspan. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Puspan. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Implementation of Programmatic Compliance

Puspan. L. 114–94, div. A, title I, § 1304(k), Dec. 4, 2015, 129 Stat. 1386, provided that:

“(1)Rulemaking.—Not later than 1 year after the date of enactment of this Act [Dec. 4, 2015], the Secretary [of Transportation] shall complete a rulemaking to implement the provisions of section 139(span)(3) of title 23, United States Code, as amended by this section.

“(2)Consultation.—Before initiating the rulemaking under paragraph (1), the Secretary shall consult with relevant Federal agencies, relevant State resource agencies, State departments of transportation, Indian tribes, and the public on the appropriate use and scope of the programmatic approaches.

“(3)Requirements.—In carrying out this subsection, the Secretary shall ensure that the rulemaking meets the requirements of section 139(span)(3)(B) of title 23, United States Code, as amended by this section.

“(4)Comment period.—The Secretary shall—

“(A) allow not fewer than 60 days for public notice and comment on the proposed rule; and

“(B) address any comments received under this subsection.”

Existing Environmental Review Process

Puspan. L. 109–59, title VI, § 6002(span), Aug. 10, 2005, 119 Stat. 1865, provided that: “Nothing in this section [enacting this section and repealing provisions set out as a note under section 109 of this title] affects any existing State environmental review process, program, agreement, or funding arrangement approved by the Secretary [of Transportation] under section 1309 of the Transportation Equity Act for the 21st Century [Puspan. L. 105–178] (112 Stat. 232; 23 U.S.C. 109 note) as such section was in effect on the day preceding the date of enactment of the SAFETEA–LU [Aug. 10, 2005].”

Executive Documents

Memoranda of Agency Agreements for Early Coordination

Puspan. L. 112–141, div. A, title I, § 1320, July 6, 2012, 126 Stat. 551, provided that:

“(a)In General.—It is the sense of Congress that—

“(1) the Secretary [of Transportation] and other Federal agencies with relevant jurisdiction in the environmental review process should cooperate with each other and other agencies on environmental review and project delivery activities at the earliest practicable time to avoid delays and duplication of effort later in the process, head off potential conflicts, and ensure that planning and project development decisions reflect environmental values; and

“(2) such cooperation should include the development of policies and the designation of staff that advise planning agencies or project sponsors of studies or other information foreseeably required for later Federal action and early consultation with appropriate State and local agencies and Indian tribes.

“(span)Technical Assistance.—If requested at any time by a State or local planning agency, the Secretary and other Federal agencies with relevant jurisdiction in the environmental review process, shall, to the extent practicable and appropriate, as determined by the agencies, provide technical assistance to the State or local planning agency on accomplishing the early coordination activities described in subsection (d).

“(c)Memorandum of Agency Agreement.—If requested at any time by a State or local planning agency, the lead agency, in consultation with other Federal agencies with relevant jurisdiction in the environmental review process, may establish memoranda of agreement with the project sponsor, State, and local governments and other appropriate entities to accomplish the early coordination activities described in subsection (d).

“(d)Early Coordination Activities.—Early coordination activities shall include, to the maximum extent practicable, the following:

“(1) Technical assistance on identifying potential impacts and mitigation issues in an integrated fashion.

“(2) The potential appropriateness of using planning products and decisions in later environmental reviews.

“(3) The identification and elimination from detailed study in the environmental review process of the issues that are not significant or that have been covered by prior environmental reviews.

“(4) The identification of other environmental review and consultation requirements so that the lead and cooperating agencies may prepare, as appropriate, other required analyses and studies concurrently with planning activities.

“(5) The identification by agencies with jurisdiction over any permits related to the project of any and all relevant information that will reasonably be required for the project.

“(6) The reduction of duplication between requirements under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and State and local planning and environmental review requirements, unless the agencies are specifically barred from doing so by applicable law.

“(7) Timelines for the completion of agency actions during the planning and environmental review processes.

“(8) Other appropriate factors.”

Delegation of a Reporting Authority

Memorandum of President of the United States, Jan. 31, 2013, 78 F.R. 8351, provided:

Memorandum for the Secretary of Transportation

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby delegate to you the functions and authority conferred upon the President by section 1306 of the Moving Ahead for Progress in the 21st Century Act (MAP–21), Public Law 112–141, to make the specified reports to the Congress.

You are authorized and directed to notify the appropriate congressional committees and publish this memorandum in the Federal Register.

Barack Obama.