§168 — Title 23 Highways | U.S. Code

Summary

Agencies may use or fold transportation planning studies and reports into the environmental review for a project whenever practical and appropriate. The lead agency can use planning products when preparing NEPA documents (like EIS, EA, or categorical exclusions). A cooperating federal agency can use them when doing other federal permits or approvals, if the law allows. An agency that decides to use a planning product must say which agencies helped make it. They can adopt a whole planning product or just parts, and can do this when they set the scope of review or later. Key terms: environmental review process (the NEPA review steps); lead agency (the main NEPA agency); planning product (a study, decision, or report from transportation planning); project (the transportation project); project sponsor (the party proposing the project); relevant agency (the agency deciding to use the planning product). An agency may adopt planning decisions (like funding approach, corridor choices, purpose and need, screening of alternatives, methods, or program-level mitigation) and analyses (like travel demand, growth, land use, population, environmental conditions, effects, and mitigation needs). To use a planning product, the agency must confirm: it was made under federal law; consulted with resource agencies and tribes; looked at system- or corridor-level effects; gave public notice that it might be used later; made the documents available and considered comments; has no new major info; is based on reliable current data and methods; is detailed enough for NEPA; meets NEPA and 40 CFR 1502.21; and was approved within 5 years. Using planning products can be put directly into environmental documents and relied on by other federal agencies. Using them does not make planning processes themselves subject to the environmental review.

Title 23, §168

Highways — Source: USLM XML via OLRC

(a)In this section, the following definitions apply:

(1)The term “environmental review process” has the meaning given the term in section 139(a).

(2)The term “lead agency” has the meaning given the term in section 139(a).

(3)The term “planning product” means a decision, analysis, study, or other documented information that is the result of an evaluation or decisionmaking process carried out by a metropolitan planning organization or a State, as appropriate, during metropolitan or statewide transportation planning under section 134 or 135, respectively.

(4)The term “project” has the meaning given the term in section 139(a).

(5)The term “project sponsor” has the meaning given the term in section 139(a).

(6)The term “relevant agency” means the agency with authority under subparagraph (A) or (B) of subsection (b)(1).

(b)(1)Subject to subsection (d) and to the maximum extent practicable and appropriate, the following agencies may adopt or incorporate by reference and use a planning product in proceedings relating to any class of action in the environmental review process of the project:

(A)The lead agency for a project, with respect to an environmental impact statement, environmental assessment, categorical exclusion, or other document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B)The cooperating agency with responsibility under Federal law, with respect to the process for and completion of any environmental permit, approval, review, or study required for a project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), if consistent with that law.

(2)If the relevant agency makes a determination to adopt or incorporate by reference and use a planning product, the relevant agency shall identify the agencies that participated in the development of the planning products.

(3)The relevant agency may—

(A)adopt or incorporate by reference an entire planning product under paragraph (1); or

(B)select portions of a planning project under paragraph (1) for adoption or incorporation by reference.

(4)A determination under paragraph (1) with respect to the adoption or incorporation by reference of a planning product may—

(A)be made at the time the relevant agencies decide the appropriate scope of environmental review for the project; or

(B)occur later in the environmental review process, as appropriate.

(c)(1)The relevant agency in the environmental review process may adopt or incorporate by reference decisions from a planning product, including—

(A)whether tolling, private financial assistance, or other special financial measures are necessary to implement the project;

(B)a decision with respect to general travel corridor or modal choice, including a decision to implement corridor or subarea study recommendations to advance different modal solutions as separate projects with independent utility;

(C)the purpose and the need for the proposed action;

(D)preliminary screening of alternatives and elimination of unreasonable alternatives;

(E)a basic description of the environmental setting;

(F)a decision with respect to methodologies for analysis; and

(G)an identification of programmatic level mitigation for potential impacts of a project, including a programmatic mitigation plan developed in accordance with section 169, that the relevant agency determines are more effectively addressed on a national or regional scale, including—

(i)measures to avoid, minimize, and mitigate impacts at a national or regional scale of proposed transportation investments on environmental resources, including regional ecosystem and water resources; and

(ii)potential mitigation activities, locations, and investments.

(2)The relevant agency in the environmental review process may adopt or incorporate by reference analyses from a planning product, including—

(A)travel demands;

(B)regional development and growth;

(C)local land use, growth management, and development;

(D)population and employment;

(E)natural and built environmental conditions;

(F)environmental resources and environmentally sensitive areas;

(G)potential environmental effects, including the identification of resources of concern and potential direct, indirect, and cumulative effects on those resources; and

(H)mitigation needs for a proposed project, or for programmatic level mitigation, for potential effects that the lead agency determines are most effectively addressed at a regional or national program level.

(d)The relevant agency in the environmental review process may adopt or incorporate by reference a planning product under this section if the relevant agency determines, with the concurrence of the lead agency and, if the planning product is necessary for a cooperating agency to issue a permit, review, or approval for the project, with the concurrence of the cooperating agency, that the following conditions have been met:

(1)The planning product was developed through a planning process conducted pursuant to applicable Federal law.

(2)The planning product was developed in consultation with appropriate Federal and State resource agencies and Indian tribes.

(3)The planning process included broad multidisciplinary consideration of systems-level or corridor-wide transportation needs and potential effects, including effects on the human and natural environment.

(4)The planning process included public notice that the planning products produced in the planning process may be adopted during a subsequent environmental review process in accordance with this section.

(5)During the environmental review process, the relevant agency has—

(A)made the planning documents available for public review and comment by members of the general public and Federal, State, local, and tribal governments that may have an interest in the proposed project;

(B)provided notice of the intention of the relevant agency to adopt or incorporate by reference the planning product; and

(C)considered any resulting comments.

(6)There is no significant new information or new circumstance that has a reasonable likelihood of affecting the continued validity or appropriateness of the planning product.

(7)The planning product has a rational basis and is based on reliable and reasonably current data and reasonable and scientifically acceptable methodologies.

(8)The planning product is documented in sufficient detail to support the decision or the results of the analysis and to meet requirements for use of the information in the environmental review process.

(9)The planning product is appropriate for adoption or incorporation by reference and use in the environmental review process for the project and is incorporated in accordance with, and is sufficient to meet the requirements of, the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and section 1502.21 of title 40, Code of Federal Regulations (as in effect on the date of enactment of the FAST Act).

(10)The planning product was approved within the 5-year period ending on the date on which the information is adopted or incorporated by reference.

(e)Any planning product adopted or incorporated by reference by the relevant agency in accordance with this section may be—

(1)incorporated directly into an environmental review process document or other environmental document; and

(2)relied on and used by other Federal agencies in carrying out reviews of the project.

(f)(1)This section does not make the environmental review process applicable to the transportation planning process conducted under this title and chapter 53 of title 49.

(2)Initiation of the environmental review process as a part of, or concurrently with, transportation planning activities does not subject transportation plans and programs to the environmental review process.

(3)This section does not affect the use of planning products in the environmental review process pursuant to other authorities under any other provision of law or restrict the initiation of the environmental review process during planning.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (b)(1) and (d)(9), is Pub. 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 FAST Act, referred to in subsec. (d)(9), is the date of enactment of Pub. L. 114–94, which was approved Dec. 4, 2015.

Amendments

2015—Pub. L. 114–94 amended section generally. Prior to amendment, section related to integration of planning and environmental review.

Statutory Notes and Related Subsidiaries

Effective Date

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

Effective Date

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

§168 Integration of Planning and Environmental Review

Summary

Title 23, §168

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata