§ 47171 — Expedited, Coordinated Environmental Review Process

(a) The Secretary of Transportation shall implement an expedited and coordinated environmental review process for airport capacity enhancement projects, terminal development projects, general aviation airport construction or improvement projects, and aviation safety projects that— (1) provides for streamlined coordination among the Federal, regional, State, and local agencies concerned with the preparation of environmental impact statements or environmental assessments under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (2) provides that all environmental reviews, analyses, opinions, permits, licenses, and approvals that must be issued or made by a Federal agency or airport sponsor for such a project will be conducted concurrently, to the maximum extent practicable; and (3) provides that any environmental review, analysis, opinion, permit, license, or approval that must be issued or made by a Federal agency or airport sponsor for such a project will be completed within a time period established by the Secretary, in cooperation with the agencies identified under subsection (d) with respect to the project. (1) Any airport capacity enhancement project, terminal development project, or general aviation airport construction or improvement project shall be subject to the coordinated and expedited environmental review process requirements set forth in this section. (A) The Secretary may designate an aviation safety project for priority environmental review. (B) A designated project shall be subject to the coordinated and expedited environmental review process requirements set forth in this section. (i) The Secretary shall establish guidelines for the designation of an aviation safety project or aviation security project for priority environmental review. (ii) Guidelines established under clause (i) shall provide for consideration of— (I) the importance or urgency of the project; (II) the potential for undertaking the environmental review under existing emergency procedures under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (III) the need for cooperation and concurrent reviews by other Federal or State agencies; and (IV) the prospect for undue delay if the project is not designated for priority review. (1) Each Federal agency with jurisdiction over an environmental review, analysis, opinion, permit, license, or approval shall accord any such review, analysis, opinion, permit, license, or approval involving a project described or designated under subsection (b) the highest possible priority and conduct the review, analysis, opinion, permit, license, or approval expeditiously. (2) Each Federal agency described in subsection (d) shall formulate and implement administrative, policy, and procedural mechanisms to enable the agency to participate in the coordinated environmental review process under this section and to ensure completion of environmental reviews, analyses, opinions, permits, licenses, and approvals described in subsection (a) in a timely and environmentally responsible manner. (d) With respect to a project described or designated under subsection (b), the Secretary shall identify, as soon as practicable, all Federal and State agencies that may have jurisdiction over environmental-related matters that may be affected by the project or may be required by law to conduct an environmental-related review or analysis of the project or determine whether to issue an environmental-related permit, license, or approval for the project. (e) Under a coordinated review process being implemented under this section by the Secretary with respect to a project at an airport within the boundaries of a State, the Governor of the State, consistent with State law, may choose to participate in such process and provide that all State agencies that have jurisdiction over environmental-related matters that may be affected by the project or may be required by law to conduct an environmental-related review or analysis of the project or determine whether to issue an environmental-related permit, license, or approval for the project, be subject to the process. (f) The coordinated review process developed under this section may be incorporated into a memorandum of understanding for a project between the Secretary and the heads of other Federal and State agencies identified under subsection (d) with respect to the project and, if applicable, the airport sponsor. (1) The Secretary may utilize an interagency environmental impact statement team to expedite and coordinate the coordinated environmental review process for a project under this section. When utilizing an interagency environmental impact statement team, the Secretary shall invite Federal, State and Tribal agencies with jurisdiction by law, and may invite such agencies with special expertise, to participate on an interagency environmental impact statement team. (2) Under a coordinated environmental review process being implemented under this section, the interagency environmental impact statement team shall assist the Federal Aviation Administration in the preparation of the environmental impact statement. To facilitate timely and efficient environmental review, the team shall agree on agency or Tribal points of contact, protocols for communication among agencies, and deadlines for necessary actions by each individual agency (including the review of environmental analyses, the conduct of required consultation and coordination, and the issuance of environmental opinions, licenses, permits, and approvals). The members of the team may formalize their agreement in a written memorandum. (h) The Federal Aviation Administration shall be the lead agency for projects described in subsection (b)(1) and shall be responsible for defining the scope and content of the environmental impact statement, consistent with regulations issued by the Council on Environmental Quality. Any other Federal agency or State agency that is participating in a coordinated environmental review process under this section shall give substantial deference, to the extent consistent with applicable law and policy, to the aviation expertise of the Federal Aviation Administration. (1) If the Secretary determines that a Federal agency, State agency, or airport sponsor that is participating in a coordinated review process under this section with respect to a project has not met a deadline established under subsection (a)(3) for the project, the Secretary shall notify, within 30 days of the date of such determination, the Committee on Commerce, Science, and Transportation of the Senate, the Committee on Transportation and Infrastructure of the House of Representatives, the Council on Environmental Quality, and the agency or sponsor involved about the failure to meet the deadline. (2) Not later than 30 days after date of receipt of a notice under paragraph (1), the agency or sponsor involved shall submit a report to the Secretary, the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the Council on Environmental Quality explaining why the agency or sponsor did not meet the deadline and what actions it intends to take to complete or issue the required review, analysis, opinion, permit, license, or approval. (1) For any environmental review, analysis, opinion, permit, license, or approval that must be issued or made by a Federal or State agency that is participating in a coordinated review process under this section and that requires an analysis of purpose and need for the project, the agency, notwithstanding any other provision of law, shall be bound by the project purpose and need as defined by the Secretary. (2) The Secretary shall define the purpose and need of a project not later than 45 days after— (A) the submission of the appropriately completed proposed purpose and need description of the airport sponsor; and (B) any appropriately completed proposed revision to a development project that affects the purpose and need description previously prepared or accepted by the Federal Aviation Administration. (3) The Secretary shall provide all airport sponsors with technical assistance in drafting purpose and need statements and necessary supporting documentation for projects involving Federal approvals from more than 1 Federal agency. (k) The Secretary shall determine the reasonable alternatives to a project described or designated under subsection (b). Any other Federal agency, or State agency that is participating in a coordinated review process under this section with respect to the project shall— (1) consider only those alternatives to the project that the Secretary has determined are reasonable; and (2) limit the comments of the agency to— (A) subject matter areas within the special expertise of the agency; and (B) changes necessary to ensure the agency is carrying out the obligations of that agency under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other applicable law. (l) In applying subsections (j) and (k), the Secretary shall solicit and consider comments from interested persons and governmental entities in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and section 1503 of title 40, Code of Federal Regulations. (A) 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 Secretary of Transportation shall establish a plan for coordinating public and agency participation in and comment on the environmental review process for a project described or designated under subsection (b). The coordination plan may be incorporated into a memorandum of understanding. (B) The Secretary is encouraged to utilize cloud-based, interactive digital platforms to meet community engagement and agency coordination requirements under subparagraph (A). (i) The Secretary shall establish as part of such coordination plan, after consultation with and the concurrence of each participating agency for the project and with the State in which the project is located (and, if the State is not the project sponsor, with the project sponsor), a schedule for— (I) interim milestones and deadlines for agency activities necessary to complete the environmental review; and (II) completion of the environmental review process for the project. (ii) In establishing the schedule under clause (i), the Secretary shall consider factors such as— (I) the responsibilities of participating agencies under applicable laws; (II) resources available to the cooperating agencies; (III) overall size and complexity of the project; (IV) the overall 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 the project; and (V) the sensitivity of the natural and historic resources that could be affected by the project. (iii) To the maximum extent practicable and consistent with applicable Federal law, the Secretary shall develop, in concurrence with the project sponsor, a maximum schedule for the project described or designated under subsection (b) that is not more than 2 years for the completion of the environmental review process for such projects, as measured from, as applicable, the date of publication of a notice of intent to prepare an environmental impact statement to the record of decision. (I) Any issue or dispute that arises between the Secretary and participating agencies (or amongst participating agencies) during the environmental review process shall be addressed expeditiously to avoid delay. (II) The Secretary and participating agencies shall— (aa) implement the requirements of this section consistent with any dispute resolution process established in an applicable law, regulation, or legally binding agreement to the maximum extent permitted by law; and (bb) seek to resolve issues or disputes at the earliest possible time at the project level through agency employees who have day-to-day involvement in the project. (aa) The Secretary shall make information available to each cooperating and participating agency and project sponsor as early as practicable in the environmental review regarding the environmental, historic, and socioeconomic resources located within the project area and the general locations of the alternatives under consideration. (bb) The information described in item (aa) may be based on existing data sources, including geographic information systems mapping. (IV) Each cooperating and participating agency shall— (aa) identify, as early as practicable, any issues of concern regarding any potential environmental impacts of the project, including any issues that could substantially delay or prevent an agency from completing any environmental review or authorization required for the project; and (bb) communicate any issues described in item (aa) to the project sponsor. (V) If a dispute between the Secretary and participating agencies (or amongst participating agencies) causes a milestone to be missed or extended, or the Secretary anticipates that a permitting timetable milestone will be missed or will need to be extended, the dispute shall be elevated to an official designated by the relevant agency for resolution. The elevation of a dispute shall take place as soon as practicable after the Secretary becomes aware of the dispute or potential missed milestone. (VI) Disputes that do not impact the ability of an agency to meet a milestone may be elevated as appropriate. (VII) If a resolution has not been reached at the end of the 30-day period after a relevant milestone date or extension date after a dispute has been elevated to the designated official, the relevant agencies shall elevate the dispute to senior agency leadership for resolution. (D) A schedule under subparagraph (C) shall be consistent with any other relevant time periods established under Federal law. (i) Except as provided in clause (ii), the Secretary may lengthen or shorten a schedule established under subparagraph (C) for good cause. The Secretary may consider a decision by the project sponsor to change, modify, expand, or reduce the scope of a project as good cause for purposes of this clause. (I) The Secretary may lengthen a schedule under clause (i) for a cooperating Federal agency by not more than 1 year after the latest deadline established for the project described or designated under subsection (b) by the Secretary. (II) The Secretary may not shorten a schedule under clause (i) if doing so would impair the ability of a cooperating Federal agency to conduct necessary analyses or otherwise carry out relevant obligations of the Federal agency for the project. (F) — (i) the cooperating Federal agency shall, not later than 10 days after failing to meet the deadline, submit to the Secretary a report that describes the reasons why the deadline was not met; and (ii) the Secretary shall— (I) submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a copy of the report under clause (i); and (II) make the report under clause (i) publicly available on a website of the Department of Transportation. (G) A copy of a schedule under subparagraph (C), and of any modifications to the schedule under subparagraph (E), shall be— (i) provided to all participating agencies and to the State department of transportation of the State in which the project is located (and, if the State is not the project sponsor, to the project sponsor); and (ii) made available to the public. (2) The Secretary shall establish the following deadlines for comment during the environmental review process for a project: (A) For comments by agencies and the public on a draft environmental impact statement, a period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of such statement, unless— (i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or (ii) the deadline is extended by the lead agency for good cause. (B) For all other comment periods established by the lead agency for agency or public comments in the environmental review process, a period of not more than 45 days from availability of the materials on which comment is requested, unless— (i) a different deadline is established by agreement of the Secretary, the project sponsor, and all participating agencies; or (ii) the deadline is extended by the lead agency for good cause. (3) In any case in which a decision under any Federal law relating to a project described or designated under subsection (b) (including the issuance or denial of a permit or license) is required to be made by the later of the date that is 180 days after the date on which the Secretary made all final decisions of the lead agency with respect to the project or 180 days after the date on which an application was submitted for the permit or license, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate and publish on a website of the Department of Transportation— (A) as soon as practicable after the 180-day period, an initial notice of the failure of the Federal agency to make the decision; and (B) every 60 days thereafter until such date as all decisions of the Federal agency relating to the project have been made by the Federal agency, an additional notice that describes the number of decisions of the Federal agency that remain outstanding as of the date of the additional notice. (4) Nothing in this subsection shall reduce any time period provided for public comment in the environmental review process under existing Federal law, including a regulation. (1) Each participating agency and cooperating agency under the expedited and coordinated environmental review process established under this section shall— (A) carry out the obligations of such 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 such agency to conduct needed analysis or otherwise carry out such 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. (A) To the maximum extent practicable and consistent with Federal law, all Federal permits and reviews for a project shall rely on a single environmental document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under the leadership of the Secretary. (i) To the maximum extent practicable, the Secretary shall develop an environmental document sufficient to satisfy the requirements for any Federal approval or other Federal action required for the project, including permits issued by other Federal agencies. (ii) In carrying out this subparagraph, other participating agencies shall cooperate with the lead agency and provide timely information. (C) A Federal agency required to make an approval or take an action for a project, as described in this paragraph, shall work with the Secretary to ensure that the agency making the approval or taking the action is treated as being both a participating and cooperating agency for the project. (D) The Secretary may waive the application of subparagraph (A) with respect to a project if— (i) the project sponsor requests that agencies issue separate environmental documents; (ii) the obligations of a cooperating agency or participating agency under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) have already been satisfied with respect to the project; or (iii) the Secretary determines that reliance on a single environmental document (as described in subparagraph (A)) would not facilitate timely completion of the environmental review process for the project. (3) An agency participating in the expedited and coordinated environmental review process under this section shall— (A) provide comments, responses, studies, or methodologies on areas within the special expertise or jurisdiction of the agency; and (B) use the process to address any environmental issues of concern to the agency. (1) In preparing a final environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for a project described or designated under subsection (b), if the Secretary modifies the statement in response to comments that are minor and are confined to factual corrections or explanations of why the comments do not warrant additional agency response, the Secretary may write on errata sheets attached to the statement instead of rewriting the draft statement, subject to the condition that the errata sheets— (A) cite the sources, authorities, and reasons that support the position of the agency; and (B) if appropriate, indicate the circumstances that would trigger agency reappraisal or further response. (2) To the maximum extent practicable, for a project subject to a coordinated review process under this section, the Secretary shall expeditiously develop a single document that consists of a final environmental impact statement and a record of decision, unless— (A) the final environmental impact statement or record of decision makes substantial changes to the project that are relevant to environmental or safety concerns; or (B) there is a significant new circumstance or information relevant to environmental concerns that bears on the proposed action or the environmental impacts of the proposed action. (A) Except as provided in subparagraph (B), an environmental impact statement shall not exceed 150 pages, not including any citations or appendices. (B) An environmental impact statement for a proposed agency action of extraordinary complexity shall not exceed 300 pages, not including any citations or appendices. (1) Subject to paragraph (5) 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 a project described or designated under subsection (b): (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) A 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 such Act. (2) If a lead or cooperating agency makes a determination to adopt or incorporate by reference and use a planning product under paragraph (1), such agency shall identify the agencies that participated in the development of the planning products. (3) Such 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) The adoption or incorporation by reference of a planning product under paragraph (1) may— (A) be made at the time the lead and cooperating agencies decide the appropriate scope of environmental review for the project; or (B) occur later in the environmental review process, as appropriate. (5) Such agency in the environmental review process may adopt or incorporate by reference a planning product under this section if such agency determines, with the concurrence of the lead agency, if appropriate, 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, if appropriate, that the following conditions have been met: (A) The planning product was developed through a planning process conducted pursuant to applicable Federal law. (B) The planning product was developed in consultation with appropriate Federal and State resource agencies and Indian Tribes. (C) 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. (D) The planning process included public notice that the planning products produced in the planning process may be adopted during any subsequent environmental review process in accordance with this section. (E) During the environmental review process, the such agency has— (i) 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; (ii) provided notice of the intention of the such agency to adopt or incorporate by reference the planning product; and (iii) considered any resulting comments. (F) 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 or portions thereof. (G) The planning product has a rational basis and is based on reliable and reasonably current data and reasonable and scientifically acceptable methodologies. (H) 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. (I) 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. (6) Any planning product or portions thereof adopted or incorporated by reference by such agency in accordance with this subsection may be— (A) incorporated directly into an environmental review process document or other environmental document; and (B) relied on and used by other Federal agencies in carrying out reviews of the project. (1) The Secretary shall carry out a process to track, and annually submit to the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, the Committee on Natural Resources of the House of Representatives, and the Committee on Environment and Public Works of the Senate a report on projects described in subsection (b)(1) that contains the information described in paragraph (3). (2) For purposes of paragraph (3), the NEPA process— (A) for an environmental impact statement— (i) begins on the date on which a notice of intent is published in the Federal Register; and (ii) ends on the date on which the Secretary issues a record of decision, including, if necessary, a revised record of decision; and (B) for an environmental assessment— (i) begins on the date on which the Secretary makes a determination to prepare an environmental assessment; and (ii) ends on the date on which the Secretary issues a finding of no significant impact or determines that preparation of an environmental impact statement is necessary. (3) The information referred to in paragraph (1) is, with respect to the Federal Aviation Administration— (A) the number of proposed actions for which a categorical exclusion was applied by the Secretary during the reporting period; (B) the number of proposed actions for which a documented categorical exclusion was applied by the Secretary during the reporting period; (C) the number of proposed actions pending on the date on which the report is submitted for which the issuance of a documented categorical exclusion by the Secretary is pending; (D) the number of proposed actions for which an environmental assessment was issued by the Secretary during the reporting period; (E) the length of time the Administration took to complete each environmental assessment described in subparagraph (D); (F) the number of proposed actions pending on the date on which the report is submitted for which an environmental assessment is being drafted by the Secretary; (G) the number of proposed actions for which a final environmental impact statement was completed by the Secretary during the reporting period; (H) the length of time that the Secretary took to complete each environmental impact statement described in subparagraph (G); (I) the number of proposed actions pending on the date on which the report is submitted for which an environmental impact statement is being drafted; and (J) for the proposed actions reported under subparagraphs (F) and (I), the percentage of such proposed actions for which— (i) project funding has been identified; and (ii) all other Federal, State, and local activities that are required to allow the proposed action to proceed are completed. (4) In this section: (A) The term “environmental assessment” has the meaning given such term in section 1508.1 of title 40, Code of Federal Regulations (or a successor regulation). (B) The term “environmental impact statement” means a detailed statement required under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). (C) The term “NEPA process” means the entirety of the development and documentation of the analysis required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), including the assessment and analysis of any impacts, alternatives, and mitigation of a proposed action, and any interagency participation and public involvement required to be carried out before the Secretary undertakes a proposed action. (D) The term “proposed action” means an action (within the meaning of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)) under this title that the Secretary proposes to carry out. (E) The term “reporting period” means the fiscal year prior to the fiscal year in which a report is issued under subsection (a).