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Last Updated: Tuesday, February 21, 2012 11:14 AM
What is SAFETEA-LU?
SAFETEA-LU stands for the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. It was signed by President George W. Bush signed on August 10, 2005. SAFETEA-LU authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009, with extensions currently granted through September 2011. It covers a variety of transportation related issues including financing, congestion relief, improved safety, improved efficiency (such as coordinated planning and environmental streamlining), environmental stewardship, and transportation related research and studies.
Click here to hear an interactive presentation on sections 6002 and 6009. More detailed on-demand training for section 6002 compliance is also available.
How does SAFETEA-LU affect the Division of Environmental Analysis (DEA)?
SAFETEA-LU has numerous provisions that will impact the way Caltrans implements the NEPA environmental process. Click on the following summaries for the most pertinent sections for environmental planners:
Click here to hear an interactive presentation on sections 6002 and 6009. More detailed on-demand training for section 6002 compliance is also available.
Section 6002: Efficient Environmental Review Process
The following is a summary only. Please see the FHWA / FTA SAFETEA-LU Environmental Review Process Final Guidance for more detailed information.
Process is mandatory for environmental impact statement (EIS) level projects with a Notice of Intent (NOI) after August 10, 2005. For environmental assessments (EA), the “default” assumption is that the Section 6002 environmental review process will not be applied; it will only apply if all the lead agencies agree that it should. The process will not be applied to categorical exclusions.
- Overview of Process, Participating Agencies, and Required Coordination:
Flowchart of the Efficient Environmental Review Process: JPG (259 KB)
- Requires the lead agency to invite “participating agencies” into the environmental review process. Participating agencies are any federal or non-federal agency (including state, tribal, regional and local agencies) that may have an interest in the project. Federal agencies are required to be “participating” unless they declare in writing that they have no jurisdiction, no expertise or information, and don’t intend to comment on the project.
- Requires preparation of a coordination plan, inclusion of a schedule is encouraged. When the lead agencies include a schedule, it must be prepared in consultation (but not concurrence) with each participating agency, the project sponsor and the State.
- 6002 Coordination Plan Template MS Word (162 KB)
- Federal agencies must carry out their environmental consultation or permit review obligations concurrently, and in conjunction, with NEPA review to the maximum extent practicable.
- Lead agencies must give participating agencies and the public an opportunity for involvement in the development of the project’s purpose and need and range of alternatives.
- Lead agency defines the project purpose and need and range of alternatives to be considered. Lead agencies must also collaborate with participating agencies on methodologies to be used in evaluating alternatives. Concurrence from participating agencies on purpose and need, range of alternatives, and methodologies is not required.
- Allows the lead agency, in certain cases, to develop the preferred alternative to a higher level of detail than other alternatives in order to: 1) facilitate development of mitigation measures or 2) facilitate concurrent compliance with other applicable environmental laws. Request must be sent to appropriate HQ Environmental Coordinator and Chief, Environmental Management Office.
- Requires the Secretary of Transportation to report to the Senate and House on permit or consultation decisions that have not been completed by the later of either 180 days of project approval or permit application.
- Requires the lead agency and “participating agencies” to work cooperatively to identify and resolve issues that could delay completing environmental review or result in permit denial. Specifies approaches, including high-level issue resolution meetings.
- Joint Federal Lead Agency Status and Document Preparation
- 6002 (c)(3) provides that any project sponsor receiving highway or mass transit funds shall serve as joint federal lead agency under NEPA. FHWA’s final guidance interpreting this section of SAFEATEA-LU states that the direct recipient of federal funds for the project must serve as joint lead agency. Because the Department is the direct recipient of federal funds even for local assistance projects, this means that Caltrans must serve as joint federal lead agency.
- Local government agencies that are sub-recipients of Federal funds may be invited to be a joint lead agency at the discretion of FHWA and Caltrans.
- According to the FHWA's final guidance, any of the joint lead agencies (including a local agency that the other lead agencies have accepted as a joint lead agency) can prepare the environmental documents subject to applicable oversight and supervision requirements.
- Statute of Limitations
- 6002 (l) Institutes a statute of limitations of 180 days for legal action against NEPA or permit decisions as long as a notice in published in the Federal Register.
- SAFETEA-LU Section 6002 establishes a 180-day statute of limitation on NEPA lawsuits provided FHWA publishes a notice of its final action (e.g. ROD) in the Federal Register.
- If no notice is published, the current 6-year statute of limitation for NEPA legal challenges still applies. This gives potential litigants 5 1/2 more years to file suit against our projects!
- FHWA is the decision-maker for deciding whether to publish the notice; they make the decision with input from the State (Caltrans).
- FHWA anticipates that it will file notices for most EIS projects and many EA projects.
- We can ask FHWA to file notices for projects retroactively. For example, if you have a project for which a final action has already been taken and you want to take advantage of the shortened (180 day) statute of limitations, we can ask FHWA to publish a notice now and that would start the "shortened" clock.
Please see the FHWA / FTA SAFETEA-LU Environmental Review Process Final Guidance, which superseded the December 1, 2005 interim guidance on limitation of claims, for more detailed information.
Section 6003: Delegation for Recreational Trail and Transportation Enhancement Projects
Creates pilot programs for states to assume any of the Secretary of Transportation responsibilities for environmental reviews for recreational trails and transportation enhancement projects.
Note: The Department is not pursuing this delegation.
Section 6004: Delegation of Categorical Exclusions
Allows the Secretary to delegate NEPA Categorical Exclusion (CE) determination authority to the states through execution of a Memorandum of Understanding (MOU). Also allows the states to assume the Secretary's other federal environmental coordination and consultation responsibilities (e.g. Section 7, Section 106) for these projects.
For additional information, visit DEA's National Environmental Policy Act (NEPA) Delegation Pilot Program web page at http://www.dot.ca.gov/hq/env/nepa_pilot/index.htm, or contact Dale Jones, SAFETEA-LU Environmental Delegation Manager at (916) 653-5157.
Section 6005: NEPA Delegation Pilot
Pilot delegation program allowing five named states (Alaska, California, Ohio, Oklahoma, and Texas) to assume the Secretary’s NEPA responsibilities for “1 or more highway projects.” Also allows the states to assume the Secretary’s other federal environmental coordination and consultation responsibilities (e.g. Section 7, Section 106) for these projects. Requires the Secretary to promulgate regulations establishing pilot application information requirements within 270 days of enactment. Pilot period is 6 years.
For additional information, visit DEA's National Environmental Policy Act (NEPA) Delegation Pilot Program web page at http://www.dot.ca.gov/hq/env/nepa_pilot/index.htm, or contact Dale Jones, SAFETEA-LU Environmental Delegation Manager at (916) 653-5157
Section 6007: Exemption of Interstate Highway System
For purposes of Section 106, the Interstate Highway System as a whole would not be considered a historic property, though individual segments of the Interstate could still be found eligible for listing in the National Register if those segments were of national or exceptional significance. Even should there be a historically significant element, such a designation does not prohibit construction, maintenance, restoration and rehabilitation activities from occurring on those portions.
Section 6009: Section 4(f)—De Minimis & Prudent and Feasible
The following is a summary only. Please see FHWA Guidance on Determining De Minimis Impacts to Section 4(f) Resources for more detailed information.
Under specified conditions, transportation programs or projects may be found to have a de minimis impact on resources protected by Section 4(f) of the Department of Transportation Act (i.e., public parks, recreation areas, wildlife and waterfowl refuges, and historic sites). No further evaluation of these resources will be necessary under Section 4(f).
Within one year of enactment, the Secretary of Transportation is required to promulgate regulations to clarify the standards for determining the prudence and feasibility of alternatives. The Secretary is also required to make future reports about the efficiencies that result from this section, including project-specific data. To aid this data collection, the Department must notify the FHWA when a de minimis impact finding is proposed and used for a project. This reporting is done through HQ when FHWA requests the information, which is approximately annually.
Here are some key points for CT Environmental Planners:
- Effective immediately upon enactment of SAFETEA-LU, the de minimis impact criteria may be applied to projects currently in the project development process.
- The FHWA Division administrator or FTA Regional Administrator (or Caltrans, as assigned by FHWA) is responsible for making the de minimis impact findings.
- For projects that are eligible to use the new de minimis provision, put a brief statement to that effect in the cultural resources and/or parks and recreation section(s) of the environmental document. If the project qualifies for a categorical exclusion, write a memo to the project file stating that the de minimis provision was used for the project.
- Additional Information regarding projects that may use a park, recreation area or wildlife and waterfowl refuge
- De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not adversely affect the activities, features, and attributes of the 4(f) resource. When making this determination, it is important to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those that can be used without adverse effects—for example, playground equipment versus parking facilities. The de minimis finding considers avoidance, minimization, mitigation, and/or enhancement measures.
- The official(s) with jurisdiction over the property must provide written concurrence with the de minimis finding and the public must be afforded the opportunity to review and comment on the effects of the project on the identified 4(f) resources.
- In most cases, a separate public review process, with a public notice or opportunity to comment, is NOT necessary. The information supporting the de minimis impact finding will be included in the NEPA document and the public will be afforded an opportunity to comment during the formal NEPA process. However, for those actions that do not usually require public review and comment, such as reevaluations and categorical exclusions, a public notice and opportunity for review and comment will be needed. For those projects, the level of public review should be commensurate with the sensitivity of the Section 4(f) resource and the use.
- For projects that may use a park, recreation area, or wildlife and waterfowl refuge,
- Additional Information regarding projects that may use a historic site:
- For historic sites, a de minimis finding may be made in either of two conditions: the project will have no adverse effect on the historic site under Section 106 of the National Historic Preservation Act; or there will be no historic properties affected. Mitigation and enhancements may be used to offset impacts. The State Historic Preservation Officer (or Tribal Historic Preservation Officer), and the Advisory Council on Historic Preservation, as appropriate, must provide their concurrence in writing.
- When a Programmatic Agreement is in place for Section 106, FHWA or FTA (or Caltrans, as assigned by FHWA) must inform the SHPO in writing that a non-response for the purposes of a "no adverse affect" or a "no historic properties affected" determination will be treated as the written concurrence for the de minimis determination.
- FHWA published their Final Rule for Section 6009 in the Federal Register on March 12, 2008. The Final Rule moved the Section 4(f) regulation to 23 CFR 774.
Section 6010: Exemption for Intelligent Transportation Systems
Requires the Secretary of Transportation to initiate rulemaking within 1 year to establish Intelligent Transportation System (ITS) activities as CEs to the extent appropriate. Also requires the Secretary to develop a national programmatic agreement for ITS and Section 106 of the National Historic Preservation Act.
What Other Provisions of SAFETEA-LU may be of Interest to Environmental?
Section 6001: Metropolitan Planning
- • MPOs will be encouraged to consult or coordinate with planning officials responsible for other types of planning activities affected by transportation, including planned growth, economic development, environmental protection, airport operations, and freight movement [6001, amended 23 USC 134(g)].
- Regional Transportation Plan (RTP) will be updated every 4 years (unless the MPO chooses to do so more frequently) in non-attainment and maintenance areas. Attainment areas remain on a 5-year update cycle [6001, amended 23 USC 134(i)].
- RTP will be required to include a discussion of potential environmental mitigation activities along with potential sites to carry out the activities to be included. The discussion is to be developed in consultation with federal, state, tribal, wildlife, land management, and regulatory agencies [6001, amended 23 USC 134(i)].
- MPOs are required to consult with state and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation concerning development of the Plan [6001, amended 23 USC 134(i)].
- Representatives of users of pedestrian walkways, bicycle transportation facilities, and the disabled are specifically added as parties to be provided with the opportunity to participate in the planning process [6001, amended 23 USC 134(i)].
- The MPO is to develop a participation plan in consultation with interested parties that provides reasonable opportunities for all parties to comment [6001, amended 23 USC 134(i)].
- To carry out the participation plan and to the maximum extent practicable, MPOs are to conduct public meetings at convenient and accessible locations at convenient times; employ visualization techniques to describe plans; and make public information available in an electronically accessible format, such as on the Web [6001, amended 23 USC 134(i)].
- The RTP is to be published and made available electronically, such as on the Web [6001, amended 23 USC 134(i)].
FHWA published their Final Rule for Section 6001 in the Federal Register on February 14, 2007.
Section 6008 mandates the integration of natural resource concerns into transportation planning.
Section 6011: Transportation Conformity
The following changes were made to the Clean Air Act's Conformity Provisions:
- Changes the trigger for redetermination of conformity after certain air quality planning actions from 18 months to 2 years.
- Changes the frequency of conformity for plans and Transportation Improvement Plans (TIPs) from every three years to every four years AND provides the option for Metropolitan Planning Organizations (MPOs) to shorten time lines for conformity determinations.
- Allows Transportation Control Measures (TCMs) to be substituted or to be added to existing TCMs without a State Implementation Plans (SIP) mechanism .
- Provides a 12-month grace period before a lapse occurs after an applicable deadline is missed.
- Limits conformity State Implementation Plans (SIPs) requirements to interagency consultation and enforcement provisions.
The US EPA, in consultation with the US DOT published their final rule in the Federal Register on January 24, 2008. More information regarding transportation conformity can be found at FHWA's Air Quality Transportation Conformity webpage.
Section 1503 deals with design-build and states that the Secretary of Transportation must issue revised regulations that will allow transportation agencies to proceed with certain actions prior to receipt of final NEPA approval.
Where Can I Go for More Information on SAFETEA-LU?
- FHWA (Federal Highway Administration) Main SAFETEA-LU page (for the text of the legislation itself click on “legislation” then select the viewing format under “public law 109-59”). This page links to a cross-reference page that section by section links the legislation with associated rulemakings and guidance documents.
- FHWA Guidance on Determining De Minimis Impacts to Section 4(f) Resources
- FHWA / FTA SAFETEA-LU Environmental Review Process Final Guidance