The following discussion is intended to provide an overview of the principal federal requirements affecting the development and maintenance of highways. These include federal laws, regulations, executive orders, agency advisories, policy memoranda, and guidance documents. Federal laws are enacted legislation that establish a set of rules or principles codified in the United States Code (USC). Federal regulations implement federal laws and are codified in the Code of Federal Regulations (CFR). DOT and Council on Environmental Quality (CEQ) regulations implementing NEPA are codified in 23 CFR Part 771 ( United States Department of Transportation Environmental Impact and Related Procedures), and 40 CFR Parts 1500-1508 (Council on Environmental Quality Regulations Implementing NEPA). Environmental regulations have been promulgated by each federal agency. These include regulations promulgated by DOT, the U. S. Environmental Protection Agency (EPA), the U. S. Department of the Interior (USDOI), the U. S. Army Corps of Engineers (USACOE), and the U. S. Coast Guard (USCG), and can be found in the CFRs of the specific agency having jurisdiction over the environmental issue of concern.
In addition to NEPA and the resource-specific legislation summarized in Art. 1.3 of this chapter, there are a number of DOT requirements that affect the planning and environmental review of highway projects. These include
• Section 4(f) of the Department of Transportation Act of 1966 (23 USC §303)
• The Intermodal Surface Transportation Act of 1991 (Public Law 102-240)
• The Transportation Equity Act for the 21st Century (Public Law 105-178)
• The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Public Law 109-59, “SAFETEA-LU”)
• The National Highway Designation Act of 1995 (Section 29 of USC Title 23)
Provided below are brief descriptions of each of these statutes.
Section 4(f) of the Department of Transportation Act of 1966 (23 USC §303, “Section 4(f)”)- Section 4(f) prohibits the administrator of the Federal Highway Administration (FHWA) from approving the use of land from a significant publicly owned park, recreation area, or wildlife and waterfowl refuge, or any significant historic site for transportation purposes unless a determination is made that
• There is no feasible and prudent alternative to the use of land from the property.
• The action includes all possible planning to minimize harm to the property resulting from such use.
In addition, supporting information must demonstrate that there are unique problems or unusual factors involved in the use of alternatives that avoid these properties (“Avoidance Alternatives”) or that the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.
Section 6009(a) of SAFETEA-LU made the first substantive revision to Section 4(f) since its enactment in 1966. This section of SAFETEA-LU attempts to simplify the Section 4(f) process for projects that have only de minimis impacts on resources protected by Section 4(f). Under the new provisions, once DOT determines that a transportation use of a Section 4(f) resource results in a de minimis impact, analysis of avoidance alternatives is waived and the Section 4(f) process is deemed complete. Guidance for determining de minimis impacts to Section 4(f) resources was issued by FHWA and DOT on December 13, 2005. Section 6009(c) of SAFETEA-LU requires DOT to conduct a study and issue a report on the implementation of these new Section 4(f) provisions. The initial study and report is to address the first 3 years of its implementation.
Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-240, “ISTEA”). ISTEA was almost revolutionary in the breadth of how it looked at surface transportation, and the substantive role it played in regard to metropolitan planning organizations, localities, and states. Covering the period 1992 through 1997, it restructured the Federal Aid Highway Program, and placed the emphasis on maintenance rather than wholesale expansion of the highway network. In creating the Surface Transportation Program, ISTEA brought a new level of flexibility to the planning and implementation of highway and transit projects.
The Transportation Equity Act for the 21st Century (Public Law 105-178, “TEA-21”).
Enacted on June 9, 1998, TEA-21 authorized the Federal Surface Transportation Program for highways, highway safety, and transit for the 6-year period, 1998-2003, and increased the authorized funding level to $218 billion from $155 million under ISTEA. TEA-21 built upon ISTEA, allowing new initiatives, strengthening safety, and encouraging flexibility in how to maximize performance of the transportation system.
The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users of 2005 (Public Law 109-59, “SAFETEA-LU”). SAFETEA-LU built upon both ISTEA and TEA-21 included expanded programs in the areas of safety, equity, innovative financing, congestion relief, mobility and productivity, efficiency, and environmental stewardship. Of particular relevance to the consideration of environmental concerns affecting the development and implementation of highway projects, it included a number of changes aimed at streamlining the environmental review process. A new category of “participating agencies” was added to provide state, local, and tribal agencies with a formal role in the environmental review process, required that a schedule be defined for the participation of agencies in the project review process, established a 180-day statute of limitations for lawsuits challenging federal agency approvals, allowed for broader state assumption of responsibilities for categorical exclusions from environmental review, exempted the Interstate System from Section 4(f) and National Historic Preservation Act requirements (although individual segments may receive protection), modified the requirements for determining whether the conformity of local and statewide transportation plans conform to the Federal Clean Air Act, and, as previously discussed, included tightly circumscribed exemptions from “Section 4(f)” requirements.
National Highway System Designation Act of 1995 (Public Law 104-59, Section 109 of Title 23, USC). Following the substantial completion of the Interstate System, the transportation focus for many states shifted to congestion management and system preservation
projects that involve existing facilities. Working with community stakeholders to preserve and enhance the human and natural environment is a significant component of these projects. To address the challenges resulting from this new emphasis, many state transportation agencies and professional organizations have implemented a “context-sensitive design” (CSD) approach to project development.
The National Highway System Designation Act (Section 109 of Title 23, USC) was enacted in November 1995. The act indicated that design for new construction, reconstruction, resurfacing, restoration, or rehabilitation of highways on the National Highway System (other than a highway also on the Interstate System) may take into account
• The constructed and natural environment of the area
• The environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity
• Access for other modes of transportation
Five pilot states (Connecticut, Kentucky, Maryland, Minnesota, and Utah) were selected to implement the CSD approach to highway design. Principles for CSD can be found on the FHWA website at www. fhwa. got. gov/csd/principles.
