Surface Transportation Reauthorization Acts
Federal-aid highway funds are authorized by Congress to assist states in the construction, reconstruction, and improvement of highways and bridges on eligible Federal-aid highway routes. Authorizing legislation for highways began with the Federal-Aid Road Act of 1916 and the Federal Highway Act of 1921. These acts provided the foundation for the Federal-aid Highway Program as it exists today. Beginning with the Surface Transportation Assistance Act of 1978, which combined funding for highways and public transportation for the first time, Congress has passed highway legislation as part of larger, more comprehensive, multi-year transportation acts.
Surface transportation acts can vary in their scope and duration. Most surface transportation acts are multi-year bills, such as each of the bills outlined below (which cover the period 1992-2015). In recent years, an existing authorization is often extended many times for short periods while a new act is debated in Congress. For example, SAFETEA-LU (see below) was extended 10 times after it expired in 2009 until MAP-21 (see below) was passed in 2012. MAP-21 has been extended twice.
While early legislation focused on providing financing for highway construction, later reauthorizations have been much broader in purpose. For example, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) provided authorizations for highways, highway safety, and mass transit for the years 1992-1997. ISTEA was the first transportation authorization act to focus on multi-modal transportation and the integration of highway, rail, air, and marine transportation1. ISTEA introduced the Congestion Mitigation and Air Quality Improvement Program (CMAQ) and also introduced dedicated funding for Transportation Enhancement activities (replaced by MAP-21 with the Transportation Alternatives Program).
The Transportation Equity Act for the 21st Century (TEA-21) was enacted June 9, 1998 as Public Law 105-178. TEA-21 authorized the federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998-2003. TEA-21 was the first act to include an emphasis on environmental streamlining, which has continued in both subsequent acts (SAFETEA-LU and MAP-21—discussed below).
For more general information on federal surface transportation authorizations and funding, please see the Caltrans Standard Environmental Reference (SER) Chapter 1, under "Surface Transportation Reauthorization."
Suface Transportation Reauthorization Acts
FAST stands for the Fixing America's Surface Transportation Act (P.L 114-94) and was signed into law by President Obama on December 4, 2015. FAST authorizes the federal surface transportation program for highways, highway safety, transit, and rail and provides $305 billion over 5 years. It covers a variety of transportation-related issues including financing, state and metropolitan transportation planning, improved safety, project delivery and permitting efficiencies, freight movement, workforce training, and transportation-related research and studies.
MAP-21 stands for the Moving Ahead for Progress in the 21st Century Act (P.L. 112-141) and was signed into law by President Obama on July 6th, 2012. MAP-21 authorizes the federal surface transportation programs for highways, highway safety, and transit and provides funding of over $105 billion for fiscal years (FY) 2013 and 2014 (with extensions through 2015). MAP-21 is the first long-term highway authorization since SAFETEA-LU was enacted in 2005. It covers a variety of transportation related issues including financing, state and metropolitan transportation planning, congestion relief, improved safety, expedited project delivery, consolidation of federal programs, goods movement, and transportation related research and studies.
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 authorized the federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009, with extensions granted through September 2011. It covered 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.
How did SAFETEA-LU and MAP-21 affect the Division of Environmental Analysis (DEA)?
SAFETEA-LU and MAP-21 both emphasized accelerating project delivery including the environmental process and contained numerous provisions that have changed the way Caltrans implements the National Environmental Policy Act (NEPA) environmental process. SAFETEA-LU introduced a number of provisions that significantly changed the way the Department implements (NEPA). Most significant were the establishment of the "Efficient Environmental Review Process" and the introduction of "NEPA Pilot Program", both of which were further revised by MAP-21; NEPA Assignment is open to all states and is no longer a Pilot Program.
23 USC 139: Efficient Environmental Review Process
SAFETEA-LU enacted, and MAP-21 revised, the "Efficient Environmental Review Process" that is codified at 23 USC 139. The following is a summary only. For more information, please see Chapter 32, "Environmental Impact Statement" of the Caltrans Standard Environmental Reference (SER) and the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance for more detailed information. Please note that as of May 2015 this guidance is under revision to reflect the changes made by MAP-21.
The 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 environmental review process will not be applied. The process will not be applied to categorical exclusions. For more information on the process, please see Chapter 32 of the SER, "Environmental Impact Statement" the Training on Demand presentation "The 23 USC 139 (Formerly Section 6002) Efficient Environmental Review Process," and the following flowchart located in Chapter 32 of the SER:
23 USC 326: Assignment of Categorical Exclusions
SAFETEA-LU added Section 326 to Title 23 of United States Code (USC) to allow the United States Department Of Transportation (USDOT) Secretary, acting through FHWA, to assign responsibilities for certain Categorical Exclusion determinations to the Department through a memorandum of understanding (CE Assignment MOU), which became effective June 7, 2007, and is renewed every three years.
For more information, please see Chapter 38 of the SER, "NEPA Assignment
23 USC 327: NEPA Assignment
SAFETEA-LU also added Section 327 to Title 23 of USC to allow the five named states (Alaska, California, Ohio, Oklahoma, and Texas) to assume the Secretary's NEPA responsibilities for "1 or more highway projects." California participated in the "Surface Transportation Project Delivery Pilot Program" (Pilot Program) pursuant to 23 USC 327, for more than five years, beginning July 1, 2007, and ending September 30, 2012. With the Pilot Program, FHWA assigned, and the Department assumed, all of the USDOT Secretary's responsibilities under NEPA.
MAP-21 amended 23 USC 327 to establish a revised and permanent Surface Transportation Project Delivery Program. As a result, the Department entered into a memorandum of understanding pursuant to 23 USC 327 (NEPA Assignment MOU) with FHWA. The NEPA Assignment MOU became effective October 1, 2012 and terminates eighteen months from the effective date of FHWA regulations developed to clarify amendments to 23 USC 327 or on January 1, 2017. The NEPA Assignment MOU incorporates by reference Caltrans May 21, 2007 Pilot Program Application and the terms and conditions of the Pilot Program MOU and its amendments. In summary, the Department continues to assume FHWA responsibilities under NEPA and other federal environmental laws in the same manner as was assigned under the Pilot Program, with minor changes. Under NEPA Assignment, FHWA assigned and the Department assumed all of the USDOT Secretary's responsibilities under NEPA. This assignment includes projects on the State Highway System and Local Assistance Projects off of the State Highway System within the State of California, except for certain Categorical Exclusions that FHWA assigned to the Department under the 23 USC 326 CE Assignment MOU, projects excluded by definition, and specific project exclusions. For more information, please see Chapter 38 of the SER, "NEPA Assignment ."
Other Provisions of SAFETEA-LU and MAP-21
23 USC 103(c)(5): Exemption of Interstate Highway System
For purposes of Section 106, SAFTEA-LU established that 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/or rehabilitation activities from occurring on those portions.
23 USC 138 and 49 USC 303: Section 4(f)—de minimis
SAFETEA-LU Section 6009(a) amended 49 USC 303 and 23 USC 138 to allow the USDOT to determine that certain uses of 4(f) land will have only de minimis impacts on a protected Section 4(f) resource. When this is the case, and the responsible official with jurisdiction over the resource agrees in writing, the 4(f) process is now simplified. When the Department determines that a transportation use of Section 4(f) property, after consideration of any impact avoidance, minimization, and mitigation or enhancement measures, results in a de minimis impact on that property, no further Section 4(f) evaluation is required. The Department District/Region Senior Environmental Planner is authorized to approve de minimis findings. The District/Region is strongly encouraged to request the input of their HQ District Environmental Coordinator in completing these evaluations. For more information, please see SER Chapter 1, "Federal Requirements" and Chapter 20, "Section 4(f)."
23 CFR 771.117: New and Moved Categorical Exemptions
Map-21 created a number of new categorical exclusions (CEs) under 23 CFR 771.117. These include new CEs for emergency projects; geotechnical studies; environmental restoration and pollution abatement actions; the purchase, construction, replacement, or rehabilitation of ferry vessels; the rehabilitation or reconstruction of existing ferry facilities; projects located wholly within the operational right-of-way; and projects with limited federal assistance. MAP-21 also moved three CEs (d1, d2, and d3—which are now reserved for future use) from the "d" list to the "c" list (with certain constraints). To learn more about these changes, please see the CE Checklist on the SER Forms and Templates page, as well as two Fact Sheets prepared by the Environmental Management Office, which can be found on the SER Other Guidance page.
23 CFR 771.117(c)(21): New Categorical Exemption for Intelligent Transportation Systems
SAFETEA-LU Section 6010 required the Secretary of Transportation to initiate rulemaking within one year to establish Intelligent Transportation System (ITS) activities as CEs to the extent appropriate. This section also required the Secretary to develop a national programmatic agreement for ITS and Section 106 of the National Historic Preservation Act. 23 CFR 771.117(c)(21) became effective April 23, 2009.
What Other Provisions of SAFETEA-LU and/or MAP-21 may be of Interest to Environmental?
- To encourage more projects to use design-build contracting, SAFTEA-LU eliminated the $50 million threshold on the size of eligible contracts and revised 23 CFR Part 636 to allow state transportation agencies to issue design-build request-for-proposal documents, award contracts, and issue notices-to-proceed for preliminary design work prior to the conclusion of the NEPA process. For more information please see: http://dot.ca.gov/-hq/oppd/designbuild/db.htm.
- Section 1303 of MAP-21 authorized contracting agencies to use the Construction Manager/General Contractor (CM/GC) project delivery method. For more information please see: http://dot.ca.gov/-hq/oppd/cmgc/index.htm.
- MAP-21 allows the development of programmatic mitigation plans as part of the statewide or metropolitan transportation planning processes (23 USC 169).
- MAP-21 amended 23 USC 108 to allow, under certain circumstances, the early acquisition of "real property interests" prior to the completion of the NEPA process.
- MAP-21 allows for the adoption of planning products in NEPA "proceedings" such as modal choice, environmental setting, programmatic mitigation, travel demand analysis, cumulative impact assessment, etc. (23 USC 168).