§ 168. Integration of planning and environmental review

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 2012

   Moving Ahead for Progress in the 21st Century Act

   Pub. L. 112–141 div. A title I § 1310(a) · 126 Stat. 405

   Enacted · 23 U.S.C. § 168

   Added Pub. L. 112–141, div. A, title I, § 1310(a), July 6, 2012, 126 Stat. 540

   Source evidence

   Code source credit
   Added Pub. L. 112–141, div. A, title I, § 1310(a), July 6, 2012, 126 Stat. 540

   Enacted provision · exact public law section
   (a) In General.— Chapter 1 of title 23, United States Code (as amended by section 1115(a)), is amended by adding at the end the following: “§ 168. Integration of planning and environmental review “(a) Definitions.— In this section, the following definitions apply: “(1) Environmental review process.— The term ‘environmental review process’ means the process for preparing for a project 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.). “(2) Planning product.— The term ‘planning product’ means a detailed and timely decision, analysis, study, or other documented information that— “(A) is the result of an evaluation or decisionmaking process carried out during transportation planning, including a detailed corridor plan or a transportation plan developed under section 134 that fully analyzes impacts on mobility, adjacent communities, and the environment; “(B) is intended to be carried into the transportation project development process; and “(C) has been approved by the State, all local and tribal governments where the project is located, and by any relevant metropolitan planning organization. “(3) Project.— The term ‘project’ has the meaning given the term in section 139(a). “(4) Project sponsor.— The term ‘project sponsor’ has the meaning given the term in section 139(a). “(b) Adoption of Planning Products for Use in NEPA Proceedings.— “(1) In general.— Subject to the conditions set forth in subsection (d), the Federal lead agency for a project may adopt and use a planning product in proceedings relating to any class of action in the environmental review process of the project. “(2) Identification.— When the Federal lead agency makes a determination to adopt and use a planning product, the Federal lead agency shall identify those agencies that participated in the development of the planning products. “(3) Partial adoption of planning products.— The Federal lead agency may adopt a planning product under paragraph (1) in its entirety or may select portions for adoption. “(4) Timing.— A determination under paragraph (1) with respect to the adoption of a planning product may be made at the time the lead agencies decide the appropriate scope of environmental review for the project but may also occur later in the environmental review process, as appropriate. “(c) Applicability.— “(1) Planning decisions.— Planning decisions that may be adopted pursuant to this section include— “(A) whether tolling, private financial assistance, or other special financial measures are necessary to implement the project; “(B) a decision with respect to modal choice, including a decision to implement corridor or subarea study recommendations to advance different modal solutions as separate projects with independent utility; “(C) a basic description of the environmental setting; “(D) a decision with respect to methodologies for analysis; and “(E) an identification of programmatic level mitigation for potential impacts that the Federal lead agency, in consultation with Federal, State, local, and tribal resource agencies, determines are most effectively addressed at a regional or national program level, including— “(i) system-level measures to avoid, minimize, or mitigate impacts of proposed transportation investments on environmental resources, including regional ecosystem and water resources; and “(ii) potential mitigation activities, locations, and investments. “(2) Planning analyses.— Planning analyses that may be adopted pursuant to this section include studies with respect to— “(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 cumulative effects on those resources, identified as a result of a statewide or regional cumulative effects assessment; and “(H) mitigation needs for a proposed action, or for programmatic level mitigation, for potential effects that the Federal lead agency determines are most effectively addressed at a regional or national program level. “(d) Conditions.— Adoption and use of a planning product under this section is subject to a determination by the Federal lead agency, with the concurrence of other participating agencies with relevant expertise and project sponsors as appropriate, and with an opportunity for public notice and comment and consideration of those comments by the Federal lead 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 by engaging in active 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) During the planning process, notice was provided through publication or other means to Federal, State, local, and tribal governments that might have an interest in the proposed project, and to members of the general public, of the planning products that the planning process might produce and that might be relied on during any subsequent environmental review process, and such entities have been provided an appropriate opportunity to participate in the planning process leading to such planning product. “(5) After initiation of the environmental review process, but prior to determining whether to rely on and use the planning product, the lead Federal agency has made documentation relating to the planning product available to Federal, State, local, and tribal governments that may have an interest in the proposed action, and to members of the general public, and has 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 and use in the environmental review process for the project. “(10) The planning product was approved not later than 5 years prior to date on which the information is adopted pursuant to this section. “(e) Effect of Adoption.— Any planning product adopted by the Federal lead agency in accordance with this section may be incorporated directly into an environmental review process document or other environmental document and may be relied upon and used by other Federal agencies in carrying out reviews of the project. “(f) Rules of Construction.— “(1) In general.— This section shall not be construed to make the environmental review process applicable to the transportation planning process conducted under this title and chapter 53 of title 49. “(2) Transportation planning activities.— 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) Planning products.— This section shall not be construed to affect the use of planning products in the environmental review process pursuant to other authorities under any other provision of law or to restrict the initiation of the environmental review process during planning.” .

2. 2015

   Fixing America’s Surface Transportation Act

   Pub. L. 114–94 div. A title I § 1305 · 129 Stat. 1312

   Amended · 23 U.S.C. § 168

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

   Source evidence

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

   Enacted provision · exact public law section
   SEC. 1305. INTEGRATION OF PLANNING AND ENVIRONMENTAL REVIEW.   Section 168 of title 23, United States Code, is amended to read as follows: “§ 168. Integration of planning and environmental review “(a) Definitions.— In this section, the following definitions apply: “(1) Environmental review process.— The term ‘environmental review process’ has the meaning given the term in section 139(a). “(2) Lead agency.— The term ‘lead agency’ has the meaning given the term in section 139(a). “(3) Planning product.— 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) Project.— The term ‘project’ has the meaning given the term in section 139(a). “(5) Project sponsor.— The term ‘project sponsor’ has the meaning given the term in section 139(a). “(6) Relevant agency.— The term ‘relevant agency’ means the agency with authority under subparagraph (A) or (B) of subsection (b)(1). “(b) Adoption or Incorporation by Reference of Planning Products for Use in NEPA Proceedings.— “(1) In general.— 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) Identification.— 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) Adoption or incorporation by reference of planning products.— 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) Timing.— 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) Applicability.— “(1) Planning decisions.— 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) Planning analyses.— 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) Conditions.— 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) Effect of Adoption or Incorporation by Reference.— 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) Rules of Construction.— “(1) In general.— 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) Transportation planning activities.— 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) Planning products.— 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.” .

   Effective date note
   Amendment 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.

2 of 2 references resolved to an enrolled provision