The June 28, 2021, Rural Transportation website post on Planning and Environment Linkages Frequently Asked Questions mentions that provisions on PEL have existed since 2005. Congress enacted a new authority for PEL in 2012 (MAP-21) and amended the authority, 23 U.S.C. 168 Integration of Planning and Environment Review, in 2015 through the FAST Act. Section 168 provides a process by which lead, and cooperating agencies, may adopt or incorporate by reference a planning product to use during the environmental review process to the maximum extent practicable and appropriate.
Planning products may be adopted by an agency conducting environmental review (e.g., environmental assessment, environmental impact statement or other documentation) to meet National Environmental Policy Act (NEPA) requirements if the legal conditions for PEL are met during transportation planning product development and as long as the planning products meet PEL authority requirements and NEPA requirements.
Section 168 defines planning products to include purpose and needs statements, preliminary screening of alternatives and elimination of unreasonable alternatives, other planning decisions, and analyses.
Title 23 Authorities that Support Planning and Environment Linkages
Beyond Section 168, additional laws support the incorporation of transportation planning processes and products into environmental review in order to eliminate duplication of effort, encourage public engagement, promote transparency, and reduce time and paperwork. Planners will want to review the following sections of U.S. Code for a better understanding of how Title 23 and Title 40 address PEL.
23 U.S.C. 139(f)(4)(E)(ii) Efficient Environmental Reviews Statute
Section 139 focuses on eliminating repeated discussion in planning and environment documents, focusing on the key issues for analysis at each level of review, and complying with NEPA and other applicable laws. The Alternatives Analysis section addresses how a lead agency may eliminate from detailed consideration an alternative in an environmental impact statement if:
- The alternative was considered in a metropolitan planning organization (MPO) or state environmental review process by a state or local transportation agency.
- The lead agency provided guidance to the MPO or state or local transportation agency regarding analysis of alternatives, including guidance on NEPA requirements and other federal law necessary for approval of the project.
- The applicable MPO or state environmental review process included an opportunity for public review and comment.
- The federal lead agency independently reviewed the alternative evaluation approved by the applicable MPO or state or local transportation agency, determined in consultation with cooperating or participating agencies that the alternative eliminated is not necessary for NEPA compliance or that the alternative is not necessary for any permit or approval under any other federal law.
23 CFR 450.212 (a) – (c) Transportation Planning and Project Development
The results or decisions of transportation planning studies conducted by a state, MPO, or public transportation operator may be used as part of the overall project development process consistent with NEPA and associated implementing regulations. Publicly available documents or other source material produced by, or in support of, the transportation planning process may be incorporated directly or by reference into subsequent NEPA documents, in accordance with 40 CFR 1502.21, if the following are met:
- The systems-level, corridor, or subarea planning study is conducted with the involvement of interested State, local, tribal, and federal agencies.
- There is public review.
- Reasonable opportunity is provided to comment during the statewide transportation planning process and development of the corridor or subarea planning study.
- Documentation of relevant decisions is in a form that is identifiable and available for review during the NEPA scoping process and can be appended to or referenced in the NEPA document.
- With the review of the FHWA and the FTA, as appropriate.
By agreement of the NEPA lead agencies, the above integration may be accomplished through tiering. Tiering consists of incorporating the subarea or corridor planning study into the draft Environmental Impact Statement or Environmental Assessment, or other means that the NEPA lead agencies deem appropriate.
23 CFR 450.318 Transportation Planning Studies and Project Development
This authority states that the results or decisions of transportation planning studies conducted by states, MPOs, or transportation operators may be used as part of the overall project development process consistent with NEPA and associated implementing regulations if the same bulleted planning process steps listed above are adhered to.
Additional authorities focus on paperwork reduction, transparency regarding incomplete or unavailable information about environmental impacts that could have reasonably foreseeable significant adverse impacts, allowance for a state, MPO or transportation operator to identify one or more programmatic mitigation plans, and the contents and scopes of programmatic mitigation plans. Refer to the following sections of U.S. Code for requirements:
- 40 CFR 1500.4(j) Reducing Paperwork
- 40 CFR 1502.21 Incomplete or Unavailable Information
- 23 U.S.C. 169 Development of Programmatic Mitigation Plans
- 23 CFR 450.214 Development of Programmatic Mitigation Plans
- 23 CFR 450.320 Development of Programmatic Mitigation Plans Scope, Content and Adoption
The May 2020 FHWA presentation PEL Today is a useful overview for planners who would like to learn more about PEL and the federal authorities. The recording reinforces the general considerations that support efficient Planning and Environment Linkages.
The information shared in this Rural Transportation PEL post is for information purposes only and is not intended to replace federal guidance. Contact your FHWA division office or FTA regional office for questions and to confirm requirements.