§ 139. Efficient environmental reviews for project decisionmaking and One Federal Decision

Subsec. (h)(7)(B)(ii). Pub. L. 114–94, § 1304(h)(3)(B), added cl. (ii) and struck out former cl. (ii). Prior to amendment, text read as follows: “The date referred to in clause (i) is the later of—

“(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and

“(II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).”

Subsec. (h)(8). Pub. L. 114–94, § 1304(h)(1)(A), redesignated par. (7) as (8).

Subsec. (j)(1). Pub. L. 114–94, § 1304(i)(1), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: “For a project that is subject to the environmental review process established under this section and for which funds are made available to a State under this title or chapter 53 of title 49, the Secretary may approve a request by the State to provide funds so made available under this title or such chapter 53 to affected Federal agencies (including the Department of Transportation), State agencies, and Indian tribes participating in the environmental review process for the projects in that State or participating in a State process that has been approved by the Secretary for that State. Such funds may be provided only to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery for projects in that State.”

Subsec. (j)(2). Pub. L. 114–94, § 1304(i)(2), inserted “activities directly related to the environmental review process,” before “dedicated staffing,”.

Subsec. (j)(6). Pub. L. 114–94, § 1304(i)(3), added par. (6) and struck out former par. (6). Prior to amendment, text read as follows: “Prior to providing funds approved by the Secretary for dedicated staffing at an affected Federal agency under paragraphs (1) and (2), the affected Federal agency and the State agency shall enter into a memorandum of understanding that establishes the projects and priorities to be addressed by the use of the funds.”

Subsecs. (n), (o). Pub. L. 114–94, § 1304(j)(1), added subsec. (n) and (o).

2012—Subsec. (b)(2). Pub. L. 112–141, § 1305(a)(1), inserted “, and any requirements established under this section may be satisfied,” after “exercised”.

Subsec. (b)(3). Pub. L. 112–141, § 1305(a)(2), added par. (3).

Subsec. (c)(1). Pub. L. 112–141, § 1305(b)(1), designated existing provisions as subpar. (A), inserted subpar. heading, and added subpar. (B).

Subsec. (d)(4). Pub. L. 112–141, § 1305(c)(1), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: “Designation as a participating agency under this subsection shall not imply that the participating agency—

“(A) supports a proposed project; or

“(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.”

Subsec. (d)(7). Pub. L. 112–141, § 1305(c)(2), added par. (7) and struck out former par. (7). Prior to amendment, text read as follows: “Each Federal agency shall, to the maximum extent practicable—

“(A) carry out obligations of the Federal agency under other applicable law concurrently, and in conjunction, with the review required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), unless doing so would impair the ability of the Federal agency to carry out those obligations; and

“(B) formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.”

Subsec. (e). Pub. L. 112–141, § 1305(d), designated existing provisions as par. (1), inserted par. heading, and added par. (2).

Subsec. (g)(1)(B)(i). Pub. L. 112–141, § 1305(e), inserted “and the concurrence of” after “consultation with”.

Subsec. (h)(4) to (7). Pub. L. 112–141, § 1306, added pars. (4) to (7) and struck out former par. (4) which related to issue resolution.

Subsec. (j)(6). Pub. L. 112–141, § 1307, added par. (6).

Subsec. (l). Pub. L. 112–141, § 1308, substituted “150 days” for “180 days” in pars. (1) and (2).

Subsec. (m). Pub. L. 112–141, § 1309, added subsec. (m).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

Effective Date of 2015 Amendment

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.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

Implementation of Programmatic Compliance

Pub. L. 114–94, div. A, title I, § 1304(k), Dec. 4, 2015, 129 Stat. 1386, provided that: “(1) Rulemaking.—Not later than 1 year after the date of enactment of this Act [Dec. 4, 2015], the Secretary [of Transportation] shall complete a rulemaking to implement the provisions of section 139(b)(3) of title 23, United States Code, as amended by this section. “(2) Consultation.—Before initiating the rulemaking under paragraph (1), the Secretary shall consult with relevant Federal agencies, relevant State resource agencies, State departments of transportation, Indian tribes, and the public on the appropriate use and scope of the programmatic approaches. “(3) Requirements.—In carrying out this subsection, the Secretary shall ensure that the rulemaking meets the requirements of section 139(b)(3)(B) of title 23, United States Code, as amended by this section. “(4) Comment period.—The Secretary shall—“(A) allow not fewer than 60 days for public notice and comment on the proposed rule; and “(B) address any comments received under this subsection.”

Existing Environmental Review Process

Pub. L. 109–59, title VI, § 6002(b), Aug. 10, 2005, 119 Stat. 1865, provided that: “Nothing in this section [enacting this section and repealing provisions set out as a note under section 109 of this title] affects any existing State environmental review process, program, agreement, or funding arrangement approved by the Secretary [of Transportation] under section 1309 of the Transportation Equity Act for the 21st Century [Pub. L. 105–178] (112 Stat. 232; 23 U.S.C. 109 note) as such section was in effect on the day preceding the date of enactment of the SAFETEA–LU [Aug. 10, 2005].”

Executive Documents

Memoranda of Agency Agreements for Early Coordination

Pub. L. 112–141, div. A, title I, § 1320, July 6, 2012, 126 Stat. 551, provided that: “(a) In General.—It is the sense of Congress that—“(1) the Secretary [of Transportation] and other Federal agencies with relevant jurisdiction in the environmental review process should cooperate with each other and other agencies on environmental review and project delivery activities at the earliest practicable time to avoid delays and duplication of effort later in the process, head off potential conflicts, and ensure that planning and project development decisions reflect environmental values; and “(2) such cooperation should include the development of policies and the designation of staff that advise planning agencies or project sponsors of studies or other information foreseeably required for later Federal action and early consultation with appropriate State and local agencies and Indian tribes. “(b) Technical Assistance.—If requested at any time by a State or local planning agency, the Secretary and other Federal agencies with relevant jurisdiction in the environmental review process, shall, to the extent practicable and appropriate, as determined by the agencies, provide technical assistance to the State or local planning agency on accomplishing the early coordination activities described in subsection (d). “(c) Memorandum of Agency Agreement.—If requested at any time by a State or local planning agency, the lead agency, in consultation with other Federal agencies with relevant jurisdiction in the environmental review process, may establish memoranda of agreement with the project sponsor, State, and local governments and other appropriate entities to accomplish the early coordination activities described in subsection (d). “(d) Early Coordination Activities.—Early coordination activities shall include, to the maximum extent practicable, the following:“(1) Technical assistance on identifying potential impacts and mitigation issues in an integrated fashion. “(2) The potential appropriateness of using planning products and decisions in later environmental reviews. “(3) The identification and elimination from detailed study in the environmental review process of the issues that are not significant or that have been covered by prior environmental reviews. “(4) The identification of other environmental review and consultation requirements so that the lead and cooperating agencies may prepare, as appropriate, other required analyses and studies concurrently with planning activities. “(5) The identification by agencies with jurisdiction over any permits related to the project of any and all relevant information that will reasonably be required for the project. “(6) The reduction of duplication between requirements under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and State and local planning and environmental review requirements, unless the agencies are specifically barred from doing so by applicable law. “(7) Timelines for the completion of agency actions during the planning and environmental review processes. “(8) Other appropriate factors.”

Delegation of a Reporting Authority

Memorandum of President of the United States, Jan. 31, 2013, 78 F.R. 8351, provided:

Memorandum for the Secretary of Transportation

By the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby delegate to you the functions and authority conferred upon the President by section 1306 of the Moving Ahead for Progress in the 21st Century Act (MAP–21), Public Law 112–141, to make the specified reports to the Congress.

You are authorized and directed to notify the appropriate congressional committees and publish this memorandum in the Federal Register.