FAST Act Guidance

Fixing America's Surface Transportation (FAST) Act: 
Questions and Answers Related to 
Emergency Exemptions for Reconstruction Projects
Federal Highway Administration, Federal Railroad Administration, 
and Federal Transit Administration

December 22, 2016

Division A - Surface Transportation
Title I - Federal-aid Highways
Subtitle D - Miscellaneous
Section 1432 - Emergency Exemptions

Answer 1: Section 1432 provides an option to meet environmental requirements for certain reconstruction projects using expedited procedures that currently exist for the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), Sections 402 and 404 of the Clean Water Act (CWA), and Section 7 of the Endangered Species Act (ESA). Section 1432(b)(7) also provides an exemption from the Migratory Bird Treaty Act (MBTA), Wild and Scenic Rivers Act (W&SRA), and Fish and Wildlife Coordination Act (F&WCA) if the reconstruction project is also exempt under ESA pursuant to 1432(b)(5). These reconstruction projects are limited to repairs undertaken during or immediately after a disaster to restore essential traffic, to minimize the extent of the damage, or to protect remaining facilities, as well as repairs undertaken after the occurrence of the disaster to restore facilities to their pre-disaster conditions, without modifying the capacity, dimensions and design of the facility (See Question 2).

Section 1432 applies to the reconstruction of roads, highways, railways, bridges and transit facilities that are either operational or under construction and are damaged by an incident resulting in one of the following:

1. An emergency declaration by the Governor of the State, with the concurrence of the Secretary of Homeland Security, or
2. An emergency or major disaster declaration by the President pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. 5121 et seq. (Stafford Act).

Question 2: What limits does Section 1432 place on the scope of reconstruction activities?

Answer 2: When applying Section 1432, the project scope is limited to reconstruction of damaged facilities in the same location, and with the same capacity (as measured in anticipated traffic volumes), dimensions, and design, as it had before the declared emergency. Reconstruction activities covered by Section 1432 may not change the function or character, or extend beyond the footprint of the damaged facility. However, the reconstruction may include resiliency or hazard mitigation measures, as well as upgrades to codes and standards, as long as the reconstruction occurs within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function and location. Broader reconstruction activities can be undertaken by following the applicable environmental procedures and processes.

Question 3: Under Section 1432, are the relevant projects exempt from environmental review?

Answer 3: No. Section 1432 does not grant an exemption from all environmental review procedures, nor does it grant a waiver of the responsibility to coordinate with appropriate resource agencies. Instead, Section 1432(b) provides an option to meet environmental requirements for certain reconstruction projects using expedited procedures that are already in place for NEPA, NHPA, Sections 402 and 404 of the CWA, and Section 7 of the ESA. Generally, these expedited procedures existed prior to the passage of the FAST Act for recovery actions, and are now also available for reconstruction activities that meet the requirements of Section 1432.

Question 4: Must every reconstruction activity under Section 1432 use the NEPA Alternative Arrangements process in 40 CFR 1506.11?

Answer 4: No.  If the reconstruction activity is not expected to have significant environmental impacts, the agency does not have to follow the NEPA Alternative Arrangements process under 40 CFR 1506.11.  Instead, agencies may continue to use the applicable emergency provisions of their agency NEPA procedures (for example, some agencies have categorical exclusions under NEPA for recovery and/or reconstruction activities required in response to an emergency). 

Question 5 Where can I find more information on the NEPA Alternative Arrangements process?

Answer 5: For more information on the NEPA Alternative Arrangements process, please see the following resources.

1. Memorandum for Heads of Federal Departments and Agencies: Emergencies and the National Environmental Policy Act (May 10, 2010). https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Emergencies_and_NEPA_Memorandum_12May2010.pdf
2. Emergency Alternative Arrangements Under the National Environmental Policy Act, https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/Emergency_Alternative_Arrangements_Under_NEPA.pdf

Question 6: Where can I find more information on the Section 7 ESA emergency consultation process pursuant to the Joint Fish and Wildlife Service and National Marine Fisheries Service Regulations?

Answer 6: For more information on the regulatory emergency consultation process under Section 7 of ESA please see resources below.

1. Endangered Species Consultation Handbook, http://www.fws.gov/Endangered/esa-library/pdf/esa_section7_handbook.pdf (Chapter 8),
2. ESA and Emergency Consultations for National Defense, http://www.fws.gov/Endangered/esa-library/pdf/ESAandNationalDefense.pdf
3. Section 402.05 of Title 50 CFR, http://www.fws.gov/Endangered/esa-library/pdf/sec402_05.pdf

Question 7: How does Section 1432 of the FAST Act change the exemption process under ESA Section 7(p)?

Answer 7: The provision does not change the emergency consultation process or the emergency exemptions under the ESA. Existing ESA emergency consultation procedures apply whenever the Federal action agency determines its action meets the definition of an emergency under the ESA. The emergency exemptions detailed in Section 7(p) of the ESA apply to Presidentially declared disasters under the Stafford Act. Section 1432(b)(5-6) of the FAST Act provides that these provisions are applicable to the reconstruction of damaged transportation facilities where the State Governor declares an emergency and the Secretary of Homeland Security concurs in the emergency declaration. The typical ESA emergency consultation and emergency exemption processes will be applied in these circumstances.

Question 8: What triggers an exemption from the Migratory Bird Treaty Act, the Wild and Scenic Rivers Act, and the Fish and Wildlife Coordination Act for reconstruction projects?

Answer 8: Section 1432 creates new exemptions from the requirements of three laws: the MBTA, W&SRA, and the F&WCA. These exemptions only apply when the reconstruction of a damaged transportation facility is exempted first as a result of an ESA exemption process triggered by Section 1432(b)(5) of the FAST Act.