(a) The lead agencies, in cooperation with the applicant and project sponsor, as appropriate, will perform the work necessary to complete the environmental review process. This work includes drafting environmental documents and completing environmental studies, related engineering studies, agency coordination, public involvement, and identification of mitigation measures. Except as otherwise provided in law or in paragraph (d) of this section, final design activities, property acquisition, purchase of construction materials or rolling stock, or project construction must not proceed until the following have been completed:
(1)(i) The Administration has classified the action as a CE;
(ii) The Administration has issued a FONSI; or
(iii) The Administration has issued a combined final EIS/ROD or a final EIS and ROD;
(2) For actions proposed for FHWA funding, the Administration has received and accepted the certifications and any required public hearing transcripts required by 23 U.S.C. 128;
(3) For activities proposed for FHWA funding, the programming requirements of 23 CFR part 450, subpart B, and 23 CFR part 630, subpart A, have been met.
(b) For FHWA actions, completion of the requirements set forth in paragraphs (a)(1) and (2) of this section is considered acceptance of the general project location and concepts described in the environmental review documents unless otherwise specified by the approving official.
(c) Letters of Intent issued under the authority of 49 U.S.C. 5309(g) are used by FTA to indicate an intention to obligate future funds for multi-year capital transit projects. Letters of Intent will not be issued by FTA until the NEPA process is completed. Letters of Intent issued by FRA under the authority of 49 U.S.C. 24911(g) may be issued prior to completion of the NEPA process.
(d) The prohibition in paragraph (a)(1) of this section is limited by the following exceptions:
(1) Early acquisition, hardship and protective acquisitions of real property in accordance with 23 CFR part 710, subpart E for FHWA. Exceptions for the acquisitions of real property are addressed in paragraphs (c)(6) and (d)(3) of § 771.118 for FTA.
(2) The early acquisition of right-of-way for future transit use in accordance with 49 U.S.C. 5323(q) and FTA guidance.
(3) A limited exception for rolling stock is provided in 49 U.S.C. 5309(l)(6).
(4) FRA may make exceptions on a case-by-case basis for purchases of railroad components or materials that can be used for other projects or resold.
Notes of Decisions
Sw. Williamson Cnty. Cmty. Ass'n v. Slater, 976 F. Supp. 1119 (M.D. Tenn. 1997).
· cites it 8× ““According to the Federal Highway Administration’s (FHWA) implementation of its environmental regulations found at 23 C.F.R. § 771.113 , a FONSI, standing alone, is not the final agency action.”
Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999).
· cites it 2× “See 23 C.F.R. § 771.113 . On the fundamental question of where the highway would be located, the ROD thus signaled the end of the decisionmaking process.”
Burkholder v. Peters, 58 F. App'x 94 (6th Cir. 2003).
· cites it 2× “23 C.F.R. § 771.113 (a)(l)(ii). Although federal regulations permit agencies to delegate responsibility for preparing an EA to a private contractor, such contractors must provide disclosure statements indicating that they have no “financial or other interest in the outcome of…”
Dep't of Transp. v. Blue, 556 S.E.2d 609 (N.C. Ct. App. 2001).
“125 (e); see also 23 C.F.R. § 771.113 (b). Here, NCDOT submitted the FEIS to FHWA for location approval to preserve the State’s option of obtaining federal funding in the future.”
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 963 F. Supp. 395 (D.N.J. 1997).
· cites it 2× “23 C.F.R. § 771.113 (a). Trump alleges, inter alia, that no Environmental Impact Statement or Finding of No Significant Impact has been approved with regard to the West-side Connector.”
Cnty. of Bergen v. Dole, 620 F. Supp. 1009 (D.N.J. 1985).
“9(e)(1), and an EIS has been prepared and approved, 23 C.F.R. 771.113, 40 C.F.R. § 1500.1 (b), 1501.”
City of South Pasadena v. Slater, 56 F. Supp. 2d 1106 (C.D. Cal. 1999).
“” 23 C.F.R. § 771.113 (a)(1)(iii). The plaintiffs argue that the Court should enjoin final design activities because these activities are dependent on the signing of a valid ROD.”
Save Barton Creek Ass'n v. Fed. High. Admin., 950 F.2d 1129 (5th Cir. 1992).
“23 C.F.R. § 771.113 . Furthermore, for a highway to qualify for federal-aid funding, it must also have its plans, specifications, and estimates approved by the FHWA, and receive prior concurrence from the FHWA before the award of the construction contracts.”
Citizens Against the Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412 (6th Cir. 2004).
“23 C.F.R. § 771.113 (a)(1). On June 7, 2002, a not-for-profit corporation called the Citizens Against the Pel-lissippi Parkway Extension, or CAPPE, filed suit against the FHWA and TDOT officials in federal district court to enjoin further action on the project.”
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