C.F.R. » Title 23 » CHAPTER I—FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION › SUBCHAPTER H—RIGHT-OF-WAY AND ENVIRONMENT › PART 771—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

23 C.F.R. § 771.130

Supplemental environmental impact statements

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(a) A draft EIS, final EIS, or supplemental EIS may be supplemented at any time. An EIS must be supplemented whenever the Administration determines:

(1) Changes to the proposed action would result in significant environmental impacts not evaluated in the EIS; or

(2) New information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS.

(b) However, a supplemental EIS will not be necessary where:

(1) The changes to the proposed action, new information, or new circumstances result in a lessening of adverse environmental impacts evaluated in the EIS without causing other reasonably foreseeable environmental impacts that are significant and were not evaluated in the EIS; or

(2) The Administration decides to approve an alternative fully evaluated in an approved final EIS but not identified as the preferred alternative. In such a case, a revised ROD must be prepared and circulated in accordance with § 771.127(b).

(c) Where the Administration is uncertain of the significance of the new impacts, the applicant will develop appropriate environmental studies or, if the Administration deems appropriate, an EA to assess the reasonably foreseeable impacts of the changes, new information, or new circumstances. If, based upon the studies, the Administration determines that a supplemental EIS is not necessary, the Administration must so indicate in the project file.

(d) A supplement is to be developed using the same process and format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except scoping is not required.

(e) In some cases, an EA or supplemental EIS may be required to address issues of limited scope, such as the extent of proposed mitigation or the evaluation of location or design variations for a limited portion of the overall project. Where this is the case, the preparation of a supplemental document must not necessarily:

(1) Prevent the granting of new approvals;

(2) Require the withdrawal of previous approvals; or

(3) Require the suspension of project activities, for any activity not directly affected by the supplement. If the changes in question are of such magnitude to require a reassessment of the entire action, or more than a limited portion of the overall action, the Administration must suspend any activities that would have an adverse environmental impact or limit the choice of reasonable alternatives, until the supplemental document is completed.

Notes of Decisions
Cited in 39 cases (6 in the last 5 years), 1988–2024 · leading case: Friends of the Capital Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051 (D.C. Cir. 2017).
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Friends of the Capital Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051 (D.C. Cir. 2017). · cites it 4× “” 23 C.F.R. § 771.130 (a)(2); see id. § 771.”
City of South Pasadena v. Slater, 56 F. Supp. 2d 1106 (C.D. Cal. 1999). · cites it 10× “23 C.F.R. § 771.130 (a); see also 40 C.F.”
Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004). · cites it 6× “” 23 C.F.R. § 771.130 (a). A SEIS is prepared using virtually the same process and format as an EIS.”
Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197 (1st Cir. 1999). · cites it 3× “The applicable FHWA regulation requires that the FHWA prepare an SEIS: (1) if changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS, or (2) if new information or circumstances bearing on the proposed action would…”
Russell Country Sportsmen v. United States Forest Serv., 668 F.3d 1037 (9th Cir. 2011). “” 23 C.F.R. § 771.130 (b). Section 1502.9(c) contains no similar language.”
Friends of Marolt Park v. United States Dep't of Transp., 382 F.3d 1088 (10th Cir. 2004). “The draft supplemental EIS considered the phased option in detail because at that stage the phased option was the preferred option. The Agency has determined a supplemental EIS is not required where the ROD selects an option not identified as the preferred option in the final…”
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “23 C.F.R. 771.130; see also 40 C.F.R. § 1502.”
Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999). “1990) (internal quotation marks omitted); see 23 C.F.R. § 771.130 .’ On June 13, 1995, the SHA submitted to the FHWA its reevaluation of the 1989 FEIS.”
Hickory Neighborhood Def. League v. Burnley, 703 F. Supp. 1208 (W.D.N.C. 1988). · cites it 2× “23 C.F.R. Section 771.130(a) (1987). The FHWA regulations specifically state that “[sjupplements will be necessary when there have been significant changes in the proposed action, the affected environment, the anticipated impacts, or the proposed mitigation measures.”
Piedmont Env't Council v. United States Dep't of Transp., 159 F. Supp. 2d 260 (W.D. Va. 2001). · cites it 3× “See 23 C.F.R. § 771.130 (a) (2000). In addition, NEPA regulations require an EA or other “appropriate environmental studies” if the significance of a change or new information is “uncertain.”
Prairie Band Pottawatomie Nation v. Fed. High. Admin., 751 F. Supp. 2d 1174 (D. Kan. 2010). · cites it 3× “10; 23 C.F.R. § 771.130 . NEPA regulations also require the FHWA to “determine and analyze expected traffic noise impacts and alternative noise abatement measures to mitigate these impacts.”
Sierra Club v. United States Dep't of Transp., 310 F. Supp. 2d 1168 (D. Nev. 2004). · cites it 2× “3d at 529; 23 C.F.R. § 771.130 (a) (FHWA regulations requiring SEIS in response to new information or circumstances).”
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— 23 C.F.R. § 771.130(a) — 1 case
Hickory Neighborhood Def. League v. Burnley, 703 F. Supp. 1208 (W.D.N.C. 1988). “23 C.F.R. Section 771.130(a) (1987). The FHWA regulations specifically state that “[sjupplements will be necessary when there have been significant changes in the proposed action, the affected environment, the anticipated impacts, or the proposed mitigation measures.”
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