23 U.S.C. § 168 — Integration of planning and environmental review

(a) Definitions. This section uses several terms defined elsewhere: "Environmental review process," "Lead agency," "Project," and "Project sponsor" all mean what section 139(a) says they mean. "Planning product" means a decision, analysis, study, or other documented result from a metropolitan planning organization's or a State's planning process under section 134 or 135. "Relevant agency" means the agency with authority described in subsection (b)(1)(A) or (B). (b) Adoption or Incorporation by Reference of Planning Products for Use in NEPA Proceedings. (1) As much as practical and appropriate, and subject to the conditions in subsection (d), two kinds of agencies may adopt or use a planning product in the environmental review of a project: (A) the lead agency, for documents like an environmental impact statement, environmental assessment, or categorical exclusion prepared under the National Environmental Policy Act of 1969; and (B) a cooperating agency, for a permit, approval, review, or study required by some other federal law, if doing so fits that law. (2) If an agency decides to adopt or use a planning product, it must identify which agencies helped develop it. (3) The agency may adopt the entire planning product, or just select portions of it. (4) The agency can make this decision when it first sets the scope of the project's environmental review, or later in the process, as appropriate. (c) Applicability. (1) Planning decisions: the agency may adopt decisions from a planning product, including (A) whether tolling, private financing, or other special financial measures are needed; (B) decisions about the general travel corridor or transportation mode, including splitting a corridor or subarea study into separate projects that can each stand on their own; (C) the project's purpose and need; (D) early screening that eliminates unreasonable alternatives; (E) a basic description of the surrounding environment; (F) the methods used for analysis; and (G) identification of mitigation planned at a national or regional level — including a programmatic mitigation plan developed under section 169 — when the agency decides those impacts are better handled at that larger scale, covering (i) steps to avoid, minimize, and mitigate national- or regional-scale impacts on things like ecosystems and water resources, and (ii) where and how that mitigation will happen. (2) Planning analyses: the agency may also adopt analyses of (A) travel demand; (B) regional development and growth; (C) local land use, growth management, and development; (D) population and employment; (E) natural and built environmental conditions; (F) environmental resources and environmentally sensitive areas; (G) likely environmental effects, including which resources are of concern and the direct, indirect, and cumulative effects on them; and (H) mitigation needs for the project, or for mitigation planned at a regional or national level, when the lead agency decides that level works best. (d) Conditions. The relevant agency may adopt a planning product only if it determines — with the lead agency's concurrence, and also the cooperating agency's concurrence if the product is needed for that agency's permit, review, or approval — that all of these are true: (1) the product came from a planning process conducted under applicable federal law; (2) it was developed in consultation with the appropriate federal and state resource agencies and Indian tribes; (3) the planning process broadly considered systems-level or corridor-wide transportation needs and effects, including effects on people and the natural environment; (4) the planning process gave public notice that its products might later be adopted in an environmental review; (5) during the environmental review, the agency (A) made the planning documents available for public and government review and comment, (B) gave notice that it intended to adopt the product, and (C) considered the comments it received; (6) there is no significant new information or new circumstance likely to affect the product's continued validity; (7) the product has a rational basis and relies on reliable, reasonably current data and scientifically acceptable methods; (8) it is documented in enough detail to support its conclusions and to meet the requirements for using it in environmental review; (9) it is appropriate for the project's environmental review and satisfies the National Environmental Policy Act of 1969 and 40 C.F.R. § 1502.21, as that regulation existed when the FAST Act was enacted; and (10) it was approved within the five years before it is adopted or used. (e) Effect of Adoption or Incorporation by Reference. A planning product adopted under this section may (1) be placed directly into an environmental review document, and (2) be relied on and used by other federal agencies doing their own reviews of the project. (f) Rules of Construction. (1) This section does not make transportation planning under this title and chapter 53 of title 49 subject to environmental review law. (2) Starting environmental review as part of, or alongside, transportation planning does not make the transportation plans and programs subject to environmental review. (3) This section does not affect how planning products are used under other laws, and does not stop environmental review from starting during planning.