January 10, 2017
Docket Management Facility
U.S. Department of Transportation
1200 New Jersey Ave. SE.
West Building, Ground Floor, Room W12–140
Re: Update to U.S. Department of Transportation’s NEPA Implementing Procedures, Order
5610.1D (Docket No. DOT–OST–2016–0239)
To Whom it May Concern:
The American Association of State Highway and Transportation Officials (AASHTO) takes this
opportunity to submit these comments on the U.S. Department of Transportation’s proposed
Order 5610.1D, Procedures for Considering Environmental Impacts (Order 5610.1D). The
proposed order was issued for public comment on December 20, 2016 (81 Fed. Reg. 92966),
with a 21-day period for public comment. It would replace a previous order, 5610.1C, which
was issued in September 1979.
AASHTO is a nonprofit, nonpartisan association representing the State transportation
departments in the 50 states, the District of Columbia, and Puerto Rico. It represents the
departments with respect to all five transportation modes: air, highways, public transportation,
rail, and water. Its primary goal is to foster the development, operation, and maintenance of an
integrated national transportation system. Our members work closely with USDOT agencies to
operate, maintain, and improve the nation’s transportation system.
As set forth below, we have significant substantive and process objections to the proposed
revised order. We suggest it be withdrawn. We strongly object to the proposed timeline for
completing this update to the order. At a minimum, the comment period should be extended and,
if an order is to be adopted in this docket, it should be given a significantly delayed effective date
to allow time for practical adjustment to differences between this proposed order and current
practice under USDOT regulations, including the various OA regulations.
In addition, the 1979 order has become outdated and subsequent OA rules, policies and guidance
have replaced the need for an order of this breadth and depth. Based on initial review in the
limited time provided for comment, we have important substantive concerns with the overall
approach of this document, which is overly lengthy and repeats other existing guidance, while
also creating new requirements that could create confusion and slow down project delivery. We
have outlined these concerns in more detail below.
1. The USDOT Should Allow Additional Time for Comment and Should Take Time to
Consider Thoroughly All Comments Received.
The proposed order is a significant guidance document with far-reaching implications for the
environmental review process for transportation projects developed by each operating
administration (OA) within the USDOT. It touches on virtually every aspect of the
environmental review process and affects every transportation mode. It will trigger the need for
each OA to undertake additional rulemakings to conform the OA’s environmental regulations to
this USDOT order. It consists of a wholesale overhaul of the 1979 order, seeking to incorporate
numerous changes in law and policy that have occurred over the past several decades.
Despite the significance and far-reaching effects of this guidance document, the USDOT has
provided virtually no notice of its development and no meaningful opportunity for public input:

The USDOT did not provide advance notice that this order was being developed and did
not provide opportunities for AASHTO members or other transportation stakeholders to
provide input in developing the order.

Aside from the Federal Register notice, there was no public announcement or effort to
communicate that this proposed order had been issued or to invite public comment.

The Federal Register notice did not include the text of the proposed order, nor did it
include a link to a specific website location where the order could be found.

The Federal Register notice was issued on December 20, 2016, with a comment deadline
of January 10, 2017. The 21-day comment period extends over the holiday seasons,
when many of the agency staff who have the expertise needed to review this order are on
vacation and thus are unavailable to review the order.

The USDOT has received multiple requests for an extension of the comment period,
including comments from AASHTO and individual State DOTs, but has not granted even
a modest extension and has not responded to the comments.
The USDOT’s approach to seeking input on this proposed order simply does not allow sufficient
time for informed review and comment by AASHTO, individual State DOTs, or any of the other
many transportation agencies and stakeholders who would be affected by the order, which
addresses complex subject matter.
Moreover, a rushed approach to finalizing this document would not allow sufficient time for
consideration of any comments that the USDOT may receive. Indeed, this rushed approach also
would not allow sufficient time for individual OAs within USDOT to review the order and
provide their own input regarding potential unintended effects on the OA’s procedures.
We strongly object to this rushed process, and we urge the USDOT to extend the comment
period by at least 30 days, so that there is a meaningful opportunity for stakeholders to review
the order and provide informed comments. Such an extension is needed to ensure that the
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process for developing this order embodies the values of public participation, informed public
comment, and thoughtful decision-making – all goals that this order is intended to serve.
2. The Order Should be Substantially Revised to Improve Clarity, Recognize Differences
in Legal Requirements Among Modes, Avoid Increasing Requirements, and Avoid
Undermining Streamlining Initiatives.
We have concerns regarding the overall approach in the proposed order, as well as numerous
specific concerns regarding the text of the proposed order.
Our overall concern is that, rather than providing greater clarity and certainty, the proposed order
would add to confusion by creating yet another lengthy document that needs to be reviewed
when determining the legal requirements that apply to the NEPA process. Each OA already has
its own individual regulations and procedures, which are customized to address the specific
statutory requirements applicable to that OA. Each OA also is required to comply with
government-wide NEPA regulations and guidance issued by the Council on Environmental
Quality (CEQ) and other agencies. It is not necessary to re-state all of those existing
requirements, in different words, in a new USDOT-wide order. To the extent that the order
repeats existing requirements, it should at least identify any new or different requirements
established in the order. Practitioners should not have to comb through this order, line by line, to
determine if the USDOT has created new expectations or requirements that vary from
longstanding practices established in the regulations and guidance issued by the CEQ and
individual OAs.
Rather than repeating existing requirements and policies, a USDOT-wide NEPA order should
focus on the limited set of issues that involve multiple modes and/or the role of the Office of the
Secretary of Transportation (OST). For example, the USDOT-wide order could address
environmental reviews for multi-modal projects and for projects in which the OST serves as the
lead agency for the environmental review process. The order could also establish internal
USDOT procedures regarding coordination among OAs and with OST. These valid goals can be
achieved much more efficiently and effectively in a shorter and more focused order.
In addition to these over-arching concerns, we have identified a host of more specific questions
and concerns with the substance of the proposed order. We have included our compilation to
date of these questions and concerns in the attachment to this letter. Examples of concerns
identified to date include:

The proposed order appears to expand the list of ‘extraordinary circumstances’ that
prevent an action from qualifying for a categorical exclusion (CE) under NEPA. This
change would call into question States’ ability to apply CEs to hundreds of thousands of
individual highway projects every year. They would also open up new avenues of legal
challenge to the applicability of CEs.

The proposed order does not recognize the unique legal framework applicable to the
planning and development of highway and transit projects, which must be developed
through the statewide and metropolitan planning process under 23 USC 134 and 135. In
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particular, the guidance ignores concepts such as planning-environmental linkage (PEL)
and the need to meet fiscal constraint.

The proposed order gives examples of the types of projects for which an Environmental
Assessment (EA) or Environmental Impact Statement (EIS) normally should be prepared.
These examples are not necessarily representative of current practices and may be more
restrictive. In any case, these examples are best provided as part of the environmental
procedures of individual OAs, rather than in USDOT-wide guidance.

The proposed order creates numerous coordination requirements with OST and the
USDOT’s Office of General Counsel, which could contribute to project delays by adding
further layers of review within USDOT. Project sponsors already face a challenge in
coordinating with multiple levels of review within an individual OA. Moreover, USDOT
officials are always able to ask the department’s lawyers to look at issues when they
consider that to be appropriate. To insist on regularizing additional legal review of an
already complex and carefully reviewed process is contrary to the need to streamline
regulatory process.

The proposed order does not specifically address the issue of how its requirements –
including, for example, the requirement for coordination with OST – would apply in
States that have received NEPA assignment under 23 U.S.C. 326 and 327.
The proposed order does include some positive developments. For example, we welcome the
USDOT’s support for keeping environmental documents succinct and support the change from
three years to five years for issuing reevaluations. We also welcome the recognition that social
media and other electronic means can be used to provide public notice of the preparation of EAs
and EISs.
For further detail regarding issues and concerns, as well as aspects of the order that we support,
please refer to the attached table. This table reflects an initial assessment conducted in a
compressed timeframe, when many State DOT staff were unavailable or had only a brief time to
review this proposed order. If the comment period is extended, we expect to undertake a more
thorough review and submit additional comments.
We appreciate the opportunity to provide these comments. If you have any questions regarding
our comments, please contact Shannon Eggleston at (202) 624-3649.
Sincerely,
Bud Wright
Executive Director American Association of State Highway and Transportation Officials
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AASHTO Comments on U.S. Department of Transportation’s proposed Order 5610.1D,
Procedures for Considering Environmental Impacts
Section
Comments
Section 1 – Introduction
Section 1 - General
Ensure that NEPA statutory language is re-stated accurately and without change; recommend quoting as was done
in the previous DOT Order (5610.1C) rather than paraphrasing.
Section 3 – Definitions
Section 3(g)
Provide consistency through the order on the definition of “environment” – human, natural and physical terms are
used throughout the document.
Section 3(l)
Include state DOTs that have taken on NEPA assumption in this definition.
Section 4 – Implementation of
the Order
Section 4(a)(2)
Revise language to clarify that OA can continue to follow its own procedures until it revises procedures to conform
to this new DOT Order.
Section 4(a)(4)
Support distinction between must and should. We highlight recommendations for increased flexibility in later
comments.
Section 4(a)(3)
OAs adopting even stricter standards will create confusion and complexity.
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Section 4(b)
Make added layer of General Counsel review discretionary not mandatory.
Section 5 – General Provisions
Section 5(a)
Order recommendation for early start of environmental review must be reconciled with conflicting FHWA fiscal
constraint/NEPA requirements.
Section 5(d)
Support quality environmental document language.
Section 5(e)
Delete “with other past and present infrastructure decisions” as cumulative effects are well defined and this new
language creates confusion.
Section 5(i)
Clarify that only EAs and EISs that meet certain criteria of size and complexity are required to post on the board.
Work with the State DOTs to determine appropriate project milestones to post on the Permitting Dashboard.
Section 6 – Planning and
Coordination
Section 6(b)
Refer to CEQ guidance on secondary and cumulative impacts only- do not create new language/standards.
Section 6 - General
Reference to planning and environmental linkages, and programmatic mitigation should be added.
Section 8- Lead and
Cooperating Agencies
Section 8(c)(3)
Make OA participation as cooperating agency optional, not mandatory.
Section 9 – Class of Action
Determination
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Section 9(c)
Encourage OAs to develop their own criteria and procedures for making class of action determinations, as FHWA
and FTA have done in 23 CFR 771. Re-stating those criteria in this order creates the risk of inconsistency, which
creates new avenues for challenging these determinations.
Section 9(d)
Requirement to consider impacts of ‘past’ actions in making class-of-action determination is problematic. How far
in the past? 20 years? 50 years? 100 years? This creates potentially severe problems in making class-of-action
determinations.
Section 10 – Categorical
Exclusions
Section 10(b)
Refer to the list of extraordinary circumstance for CEs in 23 CFR 771.117 rather than creating a new expanded list
that will create confusion and require additional detail and analysis to make a CE decision.
Section 10(b)(4)
“Significant” should be changed to “substantial” as significant impact would change classification to EA or EIS.
Section 10(c)
Proposed list of CE’s do not match FHWA’s list in 23 CFR 771.117. Lists must match to avoid confusion and
unnecessary complexity, or make clear that this list is entirely separate from the FHWA, FTA, FRA, and FAA lists
of CEs and applies only to actions for which OST is serving as the NEPA lead agency.
Section 11 – Environmental
Assessments
Section 11(c)
Eliminate examples of actions that normally require EAs, as this creates confusion and may conflict with individual
OAs procedures and guidance; examples that relate to a particular mode should be addressed in the NEPA
procedures for that modal agency (e.g., FRA for passenger rail stations).
Section 11(e) & Section 11(j)
Supportive of the discretionary FR Notification and public comment as EAs are not required to have a “draft” and
“final” form.
Section 11 - General
Emphasis on developing EA as “concise public documents” is needed.
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Section 12 – FONSIs
Section 12(a)
Change “must” to “may” in the second sentence.
Section 12(c)
Support inclusion of mitigated FONSI.
Section 13 – EISs
Section 13(b)
Section 13(c) (1 and 2)
Eliminate examples of actions that normally require EISs as this creates confusion and may conflict with individual
OAs procedures and guidance; examples that relate to a particular mode should be addressed in the NEPA
procedures for that modal agency.
Clarify that the NOI is sent to the Federal Register before requirement for public review.
Section 15: Final
Environmental Impact
Statement
Section 15(a)
Use consistency in terminology- there is varying use of “major” and “substantive” in this section.
Section 17 – Tiering
Section 17(d)
Support programmatic agreement language.
Section 18 – Re-Evaluations &
Supplementation
Section 18(a)(2)
Support change from 3 years to 5 years for issuing reevaluations.
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Section 20 – Adoption of EISs
and EAs
Section 20(e)
Change “must” to “should” to be consistent with section 18(a).
Section 23 – Determination
under 4(f)
Section 23(a)
Support removing language about minimal effects.
Section 23(c)
USDOT should work with state DOTs to test proposed opportunities for integration to determine if they streamline
processes.
Section 23 - General
Add language encouraging the use of programmatic 4(f) documents.
Section 24 – Review of NEPA
documents
Section 24(b)
Make notification to Office of Policy discretionary, not mandatory.
Section 25 – Public
Involvement
Section 25(b)
Support including social media and other non-traditional methods of public involvement.
Section 25(d)(2)
Clarify that 15 day availability period is for draft EIS and EA documents, not CEs.
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