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Environmental Review Provisions in BIL/IIJA

Questions and Answers (Q&A)

(September 8, 2022)

On November 15, 2021, the President signed into law the Bipartisan Infrastructure Law (BIL), enacted as 

the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58). The Surface Transportation 

Reauthorization portion of the BIL took effect on October 1, 2021 (See BIL § 10003). The BIL modified 

the environmental requirements at 23 U.S.C. § 139 (Efficient environmental reviews for project decision 

making and One Federal Decision), which is followed by the Federal Highway Administration (FHWA), 

Federal Railroad Administration (FRA), and Federal Transit Administration (FTA) (collectively the 

“Agencies”). The BIL also modified 23 U.S.C. § 138 (Section 4(f) Requirements) and added a new 23 

U.S.C. § 157 (National Environmental Policy Act (NEPA) Reporting Program). The following interim 

guidance provides Agency staff and project sponsors with direction regarding the changes to these 

processes. The Agencies will provide additional, in-depth guidance on applying BIL/IIJA provisions to the 

environmental process in the future.

Except for the statutes and regulations cited, the contents of this document do not have the force and 

effect of law and are not meant to bind the States or the public in any way. This document is intended 

only to provide information regarding existing requirements under the law or agency policies.

DEFINITIONS / APPLICABILITY REQUIREMENTS 

1. What is the effective date of amendments to the Sec. 139 environmental review process? 

Answer: The Agencies will apply the amended procedures to projects initiated (e.g., publication of a 

notice of intent (NOI) to develop an environmental impact statement (EIS) or determination to 

proceed with an environmental assessment (EA) following the Sec. 139 environmental review 

process) on or after October 1, 2021. For information about the applicability of 23 U.S.C. § 139 to 

new projects, project sponsors should contact their FHWA Division, FRA Headquarters, or FTA 

Regional office. 

2. Are NEPA Assignment States required to follow the revised Sec. 139 environmental review 

process? 

Answer: Yes. EIS or EA (following the Sec. 139 environmental review process) projects initiated on 

or after October 1, 2021 and covered under a NEPA Assignment agreement under 23 U.S.C. § 327 

must follow the revised Sec. 139 environmental review process. 
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3. Does the BIL add or modify any definitions that apply to the Sec. 139 environmental review 

process? 

Answer: Yes. The BIL modified the definition of “environmental review process” and added 

definitions for the terms “authorization”, “environmental document”, and “major project” (see 

Question #4). 

a. The “environmental review process” definition now includes the process and schedule, 

including a timetable for and completion of any environmental permit, approval, review, or 

study under any Federal law other than NEPA. See 23 U.S.C. § 139(a)(5).

b. The term “authorization” means “any environmental license, permit, approval, finding, 

or other administrative decision related to the environmental review process that is required 

under Federal law to site, construct, or reconstruct a project.” 23 U.S.C. § 139(a)(2). Examples 

include Clean Water Act permits and Endangered Species Act consultation. 

c. The term “environmental document” “includes an environmental assessment [EA], 

finding of no significant impact [FONSI], notice of intent [NOI], environmental impact statement 

[EIS], or record of decision [ROD] under the National Environmental Policy Act of 1969.” 23 

U.S.C. § 139(a)(3).

4. How does 23 U.S.C. § 139 define the term “major project” under the Sec. 139 environmental 

review process for an individual project? 

Answer: Within this guidance and consistent with 23 U.S.C. § 139(a)(7), the term “major project” 

means “a project for which — 

(i) multiple permits, approvals, reviews, or studies are required under a Federal law other than 

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 

(ii) the project sponsor has identified the reasonable availability of funds sufficient to complete 

the project;

(iii) the project is not a covered project (as defined in section 41001 of the FAST Act (42 U.S.C. 

4370m)); and 

(iv)(I) the head of the lead agency has determined that an EIS is required; or 

(II) the head of the lead agency has determined that an environmental assessment is required, 

and the project sponsor requests that the project be treated as a major project.” 

In Sec. 139 and this guidance, the term “major project” does not have the same meaning as the 

FHWA “major project” term described in 23 U.S.C. § 106(h). For purposes of this guidance, the term 

“major project” will refer to the term as defined for the Sec. 139 environmental review process.
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5. Do project sponsors need to request designation as a major project? 

Answer: The lead Federal agency (e.g., FHWA, FRA, or FTA) will determine whether a proposed 

action meets the definition of a major project during project initiation (see 23 U.S.C. § 139(e)). For 

EIS-level actions, project sponsors do not need to request their project be designated as a “major 

project;” the lead Federal agency will automatically review the project for this designation. For EAlevel actions, project sponsors that wish to have their project designated as a “major project” should 

contact their FHWA Division, FRA Headquarters, or FTA Regional office to request designation of a 

project as a “major project.” 

6. How is “reasonable availability of funds” defined?

Answer: The FHWA may rely on the listing of a project on a metropolitan long-range plan and 

statewide transportation improvement program (STIP) to determine if a project has a reasonable 

availability of funding. This is a project-by-project determination. FRA and FTA intend to provide 

additional guidance on this topic in the future. The project sponsors should contact their FHWA 

Division, FRA Headquarters, or FTA Regional office for questions in this topic. 

7. How are ‘multiple’ permits, approvals, reviews, or studies defined for a major project?

Answer: Two or more permits, approvals, reviews, or studies that are required under a Federal 

environmental law other than the NEPA (42 U.S.C. § 4321 et seq.). The Federal Environmental 

Review and Authorization Inventory lists potential federal authorizations for infrastructure projects. 

8. What is meant by a ‘covered project’ in the major project definition at 23 U.S.C. 139(a)(7)(A)(iii)?

Answer: The term "covered project" is defined as part of the Fixing America’s Surface 

Transportation Act, Title 41 (FAST-41) review process (see 42 U.S.C. § 4370m(6)). For FHWA, FRA 

and FTA projects, all projects that follow the Sec. 139 process are excluded from FAST-41 and are 

not defined as covered projects. 

PROCESS IMPROVEMENTS 

9. Did BIL Sec. 11301 add new schedule requirements for major projects? 

Answer: Yes. BIL Sec. 11301 modified 23 U.S.C. § 139(d)(10) to require all authorization decisions 

necessary for the construction of a major project to be completed not later than 90 days after the 

date of the issuance of a ROD for the major project. The EAs may be classified as major projects 

when certain conditions are met (see Question #5 above). Similarly, major project EA schedules 

would need to show all authorization decisions to be completed by not later than 90 days after the 

date of the issuance of a FONSI. However, the head of the lead agency may extend the deadline if: 

(1) Federal law prohibits the lead agency or another agency from issuing the approval or permit 

within the 90 days; (2) the project sponsor requests that the permit or approval follow a different 

timeline; or, (3) the lead agency determines that the extension would facilitate the completion of 

the major project’s environmental review and authorization process.
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10. Did BIL Sec. 11301 change the factors that should be considered when developing the project 

schedule? 

Answer: Yes. The BIL changed the schedule requirements for any project subject to the Sec. 139 

environmental review process. The coordination plan and schedule should continue to specify all 

anticipated opportunities for review and comment by the public and participating agencies. The 

Sec. 139 environmental review process allows the lead agencies to determine how detailed the 

schedule should be and whether to use specific dates or durations. Establishing a schedule involves 

consideration of the following factors, including those listed in 23 U.S.C. § 139(g)(1)(B)(ii):

• Responsibilities of participating agencies under applicable laws;

• Resources available to the cooperating agencies;

• Overall size and complexity of the project;

• Overall time required by an agency to conduct an environmental review and make decisions 

under applicable Federal law relating to a project (including the issuance or denial of a 

permit or license) and the cost of the project;

• Ability to have reviews occur concurrently;

• Sensitivity of the natural and historic resources that could be affected by the project; and

• Development of a combined FEIS/ROD (or EA, as applicable) to the maximum extent 

practicable, including identifying a Preferred Alternative in the DEIS when possible.

Sec. 11301 of the BIL also added schedule considerations specific to “major projects.” For “major 

projects,” to the maximum extent practicable and consistent with Federal law, the lead agency will 

develop, in concurrence with the project sponsor, a schedule that is consistent with an agency 

average of not more than 2 years for the completion of the environmental review process (23 U.S.C. 

§ 139(g)(1)(B)(iii)). All FHWA, FRA, or FTA projects initiated after October 1, 2021 that require 

development of an EIS (or EA, if requested by the project sponsor) and meet the definition of a 

“major project” are subject to the 2 year average schedule requirements. The completion of the 

environmental review process for a major project with an EIS is measured from the date of the 

Notice of Intent (NOI) publication to the issuance of the ROD for an EIS and, for an EA, from the date 

on which the lead agency determines that an EA is required to issuance of a FONSI (or decision to 

pursue an EIS). The established schedule must include milestones to complete the environmental 

review process and any other Federal, State, or local permit, approval, or review required for the 

project, and must be consistent with the timeframes in 40 CFR 1501.7(i).

11. If a schedule has been published, can it be modified?

Answer: Yes. The lead agency may modify an established schedule for good cause (23 U.S.C. 

139(g)(1)(D)(i)). However, in the case of a major project, the lead agency may lengthen a schedule 

for a cooperating Federal agency by not more than 1 year after the latest deadline established for 

the major project by the lead agency. A lead agency may not shorten a schedule if doing so would 

impair the ability of a cooperating Federal agency to conduct necessary analyses or otherwise carry 

out relevant obligations of the Federal agency for the major project. 
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12. Does BIL Sec. 11301 require reporting when a cooperating Federal agency fails to meet certain 

deadlines for major project schedules?

Answer: Yes. A cooperating Federal agency that fails to meet a major project deadline that was 

previously extended by the lead agency under 23 U.S.C. § 139(g)(1)(D)(ii)(I) must submit a report to 

the Secretary of Transportation (Secretary) that describes the reasons why the deadline(s) were not 

met. The Secretary must submit that report to the Committee on Environment and Public Works 

(Senate) and the Committee on Transportation and Infrastructure (House of Representatives) and 

make the report publicly available on the internet (23 U.S.C. § 139(g)(1)(E)).

13. Did BIL Sec. 11301 change the page limit for EIS projects? 

Answer: Yes. The BIL modified the EIS page limit requirement to 200 pages or fewer (23 U.S.C. 

139(n)(3)). However, the Council on Environmental Quality (CEQ) requirements at 40 CFR 1502.7 

include a 150-page limit for the text of an EIS but allow up to a 300-page limit for projects of unusual 

scope or complexity. Even though the CEQ language allows up to 300 pages for certain EISs, 23 

U.S.C. § 139 dictates the requirements for FHWA, FRA and FTA projects and the lead Federal agency 

needs to approve any new page limits for EISs that are projected to be more than 200 pages long.

14. Did BIL Sec. 11301 change the time limit for NEPA decisions?

Answer: Yes. The statutory language in the BIL supersedes the language in the CEQ regulations for 

EISs and EAs designated as major projects. For major projects, the schedule, to the maximum extent 

practicable, will be consistent with an agency average of not more than 2 years (23 U.S.C. 

139(g)(1)(B)(iii)). Thus, EISs and EAs for major projects will not be subject to the CEQ regulations 

requiring that all EISs be completed within 2 years (40 CFR 1501.10(b)(2)) and all EAs be completed 

in 1 year (40 CFR 1501.10(b)(1)). Further, the project-by-project approval of exceptions in the CEQ 

regulations for the time limits will not be necessary for major projects. If a project is designated as a 

major project EA, then the EA will follow the major project timeframe (i.e., a schedule that is 

consistent with an agency average of not more than 2 years). If a project is evaluated as an EA but it 

is not defined as a major project, then the EA must be completed within one year unless the senior 

agency official approves a new time limit, consistent with the CEQ regulations (40 CFR 

1501.10(b)(1)).

15. What does it mean that the major project duration “is consistent with the agency average of not 

more than 2 years?”

Answer: The lead agency is required to establish a project schedule in accordance with 23 U.S.C. § 

139(g)(1)(B). A new sub-paragraph specifies that for major projects, to the maximum extent 

practicable and consistent with applicable Federal law, the lead agency must develop a schedule 

that is consistent with an agency average of not more than 2 years for the completion of the 

environmental review process. The permitting timetable should have a project schedule consistent 

with an agency average of not more than two years from NOI to ROD or EA start date to FONSI for 

all major projects.
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16. Does the BIL change the conditions under which the Federal Agencies issue separate NEPA 

documents for a project?

Answer: Yes. BIL Sec. 11301 modified 23 U.S.C. § 139(d)(8) so that the single environmental 

document language now captures EISs and EAs that are following the Sec. 139 environmental review 

process. To the maximum extent practicable, and for all Federal authorizations and reviews for a 

project, the Agencies and all Federal participating and cooperating agencies must rely on a single 

environmental document. However, the BIL modifies 23 U.S.C. § 139(d)(8)(D) to allow the lead 

agency to waive the requirement to prepare a single environmental document if: 

(i) the project sponsor requests separate documents;

(ii) the NEPA obligations of a cooperating agency or participating agency have already been 

satisfied; or

(iii) the lead agency determines that a single environmental document would not facilitate 

timely completion of the environmental review process for the project. 

17. Under what conditions can the lead agency extend the authorization deadline for a major project?

Answer: All authorizations necessary for the construction of a major project must be completed by not 

later than 90 days after the date of the issuance the ROD or FONSI. However, the head of the lead 

agency may extend the authorization deadline if:

(i) Federal law prohibits the lead agency or another agency from issuing an approval or permit 

within the 90-day period;

(ii) the project sponsor requests that the permit or approval follow a different timeline; or

(iii) an extension would facilitate completion of the environmental review and authorization 

process of the major project. Some examples of such facilitation include instances where new or 

previously unanticipated information about project impacts or mitigation relevant to one or 

more alternatives needs to be considered for project decision making, or changing project 

sponsor priorities that affect overall project costs and/or timing. 
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18. Does the BIL Sec. 11301 require a new report to Congress? Who is responsible for the review, 

consultation, and report? What should the report contain?

Answer: Yes. BIL Sec. 11301 requires that U.S. Department of Transportation (USDOT) submit an 

annual report to Congress regarding the efficiencies of the environmental review process (23 U.S.C. 

§ 139(c)(7)). This report will be submitted by the Secretary to the Committee on Environment and 

Public Works (Senate) and the Committee on Transportation and Infrastructure (House of 

Representatives) and it will include:

• review of existing practices, procedures, rules, regulations, and applicable laws to

identify impediments to meeting the requirements applicable to projects under 23 

U.S.C. § 139; and

• best practices, programmatic agreements, and potential changes to internal 

departmental procedures that would facilitate an efficient environmental review 

process for projects under 23 U.S.C. § 139.

The report must be submitted by November 15, 2023. 23 U.S.C. § 139(c)(7)(C). The report must 

include the results of the review and analysis of whether additional funding would help the 

Secretary meet the requirements applicable to projects under 23 U.S.C. § 139. The Agencies’ 

Headquarters will be responsible for collecting the data from the Field Offices and coordinating 

report development.

19. Does BIL create a new reporting requirement for all environmental documents?

Answer: Yes. BIL Section 11301 created a new requirement at 23 U.S.C. § 139 (c)(6)(D). Similar to 

other reporting requirements, FHWA will look at the EAs and EISs completed in the previous fiscal 

year, calculate the time it took to complete each document from initiation to decision, and then 

determine the average and median time it took by class of action. FRA and FTA may provide 

guidance on how they calculate annually the average time taken to complete all environmental 

documents. 

OTHER 

20. BIL Sec. 11312 created a new NEPA reporting requirement. Who is responsible for collecting the 

data and issuing the report?

Answer: BIL Sec. 11312 created a new requirement at 23 U.S.C. § 157 for NEPA data reporting. 

USDOT must submit an annual report to Congress regarding various categorical exclusion (CE), EA 

and EIS data. The Agencies’ Headquarters will be responsible for collecting the data from the Field 

Offices and coordinating report development. 

The Secretary will submit the report to the Committee on Environment and Public Works (Senate) 

and the Committee on Transportation and Infrastructure (House of Representatives). 
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21. What substantive changes did Sec. 11316 of the BIL make to the Section 4(f) review of proposed 

uses of public parks, recreation lands, wildlife and waterfowl refuges, and historic sites?

Answer: BIL Sec. 11316 amended 23 U.S.C. § 138 to establish a timeline for the Agencies to approve 

certain proposed uses of Section 4(f) property. As of October 1, 2021, individual Section 4(f) 

Evaluations require consultation with the Secretaries of the Interior (DOI), Housing and Urban 

Development (HUD), and Agriculture (USDA) in the form of a 30 day review period on the draft 

Evaluation. The review period may be extended for a maximum of 15 days. If timely comments are 

not received from an agency, the Agencies must assume that agency has no objection to the 

proposed action. BIL did not make corresponding changes to 49 U.S.C. § 303.

22. Will the BIL Sec. 11316 changes to the Section 4(f) review process require a change in the Section 

4(f) regulation?

Answer: Yes. The Section 4(f) regulation at 23 CFR 774.5(a) will need to be modified to reflect the 

new timeframe found in 23 U.S.C. § 138(a)(2)(B). Specifically, the regulation will need to reflect that 

the regulatory minimum of 45 days for receipt of comments is now reduced to 30 days for FHWA 

projects. Both the Section 4(f) regulation and the BIL allow that if comments are not received within 

15 days after the comment deadline, the administration (as defined in 23 CFR 774.17) may assume 

lack of objection and proceed. However, because BIL did not amend 49 U.S.C. § 303, FRA and FTA 

will continue to apply the existing requirements in Part 774 (i.e., 60 day coordination period with 

DOI, HUD, and USDA).

23. Has USDOT fulfilled the requirements of the “Development of Categorical Exclusions” provision in 

BIL Sec. 11301 (23 U.S.C. 139(q))? 

Answer: Yes. Per 23 U.S.C. 139(q), USDOT had 60 days from the date of enactment of the BIL to 

consult with six Federal Agencies identified in the BIL, identify any CEs applicable to FHWA that 

would accelerate project delivery if they were available to those Agencies, and provide the Agencies 

with existing substantiation for those CEs. USDOT provided the CE substantiation information to the 

Federal Agencies for 4 CEs on January 14, 2022.

24. Will all the requirements for the performance accountability system be tracked by the Permitting 

Dashboard? 

Answer: Yes. Currently, the Permitting Dashboard tracks project schedules for EISs and EAs, which 

includes whether the lead agency, cooperating agencies, and participating agencies are meeting the 

established schedules and the time taken to complete the environmental review process 

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