Fixing America’s Surface Transportation Act (FAST Act): Questions and Answers on the 

Applicability of 23 U.S.C. 139 to 

Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), 

& Federal Transit Administration (FTA) projects

Question 1: Does the FAST Act make the environmental review process in 23 U.S.C. 139 

applicable to FRA’s railroad projects?

Answer 1: Yes. Section 11503 of the FAST Act (Pub. L. 114-94) added 49 U.S.C. 24201. This 

section requires FRA to apply the environmental review process in 23 U.S.C. 139 (see 

Attachment A) to railroad projects to the greatest extent feasible. FRA will update its 

environmental procedures to incorporate the environmental review process in 23 U.S.C. 139 as 

appropriate. Project sponsors with specific questions about the application of Section 139 to

railroad projects should contact FRA’s Office of Program Delivery. 

Question 2: Will the environmental review process in 23 U.S.C. 139 apply to FRA’s railroad 

projects if the environmental review process began before enactment of the FAST Act?

Answer 2: No. Consistent with FAST Act Section 11503 (49 U.S.C 24201(e)), FRA will not apply 

the Section 139 environmental review process to any railroad project for which notice of intent 

to develop an environmental impact statement was published before December 4, 2015, or for 

which the Secretary approved the funding arrangement under title 49 of the United States 

Code before December 4, 2015. 

Question 3: Do the 23 U.S.C. 139(l) provisions on the limitation of claims apply to railroad

projects?

Answer 3: Yes. However, 49 U.S.C. 24201(a)(4) provides that the limitation on the claims 

period applicable to railroad projects is 2 years instead of 150 days.1

Question 4: Do the changes to the Section 139 environmental review process apply to all 

FHWA and FTA projects currently undergoing that process as it existed before the FAST Act?

Answer 4: No. The changes made to 23 U.S.C. 139 by Section 1304 of the FAST Act apply to 

FHWA and FTA projects for which a notice of intent to develop an environmental impact 

statement is published after December 4, 2015, and to FHWA and FTA projects for which an 

applicant submits a request for the Secretary of Transportation to designate a lead agency 

under 23 U.S.C. 139(e)(4) after December 4, 2015. For information about the applicability of 23 

U.S.C. 139 to railroad projects, see Question 1 and 2 above. 

 

1

Section 139(l) prohibits Federal courts from having jurisdiction to hear legal claims for the review of a permit, 

license, or approval issued by a Federal agency for a highway project, public transportation, and now railroad 

project if the claims are not filed within the specified period of time after the publication of a notice of limitation of 

claims in the Federal Register (FR).
2

Question 5: Will FHWA, FRA, and FTA provide guidance on how to apply Section 1304 of the 

FAST Act?

Answer 5: Yes. FHWA, FRA, and FTA will provide additional guidance on applying section 1304 

of the FAST Act in the future.

Question 6: Does the revised Section 139 environmental review process require providing 

notice of initiation, pursuant to 23 U.S.C. 139(e)(1), for projects evaluated with an 

environmental assessment or classified as a categorical exclusion?

Answer 6: No. The requirements concerning the process for environmental reviews contained 

in 23 U.S.C. 139 only automatically apply to projects evaluated with environmental impact 

statements. FHWA, FTA, and FRA have the discretion to apply the process to other “projects 

for which an environmental document is prepared pursuant to [NEPA].” 23 U.S.C. 139(b)(1). 

FHWA will make that determination on a project-by-project basis. In general, FTA and FRA will 

only apply the process requirements contained in 23 U.S.C. 139 to environmental impact 

statements.

Question 7: Do the project development procedures in Title 41 of the FAST Act (Federal 

Permitting Improvement)2apply to FHWA, FTA, or FRA projects?

Answer 7: No. Section 11503(b) exempts programs administered by the U.S. Department of 

Transportation or its operating administrations under Titles 23, 46, and 49 of the United States 

Code from the requirements and provisions of Title 41 of the FAST Act. In addition, projects 

subject to 23 U.S.C. 139, which includes all FHWA, FRA, and FTA projects, are not considered

“covered projects” as defined in Title 41 of the Fast Act (Section 41001(6)(B)(i).

However, Section 41003(b)(1) requires the maintenance of an online database for posting 

project information (the “Permitting Dashboard”). In addition, 23 U.S.C. 139(o) (added by FAST 

Act Section 1304(j)) requires that the Secretary post FHWA, FRA, and FTA projects evaluated 

with an environmental impact statement or environmental assessment on the Dashboard 

within 18 months of enactment of the FAST Act.

 

2

Title 41 of the FAST Act contains environmental review and permitting process improvement initiatives that apply 

to Federal agencies other than the U.S. Department of Transportation.