2022-28114. California High-Speed Rail Authority-Construction Exemption-In Merced, Madera, and Fresno Counties, Cal.; California High-Speed Rail Authority-Construction Exemption-In Fresno, Kings, Tulare, and Kern Counties, Cal.; Decision

On September 17, 2021, the California High-Speed Rail Authority (Authority), a Class III non-operating rail carrier, filed a petition to reopen Docket No. FD 35724 (Merced Petition) and a petition to reopen Docket No. 35724 (Sub-No. 1) ^[1] (Fresno Petition). In Docket No. FD 35724, the Board in 2013 granted the Authority an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10901 to construct approximately 65 miles of high-speed passenger rail line between Merced, Cal., and Fresno, Cal. (the Merced to Fresno Section),^[2] and in Docket No. FD 35724 (Sub-No. 1), the Board in 2014 granted the Authority an exemption to construct approximately 114 miles of high-speed passenger rail line between Fresno and Bakersfield, Cal. (the Fresno to Bakersfield Section).^[3]

In its September 2021 petitions to reopen those dockets, the Authority sought the Board's approval for an addition to the Merced to Fresno Section and a modification to the Fresno to Bakersfield Section, neither of which were previously considered by the Board. In a decision served on February 11, 2022 ( February 2022 Decision), the Board found that the Authority provided new evidence and demonstrated changed circumstances that warranted reopening the two proceedings. The Board granted the petitions to reopen and solicited comments on the transportation merits of the proposed additions and modifications to the sections. No comments on the transportation merits were filed.

The Authority, as the current lead agency under National Environmental Policy Act (NEPA), 42 U.S.C. 4321 to 4370m-11, and the National Historic Preservation Act (NHPA), 54 U.S.C. 300101-307108, and the Federal Railroad Administration (FRA), as the previous lead agency under NEPA and NHPA, conducted environmental and historic reviews of the proposed modifications. The Board, through its Office of Environmental Analysis (OEA), participated as a cooperating agency. The environmental and historic reviews considered the environmental and historic impacts the proposed route modifications would have, potential alternatives, and whether different or additional conditions should be recommended to mitigate the impacts. OEA prepared an Environmental Memorandum in each of these proceedings summarizing the environmental and historic reviews and making final recommendations to the Board. OEA's Environmental Memoranda are appended to this decision.

In this decision, the Board authorizes the Authority's proposed changes to these construction projects, subject to the final recommended mitigation measures set forth in OEA's environmental memoranda.

Background

On March 27, 2013, and September 26, 2013, the Authority filed petitions seeking exemptions under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10901 to construct the Merced to Fresno Section and the Fresno to Bakersfield Section, respectively. Both sections are components of the California High-Speed Rail (HSR) System. The HSR System consists of eight rail line sections that, together, ultimately would comprise a high-speed rail line from San Francisco, Cal., to Anaheim, Cal. (Merced Pet. 2.) The Merced to Fresno Section and the Fresno to Bakersfield Section are the first and only two sections of the HSR System for which the Authority has sought construction authority from the Board. ( See Fresno Pet. 2 n.4.) The Board authorized the construction of the Merced to Fresno Section in the June 2013 Decision and the construction of the Fresno to Bakersfield Section in the August 2014 Decision, subject to extensive environmental mitigation conditions to avoid or minimize the projects' potential environmental impacts. ( See Merced Pet. 3; Fresno Pet. 3.)

The Merced to Fresno Section. The Merced to Fresno Section connects the Downtown Merced Station to the Downtown Fresno Mariposa Avenue Station along a mostly north-south alignment and includes a wye to allow an east-west connection to the proposed San Jose to Merced section of the HSR System.^[4] (Merced Pet. 2.) FRA and the Authority conducted a joint environmental review pursuant to NEPA and the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code section 21000-21189.3, and issued an Environmental Impact Report/Environmental Impact Statement (EIR/EIS),^[5] after which FRA subsequently issued its Record of Decision (ROD) in 2012.^[6] However, finding that part of the alignment merited further study,^[7] FRA deferred final consideration of the Central Valley Wye (CVY), which would connect the north-south Merced to Fresno Section with the proposed east-west San Jose to Merced section. (Merced Pet. 2-3; see also ROD 19.)

As the lead Federal agency, FRA initiated the consultation process under Section 106 of NHPA (54 U.S.C. 306108) for the Merced to Fresno Section prior to OEA's involvement. June 2013 Decision, FD 35724, slip op. at 27. During that process, FRA consulted with the California State Historic Preservation Officer (SHPO), the Advisory Council on Historic Preservation (ACHP), and other interested parties. Id. The parties executed a Programmatic Agreement (PA) setting out a general process for Section 106 compliance for the proposed entire 800-mile system on June 11, 2011.^[8] Id. The Section 106 consultation process, as well as evaluations conducted during the NEPA review, identified properties that are included in, or eligible for inclusion in, the National Register of Historic Places (National Register) that would be adversely affected by construction and operation of the Merced to Fresno Section. Id. FRA, the SHPO, and the Authority ^[9] then executed a Memorandum of Understanding (MOA) ^[10] that outlines additional surveys, historic property treatment, mitigation measures, and other efforts. Id. Subsequently, the parties executed a First Amendment to the MOA in 2013 to add OEA, for the Board, as a party. Id.

OEA conducted an independent analysis of the Final EIS prepared by FRA and the Authority and, following this review, recommended that the Board adopt the Final EIS for the Merced to Fresno Section, which included the decision to defer consideration of the alignment of the CVY.^[11] (Merced Pet. 3.) OEA also recommended that the Board find that OEA's participation in the MOA would satisfy the Board's obligations under Section 106. In the June 2013 Decision, the Board agreed with OEA's recommendations, adopted FRA and the Authority's Final EIS (subject to environmental conditions, including environmental conditions developed by OEA), found that the MOA would satisfy the Board's obligations under Section 106, and granted the Authority's petition for exemption. Both FRA's 2012 ROD and the Board's June 2013 Decision approved portions of the north-south alignment and the Downtown Merced and Downtown Fresno Mariposa Station locations, but they intentionally did not address the area known as the “wye connection,” which includes the location of the north-south track in that area. ( See ROD 22.)

The Authority states that, since the June 2013 Decision, it has conducted significant additional analysis on the alignment of the wye connection to the proposed San-Jose-to-Merced section.^[12] (Merced Pet. 4.) Of 17 possible alignments, the Authority and FRA selected four options for additional analysis. ( Id. & n.10.) Based on that analysis and input from interested parties, the SR 152 (North) to Road 11 Wye Alternative was selected as the preferred alternative for the CVY. ( Id.) The CVY Final Supplemental EIS was issued by the Authority on August 7, 2020, and the Authority issued its Supplemental ROD on the CVY in September 2020, subject to environmental mitigation measures. ( Id.) The additional analysis, according to the Authority, allowed it to refine alternative alignments for the CVY that “minimized impacts on farmland and communities and balanced environmental impacts with concerns for travel time and construction costs.” ( Id. at 6.) The Board (through OEA) participated as a cooperating agency for the CVY Final Supplemental EIS.

Citing these developments that followed the June 2013 Decision as new evidence and changed circumstances, the Authority requested that the Board reopen the proceeding in Docket No. FD 35724 to consider the CVY. The Authority also requested that the Board review and adopt the supplemental environmental and historic review completed by the Authority and FRA, pursuant to 40 CFR 1506.3. (Merced Pet. 6.) In the February 2022 Decision reopening Docket No. FD 35724, the Board stated that it would review the supplemental environmental and historic review and decide whether to adopt the Final Supplemental EIS. The Board also solicited comments on the transportation merits of the CVY. No comments on the transportation merits were received.

The Fresno to Bakersfield Section. The Authority and FRA conducted a joint environmental review for the Fresno to Bakersfield Section, with the Board, through OEA, acting as a cooperating agency. (Fresno Pet. 2.) In 2014, a Final EIS was issued, and FRA issued its ROD. ( Id.)

As lead agency at the time, FRA initiated section-specific NHPA review for the Fresno to Bakersfield section. August 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 20. The Section 106 consultation process, as well as evaluations conducted during the NEPA review, identified properties that are included, or eligible for inclusion, in the National Register that would be adversely affected by construction and operation of the Preferred Build Alternative. FRA, the Authority, the Board (through OEA), the U.S. Army Corps of Engineers, the SHPO, and ACHP executed an MOA on May 14, 2014, that outlines additional surveys, historic property treatment, mitigation measures, and other efforts that will take place prior to construction of the Fresno to Bakersfield Section. Id.

OEA recommended that the Board adopt the Final EIS, with several additional environmental mitigation measures. ( Id. at 2-3.) OEA also recommended that the Board find that OEA's participation in the MOA process would satisfy the Board's obligations under Section 106. In the August 2014 Decision, the Board accepted OEA's recommendations, adopted the Final EIS and OEA's recommended mitigation measures, found that the MOA would satisfy the Board's obligations under Section 106, and authorized construction of the Fresno to Bakersfield Section.

In June 2014, the City of Bakersfield (the City) filed a lawsuit against the Authority, claiming, among other things, that “the Preferred Alternative identified in the Fresno to Bakersfield Section Final EIS would severely affect the City's ability to utilize existing city assets, including its corporation yard, senior housing, and parking facilities at Rabobank Arena, Theatre and Convention Center; would render unusable one of the city's premier health care facilities; and would affect the Bakersfield Commons project, a retail/commercial/residential development.” (Fresno Pet. 3-4 (quoting the description of the lawsuit in Suppl. ROD Section 1.3.2 at 1-9.)) After the Board issued its August 2014 Decision, the Authority and the City entered into a settlement agreement, dated December 19, 2014. (Fresno Pet. 4.) According to the Authority, as part of the settlement agreement, the Authority agreed “to develop and study alternative routes that would address the City's concerns as well as the design needs of the Authority.” ( Id.)

The Authority states that, following the settlement agreement, it worked with the City and other stakeholders to develop the alternative (the Locally Generated Alternative, or LGA) that is now the subject of its exemption request. ( Id.) The LGA consists of a 23.13-mile alternative alignment between the cities of Shafter, Cal., and Bakersfield, Cal., and a new location of the Bakersfield Station at F Street. ( Id.) The Authority, as lead NEPA agency, conducted an environmental review of the modification (with the Board, through OEA, participating as cooperating agency) and issued a combined Final Supplemental EIS and Supplemental ROD on October 31, 2019. ( Id. at 5.) The Authority represents that the proposed modifications would not disturb the remainder of the Fresno to Bakersfield Section authorized in the August 2014 Decision. (Fresno Pet. 4.)

The Authority sought to reopen Docket No. FD 35724 (Sub-No. 1), the Fresno to Bakersfield Section proceeding, to allow the Board to consider the LGA. In addition, the Authority requests that the Board review and adopt the environmental and historic review of the LGA completed by the Authority, pursuant to 40 CFR 1506.3. (Fresno Pet. 6.) In the February 2022 Decision reopening the proceeding, the Board stated that it would review the supplemental environmental and historic review and decide whether to adopt the Final Supplemental EIS. The Board also solicited comments on the transportation merits of the LGA, but none were filed.

Discussion and Conclusions

Rail Transportation Analysis

The construction of new railroad lines requires prior Board authorization, through either a full application and certificate under 49 U.S.C. 10901 or, as requested here, an exemption under 49 U.S.C. 10502 from the prior approval requirements of section 10901. Section 10901(c) directs the Board to grant authority for a rail line construction proposal unless it finds the proposal “inconsistent with the public convenience and necessity.” See Alaska R.R.—Constr. & Operation Exemption—a Rail Line Extension to Port MacKenzie, Alaska, FD 35095, slip op. at 5 (STB served Nov. 21, 2011), aff'd sub nom. Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 2013). Thus, there is a statutory presumption that rail construction projects are in the public interest and should be approved unless shown otherwise. N. Plains Res. Council v. STB, 668 F.3d 1067, 1091-92 (9th Cir. 2011); Mid States Coal. for Progress v. STB, 345 F.3d 520, 552 (8th Cir. 2003).

Under section 10502(a), the Board must exempt a proposed rail line construction from the prior approval requirements of section 10901 when it finds that (1) those procedures are not necessary to carry out the rail transportation policy of 49 U.S.C. 10101, and (2) either (a) the proposal is of limited scope or (b) the full application procedures are not needed to protect shippers from an abuse of market power.

In the June 2013 Decision and the August 2014 Decision, the Board found that the Authority met the standards of 49 U.S.C. 10502 for exemptions from the prior approval requirements of 49 U.S.C. 10901 for the construction of the proposed Merced to Fresno Section and the proposed Fresno to Bakersfield Section, respectively. In both decisions, the Board concluded that the requested exemptions would reduce the need for Federal regulation (49 U.S.C. 10101(2)), ensure the development of a sound rail transportation system with effective competition to meet the needs of the shipping public (49 U.S.C. 10101(4)), foster sound economic conditions in transportation (49 U.S.C. 10101(5)), reduce regulatory barriers to entry (49 U.S.C. 10101(7)), and encourage and promote energy conservation (49 U.S.C. 10101(14)). See June 2013 Decision, FD 35724, slip op. at 22-23; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 12-13. The Board also found that although parties argued that certain other aspects of the rail transportation policy would be affected, no evidence was provided supporting the claims. See June 2013 Decision, FD 35724, slip op. at 23; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 14. The Board found that potential health and safety impacts (49 U.S.C. 10101(8)) were fully analyzed during the environmental review processes and that the extensive environmental mitigation that would be imposed on the projects would eliminate or minimize potential impacts on public health and safety to the extent practicable. See June 2013 Decision, FD 35724, slip op. at 24; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 14. Finally, the Board found that regulation of the proposed construction projects was not necessary to protect shippers or the traveling public from the abuse of market power. See June 2013 Decision, FD 35242, slip op. at 24-25; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 14-15. The Authority sought, and the Board granted authority to reopen to reconsider the exemptions, based on a finding of substantially changed circumstances. However, no party has challenged the Board's 2013 or 2014 conclusions on the transportation merits of the proposals, and there is nothing in the record since 2013 and 2014 that would call those conclusions into question. The Board therefore reaffirms the 2013 and 2014 conclusions here with regard to the transportation merits of the Merced to Fresno and Fresno to Bakersfield Sections, as modified, and now turns to consideration of the environmental and historic aspects of the proposed modifications to the project.

Environmental and Historic Analysis

NEPA requires Federal agencies to examine the environmental effects of proposed major Federal actions and to inform the public concerning those effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983). Under NEPA and related environmental laws, the Board must consider significant potential beneficial and adverse environmental impacts in deciding whether to authorize railroad construction as proposed, deny the proposal, or grant it with conditions (including environmental mitigation conditions). Tex. Ry. Exch.—Constr. & Operation Exemption—Galveston Cnty., Tex., FD 36186 et al., slip op. at 5 (STB served Jan. 17, 2020). While NEPA prescribes the process that must be followed, it does not mandate a particular result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Once the environmental effects, if any, of a proposed action have been adequately identified and evaluated, an agency may conclude that other values outweigh those environmental effects. Id.

Section 106 of NHPA requires Federal agencies to “take into account the effect of” their licensing decisions (in this case, whether to grant the Authority's request for an exemption, also called the “undertaking” under NHPA) on properties included in, or eligible for inclusion in, the National Register, and prior to the approval of an undertaking, to afford the ACHP a reasonable opportunity to comment. See54 U.S.C. 306108. Consultation with the SHPO is also required. See36 CFR 800.2(a)(4) & (c)(1), 800.3(c)(3). If the undertaking would have an adverse effect on historic properties, the agency (here, the Authority, as lead agency) must continue to consult to possibly mitigate the adverse effect. See36 CFR 800.6(a).

The Environmental and Historic Review Process—CVY. As explained in more detail in OEA's Environmental Memorandum to the Board for the CVY (CVY Memorandum) (Appendix A), the Authority, as the lead agency under NEPA, conducted an environmental review of the CVY (with the Board, through OEA, participating as a cooperating agency). Of 17 possible CVY alignments, four build alternatives were selected for additional environmental review. The Authority issued a Draft Supplemental EIS in September 2019 for a 45-day public comment period, and a Final Supplemental EIS on August 7, 2020.^[13] Based on this environmental review process, on September 16, 2020, the Authority issued its Supplemental ROD, in which the Authority selected the State Route 152 (North) to Road 11 Wye alignment as its preferred and environmentally preferable alternative for the CVY. (Suppl. ROD 31-32.) The remaining portions of the Merced to Fresno Section that were authorized by the Board in the June 2013 Decision, north of the CVY from Ranch Road to the Merced Station and south of the CVY from Avenue 19 to the Fresno Station, are unaffected by the Supplemental ROD. The Authority's Supplemental ROD also imposes extensive mitigation conditions through its Mitigation & Monitoring Enforcement Plan (MMEP) for the CVY, which supplements the mitigation required by the 2012 MMEP for the Merced to Fresno Section. (Suppl. ROD 29; id. at App. D.)

As for the Section 106 process, since the June 2013 Decision, a Second Amendment to the MOA was executed in 2017 to improve the process. However, because the CVY was contemplated as part of the Merced to Fresno section at the time the MOA was executed for the Merced to Fresno Section, there was no need to amend the MOA further to address the CVY. Indeed, the SHPO approved the Authority's assessment of adverse effects to historic resources from the CVY in 2018 in Merced to Fresno Section: Central Valley Wye Final Supplemental Section 106 Findings of Effect Report. (Suppl. ROD 40.)

In its Environmental Memorandum, OEA concludes that (1) OEA's substantive comments and suggestions were incorporated into the Draft and Final Supplemental EISs for the CVY; (2) the EISs adequately assess the potential environmental impacts associated with the CVY and meet the standards of the Council on Environmental Quality's (CEQ's) NEPA regulations and the Board's own environmental regulations at 49 CFR part 1105; and (3) the State Route 152 (North) to Road 11 Wye alignment represents the preferred and environmentally preferable alternative for the CVY. See App. A, CVY Env't Mem. section 6.1-6.3. OEA further concludes that execution of the MOA and the First and Second Amendments to the MOA, their filing with ACHP, and subsequent implementation of their terms satisfy the requirements of Section 106 (36 CFR 800.6(c)) for the Merced to Fresno Section, including the CVY. OEA does not recommend any additional mitigation but recommends that the Board adopt and impose conditions requiring compliance with the MMEP, the mitigation plan developed by the Authority, and the mitigation contained in the Section 106 MOA, as amended.

Accordingly, OEA recommends that, in order to satisfy its NEPA and Section 106 obligations, the Board adopt the Draft and Final Supplemental EISs in any decision granting the Authority's request to construct the CVY and impose the mitigation developed by the Authority, through its MMEP and the MOA, as amended.

The Board's Analysis of Environmental and Historic Issues—CVY. The Board adopts the analysis and conclusions in OEA's Environmental Memorandum on the CVY, the Draft and Final Supplemental EISs, and the final recommended mitigation measures. As explained in detail in OEA's memorandum, while the Draft and Final Supplemental EISs show that there would be certain unavoidable impacts from the CVY modification (including residential and business relocations, impacts to agriculture lands, and impacts to aesthetic and visual resources), the Authority adopted an approximately 126-page MMEP in its Supplemental ROD that specifies means to avoid, minimize, or mitigate likely environmental harm caused by construction and operation of the proposed CVY modification.^[14] The Authority's Supplemental ROD obligates it to comply with all the mitigation measures in the MMEP. The Board is satisfied that OEA, together with the Authority and other parties, have taken the requisite hard look at the potential environmental impacts associated with the CVY and properly determined that the recommended environmental mitigation for the CVY will adequately address the potential impacts of the proposal.

The Board also adopts OEA's conclusion that execution of the MOA and the First and Second Amendments to the MOA, their filing with ACHP, and subsequent implementation of their terms satisfy the requirements of Section 106 for the Merced to Fresno Section, including the CVY.

The Environmental and Historic Review Process—LGA. As detailed in OEA's Environmental Memorandum to the Board for the LGA (LGA Memorandum) (Appendix B), the Authority, as the current lead agency under NEPA, and FRA, as the previous lead agency under NEPA, conducted an environmental review of the LGA (with the Board, through OEA, participating as a cooperating agency). FRA issued a Draft Supplemental EIS in November 2017 for a 60-day public comment period and held a public hearing on December 19, 2017, to receive oral testimony and comments. The Authority issued a combined Final Supplemental EIS and Supplemental ROD on October 31, 2019.^[15] The Draft Supplemental EIS and Final Supplemental EIS assess the potential environmental impacts of the LGA and compare those impacts to those of the previously approved component of the Fresno to Bakersfield Section that the LGA would replace.

As to the Section 106 process, the parties expanded the process to include the LGA in a First Amendment to the MOA that the parties executed on January 4, 2017.

In the Supplemental ROD, the Authority approved the LGA, including the F Street Station in Bakersfield, as its preferred and environmentally preferable alternative for this portion of the Fresno to Bakersfield Section. (Suppl. ROD 6-1.) The remaining portion of the Fresno to Bakersfield Section that was authorized by the Board in the August 2014 Decision is unchanged and unaffected by the Supplemental ROD. The Authority's Supplemental ROD also imposes extensive mitigation conditions through its MMEP for the LGA. (Suppl. ROD 5-1; id. at App. C.)

In its Environmental Memorandum for the LGA, OEA concludes that (1) OEA's substantive comments and suggestions were incorporated into the Draft and Final Supplemental EISs; (2) the EISs adequately assess the potential environmental impacts associated with the LGA modification and meet the standards of CEQ's NEPA regulations and the Board's own environmental regulations at 49 CFR part 1105; and (3) the LGA represents the preferred and environmentally preferable alternative for the 23-mile portion of the Fresno to Bakersfield Section. See App. B, LGA Env't Mem. section 6.1. OEA also concludes that execution of the MOA and First Amendment to the MOA, their filing with ACHP, and subsequent implementation of their terms satisfy the requirements of Section 106 for the Fresno to Bakersfield Section, including the LGA. OEA does not recommend any additional mitigation but recommends that the Board adopt and impose conditions requiring compliance with the MMEP, the mitigation plan developed by the Authority, as amended, and the mitigation contained in the Section 106 MOA, as amended. OEA further recommends that the Board remove a mitigation measure, which prohibits pile driving near Mercy Hospital, imposed in the August 2014 Decision because the measure pertains specifically to the component of the Fresno to Bakersfield Section that the LGA would replace.

Accordingly, OEA recommends that, in order to satisfy its NEPA and Section 106 obligations, the Board adopt the Draft and Final Supplemental EISs in any decision granting the Authority's request to construct the LGA modification and impose the mitigation developed by the Authority, through its MMEP,^[16] as amended ^[17] and the MOA, as amended. See App. B, LGA Env't Mem. section 6.1, 6.3.

The Board's Analysis of Environmental and Historic Issues—LGA. The Board adopts the analysis and conclusions in the LGA Environmental Memorandum and the Draft and Final Supplemental EISs including the final recommended mitigation measures.^[18] As explained in detail in the LGA Environmental Memorandum, while the Draft and Final Supplemental EISs show that there would be certain unavoidable impacts from the LGA modification (including road closures, residential and business relocations, noise impacts, and impacts to agriculture lands, aesthetic and visual resources, community cohesion, and environmental justice populations), the Authority adopted an approximately 180-page MMEP, as amended, in its Supplemental ROD that specifies extensive means to avoid, minimize, or mitigate likely environmental harm caused by construction of the proposed LGA modification.^[19] See App. B, LGA Env't Mem. section 4.0, 6.2, 6.3. As a result, the LGA represents the environmentally preferable modification to the Fresno to Bakersfield Section. The Authority's Supplemental ROD obligates it to comply with all the mitigation measures in the amended MMEP. The Board is satisfied that OEA, together with the Authority and other parties, have taken the requisite hard look at the potential environmental impacts associated with the LGA and properly determined that the final recommended environmental mitigation will appropriately address the potential impacts of the proposal.

The Board adopts OEA's conclusion that execution of the MOA and First Amendment to the MOA, their filing with ACHP, and subsequent implementation of their terms, satisfy the requirements of Section 106 for the Fresno to Bakersfield Section, including the LGA.

This action, as conditioned, will not significantly impact the quality of the human environment or the conservation of energy resources.

It is ordered:

1. In Docket No. FD 35724, under 49 U.S.C. 10502, the Board exempts construction of the Authority's proposed route addition to the Merced to Fresno Section from the prior approval requirements of 49 U.S.C. 10901.

2. In Docket No. FD 35724 (Sub-No. 1), under 49 U.S.C. 10502, the Board exempts construction of the Authority's proposed route modifications to the Fresno to Bakersfield Section from the prior approval requirements of 49 U.S.C. 10901.

3. In Docket No. FD 35724, the Board adopts the environmental mitigation measures set forth in OEA's Environmental Memorandum regarding the CVY (Appendix A) and imposes them as conditions to the exemption granted here.

4. In Docket No. FD 35724 (Sub-No. 1), the Board adopts the environmental mitigation measures set forth in OEA's Environmental Memorandum regarding the LGA (Appendix B) and imposes them as conditions to the exemption granted here.

5. Notice will be published in the Federal Register on December 23, 2022.

6. Petitions for reconsideration must be filed by January 9, 2023.

7. This decision is effective on its service date.

Decided: December 19, 2022.

By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz.

Jeffrey Herzig,

Clearance Clerk.

Footnotes

1.  These proceedings are not consolidated. A single decision is being issued for administrative convenience.

2.   Cal. High-Speed Rail Auth.—Constr. Exemption—in Merced, Madera, & Fresno Cntys., Cal. ( June 2013 Decision), FD 35724 (STB served June 13, 2013).

3.   Cal. High-Speed Rail Auth.—Constr. Exemption—in Fresno, Kings, Tulare, & Kern Cntys., Cal. ( Aug. 2014 Decision), FD 35724 (Sub-No. 1) (STB served Aug. 12, 2014).

4.  The term “wye” refers to the Y-like formation that is created at the point where train tracks branch off the mainline to continue in different directions. The transition of mainline track to a wye requires splitting two tracks into four tracks that cross over one another before the wye legs can diverge in opposite directions to allow two-way travel. For the Merced to Fresno Section, the two tracks traveling east-west from the proposed San Jose to Merced Section must become four tracks—a set of two tracks branching toward Merced to the north and a set of two tracks branching toward Fresno to the south.

5.  The environmental documents were titled EIR/EIS to meet the obligations of both CEQA and NEPA, respectively. The Board is only required to comply with NEPA; accordingly, hereafter this decision will refer to the environmental documentation prepared in these cases as “EISs.”

6.  The FRA's 2012 ROD is available on the Authority's website at hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/final_EIR_MerFres_FRA09182012.pdf.

7.  As noted in the Final EIS, the selection of the alignment for the wye connection impacted the environmental analysis for both the Merced to Fresno Section and the San Jose to Merced section. FRA, Final Merced to Fresno Section Project EIR/EIS 2-3, April 20, 2012, railroads.dot.gov/environmental-reviews/california-hsr-merced-fresno/merced-fresno-final-eireis. The alignment of the latter section, which would impact the ultimate location of the wye connection, was being studied and analyzed at the time of the June 2013 Decision. Seeid. Since then, the Authority has identified a preferred alternative for the San Jose to Merced section, for which it published a Draft EIS on April 24, 2020. The public comment period on that Draft EIS closed on June 23, 2020. See California High-Speed Rail Authority, Project Section Environmental Documents—San Jose to Merced, hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/san-jose-to-merced-project-section-draft-environmental-impact-report-environmental-impact-statement/.

8.  With the PA set to expire on July 21, 2021, the Signatories to the PA executed the First Amendment to the PA on July 21, 2021. In addition to extending the duration of the document, the amendment added OEA, for the Board, as an Invited Signatory to the agreement and designated the Authority as lead federal agency to Section 106 consultation and implementation.

9.  ACHP chose not to participate.

10.  Due to access restrictions, surveys for archaeological properties were incomplete and, therefore, additional National Register-eligible properties could have been present. The regulations implementing Section 106 allow for the development of an MOA when the effects of an undertaking cannot be fully determined prior to approval of an undertaking. June 2013 Decision, FD 35724, slip op. at 27. When there would be an adverse effect, the MOA can also establish responsibilities for the treatment of historic properties, implementation of mitigation measures, and ongoing consultation efforts. Id.

11.  When the Authority petitioned the Board for authority to construct the Merced to Fresno Section in March 2013, the environmental review under NEPA for that section had already been completed by the Authority and FRA. Consequently, the Board did not participate in the environmental review as a cooperating agency. However, as described further in this decision, the Board (through OEA) acted as a cooperating agency for the CVY Final Supplemental EIS.

12.  Pursuant to 23 U.S.C. 327, under a NEPA Assignment Memorandum of Understanding between FRA and the State of California, effective July 23, 2019, the Authority became the lead agency for compliance with NEPA and other federal laws for the HSR System, including the issuance of EISs and RODs under NEPA. Accordingly, the supplemental environmental reviews for both HSR sections were conducted by the Authority, not FRA.

13.  The Draft and Final Supplemental EISs for the CVY are available on the Authority's website at hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/merced-to-fresno-central-valley-wye/.

14.  The MMEP is attached to the Supplemental ROD as Appendix D and is available on the Authority's website at hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/A-10_CVY_ROD_APP_D_MMEP.pdf.

15.  The Authority's Supplemental ROD is available on its website at hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/fresno-to-bakersfield-locally-generated-alternative/.

16.  The Board imposed the mitigation in the MMEP in the August 2014 Decision.

17.  The MMEP, as amended, is attached to the Supplemental ROD as Appendix C, and is available on the Authority's website at hsr.ca.gov/wp-content/uploads/docs/programs/fresno-baker-eir/FBLGA_ROD_Attachment_C_MMEP.pdf.

18.  The final recommended mitigation measures include removal of the condition related to pile driving near Mercy Hospital. The Board adds two new measures to assure compliance with the Authority's final environmental and Section 106 mitigation.

19.  As the LGA Environmental Memorandum explains, the LGA would have substantial impacts on minority and low-income populations even after mitigation measures are taken. See App. B, LGA Env't Mem. sec. 4.0 (citing Draft Suppl. EIS). Such mitigation measures include installing sound barriers; acquiring property easements; locating suitable replacement properties and facilities; adding landscaping to screen structures, light, glare, and blocked views. (Suppl. ROD Section 6-8.) Continued environmental justice outreach in adversely affected neighborhoods could also provide resident feedback that may be used to further mitigate some of these impacts. ( See Suppl. ROD, Attachment C, MMEP, Table 1 at 1-49, SO-MM#6.) Input from these communities would be used to refine the LGA during ongoing engineering design efforts. ( Id.)