Notice2023-25789
Desertxpress Enterprises, LLC, and Desertxpress HSR Corporation-Construction and Operation Exemption-In Victorville, Cal., and Las Vegas, Nev.
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 22, 2023
Issuing agencies
Surface Transportation Board
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 224 (Wednesday, November 22, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 224 (Wednesday, November 22, 2023)]
[Notices]
[Pages 81511-81519]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25789]
=======================================================================
-----------------------------------------------------------------------
SURFACE TRANSPORTATION BOARD
[Docket No. FD 35544]
Desertxpress Enterprises, LLC, and Desertxpress HSR Corporation--
Construction and Operation Exemption--In Victorville, Cal., and Las
Vegas, Nev.
In 2019, DesertXpress Enterprises, LLC, (DesertXpress) \1\ filed a
petition to reopen this proceeding, seeking modification of a 2011
condition concerning the construction of an approximately 190-mile rail
line for high-speed passenger rail service between Victorville, Cal.,
and Las Vegas, Nev. (the LV Line). That condition authorized
construction of a designated alignment. DesertXpress seeks authority
[[Page 81512]]
for modifications to the previously approved alignment.
---------------------------------------------------------------------------
\1\ On September 17, 2018, DesertXpress' ownership group entered
into an agreement to sell the company to Brightline Holdings LLC
(Brightline). Fortress Inv. Grp. LLC--Continuance in Control--Cent.
Me. & Que. Ry., FD 36225, slip op. at 1-2 (STB served Oct. 11,
2018). Brightline's acquisition of DesertXpress was consummated on
March 4, 2019. (Pet. to Reopen 4.)
---------------------------------------------------------------------------
Environmental review of the modified route had been ongoing and was
recently completed. Specifically, the Board's Office of Environmental
Analysis (OEA) has worked with the Federal Railroad Administration
(FRA), the lead agency on the environmental and historic review for
this project under the National Environmental Policy Act (NEPA) and
related environmental laws, including Section 106 of the National
Historic Preservation Act (NHPA). As part of this process, OEA has
reviewed a 2020 reevaluation by FRA (FRA 2020 Reevaluation) of the
modified alignment, as well as a subsequent reevaluation by FRA (FRA
2023 Reevaluation) considering further route modifications proposed by
DesertXpress in 2022. OEA concludes that FRA adequately assessed the
potential environmental and historic impacts associated with the
project modifications and concurs with FRA's determination that a
Supplemental Environmental Impact Statement (EIS) is not necessary. OEA
also recommends that the Board impose the revised mitigation measures
in Appendix D of the FRA 2023 Reevaluation. Historic review of the
project modifications had also been ongoing and was completed this
year. A Programmatic Agreement (PA) setting out the final terms for
compliance with Section 106 was executed on August 15, 2023.
As discussed below, the Board will reopen this proceeding and grant
DesertXpress' petition for exemption seeking authority for the modified
alignment. The Board will also adopt FRA's 2020 and 2023 Reevaluations
and impose the environmental mitigation measures listed in Appendix D
of the FRA 2023 Reevaluation.
Background
On July 28, 2011, DesertXpress and its wholly owned subsidiary,
DesertXpress HSR Corporation (collectively, DXE), filed a petition
under 49 U.S.C. 10502 for an exemption from the prior approval
requirements of 49 U.S.C. 10901 to construct and operate the LV Line.
FRA, with OEA's participation as a cooperating agency, conducted an
environmental review of the proposed project by preparing an EIS.\2\
Following an examination of the entire record on both the
transportation merits and potential environmental impacts, the Board
granted the petition for a construction and operation exemption,
subject to environmental conditions and the condition that DXE
construct the 2011 Selected Alternative. See DesertXpress Enters.--
Constr. & Operation Exemption--in Victorville, Cal., & Las Vegas, Nev.
(October 2011 Decision), FD 35544, slip op. at 8 (STB served Oct. 25,
2011).\3\
---------------------------------------------------------------------------
\2\ On July 8, 2011, FRA published its Record of Decision (ROD)
approving the environmentally preferred alternative for the route,
facilities, and technology (2011 Selected Alternative), subject to
mitigation measures to avoid or minimize potential adverse
environmental impacts. (See Pet. for Exemption, Ex. D.)
\3\ The 2011 Selected Alternative contemplated a double-track
rail line to be located almost entirely on the north/west side of
the I-15 freeway travel lanes. (DesertXpress Letter 1, Sept. 15,
2020; Pet. for Exemption, Ex. D, 34-35, 63-64.)
---------------------------------------------------------------------------
On March 27, 2019, DesertXpress filed a petition to reopen this
proceeding, seeking modification of the condition authorizing
construction of the 2011 Selected Alternative to permit the LV Line to
be constructed along a modified route, referred to as the ``I-15
median'' alignment. (Pet. to Reopen 1, 5.) DesertXpress stated that it
had determined that it would be more efficient to construct the LV Line
primarily in the median between the northbound and southbound lanes of
the I-15 freeway and to utilize a single-track configuration with
passing sidings. (Id. at 5.)
In a notice served on June 24, 2019, the Director of the Board's
Office of Proceedings (Director) explained that FRA had agreed to
reevaluate the environmental analysis relied upon by the Board in the
October 2011 Decision in light of the alignment changes proposed by
DesertXpress and that OEA would participate in that process as a
cooperating agency. See DesertXpress Enters.--Constr. & Operation
Exemption--in Victorville, Cal., & Las Vegas, Nev., FD 35544, slip op.
at 2 (STB served June 24, 2019). The Director added that the petition
to reopen would be addressed after the FRA 2020 Reevaluation was
completed. DesertXpress Enters.--Constr. & Operation Exemption--in
Victorville, Cal., & Las Vegas, Nev., FD 35544, slip op. at 2 (STB
served June 24, 2019).
On September 15, 2020, DesertXpress filed a letter stating that FRA
had completed the FRA 2020 Reevaluation \4\ and concluded that a
Supplemental EIS was not required for the proposed modifications to the
alignment. (DesertXpress Letter 2, Sept. 15, 2020.) DesertXpress also
asserted that ``[t]he Board need not revisit the [October 2011
Decision's] findings with respect to the transportation merits of the
Line,'' as ``[n]one of those findings would be affected by substituting
the modified I-15 median alignment for the side-running alignment
previously designated by FRA.'' (DesertXpress Letter 2 n.4, Sept. 15,
2020.) Accordingly, DesertXpress asked the Board to grant its petition
to reopen the October 2011 Decision to revise the routing condition to
authorize it to build the modified alignment and project design
specified in the FRA 2020 Reevaluation. (DesertXpress Letter 3, Sept.
5, 2020.) \5\
---------------------------------------------------------------------------
\4\ The FRA 2020 Reevaluation is available on FRA's website at
<a href="https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley">https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley</a>.
\5\ In addition to locating the LV Line primarily within the I-
15 freeway median, the modified alignment would also relocate the LV
Line's southern terminus in Victor Valley from the City of
Victorville to the Town of Apple Valley. (FRA 2020 Reevaluation,
Summary 1 n1.)
---------------------------------------------------------------------------
OEA then prepared an Environmental Memorandum (OEA 2020 Memo)
concurring with the conclusions reached in the FRA 2020 Reevaluation.
The Board also recommended that the Board consider FRA's 2020
Reevaluation, along with the EIS, when determining whether to authorize
the LV Line as modified, and that it impose revised mitigation measures
recommended by FRA in the FRA 2020 Reevaluation. OEA 2020 Memo 2. OEA
further explained that FRA was working with appropriate consulting
parties to complete the historic review under Section 106. Id.
The Board provided an opportunity for the public to comment in a
decision served on December 3, 2020. See DesertXpress Enters.--Constr.
& Operation Exemption--in Victorville, Cal., & Las Vegas, Nev., FD
35544 (STB served Dec. 3, 2020). The Board did not receive any
comments. In that decision, the Board also noted that review of
historic and cultural resources was ongoing pursuant to Section 106 and
that it could not issue a final decision modifying the routing
condition, if appropriate, until that process was complete.
In 2022, DesertXpress proposed additional modifications, which were
developed through the final design phase for the LV Line. DesertXpress'
further modifications include, among other things, moving ``additional
miles of track along the Las Vegas-Victorville route (as well as the
Victor Valley station building) into the median between the northbound
and southbound lanes'' of the I-15 freeway, relocating certain
facilities, and adding temporary construction areas. (DesertXpress
Letter 2, Sept. 19, 2023.) It asks the Board to modify the routing
condition again to reflect those modifications. (Id. at 3.) After
evaluating these additional modifications, FRA
[[Page 81513]]
issued the 2023 FRA Reevaluation,\6\ concluding that a Supplemental EIS
is not necessary and updating the mitigation measures. OEA then
prepared the OEA 2023 Environmental Memorandum (OEA 2023 Memo)
(appended to this decision) concurring with FRA's conclusions and
recommending that the Board consider FRA's 2023 Reevaluation, along
with the 2020 Reevaluation and the EIS, in deciding whether to
authorize the LV Line as modified, and that it impose the updated
mitigation measures contained in Appendix D of the FRA 2023
Reevaluation. OEA 2023 Memo 5. As noted above, a PA was executed on
August 15, 2023, completing the Section 106 historic review process for
this proceeding.
---------------------------------------------------------------------------
\6\ The FRA 2023 Reevaluation is also available on FRA's website
at <a href="https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley">https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley</a>.
---------------------------------------------------------------------------
Discussion and Conclusions
Reopening the Proceeding
A party may seek to reopen a Board proceeding by submitting a
petition that (1) presents new evidence or substantially changed
circumstances that would materially affect the case or (2) demonstrates
material error in a prior decision. 49 U.S.C. 1322(c); 49 CFR 1115.4.
``To warrant reopening, the new evidence must be newly available, and
the new evidence or substantially changed circumstances must materially
affect the prior decision.'' Port of Moses Lake--Constr. Exemption--
Moses Lake, Wash., FD 34936, slip op. at 2 (STB served Jan. 28, 2019)
citing Riffin--Pet. for Declaratory Ord., FD 34997 et al., slip op. at
6 (STB served, Oct. 29, 2012).
Here, DesertXpress has proposed to construct the LV Line along a
modified alignment somewhat different from that which the Board
authorized in the October 2011 Decision. The modifications led to the
2020 and 2023 FRA Reevaluations and the updated mitigation measures in
Appendix D of the 2023 FRA Reevaluation. These developments constitute
new evidence and changed circumstances that warrant reopening the
October 2011 Decision to consider the modified alignment and revised
mitigation.
Rail Transportation Analysis
The construction of new railroad lines requires prior Board
authorization, through either a certificate under section 10901 or, as
requested here, an exemption under section 10502 from the prior
approval requirements of section 10901. Section 10901(c) directs the
Board to grant authority for rail line construction proposals 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). Under section 10502(a), the Board shall, to the
maximum extent permissible, 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 October 2011 Decision, the Board concluded that DesertXpress
met the standards of section 10502 for an exemption to construct and
operate the LV Line. The Board found that the LV Line would provide
additional transportation options and alleviate both automobile
congestion on the I-15 freeway as well as constraints on the expansion
of air travel in Southern California. See Oct. 2011 Decision, FD 35544,
slip op. at 3. The Board further found that the LV Line would reduce
air pollution and overall fuel consumption and noted the expected
multi-billion-dollar beneficial impact on the economies of Nevada and
California. See id. at 2 n.4 & 3 (referencing forecasts of LV Line
ridership and automobile diversions, jobs, and economic impacts). The
Board concluded that the requested exemption 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 promote energy
conservation and reduce congestion consistent with 49 U.S.C. 10101(14).
See Oct. 2011 Decision, FD 35544, slip op. at 3-4. The Board also found
that other aspects of the rail transportation policy would not be
affected. Finally, the Board found that regulation of the proposed
construction is not necessary to protect shippers from the abuse of
market power. Id.
No party challenged in this proceeding the Board's 2011 conclusions
on the transportation merits of the proposal,\7\ and nothing in the
record developed since then, including the environmental analysis
discussed in the next section, calls those conclusions into question.
The LV Line, with a modified median alignment, would reduce highway
congestion by diverting vehicle traffic from the I-15 freeway to a
faster and more efficient rail option. As previously noted, diversions
would also benefit the environment, in part due to the far lower
emissions associated with rail. (See also Titus Letter 2, July 27, 2023
(``Estimates show that over 700 million vehicle miles traveled will be
removed annually from the highway which will eliminate more than
400,000 tons of CO<INF>2</INF> emissions from the atmosphere.'').) And,
as previously noted, construction of the LV Line is anticipated to
generate billions of dollars in economic activity and tax revenue, and
lead to the creation of thousands of jobs. (See also id. at 1-2.)
Simply put, the benefits to the traveling public and, ultimately, the
environment of adding a high-speed passenger rail option between
Southern California and Las Vegas are considerable, and the project
modifications do not change this conclusion. Moreover, the merits are
enhanced by the Victor Valley-to-Rancho Cucamonga extension (RC Line),
which would connect passengers on the LV Line to the Southern
California commuter rail network.\8\ The Board therefore reaffirms its
2011 conclusions regarding the transportation merits of the LV Line.
---------------------------------------------------------------------------
\7\ See note 10, infra.
\8\ In Docket No. FD 36488, DesertXpress filed a petition for
exemption to construct and operate the RC Line, an approximately 50-
mile high-speed passenger rail line, between the Victor Valley and
Rancho Cucamonga in Southern California. The RC Line would connect
with the southern terminal of the LV Line at the Victor Valley. The
Board instituted a proceeding in Docket No. FD 36488 on July 12,
2021. DesertXpress Enters.--Constr. & Operation Exemption--Passenger
Rail Line Between Victor Valley & Rancho Cucamonga, Cal., FD 36488
(STB served July 12, 2021). The Board issued a decision today
authorizing DesertXpress to construct and operate the RC Line.
---------------------------------------------------------------------------
Environmental Analysis
NEPA requires that the Board examine the environmental effects of
proposed federal actions and inform the public concerning those
effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87,
97 (1983). Under NEPA, the Board must consider potential beneficial and
adverse environmental effects in reaching its decision. The two-fold
purpose of NEPA is to ensure that the agency's decision-making process
includes environmental considerations and to inform the public about
those considerations. Citizens Against Rails-to-Trails v. STB, 267 F.3d
1144, 1151 (D.C. Cir. 2001). While NEPA prescribes the process that
must
[[Page 81514]]
be followed, it does not mandate a particular result. Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989). Thus, once
the adverse environmental effects of a proposed action have been
adequately identified and evaluated, the Board may conclude that
``other values outweigh the environmental costs.'' Id.
The FRA 2020 Reevaluation reassessed the project modifications
alongside the proposed action described in the EIS and ROD. OEA 2020
Memo 3. FRA also updated and revised certain mitigation measures
developed in the EIS to address changes in the affected environment and
project changes since publication of the EIS. OEA 2020 Memo 3. FRA
determined that, with mitigation, the project modifications would
result in similar impacts to those evaluated in the EIS and concluded
that the project modifications would reduce certain environmental
impacts of the LV Line. OEA 2020 Memo 3. For example, the modified
alignment assessed in the FRA 2020 Reevaluation, which would be single
track and primarily in an existing median, would reduce the project's
impact on land use, visual resources, air quality and climate change,
and biological resources. Id. at 5, 7, 10, 12.
As part of FRA's review, it also identified regulatory changes that
had taken effect since the issuance of the EIS and analyzed the
affected environment to ensure that the conclusions of the EIS remained
valid. OEA 2020 Memo 3. Based on the analysis and findings in the FRA
2020 Reevaluation, FRA concluded that the project modifications, with
the implementation of the proposed mitigation, did not constitute
changes to the proposed action that would result in significant
environmental impacts that were not evaluated in the EIS and that a
Supplemental EIS was not necessary. Id.
OEA concluded that FRA had adequately assessed the potential
environmental impacts associated with the project modifications and
concurred with FRA's determination that a Supplemental EIS was not
necessary. OEA 2020 Memo 13. Accordingly, OEA recommended that the
Board consider the FRA 2020 Reevaluation, along with the EIS, in
deciding whether to authorize the project as modified. OEA 2020 Memo
13-14. OEA also recommended that the Board impose the revised
mitigation measures recommended in the FRA 2020 Reevaluation. OEA 2020
Memo 14. As noted above, the Board provided an opportunity for public
comment, and no comments were filed.\9\
---------------------------------------------------------------------------
\9\ In response to DesertXpress' petition for exemption to
construct and operate the RC Line, see note 9, supra, the San Manuel
Band of Mission Indians (San Manuel Band, now the Yuhaaviatam of San
Manuel Nation) and Morongo Band of Mission Indians (Morongo Band),
filed comments challenging the sufficiency of FRA's historic review
process with respect to the modified alignment of the LV Line. (San
Manuel Band Comments 1-2, FD 36488, May 5, 2021; Morongo Band
Comments 1-2, FD 36488, June 4, 2021). Since those comments were
filed, a new PA has been executed between (among others) FRA, STB,
the California State Historic Preservation Office (SHPO), the Nevada
SHPO, and the Advisory Council on Historic Preservation (ACHP). See
note 11, infra. Execution of the PA satisfies the requirements of
Section 106 for the modified route of the LV Line.
Also in the docket for the RC Line, the National Parks
Conservation Association (NPCA) filed a comment suggesting that the
LV Line was not adequately assessed under NEPA. (NPCA Comments 1, FD
36488 June 8, 2021.) NPCA further argued that the LV Line should
have been considered simultaneously with the RC Line because,
according to NPCA, ``there is no viable project'' absent the RC
Line. (Id.) The Board disagrees. As explained above, both the LV
Line's and RC Line's environmental and historic impacts have been
thoroughly evaluated under NEPA and NHPA. And, as the Board found in
2011, the LV Line has considerable merit--including ridership
demand--even without the RC Line. See Oct. 2011 Decision, FD 35544,
slip op. at 2-3.
---------------------------------------------------------------------------
Likewise, in the FRA 2023 Reevaluation, FRA determined that (1) the
additional modifications proposed by DesertXpress in 2022, with the
imposition of final proposed mitigation, would not result in
substantial changes in the evaluation of impacts disclosed in the EIS
or the FRA 2020 Reevaluation and (2) no Supplemental EIS is required.
OEA 2023 Memo 4. FRA also determined that the modifications would
generally avoid or minimize the overall effects of the project. Id. For
example, FRA concluded that placement of additional components of the
rail alignment and a greater portion of ancillary facilities within the
I-15 freeway right-of-way would reduce biological resource impacts
compared to the EIS or the FRA 2020 Reevaluation. OEA 2023 Memo 4 n.7.
Similarly, constructing along the modified route would result in fewer
air emissions compared to the route examined in the EIS because there
would be no tunneling and less of a need to elevate the alignment. Id.
OEA further concluded that the FRA 2023 Reevaluation adequately
assessed the potential environmental impacts associated with
DesertXpress' additional modifications and concurred with FRA's
determination that a Supplemental EIS is not necessary. OEA 2023 Memo
5. Accordingly, OEA recommends that the Board consider the FRA 2023
Reevaluation, along with the FRA 2020 Reevaluation and the EIS, when it
decides whether to authorize the LV Line as modified. OEA 2023 Memo 5.
OEA also recommends that, in any decision granting an exemption for
construction and operation of the LV Line modified as described in the
FRA 2020 and 2023 Reevaluations, the Board should impose all the
mitigation measures included in Appendix D of the FRA 2023
Reevaluation. OEA 2023 Memo 5.
NHPA
Section 106 of NHPA requires federal agencies to ``take into
account the effect of'' their licensing decisions (in this case,
whether to grant DesertXpress' request to modify the LV Line alignment)
on properties included in, or eligible for inclusion in, the National
Register of Historic Places and, prior to the approval of an
undertaking, to afford ACHP a reasonable opportunity to comment. See 54
U.S.C. 306108. Consultation with the SHPO is also required. See 36 CFR
800.2(a)(4) & (c)(1), 800.3(c)(3).
FRA determined that the project modifications would not result in
substantial changes to the evaluation of cultural resource impacts from
those identified in the EIS. OEA 2020 Memo 8. However, FRA concluded
that the modified project would encounter new archaeological resources
and historic built environment resources that were not previously
evaluated. OEA 2020 Memo 8. In accordance with 36 CFR part 800, FRA
moved the Section 106 process forward in consultation with the
appropriate parties, including ACHP, the California and Nevada SHPOs,
and federally recognized Native American tribes with an interest in the
project area. OEA 2020 Memo 8. In response to requests from several
consulting parties after FRA completed the FRA 2020 Reevaluation, FRA
decided to resolve any adverse effects to historic archeological and
built environment resources through the execution of a new PA. OEA 2020
Memo 8-9.
As noted in the PA executed on August 15, 2023, FRA identified 197
historic properties, assessed the adverse effects to those properties,
and prepared a Historic Properties Treatment Plan that provides
detailed methodology for implementing mitigation prescribed by the
agreement and resolves adverse effects to all known historic
properties. (2023 PA 6, 20.) \10\ OEA concludes, and the Board agrees,
that execution of the PA satisfies the requirements of Section
[[Page 81515]]
106 for the modified route. OEA 2023 Memo 4.
---------------------------------------------------------------------------
\10\ The PA is available on FRA's website at <a href="https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley">https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley</a>.
---------------------------------------------------------------------------
The Board's Analysis of the Environmental Issues
The Board will adopt the analyses and conclusions in the FRA 2020
and 2023 Reevaluations. The Board will also impose the final
recommended mitigation measures listed in Appendix D of the FRA 2023
Reevaluation, which would lessen impacts from constructing and
operating the modified alignment. The Board is satisfied that the FRA
2020 and 2023 Reevaluations took the requisite ``hard look'' at the
potential environmental and historic impacts associated with
modifications to the LV Line and properly determined that, with the
mitigation in Appendix D of FRA's 2023 Reevaluation, the proposed
modifications would not have potentially significant environmental
impacts, and that preparation of a Supplemental EIS is unnecessary.
Conclusions
The Board already authorized construction and operation of the LV
Line by exemption in 2011, and the modified alignment would lessen or
avoid a number of potential environmental impacts by placing much of
the routing in the I-15 median. As noted above, the merits of a high-
speed rail passenger line connecting Las Vegas and Southern California
are substantial, and are strengthened by the RC Line and its connection
to the greater Southern California commuter rail network. Moreover,
providing a rail alternative along the I-15 corridor would not only
create a transportation benefit for passengers; it would also create
environmental benefits in replacing highway vehicle traffic, and its
associated emissions, with more environmentally-friendly rail travel.
Therefore, after considering the transportation merits, the
environmental issues, and the entire record, the Board will grant the
petition for exemption and authorize the modified alignment of the LV
Line by modifying the 2011 routing condition, subject to compliance
with the mitigation measures listed in Appendix D of the FRA 2023
Reevaluation.
This action, as conditioned, will not significantly impact the
quality of the human environment or the conservation of energy
resources.
It is ordered:
1. DesertXpress' petition to reopen and modify the 2011 routing
condition is granted.
2. Under 49 U.S.C. 10502, the Board exempts construction of the LV
Line from the prior approval requirements of 4 U.S.C. 10901, with the
modifications evaluated in the FRA 2020 and 2023 Reevaluations.
3. The Board adopts the environmental mitigation measures set forth
in Appendix D of the FRA 2023 Reevaluation and imposes them as
conditions to the exemption granted here.
4. Notice will be published in the Federal Register.
5. Petitions for reconsideration must be filed by December 6, 2023.
6. This decision is effective December 16, 2023.
Decided: November 15, 2023.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
Appendix
Surface Transportation Board
Washington, DC 20423
[GRAPHIC] [TIFF OMITTED] TN22NO23.255
Office of Environmental Analysis
MEMORANDUM
TO: Martin Oberman, Chairman; Karen Hedlund, Vice Chairman; Patrick
Fuchs, Member; Michelle Schultz, Member; Robert Primus, Member
Cc: Mai Dinh, Director, Office of Proceedings
FROM: Danielle Gosselin, Director, Office of Environmental Analysis
DATE: October 30, 2023
SUBJECT: Docket No. FD 35544, DesertXpress Enterprises, LLC and
DesertXpress HSR Corporation--Construction and Operation Exemption--
in Victorville, Cal. and Las Vegas, Nev.: Environmental Memorandum
This memorandum summarizes a second reevaluation undertaken by
the Federal Railroad Administration (FRA) in 2023 (2023
Reevaluation) of additional proposed project modifications to
DesertXpress Enterprises, LLC's, d/b/a Brightline West (the
Applicant), construction and operation of a high-speed passenger
rail line between Southern California and Las Vegas, Nevada. This
memorandum also presents the Office of Environmental Analysis' (OEA)
final recommendations to the Board based on FRA's 2023 Reevaluation,
including a recommendation that the Board impose the revised
environmental mitigation in FRA's 2023 Reevaluation in any decision
authorizing the project, as modified.
Introduction
On July 28, 2011, the Applicant submitted a petition for
exemption under 49 U.S.C. 10502 for the construction and operation
of an approximately 190-mile high-speed passenger rail line between
the Victor Valley, in Southern California, and Las Vegas, Nevada
(Line). The purpose of the Line was to create an alternative
transportation option (in addition to auto and air) from Southern
California to Las Vegas. The Applicant plans to provide passenger
rail service on the Line.
The Board, through OEA, participated in the environmental review
as a cooperating agency under the lead of FRA.\1\ A number of other
agencies, including the Bureau of Land Management (BLM), the Federal
Highway Administration, the National Park Service, the California
Department of Transportation (Caltrans), and the Nevada Department
of Transportation (NDOT), participated in the environmental review
process as cooperating agencies or consulting parties. FRA, with the
assistance of the cooperating agencies, prepared a Draft
Environmental Impact Statement (Draft EIS) in March 2009, a
Supplemental Draft EIS in August 2010, and a Final Environmental
Impact Statement (Final EIS) in March 2011.\2\
---------------------------------------------------------------------------
\1\ FRA was the lead agency in the environmental review because
of its jurisdiction and expertise related to high-speed train
operations and railroad safety. See DesertXpress Enters., LLC &
DesertXpress HSR Corp.--Constr. & Operation Exemption--in
Victorville, Cal. & Las Vegas, Nev., Docket No. FD 35544, slip op.
at 4 n.6 (STB served Oct. 25, 2011).
\2\ The DEIS, Supplemental DEIS, and FEIS are referred to
collectively as the EIS.
---------------------------------------------------------------------------
The EIS identified a preferred alternative and developed
environmental mitigation conditions to avoid or minimize potential
environmental impacts. Following the issuance of a Record of
Decision (ROD) by FRA, the Board, on October 20, 2011, granted the
Applicant's petition for exemption, subject to environmental
conditions and the condition that the Applicant build the route
designated in the EIS and ROD as environmentally preferable (2011
Decision).\3\ Despite having the requisite agency approvals to
construct and operate the Line, construction did not immediately
proceed.
---------------------------------------------------------------------------
\3\ See 2011 Decision at 1, 8.
---------------------------------------------------------------------------
In 2018, the Applicant proposed design modifications to the
Line, including modifying the rail alignment between the Victor
Valley and Las Vegas so that it was located primarily within the I-
15 freeway median with portions following the east side of the I-15
freeway; relocating the Southern California terminus from
Victorville to the Town of Apple Valley (both located in the Victor
Valley); collocating an operations maintenance storage facility with
the passenger station in Apple Valley; and constructing certain
ancillary facilities not previously evaluated in the EIS.
FRA prepared a written reevaluation \4\ of the design
modifications (2020
[[Page 81516]]
Reevaluation), in which it determined that the project modifications
would reduce certain environmental impacts; updated and revised some
mitigation measures developed in the EIS to address changes in the
affected environment and project modifications since publication of
the EIS; and concluded that a Supplemental EIS was not required and
that the proposed project modifications are consistent with the
proposed action described in FRA's EIS and ROD. The Board, through
OEA, participated as a cooperating agency in FRA's reevaluation
process.
---------------------------------------------------------------------------
\4\ FRA's Procedures for Considering Environmental Impacts (64
FR 28545, May 26, 1999), provide that if major steps toward
implementation of the proposed action have not occurred within the
time frame, if any, set forth in the Final EIS, or within five years
from the date of approval of the Final EIS, a written reevaluation
of the adequacy, accuracy, and validity of the Final EIS is
prepared, to determine if a new or supplemental EIS is necessary.
---------------------------------------------------------------------------
On March 27, 2019, the Applicant filed a petition with the Board
to reopen this proceeding, seeking modification to the condition in
the 2011 Decision authorizing construction of the Line along the
previously selected preferred alternative route due to the
Applicant's proposed design modifications and other changes. OEA
prepared an Environmental Memorandum to the Board agreeing with
FRA's conclusions in the 2020 Reevaluation that no Supplemental EIS
was required, and recommending that, in any decision approving the
proposed project, the Board impose the revised mitigation measures
in FRA's 2020 Reevaluation. The Board then issued a decision on
December 3, 2020 attaching the OEA memorandum, seeking public
comment, and noting that the review of historic and cultural
resources pursuant to Section 106 of the National Historic
Preservation Act was still ongoing and that, therefore, the Board
could not issue a final decision addressing the modified route and
other changes until that process was complete. No comments were
received.
FRA'S 2023 Reevaluation
In 2022, the Applicant proposed additional modifications, which
were developed through the final design phase for the Line. These
modifications included relocating the rail alignment on certain
portions of the Line from the east side of the I-15 freeway to the
median; revising the design of the Apple Valley station to include
the passenger boarding and alighting platforms in the median of the
I-15 freeway; raising and moving east a portion of the existing I-15
northbound lanes to provide the necessary footprint and access for
these passenger platforms; adding or modifying certain ancillary
features not previously evaluated in the EIS or 2020 Reevaluation,
such as highway ramps, state highway patrol emergency crossovers,
and culverts; and locating a vehicle maintenance facility and
connecting freight track corridor at a site that had not previously
been evaluated in Sloan, Nevada (Sloan VMF). A detailed table from
the 2023 Reevaluation describing all of the additional modifications
is attached to this memorandum.
FRA evaluated the additional modifications and issued a
memorandum on September 15, 2023, concluding that a Supplemental EIS
is not necessary. The 2023 Reevaluation focused on the modifications
to the project footprint and facilities proposed since the issuance
of FRA's 2020 Reevaluation, and also reflected changes since then to
the affected environment, regulatory setting, and project effects.
FRA reassessed each of the environmental resource areas analyzed in
the EIS and 2020 Reevaluation: land use, community, and
environmental justice communities; growth; farmlands and grazing
lands; utilities/emergency services; traffic and transportation;
visual resources; cultural resources; hydrology and water quality;
geology and soils; paleontological resources; hazardous materials;
air quality and global climate change; noise and vibration; energy;
biological resources; \5\ and cumulative impacts.\6\ FRA determined
that the additional modifications, with the imposition of final
proposed mitigation (including, in most cases, mitigation that had
already been proposed in the EIS and 2020 Reevaluation), would not
result in substantial changes in the evaluation of impacts disclosed
in the EIS or 2020 Reevaluation, that the modifications would
generally avoid or minimize the overall effects of the project, and
that no Supplemental EIS is required.\7\
---------------------------------------------------------------------------
\5\ FRA reinitiated consultation with the U.S. Fish and Wildlife
Service (USFWS), under Section 7 of the Endangered Species Act for
the additional modifications. USFWS recommended updates to the
mitigation measures described in the project's Biological Opinion
prepared in 2011, specifically mitigation for impacts from the Sloan
VMF on the desert tortoise and desert tortoise habitat. FRA
incorporated the revised mitigation measures into the 2023
Reevaluation. On September 1, 2023, USFWS concluded re-initiation of
Section 7 consultation and determined that formal consultation was
not required for the Line.
\6\ With the exception of biological resources and cultural
resources, FRA performed a desktop/qualitative evaluation for the
above-listed resources as changes to the affected environment for
those resources would be unlikely to occur or were easily assessed
using publicly available resources. FRA performed more detailed
evaluations to assess impacts to cultural resources and biological
resources, which it documented in technical reports/memoranda. To
facilitate review by BLM, FRA included a separate analysis for the
Sloan VMF in the 2023 Reevaluation because the Sloan VMF has been
proposed on land owned and managed by BLM. FRA's determination as to
whether a Supplemental EIS is required considered all project
modifications, including the Sloan VMF.
\7\ For example, FRA concluded that placement of additional
components of the rail alignment and a greater portion of ancillary
facilities within the I-15 freeway right-of-way would reduce
biological resource impacts compared to the EIS or the FRA 2020
Reevaluation. (FRA 2023 Reevaluation 51-54.) Similarly, constructing
along the modified route would result in fewer air emissions
compared to the route examined in the EIS because there would be no
tunneling and less of a need to elevate the alignment. (Id. at 45.)
---------------------------------------------------------------------------
Mitigation Measures
FRA has updated the mitigation measures included in the 2011 ROD
and the 2020 Reevaluation to account for the additional project
modifications, and principally to mitigate impacts on the desert
tortoise and the desert tortoise habitat from the Sloan VMF
footprint. The mitigation measures are described in detail in
Attachment D of the 2023 Reevaluation.\8\ The 2023 Reevaluation
concludes that the mitigation measures developed in the EIS and the
2020 Reevaluation, as updated in the 2023 Reevaluation, would avoid
or minimize potential environmental impacts and that no Supplemental
EIS is required.
---------------------------------------------------------------------------
\8\ The 2023 Reevaluation, including its attachments, is
available on FRA's website at <a href="https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley">https://railroads.dot.gov/rail-network-development/environment/environmental-reviews/brightline-west-las-vegas-victor-valley</a>.
---------------------------------------------------------------------------
Section 106 Process
A Programmatic Agreement (PA) to govern the approach for ongoing
compliance with Section 106 and implementation of the resolution of
adverse effects was executed on August 15, 2023. This completed the
Section 106 process for the proceeding.
OEA'S Final Environmental Recommendations
After participating in the reevaluation process and reviewing
FRA's 2023 Reevaluation, OEA concludes that the 2023 Reevaluation
adequately assesses the potential environmental impacts associated
with the Applicant's additional modifications and concurs with FRA's
determination that a Supplemental EIS is not necessary. Accordingly,
OEA recommends that the Board consider FRA's 2023 Reevaluation,
along with the 2020 Reevaluation and the EIS, when it decides
whether to authorize the Line as modified. Mitigation measures
imposed in FRA's ROD and the Board's prior decision, and refined in
the 2020 Revaluation, were further refined in the 2023 Reevaluation.
Therefore, OEA recommends that, in any decision approving the Line
as modified in the 2020 and 2023 Reevaluations, the Board impose all
the mitigation measures included in Appendix D of the 2023
Reevaluation.
Attachment
[[Page 81517]]
Project Modifications (Since the September 2020 Reevaluation) \9\
------------------------------------------------------------------------
Project feature Description of modification
------------------------------------------------------------------------
Segment 1 Alignment (Apple Valley to The Project modifications
Lenwood). involve relocating the rail
alignment between the Victor
Valley Station and Sidewinder
Road from east side of the I-
15 freeway to the median. As
such, the entirety of the
Segment 1 rail alignment is
now within the I-15 freeway
median, which would result in
reduced impacts and increase
the efficiency of train
operations. This design change
is also favorable with
Caltrans and FHWA as it would
improve constructability of
potential future I-15 freeway
improvements in either the
northbound or southbound
directions. Additionally, the
Segment 1 rail alignment would
be extended less than one mile
south of the Victor Valley
Station to access a
maintenance of way track that
will be constructed to move
equipment from the median rail
mainline to the maintenance of
way facility. Construction of
a median-running rail
alignment in this area, south
of the Dale Evans Parkway
intersection, would require
realignment of the existing I-
15 northbound travel lanes
approximately 50 feet east,
and reconstruction of the Dale
Evans Parkway interchange
including the overpass.\10\
This is discussed further
under the Victor Valley
Station description below.
Additionally, the I-15
northbound travel lanes would
be elevated approximately 25
feet south of the interchange
to allow the maintenance of
way track to pass from the
median to the maintenance of
way facility. All roadway work
would occur within existing
Caltrans/NDOT ROW.
Segment 5 Alignment (PRIMM to Sloan Project modifications would
Road). relocate the rail alignment,
between Primm and north of
Goodsprings Road near Jean,
from the east side of the I-15
freeway to the freeway median.
As such, the entirety of the
Segment 5 rail alignment is
now located within the I-15
freeway median, which would
result in reduced impacts,
increase the safety and
efficiency of train
operations, and improve
constructability for future I-
15 widening in this portion of
the alignment. Additionally,
the previously considered
Braid Structures near Primm
and the Union Pacific Railroad
(UPRR) crossing are no longer
needed and have been removed.
Victor Valley Station (Previously The Project design evaluated in
Referred to as Dale Evans Station). September 2020 considered
collocating an operations,
maintenance, and storage
facility (OMSF) with the
Victor Valley Station, with a
permanent footprint of
approximately 300 acres. As
discussed below, the current
Project modifications include
a relocation of the Vehicle
Maintenance Facility (VMF) to
a site on the west side of I-
15 in Sloan. The Victor Valley
Station permanent footprint
would remain unchanged. As
noted above, under Segment 1,
the Project Modifications
include relocating the rail
alignment into the median of
the I-15 freeway. To
accommodate this new rail
alignment, the Victor Valley
Station layout has been
revised to include the
passenger boarding and
alighting platforms in the
median of the I-15 freeway. In
order to provide the necessary
footprint and access for these
platforms, the existing I-15
northbound lanes would be
raised and moved east within
the Caltrans ROW south of the
Dale Evans Parkway
interchange. Passengers would
access station platforms using
a walkway underneath the
relocated I-15 freeway
northbound lanes.
Highway Ramp Realignments/Modifications The Project design evaluated in
September 2020 included
realignment of portions of
approximately 17 existing
freeway on and off- ramps to
accommodate the rail line
within the I-15 freeway ROW.
The current Project
modifications include
extending these on and off
ramp realignments and ramp
modifications and changing the
location where these ramp
realignment/reconstructions
transition to the existing
roadway/pavement. There are
locations where these proposed
freeway ramp modifications
occur (from south to north):
<bullet> The I-15 southbound
ramps at Dale Evans
Parkway.
<bullet> The I-15 northbound
ramps at Main Street in
Barstow.
<bullet> The I-15 northbound
ramps and southbound ramps
at East Primm Boulevard.
<bullet> The I-15 southbound
ramps at Goodsprings Road.
<bullet> The I-15 southbound
ramps at Sloan Road.
These modifications would be
located primarily on
previously evaluated Project
footprint within existing
Caltrans/NDOT, and local ROW
along the I-15 freeway. These
modifications are the result
of coordination with Caltrans
and NDOT on final design
details, in order to update
the modified median-running
alignment to adhere to current
safety design standards.
[[Page 81518]]
California Highway Patrol (CHP) The Project design evaluated in
Emergency Crossovers. September 2020 included eight
emergency crossovers along the
alignment in California. The
current Project modifications
include two new emergency
crossovers at Zzyzx Road and
Halloran Springs.
Additionally, five previously
evaluated emergency crossovers
in Segment 3 would be
relocated. These are located
near Coyote Lake Road, Basin
Road, Baker, and both north
and south of Halloran Springs.
Emergency crossovers would be
located mainly on previously
evaluated Project footprint
within the existing Caltrans
ROW. In total, the modified
Project would include 10
emergency crossovers in
California, located in Segment
3 between Yermo and Mountain
Pass, and one emergency
crossover in Nevada
approximately 1.5-miles south
of Sloan.
Roadwork............................... The Project design evaluated in
September 2020 included
roadwork at local interchanges
and along the I-15 freeway at
various locations. The current
Project modifications include:
<bullet> Realigning the I-15
freeway northbound lane
approximately 50 feet east
and raising the lane
approximately 25 feet, to
accommodate the passenger
platforms in the I-15
median, tail track for
train storage, a pedestrian
underpass for access to/
from the platforms, and a
maintenance of way access
track for trains. These
roadwork improvements would
occur along a 60-foot
portion of the I-15 freeway
northbound lane adjacent to
the Victor Valley Station.
<bullet> Additional roadwork
at the Dale Evans Parkway
interchange accessing the I-
15 freeway southbound
ramps.
<bullet> I-15 freeway median
widening at Segment 5 to
accommodate the modified
median-running alignment.
<bullet> Raising of I-15
southbound lanes just south
of the Sloan Road
interchange to allow for
tracks to exit the I-15
median under the southbound
lanes and into the Sloan
VMF site.
The Project modifications also
include small, on-road lane
realignments along the I-15
freeway at Segment 6, near
Silverado Ranch Boulevard and
Blue Diamond Road.
Culverts............................... The Project design evaluated in
September 2020 included
drainage and culvert work
throughout the Project limits.
The current Project
modifications include revised
designs for three culverts and
the addition of four culverts
within Segment 5. The
associated drainage and
grading activities have also
been modified accordingly.
Cemex Facility and Rail Connection..... A new connection to the
existing Cemex industrial rail
track is proposed on the north
side of Apple Valley, CA near
the proposed Victor Valley
Station. The connection would
consist of a turnout off the
existing Cemex track and
approximately 2 miles of new
track along the east side of I-
15 freeway heading north, all
within the Caltrans ROW limit.
This connection would allow
rail transportation of
construction materials such as
track ballast to the Project
area. This reduces the need
for trucking construction
materials to the Project area.
Ivanpah Traction Power Substation The Ivanpah modified TPSS 3-
(TPSS). mile utility line and 3.5-mile
redundant utility line would
travel north of the existing
solar field to connect to a
Southern California Edison
(SCE) substation adjacent to
the BrightSource Ivanpah
Electrical Generating System,
west of the I-15 freeway,
resulting in the reduction of
approximately 0.18 acres of
permanent footprint. These
modifications are the result
of coordination with SCE, BLM
and USFWS.
California Maintenance Of Way (MOW) The Project design evaluated in
Facility. September 2020 considered the
relocation of the California
MOW Facility from Baker,
California, to the I-15
freeway median approximately
six miles south of the
California/Nevada state line,
adjacent to the existing
California Agricultural
Inspection Station (CAIS). The
25-acre facility was proposed
to be utilized for passive
equipment storage. The MOW is
no longer located adjacent to
the CAIS and will be divided
between the new site at Sloan
and the Victor Valley Station
area.
[[Page 81519]]
Sloan Vehicle Maintenance Facility The Project design evaluated in
(VMF). the DesertXpress EIS included
an OMSF in close proximity to
the original Victorville
Station west of the I-15
freeway and included
facilities for maintaining and
storing trains. Project
modifications evaluated in
2020 included relocating the
Victorville Station to the
south side of the I-15 freeway
at Dale Evans Parkway in Apple
Valley. At that time, it was
proposed the OMSF would be
collocated with the
Victorville Station, and a
separate location for vehicle
maintenance and storage had
not been identified. The
current Project modifications
include locating the vehicle
maintenance and storage
activities at a site located
in Segment 6 west of and
within 1.5 miles of the I-15
freeway, and south of Sloan
Road; the Victor Valley
Station permanent footprint
would remain unchanged. An
additional freight track
corridor will be constructed
to connect the VMF to the
adjacent UPRR. Brightline West
have filed a connection
request and are coordinating
with UPRR regarding the
connection design and
operational concepts. UPRR
have granted preliminary
approval of this rail
connection, which would be
subject to additional design
development. The Sloan VMF and
adjacent UPRR connection would
require 246 acres of permanent
footprint and 105 acres of
temporary footprint,6 and
includes:
<bullet> Storage and staging
tracks and overhead
catenary system from which
trains would be mobilized
for daily operations.
<bullet> Equipment and
operations associated with
the Sloan VMF, including
but not limited to a train
car wash station, a train
performance monitoring
station, an Operations
Control Center, a power
substation and distribution
lines, utility connections,
circulation system, site
control, fencing, and
parking.
The Sloan VMF will be a
permanent workplace for
approximately 100 employees
related to either the
maintenance of the Brightline
West train fleet or performing
other functions such as
driving the trains. These
facilities would be located on
land under BLM jurisdiction
and would therefore require a
ROW grant lease from BLM.
Temporary Construction Areas (TCAS).... TCAs are areas that would be
utilized for construction
staging and storage. No
permanent project features
would be installed in these
areas, and they would be
restored/vacated upon
completion of construction.
The modified Project includes
an additional 202 TCAs located
within Caltrans/NDOT ROW along
the I-15 freeway corridor for
construction of the rail
alignment. These are in
addition to TCAs previously
identified in the original
project description and the
September 2020 Reevaluation.
Most of these additional TCAs
are areas located within the
existing I-15 freeway ROW. The
addition of these TCAs adds
1,492 acres of temporary
footprint to the project \11\
The Sloan VMF facility
footprint includes 105 acres
of temporary footprint
required for constructing the
Sloan VMF and UPRR Connection.
------------------------------------------------------------------------
\9\ Brightline West Victor Valley, CA to Las Vegas, NV High-Speed Rail
Project Reevaluation (September 15, 2023) pgs. 4-7.
\10\ This Reevaluation has assumed full reconstruction and replacement
of the overpass. Caltrans will determine the necessary modifications
to the I-15/Dale Evans interchange which may not include full
reconstruction and replacement of the overpass.
\11\ As more of the alignment has been shifted to be within the I-15
freeway median, additional TCAs are proposed since room for
construction within the I-15 freeway median is more limited and needs
to be spread out throughout the alignment.
[FR Doc. 2023-25789 Filed 11-21-23; 8:45 am]
BILLING CODE 4915-01-P
</pre></body>
</html>Indexed from Federal Register on November 22, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.