SAFETEA-LU establishes a new environmental review process for transportation projects developed as environmental impact statements (EISs).  All EISs for which the Notice of Intent was published in the Federal Register after August 10, 2005, must follow SAFETEA-LU's requirements. These requirements are intended to promote efficient project management by lead agencies and enhanced opportunities for coordination with the public and with other Federal, State, local, and tribal government agencies during the project development process.
This section focuses on the different elements of the environmental review process and provides information on: project initiation; the roles and responsibilities of the project sponsor, and the lead, participating, and cooperating agencies; the development of project purpose and need; the analysis of alternatives; the identification and design of the preferred alternative; and opportunities for public involvement.
Through its language on the roles and responsibilities of lead, cooperating, and participating agencies, SAFETEA-LU emphasizes the responsibilities of the lead agencies under NEPA in determining the final purpose and need for the action and the range of alternatives, after considering input from the public and participating agencies. While one or more of the USDOT modal agencies will always be the Federal lead agency on a Federal transportation project, USDOT will share the lead agency role with other governmental entities, as defined by the law. Therefore, unless otherwise specified to indicate an ultimate decisionmaker, the term "lead agency(ies)" throughout the guidance refers to a collaboration among all joint lead agencies, whether they are serving as a joint lead agency under the authority of Section 6002 or by invitation pursuant to CEQ regulations, in making a decision or performing a task. Where not otherwise specified, the lead agencies are free to perform all tasks and make all decisions jointly, or to allocate their joint responsibilities and authorities among themselves by mutual written agreement. If the lead agencies do not agree on a particular matter under their joint authority, then they must work out their differences because that particular matter cannot progress until the lead agencies reach agreement.
To enhance interagency coordination and ensure that issues of concern are identified, SAFETEA-LU creates a new category of involvement in the environmental review process termed "participating agency." The intent of the new category is to encourage governmental agencies at any level with an interest in the proposed project to be active participants in the NEPA evaluation. Designation as a participating agency does not indicate project support, but does give invited agencies new opportunities to provide input at key decision points in the process.
SAFETEA-LU specifies that the lead agencies also must give the public the opportunity for involvement during the development of the purpose and need statement and the identification of the range of alternatives to be considered. Prior to SAFETEA-LU, the public scoping process typically included these elements of a NEPA review, but there was no explicit Federal requirement to provide an opportunity for public involvement on purpose and need and on the range of alternatives in advance of the draft environmental impact statement (DEIS).
SAFETEA-LU encourages efficiency in the environmental review process by allowing the lead agencies to decide whether to develop the preferred alternative to a higher level of design detail for mitigation purposes or to facilitate compliance with other laws. This guidance addresses the timing and information needed to make that decision.
Answer: Within this guidance, the term "transportation project" means any highway project, any public transportation capital project, and any multimodal project that requires an approval from FHWA or FTA.
Answer: Within this guidance, the term "USDOT" means FHWA or FTA, whichever agency must approve the transportation project under evaluation. In the case of a multimodal highway-transit project requiring approvals from both agencies, "USDOT" means both FHWA and FTA. Where FHWA has assigned certain environmental responsibilities to a State under Section 6005 of SAFETEA-LU, "USDOT" means the State department of transportation (State DOT), to the extent the State has been delegated FHWA environmental responsibilities and authorities.
Answer: The term "environmental review process" means the project development process followed when preparing a document required under NEPA regulations for a transportation project. In addition to NEPA requirements, the term also includes the process for compliance with, and completion of, any environmental permit, approval, review, or study required for the transportation project under any Federal law. Some of the other Federal environmental laws, such as "Section 4(f)" (49 USC §303), are within the purview of USDOT, and some, such as Section 404 permitting, are under the authority of other Federal agencies. In some States, a State agency may have partial or complete authority over a Federal environmental program that is included in the environmental review process, as a result of a delegation to the State, or assumption of that authority by the State.
USDOT is responsible for ensuring that any EIS or other required NEPA document  for a transportation project is prepared and completed in accordance with SAFETEA-LU and other applicable Federal laws and regulations. SAFETEA-LU also tasks USDOT with managing and facilitating the advancement of a transportation project through the environmental reviews under the purview of other agencies. Therefore, USDOT's involvement may extend into "post-NEPA" project development activities that will encourage timely environmental approvals, permits, or actions, as needed.
Question 4: How do the environmental requirements for metropolitan and statewide planning in Sections 3005, 3006, and 6001 of SAFETEA-LU relate to the environmental review process?
Answer: SAFETEA-LU Sections 3005, 3006, and 6001 require that:
- The transportation planning process provides for actions and strategies that protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns;
- Transportation plans be developed in consultation with State, tribal, and local agencies responsible for land-use management, natural resources, conservation, environmental protection, and historic preservation;
- This consultation involve a comparison of transportation plans with State, tribal, and local conservation plans and maps, if available, and with inventories of natural and historic resources, if available; and
- Transportation plans include a discussion of potential environmental mitigation activities and potential areas to carry out these activities.
As presented in the USDOT guidance on linking planning and NEPA processes (Appendix D), these planning activities can contribute to establishing the purpose and need for a project, determining the range of reasonable alternatives, assessing the cumulative impacts of the projects in the plan, and developing an approach to mitigating the adverse impacts of a project. In addition, the agencies identified during the planning consultations may be invited to act as "participating agencies" (defined in Questions 21 to 29), if appropriate. Questions 11, 12, 13, and 35 address other aspects of linking the planning and environmental review processes.
Question 5: How does the SAFETEA-LU environmental review process relate to FHWA's emphasis on context sensitive solutions (CSS)?
Answer: FHWA's CSS program encourages the early, continuous, and meaningful involvement of the public and the use of a collaborative, interdisciplinary approach that involves all stakeholders throughout the project development process. The goal of CSS is to develop a transportation facility that fits its physical setting and preserves scenic, aesthetic, historic, and environmental resources, while satisfying the project's purpose and need. The SAFETEA-LU requirements of providing opportunities for the involvement of the public and participating agencies in the development of project purpose and need and the range of alternatives support the intent of these CSS principles.
Question 6: Do the new requirements in SAFETEA-LU affect existing merger agreements for integrating NEPA and other environmental laws and regulations?
Answer: An interagency agreement in place prior to August 10, 2005 may continue to be used, at the discretion of the lead agencies, to govern the coordination among the signatories to that agreement. However, such agreements cannot be imposed on participating agencies that are not party to the agreement. These agencies and the general public must be granted the opportunities for involvement provided by Section 6002 regardless of the terms of a pre-existing interagency agreement. Therefore, the coordination plans described in Questions 47-57 typically will require supplementation beyond the pre-existing merger agreement, because such agreement would not address the entire environmental review process encompassed by Section 6002.
The lead agencies' decision whether to import pre-existing merger agreement procedures into a project-specific or programmatic coordination plan should be based on their judgment of how best to expedite the environmental review process while continuing to advance the environmental objectives of NEPA and other Federal laws. Interagency merger agreements should be reviewed to determine if their future application will meet the purpose and intent of SAFETEA-LU. For example, the lead agencies may need to renegotiate or dissolve a merger agreement that calls for other agencies to concur in purpose and need statements or the range of alternatives if the agreement is not expediting project development. In the absence of an applicable merger agreement, participating agencies are encouraged to offer input-supportive or adverse-at these points and these comments must be considered by the lead agencies when they exercise their responsibility to establish the purpose and need (23 U.S.C 139(f)(2)) and range of alternatives (23 U.S.C. 139(f)(4)(B)) for the NEPA document.
Where a pre-existing merger agreement does include concurrence requirements, the lead agencies may continue to use those parts of the merger agreement if they wish, as indicated above. However, if the lead agencies conclude that concurrence on an issue is not achievable on a particular project, then the lead agencies must exercise their decisionmaking obligations under Section 6002.
While not required, it is in the best interest of efficiency and good government to work cooperatively with those agencies that have independent jurisdiction by law to develop a purpose and need statement and alternatives that are mutually acceptable, so that one NEPA document can satisfy both agencies' requirements. (See Questions 32 and 36.)
Answer: The SAFETEA-LU requirements do apply to Tier 1 EISs. The NEPA regulations of USDOT and CEQ permit the tiering of EISs (23 CFR 771.111(g) and 40 CFR 1502.02). The first tier EIS would address broad issues in the study area, such as the effectiveness of complementary transportation actions of various modes and general locations in alleviating the transportation problems in the study area. The initiation of a first tier EIS does trigger the SAFETEA-LU requirements. However, the description of the "type of work" and other information for project initiation (see Question 11), the impact assessment methodologies, the corresponding coordination plan with participating agencies, and other features of the review process will reflect the broader level of decisionmaking at the Tier 1 planning phase. When the lead agencies initiate Tier 2 proceedings, the SAFETEA-LU requirements will apply, but procedures and documentation should be adapted as appropriate to reflect the results of the Tier 1 proceedings.
Answer: All transportation projects requiring an EIS for which the original Notice of Intent was published in the Federal Register after August 10, 2005, must follow the procedures outlined in Section 6002. A limited exception is addressed in Question 9 below.
USDOT also has the authority under Section 6002 to apply its requirements to certain classes of projects or individual projects that are developed as environmental assessments (EAs). For EA projects, the decision on the use of Section 6002 will be made by the FHWA Division Office or FTA Regional Office, with the concurrence of the other lead agency(ies), on a case-by-case basis for individual projects or classes of projects. The "default" assumption, which need not be documented outside this guidance, is that the Section 6002 environmental review process will not be applied to EAs. The decision to apply Section 6002 to a particular EA or class of EAs should depend on the benefits, in terms of expediting the EA process and stewarding the environment that would result by following this process. A decision to follow these procedures for an EA or class of EAs should be documented in the coordination plan or other project record.
At this time, USDOT does not intend to exercise the authority to apply the Section 6002 process to CEs through this guidance.
Because this guidance was not available between August 10, 2005, and the date of this guidance, lead agencies may have used procedures to comply with Section 6002 that differ in some detail from the procedures contained in this guidance. In such cases, the Federal lead agency will determine whether additional action is needed and practical in order to make the process consistent with Section 6002.
Answer: SAFETEA-LU permits States that "re-engineered" their environmental review process to streamline transportation decisionmaking under the provisions of §1309 of the Transportation Equity Act for the 21st Century (TEA-21) to request a grandfathering exemption to continue operating their program under those processes. States wishing to pursue this grandfathering exemption should submit a request to the FHWA Office of Planning, Environment, and Realty for review and approval by March 31, 2007. The request should provide supporting documentation that the State's existing process was approved by the FHWA under TEA-21 §1309. An environmental review process approved by FHWA for this grandfathering treatment must be used for the State's program as a whole or for a pre-approved class of projects, but cannot be substituted for Section 6002 procedures on a project-by-project basis.
FTA did not approve any re-engineered streamlining processes during the lifetime of TEA-21. Therefore, this SAFETEA-LU provision would apply only to an FTA project sponsored or co-sponsored by a State DOT whose TEA-21 process has been officially accepted by FHWA.
Question 10: If a NEPA review for which the Notice of Intent was published prior to the date of enactment of SAFETEA-LU (August 11, 2005) is being re-evaluated due to a 3-year lapse in activity, or re-scoped for any reason, or if a supplemental EIS (SEIS) is needed, must the SAFETEA-LU environmental review process be followed?
Answer: On a project for which the Notice of Intent was published in the Federal Register prior to the enactment of SAFETEA-LU, the SAFETEA-LU environmental review process need not be followed if:
- a re-evaluation of the DEIS or FEIS is performed that results in a determination that an SEIS or new EIS is not needed;
- an SEIS as described in 23 CFR 771.130, that does not involve the reassessment of the entire action, is needed; or
- an EIS that was under active development during the 8 months prior to August 11, 2005, is being re-scoped due to changes in plans or priorities, even if a revised Notice of Intent is published. "Active development" is evidenced by one or more of the following actions: documented meetings with members of the public or other agencies, correspondence with other agencies, or publication of project newsletters.
In all other cases of re-scoping or reassessing the entire action through an SEIS or new EIS, the SAFETEA-LU environmental review process must be followed (except in States with an approved TEA-21 procedure, as described in Question 9).
Answer: To initiate the environmental review process for a transportation project using the Section 6002 process, SAFETEA-LU requires that the project sponsor notify USDOT about the type of work, termini, length, and general location of the proposed project. The notification must also provide a list of any other Federal approvals (e.g., Section 404 permits) anticipated to be necessary for the proposed project, to the extent that such approvals are known at the outset. The notice also should indicate the timeframe within which the environmental review process should be started. The information required to initiate the environmental review process may be generated by the metropolitan or statewide planning processes, or by other means such as corridor planning studies, traffic studies, or congestion or pavement management systems. For more information on using products of the planning process, see Question 35 and Appendix D. The notification can be provided in the form of a letter or through a programmatic document (discussed below) such as the State Transportation Improvement Program (STIP) that meets the informational requirements in Section 6002.
If a notification letter is used, it should be signed or emailed by the official authorized to sign EISs for the sponsoring agency or that official's authorized delegate, and should be sent to the FHWA Division Administrator or FTA Regional Administrator. States may use existing procedures that provide the project initiation information required by SAFETEA-LU if the appropriate official originates the notice. For example, a draft Notice of Intent under 40 CFR 1501.7 and 1508.22, sent to the Division or Regional Administrator by the appropriate official of the sponsoring agency, may serve as the initiation notice under Section 6002 so long as the information required by Section 6002 is contained in the draft Notice of Intent.
Notices of initiation also may be consolidated (batched) into a multi-project notice of initiation if the lead agencies determine that the resources of the lead agencies and the timing for the projects support such practice.
States may propose, and the USDOT may accept, programmatic approaches to satisfying the project initiation requirements of SAFETEA-LU. In any such proposal, the State must provide to USDOT in a properly approved document: (a) the information about each project (i.e., type of work, termini, length, general location, and the list of other Federal approvals) required for project initiation; and (b) an indication of exactly when the environmental review process for each project will commence, i.e., when the staff, consultant services, financial resources, and leadership attention necessary to move the project's environmental review process forward will be committed to that end. For example, a State that updates its STIP annually may propose to use it as the vehicle for project initiation by including in the STIP the project initiation information and the dates that each draft Notice of Intent will be delivered to USDOT.
Answer: The timing of the notification is flexible and occurs when (1) the proposed transportation project is sufficiently defined to provide the required information noted in Question 11, and (2) the project sponsor is ready to proceed with the NEPA phase of project development by devoting appropriate staff, consultant services, financial resources, and leadership attention to the project. The notification would normally occur prior to the publication of the Notice of Intent in the Federal Register and may even occur within the transportation planning process, if an appropriate level of project information is available.
Question 13: For FTA New Starts and Small Starts projects, how does the NEPA process, as enhanced by Section 6002, interface with the planning Alternatives Analysis that is part of the project development process for New and Small Starts projects?
Answer: FTA does not envision any change in the NEPA-New Starts interface as a result of Section 6002. The planning Alternatives Analysis required for FTA New Starts projects and defined in 49 USC 5309(a)(1) may still be performed prior to initiating the environmental review process or concurrent with and merged into the environmental review process. The sponsoring transit agency, in consultation with FTA, has the discretion to decide which approach to use.
Performing the New Starts planning Alternatives Analysis prior to the environmental review process (so called "Option 1") is most effective when the study area has complex transportation issues and a myriad of potential solutions, including alternative transportation modes, transit technologies, and alignments, and combinations thereof. In this case, a planning study to focus the issues is appropriate before initiating the environmental review process. When initiation of the environmental review process, as described in Question 11, occurs after the New Starts planning Alternatives Analysis, "type of work" would be identified as the specific transit technology (e.g., light rail transit [LRT], bus rapid transit [BRT], commuter rail train, rail rapid transit) and general alignment adopted by the metropolitan planning organization (MPO) into the metropolitan transportation plan.
Performing the New Starts Alternatives Analysis concurrent with and merged into the environmental review process (so called "Option 2") is most effective when the transit technology and alignment alternatives in the study area are severely limited by development patterns and densities and by available right-of-way. When the New Starts Alternatives Analysis is performed concurrent with and merged into the environmental review process, project initiation would occur at the start of the New Starts Alternatives Analysis and environmental review process. "Type of work" would be identified as "fixed guideway transit" because a transit technology has not yet been formally proposed. After the public hearing on the New Starts Alternatives Analysis/DEIS and MPO adoption of a transit technology and general alignment into the metropolitan transportation plan, a supplemental DEIS may be necessary in accordance with 23 CFR 771.130(e).
Certain New Starts project sponsors have advocated publishing a Federal Register notice of intent to prepare an EIS, more accurately called an "early scoping notice," and then conducting the New Starts planning Alternatives Analysis as a super-extended scoping process (so called "Option 1.5"). This option may provide an opportunity to identify and engage participating agencies (as defined below) earlier, i.e., during the New Starts planning Alternatives Analysis, through the early scoping notice. The USDOT guidance on linking the planning and NEPA processes (Appendix D) states that, for the results of a planning study (including a New Starts planning Alternatives Analysis) to be carried forward into the environmental review process, those results must be subjected to public and interagency review and comment during the scoping of the EIS, among other requirements. Section 6002 does not change the USDOT guidance of February 2005 in Appendix D. Under this option, project initiation would occur after the New Starts planning Alternatives Analysis at the start of the environmental review process, and "type of work" would be identified as the specific transit technology (e.g., LRT, BRT, commuter rail train, rail rapid transit) and general alignment adopted by the MPO into the metropolitan transportation plan.
The New Starts discussion above applies also to any Small Starts project that would significantly affect the quality of the human environment and would therefore require an EIS under CEQ regulations. Although the Small Starts program is new, FTA expects that transit agencies will propose for Small Starts funding many projects that do not require an EIS. Such projects would not be subject to Section 6002 procedures, unless the transit agency seeks to use Section 6002 to expedite the environmental review process in accordance with Question 8.
Answer: USDOT must serve as the Federal lead agency for a transportation project. The direct recipient of Federal funds for the project must serve as a joint lead agency.
For FHWA, the State DOT is typically the direct recipient of project funds, and therefore must serve as a joint lead agency along with FHWA. A local governmental agency that is the project sponsor may be invited to serve as a joint lead agency as described in Question 16.
For FTA, the local transit agency typically is the direct recipient of project funds, and therefore serves as a joint lead agency along with FTA. In practice, the role of the local transit agency in an FTA NEPA review is not expected to change as a result of the Section 6002 provision on lead agencies. Section 6002 merely provides the statutory authority for transit agencies to perform the role in NEPA reviews that they have traditionally performed.
Answer: Section 6002 makes no change regarding which other governmental agencies may serve as joint lead agencies. In addition to the required lead agencies, other Federal, State, or local governmental entities, including but not limited to toll, port, and turnpike authorities and MPOs, may act as joint lead agencies, at the discretion of the required lead agencies, in accordance with CEQ regulations. For example, the U.S. Department of Homeland Security may serve as a joint lead agency with USDOT and the project sponsor on a transportation improvement at a national border crossing. The environmental documents prepared must satisfy the requirements of both lead Federal agencies. Agencies that become joint lead agencies by invitation assume the roles, responsibilities, and the authority of a lead agency under Section 6002.
Private entities, either acting as sponsors or co-sponsors of projects, cannot serve as joint lead agencies, and their role is limited to providing environmental or engineering studies and commenting on environmental documents.
Question 16: In the case of a transportation project for which the State DOT will receive and transfer Federal funds to a local governmental agency, which agencies are required to be a lead agency?
Answer: USDOT has interpreted SAFETEA-LU to mean that the direct recipient of Federal funds must serve as a joint lead agency with the USDOT. In the example presented in this question, the direct recipient would be the State DOT. Local governmental entities that are subrecipients of Federal funds, at the discretion of the Federal and non-Federal lead agencies, may be invited to be joint lead agencies, but are not required to serve. A subrecipient that will actually be designing and constructing the project will normally be asked to serve as a joint lead agency with the USDOT and the State DOT.
When the State DOT and a subrecipient are both serving with the USDOT as joint lead agencies, the lead agencies must jointly decide which of them has responsibility for hiring needed contractors and managing the day-to-day conduct of the environmental review. Any of the lead agencies may assume this responsibility, with the concurrence of the other lead agencies. This allocation of responsibilities would take into account the capabilities and resources available to the each of the lead agencies. When a subrecipient agency serving as a joint lead agency assumes responsibility for day-to-day management of the environmental review process, the role of the State DOT, the direct recipient, is to provide active oversight and supervision of the local governmental agency's work. The State DOT remains legally responsible for the performance of the local governmental agency, as was the case before SAFETEA-LU. Accordingly, USDOT expects the direct recipient to participate fully in the various decisions relegated to the lead agencies.
Question 17: How does the Federal lead agency requirement apply to the FHWA Federal Lands Highway Program and FTA's Alternative Transportation in Parks and Public Lands Program?
Answer: SAFETEA-LU specifically states that USDOT shall be the Federal lead agency for the environmental review process for any project requiring a USDOT approval. Section 6002 does not apply to projects carried out by Federal Lands Highway that are for another agency and do not use Title 23 funds. Existing agreements with Federal land management agencies that designate FHWA as a cooperating agency should be amended or replaced to ensure that FHWA is designated as the lead or joint lead agency. An agreement establishing joint lead agency status for multiple Federal agencies should provide that environmental documents prepared under that agreement satisfy the requirements of all lead agencies.
FTA's role in the environmental review process for projects funded through the new Alternative Transportation in Parks and Public Lands Program (49 USC 5320) is presented in separate guidance specifically about that program. See "Alternative Transportation in Parks and Public Lands Program: Requirements for Recipients of FY 2006 Funding," July 2006.
Answer: The lead agencies must perform the functions that they have traditionally performed in preparing an EIS in accordance with 23 CFR part 771 and 40 CFR parts 1500-1508. In addition, the lead agencies now must identify and involve participating agencies; develop coordination plans; provide opportunities for public and participating agency involvement in defining the purpose and need and determining the range of alternatives; and collaborate with participating agencies in determining methodologies and the level of detail for the analysis of alternatives. In addition, lead agencies must provide increased oversight in managing the process and resolving issues.
Answer: SAFETEA-LU strengthens the management and facilitation role of USDOT as the Federal lead agency during the environmental review process. USDOT, therefore, must perform the duties previously associated with the Federal lead agency and is responsible for the overall direction of the environmental review process and for expediting the delivery of the transportation project. Under Section 6002, USDOT, together with the other lead agency(ies), holds responsibility for deciding certain issues, including purpose and need, range of alternatives to be analyzed, and whether to develop the preferred alternative to a higher level of detail. At times, this role will require that USDOT take more proactive and assertive actions than in the past to facilitate the timely and adequate completion of the environmental review process. Such actions may include enforcing schedules (where applicable), facilitating resolution of issues, or appropriately asserting itself in other ways to ensure that the environmental review process moves forward in a timely manner.
Answer: For FHWA, any of the joint lead agencies (including a subrecipient that the other lead agencies have accepted as a joint lead agency) can prepare the environmentaldocuments subject to applicable oversight and supervision requirements. The decision on who will prepare a particular environmental document is a joint decision by the lead agencies. For FTA, the transit agency will continue to prepare the environmental documents under the guidance and direction of FTA. The Federal lead agency ultimately remains responsible for the content of the environmental documents. SAFETEA-LU does not change the responsibility of USDOT, as the Federal lead agency, to furnish guidance, independently evaluate, and approve environmental documents under its authority, and to ensure that project sponsors comply with mitigation commitments.
Question 21: Which agencies should be invited to be participating agencies, and how is this decided?
Answer: Federal, State, tribal, regional, and local government agencies that may have an interest in the project should be invited to serve as participating agencies. Nongovernmental organizations and private entities cannot serve as participating agencies.
Although the project sponsor initially identifies potential participating agencies, the lead agencies collectively decide which agencies to invite to serve as participating agencies. The lead agencies cannot know with certitude all the agencies with a potential interest until the alternatives have been developed, and the alternatives cannot be set until the participating agencies have had an opportunity for involvement. Therefore, the lead agencies are expected to make good faith, common-sense efforts to identify and involve interested agencies early on, the objective being to surface and resolve issues as early and quickly as possible. It is not necessary to invite agencies that have only a tangential, speculative, or remote interest in the project. If the lead agencies do not agree on which agencies should be invited, then they must work out their differences because progress on inviting agency participation, and other activities that depend on the identification of participating agencies, will be held up until the lead agencies agree. The success of this element of the Section 6002 process will depend on the lead agencies exercising common sense and good faith to make the process work.
Some reasonable division of labor among the lead agencies in distributing the invitations may be appropriate. For example, the lead agencies may agree that the project sponsor will be responsible for inviting State and local agencies, and that the USDOT agency will be responsible for Federal agencies and Native American tribal governments. Such an understanding should be defined in the coordination plan (discussed below), or in some other written form.
Appropriate practices for inviting participating agencies may vary from State to State. To help identify potential participating agencies, FHWA recommends that each State develop a comprehensive and inclusive list of Federal, State, tribal, regional, and local agencies that have permitting authority, special expertise, or interest in transportation projects. In some States, this list may vary depending on the location of proposed projects. The process for identifying possible State and local agencies may be more difficult than the process of identifying Federal agencies. A good first step toward finding State or local agencies to serve as participating or cooperating agencies is to look at the agencies already participating in NEPA streamlining or NEPA/404 merger processes. These may include the State historic preservation offices, regional planning agencies, and departments of natural resources.
For FTA projects, transit agencies should seek access to the list of agencies developed by the State DOT for the project area. Over time, as transit projects are advanced through SAFETEA-LU's new environmental review process, the larger transit agencies that have ongoing programs of major projects should develop their own lists. Otherwise, FTA will work with the sponsoring transit agency to develop a list of potential participating agencies on a case-by-case basis.
Answer: The roles and responsibilities of participating agencies include, but are not limited to:
- Participating in the NEPA process starting at the earliest possible time, especially with regard to the development of the purpose and need statement, range of alternatives, methodologies, and the level of detail for the analysis of alternatives.
- Identifying, as early as practicable, any issues of concern regarding the project's potential environmental or socioeconomic impacts. Participating agencies also may participate in the issue resolution process described later in this guidance.
- Providing meaningful and timely input on unresolved issues.
- Participating in the scoping process. The scoping process should be designed so that agencies whose interest in the project comes to light as a result of initial scoping activities are invited to participate and still have an opportunity for involvement.
Accepting the designation as a participating agency does not indicate project support and does not provide an agency with increased oversight or approval authority beyond its statutory limits, if applicable. Lead agencies should recognize that resource constraints may make full participation by an interested agency difficult at times and should strive to facilitate participation in scheduling and locating meetings, use of conferences calls, etc. However, the objective of Section 6002 is to move project reviews forward expeditiously, and participating agencies that cannot fully participate may have to prioritize their activities. Funding of additional agency resources, as described in Questions 67-69, may be considered by the States to alleviate chronic resource problems impeding environmental review processes.
Question 23: Who sends out the invitations to serve as participating agencies? When should the invitation be sent?
Answer: Any of the lead agencies may send invitations to potential participating agencies. Unless there is an agreement between the non-Federal lead agencies and a particular Native American Tribe regarding direct coordination, the Federal lead agency shall be responsible for inviting federally recognized tribes that may have an interest in the project. The timing of invitations to potential participating agencies may vary. To the extent that the lead agencies know prior to scoping that certain entities should be invited to serve, the lead agencies may send invitations at or after the time of the project notice of initiation (described in Question 11). If, as the project progresses, the lead agencies identify additional entities that should be invited to serve as participating agencies, then they should invite those entities promptly.
Answer: The invitation should be in the form of a hardcopy or email letter and must include a basic project description and map of the project location. If the invitation is sent electronically, it should be tracked to ensure delivery. As with all correspondence, a copy should be placed in the project file. The project description may be included in scoping materials enclosed with the letter. The invitation must clearly request the involvement of the agency as a participating agency and should state the reasons why the project is expected to interest the invited agency. Lead agencies should bear in mind that invited agencies (e.g., U.S. Environmental Protection Agency (EPA)) may have obligations under several authorities, and, in such case, the invitation should reflect all areas of jurisdiction of the invited agency. The invitation should identify the lead agencies and describe the roles and responsibilities of a participating agency. The invitation must specify a deadline for responding to the invitation. A response deadline of no more than 30 days, consistent with the comment deadlines set forth in SAFETEA-LU, is suggested. The scoping process may be conducted concurrently with the invitation process as long as the potential participating agencies are provided with sufficient scoping information and opportunity for involvement. See Appendix B for sample invitation letters for FHWA and FTA.
Answer: The invitation should request a response either accepting or declining the role of participating agency. Per SAFETEA-LU, a Federal agency invited to participate shall be designated as a participating agency unless the agency declines the invitation by the specified deadline. If a Federal agency chooses to decline, their response letter (electronic or hard copy) must state that the agency (1) has no jurisdiction or authority with respect to the project, (2) has no expertise or information relevant to the project, and (3) does not intend to submit comments on the project. If the Federal agency's response does not state the agency's position in these terms, then the agency should be treated as participating agency. Under the statutory provisions regarding Federal agency participation, it is likely that any invited Federal agency will serve as a participating agency. Therefore, in the interest of good resource management, invitations to Federal agencies should be sent with appropriate forethought about whether the agency has an actual interest in the project.
A State, tribal, or local agency must respond affirmatively to the invitation to be designated as a participating agency. If the State, tribal, or local agency fails to respond by the stated deadline or declines the invitation, regardless of the reasons for declining, the agency should not be considered a participating agency.
Participating agency status may be established on a programmatic basis or project-by-project.
Question 26: What happens if an agency does not initially become a participating agency, but subsequent events indicate that the agency wants or needs to become involved in the environmental review process?
Answer: The answer depends on the situation, as illustrated in the following scenarios:
- If an invited agency declines to be a participating agency, but the lead agencies think the invited agency has jurisdiction or authority over the project and will be required to make a decision about the project, or if the invited agency has acknowledged special expertise or has information relevant to the project, then the lead agencies should work immediately to resolve the disagreement about participation. If informal procedures prove inadequate to reach a mutually satisfactory agreement on participation, then the lead agencies may wish to elevate the issue within the agencies or to pursue the statutory issue resolution process described in Questions 61 through 63 below.
- If an agency correctly declines an invitation, but new information indicates that the agency does indeed have authority, jurisdiction, acknowledged special expertise, or information relevant to the project, then the lead agencies should immediately extend a new invitation in writing to the agency to become a participating agency. The lead agencies also should consider whether this new information affects previous decisions on the project. If the agency agrees to be a participating agency, then the lead agencies should consult with that new participating agency in determining whether the new information affects previous decisions.
- If an agency declines an invitation to become a participating agency and later wants to participate, then the agency should be invited to become a participating agency but previous decisions will not be revisited.
- If initially an agency was unintentionally left out and now wants to participate, the agency should be extended an invitation to become a participating agency as soon as the oversight is realized. The lead agencies should request input and consider whether and how the new agency's participation in the process affects previous decisions. It may be necessary to reconsider previous decisions if it is probable that the input of the new participating agency would substantially change the decision.
Question 27: What happens if an agency declines to be a participating agency, but later submits comments on the project?
Answer: Any agency that has an interest, but declines to be a participating agency, is free to comment on the project in the same manner that a member of the public may comment. The declining agency foregoes the opportunity to provide early input on several project issues such as the development of purpose and need, the range of alternatives, and methodologies. The lead agencies will always consider any substantive comments submitted by interested parties. However, the comments of an agency that declines an invitation to participate will be treated in accordance with the procedures outlined in the answer to Question 26. In order to avoid misunderstandings, the lead agencies should make it clear in the responses to the agency's comments that the agency declined to serve as a participating agency and, if applicable, that its comments therefore were not received at the appropriate time and could not be considered and acted upon at that time.
If the comments made by a Federal agency that declines participating agency status present substantial problems that may delay completion of the environmental review process, the matter should be submitted to the appropriate USDOT headquarters office and Federal agency headquarters for resolution. If issues of concern arise based on such agency's comments that cannot otherwise be resolved, then the lead agencies may consider pursuing the issue resolution procedures described in Questions 61 through 63 below.
Question 28: What if an agency becomes a participating agency, but does not fully participate during the environmental review process?
Answer: The intent of the concept of "participating agency" is to allow for early and timely input regarding issues of concern. Therefore, it is incumbent upon the participating agencies to provide meaningful input at appropriate opportunities. Failure to raise issues that could have been addressed during such opportunities may result in these comments not receiving the same consideration that they would have received if raised at the appropriate time.
With the additional information available from the completion of technical studies or the DEIS itself, participating agencies may have concerns that were not evident during earlier commenting opportunities. Lead agencies should consider comments on old issues if those comments derive from new information. However, participating agencies should understand that backtracking to previously resolved issues will follow only if the new information is at substantial variance with what was expected and pertains to an issue of sufficient magnitude and severity to warrant reconsideration.
Expectations and commitments about agency participation should be addressed in the coordination plan described in Questions 47 through 53 below. It is appropriate to tailor an agency's participation to its area of interest or jurisdiction. In doing so, the lead agencies should make their choices after considering the potential effects if the agency is not provided an opportunity for involvement in some aspects of the environmental review process.
If the coordination plan calls for an agency's involvement in a particular issue of interest to that agency, and the agency does not participate in that issue, the lead agencies must decide how critical that agency's input is to making a decision on the issue. If the participating agency has no separate jurisdiction or permit authority over the project, the lead agencies may decide to accept the agency's implicit "no comment" and move forward. If the lead agencies determine that participation by the agency in question is critical and may affect future decisions on the project, then the lead agencies may wish to pursue the involvement of the other agency through informal dispute resolution or other means. Use of the formal dispute resolution procedures discussed in Questions 61 through 63 below, may be an option if the lead agencies deem it appropriate.
Question 29: If an agency decides not to submit comments or otherwise participate in USDOT's environmental review process, can that agency still submit comments to non-USDOT agencies when they review the project and make decisions under other laws?
Answer: SAFETEA-LU requires all Federal agencies, to the maximum extent practicable, to carry out their responsibilities under other laws in a manner that is concurrent and coordinated with the USDOT review process [23 USC 139(d)(7)]. Nothing in SAFETEA-LU prevents anyone from submitting comments to a Federal agency exercising its own jurisdictional authority over a project. However, the SAFETEA-LU requirements on Federal agency coordination should serve to encourage the early identification of issues of concern and thereby prevent the submission of unexpected or "first time" substantive comments by Federal agencies during the proceedings of non-USDOT agencies (such as the Corps of Engineers). Additionally, the coordination plan described in Questions 47 through 53 below should build safeguards into the environmental review process to help ensure timely comments by all participating agencies.
Answer: According to CEQ (40 CFR 1508.5), "cooperating agency" means any Federal agency, other than a lead agency, that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed project or project alternative. A State or local agency of similar qualifications or, when the effects are on lands of tribal interest, a Native American tribe may, by agreement with the lead agencies, also become a cooperating agency.
Participating agencies are those with an interest in the project. The standard for participating agency status is more encompassing than the standard for cooperating agency status described above. Therefore, cooperating agencies are, by definition, participating agencies, but not all participating agencies are cooperating agencies. The lead agencies should consider the distinctions noted below in deciding whether to invite an agency to serve as a cooperating/participating agency or only as a participating agency.
The roles and responsibilities of cooperating and participating agencies are similar, but cooperating agencies have a higher degree of authority, responsibility, and involvement in the environmental review process. A distinguishing feature of a cooperating agency is that the CEQ regulations (40 CFR Section 1501.6) permit a cooperating agency to "assume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the environmental impact statement concerning which the cooperating agency has special expertise." An additional distinction is that, pursuant to 40 CFR 1506.3, "a cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied." This provision is particularly important to permitting agencies, such as the U.S. Army Corps of Engineers, who, as cooperating agencies, routinely adopt USDOT environmental documents.
Question 31: Must the lead agencies invite an agency that qualifies for both designations to serve as both a cooperating and a participating agency?
Answer: The SAFETEA-LU requirement for the designation of participating agencies does not alter USDOT's responsibility under CEQ regulations to consult with Federal agencies qualifying to be cooperating agencies. Therefore, if a Federal agency qualifies as a cooperating agency, it should be invited to serve in that capacity as well as the participating agency capacity. A non-Federal agency or Native American tribe that qualifies under CEQ regulations to serve as a cooperating agency may be invited to serve in that capacity or as a participating agency, at the discretion of the lead agencies.
The invitation to an agency to serve as a cooperating agency should address the roles and responsibilities expected of a participating agency as well. In the interest of administrative efficiency, a single invitation should cover both roles, as illustrated in Appendix B. If a Federal agency declines the invitation to serve as a cooperating agency, that agency should be treated as a participating agency unless its declination is couched in the terms described in Question 25.
Answer: The lead agencies are responsible for the development of the project's purpose and need statement. In developing the statement of purpose and need, the lead agencies must provide opportunities for the involvement of participating agencies and the public and must consider the input provided by these groups. After considering this input, the lead agencies will decide the project's purpose and need. If the lead agencies do not agree, they must work out their differences because progress on stating the project's purpose and need, and other activities that depend on the statement of purpose and need will be stalled until the lead agencies agree. If a cooperating or participating agency has permit or other approval authority over the project, it would be useful, though not required, for the lead agencies and that permitting agency to develop jointly a purpose and need statement that can be utilized for all applicable environmental reviews and requirements. Per previous guidance issued by CEQ (see Question 33), which was affirmed by Congress in its conference report on SAFETEA-LU, other Federal agencies should afford substantial deference to the USDOT's articulation of the purpose and need for a transportation action.
Answer: SAFETEA-LU does not substantively change the concept of purpose and need that was established by CEQ. SAFETEA-LU requires a clear statement of identified objectives that the proposed project is intended to achieve for improving transportation conditions. The objectives should be derived from needs and may include, but are not limited to, the following outlined in SAFETEA-LU:
- Achieving a transportation objective identified in an applicable statewide or metropolitan transportation plan;
- Supporting land use, economic development, or growth objectives established in applicable Federal, State, local, or tribal plans;
- Serving national defense, national security, or other national objectives, as established in Federal laws, plans, or policies.
Although many transportation studies have established these listed or similar objectives in the past, SAFETEA-LU affirms the use of these objectives in establishing the purpose and need for a transportation project. For example, the statement of objectives might include goals and objectives obtained from Federal, State, or local planning documents that describe land use, growth, or other targets or limits. These planning objectives might indicate that high-density land use is planned for the study area and would require improved infrastructure. In such a case, it would be appropriate for travel demand forecasting or other modeling to consider the future land use as long as the land use forecast was obtained from an official Federal, State, or local planning document and was determined appropriate for use during NEPA.
The FHWA/FTA guidance on linking planning and NEPA (Appendix D) describes considerations for using planning information in the NEPA process. In accordance with that guidance:
- The purpose and need for a project can be shaped by goals and objectives established in a corridor or subarea study carried out by a state DOT, MPO, or transit agency as part of the statewide or metropolitan planning process;
- A general travel corridor or general mode or modes (i.e., highway, transit, or a highway/transit combination) resulting from transportation planning analyses may be part of the project's purpose and need statement; and
- If the financial plan for an MPO's long-range transportation plan indicates that funding for a specific project will require special funding sources (e.g., tolls or public-private financing), such information may be included in the purpose and need statement.
General direction on developing concise and understandable purpose and need statements is found in the CEQ/USDOT letter exchange found online at http://www.environment.fhwa.dot.gov/guidebook/Ginterim.asp and in FHWA/FTA Joint Guidance issued July 23, 2003, found online at http://www.environment.fhwa.dot.gov/guidebook/Gjoint.asp.
Question 34: SAFETEA-LU requires an "opportunity for involvement" for participating agencies and the public in defining the project purpose and need. How can this requirement be satisfied?
Answer: The lead agencies must give participating agencies and the public the chance to become involved in the development of the project purpose and need statement. This opportunity can occur early during the transportation planning process, or later during the scoping process. The level of involvement will be determined by the lead agencies case-by-case, taking into account the overall size and complexity of the project.  The form and timing of that involvement is flexible, and the lead agencies should coordinate beforehand and agree on when and in what form the participating agency and public involvement will occur. The opportunity for involvement must be publicized and may occur in the form of public workshops or meetings, solicitations of verbal or written input, conference calls, postings on web sites, distribution of printed materials, or any other involvement technique or medium. The project's coordination plan (described in Questions 47 through 53 of this guidance) will establish the timing and form of the required involvement opportunities and the timing of the decision on purpose and need.
The opportunity for involvement must be provided prior to the lead agencies' decision regarding the purpose and need that will be incorporated into the NEPA document. The lead agencies' decision on purpose and need and their considerations in making that decision should be documented and shared with participating agencies to ensure that any disputes are surfaced as early as possible.
Question 35: How does the transportation planning process relate to the development of a project's purpose and need statement?
Answer: Transportation objectives developed during the transportation planning process and identified in a statewide or metropolitan transportation plan can be the primary source of a project's purpose and need statement. The transportation planning process enables State and local governments and metropolitan planning organizations, with the involvement of stakeholders and the public, to establish a vision for a region's future transportation system, define a region's transportation goals and objectives for realizing that vision, decide which needs to address, and determine the timeframe for addressing these needs. Out of the process emerge proposed projects intended to meet the needs and achieve the objectives of the plan.
In accordance with the USDOT guidance on linking planning and NEPA, the USDOT will give deference to decisions resulting from the transportation planning process under the conditions set forth in Question 6 of the Appendix A; Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule, February 14, 2007 (found at http://www.gpo.gov/fdsys/pkg/FR-2007-02-14/html/07-493.htm). Because of its obligations under NEPA, the USDOT must be able to stand behind the overall soundness and credibility of analyses conducted and decisions made during the transportation planning process if they are incorporated into a NEPA document.
When the transportation planning process produces a specific purpose and need statement for a particular project, that purpose and need can be used in the environmental review process as follows: if the specific steps outlined in this guidance to identify participating agencies and to involve these agencies and the public in the development of the project purpose and need were taken during the transportation planning process, then further review of the project purpose and need may not be necessary; otherwise, the participating agencies and the public must be provided an opportunity for involvement once the environmental review process has been initiated. For more information, see Appendix A; Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule, February 14, 2007 (found at http://www.gpo.gov/fdsys/pkg/FR-2007-02-14/html/07-493.htm)
Answer: The lead agencies are responsible for the development of the range of alternatives. In developing the alternatives, the lead agencies must provide opportunities for the involvement of participating agencies and the public and must consider the input provided by these groups. After considering this input, the lead agencies will decide the range of alternatives for analysis. If the lead agencies do not agree, then they must work out their differences because progress on the alternatives, and other activities that depend on the alternatives, is halted until the lead agencies agree. If a cooperating or participating agency has permit or other approval authority over the project, it would be useful, though not required, for the lead agencies and that permitting agency to develop jointly the range of alternatives that can be utilized for all applicable environmental reviews and requirements.
Question 37: SAFETEA-LU requires an "opportunity for involvement" by participating agencies and the public in defining the range of alternatives. How can this requirement be satisfied?
Answer: As early as practicable,the lead agencies must give participating agencies and the public the chance to become involved in defining the range of alternatives. The level of involvement will be determined by the lead agencies case-by-case, taking into account the overall size and complexity of the project.  The form and timing of that involvement is flexible, and the lead agencies should coordinate beforehand and agree on when and in what form the participating agency and public involvement will occur. The opportunity for involvement must be publicized and may occur in the form of public workshops or meetings, solicitations of verbal or written input, conference calls, postings on web sites, distribution of printed materials, or any other involvement technique or medium. The project's coordination plan (described in Questions 47 through 53 of this guidance) will establish the timing and form of the required involvement opportunities and the timing of the decision on the range of alternatives to be evaluated in the NEPA document. The required involvement opportunities for purpose and need and range of alternatives may be concurrent or sequential. If the opportunities are concurrent, and if the purpose and need statement is substantially altered as a result of the public and participating agency involvement, then the lead agencies must consider whether an opportunity for involvement in the range of alternatives that derive from the new purpose and need is warranted.
The opportunity for involvement must be provided prior to the lead agencies' decision regarding the range of alternatives to be evaluated in the NEPA document. The lead agencies' decision on the range of alternatives and their considerations in making that decision should be documented and shared with participating agencies to ensure that any disputes are surfaced as early as possible.
Question 38: What new requirements are included in SAFETEA-LU for developing the methodologies for the analysis of alternatives?
Answer: Under SAFETEA-LU, the lead agencies must determine, in collaboration  with the participating agencies, the appropriate methodologies to be used and the level of detail required in the analysis of alternatives. Accordingly, the lead agencies must work cooperatively and interactively with the relevant participating agencies on the methodology and level of detail to be used in a particular analysis. Consensus is not required, but the lead agencies must consider the views of the participating agencies with relevant interests before making a decision on a particular methodology. Well-documented, widely accepted methodologies, such as those for noise impact assessment and Section 106 (historic preservation) review, should require minimal collaboration.  The project's coordination plan (described in Questions 47 through 53 of this guidance) will establish the timing and form of the required collaboration with participating agencies in developing the methodologies.
In accordance with 40 CFR 1503.3(b), if a commenting [participating] agency criticizes the proposed methodology to be used in the analysis of an alternative, then the commenting [participating] agency should describe the alternate methodology that it prefers and state why.
After the lead agencies have collaborated with the participating agency on the methodologies and level of detail, the lead agencies will make the decision on the methodology and level of detail to be used. If the lead agencies do not agree, then they must work out their differences because progress on the methodologies and level of detail, and on the analyses that depend on these decisions is stalled until the lead agencies agree. The lead agencies' decisions on methodologies and their considerations in making those decisions should be documented and shared with participating agencies to ensure that any disputes are surfaced as early as possible.
Given the track record of interagency disagreements over methodology late in project development, the lead agencies should aggressively use the scoping process as described in 40 CFR 1501.7 to solicit public and agency input on methodologies and to reach closure on what methodologies will be used to evaluate important issues. This approach is particularly important on issues, such as the analysis of indirect and cumulative effects, for which questions of methodology are very open. As part of the scoping process, the lead agencies should communicate decisions on methodology to the participating agencies with relevant interests or expertise soon after they are made. The lead agencies may define a comment period on the methodology. At the discretion of the lead agencies, methodologies may be developed incrementally, with the initial methodology that is developed during scoping being refined with further collaboration after an initial impact analysis has been performed. Unless a participating agency objects to the selected, duly communicated methodology as described above, the lead agencies can reasonably assert in most cases that comments on methodology received much later in the process (e.g., after issuance of the DEIS) are not timely and will therefore not be acted upon. Exceptions should be based on significant and relevant new information or circumstances that are materially different from what was foreseeable at the time that the lead agencies made and communicated the decision on methodology. USDOT has determined that this procedure is the best approach to addressing the requirements of Section 6002 in a manner that is consistent with the comment and response process embodied in 40 CFR Part 1503.
The collaboration with a participating agency on the methodologies and level of detail can be accomplished on a project-by-project, program, or region-wide basis, or for some special class of projects (e.g., all projects affecting a particular watershed), as deemed appropriate by the lead agencies. If an approach other than project-by-project collaboration is used, however, the participating agencies with an interest in that methodology must be made aware at the outset of the collaboration that the lead agencies intend to develop a comprehensive methodology to be applied to a program or class of projects or to a region. The participating agencies' input on that methodology and level of detail should take into account the intended scope of use. While the level of detail used in describing such methodologies is left to the discretion of the lead agencies, the success of this newly required collaboration in surfacing disagreements for early resolution depends on an unambiguous description of the methodology and the impacts to which it applies. Once a methodology has been determined for a region, program, or class of project, the lead agencies can apply the methodology to qualifying projects without project-specific collaboration if the relevant participating agencies and lead agencies have entered into a programmatic agreement to that effect. If no such agreement is in place, the lead agencies still may apply that methodology to a qualifying project, but project-specific collaboration is necessary. It is expected that project-specific collaboration in such cases will be highly expedited and can be accomplished by advising the relevant agencies of the intention to apply the methodology in question.
The lead agencies may revise a methodology at any time,but if the reason is other than to respond to the concerns of a participating agency, then collaboration with the participating agencies with an interest in that methodology is needed when the methodology is revised. When there is a written programmatic agreement on a methodology that applies to the project, such agreement is binding only on the parties to the agreement. Other participating agencies with an interest in the methodology in question retain the right to collaborate on that methodology. The results of the collaboration on methodologies and level of detail should be communicated to participating agencies in written form so that any objections can be surfaced as early as possible.
If a cooperating or participating agency has permit or other approval authority over the project, it would be useful, though not required, for the lead agencies and that permitting agency to develop jointly methodologies that can be utilized for all applicable environmental reviews and requirements.
Question 39: Who decides whether the preferred alternative can be developed to a higher level of detail than the other alternatives?
Answer: The lead agencies will decide whether to develop the preferred alternative, after it has been officially identified, to a higher level of detail than the other alternatives. The lead agencies must determine that the development of the preferred alternative to a higher level of detail than the other alternatives under review will not prevent the lead agencies from making an impartial decision on the appropriate course of action and is necessary to facilitate the development of mitigation measures or concurrent compliance with other environmental laws. The lead agencies must agree that a particular alternative is the preferred alternative and that the relevant conditions stated herein are met, before developing that alternative in greater detail. If the lead agencies do not agree, then they must work out their differences because work on developing an alternative in greater detail cannot proceed until the lead agencies agree.
Answer: SAFETEA-LU permits the preferred alternative to be developed to a higher level of detail than the other alternatives for only the following reasons: (1) to facilitate the development of mitigation measures, or (2) to facilitate concurrent compliance with other applicable environmental laws. Applied appropriately, this provision will be an effective tool for achieving the concurrent reviews called for in SAFETEA-LU.
Nothing in this guidance is intended to alter the established practice of FTA concerning the level of detail of the evaluation of New Starts and Small Starts under 49 U.S.C. 5309.
Answer: As in the past, the preferred alternative may be officially identified in a NEPA document (e.g., the DEIS), which is signed by the appropriate authority within each lead agency. This approach is appropriate whether or not the intent is to develop that alternative to a higher level of detail. The preferred alternative must be identified in the FEIS in accordance with CEQ regulations (40 CFR 1502.14(e)).
Another approach to officially identifying the preferred alternative is available when a non-Federal lead agency (normally the project sponsor) wants to develop an alternative, which has not yet been identified in a signed NEPA document as the preferred alternative, to a higher level of detail. The preferred alternative may be identified by means of a separate letter or other decision document issued by the non-Federal lead agency and accepted by the other lead agencies. The official of the non-Federal lead agency who is authorized to sign EISs may send a letter (electronic or hard copy) to the other lead agencies identifying the non-Federal agency's preferred alternative and briefly stating the reasons for that preference. If the other lead agencies accept the identification of the preferred alternative at that time, each one will so indicate to the other lead agencies. In deciding whether to accept the identification of the preferred alternative, the USDOT lead agency will consider its ability to comply with Federal requirements such as Section 4(f), the Section 404(b)(1) guidelines,  the Executive Order on Floodplain Management, etc. Once a preferred alternative is officially identified, subsequent NEPA documents should disclose that preference.
If the USDOT lead agency accepts the identified alternative as the preferred, it does so in accordance with CEQ regulations (40 CFR 1502.14(e)) regarding the identification of the preferred alternative. Such acceptance is not a commitment to issue a Record of Decision (ROD) for that alternative or to fund that alternative. For FTA, acceptance of the preferred alternative is strictly for NEPA purposes, and it does not affect the New Starts or Small Starts rating process. In addition, the decision to accept the identification of a preferred alternative and the decision to develop that alternative in greater detail are separate decisions subject to different considerations as detailed herein.
Question 42: Who can initiate a request for development of a preferred alternative to a higher level of detail, and how is that done?
Answer: Normally, the non-Federal lead agency sponsoring the project will initiate the request to develop the preferred alternative to a higher level of detail. The request should be made by letter (electronic or hard copy) from the official authorized by the requesting agency to sign the EIS, or that official's authorized delegate, to the FHWA Division Office or FTA Regional Office, and to the appropriate offices of the other lead agencies, if any. The request may be included in a letter requesting acceptance of the identification of a preferred alternative, if appropriate. The letter should request the concurrence of the other lead agencies in developing the preferred alternative to a higher level of detail. The request should provide the following information:
- Reasons why the agency wants to develop the preferred alternative to a higher level of detail before completion of NEPA review, including the specific Federal laws, impacts, resources, and mitigation measures whose processing would be facilitated by the proposed differential treatment of the alternatives;
- The general nature and extent of the work the agency would perform on the preferred alternative if the request is approved; and
- The reasons why greater design detail will not prejudice the lead agencies' consideration of other alternatives.
In accordance with good practice for administrative records, the USDOT lead agency should document its determination that the relevant conditions described in Section 6002 are met before any work is done to develop a preferred alternative in greater detail. This documentation may be in the form of a response letter (electronic or hard copy) to the non-Federal lead agency's request.
Question 43: When can the lead agencies identify a preferred alternative and allow its development to a higher level of detail? What factors should be considered when deciding?
Answer: The scenario that most readily fits the statutory provisions about the preferred alternative being developed to a higher level of detail is that the DEIS would identify the preferred alternative but treat it no differently than the other alternatives. Then, between the DEIS and FEIS when actions to deal with comments on the DEIS are underway, the lead agencies would develop the preferred alternative in greater detail to deal with mitigation issues and compliance with other laws. This scenario is not the only scenario that would comply with this provision of Section 6002. USDOT has developed the following minimum requirements for use in other cases.
The decision to develop a preferred alternative to a higher level of detail may occur only after the preferred alternative has been officially identified. USDOT, as Federal lead agency, will not accept the identification of a preferred alternative until completion of sufficient scoping and analysis of the alternatives to support the identification. The scoping process is not complete until the lead agencies have provided the opportunity for the involvement of the public and participating agencies in the development of purpose and need and the range of alternatives, and have considered their input and comments. Even after the completion of scoping and a preliminary analysis of alternatives, the USDOT lead agency may decide that identification of a preferred alternative is premature because there is not yet sufficient information on the alternatives to support the decision. For example, the USDOT lead agency may not be convinced, on the basis of only preliminary information, that a Section 4(f) determination will be possible for the non-Federal lead agency's preferred alternative.
Under any scenario, a non-Federal lead agency proposing to develop the preferred alternative to a higher level of detail should state why it needs the greater design detail and why such work will not prejudice the consideration of alternatives. All lead agencies should evaluate carefully any proposal to develop a preferred alternative to a higher level of detail and consider the potential that such action has for creating a bias in the later consideration of alternatives and selection of the project alternative. The evaluation also should consider other factors that may affect the environmental review process. Examples of such factors include whether the identification of a preferred alternative might have an unacceptably adverse effect on public confidence in the environmental review process for the project; whether that adverse effect on public confidence could be avoided by delaying the differential treatment of alternatives until a later point in the environmental review process; how the difference in level of detail among the alternatives might affect the presentation of the alternatives in the environmental documents; or the extent to which the proposed preferred alternative is supported by the results of public and participating agency involvement.
Question 44: What considerations might be relevant to the required determination about future impartiality?
Answer: The lead agencies should identify and consider any factors relevant to the project that would prevent them from making impartial decisions about alternatives in the future. The factors will vary from project to project. Considerations that may be relevant include the following:
- Whether the information on all alternatives already is sufficiently definite and well developed to identify important resources and potential impacts, and to permit a reasonably informed choice.
- Whether the early coordination with the public and participating agencies and the collaboration with participating agencies on impact methodologies resulted in general agreement about the level of detail for alternatives that can continue to guide preparation of the analysis of alternatives.
- The potential impact of the resulting financial and time commitments on overall project costs and schedule if another alternative ultimately is selected.
- The likelihood that fair comparisons among alternatives will result despite the development of a preferred alternative to a higher level of detail.
The key question is whether developing the preferred alternative more fully would cause, in the mind of the NEPA decisionmakers, an imbalanced comparison among alternatives because of time, money, or energy expended. The Federal lead agency must be confident that the lead agencies will be able to make a different choice of alternative, if warranted, at the end of the NEPA process. The use of this SAFETEA-LU provision must not result in "pro forma" treatment of alternatives other than the preferred alternative.
Question 45: Should the development of the preferred alternative to a higher level of design detail affect the presentation of the alternatives in the NEPA document?
Answer: SAFETEA-LU does not change the standard practices relating to the evaluation and presentation of alternatives. This includes disclosing the rationale for the identification of a preferred alternative. When the preferred alternative is developed at a higher level of detail, the lead agencies should take particular care to ensure that the evaluation of alternatives reflects the required rigorous and objective analysis. Each alternative must be explored at a sufficient level of detail to support a reasoned choice.
Key issues for the NEPA alternatives evaluations in these cases will be the use of "apples-to-apples" comparisons of alternatives, and the assurance that additional information developed on the preferred alternative is evaluated to identify and address any new or different information that might affect the choice of alternatives.
As always, the comparison of alternatives has to be done in a fair and balanced manner. If there are substantial differences in the levels of information available for the alternatives, it may be necessary to apply assumptions about impacts or mitigation to make the comparisons fair. For example, if mitigation is designed only for the preferred alternative, then assumptions that comparable measures can be taken to mitigate the impacts of the other alternatives should be included in the comparative analysis of the alternatives even though those other alternatives are not designed to the same level of detail. This comparison of mitigation across alternatives will ensure that the preferred alternative is not presented in an artificially positive manner as a result of its greater design detail.
The NEPA document should disclose the additional design work and the changes in impacts arising out of that design detail. If the impacts identified at the higher level of design detail are substantially different, they should be reviewed to determine whether additional work on other alternatives and/or reconsideration of the identification of the preferred alternative is warranted.
Question 46: Are there any limitations on how far a preferred alternative can be developed before NEPA is complete and the USDOT Record of Decision (ROD) is issued?
Answer: In accordance with SAFETEA-LU, the additional development of the preferred alternative may not proceed beyond that level necessary to identify ways to avoid or further minimize impacts, to develop mitigation, or to comply with other applicable environmental laws, such as Section 404 of the Clean Water Act, Section 7 of the Endangered Species Act, or Section 106 of the National Historic Preservation Act. The degree of additional development needed and allowable will depend on the specific nature of the impact being mitigated or resource being protected, or the level of information required to comply with other applicable laws.