U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Decisions made early in planning and project development are often the root causes of problems identified later in the environmental review process when NEPA and Section 4(f) documents undergo legal scrutiny. Consultation with FHWA environmental attorneys at early decision points can help decision makers avoid problems later, saving time and costs. This initiative will also identify the most common problems in document development, their root causes, and the measures preparers can take to avoid the problems.
Fast Track to Legal Sufficiency.
The Legal Sufficiency Enhancement Initiative (LSEI) encourages Federal-Aid and Federal Lands Highway Division Offices (Divisions) to use early legal involvement as a tool to help expedite the environmental review process. Early involvement of environmental attorneys on large, complex, or potentially controversial projects will facilitate early identification of problems through reviews of draft environmental documents and other consultation activities. This will allow any needed changes to occur earlier in the project development process, when such changes can be better accommodated within the project schedule. Final environmental documents that reflect the results of early involvement will require less review time. The result is reduced overall environmental review time and better environmental documents.
Legal Sufficiency Review
Legal sufficiency reviews are required for all Final Environmental Impact Statements (FEIS) and most Final Section 4(f) Evaluations prior to FHWA approval. These reviews evaluate whether a Federal-Aid highway project's Section 4(f) Evaluation and National Environmental Policy Act (NEPA) document are all consistent with legal requirements. When they are not, revisions are required—and changes can be time-intensive.
If the required legal sufficiency review of a FEIS or Final Section 4(f) Evaluation is the first time that Counsel is consulted about the project or evaluates project environmental documents, the likely result is a disruption to the planned project delivery schedule. There is a better way.
Shortening Project Delivery Time
Considering the environmental aspects of a project at the onset of planning and project development saves considerable time. Attorney review of pre-release internal administrative drafts of Section 4(f) Evaluations and NEPA documents allows for early identification and expedited solution of problems.
Involving an FHWA attorney early offers these advantages:
Implementing the LSEI
To make the legal sufficiency review process smooth, time-effective, and cost-effective, the FHWA will implement three new practices under the LSEI:
Better communication means better coordination
By working closely with the Divisions, FHWA attorneys can offer guidance as it is needed. After reviews, Divisions and States can respond to FHWA comments with the support of legal counsel.
As another element of effective communication, FHWA attorneys will categorize each comment on an environmental document by its level of importance:
This will help Divisions and States budget time effectively: they can focus first on what is most important.
Action plans that work.
Within 15 days of the Division's receipt of FHWA attorney comments on any administrative draft of a Draft Environmental Impact Statement (DEIS) or other draft environmental document, FHWA attorneys will facilitate scheduling of a coordination meeting. At this meeting, the Division can review, discuss, and clarify FHWA attorney comments with the experts. The required steps for success will be made clear. In appropriate cases, the Division and FHWA attorney may decide to meet with the State as well.
By clarifying the legal issues and the needed responses, FHWA attorneys help their client Divisions resolve any significant issues in a timely way. This will allow Divisions to work with the States to develop a realistic action plan as well as a workable revision schedule for FHWA comments.
The 15-day Rule
With all parties working together in a productive way throughout the NEPA process, if legal comments have been adequately addressed in the final administrative draft of the FEIS or Section 4(f) Evaluation, then a final legal sufficiency determination will be made within 15 calendar days of the attorney's receipt of the document. Accelerating the final legal sufficiency determination, as well as the overall time-savings from early problem resolution, should provide the FHWA Divisions a strong incentive to initiate early legal involvement.
There are two key requirements for this 15-day rule:
With successful early involvement, transportation planners and project managers can be confident their environmental documents will meet legal sufficiency requirements. LSEI integrates legal review into cost-effective and time-effective project planning and development.