This section of the guidance focuses on the parts of SAFETEA-LU Section 6002 that describe some of the logistics of managing the environmental review process. This section provides guidance on developing coordination plans and schedules, undertaking concurrent reviews, identifying and resolving issues of concern, ensuring compliance with mitigation commitments, adopting and using environmental documents, and providing or receiving funding for activities related to the environmental review process.
Regarding coordination and scheduling, SAFETEA-LU requires the establishment of a plan for coordinating public and agency participation. The coordination plan may include a schedule for the completion of the environmental review process. This guidance identifies the factors that should be considered in developing the coordination plan and establishing a schedule. The section on coordination and schedules is closely related to other sections of the guidance, particularly the questions on participating agencies, purpose and need, the range of alternatives, and analysis methodologies, all of which should be read in conjunction with each other.
On the topic of concurrent reviews, SAFETEA-LU indicates that each Federal agency acting as a participating agency should carry out its obligations under other applicable laws concurrently, and in conjunction with the review required under NEPA, unless doing so would impair the ability of the Federal agency to carry out its statutory obligations. Each Federal agency also must develop and implement the necessary tools and procedures to ensure that environmental reviews of transportation projects are undertaken by the agency in a timely, coordinated, and environmentally responsible manner.
SAFETEA-LU also includes information on how the agencies involved in a project should identify and resolve issues of concern. Lead agencies, for example, must make adequate information available to participating agencies so that they can identify potential issues of concern as early as practicable. Most issues will be amicably resolved or will be decided by the lead agencies on the merits of the case without repercussions on the process. If any issue that may delay completion of the environmental review process or result in denial of a permit or approval cannot be resolved among the lead and participating agencies, SAFETEA-LU provides a procedure for resolution of that issue.
On the issue of ensuring compliance with mitigation commitments, SAFETEA-LU does not change, but strongly reinforces, the current USDOT practice specified in the current regulation at 23 CFR 771.109(b).
Finally, SAFETEA-LU describes the circumstances under which the State may provide Federal funding to agencies involved in the environmental review process. This provision specifies that States may provide Federal funds to government agencies and federally recognized tribes acting as participating agencies if they can thereby measurably expedite or improve the project delivery process.
Answer: SAFETEA-LU requires that the lead agencies establish a plan for coordinating public and agency participation and comment during the environmental review process. Lead agencies may find that best results occur when they consult with the participating agencies on the coordination plan, because key elements of the coordination plan may be setting expectations that require a commitment of resources by the participating agencies.
As with all joint responsibilities, the lead agencies must agree on the coordination plan or must work out their differences before proceeding to implement any element of the plan that is in dispute.
Answer: Coordination plans are developed early in the environmental review process after project initiation. The initial coordination plan may be changed by the lead agencies as additional participating agencies are identified or the complexity of issues becomes clearer. Many elements of a coordination plan may be repetitious from project to project, and may therefore be established by the lead agencies programmatically, for greater efficiency. Participating agencies may prefer programmatic elements in coordination plans because such elements would provide greater predictability and assist them in their allocation of resources. A coordination plan for an individual project may be established separately from any programmatic coordination plan, or it may incorporate one or more programmatic coordination plans established by the lead agencies to govern coordination with one or more participating agencies.
As stated in Question 6, pre-existing merger or other agreements may be incorporated into the coordination plan. New MOUs and agreements consistent with Section 6002 may also be incorporated into the coordination plan if the lead agencies agree that such MOU or agreement would expedite or otherwise improve the process. For example, a separate MOU or agreement between one or more of the lead agencies and a specific participating agency on a particular resource or impact of interest to that participating agency, or on the process for dealing with that impact of interest, may be executed and incorporated into the coordination plan.
The coordination plan must be shared with the public and with participating agencies so that they know what to expect and so that any disputes are surfaced as early as possible.
Consultation with the participating agencies on the project schedule is required whenever a coordination plan includes a project schedule (see Question 52).
Answer: The purposes of the coordination plan are to facilitate and document the lead agencies' structured interaction with the public and other agencies and to inform the public and other agencies of how the coordination will be accomplished. Section 6002 allows the lead agencies to decide how detailed the coordination plan should be. The coordination plan has the potential to expedite and improve the environmental review process by clearly establishing interactions and expectations, but its success will depend on the lead agencies exercising common sense and good faith to make it work.
The coordination plan should outline (1) how the lead agencies have divided the responsibilities for compliance with the various aspects of the environmental review process, such as the issuance of invitations to participating agencies, and (2) how the lead agencies will provide the opportunities for input from the public and other agencies, in accordance with applicable laws, regulations, and policies. The plan also should identify coordination points, such as:
In addition, the coordination plan may establish a schedule of regular meetings and may identify which persons, organizations, or agencies should be included for each coordination point. The plan may set timeframes for input by those persons, organizations, and agencies. (See Question 54). The lead agencies can incorporate the coordination plan into a Memorandum of Understanding (MOU) that is applicable to a single project or to a category of projects.
Answer: FHWA's Major Projects are those projects receiving Federal financial assistance under 23 USC that (1) have an estimated total cost of $500 million or more or (2) have been identified by the USDOT as being "Major" as a result of some special interest in the project. SAFETEA-LU established a new requirement for Project Management Plans(PMPs) on all FHWA Major Projects. The PMP serves as a "roadmap" to help the project delivery team maintain a constant focus toward delivering the Major Project in an efficient and effective manner. The ultimate purpose of the PMP is to clearly define the roles, responsibilities, processes, and activities that will result in the FHWA Major Project being completed on time, within budget, with the highest degree of quality and safety, and in a manner in which the public trust, support, and confidence in the project will be maintained. The preparation of an initial PMP prior to initiating the project's environmental study is critical to ensure that the FHWA Major Project is delivered in an efficient and effective manner. Therefore, the coordination plan required for the environmental review process should be fully integrated into the PMP, if applicable.
FTA has been requiring PMPs for major capital transit projects for many years and defines the purpose and content of the PMP in its project management oversight regulation at 49 CFR Part 633. The PMP for a major capital transit project is first developed at entry into Preliminary Engineering and is substantially updated at the start of each successive phase of project development through "Start-up of Revenue Operation." Although the PMP and the coordination plan serve different purposes, there may be substantial overlap between the initial PMP and the coordination plan, especially if a project schedule is included in the coordination plan. Consistency between these plans is essential, but integration of the plans, which serve different purposes, is not required. Any Project Development Agreement (PDA) signed by FTA would also have to be consistent with the coordination plan.
Answer: Each State DOT should review their public involvement policies and procedures to determine whether they need to be updated to meet the new requirements in SAFETEA-LU. Depending on their level of detail, the policies and procedures may need to be updated to include the "participating agency" concept, the requirement that additional "interested parties" be involved in statewide and metropolitan transportation planning, the opportunities for public and participating agency involvement in determining purpose and need and the range of alternatives to be considered, as well as participating agency collaboration on methodologies.
Answer: SAFETEA-LU encourages, but does not require, the inclusion of a project schedule in the coordination plan. CEQ regulations (40 CFR 1501.8) also strongly encourage the establishment of timeframes.
Project schedules are optional on FTA projects. FTA will agree to include a schedule, developed in accordance with Section 6002, if the project sponsor so requests. In deciding whether to include a schedule, the FTA Regional Office and the non-Federal lead agency should consider the extent to which a schedule for the environmental review process would expedite the process, improve project management, and force discipline on all parties involved.
The FHWA assumes that a schedule will be used on all EA and EIS projects processed under section 6002. If the non-Federal lead agency believes that a schedule is not needed, then the non-Federal lead agency will be expected to consult with the FHWA about how the project will proceed.
When the lead agencies include a project schedule in the coordination plan, that schedule must be prepared in consultation with each participating agency, the project sponsor (if not a lead agency), and the State. Concurrence in the schedule by the participating agencies is not required.
The schedule should include decisionmaking deadlines for each agency approval, such as permits, licenses, and other final decisions, consistent with statutory and regulatory requirements, in order to encompass the full environmental review process. Section 6002 allows the lead agencies to decide how detailed the schedule should be, and whether to use specific dates or durations. In deciding the level of detail of the schedule, the lead agencies should keep in mind the objective of expediting the process by communicating expectations and forcing discipline on themselves and others.
Answer: To establish a realistic schedule, SAFETEA-LU requires consideration of the following factors:
CEQ regulations (40 CFR 1501.8) suggest these and additional considerations, such as the degree of public controversy and the extent to which relevant information about the project or its impacts are already known, also be considered in setting a schedule. In preparing the schedule, the lead agencies must also solicit and consider any comments on the schedule by the participating agencies, the project sponsor (if not a lead agency), and the State.
Overarching all of these considerations in developing the schedule is the SAFETEA-LU objective of expediting project delivery. FHWA has adopted a policy objective of reducing the median time for completing EISs. If that objective is to be achieved, then schedules, though realistic, must also be aggressive.
The lead agencies must design the schedule so that they have adequate time to accept and consider public and participating agency comments and input, and have the time to conduct any appropriate additional engineering studies or impact assessments and to make any necessary project changes resulting from the comments and input. The schedule must be consistent with the SAFETEA-LU requirements regarding comment deadlines. (See Question 54.) The schedule also must be consistent with other applicable time periods established under other laws. It should be remembered that the goal of using projects schedules is to reduce the overall timed needed to complete the environmental review process.
To help State DOTs and resource agencies develop timeframes for completing environmental reviews of proposed transportation projects, FHWA developed the Negotiated Timeframes Wizard (the Wizard) software program. Among its many features, the Wizard enables agencies to set project-specific timeframes for completing requirements, track the progress of meeting timeframes, and maintain a history of events. To download a copy of the Wizard, visit http://environment.fhwa.dot.gov/wizard/wiz_download.asp.
Answer: SAFETEA-LU mandates that the DEIS comment period not exceed 60 days, unless a different comment period is established by agreement of the lead agencies, the project sponsor, and all participating agencies. The DEIS comment period begins on the date that EPA publishes the notice of availability of the DEIS in the Federal Register.
For any other point within the environmental review process at which the lead agencies seek comment by the public or participating agencies, the lead agencies shall establish a deadline for comment of not more than 30 days, unless a different comment period is established by agreement of the lead agencies, the project sponsor, and all participating agencies. At these points, although the 30-day maximum period applies, a shorter period commensurate with the volume and complexity of the materials to be reviewed may be appropriate. The comment period is measured, in these cases, from the date of availability of the materials on which comment is requested. All comment periods should be specified in the coordination plan and the lead agencies must provide participating agencies and the public with notice of comment periods.
In both cases, the lead agency has the authority to extend the deadlines for good cause.
Answer: The 30-day waiting period between the FEIS notice in the Federal Register and the signing of the ROD is required by CEQ regulations [40 CFR 1506.10(b)] but is not a required comment period. The 30-day wait provides time for other Federal agencies that find the project environmentally unsatisfactory to refer the decision to CEQ [40 CFR 1504].
Occasionally, the lead agencies will seek comment on a specific unresolved issue discussed in the FEIS. In those cases, the comment deadline provisions of SAFETEA-LU (Question 54) apply and the comment period should run concurrently with the required 30-day waiting period. Even if the lead agencies do not request comments on a FEIS, they will address any new and substantive comments submitted during the 30 days following the FEIS publication [40 CFR 1503.1].
Note, however, that an effective environmental review process results in the submission of comments when they are most useful to decisionmaking by the lead agencies. After the FEIS, comments typically should focus on commitments discussed in the FEIS and on conditions that parties want the lead agencies to include in the ROD. The process should avoid duplication, and the lead agencies are not required to re-address comments that present issues specifically raised during the DEIS comment period and addressed in the FEIS.
Comments to which the lead agencies respond would be addressed in the ROD or in an attachment to the ROD. Neither the need to solicit further comments on an issue unresolved in the FEIS, nor the receipt of unsolicited comments that require a response, can be anticipated. Therefore, these contingencies would not be addressed in a coordination plan.
Answer: The lead agencies may modify the schedule. The lead agencies may lengthen the schedule for good cause, and the good cause for the change should be documented in the administrative record. For example, the initial schedule may not take into account the sensitivity of affected resources, the level of public controversy, and other complexities that become clear as the environmental review process progresses. The schedule may be shortened only with the concurrence of the affected cooperating agencies, and evidence of these concurrences should be included in the administrative record. Only the affected cooperating agencies, not all of the participating agencies, must concur in the shortened schedule, but consultation with the other participating agencies on the shortened schedule should be considered.
Answer: If a project schedule is prepared and is included in the coordination plan, that schedule must be provided to all participating agencies, the State DOT, and the project sponsor, and must be made available to the public. The method by which the schedule is made available to the public is flexible. It may be posted on a project web site, distributed to the people on a well-advertised project mailing list, or handed out at public and agency coordination meetings. If the schedule is modified, then the modified schedule must be shared with the public and other participants as described above.
Answer: SAFETEA-LU requires USDOT to report to Congress when a project decision by a Federal agency is not completed within 180 days after the later of two statutory milestones. The first milestone is the completion of decisionmaking by the USDOT agency, which occurs with the signing of the NEPA ROD or Finding of No Significant Impact (FONSI). The second milestone is the date of submission of a complete application to the Federal agency for a permit, license, or approval for the project. The completeness of the application is determined by the Federal agency with jurisdiction over the permit, license, or approval.
Answer: The USDOT field offices (i.e., the FHWA Division Office or the FTA Regional Office) and the other lead agencies are responsible for tracking these decisionmaking timelines as a part of their management of the project. This new reporting responsibility requires the lead agencies' field offices to continue to track and monitor project milestones after the completion of the USDOT ROD.
The USDOT field office should begin to address schedule problems as soon as they occur. If it appears likely that project decisions will not be completed by the later of the two 180-day deadlines, then the USDOT field office should notify the affected Federal agency that the reporting deadline for its decision is approaching. If the overall project coordination process is proceeding appropriately, all Federal agencies will already be aware that the reporting deadline is approaching and will know the reasons the decision is not complete. However, in order to ensure clear communication on the reporting requirement, the USDOT field office should contact the affected Federal agency to discuss the issue and causes at least 60 days before the deadline. The affected Federal agency's explanation for the delay, together with the lead agencies' perspectives on the issue, should be included in the USDOT field office report described below.
Following that initial coordination, the USDOT field office should report to its Headquarters Program Office about the situation and the reasons underlying it. The Headquarters Program Office, in turn, will contact the affected Federal agency headquarters office to alert them to the situation and to the likelihood that the congressional reporting requirement will be triggered for the project. This initial coordination and reporting process should be completed before the expiration of the 180-day deadline. Either the US DOT field office or the Headquarters Program Office may initiate formal or informal dispute resolution procedures as appropriate.
If the coordination plan provides a deadline later than the statutory 180-day deadline, the field office should report to the Headquarters Program Office that the 180-day deadline will pass without a decision. The report should describe the relevant scheduling provisions of the coordination plan and indicate that the schedule was agreed to by the lead agencies as a part of the plan.
The second phase of the reporting process begins after the later of the two 180-day deadlines has passed. The USDOT field office should contact its Headquarters Program Office to confirm the information about each Federal agency decision that has not been completed and to identify any new information affecting the ability of the Federal agency to complete its decisionmaking. This second report also should indicate when the Federal agency expects to make its final decision. The USDOT field offices should submit updates on the status of project decisionmaking every 60 days thereafter until all Federal agency decisions are complete.
When the USDOT Headquarters Program Office receives the second phase field office report confirming that the applicable 180-day deadline has been missed, the Program Office will coordinate with the affected Federal agency's headquarters office and prepare the required report to the Senate Committee on Environment and Public Works and the House of Representative's Committee on Transportation and Infrastructure. The report to Congress should identify each Federal agency decision that remains outstanding, the reasons that the decision is not complete, and the expected completion date. The report should reflect any results from the USDOT coordination process with the affected Federal agency about the deadlines. Headquarters should update and resubmit this report to Congress every 60 days until all Federal agency decisions are complete. The USDOT Headquarters Program Office will provide a copy of any USDOT report to Congress under this SAFETEA-LU provision to the affected Federal agency headquarters office, joint lead agencies, and to the project sponsor and the State (if not joint lead agencies).
Answer:Lead and participating agencies have legal and general governmental obligations to work cooperatively to improve the environmental review process. The roles and responsibilities specified in Section 6002 for lead agencies and participating agencies form a part of those obligations. The USDOT is working with other Federal agencies to help them understand their obligations under Section 6002 and to encourage actions to meet those obligations.
At the individual project level, USDOT, as the Federal lead agency, will work on developing and implementing coordination plans that ensure concurrent reviews and facilitate productive interaction to the maximum extent practical. USDOT will ensure the early involvement of other Federal agencies through the designation of, and interaction with, participating and cooperating agencies. As issues arise during the environmental review process, USDOT will intervene with the appropriate parties to facilitate a resolution.
For minor disagreements, the lead agencies may, after due consideration of the concerns of the participating agencies, decide to proceed without resort to any dispute resolution process. When there is disagreement on important issues of concern, the lead agencies may decide that the most effective approach would be to work out the disagreement in some formal or informal way. In 2002, FHWA issued to facilitate the resolution of interagency disputes at lower levels of decisionmaking. The methods presented in that guidance, such as the use of qualified neutral mediators, remain valid and should be considered by the lead agencies when appropriate. The FHWA will develop updated procedures to guide FHWA-initiated dispute resolution efforts on projects subject to Section 6002. The lead agencies may find it useful to address dispute resolution procedures in the coordination plan.
SAFETEA-LU provides a formal process for resolving serious issues that may delay the project or result in a denial of a required approval for the project. The project sponsor or the Governor of the State in which the project is located may invoke the Section 6002 process for issue resolution at any time. While the Section 6002 process is a tool available to States and project sponsors for resolving issues of concern, there are other options that are available to lead and participating agencies. Those options include procedures embodied in a coordination plan, and the CEQ referral process under 40 CFR Part 1504.
Answer: When there is a serious disagreement that may delay the project or result in denial of a required approval for the project, SAFETEA-LU provides that the project sponsor or State Governor may initiate the issue resolution process illustrated in the flow chart below. In order to help assure an effective process, each party invited to a meeting convened under the SAFETEA-LU dispute resolution provision should be represented by a person of sufficient rank and authority to make binding commitments on behalf of that party. Accordingly, the organizational level of the persons invited to such meetings by the Federal lead agency may vary depending upon the issues in dispute.
Answer: An issue of concern that may trigger the issue resolution process in SAFETEA-LU is any issue that could delay the project or could prevent an agency from granting a permit or other approval that is needed for the project.
Answer: Resolution of the issue of concern means that the agencies involved agree on how to proceed so that they are able to reach decisions on matters within their authority. For example, the resolution may be an agreed upon framework or process for proceeding with the issuance of the permit or other approval needed for a project. This agreement should be in the form of a signed document.
Answer: Any environmental document prepared in accordance with SAFETEA-LU must receive the same consideration for adoption by another Federal agency that the agency would give to a document prepared solely by a Federal lead agency. The adopting agency remains responsible for independently evaluating the document to ensure its adequacy under CEQ's and the adopting agency's NEPA procedures (40 CFR 1506.5).
Answer: FHWA will rely primarily on existing performance measures to fulfill the performance measurement mandate in SAFETEA-LU. FHWA's Strategic Implementation Plan currently includes the Vital Few Goal of Environmental Stewardship and Environmental Streamlining. Progress toward this goal is measured by evaluating the median processing times for EAs and EISs, whether Negotiated Timeframes are met, and the implementation of integrated approaches and context sensitive solutions. FTA also plans to address performance measurements through its strategic planning process.
Answer: In addition to the existing measurements, FHWA intends to use the results of the upcoming second round of the Gallup survey, "Implementing Performance Measurement in Environmental Streamlining." Initially conducted in 2003, the survey captured the current state of relations and perceptions between different agencies that are involved in transportation development and review, and created a standard against which the quality of future interagency coordination can be compared. USDOT may develop other measures in the future.
Answer: SAFETEA-LU establishes a process for early and continuous engagement by other agencies in the environmental review process that may create an additional strain on existing resources and staff. Therefore,SAFETEA-LU allows USDOT to approve the request of a State to provide Federal-aid highway or Federal transit funds to a Federal or State agency or federally recognized Indian tribe participating in the environmental review process, to support activities by that agency or tribe that directly and meaningfully contribute to expediting and improving the planning and delivery of transportation projects in that State. USDOT encourages the use of this authority where agency resources are a constraint on the environmental review process.
SAFETEA-LU does not provide any additional funding for this purpose. The State proposing to use this authority must take the funds out of its normal allocation of Federal transportation funds.
SAFETEA-LU does not extend this authority to transit agencies that are not State agencies. A transit agency that is not a State agency and that seeks to invest FTA funding in expeditious reviews by particular Federal or State agencies or Indian tribes must work through the State DOT in order to accomplish this objective in accordance with SAFETEA-LU.
Answer: SAFETEA-LU makes several changes to the former funding provision in TEA-21. SAFETEA-LU makes this funding available for additional activities, such as transportation planning activities that precede the initiation of the environmental review process, training of agency personnel, information gathering and mapping, and the development of programmatic agreements. SAFETEA-LU also enables the State to provide such funding to additional agencies. The State can now provide funds to Federal agencies, State agencies, and federally recognized Indian tribes that are participating in the environmental review process for one or more transportation projects in the State. In addition, SAFETEA-LU explicitly recognizes that USDOT can receive funds to expedite and improve the environmental review process. The FHWA guidance Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities has been revised to reflect the changes from TEA-21 to SAFETEA-LU. The revised guidance is found in Appendix C.
Under TEA-21, Federal transit funds granted to a transit agency could have been provided to a natural resource agency to expedite an environmental review. Transit agencies used the TEA-21 provision very rarely, if at all. Under SAFETEA-LU, only a State agency may request the Federal transit funds to be used for this propose. In the unlikely event that a transit agency that is not a State agency seeks to use Federal transit funds in this manner, FTA will work with that agency and with the relevant State DOT to see if an accommodation in accordance with SAFETEA-LU can be reached.
Answer: Federal or State agencies or federally recognized Indian tribes that receive Federal-aid highway or Federal transit funds from a State can only use the funds to pay for the additional resources needed to meet the time limits established for environmental reviews of transportation projects. Those time limits must be less than the customary time necessary for such reviews.
The funds must be used for activities that directly and meaningfully contribute to expediting and improving the planning and delivery of transportation projects in that State. These activities are beyond the normal and ordinary capabilities of the receiving agency when operating under its general appropriation. Where a State wishes to fund activities that are not project-specific, such as process improvements or development of programmatic agreements, the criteria relating to environmental review time limits will be deemed satisfied so long as the efforts are designed to produce a reduction in the customary time for environmental reviews. "Customary time" is defined as the time typically required for environmental reviews as of the date of the adoption of SAFETEA-LU (August 10, 2005).