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SAFETEA-LU Environmental Review Process (Public Law 109-59)

Appendices

Appendix A: Section 6002 - Efficient Environmental Reviews for Project Decisionmaking

(a) In General- Subchapter I of chapter 1 of title 23, United States Code, is amended by inserting after section 138 the following:

'Sec. 139. Efficient environmental reviews for project decisionmaking

'(a) Definitions- In this section, the following definitions apply:

'(1) AGENCY- The term 'agency' means any agency, department, or other unit of Federal, State, local, or Indian tribal government.

'(2) ENVIRONMENTAL IMPACT STATEMENT- The term 'environmental impact statement' means the detailed statement of environmental impacts required to be prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

'(3) ENVIRONMENTAL REVIEW PROCESS-

'(A) IN GENERAL- The term 'environmental review process' means the process for preparing for a project an environmental impact statement, environmental assessment, categorical exclusion, or other document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

'(B) INCLUSIONS- The term 'environmental review process' includes the process for and completion of any environmental permit, approval, review, or study required for a project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

'(4) LEAD AGENCY- The term 'lead agency' means the Department of Transportation and, if applicable, any State or local governmental entity serving as a joint lead agency pursuant to this section.

'(5) MULTIMODAL PROJECT- The term 'multimodal project' means a project funded, in whole or in part, under this title or chapter 53 of title 49 and involving the participation of more than one Department of Transportation administration or agency.

'(6) PROJECT- The term 'project' means any highway project, public transportation capital project, or multimodal project that requires the approval of the Secretary.

'(7) PROJECT SPONSOR- The term 'project sponsor' means the agency or other entity, including any private or public-private entity, that seeks approval of the Secretary for a project.

'(8) STATE TRANSPORTATION DEPARTMENT- The term 'State transportation department' means any statewide agency of a State with responsibility for one or more modes of transportation.

'(b) Applicability-

'(1) IN GENERAL- The project development procedures in this section are applicable to all projects for which an environmental impact statement is prepared under the National Environmental Policy Act of 1969 and may be applied, to the extent determined appropriate by the Secretary, to other projects for which an environmental document is prepared pursuant to such Act.

'(2) FLEXIBILITY- Any authorities granted in this section may be exercised for a project, class of projects, or program of projects.

'(c) Lead Agencies-

'(1) FEDERAL LEAD AGENCY- The Department of Transportation shall be the Federal lead agency in the environmental review process for a project.

'(2) JOINT LEAD AGENCIES- Nothing in this section precludes another agency from being a joint lead agency in accordance with regulations under the National Environmental Policy Act of 1969.

'(3) PROJECT SPONSOR AS JOINT LEAD AGENCY- Any project sponsor that is a State or local governmental entity receiving funds under this title or chapter 53 of title 49 for the project shall serve as a joint lead agency with the Department for purposes of preparing any environmental document under the National Environmental Policy Act of 1969 and may prepare any such environmental document required in support of any action or approval by the Secretary if the Federal lead agency furnishes guidance in such preparation and independently evaluates such document and the document is approved and adopted by the Secretary prior to the Secretary taking any subsequent action or making any approval based on such document, whether or not the Secretary's action or approval results in Federal funding.

'(4) ENSURING COMPLIANCE- The Secretary shall ensure that the project sponsor complies with all design and mitigation commitments made jointly by the Secretary and the project sponsor in any environmental document prepared by the project sponsor in accordance with this subsection and that such document is appropriately supplemented if project changes become necessary.

'(5) ADOPTION AND USE OF DOCUMENTS- Any environmental document prepared in accordance with this subsection may be adopted or used by any Federal agency making any approval to the same extent that such Federal agency could adopt or use a document prepared by another Federal agency.

'(6) ROLES AND RESPONSIBILITY OF LEAD AGENCY- With respect to the environmental review process for any project, the lead agency shall have authority and responsibility--

'(A) to take such actions as are necessary and proper, within the authority of the lead agency, to facilitate the expeditious resolution of the environmental review process for the project; and

'(B) to prepare or ensure that any required environmental impact statement or other document required to be completed under the National Environmental Policy Act of 1969 is completed in accordance with this section and applicable Federal law.

'(d) Participating Agencies-

'(1) IN GENERAL- The lead agency shall be responsible for inviting and designating participating agencies in accordance with this subsection.

'(2) INVITATION- The lead agency shall identify, as early as practicable in the environmental review process for a project, any other Federal and non-Federal agencies that may have an interest in the project, and shall invite such agencies to become participating agencies in the environmental review process for the project. The invitation shall set a deadline for responses to be submitted. The deadline may be extended by the lead agency for good cause.

'(3) FEDERAL PARTICIPATING AGENCIES- Any Federal agency that is invited by the lead agency to participate in the environmental review process for a project shall be designated as a participating agency by the lead agency unless the invited agency informs the lead agency, in writing, by the deadline specified in the invitation that the invited agency--

'(A) has no jurisdiction or authority with respect to the project;

'(B) has no expertise or information relevant to the project; and

'(C) does not intend to submit comments on the project.

'(4) EFFECT OF DESIGNATION- Designation as a participating agency under this subsection shall not imply that the participating agency--

'(A) supports a proposed project; or

'(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.

'(5) COOPERATING AGENCY- A participating agency may also be designated by a lead agency as a 'cooperating agency' under the regulations contained in part 1500 of title 40, Code of Federal Regulations.

'(6) DESIGNATIONS FOR CATEGORIES OF PROJECTS- The Secretary may exercise the authorities granted under this subsection for a project, class of projects, or program of projects.

'(7) CONCURRENT REVIEWS- Each Federal agency shall, to the maximum extent practicable--

'(A) carry out obligations of the Federal agency under other applicable law concurrently, and in conjunction, with the review required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), unless doing so would impair the ability of the Federal agency to carry out those obligations; and

'(B) formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.

'(e) Project Initiation- The project sponsor shall notify the Secretary of the type of work, termini, length and general location of the proposed project, together with a statement of any Federal approvals anticipated to be necessary for the proposed project, for the purpose of informing the Secretary that the environmental review process should be initiated.

'(f) Purpose and Need-

'(1) PARTICIPATION- As early as practicable during the environmental review process, the lead agency shall provide an opportunity for involvement by participating agencies and the public in defining the purpose and need for a project.

'(2) DEFINITION- Following participation under paragraph (1), the lead agency shall define the project's purpose and need for purposes of any document which the lead agency is responsible for preparing for the project.

'(3) OBJECTIVES- The statement of purpose and need shall include a clear statement of the objectives that the proposed action is intended to achieve, which may include--

'(A) achieving a transportation objective identified in an applicable statewide or metropolitan transportation plan;

'(B) supporting land use, economic development, or growth objectives established in applicable Federal, State, local, or tribal plans; and

'(C) serving national defense, national security, or other national objectives, as established in Federal laws, plans, or policies.

'(4) ALTERNATIVES ANALYSIS-

'(A) PARTICIPATION- As early as practicable during the environmental review process, the lead agency shall provide an opportunity for involvement by participating agencies and the public in determining the range of alternatives to be considered for a project.

'(B) RANGE OF ALTERNATIVES- Following participation under paragraph (1), the lead agency shall determine the range of alternatives for consideration in any document which the lead agency is responsible for preparing for the project.

'(C) METHODOLOGIES- The lead agency also shall determine, in collaboration with participating agencies at appropriate times during the study process, the methodologies to be used and the level of detail required in the analysis of each alternative for a project.

'(D) PREFERRED ALTERNATIVE- At the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or concurrent compliance with other applicable laws if the lead agency determines that the development of such higher level of detail will not prevent the lead agency from making an impartial decision as to whether to accept another alternative which is being considered in the environmental review process.

'(g) Coordination and Scheduling-

'(1) COORDINATION PLAN-

'(A) IN GENERAL- The lead agency shall establish a plan for coordinating public and agency participation in and comment on the environmental review process for a project or category of projects. The coordination plan may be incorporated into a memorandum of understanding.

'(B) SCHEDULE-

'(i) IN GENERAL- The lead agency may establish as part of the coordination plan, after consultation with each participating agency for the project and with the State in which the project is located (and, if the State is not the project sponsor, with the project sponsor), a schedule for completion of the environmental review process for the project.

'(ii) FACTORS FOR CONSIDERATION- In establishing the schedule, the lead agency shall consider factors such as--

'(I) the responsibilities of participating agencies under applicable laws;

'(II) resources available to the cooperating agencies;

'(III) overall size and complexity of the project;

'(IV) the overall schedule for and cost of the project; and

'(V) the sensitivity of the natural and historic resources that could be affected by the project.

'(C) CONSISTENCY WITH OTHER TIME PERIODS- A schedule under subparagraph (B) shall be consistent with any other relevant time periods established under Federal law.

'(D) MODIFICATION- The lead agency may--

'(i) lengthen a schedule established under subparagraph (B) for good cause; and

'(ii) shorten a schedule only with the concurrence of the affected cooperating agencies.

'(E) DISSEMINATION- A copy of a schedule under subparagraph (B), and of any modifications to the schedule, shall be--

'(i) provided to all participating agencies and to the State transportation department of the State in which the project is located (and, if the State is not the project sponsor, to the project sponsor); and

'(ii) made available to the public.

'(2) COMMENT DEADLINES- The lead agency shall establish the following deadlines for comment during the environmental review process for a project:

'(A) For comments by agencies and the public on a draft environmental impact statement, a period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of such document, unless--

'(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

'(ii) the deadline is extended by the lead agency for good cause.

'(B) For all other comment periods established by the lead agency for agency or public comments in the environmental review process, a period of no more than 30 days from availability of the materials on which comment is requested, unless--

'(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

'(ii) the deadline is extended by the lead agency for good cause.

'(3) DEADLINES FOR DECISIONS UNDER OTHER LAWS- In any case in which a decision under any Federal law relating to a project (including the issuance or denial of a permit or license) is required to be made by the later of the date that is 180 days after the date on which the Secretary made all final decisions of the lead agency with respect to the project, or 180 days after the date on which an application was submitted for the permit or license, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives--

'(A) as soon as practicable after the 180-day period, an initial notice of the failure of the Federal agency to make the decision; and

'(B) every 60 days thereafter until such date as all decisions of the Federal agency relating to the project have been made by the Federal agency, an additional notice that describes the number of decisions of the Federal agency that remain outstanding as of the date of the additional notice.

'(4) INVOLVEMENT OF THE PUBLIC- Nothing in this subsection shall reduce any time period provided for public comment in the environmental review process under existing Federal law, including a regulation.

'(h) Issue Identification and Resolution-

'(1) COOPERATION- The lead agency and the participating agencies shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion of the environmental review process or could result in denial of any approvals required for the project under applicable laws.

'(2) LEAD AGENCY RESPONSIBILITIES- The lead agency shall make information available to the participating agencies as early as practicable in the environmental review process regarding the environmental and socioeconomic resources located within the project area and the general locations of the alternatives under consideration. Such information may be based on existing data sources, including geographic information systems mapping.

'(3) PARTICIPATING AGENCY RESPONSIBILITIES- Based on information received from the lead agency, participating agencies shall identify, as early as practicable, any issues of concern regarding the project's potential environmental or socioeconomic impacts. In this paragraph, issues of concern include any issues that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project.

'(4) ISSUE RESOLUTION-

'(A) MEETING OF PARTICIPATING AGENCIES- At any time upon request of a project sponsor or the Governor of a State in which the project is located, the lead agency shall promptly convene a meeting with the relevant participating agencies, the project sponsor, and the Governor (if the meeting was requested by the Governor) to resolve issues that could delay completion of the environmental review process or could result in denial of any approvals required for the project under applicable laws.

'(B) NOTICE THAT RESOLUTION CANNOT BE ACHIEVED- If a resolution cannot be achieved within 30 days following such a meeting and a determination by the lead agency that all information necessary to resolve the issue has been obtained, the lead agency shall notify the heads of all participating agencies, the project sponsor, the Governor, the Committee on Environment and Public Works of the Senate, the Committee on Transportation and Infrastructure of the House of Representatives, and the Council on Environmental Quality, and shall publish such notification in the Federal Register.

'(i) Performance Measurement- The Secretary shall establish a program to measure and report on progress toward improving and expediting the planning and environmental review process.

'(j) Assistance to Affected State and Federal Agencies-

'(1) IN GENERAL- For a project that is subject to the environmental review process established under this section and for which funds are made available to a State under this title or chapter 53 of title 49, the Secretary may approve a request by the State to provide funds so made available under this title or such chapter 53 to affected Federal agencies (including the Department of Transportation), State agencies, and Indian tribes participating in the environmental review process for the projects in that State or participating in a State process that has been approved by the Secretary for that State. Such funds may be provided only to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery for projects in that State.

'(2) ACTIVITIES ELIGIBLE FOR FUNDING- Activities for which funds may be provided under paragraph (1) include transportation planning activities that precede the initiation of the environmental review process, dedicated staffing, training of agency personnel, information gathering and mapping, and development of programmatic agreements.

'(3) USE OF FEDERAL LANDS HIGHWAY FUNDS- The Secretary may also use funds made available under section 204 for a project for the purposes specified in this subsection with respect to the environmental review process for the project.

'(4) AMOUNTS- Requests under paragraph (1) may be approved only for the additional amounts that the Secretary determines are necessary for the Federal agencies, State agencies, or Indian tribes participating in the environmental review process to meet the time limits for environmental review.

'(5) CONDITION- A request under paragraph (1) to expedite time limits for environmental review may be approved only if such time limits are less than the customary time necessary for such review.

'(k) Judicial Review and Savings Clause-

'(1) JUDICIAL REVIEW- Except as set forth under subsection (l), nothing in this section shall affect the reviewability of any final Federal agency action in a court of the United States or in the court of any State.

'(2) SAVINGS CLAUSE- Nothing in this section shall be construed as superseding, amending, or modifying the National Environmental Policy Act of 1969 or any other Federal environmental statute or affect the responsibility of any Federal officer to comply with or enforce any such statute.

'(3) LIMITATIONS- Nothing in this section shall preempt or interfere with--

'(A) any practice of seeking, considering, or responding to public comment; or

'(B) any power, jurisdiction, responsibility, or authority that a Federal, State, or local government agency, metropolitan planning organization, Indian tribe, or project sponsor has with respect to carrying out a project or any other provisions of law applicable to projects, plans, or programs.

'(l) Limitations on Claims-

'(1) IN GENERAL- Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for a highway or public transportation capital project shall be barred unless it is filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed. Nothing in this subsection shall create a right to judicial review or place any limit on filing a claim that a person has violated the terms of a permit, license, or approval.

'(2) NEW INFORMATION- The Secretary shall consider new information received after the close of a comment period if the information satisfies the requirements for a supplemental environmental impact statement under section 771.130 of title 23, Code of Federal Regulations. The preparation of a supplemental environmental impact statement when required shall be considered a separate final agency action and the deadline for filing a claim for judicial review of such action shall be 180 days after the date of publication of a notice in the Federal Register announcing such action.'.

](b) Existing Environmental Review Process- Nothing in this section affects any existing State environmental review process, program, agreement, or funding arrangement approved by the Secretary under section 1309 of the Transportation Equity Act for the 21st Century (112 Stat. 232; 23 U.S.C. 109 note) as such section was in effect on the day preceding the date of enactment of the SAFETEA-LU.

(c) Conforming Amendment- The analysis for such subchapter is amended by inserting after the item relating to section 138 the following:

'139. Efficient environmental reviews for project decisionmaking.'.

(d) Repeal- Section 1309 of the Transportation Equity Act for the 21st Century (112 Stat. 232) is repealed.


Appendix B: Sample Invitation Letters

Sample letters of invitation to a potential participating or cooperating agency are provided separately for FHWA and FTA below.

FHWA Sample Letter of Invitation

nsportation Federal Highway Administration Insert Division Address
[Insert Date]

[Insert Agency Representative]
[Insert Agency Address]

Dear [Agency Representative]:

Re: Invitation to Become Participating Agency [and Cooperating Agency, if applicable] on [Insert Project Name]

The Federal Highway Administration (FHWA), in cooperation with the [ Insert State Name] Department of Transportation [Insert Abbreviation] is initiating a [Insert Type of Environmental Document] for proposed [Insert Project Name]. The project limits are [Insert Project Description, including general map location]. The purpose of the project, as currently defined, is to [Insert Basic Statement of the Project's Purpose and Need].

Your agency has been identified as an agency that may have an interest in the project [Insert why the agency may have an interest]. With this letter, we extend your agency an invitation to become a participating agency [and cooperating agency, if applicable] with the FHWA in the development of the [Type of Environmental Document] for the subject project. This designation does not imply that your agency either supports the proposal or has any special expertise with respect to evaluation of the project.

[FHWA also request the participation of the [Insert Agency Name] as a cooperating agency in the preparation of the DEIS and FEIS, in accordance with 40 CFR 1501.6 of the Council on Environmental Quality's (CEQ) Regulations for Implementing the Procedural Provision of the National Environmental Policy Act.]

Pursuant to Section 6002 of SAFETEA-LU, participating agencies are responsible to identify, as early as practicable, any issues of concern regarding the project's potential environmental or socioeconomic impacts that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project. We suggest that your agency's role in the development of the above project should include the following as they relate to your area of expertise:

  1. Provide meaningful and early input on defining the purpose and need, determining the range of alternatives to be considered, and the methodologies and level of detail required in the alternatives analysis.
  2. Participate in coordination meetings and joint field reviews as appropriate.
  3. Timely review and comment on the pre-draft or pre-final environmental documents to reflect the views and concerns of your agency on the adequacy of the document, alternatives considered, and the anticipated impacts and mitigation.

Please respond to FHWA in writing with an acceptance or denial of the invitation prior to [Insert Deadline] (Suggested Deadline - No More Than 30 From Date Of Letter). If your agency declines, the response should state your reason for declining the invitation. Pursuant to SAFETEA-LU Sec. 6002, any Federal agency that chooses to decline the invitation to be a participating agency must specifically state in its response that it:

If you have any questions or would like to discuss in more detail the project or our agencies' respective roles and responsibilities during the preparation of this [Insert Type of Document], please contact [Insert Contact Name and Phone Number].

Thank you for your cooperation and interest in this project.

Sincerely,

Division Administrator

Enclosure Attach Project NOI if applicable

cc:

Appendix C


FTA Sample Letter of Invitation

DOT logo

U.S. Department
of Transportation
Federal Transit
Administration

[Insert Date]

[Insert Agency Representative]

[Insert Agency Name and Address]

Re: Invitation to Participate in the Environmental Review Process for [Insert Project Name]

Dear [Agency Representative]:

The Federal Transit Administration (FTA), in cooperation with [Insert Sponsoring Transit Agency] is initiating the preparation of an Environmental Impact Statement for the proposed [Insert Project Name]. The proposed project is [briefly describe action] in [describe project location]. The purpose of the project, as currently defined, is to [insert preliminary statement of the project's purpose and need]. The enclosed scoping information packet provides more details. A preliminary coordination plan and schedule [if available] are also enclosed.

Section 6002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users establishes an enhanced environmental review process for certain FTA projects, increasing the transparency of the process, as well as opportunities for participation. The requirements of Section 6002 apply to the project that is the subject of this letter. As part of the environmental review process for this project, the lead agencies must identify, as early as practicable, any other Federal and non-Federal agencies that may have an interest in the project, and invite such agencies to become participating agencies in the environmental review process. [10] Your agency has been identified preliminarily as one that may have an interest in this project, because [give reasons, such as adverse impacts, resources affected, etc., why agency may be interested]; accordingly, you are being extended this invitation to become actively involved as a participating agency in the environmental review process for the project.

As a participating agency, you will be afforded the opportunity, together with the public, to be involved in defining the purpose of and need for the project, as well as in determining the range of alternatives to be considered for the project. In addition, you will be asked to:

<Insert one of the following two paragraphs, for invitations to Federal and non-Federal agencies, respectively.>

Federal agencies:

Your agency does not have to accept this invitation. If, however, you elect not to become a participating agency, you must decline this invitation in writing, indicating that your agency has no jurisdiction or authority with respect to the project, no expertise or information relevant to the project, and does not intend to submit comments on the project. The declination may be transmitted electronically to [insert e-mail address]; please include the title of the official responding. In order to give your agency adequate opportunity to weigh the relevance of your participation in this environmental review process, written response to this invitation are not due until after the interagency scoping meeting scheduled for [insert date/time] at [insert location]. You or your delegate is invited to represent your agency at this meeting. Your agency will be treated as participating agency unless your written response declining such designation as outlined above is transmitted to this office not later than [insert date].

Non-Federal agencies:

If you elect to become a participating agency, you must accept this invitation in writing. The acceptance may be transmitted electronically to [insert e-mail address]; please include the title of the official responding. In order to give your agency adequate opportunity to weigh the relevance of your participation in this environmental review process, written responses to this invitation are not due until after the interagency scoping meeting, scheduled for [insert date] at [insert location]. You or your delegate is invited to represent your agency at this meeting. Written responses accepting designation as participating agencies should be transmitted to this office not later than [insert date].

Additional information will be forthcoming during the scoping process. If you have questions regarding this invitation, please contact [insert name and telephone number].

Sincerely,

[Insert FTA Regional Planning Director]

Attachments: Scoping Information Packet

Draft Coordination Plan

Draft Schedule

cc: [Sponsoring Transit Agency]


Appendix C: Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities

This guidance can be found at http://www.environment.fhwa.dot.gov/strmlng/igdocs/index.asp.


Appendix D: Linking the Transportation Planning and National Environmental Policy Act (NEPA) Processes

This guidance can be found at http://www.environment.fhwa.dot.gov/integ/index.asp.


Appendix E: FHWA Guidance on Limitation on Claims Notices, 23 U.S.C. Section 139(l)

This guidance provides information on FHWA administration of the statute of limitations (SOL) provisions in SAFETEA-LU. This guidance does not apply to FTA. The goal of the SAFETEA-LU SOL provision is to expedite project delivery, which includes avoiding delayed or unexpected litigation and avoiding unnecessary litigation. The FHWA Divisions should work closely with their FHWA field counsel when determining whether and when to publish a SOL notice, and when preparing SOL notices. Attached to this guidance are sample notice forms and examples for a single project notice, a multiple projects notice, a post-ROD Section 404 permit notice, and a Tier 1 EIS notice (Attachments 1-7).

Question E-1: What is the "limitations on claims" provision in SAFETEA-LU?

Answer: The limitation on claims provision establishes a category of final action by Federal agencies that can be made subject to a 180-day time limitation for seeking judicial review. The law applies to Federal agency decisions on highway projects. The law will provide certainty and predictability in the transportation decisionmaking process and for transportation program implementation. If a SOL notice is published in the Federal Register (FR) that declares that there have been final Federal agency actions, then claims covered by the notice must be filed within 180 days after the date of the FR notice. A decision not to publish a SOL notice does not prevent an action from being final for other purposes.

Question E- 2: What if the Federal law under which the action is taken sets a different length of time for filing an appeal?

Answer: If the statute in question has a judicial review provision that contains a time period of less than 180 days, then the shorter time limit applies. If the statute in question has a judicial review provision that contains a time period greater than 180 days, then the 180-day time limit applies.

Question E- 3: What if no SOL notice is published in the FR?

Answer: If the claim is for review of a Federal action under NEPA, then the limitation on claims that applies is 28 USC §2401. That law provides a claims period of six (6) years. The limitations on claims periods vary under other Federal laws.

In addition, sometimes the failure to act on a claim in a timely manner may prevent individuals from obtaining judicial review regardless of the time period for claims provided by statute. This principle, known as laches, may apply in cases where someone has acted on the Federal agency decision in a way that makes it unfair to change the outcome of the decisionmaking process (e.g., if physical construction of the project is underway).

Question E-4: Which Federal agency actions are included under the "permit, license, or approval" language of 23 USC §139(l)?

Answer: A SOLnotice can be used for any final action by a Federal agency that is required for a highway project and is subject to judicial review. This includes decisions of other Federal agencies, such as the U.S. Army Corps of Engineers, that apply to the project. It also includes Federal agency decisions that FHWA considers when making its own decisions in accordance with NEPA.

Question E- 5: How does FHWA determine whether a decision is "final" within the meaning of the SOL provision?

Answer: Generally, a Federal agency action is considered final if the agency has completed its decisionmaking process under the relevant law and the action is one that determines rights or obligations, or is an action from which legal consequences will flow. For example, when FHWA signs a ROD, that is the final action in FHWA's decisionmaking process under NEPA with respect to issues such as project alternatives, potential environmental effects of the project, and the avoidance and minimization of impacts. Under Section 6002, "final" includes decisions in Tier 1 EIS proceedings that the deciding agency does not expect to revisit during Tier 2 proceedings in the absence of substantial new and relevant information that may affect the outcome of the agency's decision.

In most instances, staff at the FHWA Division Office will be able to determine finality for purposes of the SOL provision based on their knowledge of the project and the Federal agencies' decisionmaking processes. If questions arise in this area, the Division Office should consult with the FHWA Office of Chief Counsel before making a determination. Guidance will be issued if needed.

Question E-6: What is required for the notice to apply to claims under Federal laws other than NEPA?

Answer: While there is a presumption that a notice covers all Federal agencies' actions that relate to the project and are within the scope of the SOL provision, the notice should expressly state that other Federal agencies have taken actions that are final. The notice should include the key laws under which the Federal agencies took final action. The sample forms and examples that accompany this guidance illustrate these points (Attachments 1 to 4).

Question E- 7: Does assignment of CE responsibilities under SAFETEA-LU Sections 6004 or 6005, or assignment of other environmental responsibilities under Section 6005, change the process for the use of the limitation on claims provision?

Answer : Because the SAFETEA-LU delegations substitute the State for the FHWA in the NEPA process, the SOL notice will reflect the fact that the NEPA decision is was issued by the State. Otherwise, the basic content requirements for the notice remain unchanged in the event of a Section 6004 or 6005 assignment. . Where a State has assumed FHWA responsibilities under Section 6004 or Section 6005, the State will be responsible for the coordination process with affected Federal agencies.

Unless otherwise indicated in future guidance, FHWA will continue to be the party that arranges for publication of the notice in the FR for States operating under a Section 6004 or Section 6005 assignment. (See Question E-25).

Question E- 8: Can a Federal agency publish a SOL notice for a project that has no Federal funding, but does require decisions by Federal agencies as part of its permitting or review process?

Answer: Yes, but only if there is a legal requirement for approval of the project by the USDOT Secretary and the project is a highway project, a public transportation capital project, or a multimodal project. These requirements are set forth in the definition of "project" in Section 6002 of SAFETEA-LU. The Federal agency serving as the lead agency for NEPA would be the agency that would determine whether to publish a SOL notice for such project.

Question E-9: Does the SOL provision apply to permits, licenses, or approvals issued by State agencies that administer other Federal programs, such as the Floodplain Permit program?

Answer: The SOL provision applies only to Federal agency actions. If a State agency is acting as a Federal agency or on behalf of a Federal agency, then the SOL provision applies. If the State agency is acting as a State agency under the authority of State laws, then the SOL provision does not apply.

Question E-10: Can the SOL notice be used if project decisionmaking was completed prior to the effective date of SAFETEA-LU on August 10, 2005?

Answer: Yes. Because publishing the notice will establish a reasonable period of time (180 days) prospectively for filing claims, it may be used for projects on which the NEPA decision was made prior to August 10, 2005. The 180-day period will run from the date the notice is published. As stated previously, the Division Office should work with FHWA field counsel to decide whether publication of a notice is a good choice for the project(s) in question.

If a Division Office wants to publish notices for several projects that were approved before August 10, 2005, it may wish to use the multiproject sample form as a guide for consolidating the projects under a single notice. (See Attachment 3.)

Question E-11: Does the limitation on claims provision apply to all NEPA categories of projects?

Answer: The process can be used for any category of NEPA project that generates a documented decision. This includes documented CEs, EAs, and EISs. Before deciding to publish a notice, the FHWA Division Office, in consultation with the State, should consider whether publication is justified. This is further discussed below. (See Questions E-12 and E-13.)

Question E-12: How does the project's NEPA category (CE, EA, EIS) affect whether the notice should be used?

Answer: The likely benefits of public notice, as well as the risk and potential effects of litigation, generally are different for each NEPA category. FHWA anticipates that all EIS projects will merit use of the SOL notice. EIS projects typically are substantial in size and complexity, and the potential effects of delay due to litigation will be the greatest. EA projects also may be likely candidates for a SOLnotice, depending upon the nature of the project, the types of issues decided, the estimated likelihood of future litigation, and the potential effects of litigation. For example, publication of a SOL notice might be appropriate if an EA is used on a project involving an action that is listed in 23 CFR 771.115(a) as normally requiring an EIS. By contrast, the use of a SOLnotice for a CE should be relatively rare. FHWA does not expect SOL notices to be used for projects that are CEs under 23 CFR 771.117(c). FHWA anticipates that the notice may be appropriate for documented CE projects under 23 CFR 771.117(d). Because of the potential volume of notices where they are used for CE projects, FHWA urges use of the consolidated notice approach for CE projects. (See Question E-15.)

Question E-13: What kinds of factors should be considered when deciding whether to publish a SOL notice?

Answer: In all cases, it is important to consider the facts of the project when deciding whether to publish a notice. The FHWA Division Office must determine whether publication of the notice, which starts its own 180-day clock for claims, is the best course in light of all factors affecting the project. FHWA recommends that Division Offices work with their field counsel as they make these determinations.

For practitioners considering whether to publish a SOL notice, it will be useful to examine the potential for litigation from several perspectives. The laws and procedures under which Federal agency decisions were made for the project may affect the decision whether to publish a SOL notice. For example, if the project involves an individual permit under Section 404 of the Clean Water Act, or a formal or informal consultation process under the Endangered Species Act, publication of a notice would be appropriate.

Disputes affecting the project also may have an effect on the use of a SOL notice. If there are known interested parties threatening to file a lawsuit, then the notice may serve to ensure that such action occurs quickly. On the other hand, a notice may prompt some parties to sue merely to preserve their claims until they are more certain whether their interests are adversely affected by the Federal action, or until they know whether dispute resolution efforts will be successful. For projects with these kinds of circumstances, the Division should consider how a SOL should be timed in order to avoid unnecessary litigation.

A notice may be very useful in cases where there are no known potential litigants, but where there is a desire to ensure that the project can move into implementation without the risk of unexpected claims against it. A SOLnotice will define the time period during which "newly" interested parties must act on their views. If a project has no substantial known or likely opposition, or if the timeline for implementation does not require the protection afforded by the SOL notice, then there may be little benefit from publication of a SOLnotice.

Question E-14: Can the limitation on claims process be used for tiered EISs?

Answer: Yes, the SOL notice provision does apply to a tiered EIS to the extent that the tiered EIS results in final decisions. Because Tier 1 proceedings decide a narrower range of issues than a regular EIS process, it is important that the ROD clearly describe which decisions are being made that are considered final within the meaning of the SOL provision of SAFETEA-LU. Among the kinds of decisions that might be made in Tier 1 proceedings, and could be covered by a SOL notice, are corridor location, modal choice, alternatives to be eliminated from detailed analysis, alternatives to be carried forward for Tier 2 analysis, and jurisdictional determinations made under Federal law.

A sample form for a Tier 1 notice, and an example of a Tier 1 notice, appear as Attachments 6 and 7 to this guidance. The Tier 1 SOL notice may refer generally to the Tier 1 FEIS and ROD for detailed discussions of the decisions made. However, because of the "phased" nature of tiered proceedings, the notice also should include information informing the public of the specific decisions covered by the Tier 1 notice. The objective is to advise the public of the issues that will not be open for further analysis or discussion in the Tier 2 proceedings absent substantial changes in the proposed action or significant new and relevant information. For example, it is appropriate to list the Tier 1 alternatives eliminated from Tier 2 analysis, using the same names and alternative numbers that are used in the FEIS.

The most effective practice may be to include a section in the Tier 1 ROD that summarizes the specific final decisions made in Tier 1 and references where those final decisions are discussed in the ROD. Such listing in the ROD will help those reading the ROD to understand the status of decision-making at the conclusion of the Tier 1 proceedings. A list also will expedite the preparation of a SOL notice on the final actions in Tier 1. (See also Question E-20 for a discussion of interagency coordination on decisions to be included in SOL notices.)

Question E- 15: Can SOL notices for several projects be consolidated for publishing as a single notice in the FR to save time and costs?

Answer: Nothing prohibits the consolidation of notices for multiple projects into a single FR notice. This may be a cost effective approach if the Division Office is publishing several notices in the same timeframe, and especially if notices are published for CE projects. To help readers identify the key laws involved with each project, FHWA suggests that each individual project description reference the primary laws applicable to that project. A sample form for a consolidated notice accompanies this guidance (Attachment 3) as well as an example of a consolidated notice (Attachment 6). The example shows one way that the individual project references can be done when a notice covers multiple projects.

Question E-16: Who decides whether a limitation on claims notice gets published in the FR? Can agencies other than FHWA publish the SOL notice, especially when there is a considerable amount of time between the FHWA ROD/FONSI and the other agency's action?

Answer: The decision whether to use the SOLnotice process is one that the FHWA Division Office will make in consultation with the other lead agencies. For existing Federal Lands Highway projects, consultation should take place with the lead agency for NEPA, if it is an agency other than FHWA. If Federal Lands has assumed joint lead agency responsibilities, the two agencies will decide together.

Federal agencies other than FHWA may publish the notices. However, as a practical matter it is preferable for FHWA, as Federal lead agency, to handle the publication for all affected Federal agencies regardless of the amount of time that may pass between the FHWA ROD/FONSI and the last Federal agency decision.

As discussed in detail in Question E-20, the FHWA Division also should ensure that there is coordination with other Federal agencies whose decisions are covered by a notice. It is important for those agencies to be aware of the intention to publish a notice, especially if the notice directs readers to those other agencies for information about their actions on the project. Such coordination also is important because it permits the FHWA to confirm that there are no other pending actions or proceedings at the other Federal agency that might affect that agency's project decision.

Question E- 17: What information should be included in a SOL notice?

Answer: The notice must provide enough information to give the public reasonable notice of the general nature and location of the project and of the fact that there has been action by one or more Federal agencies that is final and subject to the 180-day limitation period. The notice should specify that claims will be barred at the end of the 180-day period, and state the legal authority for agency action and for the 180-day limitation.

FHWA notices often will cover actions by several Federal agencies and an array of agency decisions, rather than just the FHWA's NEPA action. In such cases, the notice should state that it applies to the actions of those other Federal agencies and to all laws under which Federal agencies took action. It is not necessary to list in the notice every agency whose decision is covered, so long as the project documents that are referenced in the notice contain the information about the individual agencies and their decisions. However, it makes sense to specifically name those agencies that made major decisions covered by the notice, and to direct the reader's attention to the records of that agency that relate to the agency's decision. One example of this concept would be to include the Corps of Engineers explicitly in the notice when the notice covers a Section 404 permit decision as well as FHWA's decisions. The sample forms and examples that accompany this guidance contain language covering these points (Attachments 1 to 7). The notice should refer readers to project records for detailed information on Federal actions and related laws.

Other factors to consider in drafting a notice include how to identify the project in a way that the general public will understand, and how best to direct readers to one or more sources for detailed information about the project and the decisions made by the Federal agencies. The notice contains only very abbreviated information about the project and the Federal actions take. The burden is placed on the readers to seek detailed information. For these reasons, the instructions for obtaining detailed information are especially important. Web sites are an excellent resource for this purpose, although alternative means for obtaining information still will be important for those who do not have easy access to the Internet. Contact information for other Federal agencies that made a project decision may be included in the notice, but is not required as long as the information about the decisions of those Federal agencies is available from the FHWA or State contacts.

The SOL notices must comply with FR technical requirements, as discussed in FHWA guidance at http://www.environment.fhwa.dot.gov/guidebook/fedRegDocs.asp and in the “Federal Register Document Drafting Handbook,” available online at http://www.archives.gov/federal-register/write/handbook/ddh.pdf. The sample forms reflect the necessary format (Attachments 1 to 4). Some important points to remember:

  1. An FHWA official with appropriate delegated authority must sign the notice. This is usually the Division Administrator.
  2. The "issuance date" must be the same date as when the notice actually is signed. Pre- and post-dating are not acceptable.
  3. The person whose name is inserted in the signature block must be the person who signs the notice. It is not permissible to sign for another person.
  4. The signatory must sign three (3) originals of the notice.
  5. There should not be a page number on the first page of the notice.
  6. There should be two spaces between the period at the end of one sentence and the first letter at the beginning of the next sentence.

Question E-18: How do the SOL sample forms work?

Answer: The Division Offices can use the sample forms as models when they prepare SOL notices under this guidance. The sample forms include instructions (in bold and bracketed text) for inserting project-specific information into the notice. When using a sample form, the Division Offices will need to exercise professional judgment about how to adapt the form to meet the needs of the project. FHWA encourages the Division Offices to work with their environmental specialist and their field counsel when questions arise about the appropriate content for a particular project notice. Those individuals, in turn, can consult with FHWA Headquarters representatives as needed.

One example of the judgment required is in completing the section that lists the primary Federal laws under which the Federal agencies have made final decisions on the project. The purpose of the notice is to advise the public that actions have been taken that trigger the limitation period. The list of laws is intended to help inform readers about the types of matters decided by the Federal agencies. It is not intended to be an all-inclusive list of the laws relevant to Federal agency decisionmaking. For many projects, it may be appropriate to list only the key laws under which Federal agencies took their actions, such as the Federal-aid Highway Act, NEPA, 4(f), Section 106, and the Clean Air Act. In some situations, a more extensive list may be useful if other laws create the authority (or the obligation) for decisions that are potentially controversial, or are of high interest to major stakeholders or the general public. As a resource, FHWA offers a list of laws that affect transportation. That resource may assist Division Offices in preparing the SOL notice list of the laws that apply to the project. Division Offices should be careful to include in the SOL notice only those laws under which a documented Federal agency decision was made on the project.

This guidance includes the following four types of FHWA sample forms: a single EIS project where all Federal agency decisions have been made; a notice covering a Federal agency decision made after FHWA acted and issued an initial SOL notice; a consolidated notice to cover multiple projects of varying NEPA categories, and a Tier 1 EIS notice. Examples also are provided, showing mock-ups of actual notices for a single project (Attachment 5), multiple projects (Attachment 6), and a Tier 1 EIS (Attachment 7). As needed, FHWA will issue additional sample forms to cover other types of situations.

Question E-19: How much detail should be included in the SOL notice's description of the project?

Answer: The description of the project should be very brief and contain only the information that is critical to a reader's comprehension of the general nature of the project. For example, it is not necessary to recite the history of the project or details about how or why decisions were made. The following examples illustrate an appropriate level of detail for project descriptions:

Example 1: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the following highway project in the State of Illinois : U.S. Route 20 from Galena to Freeport in Jo Daviess and Stephenson Counties . The project will be a 79.8 km (49.7 mi) long, four-lane freeway with grade separations at all intersecting roadways (i.e. a fully access-controlled facility). It will begin northwest of Galena near the existing intersection of IL Route 84 and U.S. Route 20. It will then proceed to the north and east of Galena , south of the Galena Territory , along the north side of Tapley Woods, north of Elizabeth and Woodbine, north of Stockton and south of Lena . It will end northwest of Freeport , tying into the western end of the U.S. Route 20 Freeport Bypass. Except for the termini, which tie in along the existing U.S. Route 20, the entire proposed freeway will be on new alignment.

Example 2: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the following highway project in the State of Wisconsin : WI-26 State Trunk Highway (STH) Improvements, Janesville at IH-90 to STH-60-East north of Watertown Road in Rock, Jefferson, and Dodge Counties . The project begins on the north side of Janesville at IH 90 and extends north about 77 km (48 mi) to about 15 km (9 mi) north of Watertown at STH 60-East. The proposed action involves upgrading the existing two-lane STH 26 corridor to a four-lane divided rural highway.

Question E-20: How should publication of SOL notices be timed if Section 404 or other permits or approvals remain outstanding as of the date of the FHWA ROD, FONSI, or documented CE? What kind of coordination or concurrence is required in order for FHWA to publish a notice that covers another Federal agency's decision?

Answer: A SOL notice will not be effective unless the Federal agency action covered by the notice qualifies as "final" within the meaning of the SOL provision in SAFETEA-LU. Usually, it will make sense to publish the SOL notice only when all Federal agency permits, licenses, and approvals are in place.

Exceptions may occur. For example, it may make sense to proceed with publication of the SOL notice immediately after FHWA issues its ROD if the remaining Federal decisions are not expected to occur within a reasonable period of time. Another reason not to wait might be if the remaining Federal decisions pertain to noncontroversial matters that no one is likely to litigate. Once the other Federal agencies have completed their decisionmaking processes, a decision can be made whether to publish an additional SOL notice.

If more than one notice is published for a project, the 180-day claims period will run separately for the Federal agency actions covered by each notice. For example, if a notice were published for a FHWA ROD on December 1, 2005, and for the project's Section 404 permit on August 1, 2006, the 180-day period for the NEPA claim would be measured starting on December 1, 2005. The limitation period for the Section 404 permit would start on August 1, 2006.

Interagency coordination on the notices is critically important. FHWA Divisions should work with their counterparts in other Federal agencies to ensure that there is agreement on which decisions are complete and ready for inclusion in the notice. Formal concurrence is not required, but the agency making the decision should clearly acknowledge that the decision is final within the meaning of the SOL provision. For Tier 1 EIS notices, this means that the deciding agency does not plan to revisit the issue later, in the Tier 2 environmental review process, unless substantial new information arises that is material to the agency's decision.

A deciding agency may acknowledge that has made a final decision within the meaning of the SOL provision by means of interagency discussions or via e-mail. However, it will be easiest for lead agencies to track and verify the acknowledgement later if the acknowledgment is contained in the deciding agency's comments on the project. As circumstances warrant, the FHWA will work with other Federal agencies to develop guidance or memoranda of understanding to increase the understanding of the SOL notice provision, outline the types of decisions likely to be covered in regular and tiered notices, and to detail the process for issuing notices for multiple agencies.

The FHWA encourages efforts by the States and/or FHWA Divisions to reach out to Federal and State agencies to educate them about the SOL provision and its potential use on Federal-aid projects. Effective outreach activities should reduce the likelihood of confusion or misunderstandings when the SOL notices are used on a project.

Question E- 21: If a later SOL notice is published for a separate permit (such as a Section 404 permit) or for a SEIS, and someone files a lawsuit challenging that permit or SEIS, will that lawsuit open up the previous FHWA NEPA document for review even though an earlier SOL notice covered it?

Answer: FHWA does not think so, but this is likely to be the subject of debate until decided through litigation. In light of the language in the SOL provision, a prudent person contesting an action would assume that the Federal agency decisions covered in the first SOL notice could not be challenged in litigation following a Section 404 decision made more than 180 days after the first SOL notice. For SEISs, the effect of a SOL notice on decisions covered by a SOL notice published for an earlier ROD will depend on the circumstances. FHWA believes that litigation of earlier decisions that are unrelated to topics addressed by the SEIS will be foreclosed by the expiration of the180-day period after the publication of the SOL notice covering those earlier decisions. Any issues addressed in the SEIS proceedings, and the Federal agency decisions that rely on the information developed during the SEIS proceedings, would be subject to the SOL notice(s) published after the SEIS and related ROD.

Question E-22: How does the SOL notice provision apply to a supplemental environmental impact statement (SEIS)?

Answer: The SOL provision in SAFETEA-LU makes it clear that a SEIS requires a separate SOL notice. A notice published for earlier NEPA documents or for earlier Federal agency decisions would not suffice for matters contained in the SEIS or for decisions made based on the SEIS. For a discussion of the foreclosure effects of a SOL notice on the original FEIS and ROD, see Question E-21.

Question E- 23: Should a reference to the SOL provision be included in NEPA documents?

Answer: FHWA recommends, but will not require, that future NEPA documents include a statement setting forth the SOL provisions so that readers of the NEPA documentation are aware of the statutory provision and its effects. A sample SOL statement appears below.

A Federal agency may publish a notice in the Federal Register, pursuant to 23 USC §139(l), indicating that one or more Federal agencies have taken final action on permits, licenses, or approvals for a transportation project. If such notice is published, claims seeking judicial review of those Federal agency actions will be barred unless such claims are filed within 180 days after the date of publication of the notice, or within such shorter time period as is specified in the Federal laws pursuant to which judicial review of the Federal agency action is allowed. If no notice is published, then the periods of time that otherwise are provided by the Federal laws governing such claims will apply.

Question E- 24: Does the SOL provision affect how a project's administrative record is compiled?

Answer: No. However, the limitation on claims provision increases the importance of effective documentation and tracking of agency decisions. It also will be important to ensure that copies of the decisions and supporting documents for actions taken by other Federal agencies are included in the FHWA project documents, even if those agencies acted after the FHWA NEPA decision. This is because the SOL notice will direct readers to FHWA and the State for information on all of the decisions relating to the project. For this reason, it will be very important that both agencies have project documents readily available for public inspection as of the date of the publication of the SOL notice.

In some cases, it may be useful to consider ways to make it easier for readers of NEPA documents to understand what Federal decisions are made in connection with the project. It also will be helpful to evaluate how effectively the NEPA documentation informs readers of the status of various Federal agency decisions as of the time the NEPA documents are issued.

Question E- 25: How is publication in the FR handled? How does FR publication work in States that receive assigned powers under SAFETEA-LU Sections 6004 or 6005?

Answer: The publication of the SOL notice should follow the same process used for authorization and publication of a notice of intent under NEPA. This applies regardless of a State's Section 6004 or 6005 status. At the present time, FHWA must handle publication of the notice in the FR because of Government Printing Office requirements. FHWA is working to streamline the publication process and may issue additional guidance on this topic.

Question E- 26: Who pays for the notices?

Answer: Until a system is in place for State reimbursement of the costs of publishing SOL notices as an eligible project cost, the FHWA will pay for the publication of the notices. Notices should use billing code 4910-RY, as shown on the attached sample forms and examples.

Attachments:

Attachment 1 - Sample Form: Single Project SOL Notice

Attachment 2 - Sample Form: Post-ROD Single Project 404 SOL Notice

Attachment 3 - Sample Form: Multiple Projects Consolidated SOL Notice

Attachment 4 - Sample Form: Tier 1 EIS SOL Notice

Attachment 5 - Example: Single Project SOL Notice

Attachment 6 - Example: Multiple Projects Consolidated SOL Notice

Attachment 7 - Example: Tier 1 EIS SOL Notice

Attachment 1

FHWA Sample Form: Single Project SOL Notice

[Scenario: All Federal agency decisions, including §404, have been completed.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highway in [fill in state name]

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA, Army Corps of Engineers (USACE), DoD, and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA, USACE, and other Federal agencies that are final within the meaning of 23 U.S.C. §139(l)(1). The actions relate to a proposed highway project, [fill in highway name/number and starting and ending cities or other points] in the County [fill in county name(s)], State of [fill in state name]. Those actions grant licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. §139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register] [previous phrase must be included as written, including the brackets, since it is an instruction to the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: [fill in FHWA contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For USACE: [fill in USACE contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For [fill in name of state agency]: [fill in State contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail].

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA, USACE, and other Federal agencies have taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of [fill in state name]: [Fill in very brief description of project (target is no more than 3-5 sentences): project location, project/construction type, length of project, general purpose, FHWA project reference number]. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project, approved on [fill in date], in the FHWA Record of Decision (ROD) issued on [fill in date], and in other documents in the FHWA project records. The FEIS, ROD, and other project records are available by contacting FHWA or the [fill in name of State agency] at the addresses provided above. The FHWA FEIS and ROD can be viewed and downloaded from the project Web site at [fill in the link], or viewed at public libraries in the project area [delete text on electronic and library access if not applicable]. The USACE decision and permit (USACE Permit [fill in permit reference]) are available by contacting USACE at the address provided above, and can be viewed and downloaded from [fill in the link to USACE or project web site, or delete this electronic availability text if not applicable], or viewed at public libraries in the project area [delete text on library access if not applicable].

This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to [Insert the key laws and Executive Orders under which Federal agencies have made final, documented decisions about the project; drafters should not list any law or Executive Order that does not apply to the project, or for which the Federal agency decision is not final.]:

1.

2.

3.

4.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. §139(l)(1)

Issued on: [date signed]

__________________________________

[Signatory Name]

[Signatory Title]

[City]

Attachment 2

FHWA Sample Form: Post-ROD 404 Decision SOL Notice

[Scenario: FHWA previously published a notice for its NEPA and other decisions, this notice covers USACE and other Federal agency decisions made after the publication of the first notice.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highway in [fill in state name]

AGENCIES: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by Army Corps of Engineers, (USACE), DoD, and Other Federal Agencies

SUMMARY: This notice announces actions taken by the USACE and other Federal agencies that are final within the meaning of 23 U.S.C. §139(l)(1). The actions relate to a proposed highway project, [fill in highway name/number and starting and ending cities or other points] in the County of [fill in county name(s)], State of [fill in state name]. Those actions grant licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. §139(l)(1). A claim seeking judicial review of the Federal agency actions that are covered by this notice will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register] [previous phrase must be included as written, including the brackets, since it is an instruction to the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: [fill in FHWA contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For USACE: [fill in USACE contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For [fill in name of state agency]: [fill in State contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail].

SUPPLEMENTARY INFORMATION: On [fill in date], the FHWA published a "Notice of Final Federal Agency Actions on Proposed Highway in [fill in state name]" in the Federal Register at [fill in FR reference] for the following highway project: [Fill in very brief description of project (target is no more than 3-5 sentences): project location, project/construction type, length of project, general purpose, FHWA project reference number, type(s) of FHWA NEPA document(s), and date(s) issued]. Notice is hereby given that, subsequent to the earlier FHWA notice, the USACE has taken final agency actions within the meaning of 23 U.S.C. §139(l)(1) by issuing permits and approvals for the highway project. The actions by the USACE, related final actions by other Federal agencies, and the laws under which such actions were taken, are described in the USACE decisions and its project records, referenced as [fill in USACE permit number(s)]. That information is available by contacting the USACE at the address provided above.

Information about the project and project records also are available from the FHWA and the [fill in name of State agency] at the addresses provided above. The FHWA [insert references to FHWA NEPA documents, such as FEIS and ROD or EA and FONSI] can be viewed and downloaded from the project Web site at [fill in the link], or viewed at public libraries in the project area [delete text on electronic and library access if not applicable]. The USACE decision can be viewed and downloaded from the project Web site at [fill in the link] or viewed at public libraries in the project area [delete text on electronic and library access if not applicable].

This notice applies to all USACE and other Federal agency final actions taken after the issuance date of the FHWA Federal Register notice described above. The laws under which actions were taken include, but are not limited to [Insert the key laws and Executive Orders under which Federal agencies have made final, documented decisions about the project since the date of the first §139(l) notice; drafters should list key law(s) and Executive Orders under which USACE or another Federal agency made decisions or determinations on the project after the issuance date of the first §139(l) Federal Register notice; drafters should not list any law or Executive Order that does not apply to the project, or for which the Federal agency decision is not final.]:

1.

2.

3.

4.

5.

6.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. §139(l)(1)

Issued on: [date signed]

__________________________________

[FHWA Signatory Name]

[FHWA Signatory Title]

[City]

Attachment 3

FHWA Sample Form: Multiple Projects SOL Notice

[Scenario: Projects involve a variety of NEPA categories and some have not yet received final decisions on permits from other Federal agencies.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highways in [fill in state name]

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. §139(l)(1)-(2) [delete the "-(2)" if the notice does not cover any SEIS projects]. The actions relate to various proposed highway projects in the State of [fill in state name]. Those actions grant licenses, permits, and approvals for the projects.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. §139(l)(1)-(2) [delete the "-(2)" if the notice does not cover any SEIS projects]. A claim seeking judicial review of the Federal agency actions on any of the listed highway projects will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register] [previous phrase must be included as written, including the brackets, since it is an instruction to the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: [fill in FHWA contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For [fill in name of state agency]: [fill in State contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail].

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of [fill in state name] that are listed below. The actions by the Federal agencies on a project, and the laws under which such actions were taken, are described in the documented categorical exclusion (CE), environmental assessment (EA), environmental impact statement (EIS), or supplemental EIS (SEIS) issued in connection with the project [delete here, and elsewhere, references to any document types that are not included in this notice], and in other project records. The CE, EA, FEIS, Findings of No Significant Impact (FONSI), Record of Decision (ROD), or SEIS, and other project records for the listed projects are available by contacting the FHWA or the [fill in name of State agency] at the addresses provided above. For some of the projects, the FEIS, SEIS, EA, ROD, and FONSI documents [delete references to any document types that do not apply to projects in this notice] alsocan be viewed and downloaded electronically, or viewed at public libraries in the relevant project area, as specified below [delete text on electronic and library access if not applicable; if applicable, fill in information under individual project entries below].

This notice applies to all Federal agency decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken. The laws under which Federal agency decisions were made on the projects listed in this notice include, but are not limited to [insert the key laws and Executive Orders under which Federal agencies have made final, documented decisions about the projects subject to this notice; drafters should list the key laws and Executive Orders under which a Federal agency made a final decision for at least one (or more) of the projects covered by this notice; drafters should not list any law or Executive Order that does not apply to at least one of the projects, or for which the Federal agency decision is not final. Include abbreviated forms of reference for each law listed in this section (e.g., Section 404, Section 106) to facilitate cross-referencing the laws within the project description. That step will help readers rapidly identify which key Federal laws applied to a particular project]:

1.

2.

3.

4.

The projects subject to this notice are:

1. Project location: [fill in city name, county name, highway number]. Project reference number: [fill in FHWA project number]. Project type: [fill in very brief description of project (target is no more than 3-5 sentences): project location, project/construction type, length of project, general purpose,]. Final actions taken under: [fill in the references to the key laws (listed above) under which Federal agencies have taken final action on this project; in the case of a nationwide Section 404 permit, include the permit number]. FHWANEPA documents: [fill in NEPA document type and ROD/FONSI (if applicable), date of issuance, and Web address/library location if applicable].

2. Project location: [fill in city name, county name, highway number]. Project reference number: [fill in FHWA project number]. Project type: [fill in very brief description of project (target is no more than 3-5 sentences): project location, project/construction type, length of project, general purpose,]. Final actions taken under: [fill in the references to the key laws (listed above) under which Federal agencies have taken final action on this project; in the case of a nationwide Section 404 permit, include the permit number]. FHWANEPA documents: [fill in NEPA document type and ROD/FONSI (if applicable), date of issuance, and Web address/library location if applicable].

3. Project location: [fill in city name, county name, highway number]. Project reference number: [fill in FHWA project number]. Project type: [fill in very brief description of project (target is no more than 3-5 sentences): project location, project/construction type, length of project, general purpose,]. Final actions taken under: [fill in the references to the key laws (listed above) under which Federal agencies have taken final action on this project; in the case of a nationwide Section 404 permit, include the permit number]. FHWANEPA documents: [fill in NEPA document type and ROD/FONSI (if applicable), date of issuance, and Web address/library location if applicable].

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. §139(l)(1)-(2) [strike "-(2)" if no SEIS project is listed]

Issued on: [date signed]

__________________________________

[Signatory Name]

[Signatory Title]

[City]

Attachment 4

FHWA Sample Form: Tier 1 EIS SOL Notice

[Scenario: FHWA has completed a Tier 1 EIS and ROD, which specify issues decided and issues to be carried over to Tier 2 proceedings.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highway Project in [fill in state name]

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA and other Federal Agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project [fill corridor location description or highway name/number, including starting and ending cities or other points] in the County [fill in county name(s)], State of [fill in state name]. The Federal actions, taken as a result of a tiered environmental review process under the National Environmental Policy Act, 42 U.S.C. 4321-4351 (NEPA), and implementing regulations on tiering, 40 CFR 1502.20, 40 CFR 1508.28, and 23 CFR Part 771, determined certain issues relating to the proposed project. Those Tier 1 decisions will be used by Federal agencies in subsequent proceedings, including decisions whether to grant licenses, permits, and approvals for the highway project. Tier 1 decisions also may be relied upon by State and local agencies in proceedings on the proposed project.

DATES: By this notice, the FHWA is advising the public that it has made decisions that are subject to 23 U.S.C. 139(l)(1) and are final within the meaning of that law. A claim seeking judicial review of the Tier 1 Federal agency decisions on the proposed highway project will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: [fill in FHWA contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail]. For [fill in name of state agency]: [fill in State contact information, including name, title, agency name, office address and regular office hours, telephone, and e-mail].

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA has issued a Tier 1 Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) in connection with a proposed highway project in the State of [fill in state name]: [Fill in very brief description of project (target is no more than 3-5 sentences): corridor area or project location, general purpose, FHWA project reference number]. Decisions in the Tier 1 ROD include, but are not limited to, the following:

  1. Purpose and need for the project, including the need for actions to [insert description].

  2. Reasonable alternatives that will be carried forward for further evaluation in the Tier 2 proceedings.

  3. Alternatives that have been eliminated from further consideration and study, including but not limited to [insert a list of the alternatives that have been eliminated from further review; this list may use the names or references used in the Tier 1 EIS and ROD].

  4. [Insert any other decisions described in the Tier 1 ROD, but do not include preliminary decisions that are subject to a commitment in the Tier 1 ROD for further analysis during Tier 2 proceedings; this list should include decisions by other Federal agencies that, after consultation with those agencies, are deemed final within the meaning of 139(l)].

Interested parties may consult the ROD and FEIS for further information on each of the decisions described above.

The Tier 1 actions by the Federal agencies, and the laws under which such actions were taken, are described in the Tier 1 Final Environmental Impact Statement (FEIS), approved on [fill in date], in the FHWA Record of Decision (ROD) issued on [fill in date], and in other documents in the FHWA project records. The scope and purpose of the Tier 1 FEIS are described in Sections [fill in references] of the FEIS. The FEIS, ROD, and other documents in the FHWA project file are available by contacting the FHWA or the [fill in name of State agency] at the addresses provided above. The FHWA FEIS and ROD can be viewed and downloaded from the project Web site at [fill in the link], or viewed at public libraries in the project area [delete text on electronic and library access if not applicable].

This notice applies to all Federal agency Tier 1 decisions that are final within the meaning of 23 U.S.C. 139(l)(1) as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to: [Insert the key laws and Executive Orders under which Federal agencies have made final, documented decisions about the project; drafters should not list any law or Executive Order that does not apply to the project, or for which the Federal agency decision is not final within the meaning of 139(l).]:

1.

2.

3.

4.

5.

6.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. 139(l)(1)

Issued on: [date signed]

__________________________________

[Signatory Name]

[Signatory Title]

[City]

Attachment 5

FHWA Example: Single Project SOL Notice

[Scenario: EIS project, all Federal agency decisions have been completed.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highway in Yourstate

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA, Army Corps of Engineers (USACE), DoD, and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA, USACE, and other Federal agencies that are final within the meaning of 23 U.S.C. §139(l)(1). The actions relate to a proposed highway project, U.S. Route 10, Milo to Freeport , in Washington , Jefferson, and Lincoln Counties in the State of Yourstate . Those actions grant licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Arthur Davis, Division Administrator, Federal Highway Administration, 3000 Federal Drive, Capital City, Yourstate 00000-0000; telephone: (888) 888-0000; e-mail: Arthur.Davis@fhwa.dot.gov. The FHWA Yourstate Division Office's normal business hours are 7:45 a.m. to 4:15 p.m. (eastern time). For USACE: Robert Agee, Chief, Regulatory Branch, U.S. Army Corps of Engineers, Yourstate District, Murphy Federal Building, Capital City, Yourstate 00000-0000; telephone (888) 888-1111. For Yourstate: Mr. Benjamin Smith, P.E., Yourstate Department of Transportation, 10000 State Street, Capital City, Yourstate 00000-0000; telephone: (888) 888-1111.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA, USACE, and other Federal agencies have taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of Yourstate: U.S. Route 10 from Milo to Freeport in Washington, Jefferson, and Lincoln Counties. The project will be a 79.8 km (49.7 mi) long, four-lane freeway with grade separations at all intersecting roadways (i.e. a fully access-controlled facility). It will begin northwest of Milo near the existing intersection of YS Route 64 and U.S. Route 10. It will then proceed to the north and east of Milo, north of Berlin and south of Darby. It will end northwest of Freeport , tying into the western end of the U.S. Route 10 Freeport Bypass. The proposed freeway will be on new alignment. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project, approved on August 10, 2005, in the FHWA Record of Decision (ROD) issued on November 18, 2005, and in other documents in the FHWA project files. The FEIS, ROD, and other project records are available by contacting the FHWA or the Yourstate Department of Transportation at the addresses provided above. The FHWA FEIS and ROD can be viewed and downloaded from the project Web site at www.dot.yourstate.gov/env/us10feis.htm or viewed at public libraries in the project area. The USACE decision and permit (USACE Permit 200400204) are available by contacting USACE at the address provided above.

This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:

  1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].

  2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].

  3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]; Landscaping and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].

  4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Marine Mammal Protection Act [16 U.S.C. 1361]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)]; Migratory Bird Treaty Act [16 U.S.C. 703-712].

  5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]; Archeological Resources Protection Act of 1977 [16 U.S.C. 470(aa)-470(ll)]; Archeological and Historic Preservation Act [16 U.S.C. 469-469(c)]; Native American Grave Protection and Repatriation Act (NAGPRA) [25 U.S.C. 3001-3013].

  6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; American Indian Religious Freedom Act [42 U.S.C. 1996]; Farmland Protection Policy Act (FPPA) [7 U.S.C. 4201-4209].

  7. Wetlands and Water Resources: Clean Water Act (Section 404, Section 401, Section 319) [33 U.S.C. 1251-1377]; Land and Water Conservation Fund (LWCF) [16 U.S.C. 4601-4604]; Safe Drinking Water Act (SDWA) [42 U.S.C. 300(f)-300(j)(6)]; Rivers and Harbors Act of 1899 [33 U.S.C. 401-406]; Wild and Scenic Rivers Act [16 U.S.C. 1271-1287]; Emergency Wetlands Resources Act, [16 U.S.C. 3921, 3931]; Wetlands Mitigation [23 U.S.C. 103(b)(6)(M) and 133(b)(11)]; Flood Disaster Protection Act, 42 U.S.C. 4001-4128.

  8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 13112 Invasive Species.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. §139(l)(1)

Issued on: [date signed]

__________________________________

Arthur Davis

Division Administrator

Capital City

Attachment 6

FHWA Example: Multiple Projects SOL Notice

[Scenario: Projects involve a variety of NEPA categories and some have not yet received final decisions on permits from other Federal agencies.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Highways in Yourstate

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. §139(l)(1). The actions relate to various proposed highway projects in the State of Yourstate . Those actions grant licenses, permits, and approvals for the projects.

DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. §139(l)(1). A claim seeking judicial review of the Federal agency actions on any of the listed highway projects will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Arthur Davis, Division Administrator, Federal Highway Administration, 3000 Federal Drive, Capital City, Yourstate 00000-0000; telephone: (888) 888-0000; e-mail: Arthur.Davis@fhwa.dot.gov. The FHWA Yourstate Division Office's normal business hours are 7:45 a.m. to 4:15 p.m. (eastern time). For Yourstate: Mr. Benjamin Smith, P.E., Yourstate Department of Transportation, 10000 State Street, Capital City, Yourstate 00000-0000; telephone: (888) 888-1111.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Yourstate that are listed below.The actions by the Federal agencies on a project, and the laws under which such actions were taken, are described in the documented categorical exclusion (CE), environmental assessment (EA), or environmental impact statement (EIS) issued in connection with the project, and in other project records. The CE, EA, FEIS, Findings of No Significant Impact (FONSI), Record of Decision (ROD), and other project records for the listed projects are available by contacting the FHWA or the Yourstate Department of Transportation at the addresses provided above. For some of the projects, the FEIS, EA, ROD, and FONSI documents alsocan be viewed and downloaded electronically as specified below.

This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:

  1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act (FAHA) [23 U.S.C. 109 and 23 U.S.C. 128].

  2. Air: Clean Air Act (CAA) [42 U.S.C. 7401-7671(q)].

  3. Land: Section 4(f) of the Department of Transportation Act of 1966 (4f) [49 U.S.C. 303].

  4. Wildlife: Endangered Species Act (ESA) [16 U.S.C. 1531-1544 and Section 1536]; Migratory Bird Treaty Act (MBTA) [16 U.S.C. 703-712].

  5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended (106) [16 U.S.C. 470(f) et seq.]; Archeological Resources Protection Act of 1977 (ARPA) [16 U.S.C. 470(aa)-470(ll)]; Archeological and Historic Preservation Act (AHPA) [16 U.S.C. 469-469(c)].

  6. Social and Economic: Civil Rights Act of 1964 (Civil Rights) [42 U.S.C. 2000(d)-2000(d)(1)].

  7. Wetlands and Water Resources: Clean Water Act (Section 404, Section 401, Section 319) [33 U.S.C. 1251-1377]; Rivers and Harbors Act of 1899 (RHA) [33 U.S.C. 401-406]; Wetlands Mitigation (Sections 103 and 133) [23 U.S.C. 103(b)(6)(M) and 133(b)(11)].

  8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.

The projects subject to this notice are:

  1. Project location: U.S. Route 10 from Milo to Freeport in Washington , Jefferson, and Lincoln Counties . Project reference number: FHWA-YS-EIS-01-01-F. Project type: The project will be a 49.7 mile long, four-lane freeway with grade separations at all intersecting roadways (i.e. a fully access-controlled facility). It will begin northwest of Milo near the existing intersection of YS Route 64 and U.S. Route 10. It will then proceed to the north and east of Milo, north of Berlin and south of Darby. It will end northwest of Freeport , tying into the western end of the U.S. Route 10 Freeport Bypass. The proposed freeway will be on new alignment. Final agency action(s) taken under: NEPA, FAHA, CAA, 4f, 106, ESA, MBTA, ARPA, AHPA, Civil Rights, Section 404, Section 401, Sections 103 and 133, E.O. 11990, E.O. 11514, E.O. 12898. FHWA NEPA documents: FEIS approved on August 1, 2005; ROD issued on November 18, 2005, both available at www.dot.yourstate.gov/env/us10feis.htm.

  2. Project location: Rich County , U.S. 450 Bridge Replacements. Project reference number: BR-BR88(042). Project type: The project proposes to provide for the replacement of the U.S. Route 450 bridge over the Suwanee River and three overflow bridges including pavement resurfacing. The section of U.S. 450 proposed for pavement resurfacing and replacement of the four bridges extends from near the intersection of U.S. Route 450/YS Route 24 to a point just beyond the Suwanee River , a distance of approximately 5.4 miles. Final agency action(s) taken under: NEPA, FAHA, CAA, 4f, 106, MBTA, ARPA, AHPA, Civil Rights, Section 404, Section 401, Section 319, Sections 103 and 133, RHA, E.O. 11990, E.O. 11988, E.O. 11514. FHWA NEPA documents: EA approved on September 23, 2004, FONSI issued on March 12, 2005, both available at www.dot.yourstate.gov/env/us450ea.htm.

  3. Project location: Taylor County , U.S. 111 Bridge Replacement. Project reference number: BR-BR91(051). Project type: The project proposes to provide for the replacement of the U.S. Route 111 bridge over the south fork of the Kent River , including pavement resurfacing. The proposed project involves the construction of a new bridge downstream from the existing bridge. The section of U.S. 111 proposed for pavement resurfacing and replacement of the bridge extends from the intersection of U.S. Route 111 and YS Route 133 to the intersection of U.S. Route 111 and YS Route 18, a distance of approximately 7 miles. Final agency action(s) taken under: NEPA, FAHA, CAA, 4f, 106, MBTA, ARPA, AHPA, Civil Rights, E.O. 11990, E.O. 11988, E.O. 11514. FHWA NEPA documents: EA approved on October 10, 2005, FONSI issued on January 14, 2006.

  4. Project Location: Waterford County , U.S. 12 Highway Reconstruction. Project Reference Number: NH-1562(10). Project type: The project includes the reconstruction of the existing two-lane U.S. 12 from Parkville , where U.S. 12 intersects with State Street , to the intersection of U.S. 12 with Main Street in Crestview. The proposed project involves widening the traffic lanes to 16', relocating utilities, and adding a bike lane. All work will be within existing right-of-way. Total length of the project is 4.3 miles. Final agency action(s) taken under: NEPA, FAHA, CAA, 4f, 106, ARPA, AHPA, Civil Rights, Section 404 (nationwide permit 14), Section 401, E.O. 11990, E.O. 11988, E.O. 11514. FHWA NEPA documents: CE approved on August 29, 2005.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. §139(l)(1)

Issued on: [date signed]

__________________________________

Arthur Davis

Division Administrator

Capital City

Attachment 7

FHWA Example: Tier 1 EIS SOL Notice

[Scenario: FHWA has completed a Tier 1 EIS and ROD, which specify issues decided and issues to be carried over to Tier 2 proceedings.]

DEPARTMENT OF TRANSPORTATION [4910-RY]

Federal Highway Administration

Notice of Final Federal Agency Actions on Proposed Transportation Projects in Yourstate

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies

SUMMARY: This notice announces actions taken by the FHWA and other Federal Agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to proposed highway and transit projects within the area known as the Skyline Corridor, which is a 150 square mile area in the Bigcity metropolitan area that extends from the Freeport Central Business District and Clearwater River redevelopment area in Washington County, east to the I-300 outerbelt corridor in Madison County, near the communities of Adams, Jefferson, and Franklin, in the State of Yourstate. The Federal actions, taken as a result of a tiered environmental review process under the National Environmental Policy Act, 42 U.S.C. 4321-4351 (NEPA), and implementing regulations on tiering, 40 CFR 1502.20, 40 CFR 1508.28, and 23 CFR Part 771, determined certain issues relating to the proposed projects. Those Tier 1 decisions will be used by Federal agencies in subsequent proceedings, including decisions whether to grant licenses, permits, and approvals for highway and transit projects. Tier 1 decisions also may be relied upon by State and local agencies in proceedings on the proposed projects.

DATES: By this notice, the FHWA is advising the public that it has made decisions that are subject to 23 U.S.C. 139(l)(1) and are final within the meaning of that law. A claim seeking judicial review of the Tier 1 Federal agency decisions on the proposed highway and transit projects will be barred unless the claim is filed on or before [Insert date 180 days after publication in the Federal Register]. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.

FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Arthur Davis, Division Administrator, Federal Highway Administration, 3000 Federal Drive, Capital City, Yourstate 00000-0000; telephone: (888) 888-0000; e-mail: Arthur.Davis@fhwa.dot.gov. The FHWA Yourstate Division Office's normal business hours are 7:45 a.m. to 4:15 p.m. (eastern time). For Yourstate: Mr. Benjamin Smith, P.E., Yourstate Department of Transportation, 10000 State Street, Capital City, Yourstate 00000-0000; telephone: (888) 888-1111.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA has issued a Tier 1 Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) in connection with proposed highway and transit projects within the Skyline Corridor of the City of Bigcity in the State of Yourstate . Decisions in the Tier 1 ROD include, but are not limited to, the following:

  1. Purpose and need for the projects, including the need for actions to increase highway capacity, reduce congestion and delay, improve safety and increase transportation connectivity in the region.

  2. Reasonable alternatives that will be carried forward for further evaluation in the Tier 2 proceedings.

  3. Alternatives that have been eliminated from further consideration and study, including but not limited to the no-build alternative; the Metro Light Rail Transit alternative; the Sanderson Corridor alternative; and individual or combined measures involving high occupancy vehicle lanes, bus rapid transit, ferry boats, and expanded Clearwater River crossings on I-300 and I-500.

  4. The Clearwater River will be clear spanned, thereby precluding the proposed highway and transit crossing from being designated as a water resources project within the meaning of Section 7 of the Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.

Interested parties may consult the ROD and FEIS for further information on each of the decisions described above.

The Tier 1 actions by the Federal agencies, and the laws under which such actions were taken, are described in the FEIS approved March 15, 2006, the ROD approved September 1, 2006, and in other documents in the FHWA project records. The scope and purpose of the Tier 1 FEIS are described in Sections 1.1 and 1.3 of the FEIS. The FEIS, ROD, and other documents in the FHWA project file are available by contacting the FHWA or the Yourstate Department of Transportation at the addresses provided above. The FEIS and ROD also are available online at http://www.skylinecorridor.org/default.asp.

This notice applies to all Federal agency Tier 1 decisions that are final within the meaning of 23 U.S.C. 139(l)(1) as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:

  1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].

  2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].

  3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303 and 23 U.S.C. 138].

  4. Wetlands and Water Resources: Safe Drinking Water Act [42 U.S.C. 300(f)-300(j)(6)]; Wild and Scenic Rivers Act [16 U.S.C. 1271-1287]; Wetlands Mitigation [23 U.S.C. 103(b)(6)(M) and 133(b)(11)].

  5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq].

  6. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 11514 Protection and Enhancement of Environmental Quality.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority: 23 U.S.C. 139(l)(1)

Issued on: [date signed]

______________________________

Arthur Davis

Division Administrator

Capital City

Updated: 08/29/2013
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