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Home / MAP-21 / Guidance / FTA Revised Environmental Process Review Guidance

Draft FHWA/FTA Revised Environmental Review
Process Guidance for Public Comment

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Introduction

This guidance provides project sponsors with direction regarding the Federal Highway Administration (FHWA)/Federal Transit Administration (FTA) environmental review process and administering related statutory provisions.1 In 2005 the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, established supplemental requirements to the National Environmental Policy Act (NEPA) requirements (specific to FHWA/FTA actions) and FHWA/FTA joint environmental procedures, 23 CFR part 771, for all FHWA and FTA environmental impact statement (EIS) processes. This guidance addresses two specific statutory requirements that apply to the environmental review of FHWA/FTA proposed actions:

The guidance also reflects updated policy and procedures issued previously that are related to 23 U.S.C. 139 and MAP-21 Section 1319 implementation. These laws and related processes can apply in whole or in part to other NEPA processes, as determined by FHWA or FTA.

In 2012, Subtitle C of MAP-21 amended the provisions in 23 U.S.C. 139. The changes emphasize a framework for setting deadlines for decision-making in the environmental review process, modify the process for issue resolution and referral, and establish penalties for Federal agencies that do not make a timely decision. Also, complex projects stalled in the environmental review process can receive technical assistance with a goal of completing the environmental review process (i.e., issue a record of decision) within four years.

This guidance supersedes the SAFETEA-LU Environmental Review Process Final Guidance issued on November 16, 2006. It does not supersede any other guidance that is consistent with the National Environmental Policy Act (NEPA) 42 U.S.C. & § 4321 et seq., as amended, 23 U.S.C. & § 139, and 23 CFR part 771. The Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500-1508) and the FHWA and FTA joint NEPA regulation (23 CFR part 771) remain in effect to the extent that they are consistent with 23 U.S.C. & § 139. Because the size and scope of EISs vary, adjustments to the recommended approaches included in this guidance may be appropriate, but the minimum statutory requirement is always noted in this guidance. A question and answer format is used with additional examples and information provided in the glossary of abbreviations and appendices. The table of contents provides a full list of the questions.

This guidance is divided into three sections:

Contents

Part 1 Environmental Review Process

General Information About The FHWA/FTA Environmental Review Process

Applicability Requirements

Project Initiation

Lead Agencies

Cooperating/Participating Agencies

Purpose and Need

Alternatives Analysis

Preferred Alternative

Part 2 Process Management

Coordination and Schedule

Enhanced Technical Technical Assistance For Covered Projects

Concurrent Reviews

Issue resolution

Funding Additional Agency Resources

Part 3 Statue of Limitations

APPENDICES

Appendix A – Abbreviations

Appendix B – Sample Cooperating/Participating Invitation Letters

Appendix C – FHWA/FTA Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Review

Appendix D – FHWA Guidance on the Statute of Limitations (SOL) provision under 23 U.S.C. Section 139(l)

Part 1 Environmental Review Process

Part 1 covers elements specific to the FHWA/FTA environmental review process that differ from those elements under CEQ's NEPA regulations (40 CFR 1500 – 1508) which are addressed in other guidance. This guidance provides information on 23 U.S.C. & § 139 implementation related to:

The FHWA/FTA environmental review process emphasizes the responsibilities of the NEPA lead agencies in determining the final purpose and need for the action and the range of alternatives after considering input from the public and participating agencies. While FHWA or FTA is the Federal lead agency in a NEPA process subject to the FHWA/FTA environmental review process under 23 U.S.C. & § 139, the lead agency role can be shared with other governmental entities, as defined by the law. Therefore, unless otherwise specified to indicate an ultimate decision maker, the terms "lead agency" or "lead agencies" throughout the guidance refer to a collaboration among all joint lead agencies when making decisions or performing tasks, regardless of whether they are serving as a joint lead agency under the authority of 23 U.S.C. & § 139 or by invitation pursuant to CEQ regulations at 40 CFR parts 1500–1508. The environmental review process should not proceed unless the lead agencies reach agreement on matters under their joint authority. If appropriate, the issue resolution process described in 23 U.S.C. & § 139 may be initiated to resolve conflicts. In addition, the lead agencies must collaborate with participating agencies in determining the methodologies to be used and the level of detail required in the analysis of each alternative.

Under CEQ's regulations, cooperating agencies can be any Federal, State, or local agency, or Indian tribal government that has jurisdiction by law or special expertise with respect to any potential environmental impact from a proposed project (40 CFR 1508.5).

In addition to cooperating agencies, the FHWA/FTA environmental review process also includes participating agencies. Participating agencies can include any Federal, State, local, or Indian tribal governmental unit that may have an interest in the proposed project. The intent of a participating agency's role is to enhance interagency coordination, ensure that issues of concern are identified early, and encourage governmental agencies at any level with an interest in the proposed project to be active participants in the NEPA process. Designation as a participating agency does not indicate project support, but does give invited agencies specific opportunities to provide input at key decision points in the process. By definition, any potential cooperating agency has an interest in the propose project and thus is also considered a participating agency, although not all participating agencies are cooperating agencies. The roles of cooperating and participating agencies are similar in many ways and differ in some ways, with cooperating agencies having more authority, responsibility, and involvement in the environmental review process.

Throughout this guidance, the term "participating agencies" is used to include both "cooperating agencies" and "participating agencies". The term "cooperating agencies" is used only when addressing specific roles under the CEQ's regulations to highlight when the roles of cooperating agencies differ from participating agencies' roles under 23 U.S.C. 139.

General Information About The FHWA/FTA Environmental Review Process

Question 1: What does the term "transportation project" mean in this guidance?

Answer: Within this guidance, the term "transportation project" means any highway project or public transportation capital project that involves a FHWA or FTA action, or any multimodal project funded in whole or in part under title 23 U.S. Code, or chapter 53 of title 49, U.S. Code.

Question 2: What is meant by the "FHWA/FTA environmental review process"?

Answer: The term "FHWA/FTA environmental review process" refers to the Federal procedures and requirements followed when evaluating a proposed transportation project (e.g., addressing compliance with NEPA, its implementing regulations, and 23 U.S.C. & § 139). FHWA/FTA is responsible for ensuring that environmental analysis for a transportation project is prepared and completed in accordance with 23 U.S.C. & § 139, 23 CFR part 771, and other applicable Federal laws and regulations. This environmental review process takes into account other applicable Federal laws under the purview of other agencies (e.g., the Endangered Species Act, the Clean Water Act, the National Historic Preservation Act), and the completion of any environmental permit, approval, review, or study required under those other Federal laws. Therefore, FHWA/FTA's involvement may extend into "post-NEPA" project development activities that encourage timely environmental approvals, permits, or actions, as needed.

Question 3: What is meant by a "combined FEIS/ROD document"?

Answer: The term "combined FEIS/ROD document" refers to the single Final EIS (FEIS) and ROD document established pursuant to section 1319(b) of MAP-21. Requirements for both an FEIS and a ROD must be met in order to join the two documents into a single, combined document. Additional guidance on combining an FEIS/ROD is found in FHWA/FTA Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Reviews in Appendix C.

Question 4: How do the environmental requirements for metropolitan and statewide planning in 23 U.S.C. & §& § 134, 135, 168 and 169 and their implementing regulations (23 CFR part 450) relate to the FHWA/FTA environmental review process?

Answer: The transportation planning process provides for actions and strategies that "protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns." [23 U.S.C. 134(h)(1)(E) and 23 U.S.C. 135(d)(1)(E)] Transportation plans are developed "in consultation with State, tribal, and local agencies responsible for land use management, natural resources, conservation, environmental protection, and historic preservation." [23 U.S.C. 135(f)(2)(D)(i)] Consultation involves a comparison of transportation plans with available State, tribal, and local conservation plans and maps, and with available natural and cultural/historic resources inventories.

Transportation plans must include a "discussion of types of potential environmental mitigation activities and potential areas to carry out these activities" and the discussion must "be developed in consultation with Federal, State, and tribal wildlife, land management, and regulatory agencies." [23 U.S.C. 134(i)(2)(D) and 49 U.S.C. 5303(i)(2)(D)]. In addition, under 23 U.S.C. & § 169, as part of the statewide or metropolitan transportation planning process, a State or metropolitan planning organization may develop programmatic mitigation plans or policies to address the potential environmental impacts of future transportation projects, and these may be used by Federal agencies in carrying out their responsibilities under NEPA [23 U.S.C. 169(f)].

Part 450 of 23 CFR (23 CFR 450.212 and 450.318) allows States, metropolitan planning organizations, and public transportation providers to engage in studies at the transportation planning process stage that could be used and relied on during the environmental review process. These studies can produce any of the following to be used and relied upon during the environmental review process: (1) purpose and need or goals and objectives; (2) general travel corridor and/or general mode(s); (3) preliminary screening of alternatives and elimination of unreasonable alternatives; (4) basic description of the environmental setting; and/or (5) preliminary identification of environmental impacts and environmental mitigation. CEQ's regulations allow this practice through the use of incorporation by reference (40 CFR 1502.21).

Section 1310 of MAP-21 codifies another method for using and adopting planning products into the environmental review process. Planning products mean "detailed and timely decision, analysis, study, or other documented information that: (1) is the result of an evaluation or decision-making process carried out during transportation planning, including a detailed corridor plan or a transportation plan developed under 23 U.S.C. & § 134 or 135 (49 U.S.C. & § 5303 or 5304) that fully analyzes impacts on mobility, adjacent communities, and the environment; (2) is intended to be carried into the transportation project development process; and (3) has been approved by the State, all local and tribal governments where the project is located, and any relevant metropolitan planning organization." [23 U.S.C. 168(a)(2)]

Appendix A to 23 CFR Part 450 – Linking the Transportation Planning and NEPA Processes provides additional information to explain the linkage between the transportation planning and project development process.

For projects administered under the FHWA Federal-Aid program, additional guidance related to transportation planning requirements and their relationship to NEPA approvals is provided in an informational memorandum issued on January 28, 2008, supplemented February 9, 2011.

APPLICABILITY REQUIREMENTS

Question 5: Which transportation projects must follow the FHWA/FTA environmental review process?

Answer: All FHWA/FTA transportation projects requiring development of an EIS must follow the procedures outlined in 23 U.S.C. § 139 [23 U.S.C. 139(b)(1)]. FHWA/FTA may apply, in whole or in part, certain provisions of 23 U.S.C. § 139 to environmental assessments (EA) and CEs depending on the circumstances of the project.

Question 6: Does 23 U.S.C. § 139 apply to the FHWA Federal Lands Highway projects carried out under 23 U.S.C. 308 that do not propose the use of FHWA/FTA funding?

Answer: Section 139 of 23, U.S Code, does not apply to projects when title 23, U.S. Code, or Chapter 53 of title 49, U.S. Code, funds are not involved in the project and there are no other factors requiring FHWA approval (i.e. interstate access approvals) for the project. For example, highway projects funded by other Federal agencies and carried out by Federal Lands Highway under the authority of 23 U.S.C. 308, with no title 23 or chapter 53 funding or other approval, are not required to follow 23 U.S.C. 139. However, it is recommended that if FHWA/FTA is involved in an EIS process, the section 139 environmental review process be followed. This recommendation is based on the possibility that FHWA funding or approval becomes anticipated during project development. A later decision to seek FHWA funding and/or a required FHWA action would trigger 23 U.S.C. 139 requirements; this possibly results in duplication and/or delay in the NEPA process should any of the FHWA/FTA environmental review process requirements not otherwise have been met.

Question 7: Which transportatie a combined FEIS/RODon projects must us?

Answer: To the maximum extent practicable, all transportation projects requiring an EIS under FHWA/FTA procedures shall seek to use a combined FEIS/ROD unless certain conditions apply (See MAP-21 section 1319(b)). To use combined FEIS/ROD documents "to the maximum extent practicable", FHWA/FTA considers factors during development of the Draft and Final EIS. Additional guidance on combining an FEIS/ROD is found in FHWA/FTA Interim Guidance on MAP-21 Section 1319 Accelerated Decisionmaking in Environmental Reviews in Appendix C.

Question 8: Do the provisions in 23 U.S.C. § 139 apply the same to all EIS documents, including Tier 1?

Answer: Yes, the 23 U.S.C. § 139 requirements apply to all EISs, including Tier 1 and project-specific EISs. The same elements, such as determining and inviting participating agencies, providing opportunities for public and participating agency involvement in defining the purpose and need and determining the range of alternatives [23 U.S.C. 139(f)], and collaborating with participating agencies in determining methodologies and the level of detail for the analysis of alternatives [23 U.S.C. 139(f)(4)(C)-(D)], are needed. The level of detail and analysis likely will differ depending on the focus of the EIS and the issues ripe for decision during the environmental review.

Question 9a: Must the FHWA/FTA environmental review process be followed for a NEPA review that was started prior to SAFETEA-LU enactment (August 11, 2005) and is being re-scoped or supplemented now?

Answer: The FHWA/FTA environmental review process is not required for projects with an NOI issued prior to August 11, 2005 when:

  1. the proposed Supplemental EIS (SEIS) does not involve the reassessment of the entire action (i.e., the SEIS is of limited scope), or when

  2. the EISs was under active development during the 8 months prior to August 11, 2005 and was re-scoped between the enactment of SAFETEA-LU and the enactment of MAP-21 (October 1, 2012) due to changes in plans or priorities, even if a revised NOI was published. "Active development" is evidenced by one or more of the following actions: documented meetings with members of the public or other agencies, correspondence with other agencies, or publication of project newsletters.

Generally, limited scope supplementation (see 23 CFR 771.130(f)) of a pre-SAFETEA-LU EIS would not trigger the need to comply with the environmental review process for that supplemental document. In addition, projects that were active within the 8 months prior to August 11, 2005 were covered by a grace period that excepted those projects from the FHWA/FTA environmental review process requirements until the enactment of MAP-21.

The FHWA/FTA environmental review process must be followed in all other cases for pre-SAFETEA-LU EISs when re-scoping (e.g. issuing a revised NOI) or reassessing the entire action through an SEIS or new EIS.

Question 9b: Must the FHWA/FTA environmental review process be followed in instances where a NEPA review was started or re-scoped after the date of enactment of SAFETEA-LU (August 11, 2005) but prior to the date of enactment of MAP-21 (October 1, 2012), and is being supplemented now?

Answer: For limited-scope supplemental documents/reviews, the following MAP-21 requirements of the FHWA/FTA environmental review process are not required, but may be used at the discretion of the lead agencies, for projects for which the NOI was published or projects that were re-scoped after the enactment of SAFETEA-LU but prior to the enactment of MAP-21:

  1. i. Requirement for participating and cooperating agencies to carry out obligations under other applicable law concurrently, and in conjunction, with reviews required under NEPA (See Question 19) Note, even though previously not required by law, conducting concurrent reviews is a best practice.

  2. ii. Requirement for lead agencies to receive concurrence on all schedules included in coordination plans (See Questions 41, 44, 45, 46, and 47).

The FHWA/FTA environmental review process must be followed when reassessing the entire action through an SEIS or new EIS.

PROJECT INITIATION

Question 10: How is the FHWA/FTA environmental review process for a transportation project initiated?

Answer: To initiate the FHWA/FTA environmental review process for a transportation project, the project sponsor must notify FHWA/FTA about the type of work, logical termini, length, and general location of the proposed project. The notification must also provide a list of any other Federal approvals (e.g., Section 404 permits) anticipated to be necessary for the proposed project, to the extent that such approvals are known at the outset [23 U.S.C. 139(e)(1)]. The FHWA/FTA are available to assist the project sponsor prior to notification to ensure it meets the requirements, as well as other project development requirements and policy, necessary to formally begin the NEPA process. The project sponsor may satisfy the project initiation requirement by submitting any relevant documents containing this information, including submittal of a draft notice of intent (NOI) for review and approval by FHWA/FTA for publication in the Federal Register announcing the preparation of a NEPA document for the project. Multiple project initiation notifications also may be consolidated (batched) into a multi-project notice of initiation if the lead agencies determine that the resources of the lead agencies and the timing for the projects support such practice.

Project sponsors may propose, and the FHWA/FTA may accept, programmatic approaches to satisfy the project initiation requirements of 23 U.S.C. & § 139. In any such proposal, the project sponsor should provide to FHWA/FTA in an approved document: (a) the information about each project (i.e., type of work, termini, length, general location, and the list of other Federal approvals) required for project initiation; and (b) an indication of when the FHWA/FTA environmental review process for each project will commence (i.e., when the staff, consultant services, financial resources, and leadership attention necessary to move the project's FHWA/FTA environmental review process forward will be committed). For example, a State that updates its Statewide Transportation Improvement Program (STIP) annually may propose to use it as the vehicle for project initiation by including in the STIP the project initiation information and the dates that each draft NOI will be delivered to FHWA and/or FTA, as applicable.

Question 11: When should the notification for project initiation occur?

Answer: The project initiation notification is an indication to the FHWA/FTA that the project sponsor is ready to proceed with the NEPA process and complete it in a timely manner. The timing of the notification is flexible, but for EISs, should occur not later than just prior to, or at the same time as, the submittal of the draft NOI. Notification should occur when (1) the proposed transportation project is sufficiently defined to provide the required information, and (2) the project sponsor is ready to complete the NEPA phase of project development by devoting appropriate staff, consultant services, financial resources, and leadership attention to the project. Consultation among the project sponsor, lead agencies, and other appropriate agencies prior to this notification is a good practice.

LEAD AGENCIES

Question 12: What agencies must serve as lead agencies in the FHWA/FTA environmental review process?

Answer: FHWA/FTA, as appropriate, must serve as the Federal lead agency or a joint Federal lead agency for a transportation project that seeks FHWA or FTA approvals or funding. [23 U.S.C. & §& § 101(b)(4)((B)(i) and 139(c)(1)(A); 49 CFR 1.81(a)(5)]. A State or local government entity that will be a direct recipient of 23 U.S.C. or chapter 53 of 49 U.S.C. Federal funds or approval for the project must serve as a joint lead agency. [23 U.S.C. 139(c)(3); 23 CFR 771.109(c)(2)].

For FHWA, the State Department of Transportation (DOT) is typically the direct recipient of project funds and approval, and therefore must serve as a joint lead agency along with FHWA. A local governmental agency that is the project sponsor but is not a direct recipient of Federal-aid funds may be invited to serve as a joint lead agency.

For FTA, the direct recipients of FTA projects funds are most often local or regional public transportation agencies, but may also include cities, Metropolitan Planning Organizations (MPO), State agencies, and State-owned corporations. The direct recipient serves with FTA, and potentially other Federal agencies, as a joint lead agency.

Question 13: Which other agencies may serve as joint lead agencies?

Answer: In addition to the required lead agencies, other Federal, State, or local governmental entities may act as joint lead agencies at the discretion of the required lead agencies in accordance with 40 CFR 1501.5. Agencies that become joint lead agencies by FHWA/FTA invitation assume the roles, responsibilities, and the authority of a lead agency under 23 U.S.C. & § 139.

Private entities, acting as sponsors of projects, cannot serve as joint lead agencies, and their role is limited to providing environmental or engineering studies and commenting on environmental documents.

Question 14: In the case of a transportation project for which the State DOT will receive and transfer Federal funds to a local governmental agency, which agencies are required to be a lead agency?

Answer: An applicant that is or is expected to be a direct recipient of Federal funds must serve as a joint lead agency with FHWA/FTA. In the example presented in this question, the direct recipient would be the State DOT. Local governmental entities that are sub-recipients of Federal funds, at the discretion of the Federal and non-Federal lead agencies, may be invited to be joint lead agencies, but are not required to serve. A sub-recipient that will actually be designing and constructing the project will normally be asked to serve as a joint lead agency with the FHWA and the State DOT.

When the State DOT and a sub-recipient are both serving with FHWA/FTA as joint lead agencies, the lead agencies must jointly decide which of them has responsibility for hiring needed contractors and managing the day-to-day conduct of the environmental review. Any of the lead agencies may assume this responsibility, with the concurrence of the other lead agencies. This allocation of responsibilities would take into account the capabilities and resources available to each of the lead agencies. When a sub-recipient agency serving as a joint lead agency assumes responsibility for day-to-day management of the FHWA/FTA environmental review process, the role of the State DOT, the direct recipient, is to provide active oversight and supervision of the local governmental agency's work. The State DOT remains legally responsible for the performance of the local governmental agency. Accordingly, FHWA/FTA expects the direct recipient to participate fully in the various decisions relegated to the lead agencies.

Question 15: How does the Federal lead agency requirement apply to the FHWA Federal Lands Transportation Program and the Federal Lands Access Program?

Answer: Section 139(c)(1)(A) of title 23, U.S. Code and Section 1.81(a)(5) of title 49 of the CFR establishes that FHWA must be the Federal lead agency for the FHWA environmental review of projects. FHWA must be the Federal lead agency or a joint Federal lead agency for any project requiring an EIS and FHWA approval, including Federal Lands Transportation Program and Federal Lands Access Program projects. Federal land management agencies are entitled to be joint lead agencies. FHWA and Federal land management agencies may enter into interagency agreements to clarify roles and responsibilities.

Question 16: What are the roles of lead agencies under the FHWA/FTA environmental review process in preparing EIS documents?

Answer: The lead agencies must perform the functions that they have traditionally performed in preparing an EIS in accordance with 23 CFR part 771 and 40 CFR parts 1500-1508. [23 U.S.C. 139(c)(6)]. The lead agencies must also identify and involve participating agencies [23 U.S.C. 139(d)]; develop coordination plans [23 U.S.C. 139(g)]; provide opportunities for public and participating agency involvement in defining the purpose and need and determining the range of alternatives [23 U.S.C. 139(f)]; and collaborate with participating agencies in determining methodologies and the level of detail for the analysis of alternatives [23 U.S.C. 139(f)(4)(C)-(D)].

Question 17: Who is the Federal lead agency for a multimodal project that requires approval from an Operating Administration other than FHWA/FTA, in addition to the FHWA/FTA approval?

Answer: When a project requires approvals, including funding approval, from FHWA/FTA and another U.S. DOT Operating Administration, the Operating Administrations together shall reach an agreement on lead, joint lead, and cooperating agency status. Section 139(c)(1)(B) authorizes the Secretary to designate a single Operating Administration to serve as the Federal lead agency.

COOPERATING/PARTICIPATING AGENCIES

Question 18: What is a cooperating agency, and what is the difference between a cooperating and participating agency?

Answer: CEQ's regulations implementing NEPA define "cooperating agency" as any Federal agency, other than a lead agency, that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed project or project alternative. [40 CFR 1508.5]. To establish a cooperating agency status, the Federal lead agency must request the participation of the other Federal agency, and the other Federal agency must accept such designation if it has jurisdiction by law and may accept such designation if it has special expertise. [40 CFR 1501.6]. Additionally, an agency may request the lead agency to designate it a cooperating agency.

A State or local agency of similar qualifications or, when the effects are on lands of tribal interest, an Indian tribal government, may, by agreement with the lead agencies, also become a cooperating agency. [40 CFR 1508.5]2

The roles and responsibilities of cooperating and participating agencies are similar, but cooperating agencies have a higher degree of authority, responsibility, and involvement in the environmental review process. A distinguishing feature of a cooperating agency is that the CEQ regulations (40 CFR 1501.6(b)(3)) permit a cooperating agency to "assume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the environmental impact statement concerning which the cooperating agency has special expertise." An additional distinction is that, pursuant to 40 CFR 1506.3(c), "a cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied." This provision is particularly important to permitting agencies who, as cooperating agencies, routinely adopt FHWA/FTA environmental documents [such as the U.S. Army Corps of Engineers (USACE) and U.S. Coast Guard].

Question 19: What is a participating agency, which agencies must be invited to be participating agencies, and how is this decided?

Answer: Federal, State, tribal, regional, and local government agencies that may have an interest in the project must be invited to serve as participating agencies. [23 U.S.C. 139(d)(2)]. Nongovernmental organizations and private entities cannot serve as participating agencies. Joint lead agencies should identify participating agencies as early as possible during the environmental review process, and should send out invitations at that time (or notification pursuant to a programmatic agreement).

Appropriate practices for inviting participating agencies may vary from project to project. To help identify potential participating agencies, FHWA recommends that each State develop a comprehensive and inclusive list of Federal, State, tribal, regional, and local agencies that have interest in transportation projects and potentially could have, as yet unknown, permitting authority, and/or special expertise. This list may vary depending on the location of proposed projects.

For FTA projects, public transportation agencies other than State DOTs should seek access to the list of agencies developed by the State DOT for the project area. Otherwise, FTA will work with the project sponsor to develop a list of potential participating agencies on a case-by-case basis.

Participating agency status may be established on a programmatic or project-by-project basis.

Question 20: What are the roles and responsibilities of participating agencies?

Answer: The roles and responsibilities of participating agencies include, but are not limited to:

Participating agencies must develop and implement administrative policy and procedural mechanisms to enable the agency to ensure completion of the FHWA/FTA environmental review process in a timely, coordinated and environmentally responsible manner. [23 U.S.C. 139(d)(7)(B)].

Accepting the designation as a participating agency does not indicate project support and does not provide an agency with increased oversight or approval authority beyond any applicable statutory authority. Resource constraints may make full participation by a participating agency difficult at times and communication with the lead agencies can address them with the timing and location of meetings, use of conferences calls, and other coordination methods.

Question 21: Who sends out the invitations to serve as participating agencies and when should the invitation be sent?

Answer: The FHWA and/or FTA (the Federal lead agency) through collaboration with any other joint lead agencies should invite potential participating agencies. For FTA, project sponsors should consult with the FTA Regional Office as to the process that will be used. Unless there is an agreement between the non-Federal lead agencies and a particular Indian tribal government regarding direct coordination, the Federal lead agency is responsible for inviting Indian tribal governments that may have an interest in the project.

The participating agency invitations should be sent prior to or approximately concurrent with the publication of the Notice of Intent (NOI) to prepare an EIS in the Federal Register, but prior to the initial interagency scoping meeting. Although most participating agencies should be known and identified prior to formally beginning the NEPA process, some participating agencies may be identified by the lead agencies later during the scoping process when their interests become known. As soon as an agency's interest is identified, the lead agencies should invite it to become a participating agency.

Question 22: What needs to be included in the invitation sent to potential participating agencies?

Answer: The invitation should be in the form of a hardcopy or email letter and must include a basic project description and map of the project location. The invitation should be tracked to ensure delivery. As with all correspondence, a copy should be placed in the project file. The project description may be included in scoping materials enclosed with the letter, or a more detailed project description and scoping materials may be provided on the project website with a web address provided in the letter. The invitation should clearly request the involvement of the agency as a participating agency and should state the reasons why the project may be of interest to the invited agency. Lead agencies should bear in mind that invited agencies may have obligations under several authorities and the invitation should reflect all areas of jurisdiction of the invited agency. The invitation should identify the lead agencies and describe the roles and responsibilities of a participating agency. The invitation must specify a deadline for responding to the invitation. [23 U.S.C. 139(d)(2)]. The deadline for responses is normally no more than 30 days, as stipulated in 23 U.S.C. & § 139. This deadline, or any other related to the environmental review process, may be extended by the lead agency for good cause (in the judgment of the participating agency) or shortened with the agreement of the lead agency, the project sponsor, and all participating agencies.(23 U.S.C. 139(g)(2)(B)). If needed, the issue resolution process is available to address issues related to deadlines. See Appendix C for FHWA/FTA examples of invitation letters.

Question 23: What is involved in accepting or declining an invitation to be a participating agency?

Answer: A Federal agency invited to participate is designated a participating agency unless the agency declines the invitation by the specified deadline. [23 U.S.C. 139(d)(3)]. If a Federal agency chooses to decline, the agency must do so in writing (electronic or hardcopy), indicating that the agency (1) has no jurisdiction or authority with respect to the project, (2) has no expertise or information relevant to the project, and (3) does not intend to submit comments on the project. [23 U.S.C. 139(d)(3)]. If the Federal agency's response does not state the agency's position in these terms, then the agency will be treated as a participating agency. A State, tribal, or local agency is expected to respond affirmatively to the invitation to be designated as a participating agency. If the State, tribal, or local agency fails to respond by the stated deadline or declines the invitation, regardless of the reasons for declining, the agency will not be considered a participating agency. If a potential cooperating Federal agency declines being a participating agency and indicates items (1) and (2) above in declining the participating agency invitation, that Federal agency does not meet the criteria to be a cooperating agency.

Question 24: What happens if an agency declines to be a participating agency, but new information becomes available later in the process that indicates that the agency should become a participating agency?

Answer: Revisions made to 23 U.S.C. & § 139 by MAP-21 emphasize that a participating agency shall comply with the requirements in the statute. Therefore, it is incumbent upon the participating agencies to provide meaningful input at appropriate opportunities.

If an agency declines an invitation in accordance with 23 U.S.C. 139(d)(3) but new information indicates that the agency does indeed have authority, jurisdiction, acknowledged special expertise, or information relevant to the project, then the lead agencies should immediately extend a new invitation in writing to the agency to become a participating agency. The lead agencies also should consider whether this new information affects previous decisions on the project. If the agency agrees to be a participating agency, then the lead agencies should consult with that new participating agency in determining whether the new information substantially affects previous decisions. It may be necessary to reconsider previous decisions if it is probable that the input of the new participating agency would substantially change the decision. An agency that declines an invitation to be a participating agency ("declining agency") might forego the opportunity to provide input on several project issues such as the development of purpose and need, the range of alternatives, and methodologies. The declining agency also might forgo the opportunity to consult and concur on the schedule, if included in the coordination plan, for completing the environmental review process for the project, depending on timing of these actions.

If an invited agency declines to be a participating agency but the lead agencies think the invited agency meets the criteria of a cooperating agency, that is, having jurisdiction or authority over the project and will be required to make a decision about the project, or has acknowledged special expertise or information relevant to the project, then the lead agencies should work immediately to resolve the disagreement about participation. If informal procedures prove inadequate to reach a mutually satisfactory agreement on participation, then the lead agencies should elevate the issue within the agencies or pursue the statutory issue resolution process (23 U.S.C. 139(h)).

With the additional information available from the completion of technical studies or the Draft EIS (DEIS) itself, participating agencies may have concerns that were not evident during earlier commenting opportunities. Lead agencies should consider comments on previously considered issues if those comments derive from new information. However, participating agencies should understand that revisiting issues that lead agencies had previously considered resolved will occur only if the new information is at substantial variance with what was presented previously and pertains to an issue of sufficient magnitude and severity to warrant reconsideration.

If an agency declines an earlier invitation to become a participating agency and later wants to participate, then the agency should be invited to become a participating agency, recognizing that previous decisions are unlikely to be revisited.

PURPOSE AND NEED

Question 25: Who is responsible for developing the project's NEPA purpose and need?

Answer: The lead agencies are responsible for the development of the project's purpose and need statement. If a participating agency has permit or other approval authority over the project, the lead agencies and that agency should attempt to develop jointly a purpose and need statement that can be utilized for all applicable environmental reviews and other requirements. Per U.S. DOT guidance on "Purpose and Need" issued July 23, 2003, based on CEQ guidance provided to Secretary Norman Mineta on May 12, 2003, other Federal agencies should afford substantial deference to the FHWA/FTA's articulation of the purpose and need for a transportation action.

General direction on developing concise and understandable purpose and need statements is found in FHWA/FTA Joint Guidance issued on July 23, 2003, and the report, "Improving the Quality of Environmental Documents", developed through a cooperative initiative between FHWA, American Association of State Highway Transportation Officials (AASHTO), and the American Council of Engineering Companies (ACEC).

Question 26: How does the lead agency satisfy the requirement in 23 U.S.C. & § 139 for an "opportunity for involvement" by participating agencies and the public in defining the project purpose and need?

Answer: The lead agencies can determine on a case-by-case basis the appropriate way to provide a meaningful opportunity for involvement by participating agencies and the public, taking into account factors such as the overall size and complexity of the project. The form and timing of that involvement is flexible, and the lead agencies should coordinate beforehand and agree on when and in what form the participating agency and public involvement will occur. The opportunity for involvement must be publicized and may occur in the form of public workshops or meetings, solicitations of verbal or written input, conference calls, postings on web sites, distribution of printed materials, or any other involvement technique or medium with agreement of the Federal lead agencies. The project's coordination plan establishes the timing of the involvement opportunities, the form they will take, and the timing of the decision on purpose and need. The level of involvement on projects may also be specified through interagency agreements.

The opportunity for involvement must be provided prior to the lead agencies' decision regarding the purpose and need that will be incorporated into the NEPA document [23 U.S.C. 139(f)(2)]. The lead agencies' decision on purpose and need and their consideration in making that decision should be documented and shared with participating agencies to ensure that any disputes are surfaced as early as possible.

ALTERNATIVES ANALYSIS

Question 27: Who is responsible for developing the range of alternatives?

Answer: The lead agencies are responsible for the development of the range of alternatives for any document which the lead agency is responsible for preparing for the project. In developing the alternatives, the lead agencies must provide opportunities for the involvement of participating agencies and the public, and must consider the input provided by these groups (23 U.S.C. & § 139(f)(4)). If a participating agency has permit or other approval authority over the project, that agency should provide input on the range of alternatives that can be utilized for all applicable environmental reviews and other requirements. This coordination is especially important for various permits, such as the Clean Water Act Section 404, Coast Guard bridge permits, and other individual permit applications, and ESA Section 7 consultation.

General direction on developing a concise and understandable range of alternatives is found in the report, "Improving the Quality of Environmental Documents".

Question 28: How is the 23 U.S.C. & § 139 requirement for an "opportunity for involvement" by participating agencies and the public in defining the range of alternatives satisfied?

Answer: As early as practicable, the lead agencies must give participating agencies and the public the opportunity for meaningful involvement in defining the range of alternatives. Lead agencies determine the level of involvement on a case-by-case basis, taking into account factors such as the overall size and complexity of the project. The form and timing of that involvement is flexible, and the lead agencies should coordinate beforehand and agree on when and in what form the participating agency and public involvement will occur. The opportunity for involvement must be publicized and may occur in the form of public workshops or meetings, solicitations of verbal or written input, conference calls, postings on web sites, distribution of printed materials, or any other involvement technique or medium with agreement of the Federal lead agency or agencies. The project's coordination plan will establish the timing and form of the required involvement opportunities and the timing of the decision on the range of alternatives to be evaluated in the NEPA document. The required involvement opportunities for purpose and need and range of alternatives may be concurrent or sequential. If the opportunities are concurrent, and if the purpose and need statement is substantially altered as a result of the public and participating agency involvement, then the lead agencies must consider whether an opportunity for involvement in the range of alternatives that derive from the new purpose and need is warranted.

The opportunity for involvement must be provided prior to the lead agencies' decision regarding the range of alternatives to be evaluated in the NEPA document [23 U.S.C. 139(f)(4)(B)]. The lead agencies' decision on the range of alternatives and their consideration in making that decision should be documented and shared with participating agencies to ensure that any issues of concern are identified as early as possible.

Question 29: What requirements are included in 23 U.S.C. & § 139 for developing the methodologies for the analysis of alternatives?

Answer: The lead agencies must determine, in collaboration with the participating agencies (23 CFR 771.109), the appropriate methodologies to be used and the level of detail required in the analysis of alternatives. Accordingly, the lead agencies must work cooperatively and interactively with the relevant participating agencies on the methodology and level of detail to be used in a particular analysis. Consensus is not required, but the lead agencies must consider the views of the participating agencies with relevant interests before making a decision on a particular methodology. Well-documented, widely accepted methodologies that are routine and well established, such as those for noise impact assessment and Section 106 (historic preservation) review, should require minimal collaboration. The project's coordination plan will establish the timing and form of the required collaboration with participating agencies in developing the methodologies. See Questions 38-47.

The lead agencies should communicate decisions on methodology to the participating agencies with relevant interests or expertise. The lead agencies may define a comment period based on the methodology utilized. At the discretion of the lead agencies, methodologies may be developed incrementally. The initial methodology developed during scoping may be refined after further analysis and collaboration. Unless a participating agency objects to the selected, duly communicated methodology, the lead agencies can reasonably assert that comments on methodology received much later in the process (e.g., after issuance of the DEIS) are not timely. Exceptions should be based on significant and relevant new information or circumstances that are materially different from what was foreseeable at the time that the lead agencies made and communicated the decision on methodology.

The collaboration with a participating agency on the methodologies and level of detail can be accomplished on a project-by-project, program, or region-wide basis, or for special classes of projects (e.g., all projects affecting a particular watershed), as deemed appropriate by the lead agencies. If an approach other than project-by-project collaboration is used, however, the participating agencies with an interest in that methodology must be made aware at the outset of the collaboration that the lead agencies intend to develop a comprehensive methodology to be applied to a program or class of projects or to a region. Once a methodology has been determined for a region, program, or class of project, the lead agencies can apply the methodology to qualifying projects without project-specific collaboration if the relevant participating agencies and lead agencies have entered into a programmatic agreement to that effect. If no such agreement is in place, the lead agencies still may apply that methodology to a qualifying project, but project-specific collaboration is necessary. The methodology used by lead agencies should be consistent with any methodology established by statute or regulation under the authority of another Federal agency.

The lead agencies may revise a methodology at any time, but collaboration with the participating agencies with an interest in that methodology is needed if the revision substantively affects the outcome of the analysis. When there is a written programmatic agreement on a methodology that applies to the project, such agreement is binding only on the parties to the agreement. Participating agencies not party to that agreement with an interest in the methodology in question retain the right to collaborate on that methodology for the particular project. The results of the collaboration on methodologies and level of detail should be communicated to participating agencies in written form so that any objections can be raised as early as possible.

After the lead agencies have collaborated with the participating agency on the methodologies and level of detail, the lead agencies will make the decision on the methodology and level of detail to be used while considering the requirements of other environmental laws. The lead agencies' decisions on methodologies and their considerations in making those decisions should be documented and shared with participating agencies to ensure that any issues of concern are raised as early as possible.

PREFERRED ALTERNATIVE

Question 30: When should the preferred alternative be identified?

Answer: FHWA/FTA strongly recommends that the preferred alternative be identified in the DEIS in order to facilitate issuing a combined FEIS/ROD document "to the maximum extent practicable." (See Appendix C for combined FEIS/ROD guidance). Identification of a preferred alternative requires sufficient scoping and analysis of reasonable alternatives to support it. The scoping process is complete when the lead agencies have provided the public and participating agencies with the opportunity to be involved in the development of purpose and need and the range of alternatives, and considered any input or comments received. After completion of scoping and a preliminary analysis of alternatives, the Federal lead agency will decide whether identification of a preferred alternative in the DEIS is appropriate.

Question 31: How is the preferred alternative officially identified?

Answer: The preferred alternative should be identified by FHWA/FTA in either the DEIS or the FEIS. FHWA/FTA strongly recommend identifying the preferred alternative in the DEIS to the maximum extent practicable in order to comply with the statutory requirements for issuance of a combined FEIS/ROD document. (See Appendix C for combined FEIS/ROD guidance.) In situations where a preferred alternative cannot be identified in the DEIS, FHWA/FTA should provide an opportunity for informed assessment related to impacted resources and environmental concerns of the preferred alternative prior to issuance of a combined FEIS/ROD document. Once a preferred alternative is officially identified, subsequent NEPA documents should disclose that preference.

When the preferred alternative is not identified in the DEIS or through a separate notice, the preferred alternative must be identified in the FEIS in accordance with CEQ regulations (40 CFR 1502.14(e)).

If the lead agencies decide to follow the environmental review process for an EA, then the preferred alternative is identified in the EA or FONSI approved by FHWA/FTA.

Question 32: Under what circumstances can a preferred alternative be developed to a higher level of detail than other alternatives being considered?

Answer: Providing a higher level of detail for a proposal or only one alternative (compared to the other alternatives) could run the risk of biasing the environmental analysis or introducing the perception of bias. The CEQ regulations indicate that Federal agencies must devote substantial treatment to each alternative so that reviewers may evaluate their comparable merits. 40 CFR 1502.14. However, 23 U.S.C. 139 (f)(3)(D) permits the development of a higher level of detail for the preferred alternative to (1) facilitate the development of mitigation measures or (2) facilitate concurrent compliance with other applicable laws, as long as the lead agency determines that the development of such higher level of detail will not prevent the agency from making an impartial decision as to whether to accept another alternative being considered.3 Developing an alternative to a higher level of detail may be necessary for permit discussions, interagency agreements related to environmental requirements, or identifying appropriate mitigation.

Question 33: Who can initiate a request for development of a preferred alternative to a higher level of detail than other alternatives under evaluation, and how is that done?

Answer: Normally, the non-Federal lead agency, and if applicable, with the project sponsor, will initiate the request to develop the preferred alternative to a higher level of detail. The request should be made by letter (electronic or hard copy) from the official authorized by the requesting agency to sign the EIS, or that official's authorized delegate, to the FHWA Division Office or FTA Regional Office, and to the appropriate offices of the other lead agencies, if any. The request may be included in a letter requesting the official identification of a preferred alternative, if appropriate.

The letter should request the concurrence of the other lead agencies in developing the preferred alternative to a higher level of detail. The request should provide the following information:

FHWA/FTA should consider factors that could negatively affect the environmental review process (see Question 35).

Question 34: Who decides whether the preferred alternative can be developed to a higher level of detail than the other alternatives?

Answer: It is the Federal lead agency who decides whether the preferred alternative can be developed to a higher level of detail. That decision must ensure that: (1) it will not prevent the lead agencies from making an impartial decision on the appropriate course of action, and (2) it is necessary to facilitate the development of mitigation measures or concurrent compliance with other Federal environmental laws. The lead agencies must agree that a particular alternative is the preferred alternative and that the relevant conditions are met, before developing that alternative in greater detail.

Question 35: What considerations might be relevant to the required determination about future impartiality?

Answer: The lead agencies should identify and consider all factors relevant to the project that would prevent them from making impartial decisions about alternatives in the future. The factors will vary from project to project. Considerations that may be relevant to impartiality include the following:

The key question is whether developing the preferred alternative more fully would cause an imbalanced NEPA comparison among alternatives because of time, money, or energy expended. The Federal lead agency must determine that the decision on the choice of alternative is not prejudiced by the additional design work on the preferred alternative.

Question 36: Should the development of the preferred alternative to a higher level of design detail affect the presentation of the alternatives in the NEPA document?

Answer: Section 139 of 23 U.S.C. does not change the standard practices relating to the evaluation and presentation of alternatives. This includes disclosing the rationale for the identification of a preferred alternative. When the preferred alternative is developed at a higher level of detail, the lead agencies should take particular care to ensure that the evaluation of alternatives reflects the required rigorous and objective analysis (40 CFR 1502.14(a)). Each reasonable alternative must be explored at a sufficient level of detail to support a reasoned choice. As always, the comparison of alternatives must be done in a fair and balanced manner. If there are substantial differences in the levels of information available for the alternatives, it may be necessary to apply assumptions about impacts or mitigation to make the comparisons fair.

For example, if mitigation is designed only for the preferred alternative, then assumptions that comparable measures can be taken to mitigate the impacts of the other alternatives should be included in the comparative analysis of the alternatives even though those other alternatives are not designed to the same level of detail. This comparison of mitigation across alternatives will ensure that the preferred alternative is not presented in an artificially positive manner as a result of its greater design detail. The NEPA document should disclose the additional design work and the changes in impacts arising out of that design detail.

Question 37: Are there limitations on how far a preferred alternative can be developed before a NEPA determination?

Answer: In accordance with Section 139 of 23 U.S.C., the development of the preferred alternative to a higher level of detail than other NEPA alternatives may not proceed beyond that level necessary to develop mitigation or to comply with other applicable environmental laws. The degree of additional development needed and allowable will depend on the specific nature of the impact being mitigated or resource being protected, or the level of information required to comply with other applicable laws.

PART 2 PROCESS MANAGEMENT

Part 2 of the guidance focuses on sections of 23 U.S.C. & § 139 that address logistics of managing the environmental review process. It includes guidance on developing coordination plans and schedules, requesting additional technical assistance available for complex projects, undertaking concurrent reviews, identifying and resolving issues of concern, ensuring compliance with mitigation commitments, adopting and using environmental documents, and providing or receiving funding for activities related to the environmental review process.

To eliminate repetitive discussions of the same issues between relevant Federal agencies and State resource agencies, State Departments of Transportation, and Indian Tribal governments, the use of programmatic approaches to conduct environmental reviews is encouraged. Programmatic approaches that have been implemented previously by FHWA\FTA include, but are not limited to:

A coordination plan addresses public and agency participation, and may include a schedule for conducting the FHWA/FTA environmental review process. This guidance identifies the factors that should be considered in developing the coordination plan and establishing a schedule. The section on coordination and schedules is closely related to other sections of the guidance, particularly the questions on participating agencies, purpose and need, the range of alternatives, and analysis methodologies, all of which should be read in conjunction with each other.

On the topic of concurrent reviews, 23 U.S.C. & § 139 indicates that each Federal agency participating in the environmental review process shall carry out its obligations under other applicable laws concurrently, and in conjunction with the review required under NEPA unless, in the agency's judgment, doing so would impair the ability of the Federal agency to carry out its statutory obligations. Each Federal agency also must develop and implement the necessary tools and procedures to ensure that environmental reviews of transportation projects are undertaken by the agency in a timely, coordinated, and environmentally responsible manner.

Section 139 of 23 U.S.C., also addresses how the Federal agencies involved in a project should identify and resolve issues of concern. Lead agencies, for example, must make adequate information available to participating agencies so that they can identify potential issues of concern as early as practicable. If any issue that may delay completion of the environmental review process or result in denial of a permit cannot be resolved among the lead and participating agencies, 23 U.S.C. & § 139 provides procedures for resolution of that issue. These procedures include two processes: (1) convening of a meeting not later than 30 days after the closure of the DEIS public comment period with all parties to ensure project deadlines will be met, and (2) escalating unresolved issues that could delay project environmental review. 23 U.S.C. & § 139 also prescribes financial penalties for Federal agencies with jurisdiction that fail to make approvals or decisions under any Federal law relating to the project. (23 U.S.C. 139(h)(6))

Finally, 23 U.S.C. & § 139 describes the circumstances under which a State agency may provide Federal funding to agencies involved in the environmental review process. This provision also specifies that when State agencies provide Federal funds to Federal agencies, they must establish the projects and priorities to be addressed by the use of those funds. Additional information related to coordination and funding can be found in U.S. DOT Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities.

COORDINATION AND SCHEDULE

Question 38: Who is responsible for developing the coordination plan for public and agency participation?

Answer: Section 139(g) of Title 23, U.S. Code requires that the lead agencies establish a plan for coordinating public and agency participation and comment during the environmental review process. Lead agencies are encouraged to consult with the participating agencies on the coordination plan because key elements of the coordination plan could set expectations that require a commitment of resources by the participating agencies.

Question 39: When should the coordination plan be developed?

Answer: Coordination plans are developed early in the scoping phase of the environmental review process after project initiation. The initial coordination plan may be revised by the lead agencies as needed (e.g., additional participating agencies are identified, issues become clear). Many elements of a coordination plan may be re-utilized from project to project; or those elements may be addressed programmatically in a separate agreement (and referenced in the coordination plan) for greater efficiency. The coordination plan may be incorporated into a memorandum of understanding. A coordination plan for an individual project may be established separately from any programmatic coordination plan, or it may incorporate one or more programmatic coordination plans established by the lead agencies to govern coordination with one or more participating agencies. The coordination plan must be made available to the public and participating agencies to provide transparency and allow for any issues of concern to be raised as early as possible.

Question 40: What should be included in a coordination plan?

Answer: The coordination plan should outline the following: (1) how the lead agencies have divided the responsibilities for compliance with the various aspects of the FHWA/FTA environmental review process; and (2) how the lead agencies will provide the opportunities for input from the public and other agencies, in accordance with applicable laws, regulations, and policies (including the use of electronic communications and social media, as appropriate). It should not be used as the means to provide an opportunity for public and agency input into the project purpose and need and alternatives considered. The plan may include a project schedule and also should identify coordination points, such as:

Question 41: Are the lead agencies required to develop a project schedule as part of the coordination plan?

Answer: Section 139(g)(1)(B) of title 23, U.S. Code encourages, but does not require, the inclusion of a project schedule in the coordination plan. CEQ regulations (40 CFR 1501.8) also encourage the establishment of timeframes. Project schedules generally aid in expediting environmental review process, improve project management, and force expectations for all parties involved.

Project schedules are optional for FTA projects, but are frequently used to help manage the environmental process. Project schedules for FTA projects are normally not included in the coordination plan to allow for greater flexibility in developing and revising those schedules.

The FHWA expects the development of a schedule for all EA and EIS projects processed under the environmental review process. When the lead agencies include a project schedule in the coordination plan, that schedule must be prepared in consultation with, and with the concurrence of, the participating agencies and the project sponsor. A project schedule that is not included in the coordination plan for FHWA projects, should still be prepared in consultation with each participating agency, the project sponsor (if not the lead agency), and the State, even though concurrence in this schedule by the participating agencies is not required. Any schedule, whether included as part of the coordination plan or not, should be made available to the public and participating agencies.

Question 42: What level of detail and factors should be considered when creating a schedule as part of a coordination plan?

Answer: The schedule that will be part of the coordination plan should include decision-making dates for each agency approval, such as permits, licenses, and other final decisions, consistent with statutory and regulatory requirements, in order to encompass the full FHWA/FTA environmental review process. In addition, the coordination plan should specify all anticipated opportunities for review and comment by the public and participating agencies. Section 139 of title 23, U.S. Code allows the lead agencies to determine how detailed the schedule should be and whether to use specific dates or durations. Establishing a schedule involves consideration of the following factors:

The schedule needs to allow adequate time to complete appropriate impact assessments and engineering studies, gather and consider public and participating agency comments and balance this input in the decision-making process. Other factors that the schedule should accommodate include public controversy and the extent to which relevant information about the project or its impacts are already known and need to be refined or updated.

Question 43: How should the lead agencies obtain concurrence from the participating agencies on the schedule to be included in the coordination plan?

Answer: If a project schedule is being developed for inclusion in the coordination plan, the lead agencies should engage all appropriate resource and regulatory agencies (those that have a regulatory decision to be made or have special expertise that is required) in discussions regarding the timeframes needed for their agencies' statutory required reviews and decisions on approvals, permits or licenses.

FHWA/FTA may establish a schedule as part of the coordination plan only with the concurrence of the project sponsor and all participating agencies [23 U.S.C. 139(g)(1)(B)(i)]. The appropriate participating agencies must be provided a schedule for their concurrence if the schedule is developed for the coordination plan. [23 U.S.C. 139(g)]. One possible process for doing so would involve the lead agencies providing the draft schedule to participating agencies for up to 30 days for review and comment (23 U.S.C & § 139 (g)(2)(B)), taking comments into account, and providing the project schedule that results to the participating agencies for concurrence. The lead agencies would then notify the participating agencies that a lack of response within the concurrence time frame will be interpreted by FHWA/FTA as concurrence with the project schedule. The joint lead agencies will ensure the participating agencies receive the proposed schedule. Another approach would be for the lead agencies to call a meeting, in person or through webinars or other technology, to collaborate on developing a schedule that would then be sent around for a short, set period of time for any participating agency to voice an objection.

If any agency has concerns about the schedule timeframes, they need to make them known and discuss them with the lead agencies as soon as possible. The final schedule should reflect all agreed upon changes by all agencies involved.

Question 44: What deadlines have been established under the FHWA/FTA environmental review process for the public and participating agencies to submit comments?

Answer: The DEIS comment period must not exceed 60 days, unless a different comment period is established by agreement of the lead agencies, the project sponsor, and all participating agencies, or the Federal lead agency extends the deadline for good cause. [23 U.S.C. 139(g)(2)]. The DEIS comment period begins on the date that the Environmental Protection Agency (EPA) publishes the notice of availability of the DEIS in the Federal Register.

For any other point within the FHWA/FTA environmental review process at which the lead agencies seek comment by the public or participating agencies, the lead agencies must establish a deadline for comment of not more than 30 days, unless a different comment period is established by agreement of the lead agencies, the project sponsor, and all participating agencies. [23 U.S.C. 139(g)(2)]. If a shorter comment period is appropriate based on the volume and complexity of the materials to be reviewed, then a less than 30-day comment period may be provided. The comment period is measured from the date the materials are available. If a longer comment period is appropriate, the Federal lead agency has the authority to extend the deadlines for good cause.

Question 45: If a schedule is established as part of the coordination plan, can it be modified?

Answer: The lead agencies may modify the schedule that has been established as part of the coordination plan. The lead agencies may lengthen the schedule for good cause. The schedule may be shortened only with the concurrence of the participating agencies. Any changes in the schedule and/or necessary concurrences should be documented.

Question 46: How and to whom must the lead agencies make available the schedule as part of the coordination plan?

Answer: If a project schedule is prepared and is included in the coordination plan, that schedule must be provided to all participating agencies and the project sponsor, and must be made available to the public. [23 U.S.C. 139(g)(1)(E)]. The method by which the schedule is made available to the public is flexible. It may be posted on a project web site, distributed to recipients on a well-advertised project mailing list, or handed out at public and agency coordination meetings. If the schedule is modified, then the modified schedule must be shared with the public and other participants as described above. [23 U.S.C. 139(g)(1)(E)]

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Question 47: What is the consequence of not adhering to the schedule established as part of the coordination plan?

Answer: Failure by the lead agencies to adhere to the schedule may invalidate the original schedule and require a revised schedule to be developed. In that case, the lead agencies should propose a revised schedule and allow sufficient time (but not more than 30 days except for good cause) for review and comment. The lead agencies should take comments into account and provide the revised project schedule to the participating agencies for concurrence. Lead agencies should allow sufficient time (but not more than 30 days except for good cause) for this concurrence. Lead agencies must notify the participating agencies that a lack of response within the concurrence time frame will be interpreted by FHWA/FTA as concurrence with the project schedule. Failure to meet schedule deadlines by participating agencies for decisions is a trigger for the issue resolution process under 23 U.S.C. 139(h). (See question 54 and answer for more information.)

ENHANCED TECHNICAL ASSISTANCE FOR COVERED PROJECTS

Question 48: What projects are eligible for enhanced technical assistance under 23 U.S.C. & § 139(m)?

Answer: Projects eligible for enhanced technical assistance under 23 U.S.C. & § 139 are referred to as "covered" projects. A covered project is a project with an ongoing EIS process and for which at least 2 years have elapsed since the publication of the NOI and for which a ROD has not been issued. Enhanced technical assistance for covered projects was effective as of October 1, 2012, but it can apply to those projects with NOIs published prior to October 1, 2012. At any time after October 1, 2012, if the NOI for a project is at least two years old, the project sponsor or Governor may request assistance under this provision.

Question 49: What enhanced technical assistance is available, upon request, for a covered project?

Answer: At the request of a project sponsor or Governor of a State in which a covered project is located, FHWA/FTA is required to provide enhanced technical assistance for any outstanding issues and project delay. This assistance may include:

  1. Providing additional staff, training, and expertise;
  2. Facilitating interagency coordination;
  3. Promoting more efficient collaboration; and
  4. Supplying specialized onsite assistance.

Question 50: What are the requirements for a schedule set for the completion of a covered project that receives enhanced technical assistance?

Answer: FHWA/FTA must establish a scope of work that describes what actions will be taken to resolve outstanding issues and project delays for covered projects that receive enhanced technical assistance under 23 U.S.C. 139. [23 U.S.C. 139(m)(3)]. Additionally, FHWA/FTA must establish and meet a project schedule for the completion of any permit, approval, review, or study required for the covered project by a date that is not later than four years after the date on which the NOI for the covered project was issued. [23 U.S.C. 139(m)(3)(B)]. This schedule must be concurred upon by CEQ, all participating agencies for the project, and the State in which the covered project is located or the project sponsor, as appropriate. In any instance where it is impracticable to set a date for a permit, approval, review, or study of less than four years after the NOI for the covered project, then the lead agencies, with concurrence of the parties just noted, will set a schedule for completion as soon as practicable.

Question 51: What is the consequence of not adhering to the schedule established as part of the request for enhanced technical assistance?

Answer: Failure by the lead agencies to adhere to the schedule may invalidate the original schedule and require a revised schedule to be developed. If a revised schedule is needed, FHWA/FTA should follow the coordination and concurrence process described in Question 43. Failure to meet schedule deadlines by participating agencies decisions is a trigger for the issue resolution process under 23 U.S.C. 139(h). (See question 54 and answer for more information.) Failure by a Federal agency to render a required decision by an applicable deadline may result in financial penalties in accordance with 23 U.S.C. 139(h)(6). (See question 56 and answer for more information.)

CONCURRENT REVIEWS

Question 52: How must each Federal agency carry out its obligations under other Federal laws in relationship to the FHWA/FTA environmental review process?

Answer: Section 139(d)(7) of title 23, U.S Code, directs each Federal participating and cooperating agency to carry out its obligations under other Federal laws concurrently and in conjunction with the FHWA/FTA environmental review process, unless doing so would impair
the ability of the Federal agency to conduct needed analysis or otherwise carry out those
obligations. Other Federal laws include Section 404 of the Clean Water Act, National Historic Preservation Act, and the Endangered Species Act that may include developing mitigation measures and/or facilitating concurrent compliance with these environmental laws with a higher level of design if a Preferred Alternative has been officially identified by FHWA/FTA.  (See question 32 and answer for more information.) Additionally, all participating and cooperating agencies will formulate and implement mechanisms to ensure the completion of the FHWA/FTA environmental review process in a timely, coordinated, and environmentally responsible manner. For example, this higher level of design could facilitate a NEPA/404 merger agreement concurrence point where a preliminary Least Environmentally Damaging Preferred Alternative determination is made by USACE prior to the FHWA NEPA determination. Another example would be the U.S. EPA completing their CAA Section 309 review prior to issuance of the FHWA/FTA combined FEIS/ROD.

The current Memorandum of Agreement (MOA) between the U.S. Coast Guard (USCG) and the FHWA is an example of a concurrent environmental review process implemented to facilitate bridge planning and permitting.

Issue Resolution

Question 53: What happens when an issue arises that needs resolution in order to proceed with the FHWA/FTA environmental review process?

Answer: When there is disagreement on important issues of concern, FHWA/FTA will decide whether the most effective approach would be to work out the disagreement in either a formal or informal way. In 2006, U.S. DOT issued revised guidance to facilitate the resolution of interagency disputes at lower levels of decision-making.  The methods presented in that guidance, developed by FHWA and the U.S. Institute for Environmental Conflict Resolution (USIECR) on behalf of U.S. DOT, Collaborative Problem Solving: Better and Streamlined Outcomes for All, remain valid and should be considered by the lead agencies when appropriate. FHWA/FTA support the implementation of the principles and practices identified in the Memorandum on Environmental Collaboration and Conflict Resolution, issued by the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) on September 7th, 2012.

Section 139(h) of Title 23 U.S. Code provides a formal process for resolving issues that may delay the FHWA/FTA environmental review process, or may result in denial of approvals required for the project under other applicable laws. [23 U.S.C. 139(h)].

Question 54: What is the accelerated issue resolution and referral process in 23 U.S.C. 139(h)?

Answer: The accelerated issue resolution and referral section of 23 U.S.C. 139(h) describes two distinct issue resolution processes:

Under section 139(h)(4), FHWA/FTA may convene a meeting no later than 30 days after the DEIS public comment period closes with the project sponsor, lead agency, resource agencies, and any relevant State agencies to ensure all parties are on schedule to meet deadlines for decisions on the project (compared to either the schedule developed as part of the coordination plan or other deadlines set by the lead agencies in consultation with the project sponsor and other relevant agencies). [23 U.S.C. 139(h)(4)(B)]. If the relevant agencies cannot provide reasonable assurances that deadlines will be met, FHWA/FTA may initiate the issue resolution and referral process under section 139(h)(5) at that time or at any time during the environmental review process.

Section 139(h)(5) establishes an issue resolution and referral process that progressively escalates unresolved issues from a Federal agency of jurisdiction, project sponsor, or Governor, to FHWA/FTA (Federal lead agency), to the Secretary, to the CEQ, and finally to the President, as necessary. The scope of the process is limited to issues that could delay completion of the environmental review process or result in denial of any approvals required for the project under applicable laws. [23 U.S.C. 139(h)(5)(A)(ii)]. The issue resolution and referral process is distinct from the interim decision-making process; the Section 139(h)(4) process is not a precondition for the initiation of the Section 139(h)(5) issue resolution process. See below for flowcharts that show the 23 U.S.C. 139(h)(4) and 139(h)(5) processes.

flowarchart that describes the interim decision process for achieving accelerated decision making 23 USC 139(h)(4)

 

flowchart that descibes the accelerated issue resolution and referral decision making process 213 USC 139(h)(5)

Question 55: Who can initiate the Section 139(h)(5) issue resolution process?

Answer: A Federal agency of jurisdiction, a project sponsor, or the Governor of a State in which the project is located may request an issue resolution meeting to be conducted by the Federal lead agency (FHWA/FTA). The Federal lead agency also may initiate the Section 139(h)(5) issue resolution process.

Question 56: What are the financial penalties for Federal agencies that do not make decisions on transportation projects within 180 days of a signed FHWA / FTA ROD or receipt of a complete application, or scheduled developed under the enhanced technical assistance section(under 23 U.S.C. 139)?

Answer: Section 139(h)(6) establishes financial penalties for Federal agencies of jurisdiction that fail to make a decision on an approval required for a project by the latter of (1) 180 days after the date on which the application for the permit, license, or approval, is complete, or (2) 180 days after the date on which the Federal lead agency issues a decision on the project under NEPA, whichever is later. FHWA/FTA issued separate guidance with questions and answers on the financial penalty provisions in 23 U.S.C. 139(h)(6).

Question 57: How does the issue resolution and referral process in 23 U.S.C. 139(h)(5) relate to the CEQ referral process in 40 CFR part 1504?

Answer: The pre-decision referral process in 40 CFR part 1504 applies to disagreements concerning proposed major Federal actions that might cause unsatisfactory environmental effects. The 23 U.S.C. 139(h)(5) issue referral process is intended to resolve any issues that could (1) delay the completion of the environmental review process or (2) result in the denial of any approval required for the project under applicable laws. The section 139(h)(5) issue resolution process is broader than the issue resolution process under part 1504.

FUNDING ADDITIONAL AGENCY RESOURCES

Question 58: May a State use Title 23 U.S.C. or Chapter 53 of Title 49, U.S. Code, funds to provide additional resources to an agency or tribe to expedite and improve delivery of the projects within the State?

Answer: Section 139(j) of title 23, U.S. Code authorizes States to provide funds to Federal agencies, State agencies, and/or federally recognized Indian tribes that are participating in the FHWA/FTA environmental review process for one or more transportation projectsin the 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. Examples include transportation planning activities and the development of programmatic agreements.

Federal or State agencies or federally recognized Indian tribes that receive Federal-aid highway or Federal transit funds from a State can only use the funds to pay for the additional resourcesFHWA/FTA determine necessary to meet the time limits established for environmental reviews of transportation projects. [23 U.S.C. 139(j)(4)]. Those time limits must be less than the customary time necessary for such reviews. [23 U.S.C. 139(j)(5)]. Where a State wishes to fund activities that are not project-specific, such as process improvements or development of programmatic agreements, the criteria relating to environmental review time limits will be deemed satisfied so long as the efforts are designed to produce a reduction in the customary time for environmental reviews. Additional information related to coordination and funding can be found in U.S. D.O.T. Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities.

Question 59: What is the additional requirement for using Title 23 U.S.C. or Chapter 53 of Title 49, U.S. Code, funding for Federal agency staffing?

Answer: Section 139(j)(6) of 23 U.S. Code requires that prior to funding approved staffing in an affected Federal agency, such as a liaison position, the State and Federal agencies must enter into a MOU to establish the projects and priorities to be addressed by the funding and position. If the existing agreement does not already specify the projects and priorities to be addressed by the use of the title 23 or Chapter 53 of title 49 funds, then the MOU should list specific projects and priorities, when known, or the process to identify or change projects and/or priorities in the revised and/or renewed agreement. Previously, MOUs were not formally required under 139(j) to specify projects and priorities. Such funds may be provided only to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery of projects. MOUs may also include performance measures to be used for the evaluation of the expediting effects of the funding. Additional information can be found in U.S. D.O.T. Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities and the Section 1307 Q&A section of the FHWA MAP-21 website.

Part 3 Statute of Limitations

Section 139(l) of Title 23, U.S. Code, establishes a 150-day statute of limitations (SOL) on claims4 against FHWA/FTA and other Federal agencies for certain environmental and other approval actions. The SOL can apply to a permit, license, or approval action by a Federal agency if:

  1. The action relates to a transportation project (as defined above); and
  2. A SOL notification is published in the Federal Register (FR) announcing that a Federal agency has taken a final agency action on a transportation project.

If no SOL notice is published in the FR, then the applicable statutory or regulatory period for filing claims applies. For example, 28 U.S.C. 2401(a) imposes a 6-year statute of limitation for every civil action brought against the U.S. unless there is another law that create a specific statute of limitations period.

Because FHWA and FTA programs differ, FHWA and FTA have developed slightly different processes for implementing the SOL provision. Part 3A covers the FHWA process, and Part 3B covers the FTA process. Appendix D, which contains detailed guidance on implementing the SOL provisions, applies only to FHWA and projects for which it is the Federal lead agency.

The Federal lead agencies are expected to publish all SOL notices under 23 U.S.C. & § 139.  On intermodal projects, FHWA and FTA typically will issue separate SOL notices, although there may be situations where a single notice is appropriate (i.e., when there is a joint ROD).

Despite the differences in the implementation procedures between the FTA and FHWA, the agencies note that they interpret the scope and intent of the 23 U.S.C. & § 139 SOL provision in the same way and that their implementation decisions are based solely on administrative differences between the FHWA and FTA programs.

APPENDICES

Appendix A

Appendix B

Appendix C

Appendix D

___________________________________________________

1 Sections 139(c)(1)(A) of title 23, U.S. Code establishes that FHWA/FTA must be the Federal lead agency for the FHWA/FTA environmental review of projects. Section 1.81(a) of title 49 of the CFR delegates this responsibility to FHWA or FTA, as applicable, to matters within FHWA's or FTA's primary responsibility, respectively.

2 Inviting an Indian tribal government or agency to become a cooperating agency should not be confused with meeting the Federal agency's responsibilities for government-to-government consultation. The Federal agency must engage with the Indian tribal government in government-to-government consultation if requested by the Indian tribal government regardless of an Indian tribal government agency's status as a cooperating agency or participating agency.

3 The allowance in section 139(f)(3)(D) should not be confused with FHWA's policy on permissible activities during the NEPA process, FHWA Order 6640.1A, FHWA Policy on Permissible Project Related Activities During the NEPA Process. Under FHWA statutes and regulations, project sponsors cannot initiate final design prior to the conclusion of the NEPA process. (23 U.S.C. 112 and 23 CFR 630.109). FHWA Order 6640.1A discusses the permissible project-related activities that may be advanced prior to the conclusion of the NEPA process. These preliminary design actions are allowed because they do not materially affect the objective consideration of alternatives or have adverse environmental impacts. The policy is intended to be read consistent with 23 U.S.C. 139(f)(3)(D).

__________________________________________

4FTA uses the term "Limitation on Claims" notices and the corresponding acronym (LOC).


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