U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
202-366-4000
MAP-21 - Moving Ahead for Progress in the 21st Century
Although the SOL provision in 23 U.S.C. 139(l) also applies to FTA, this guidance, which addresses FHWA procedures, only applies to FHWA and its recipients. The SOL provision can expedite project delivery, which includes avoiding delayed or unexpected litigation. FHWA Divisions must work closely with their FHWA field legal counsel to determine whether and when to publish a SOL notice, and to determine the content of SOL notices for each project. A FHWA template SOL notice follows the questions and answers in this appendix. This template can be used for a single project SOL notice, with endnotes to address a multiple projects SOL notice, a post-ROD action SOL notice, and a tier 1 SOL notice.
Question D-1: What is the "limitations on claims" provision in 23 U.S.C. 139(l)?
Answer: The limitations on claims provision in 23 U.S.C. 139(l) prohibits Federal courts from having jurisdiction to hear legal claims for the review of a permit, license, or approval issued by a Federal agency for a highway project if the claims are filed more than 150 days after the publication of an SOL notice in the Federal Register (FR). The law provides certainty and predictability in the transportation decision-making process and program implementation. The SOL notice must declare that there have been final Federal agency actions (decisions) taken with regard to one or more Federal-aid highway projects.
Question D-2: What happens 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 period found in 28 U.S.C. § 2401 applies to the final agency action(s). That law provides a claims period of six (6) years. Other time periods for limitations on claims can vary under other Federal laws.
Question D-3: Which Federal agency actions are included under the "permit, license, or approval" language of 23 U.S.C. § 139(l)?
Answer: An SOL notice can be used for any final action by a Federal agency that is required for a highway project and is subject to judicial review. Examples of these decisions include those by other Federal agencies that apply to the project, such as Clean Water Act Section 404 permits by the U.S. Army Corps of Engineers or the final Biological Opinion through FHWA's Section 7 Consultation under the Endangered Species Act. It also includes Federal agency decisions that FHWA considers when making its own decisions in accordance with NEPA.
Question D-4: 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 decision-making 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. The FHWA's signing of a FEIS/ROD or a ROD, for example, is the final action in FHWA's decision-making 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 139(l), "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. (See Question D-11).
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 its coordination/ consultation efforts with other Federal agencies. If questions arise in this area, the Division Office should raise this issue with the FHWA Office of Chief Counsel in their coordination on the SOL notice.
Question D-5: What is required for the SOL notice to apply to claims under Federal laws other than NEPA?
Answer: SOL notices should list or describe all permits, licenses, and approvals by Federal agencies that relate to and are within the scope of the project and are final as of the date of the notice. The SOL notice should include the key laws under which the Federal agencies took final action. The FHWA may issue more than one SOL notice for one project if there are permit, license, or approval decisions that occur at different times (See Question D-18 and D-19).
Question D-6: What kind of coordination or concurrence is required in order for FHWA to publish a notice that covers another Federal agency's decision?
Answer: 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 other Federal agency making the permit, license, or approval 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. (See Question D-11).
A deciding agency may acknowledge that it has made a final decision within the meaning of the SOL provision by means of interagency discussions or through e-mail. However it is recommended that lead agencies obtain the acknowledgement in the deciding agency's comments on the project to track and verify the acknowledgement later. Failure to gain this acknowledgement, however, should not affect the SOL validity.
A deciding agency may acknowledge that it has made a final decision within the meaning of the SOL provision by means of interagency discussions or through e-mail. However, it is recommended that lead agencies obtain the acknowledgement in the deciding agency's comments on the project to track and verify the acknowledgement later. Failure to gain this acknowledgement, however, should not affect the SOL validity.
Question D-7: Can another Federal agency publish an SOL notice for a project that has no Federal funding but requires decisions by FHWA as part of its permitting or review process?
Answer: Yes, another Federal agency may publish an SOL notice but only if there is a legal requirement for approval of the project by FHWA and the project is a highway or public transportation capital project. A Federal lead agency for NEPA would be the agency that determines whether to publish a SOL notice for such project.
Question D-8: Does the limitations on claims provision apply to all NEPA classes or action?
Answer: The process can be used for any NEPA class of action that results in a decision. These projects include CEs, EAs, and EISs. Before deciding to publish a notice, the FHWA Division Office, in consultation with the State and FHWA field legal counsel, should consider whether publication is justified. This justification assessment is discussed below.
Question D-9: How does the project's NEPA class of action (CE, EA, EIS) affect whether the SOL notice should be issued?
Answer: The likely benefits of the SOL notice, as well as the risk and potential effects of litigation, generally are different for each NEPA class of action. The 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 an SOL notice, depending upon the nature of the project, the types of issues decided, the estimated likelihood of litigation, and the potential effects of litigation. For example, publication of an 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 an SOL notice for a CE should be relatively rare. The FHWA does not expect SOL notices to be used for projects that are CEs under 23 CFR 771.117(c). It is FHWA's view that the notice would be more appropriate for CE projects under 23 CFR 771.117(d).
Question D-10: What kinds of risk management factors should be considered when deciding whether to publish a SOL notice?
Answer: It is important to consider the context, scope, and level of controversy surrounding the project, among other factors, when deciding whether to publish an SOL notice. The FHWA Division Office determines whether publication of the SOL notice is the best course in light of all factors affecting the project. FHWA Division Offices must work with their field legal counsel when making these determinations, including discussion of risk management issues. Risk management discussions should consider the interplay among applicable laws; the source, level, and nature of project opposition; and other important conditions or factors. Important questions to consider include:
Will publication of the SOL notice trigger unnecessary litigation? For example, is there an ongoing effort to resolve project disputes that is likely to eliminate the possibility of future litigation? In such a situation, the publication of an SOL notice might cause project opponents to file "protective" litigation in case the discussions fail to reach a satisfactory conclusion.
Is the project ready to proceed to construction within the next year? If not, then publication of an SOL notice may well be premature and may generate unnecessary litigation. What would be the impacts on the project if publication of the SOL notice were delayed until dispute resolution efforts are complete, or until funding for construction is available? In some situations, SOL notices have been filed for projects that lack funding to proceed to construction, resulting in FHWA defending lawsuits over projects not likely to be built in the near future.
How likely is it that there are opponents committed to suing? What is the nature and intensity of any controversy over issues like natural resource or community impacts, sources of funding, or other "hot button" issues?
Are there non-FHWA approvals, licenses, or permits yet to be obtained and/or public or political dynamics affecting the project that are likely to trigger litigation later after another final Federal agency project decision? If so, then publication of an SOL notice could be premature, may generate unnecessary litigation, and be an unnecessary expenditure of FHWA funds should another SOL notice be published.
Is an SOL notice necessary or useful? Are other defenses available and more effective in these circumstances?
What is the risk to FHWA from an adverse decision? What issues might be litigated? How important are those issues to FHWA's program? How likely is it that litigation would result in an adverse precedent for the Federal-aid Highway or Federal Lands Highway Program?
Is defense of this project in litigation a good expenditure of FHWA resources?
Has litigation on the project started? Would the notice help in identifying all potential plaintiffs and ensure timely filing of claims against the project?
An SOL notice may be 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 in the short-term without the risk of unexpected claims against it. An SOL notice 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 an SOL notice.
Question D-11: Can the limitations on claims process be used for programmatic, or Tier 1, NEPA processes?
Answer: Yes, the SOL notice provision can apply to a Tier 1, or programmatic, NEPA process to the extent that the Tier 1 results in final decisions. Because Tier 1 proceedings decide a narrower range of issues than a project-specific NEPA process, it is important that the NEPA determination clearly describe which decisions are being made that are considered final within the meaning of the SOL provision in 23 U.S.C. §139(l). Among the decisions that might be made in Tier 1 processes, and could be covered by an SOL notice, are corridor location, modal choice, alternatives eliminated from further analysis, alternatives to be carried forward for Tier 2 analysis, and jurisdictional determinations made under Federal law.
The Tier 1 SOL notice may refer generally to the Tier 1 NEPA documentation for detailed discussions of the decisions made. However, because of the "phased" nature of tiered processes, the notice also should include information on the specific decisions covered by the Tier 1 SOL notice. The objective is to identify issues that will not be open for further analysis or discussion in the Tier 2 process(es) 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 the Tier 2 analysis.
Question D-12: How does the SOL notice provision apply to supplemental NEPA determinations?
Answer: The SOL provision in 23 U.S.C. 139(l), makes it clear that a supplemental NEPA determinations requires a separate SOL notice. An SOL notice published for earlier NEPA documents or for earlier Federal agency decisions would not suffice for matters contained in the supplemental NEPA process or for decisions made based on the supplemental NEPA process.
Question D-13: Can SOL notices for several projects be consolidated for publishing as a single notice in the FR to save time and cost?
Answer: Yes. This approach may be cost effective if FHWA is publishing several notices in the same timeframe. 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.
Question D-14: Who decides whether an SOL 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 NEPA determination and the other agency's action?
Answer: The decision whether to use the SOL notice process is one that the FHWA Division Office will make in consultation with the other lead agencies. For 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 Highways 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 a Federal lead agency to handle the publication for all affected Federal agencies regardless of the amount of time that may pass between the FHWA NEPA determination and the last Federal agency decision.
As discussed in Question D-6, the FHWA Division Office should ensure that there is coordination with other Federal agencies whose decisions are covered by an SOL 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 allows 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 D-15: What information should be included in an SOL notice?
Answer: The notice is to 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 150-day limitation period. The notice should specify that claims will be barred at the end of the 150-day period, and state the legal authority for agency action and for the 150-day limitation.
The FHWA's notices often will cover actions by several Federal agencies and a number of agency decisions, rather than just the FHWA's NEPA action. In such cases, the SOL 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 SOL 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 agencies' decisions. For example, by including the U.S. Army Corps of Engineers explicitly in the SOL notice when it covers a Section 404 permit decision. The notice should refer readers to project records for detailed information on Federal actions and related laws.
Another factor to consider in drafting a notice is 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 SOL notice contains only very abbreviated information about the project and the Federal actions. The burden is placed on the readers to seek detailed information. For these reasons, the instructions for obtaining detailed information are 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 www.environment.fhwa.dot.gov/guidebook/fedRegDocs.asp and in the "Federal Register Document Drafting Handbook," available online at www.archives.gov/federal-register/write/handbook/ddh.pdf. The FHWA sample template reflects the necessary format. Some important points to remember:
Question D-16: How is the SOL FHWA sample template used?
Answer: The sample template that follows these questions and answers includes instructions (in bold and bracketed text) for inserting project information into the notice. When using the sample template, professional judgment is needed to adapt the template to meet the needs of the project and decisions addressed by the SOL notice. Field legal counsel should be consulted when questions arise about the appropriate content for a particular SOL notice and all SOL notices are to be reviewed by field legal counsel prior to issuance.
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 inform readers about the matters decided by the Federal agencies. It is not intended to be an all-inclusive list of the laws relevant to Federal agency decision-making. However, 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, Section 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 in preparing an SOL notice with applicable laws, FHWA has a summary list of laws that affect transportation.
Question D-17: How much detail should be included in the SOL notice's description of the project?
Answer: The description of the project should be brief and contain only the information that is critical to a reader's comprehension of the general nature of the project. It is not necessary to describe the project history or details about how or why decisions were made. The project's geographic location and overall project scope, such as whether it is new alignment and its length, termini, and roadway type with number of lanes and access information, is usually adequate.
Question D-18: 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 CE?
Answer: An 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 23 U.S.C. 139(l). The best time to publish the SOL notice is when all Federal agency permits, licenses, and approvals are in place. However, this timing may not be practicable in all cases. For example, it may make sense to proceed with publication of the SOL notice immediately after FHWA issues its NEPA determination 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 decision-making processes, a decision can be made whether to publish an additional SOL notice. If more than one SOL notice is published for a project, the 150-day claims period will run separately for the Federal agency actions covered by each SOL notice.
Question D-19: If a later SOL notice is published for a separate permit (such as a Section 404 permit) or for supplemental NEPA determinations, and someone files a lawsuit challenging that permit or supplemental NEPA determinations, will that lawsuit open up the previous FHWA NEPA document for review even though an earlier SOL notice covered it?
Answer: To date courts have found that a challenge to a permit or supplemental NEPA determination submitted after the expiration of the SOL for the original NEPA determination does not reopen that original NEPA determination. Thus, FHWA's position is that NEPA decisions not affected and revisited by the subsequent NEPA decision are not subject to further review since they are not being altered by the subsequent reviews and decisions. This interpretation is consistent with the language in the SOL provision and policy stated in MAP-21 section 1301 to accelerate project delivery and reduce delay.
For supplemental NEPA determinations and SOL notices associated with those determinations, the effect of a SOL notice on decisions covered by a SOL notice published for an earlier NEPA determination will depend on the circumstances. Litigation of earlier decisions that are unrelated to topics addressed by the supplemental NEPA determination would be foreclosed by the expiration of the 150-day period after the publication of the SOL notice covering those earlier decisions.
Question D-20: Should a reference to the SOL provision be included in NEPA documents?
Answer: FHWA recommends that all 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 U.S.C. §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 150 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 D-21: Does the SOL provision affect how a project's administrative record is compiled?
Answer: No. However, the limitations on claims provision highlight the importance of good documentation and of tracking of agency decisions. It also is 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, because the SOL notice will direct readers to FHWA or the State for information on all of the decisions relating to the project. For this reason, it is important that both agencies have project documents readily available for public inspection as of the date of the publication of the SOL notice.
Question D-22: How is publication in the FR handled?
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 participation in the Section 326 or 327 environmental review assignment programs. The FHWA must handle publication of the notice in the FR because of Government Printing Office requirements.
Question D-23: 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, FHWA will pay for the publication of the notices. Notices should use billing code 4910-RY, as shown on the FHWA sample template.
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(Note: see the endnotes for specific template language to use for specified projects in their SOL Notice.)
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 [fill in Federal Agency(ies), if applicable: if FHWA, use FHWA abbreviation since already defined above and spell out other Federal Agency names with an abbreviation for its use later in the SOL]
SUMMARY: This notice announces actions taken by the [fill in Federal Agency(ies) listed in the ACTION section above] 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 150 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 150 days for filing such claim, then that shorter time period still applies.
FOR FURTHER INFORMATION CONTACT: For FHWA [if FHWA is the Federal lead agency, i.e. NEPA is not assigned to the State]: [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 Federal agency, as applicable]: [fill in Federal agency 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 [insert Federal agencies with final agency action decisions included in this SOL] have taken final agency action(s) 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 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 agencies, and the laws under which such actions were taken, are described in the [fill in last NEPA document: Final Environmental Impact Statement (FEIS), Supplemental Final Environmental Impact Statement (FEIS), Environmental Assessment (EA), Revised Environmental Assessment (EA), or Categorical Exclusion (CE)] for the project, approved on [fill in date], in the [fill in FHWA or applicable agency] [fill in NEPA decision document: Record of Decision (ROD), Finding of No Significant Impact (FONSI), or Categorical Exclusion (CE)] issued on [fill in date], and in other documents in the project records. The [fill in last NEPA document], [fill in NEPA decision document], and other project records are available by contacting [fill in "FHWA or" if FHWA is the Federal lead agency (i.e. NEPA is not assigned to the State]: the [fill in name of State agency] at the addresses provided above. The [fill in last NEPA document: Final Environmental Impact Statement (FEIS), Supplemental Final Environmental Impact Statement (FEIS), Environmental Assessment (EA), Revised Environmental Assessment (EA), or Categorical Exclusion (CE)] and [fill in NEPA decision document: Record of Decision (ROD), Finding of No Significant Impact (FONSI), or Categorical Exclusion (CE)] can be viewed and downloaded from the project Web site at [fill in the link], or obtained from any contact listed above. The [fill in name of Federal agency, if applicable] decision and [fill in Federal agency action, e.g. permit] [fill in permit reference]) are available by contacting [fill in name of Federal agency, if applicable] at the address provided above, and can be viewed and downloaded from [fill in the link to Federal agency or project web site, or delete this electronic availability text if not applicable], or obtained by contacting the individuals listed above.
This notice applies to all Federal agency decisions that are final 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; any law or Executive Order that does not apply to the project, or for which the Federal agency decision is not final should not be listed. Below is a sample list and their citations of potentially applicable laws and Executive Orders]:
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].
Air: Clean Air Act [42 U.S.C. 7401-7671q].
Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303; 23 U.S.C. 138]; Landscaping and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].
Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Marine Mammal Protection Act [16 U.S.C. 1361-1423h]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667d]; Migratory Bird Treaty Act [16 U.S.C. 703-712].
Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470f]; Archeological Resources Protection Act of 1977 [16 U.S.C. 470aa-470mm]; Archeological and Historic Preservation Act [16 U.S.C. 469-469c]; Native American Grave Protection and Repatriation Act (NAGPRA) [25 U.S.C. 3001-3013].
Social and Economic: American Indian Religious Freedom Act [42 U.S.C. 1996]; Farmland Protection Policy Act (FPPA) [7 U.S.C. 4201-4209].
Wetlands and Water Resources: Clean Water Act (Section 404, Section 401, Section 319) [33 U.S.C. 1251-1387]; Land and Water Conservation Fund (LWCF) [16 U.S.C. 4601-4604]; Safe Drinking Water Act (SDWA) [42 U.S.C. 300f-300j-26)]; 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. 3901, 3921]; Wetlands Mitigation [23 U.S.C. 119(g) and 133(b)(14)]; Flood Disaster Protection Act, 42 U.S.C. 4012a, 4106].
(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]
Endnotes
SUMMARY: This notice announces actions taken by the [fill in Federal Agency(ies) listed in the ACTION section above] that are final within the meaning of 23 U.S.C. §139(l)(1)-(2). 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). A claim seeking judicial review of the Federal agency actions regarding the listed highway project(s) will be barred unless the claim is filed on or before [Insert date 150 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 150 days for filing such claim, then that shorter time period still applies.
SUPPLEMENTARY INFORMATION: [After description of the project but before the list of laws include the following statement]: This notice of limitation on claims pertains to final permit, license, and approval decisions made as part of the Supplemental [NEPA Decision (e.g., EIS, EIS/ROD, EA)]. The limitations on claims for final permit, license, and approval decisions made under the previous notice remain unaltered by this subsequent notice.
Authority: 23 U.S.C. §139(l)(1)-(2)
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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 brief description of project from the previous SOL notice that addresses: 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 [fill in name of Federal agency(ies)] has taken final agency actions within the meaning of 23 U.S.C. §139(l)(1) by [fill in final Federal agency action, e.g. issuing permits] and approvals for the highway project. The action(s) by the [fill in name of Federal agency(ies)], associated final actions by other Federal agencies, and the laws under which such actions were taken, are described in the [fill in name of Federal agency(ies)] decisions and its project records, referenced as [fill in any reference information, if applicable such as permit number(s)]. That information is available by contacting the [fill in name of Federal agency(ies)] at the address provided above.
Information about the project and project records also are available from the [fill in name of any applicable Federal agency, e.g. FHWA] and the [fill in name of State agency] at the address(es) provided above. The [insert references to FHWA NEPA documents, such as FEIS and ROD or EA and FONSI] and [insert decision(s) that are the subject of this SOL notice] can be viewed and downloaded from the project Web site at [fill in the link] or obtained from any contact listed above. This notice applies to all 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; ; any law or Executive Order that does not apply to the project, or for which the Federal agency decision is not final should not be listed.]:
[insert laws and Executive Orders in numbered list here per sample template above]
[Insert additional projects into the numbered list with information listed in #1 above]
[Repeat until all projects to be addressed by the SOL notice are listed.]
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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 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 [fill in FHWA, if applicable, i.e. NEPA is not assigned to the State agency]or the [fill in name of State agency] at the address(es) provided above. For some of the projects, the FEIS, SEIS, EA, ROD, and/or FONSI documents [delete references to any document types that do not apply to projects in this notice] can be viewed and downloaded from the project Web site [fill in the link]. The [fill in name of Federal agency, if applicable] decision and [fill in Federal agency action, e.g. permit] ([fill in permit reference]) are available by contacting [fill in name of Federal agency, if applicable] at the address provided above, and can be viewed and downloaded from [fill in the link to Federal agency or project web site, or delete this electronic availability text if not applicable], or obtained by contacting the individuals listed above.
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 a Federal agency made a final, documented decision for at least one (or more) of the projects covered by this notice; 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 should not be listed. 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 below.]:
[Insert laws and Executive Orders in numbered list here per sample template above]
[Insert additional projects into the numbered list with information listed in #1 above]
[Repeat until all projects to be addressed by the SOL notice are listed.]
The projects subject to this notice are:
Project location: [fill in city name, county name, highway number]. Project reference number: [fill in FHWA project reference number]. Project type: [fill in 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]. FHWA NEPA documents: [fill in NEPA document type and ROD/FONSI (if applicable), date of issuance, and Web address location if applicable].
[Insert additional projects into the numbered list with information listed in #1 above]
[Repeat until all projects to be addressed by the SOL notice are listed.]
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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 corridor [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 decisions 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 and 40 CFR 1508.28, determined certain issues relating to the proposed action. Those Tier 1 decisions will be used by Federal agencies in subsequent proceedings, including decisions whether to grant licenses, permits, and approvals for highway project(s).
SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA has issued a Tier 1 Record of Decision (ROD) in connection with a proposed highway project in the State of [fill in state name]: [fill in brief description of project (target is no more than 3-5 sentences): corridor area or project location, general purpose, FHWA project reference number and decisions made in Tier 1 NEPA process such as mode, general location, alternatives being carried forward, Section 4(f), and ROW acquisition; any decisions to be finalized in Tier 2 NEPA processes should not be included].
The Tier 1 final Federal agency decisions, 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 Record of Decision (ROD) issued on [fill in date], and in other documents in the project records. The FEIS, ROD, and other documents in the project file are available by contacting the [fill in FHWA, if applicable, i.e. NEPA is not assigned to the State agency] or the [fill in name of State agency] at the addresses provided above. The FEIS and ROD can be viewed on the project Web site at [fill in the link], or obtained by contacting the individuals listed above.
This notice applies to all Federal agency 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; 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) should not be listed.]:
[Insert laws and Executive Orders in numbered list here per sample template above]
[Insert additional projects into the numbered list with information listed in #1 above]
[Repeat until all projects to be addressed by the SOL notice are listed.]
