SAFETEA-LU’S

EFFICIENT ENVIRONMENTAL REVIEWS

FOR PROJECT DECISIONMAKING

Final Guidance 11/15/06

AGENDA

1. Project Initiation2. Lead Agency3. Participating Agencies4. Opportunity for Input5. Process Management6. Notice on Limitations7. Next Steps8. Q & As

Project Initiation

• What it is and is not– A letter of project initiation is for projects using 6002

Environmental Review Process.– The letter of project initiation must contain;

• type of work, termini, length, location and expected permits.• An indication of the timeframe for the Environmental Review

Process to begin.

– The official notice to the Division to begin the Environmental Review Process.

Project Initiation

• What it is and is not– Can be NOI, if NOI has all information and is

submitted to Division Administrator.– Not the usual NOI. The NOI is still sent to the

FR. Letter of Project Initiation is not.– Must come from responsible official

authorized to sign the EIS.

When?

• Send Letter of Project Initiation before NOI and after a thorough evaluation that the project is “real”.

• Have firm commitment to initiate the project through the Environmental Review Process.

• Initiate in planning if all of the needed information is known.

• Can be used Programmatically

How to Start

• Letter must come from official at project agency sponsor authorized to sign EISs for the sponsor agency.

• Hard copy or emailed, but must have a signature.

• Identification of participating agencies, and development of a coordination plan should proceed shortly after receipt of letter, if haven’t done so already.

Roles and Responsibilities of NEPA Joint Lead Agencies

• CEQ defined responsibilities– Shall supervise the preparation of an EIS– Federal, State, or local agencies may act as joint lead

agencies

• SAFETEA-LU defined responsibilities– Identify and involve participating agencies– Develop coordination plans– Provide opportunities for public and agency involvement

in purpose & need, range of alternatives– Collaborate with agencies in determining methodologies

and detail for alternatives analyses– Provide oversight in managing process, resolving issues

What’s New and Intent

• Changes from Draft to Final Guidance– Sub recipients of Federal funds not a

mandatory non-Federal lead agency, discretion to invite

– US DOT agencies do not reserve final decision making authority. Joint leads have mutual veto

• Intent:emphasize responsibilities in collaboration with other joint leads and to perform tasks and make decisions jointly or by allocation among joint leads

Who should be the Joint Leads?

• FHWA must be the Federal lead agency

• The recipient of Federal funds must be a lead agency– State DOT agency – Discretion to invite local sponsors

• Indian Tribes– As a sponsor, on tribal land, or where

approval is required– Discretion to invite

Joint Lead Non-Federal Agency Responsibilities

• Jointly assume lead role

• Jointly assume lead responsibilities

• Jointly assume authority of a lead agency under Section 6002

FHWA’s role as Lead Federal Agency

• Strengthens management and facilitation role of FHWA

• Responsible for overall direction of Environmental Review Process and expediting delivery of transportation project

• Enforce schedules, facilitate resolution of issues, acting to ensure the Environmental Review Process is timely

Manage Process and Resolve Issues

• Joint Lead Oversight– Shared commitment to project– Partnership in responsibilities – Collaborative and coordinated decision making– Timely consideration and resolution of issues– Individual lead agency commitment to provide

expertise to identify concerns and resolve conflicts

Roles & Responsibilities of Participating Agencies

• Participate in the environmental review process – EARLY!!!

– Development of Purpose & Need– Range of Alternatives– Methodologies– Level of Detail for Analysis of Alternatives

• Identify issues of concern• Provide meaningful & timely input on issues• Participate in Scoping process

What’s New

• Agencies with only a tangential, speculative, or remote interest need not be invited

• Lead Agencies must mutually decide on which Agencies to be invited

• Participating Agencies may have to determine which projects are priorities and allocate resources accordingly

Who Should be Participating Agencies

• Federal, State, Tribal, Regional, & Local Government Agencies that have an interest in the project should be invited

• NGO’s & Private Entities cannot serve as Participating Agencies

• Each State may develop a comprehensive list of agencies with permitting authority, special expertise, or interest

Who Determines Participating Agency Status & Invitation Process

• Lead Agencies collectively decide on agencies and also on who will do invitations

• USDOT Agency responsible for Native American Tribal Government invitations.

• Practices for inviting Participating Agencies may vary from State to State.

Details on Invitations to Potential Participating Agencies

• Invitations sent at or after project Notice of Initiation– Hardcopy / E-Mail letter

• Includes basic project description & map of project location

• Tracked to ensure delivery – IMPORTANT!!!• Clearly requests involvement of Agency &

reason why Agency needs to participate.• Specify deadline for responding to invitation (no

more then 30 Days)

What is Involved in Accepting / Declining Status

• Invitation should request response on either acceptance / declination

• Federal Agency invited to participate “MUST” participate unless Agency declines in writing by specified deadline (per SAFETEA-LU)

When Agencies decline or fail to participate fully

• Intent of involvement is to allow for early & timely input on Issues of Concern

• Expectations and commitments on Agency participation should be addressed in Coordination Plan

• If Agency has no jurisdiction or permit authority, Lead Agencies can document “ No Comment” and Move Forward

• Where Agency participation is critical, informal or formal dispute resolution procedures may be an option

Opportunity for Input

Who? Participating agencies and the public

What? Development of

- Project Purpose and Need- Range of Alternatives

When?Early in project development process, but there is flexibility in timing of involvement. Lead agencies must agree on form and timing.

How?Opportunity must be publicized … … public workshops, web sites, printed material, etc

* Timing and form of this involvement is established in Project Coordination Plan

Opportunity for Input

The Lead Agencies …… after consideration of the public and participating agency input. Lead agencies’ decision and the considerations should be documented and shared with participating agencies.

Who makes final decision?

• Determination of methodologies and level of detail for analysis of alternatives.

• Consensus not required but lead agencies must consider the relevant views of participating agencies.

• Project-by-project, program or region-wide basis, as deemed appropriate.

• Final decision made by Lead Agencies

Collaboration with Participating Agencies

• May be developed to a higher level of detail, once it has been determined

• Must not prevent an impartial decision on the appropriate course of action

• Is necessary to facilitate development of- mitigation measures or - concurrent compliance with other

environmental laws.• Request to develop to higher level of detail

initiated by non-Federal lead agency sponsor and needs to include various information.

Preferred Alternative

• Lead agency is responsible for its preparationLead agency is responsible for its preparation

• Must address how coordination and Must address how coordination and communication with agencies & public would communication with agencies & public would occuroccur

• Needs to be developed earlyNeeds to be developed early

• Must afford participating agencies Must afford participating agencies review/comment before plan is finalizedreview/comment before plan is finalized

• Must be made available to publicMust be made available to public

• May incorporate existing procedures and May incorporate existing procedures and existing/new agreementexisting/new agreement

Coordination Plan

• Lays out plan for coordination of all NEPA Lays out plan for coordination of all NEPA aspects, including the post-NEPA permit aspects, including the post-NEPA permit process process

• Essential for streamlining processEssential for streamlining process

• Some elements of plan may be established Some elements of plan may be established programmatically by lead agency to provide programmatically by lead agency to provide greater predictabilitygreater predictability

• Early initial coordination plan should be revised Early initial coordination plan should be revised as necessary as issues become cleareras necessary as issues become clearer

Coordination Plan

• FHWA Vital Few Goal-All EAs and EISs must FHWA Vital Few Goal-All EAs and EISs must have schedules have schedules

• In development of schedule:In development of schedule:

- must consult with participating agenciesmust consult with participating agencies

- need to consider many factors (complexity of need to consider many factors (complexity of project, resources impacted, responsibilities project, resources impacted, responsibilities of participating agencies)of participating agencies)

Schedule

• Project major milestones - Critical for Project major milestones - Critical for successful project managementsuccessful project management

• Must include deadlines & timeframes (30 Must include deadlines & timeframes (30 days) for agencies’ reviews and inputdays) for agencies’ reviews and input

• Schedule can be modified, as needed:Schedule can be modified, as needed:

- lengthened for good causelengthened for good cause

- shortened only with concurrence of shortened only with concurrence of participating agenciesparticipating agencies

Schedule

• Where working effective and efficiently, may Where working effective and efficiently, may continue and be incorporated into coordination continue and be incorporated into coordination plan and schedule.plan and schedule.

- May be used for coordination only with May be used for coordination only with signatories of agreement.signatories of agreement.

- Agencies, and the public, not part of Agencies, and the public, not part of existing agreement, need to be granted existing agreement, need to be granted opportunities for involvement as provided opportunities for involvement as provided by SAFETEA-LU process.by SAFETEA-LU process.

Existing Agreements

• Existing process may need to be updated to Existing process may need to be updated to include participating agenciesinclude participating agencies

- Existing process may need to be updated Existing process may need to be updated to include opportunity for public input in to include opportunity for public input in purpose and need and range of purpose and need and range of alternatives alternatives

- Existing process may be incorporated into Existing process may be incorporated into coordination plancoordination plan

Public Involvement Process

Limitation on Claims Notices

23 U.S.C. 139 (/)

Advance PreparationsAdvance Preparations

• Mention SOL in draft and final documents Mention SOL in draft and final documents as “early warning” of possible useas “early warning” of possible use

• Be clear in documents about decisions Be clear in documents about decisions made under Federal lawsmade under Federal laws

• Be Strategic in using noticeBe Strategic in using notice– Right project?Right project?– Right timing?Right timing?

• Make sure project records are easily Make sure project records are easily retrievable if neededretrievable if needed

Preparing to PublishPreparing to Publish

• Who decided?Who decided?• What did they decide?What did they decide?• Under which Federal law(s)?Under which Federal law(s)?• Is the decision final?Is the decision final?• Do the affected Federal agencies agree their Do the affected Federal agencies agree their

decisions are final?decisions are final?• What does the State think?What does the State think?

Notice Drafting TipsNotice Drafting Tips

• Think like the notice readerThink like the notice reader• Answer core questionsAnswer core questions

– Who?Who?– Did what?Did what?– By what means? By what means? – When?When?– Under which Federal law?Under which Federal law?– Where can more information be obtained?Where can more information be obtained?

• Be conciseBe concise• Consult with Field CounselConsult with Field Counsel

Resources Available

• SAFETEA-LU Environmental Review Process Final Guidance

• FHWA Office of Project Development & Environmental Review Staff

• Website: http://environment.fhwa.dot.gov/index.htm

Next Steps

(1) Upcoming webinars: January 11 2:00-3:30EST; January 30 2:00-3:30 EST(2) CTE broadcast: with FTA –late Feb/early March

(3) Toolkit under development located on FHWA website:

http://environment.fhwa.dot.gov/index.htm

Checklist-on FHWA website: http://environment.fhwa.dot.gov/strmlng/index.asp#safetealu

(4) Contact HQ Program Office or Division Offices with questions

(5) TRB session on SAFETEA-LU Sunday Jan. 21(8:30-12:00) Hilton Hotel

6002 Quiz I

• The project initiation letter is just the same information in the NOI, but it is required.

• Participating agencies are the same as cooperating agencies. Sponsoring agencies who receive FHWA money must be joint lead agencies.

6002 Quiz II

• Participating agencies provide input in the development of the initiation letter and the purpose and need.

• The public may review and comment on the range of alternatives but not the purpose and need.

6002 Quiz III

• The coordination plan’s focus is to develop the participation of agencies and is the responsibility of the joint lead agencies.

• The limitation of claims that initiates a 180 day period after a Federal Register notice is required for all RODs made after August 10, 2005.