SAFETEA-LU’S EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT DECISIONMAKING Final Guidance 11/15/06

1. SAFETEA-LU’S EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT DECISIONMAKING Final Guidance 11/15/06

2. AGENDA • Project Initiation • Lead Agency • Participating Agencies • Opportunity for Input • Process Management • Notice on Limitations • Next Steps • Q & As

3. 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.

4. 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.

5. 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

6. 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.

7. 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

8. 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

9. 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

10. Joint Lead Non-Federal Agency Responsibilities • Jointly assume lead role • Jointly assume lead responsibilities • Jointly assume authority of a lead agency under Section 6002

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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.

17. 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)

18. 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)

19. 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

20. Opportunity for Input Who? Participating agencies and the public What? Development of - Project Purpose and Need - Range of Alternatives

21. Opportunity for Input • 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

22. Who makes final decision? 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.

23. Collaboration with Participating Agencies • 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

24. Preferred Alternative • 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.

25. Coordination Plan • Lead agency is responsible for its preparation • Must address how coordination and communication with agencies & public would occur • Needs to be developed early • Must afford participating agencies review/comment before plan is finalized • Must be made available to public • May incorporate existing procedures and existing/new agreement

26. Coordination Plan • Lays out plan for coordination of all NEPA aspects, including the post-NEPA permit process • Essential for streamlining process • Some elements of plan may be established programmatically by lead agency to provide greater predictability • Early initial coordination plan should be revised as necessary as issues become clearer

27. Schedule • FHWA Vital Few Goal-All EAs and EISs must have schedules • In development of schedule: • must consult with participating agencies • need to consider many factors (complexity of project, resources impacted, responsibilities of participating agencies)

28. Schedule • Project major milestones - Critical for successful project management • Must include deadlines & timeframes (30 days) for agencies’ reviews and input • Schedule can be modified, as needed: • lengthened for good cause • shortened only with concurrence of participating agencies

29. Existing Agreements • Where working effective and efficiently, may continue and be incorporated into coordination plan and schedule. • May be used for coordination only with signatories of agreement. • Agencies, and the public, not part of existing agreement, need to be granted opportunities for involvement as provided by SAFETEA-LU process.

30. Public Involvement Process • Existing process may need to be updated to include participating agencies • Existing process may need to be updated to include opportunity for public input in purpose and need and range of alternatives • Existing process may be incorporated into coordination plan

31. Limitation on Claims Notices 23 U.S.C. 139 (/)

32. Advance Preparations • Mention SOL in draft and final documents as “early warning” of possible use • Be clear in documents about decisions made under Federal laws • Be Strategic in using notice • Right project? • Right timing? • Make sure project records are easily retrievable if needed

33. Preparing to Publish • Who decided? • What did they decide? • Under which Federal law(s)? • Is the decision final? • Do the affected Federal agencies agree their decisions are final? • What does the State think?

34. Notice Drafting Tips • Think like the notice reader • Answer core questions • Who? • Did what? • By what means? • When? • Under which Federal law? • Where can more information be obtained? • Be concise • Consult with Field Counsel

35. 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

36. Next Steps • 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

37. 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.

38. 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.

39. 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.