**SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS**

**PROPOSED GUIDANCE**

***This guidance should not be construed as rules of general
applicability and legal effect or as a notice of proposed rulemaking.***

**Table of Contents**

[Introduction 8](#introduction)

[1. The Environmental Review Process
10](#the-environmental-review-process)

[General Information about the Environmental Review Process
11](#general-information-about-the-environmental-review-process)

[Question 1: What does the term "transportation project" mean in this
guidance?
11](#question-1-what-does-the-term-transportation-project-mean-in-this-guidance)

[Question 2: To which agencies does the term "USDOT" refer?
11](#question-2-to-which-agencies-does-the-term-usdot-refer)

[Question 3: What is meant by the "environmental review process"?
11](#question-3-what-is-meant-by-the-environmental-review-process)

[Question 4: How do the environmental requirements for metropolitan and
statewide planning in SAFETEA-LU sections 3005, 3006, and 6001 relate to
the environmental review process?
11](#question-4-how-do-the-environmental-requirements-for-metropolitan-and-statewide-planning-in-sections-3005-3006-and-6001-of-safetea-lu-relate-to-the-environmental-review-process)

[Question 5: How does the SAFETEA-LU environmental review process relate
to FHWA's emphasis on context sensitive solutions (CSS)?
12](#question-5-how-does-the-safetea-lu-environmental-review-process-relate-to-fhwas-emphasis-on-context-sensitive-solutions-css)

[Question 6: Do the new requirements in SAFETEA-LU affect existing
merger agreements for integrating NEPA and other environmental laws and
regulations?
12](#question-6-do-the-new-requirements-in-safetea-lu-affect-existing-merger-agreements-for-integrating-nepa-and-other-environmental-laws-and-regulations)

[Question 7: Do the new requirements in SAFETEA-LU Section 6002 apply to
Tier 1 EIS documents?
12](#question-7-do-the-new-requirements-in-safetea-lu-section-6002-apply-to-tier-1-eis-documents)

[Applicability Requirements
12](#applicability-requirements-link-to-safetea-lu)

[Question 8: Which projects must follow the environmental review
process?
12](#question-8-which-projects-must-follow-the-environmental-review-process)

[Question 9: When can a State use its existing environmental review
process instead of SAFETEA-LU?
13](#question-9-when-can-a-state-use-its-existing-environmental-review-process-instead-of-safetea-lu)

[Question 10: If a NEPA review for which the NOI was issued prior to the
date of enactment of SAFETEA-LU (August 11, 2005) is being re-evaluated
due to a 3-year lapse in activity, or re-scoped for any reason, or if a
supplemental EIS is needed, must the SAFETEA-LU environmental review
process be followed?
13](#question-10-if-a-nepa-review-for-which-the-noi-was-issued-prior-to-the-date-of-enactment-of-safetea-lu-august-11-2005-is-being-re-evaluated-due-to-a-3-year-lapse-in-activity-or-re-scoped-for-any-reason-or-if-a-supplemental-eis-seis-is-needed-must-the-safetea-lu-environmental-review-process-be-followed)

[Project Initiation 13](#project-initiation-link-to-safetea-lu)

[Question 11: How is the environmental review process for a
transportation project initiated?
13](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated)

[Question 12: When should the notification for project initiation occur?
14](#question-12-when-should-the-notification-for-project-initiation-occur)

[Question 13: For FTA New Starts projects, how does the NEPA process, as
enhanced by Section 6002, interface with the planning Alternatives
Analysis that is part of the New Starts project development process?
14](#question-13-for-fta-new-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-new-starts-project-development-process)

[Lead Agencies 15](#lead-agencies-link-to-safetea-lu)

[Question 14: What agencies must serve as lead agencies in the
environmental review process?
15](#question-14-what-agencies-must-serve-as-lead-agencies-in-the-environmental-review-process)

[Question 15: Which other agencies may serve as joint lead agencies?
15](#question-15-which-other-agencies-may-serve-as-joint-lead-agencies)

[Question 16: 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?
15](#question-16-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)

[Question 17: How does the lead Federal agency requirement apply to the
FHWA Public Lands Highway Program and FTA's Alternative Transportation
in Parks and Public Lands Program?
16](#question-17-how-does-the-lead-federal-agency-requirement-apply-to-the-fhwa-public-lands-highway-program-and-ftas-alternative-transportation-in-parks-and-public-lands-program)

[Question 18: What are the roles of lead agencies under SAFETEA-LU?
16](#question-18-what-are-the-roles-of-lead-agencies-under-safetea-lu)

[Question 19: How has USDOT's role as lead Federal agency changed under
SAFETEA-LU?
16](#question-19-how-has-usdots-role-as-lead-federal-agency-changed-under-safetea-lu)

[Question 20: Which agencies can prepare the environmental document?
16](#question-20-which-agencies-can-prepare-the-environmental-document)

[Participating Agencies 16](#participating-agencies-link-to-safetea-lu)

[Question 21: Which agencies should be invited to be participating
agencies, and how is this decided?
16](#question-21-which-agencies-should-be-invited-to-be-participating-agencies-and-how-is-this-decided)

[Question 22: What are the roles and responsibilities of participating
agencies?
17](#question-22-what-are-the-roles-and-responsibilities-of-participating-agencies)

[Question 23: Who sends out the invitations to serve as participating
agencies? When should the invitation be sent?
17](#question-23-who-sends-out-the-invitations-to-serve-as-participating-agencies-when-should-the-invitation-be-sent)

[Question 24: What needs to be included in the invitation sent to
potential participating agencies?
17](#question-24-what-needs-to-be-included-in-the-invitation-sent-to-potential-participating-agencies)

[Question 25: What is involved in accepting or declining an invitation
to be a participating agency?
18](#question-25-what-is-involved-in-accepting-or-declining-an-invitation-to-be-a-participating-agency)

[Question 26: What happens if an agency does not initially become a
participating agency, but subsequent events indicate that the agency
wants or needs to become involved in the environmental review process?
18](#question-26-what-happens-if-an-agency-does-not-initially-become-a-participating-agency-but-subsequent-events-indicate-that-the-agency-wants-or-needs-to-become-involved-in-the-environmental-review-process)

[Question 27: What happens if an agency declines to be a participating
agency, but later submits comments on the project?
19](#question-27-what-happens-if-an-agency-declines-to-be-a-participating-agency-but-later-submits-comments-on-the-project)

[Question 28: What if an agency becomes a participating agency, but does
not fully participate during the environmental review process?
19](#question-28-what-if-an-agency-becomes-a-participating-agency-but-does-not-fully-participate-during-the-environmental-review-process)

[Question 29: If an agency decides not to submit comments or otherwise
participate in USDOT's environmental review process, can that agency
still submit comments to non-USDOT agencies when they review the project
and make decisions under other laws?
20](#question-29-if-an-agency-decides-not-to-submit-comments-or-otherwise-participate-in-usdots-environmental-review-process-can-that-agency-still-submit-comments-to-non-usdot-agencies-when-they-review-the-project-and-make-decisions-under-other-laws)

[Cooperating Agencies 20](#cooperating-agencies-link-to-safetea-lu)

[Question 30: What is the difference between a participating agency and
a cooperating agency?
20](#question-30-what-is-the-difference-between-a-participating-agency-and-a-cooperating-agency)

[Question 31: Must the lead agencies invite an agency that qualifies for
both designations to serve as both a cooperating and a participating
agency?
20](#question-31-must-the-lead-agencies-invite-an-agency-that-qualifies-for-both-designations-to-serve-as-both-a-cooperating-and-a-participating-agency)

[Purpose and Need 20](#purpose-and-need-link-to-safetea-lu)

[Question 32: Who is responsible for developing the project's purpose
and need?
21](#question-32-who-is-responsible-for-developing-the-projects-purpose-and-need)

[Question 33: What direction does SAFETEA-LU give for the content of the
purpose and need statement?
21](#question-33-what-direction-does-safetea-lu-give-for-the-content-of-the-purpose-and-need-statement)

[Question 34: SAFETEA-LU requires an "opportunity for involvement" for
participating agencies and the public in defining the project purpose
and need. How can this requirement be satisfied?
21](#question-34-safetea-lu-requires-an-opportunity-for-involvement-for-participating-agencies-and-the-public-in-defining-the-project-purpose-and-need.-how-can-this-requirement-be-satisfied)

[Question 35: How does the transportation planning process relate to the
development of a project's purpose and need statement?
22](#question-35-how-does-the-transportation-planning-process-relate-to-the-development-of-a-projects-purpose-and-need-statement)

[Alternatives Analysis 22](#alternatives-analysis-link-to-safetea-lu)

[Question 36: Who is responsible for developing the range of
alternatives?
22](#question-36-who-is-responsible-for-developing-the-range-of-alternatives)

[Question 37: SAFETEA-LU requires an "opportunity for involvement" by
participating agencies and the public in defining the range of
alternatives. How can this requirement be satisfied?
22](#question-37-safetea-lu-requires-an-opportunity-for-involvement-by-participating-agencies-and-the-public-in-defining-the-range-of-alternatives.-how-can-this-requirement-be-satisfied)

[Question 38: What new requirements are included in SAFETEA-LU for
developing the methodologies for the analysis of alternatives?
23](#question-38-what-new-requirements-are-included-in-safetea-lu-for-developing-the-methodologies-for-the-analysis-of-alternatives)

[Preferred Alternative 24](#preferred-alternative-link-to-safetea-lu)

[Question 39: Who decides whether the preferred alternative can be
developed to a higher level of detail than the other alternatives?
24](#question-39-who-decides-whether-the-preferred-alternative-can-be-developed-to-a-higher-level-of-detail-than-the-other-alternatives)

[Question 40: Why may a preferred alternative be developed to a higher
level of detail?
24](#question-40-why-may-a-preferred-alternative-be-developed-to-a-higher-level-of-detail)

[Question 41: How is the preferred alternative officially identified?
24](#question-41-how-is-the-preferred-alternative-officially-identified)

[Question 42: Who can initiate a request for development of a preferred
alternative to a higher level of detail, and how is that done?
24](#question-42-who-can-initiate-a-request-for-development-of-a-preferred-alternative-to-a-higher-level-of-detail-and-how-is-that-done)

[Question 43: When can the lead agencies identify a preferred
alternative and allow its development to a higher level of detail? What
factors should be considered when deciding?
25](#question-43-when-can-the-lead-agencies-identify-a-preferred-alternative-and-allow-its-development-to-a-higher-level-of-detail-what-factors-should-be-considered-when-deciding)

[Question 44: What considerations might be relevant to the required lead
Federal agency determination about future impartiality?
25](#question-44-what-considerations-might-be-relevant-to-the-required-lead-federal-agency-determination-about-future-impartiality)

[Question 45: Should the development of the preferred alternative to a
higher level of design detail affect the presentation of the
alternatives in the NEPA environmental document?
26](#question-45-should-the-development-of-the-preferred-alternative-to-a-higher-level-of-design-detail-affect-the-presentation-of-the-alternatives-in-the-nepa-environmental-document)

[Question 46: Are there any limitations on how far a preferred
alternative can be developed before NEPA is complete and the USDOT
Record of Decision (ROD) is issued?
26](#question-46-are-there-any-limitations-on-how-far-a-preferred-alternative-can-be-developed-before-nepa-is-complete-and-the-usdot-record-of-decision-rod-is-issued)

[2. Process Management 27](#process-management)

[Coordination and Schedule
27](#coordination-and-schedule-link-to-safetea-lu)

[Question 47: Who is responsible for developing a project coordination
plan for public and agency participation?
27](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)

[Question 48: When should the coordination plan be developed?
27](#question-48-when-should-the-coordination-plan-be-developed)

[Question 49: How does a coordination plan for the environmental review
process relate to the "project management plan" required for FHWA's
Major Projects and for transit New Starts projects?
28](#question-49-how-does-a-coordination-plan-for-the-environmental-review-process-relate-to-the-project-management-plan-required-for-fhwas-major-projects-and-for-transit-new-starts-projects)

[Question 50: What should be included in a coordination plan?
28](#question-50-what-should-be-included-in-a-coordination-plan)

[Question 51: Does each State DOT need to update its public involvement
procedures that were developed pursuant to 23 CFR 771.111(h)?
29](#question-51-does-each-state-dot-need-to-update-its-public-involvement-procedures-that-were-developed-pursuant-to-23-cfr-771.111h)

[Question 52: Are the lead agencies required to develop a project
schedule as part of the project coordination plan?
29](#question-52-are-the-lead-agencies-required-to-develop-a-project-schedule-as-part-of-the-project-coordination-plan)

[Question 53: What factors should be considered when creating a schedule
as part of a project coordination plan?
29](#question-53-what-factors-should-be-considered-when-creating-a-schedule-as-part-of-a-project-coordination-plan)

[Question 54: What deadlines have been established under SAFETEA-LU for
the public and participating agencies to submit comments?
30](#question-54-what-deadlines-have-been-established-under-safetea-lu-for-the-public-and-participating-agencies-to-submit-comments)

[Question 55: Should the coordination plan provide the public and
participating agencies with an opportunity for comment during the period
between the publication of a FEIS and the issuance of a ROD?
30](#question-55-should-the-coordination-plan-provide-the-public-and-participating-agencies-with-an-opportunity-for-comment-during-the-period-between-the-publication-of-a-feis-and-the-issuance-of-a-rod)

[Question 56: Once a schedule has been established, can it be modified?
31](#question-56-once-a-schedule-has-been-established-can-it-be-modified)

[Question 57: How and to whom must the schedule be made available?
31](#question-57-how-and-to-whom-must-the-schedule-be-made-available)

[Requirements Placed on Non-USDOT Federal Agencies
31](#requirements-placed-on-non-usdot-federal-agencies)

[Question 58: What are the new requirements related to deadlines for
decisions under other Federal laws?
31](#question-58-what-are-the-new-requirements-related-to-deadlines-for-decisions-under-other-federal-laws)

[Question 59: How will USDOT implement this requirement to report to
Congress on the deadlines for decisions under other Federal laws?
31](#question-59-how-will-usdot-implement-this-requirement-to-report-to-congress-on-the-deadlines-for-decisions-under-other-federal-laws)

[Concurrent Reviews 32](#concurrent-reviews-link-to-safetea-lu)

[Question 60: For transportation projects, SAFETEA-LU directs that, to
the maximum extent practicable and consistent with statutory
obligations, *each Federal agency* (a) carry out its obligations under
other Federal laws concurrently and in conjunction with the USDOT
environmental review process required by NEPA; and (b) formulate and
implement mechanisms to ensure the completion of the environmental
review process in a timely, coordinated, and environmentally responsible
manner. How is USDOT approaching this directive to other Federal
agencies?
32](#question-60-for-transportation-projects-safetea-lu-directs-that-to-the-maximum-extent-practicable-and-consistent-with-statutory-obligations-each-federal-agency-a-carry-out-its-obligations-under-other-federal-laws-concurrently-and-in-conjunction-with-the-usdot-environmental-review-process-required-by-nepa-and-b-formulate-and-implement-mechanisms-to-ensure-the-completion-of-the-environmental-review-process-in-a-timely-coordinated-and-environmentally-responsible-manner.-how-is-usdot-approaching-this-directive-to-other-federal-agencies)

[Issue Identification and Resolution
33](#issue-identification-and-resolution-link-to-safetea-lu)

[Question 61: What is involved in the SAFETEA-LU issue resolution
process?
33](#question-61-what-is-involved-in-the-safetea-lu-issue-resolution-process)

[Question 62: What are "issues of concern" that may trigger the issue
resolution process?
35](#question-62-what-are-issues-of-concern-that-may-trigger-the-issue-resolution-process)

[Question 63: What is meant by resolution of the issue(s)?
35](#question-63-what-is-meant-by-resolution-of-the-issues)

[Adoption and Use of Documents
35](#adoption-and-use-of-documents-link-to-safetea-lu)

[Question 64: Does SAFETEA-LU change anything regarding the adoption and
use of documents?
35](#question-64-does-safetea-lu-change-anything-regarding-the-adoption-and-use-of-documents)

[Question 65: SAFETEA-LU requires USDOT to (1) establish a program for
measuring progress in improving the planning and environmental review
process for transportation projects, and (2) report on the findings and
results of the elements of the process that are measured. How will this
requirement be implemented?
35](#question-65-safetea-lu-requires-usdot-to-1-establish-a-program-for-measuring-progress-in-improving-the-planning-and-environmental-review-process-for-transportation-projects-and-2-report-on-the-findings-and-results-of-the-elements-of-the-process-that-are-measured.-how-will-this-requirement-be-implemented)

[Question 66: Are other measurements of the environmental review process
being considered?
35](#question-66-are-other-measurements-of-the-environmental-review-process-being-considered)

[Funding of Additional Agency Resources
36](#funding-of-additional-agency-resources-link-to-safetea-lu)

[Question 67: What does SAFETEA-LU say about the use of USDOT funding by
participating agencies to expedite environmental reviews?
36](#question-67-what-does-safetea-lu-say-about-the-use-of-usdot-funding-by-participating-agencies-to-expedite-environmental-reviews)

[Question 68: What changes does SAFETEA-LU make to the similar funding
provision in TEA-21?
36](#question-68-what-changes-does-safetea-lu-make-to-the-similar-funding-provision-in-tea-21)

[Question 69: How must the agency that receives such funds from a State
use the funds?
36](#question-69-how-must-the-agency-that-receives-such-funds-from-a-state-use-the-funds)

[3. Statute of Limitations 38](#statute-of-limitations)

[Acronym List 40](#acronym-list)

[Appendix A: Full Text of 23 USC §139 41](#appendix-a)

[Appendix B: Sample Invitation Letters 48](#appendix-b)

[Appendix C: Interagency Guidance on Transportation Funding
52](#appendix-c)

[Appendix D: Guidance on Integration of Planning and NEPA Processes
53](#appendix-d)

[Appendix E: FHWA Guidance on Limitation on Claims Notices
54](#appendix-e)

**SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS**

**PROPOSED GUIDANCE**

# Introduction {#introduction .unnumbered}

The Federal Highway Administration (FHWA) and the Federal Transit
Administration (FTA) are issuing this joint guidance on the
environmental review process required by [Section 6002](#appendix-a) of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users ([SAFETEA-LU](http://www.fhwa.dot.gov/safetealu/)),
which has been codified as 23 USC §139. This section of SAFETEA-LU
prescribes changes to existing FHWA and FTA procedures for implementing
the [National Environmental Policy Act of
1969](http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm) (NEPA), as
amended, and for implementing the regulations of the Council on
Environmental Quality (CEQ), [40 CFR parts 1500 through
1508](http://ceq.eh.doe.gov/nepa/regs/ceq/toc_ceq.htm). This section of
SAFETEA-LU describes the roles of the project sponsor and the lead,
participating, and cooperating agencies; sets new requirements for
coordinating and scheduling agency reviews; broadens the authority for
States to use Federal aid to ensure timely environmental reviews; and
specifies a process for resolving interagency disagreements.

The purpose of this guidance is to provide explanations of new and
changed aspects of the environmental review process for FHWA and FTA
NEPA practitioners. The guidance will inform the reader about what and
how things need to be done differently as a result of SAFETEA-LU.
Although this guidance outlines a new environmental review process, it
does not supersede any previous guidance or regulations promulgated
under NEPA. In particular, the previously mentioned CEQ regulations ([40
CFR parts 1500-1508](http://ceq.eh.doe.gov/nepa/regs/ceq/toc_ceq.htm))
and FHWA-FTA NEPA regulation ([23 CFR part
771](http://www.fhwa.dot.gov/legsregs/directives/fapg/cfr0771.htm)) are
supplemented by this guidance and remain in effect. A question and
answer format is used throughout the guidance, and the table of contents
provides a list of all of the questions. Hyperlinks to specific sections
of the law or cited documents are provided for each section and
throughout the guidance for further reference, as appropriate. For
example, terms used throughout the guidance (e.g., "project sponsor",
"participating agency", etc.) will be hyperlinked to corresponding
definitions in SAFETEA-LU or other regulations.

This guidance is divided into three sections, as follow:

-   [Environmental Review Process](#the-environmental-review-process) --
    Section 1 contains guidance on elements of the environmental review
    process, including the applicability of this process; project
    initiation; the roles and responsibilities of the project sponsor,
    and the lead, cooperating, and participating agencies; and the
    analysis of alternatives.

-   [Process Management](#process-management) -- Section 2 focuses on
    the management of the environmental review process and includes
    coordination and scheduling, public involvement, concurrent reviews,
    issue resolution, mitigation commitments, the adoption and use of
    documents, and interagency funding.

-   [Statute of Limitations](#statute-of-limitations) -- Section 3
    focuses on the statute of limitations provisions of SAFETEA-LU. FHWA
    and FTA have somewhat different procedures for implementing the
    statute of limitations provisions, as described in Section 3.

This guidance also includes several appendices: [Appendix
A](#Appendix_A2) contains the full text of 23 USC §139, and [Appendix
B](#appendix-b) contains sample invitation letters to a participating
agency. [Appendix C](#appendix-c) features the document, *Interagency
Guidance: Transportation Funding for Federal Agency Coordination
Associated with Environmental Streamlining Activities*. [Appendix
D](#appendix-d) is the FHWA/FTA guidance, *Linking the Transportation
Planning and National Environmental Policy Act* *(NEPA) Processes,*
issued in February 2005.[^1] Finally, [Appendix E](#appendix-e) provides
the updated guidance, including attachments, for FHWA implementation of
the 180-day statute of limitations established by SAFETEA-LU in 23
U.S.C. §139(l).

The intent of this guidance is to provide project sponsors with as much
flexibility as possible in administering the environmental review
process, while providing a framework to facilitate efficient project
management and decisionmaking in accordance with the law. In addition,
this guidance is intended to assist agencies and related entities
involved specifically in the development of [environmental impact
statements (EISs)](#Environmental_Impact_Statement). Because the size
and scope of EISs can vary, adjustments to the recommended approaches
included in this guidance may be appropriate, but the minimum statutory
requirement is always noted.

#  {#section .unnumbered}

# The Environmental Review Process

SAFETEA-LU establishes a new [environmental review
process](#Environmental_Review_Process) for transportation projects
developed as environmental impact statements (EIS). All EISs for which
the Notice of Intent (NOI) was published after August 10, 2005, must
follow SAFETEA-LU's requirements. These requirements are intended to
promote efficient project management by [lead
agencies](#Lead_Agencies_Text) and enhanced opportunities for
coordination with the public and with other Federal, State, local, and
tribal government [agencies](#AgencyDef) during the project development
process.

This section focuses on the different elements of the environmental
review process, and provides information on project initiation; the
roles and responsibilities of the project sponsor, and the lead,
participating, and cooperating agencies; the development of project
purpose and need; the analysis of alternatives, the identification and
design of the preferred alternative; and opportunities for public
involvement. One of SAFETEA-LU's new requirements is that for project
initiation to occur and for the environmental review process to begin,
the [project sponsor](#Project_Sponsor) must notify the lead Federal
agency at the U.S. Department of Transportation (USDOT) about the
project. This guidance includes information on the notification
procedures, the activities that can be undertaken before project
initiation, and several related topics.

Through its language on the roles and responsibilities of lead,
cooperating, and participating agencies, SAFETEA-LU emphasizes the
responsibilities of the lead agencies under NEPA 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 one or more of the USDOT modal agencies will always be the lead
Federal agency on a Federal transportation project, USDOT will share the
lead agency role with other governmental entities, as defined by the
law. Therefore, unless otherwise specified to indicate an ultimate
decisionmaker, the term "lead agency(ies)" throughout the guidance
refers to a collaboration among all joint lead agencies in making a
decision or performing a task. The lead agencies are free to perform all
tasks and make all decisions jointly, or to allocate their joint
responsibilities and authorities among themselves by mutual written
agreement.

To enhance interagency coordination and ensure that issues of concern
are identified, SAFETEA-LU creates a new category of involvement in the
environmental review process termed "participating agency." The intent
of the new category is to encourage governmental agencies at any level
to be active participants in the NEPA evaluation. Designation as a
participating agency does not indicate project support, but does give
invited agencies new opportunities to provide input at key decision
points in the process. The participating agencies also may help with the
early identification of issues of concern that may delay the project.
The lead agencies must consider the input of participating agencies
during the development of the purpose and need and in the identification
of the range of alternatives. In addition, the lead agencies must
collaborate with the participating agencies in determining the
methodologies and level of detail for the analysis of alternatives.

Likewise, SAFETEA-LU specifies that the lead agencies also must give the
public the opportunity for involvement during the development of the
purpose and need statement and the identification of the range of
alternatives to be considered. Prior to SAFETEA-LU, the public scoping
process typically included these elements of a NEPA review, but there
was no explicit Federal requirement to provide an opportunity for public
involvement on purpose and need and on the range of alternatives in
advance of the draft environmental impact statement (DEIS).

Finally, SAFETEA-LU encourages efficiency in the environmental review
process by allowing the lead agencies to decide whether to develop the
preferred alternative to a higher level of design detail for mitigation
purposes or to facilitate compliance with other laws. This guidance
addresses the timing and information needed to make that decision.

## General Information about the Environmental Review Process {#general-information-about-the-environmental-review-process .unnumbered}

### Question 1: What does the term "transportation project" mean in this guidance?  {#question-1-what-does-the-term-transportation-project-mean-in-this-guidance .unnumbered}

> **Answer:** Within this guidance, the term "transportation project"
> means any highway project, any public transportation capital project,
> and any multimodal project that requires an approval from FHWA or FTA.

###  {#section-1 .unnumbered}

### Question 2: To which agencies does the term "USDOT" refer?  {#question-2-to-which-agencies-does-the-term-usdot-refer .unnumbered}

**Answer:** Within this guidance, the term "USDOT" means FHWA or FTA,
whichever agency must approve the transportation project under
evaluation. In the case of a multimodal highway-transit project
requiring approvals from both agencies, "USDOT" means both FHWA and FTA.
Where FHWA has assigned certain environmental responsibilities to a
State under [Section
6005](http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/E6-4911.htm)
of SAFETEA-LU, "USDOT" means the State department of transportation
(State DOT), to the extent the State has been delegated FHWA
environmental responsibilities and authorities.

### Question 3: What is meant by the "environmental review process"?  {#question-3-what-is-meant-by-the-environmental-review-process .unnumbered}

**Answer:** The term "environmental review process" means the project
development process followed when preparing a document required under
NEPA regulations for a transportation project. The term also includes
the process for, and completion of, any environmental permit, approval,
review, or study required for the transportation project under any
Federal law other than NEPA. Some of the other Federal environmental
laws, such as "Section 4(f)" ([49 USC
§303](http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+49USC303)),
are within the purview of USDOT, and some, such as [Section 404
permitting](http://www.epa.gov/owow/wetlands/regs/sec404.html), are
under the authority of other Federal agencies.

> USDOT is responsible for ensuring that any EIS or other required NEPA
> document for a transportation project is prepared and completed in
> accordance with SAFETEA-LU and other applicable Federal laws and
> regulations. SAFETEA-LU also tasks USDOT with managing and
> facilitating the advancement of a transportation project through the
> environmental reviews under the purview of other agencies. Therefore,
> USDOT's involvement may extend into "post-NEPA" project development
> activities that will encourage timely environmental approvals, permits
> or actions, as needed.

### Question 4: How do the environmental requirements for metropolitan and statewide planning in Sections 3005, 3006, and 6001 of SAFETEA-LU relate to the environmental review process? {#question-4-how-do-the-environmental-requirements-for-metropolitan-and-statewide-planning-in-sections-3005-3006-and-6001-of-safetea-lu-relate-to-the-environmental-review-process .unnumbered}

> **Answer:** SAFETEA-LU Sections 3005, 3006, and 6001 require that:
>
> The transportation planning process provide 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;

-   Transportation plans be developed in consultation with State,
    tribal, and local agencies responsible for land-use management,
    natural resources, conservation, environmental protection, and
    historic preservation;

-   This consultation involve a comparison of transportation plans with
    State, tribal, and local conservation plans and maps, if available,
    and with inventories of natural and historic resources, if
    available; and

-   Transportation plans include a discussion of potential environmental
    mitigation activities and potential areas to carry out these
    activities.

> As presented in the USDOT guidance on linking planning and NEPA
> processes ([Appendix D](#appendix-d)), these planning activities can
> contribute to establishing the purpose and need for a project,
> determining the range of reasonable alternatives, assessing the
> cumulative impacts of the projects in the plan, and developing an
> approach to mitigating the adverse impacts of a project. In addition,
> the agencies identified during the planning consultations may be
> invited to act as "participating agencies" (defined in [Questions 21
> to
> 29](#question-21-which-agencies-should-be-invited-to-be-participating-agencies-and-how-is-this-decided)),
> if appropriate. Questions
> [11](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated),
> [12](#question-12-when-should-the-notification-for-project-initiation-occur),
> [13](#question-13-for-fta-new-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-new-starts-project-development-process),
> and
> [35](#question-35-how-does-the-transportation-planning-process-relate-to-the-development-of-a-projects-purpose-and-need-statement)
> address other aspects of linking the planning and environmental review
> processes.

### Question 5: How does the SAFETEA-LU environmental review process relate to FHWA's emphasis on context sensitive solutions (CSS)? {#question-5-how-does-the-safetea-lu-environmental-review-process-relate-to-fhwas-emphasis-on-context-sensitive-solutions-css .unnumbered}

> **Answer:** FHWA's [CSS
> program](http://www.fhwa.dot.gov/csd/activities.htm) encourages the
> early, continuous, and meaningful involvement of the public and the
> use of a collaborative, interdisciplinary approach that involves all
> stakeholders throughout the project development process. The goal of
> CSS is to develop a transportation facility that fits its physical
> setting and preserves scenic, aesthetic, historic, and environmental
> resources, while satisfying the project's purpose and need. The
> SAFETEA-LU requirements of providing opportunities for the involvement
> of the public and participating agencies in the development of project
> purpose and need and the range of alternatives support the intent of
> these CSS principles.

### Question 6: Do the new requirements in SAFETEA-LU affect existing merger agreements for integrating NEPA and other environmental laws and regulations? {#question-6-do-the-new-requirements-in-safetea-lu-affect-existing-merger-agreements-for-integrating-nepa-and-other-environmental-laws-and-regulations .unnumbered}

> Answer: Existing interagency agreements may be used to satisfy the
> SAFETEA-LU coordination requirements for many elements of the
> environmental review process. However, interagency merger agreements
> should be reviewed to determine if they meet the requirements of
> SAFETEA-LU. In particular, agreements that call for other agencies to
> "concur" in purpose and need statements and the range of alternatives
> should be renegotiated or reinterpreted to indicate that agencies are
> free to offer input---supportive or adverse---at these points. These
> comments will be taken into consideration by the lead agencies when
> they exercise their responsibility to establish the purpose and need
> (23 U.S.C 139(f)(2)) and range of alternatives (23 U.S.C.
> 139(f)(4)(B)) for the NEPA document. Working with those agencies that
> have independent jurisdiction by law to develop a purpose and need
> statement and alternatives that are mutually acceptable, so that one
> NEPA document can satisfy both agencies' requirements, is in the best
> interest of efficiency and good government. (See Questions
> [**32**](#question-32-who-is-responsible-for-developing-the-projects-purpose-and-need)
> and
> [**36**](#question-36-who-is-responsible-for-developing-the-range-of-alternatives).)

### Question 7: Do the new requirements in SAFETEA-LU Section 6002 apply to Tier 1 EIS documents? {#question-7-do-the-new-requirements-in-safetea-lu-section-6002-apply-to-tier-1-eis-documents .unnumbered}

> Answer: The SAFETEA-LU requirements do apply to Tier I EISs. The NEPA
> regulations of USDOT and CEQ permit the tiering of EISs ([**23 CFR
> 771.111(g)**](http://www.fhwa.dot.gov/legsregs/directives/fapg/cfr0771.htm)
> and [**40 CFR
> 1502.02**](http://ceq.eh.doe.gov/nepa/regs/ceq/1502.htm#1502.20)). The
> first tier EIS would address broad issues in the study area, such as
> the effectiveness of complementary transportation actions of various
> modes and general locations in alleviating the transportation problems
> in the study area. The initiation of a first tier EIS does trigger the
> SAFETEA-LU requirements, although the description of the "type of
> work" and other information for project initiation (see [**Question
> 11**](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated)),
> the impact assessment methodologies, the corresponding coordination
> plan with participating agencies, and other features of the review
> process will reflect the broader level of decisionmaking at the Tier 1
> planning phase.

## Applicability Requirements [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Applicabilty) {#applicability-requirements-link-to-safetea-lu .unnumbered}

### Question 8: Which projects must follow the environmental review process?  {#question-8-which-projects-must-follow-the-environmental-review-process .unnumbered}

**Answer:** All transportation projects requiring an EIS for which the
original Notice of Intent (NOI) was published in the *Federal Register*
after August 10, 2005, must follow the procedures outlined in this
guidance, with the limited exception addressed in [Question
9](#question-9-when-can-a-state-use-its-existing-environmental-review-process-instead-of-safetea-lu)
below.

USDOT also has the authority under Section 6002 to apply its
requirements to certain classes of projects or individual projects that
are developed as environmental assessments (EAs) or categorical
exclusions (CEs). For FHWA, this decision will be made by the Division
Office in consultation with the project sponsor and other lead agencies
on a case-by-case basis for individual projects or classes of projects.
At this time, FTA does not intend to exercise the authority to apply
Section 6002 to EAs or CEs through this guidance.

### Question 9: When can a State use its existing environmental review process instead of SAFETEA-LU? {#question-9-when-can-a-state-use-its-existing-environmental-review-process-instead-of-safetea-lu .unnumbered}

**Answer:** SAFETEA-LU permits States that "re-engineered" their
environmental review process to streamline transportation decisionmaking
under the provisions of [§1309 of the Transportation Equity Act for the
21](http://www.fhwa.dot.gov/Tea21/h240subc.htm#1309)^st^ Century
(TEA-21) to request a grandfathering exemption to continue operating
under those processes. States wishing to pursue this grandfathering
exemption must submit a request to the FHWA Office of Planning,
Environment, and Realty for review and approval by December 31, 2006.
The request must provide supporting documentation that demonstrates that
the State's existing process meets the intent and legal criteria to have
received FHWA approval under TEA-21 §1309.

FTA did not approve any re-engineered streamlining processes during the
lifetime of TEA-21. Therefore, this SAFETEA-LU provision would apply
only to an FTA project sponsored or co-sponsored by a State DOT whose
TEA-21 process has been officially accepted by FHWA.

### Question 10: If a NEPA review for which the NOI was issued prior to the date of enactment of SAFETEA-LU (August 11, 2005) is being re-evaluated due to a 3-year lapse in activity, or re-scoped for any reason, or if a supplemental EIS (SEIS) is needed, must the SAFETEA-LU environmental review process be followed? {#question-10-if-a-nepa-review-for-which-the-noi-was-issued-prior-to-the-date-of-enactment-of-safetea-lu-august-11-2005-is-being-re-evaluated-due-to-a-3-year-lapse-in-activity-or-re-scoped-for-any-reason-or-if-a-supplemental-eis-seis-is-needed-must-the-safetea-lu-environmental-review-process-be-followed .unnumbered}

**Answer:** On a project for which the NOI was issued prior to the
enactment of SAFETEA-LU, the SAFETEA-LU environmental review process
need not be followed if:

(1) a re-evaluation is performed that results in a determination that an
    SEIS or new EIS is not needed;

(2) an SEIS of limited scope as described in [23 CFR
    771.130(f)](http://a257.g.akamaitech.net/7/257/2422/04nov20031500/edocket.access.gpo.gov/cfr_2001/aprqtr/23cfr771.130.htm)
    that does not involve the reassessment of the entire action is
    needed; or

(3) an EIS that was under active development during the 8 months prior
    to August 11, 2005, as evidenced by one or more of the following:
    documented meetings with members of the public or other agencies,
    correspondence with other agencies, or publication of project
    newsletters, is being re-scoped due to changes in plans or
    priorities, even if a revised NOI is issued.

In all other cases of re-scoping or reassessing the entire action
through an SEIS or new EIS, the SAFETEA-LU environmental review process
must be followed (except in States with an approved TEA-21 procedure, as
described in [Question
9](#question-9-when-can-a-state-use-its-existing-environmental-review-process-instead-of-safetea-lu)).

## Project Initiation [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Project_Initiation) {#project-initiation-link-to-safetea-lu .unnumbered}

### Question 11: How is the environmental review process for a transportation project initiated? {#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated .unnumbered}

**Answer:** To initiate the environmental review process for a
transportation project, SAFETEA-LU requires that the project sponsor
notify USDOT about the type of work, termini, length, and general
location of the proposed project. The notification letter should be
signed by the official authorized to sign EISs for the sponsoring agency
or that official's authorized delegate, and should be sent to the FHWA
Division Administrator or FTA Regional Administrator. The project
sponsor also must provide a statement that describes any other Federal
approvals (e.g., Section 404 permits) anticipated to be necessary for
the proposed project. The information required to initiate the
environmental review process may be generated by the metropolitan or
statewide planning processes, or by other means such as corridor
planning studies, traffic studies, or congestion or pavement management
systems. For more information, see [Question
35](#question-35-how-does-the-transportation-planning-process-relate-to-the-development-of-a-projects-purpose-and-need-statement)
and [Appendix D](#appendix-d).

###  Question 12: When should the notification for project initiation occur? {#question-12-when-should-the-notification-for-project-initiation-occur .unnumbered}

**Answer:** The timing of the notification is flexible and occurs when
(1) the proposed transportation project is sufficiently defined to
provide the required information noted in [Question
11](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated),
and (2) the project sponsor is ready to proceed with the NEPA phase of
project development. The notification would normally occur prior to the
publication of the notice of intent (NOI) in the *Federal Register* and
may even occur within the transportation planning process, if an
appropriate level of project information is available.

### Question 13: For FTA New Starts projects, how does the NEPA process, as enhanced by Section 6002, interface with the planning Alternatives Analysis that is part of the New Starts project development process? {#question-13-for-fta-new-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-new-starts-project-development-process .unnumbered}

**Answer:** FTA does not envision any change in the NEPA-New Starts
interface as a result of Section 6002. The planning Alternatives
Analysis required for FTA New Starts projects and defined in [49 USC
5309(a)(1)](http://www.fta.dot.gov/legal/statutes/49_usc_53/501_2114_ENG_HTML.htm)
may still be performed prior to initiating the environmental review
process or concurrent with and merged into the environmental review
process. The sponsoring transit agency, in consultation with FTA, has
the discretion to decide which approach to use.

Performing the New Starts planning Alternatives Analysis prior to the
environmental review process (so called "Option 1") is most effective
when the study area has complex transportation issues and a myriad of
potential solutions, including alternative transportation modes, transit
technologies, and alignments, and combinations thereof. In this case, a
planning study to focus the issues is appropriate before initiating the
environmental review process. When project initiation, as described in
[Question
11](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated),
occurs after the New Starts planning Alternatives Analysis, at the start
of the environmental review process, "type of work" would be identified
as the specific transit technology (e.g., light rail transit (LRT), bus
rapid transit (BRT), commuter rail train, rail rapid transit) and
general alignment adopted by the metropolitan planning organization
(MPO) into the metropolitan transportation plan.

Performing the New Starts Alternatives Analysis concurrent with and
merged into the environmental review process (so called "Option 2") is
most effective when the transit technology and alignment alternatives in
the study area are severely limited by development patterns and
densities and by available right-of-way. When the New Starts
Alternatives Analysis is performed concurrent with and merged into the
environmental review process, project initiation would occur at the
start of the New Starts Alternatives Analysis and environmental review
process. "Type of work" would be identified as "fixed guideway transit"
because a transit technology has not yet been formally proposed. After
the public hearing on the New Starts Alternatives Analysis/DEIS and MPO
adoption of a transit technology and general alignment into the
metropolitan transportation plan, a supplemental DEIS may be necessary
in accordance with [23 CFR
771.130(e)](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3ecfd4573812ca81876f356518723d9b&rgn=div5&view=text&node=23:1.0.1.8.42&idno=23#23:1.0.1.8.42.0.1.16).

Certain New Starts project sponsors have advocated publishing a *Federal
Register* notice of intent to prepare an EIS, more accurately called an
"early scoping notice," and then conducting the New Starts planning
Alternatives Analysis as a super-extended scoping process (so called
"Option 1.5"). This option may provide an opportunity to identify and
engage participating agencies (as [defined
below](#participating-agencies-link-to-safetea-lu)) earlier, i.e.,
during the New Starts planning Alternatives Analysis, through the early
scoping notice. The USDOT guidance on linking the planning and the NEPA
processes ([Appendix D](#appendix-d)) states that, for the results of a
planning study (including a New Starts planning Alternatives Analysis)
to be carried forward into the environmental review process, those
results must be subjected to public and interagency review and comment
during the scoping of the EIS, among other requirements. Section 6002
does not change the USDOT guidance of February 2005 in [Appendix
D](#appendix-d). Under this option, project initiation would occur after
the New Starts planning Alternatives Analysis at the start of the
environmental review process and "type of work" would be identified as
the specific transit technology (e.g., LRT, BRT, commuter rail train,
rail rapid transit) and general alignment adopted by the MPO into the
metropolitan transportation plan.

## Lead Agencies [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Lead_Agencies_Text) {#lead-agencies-link-to-safetea-lu .unnumbered}

### Question 14: What agencies must serve as lead agencies in the environmental review process?  {#question-14-what-agencies-must-serve-as-lead-agencies-in-the-environmental-review-process .unnumbered}

**Answer:** USDOT must serve as the lead Federal agency for a
transportation project. The direct recipient of Federal funds for the
project must serve as a joint lead agency.

For FHWA, the State DOT typically is the direct recipient of project
funds, and therefore, serves as a joint lead agency along with FHWA.

For FTA, the local transit agency typically is the direct recipient of
project funds, and therefore serves as a joint lead agency along with
FTA. In practice, the role of the local transit agency in an FTA NEPA
review is not expected to change as a result of the Section 6002
provision on lead agencies. Section 6002 merely provides the statutory
authority for transit agencies to perform the role in NEPA reviews that
they have traditionally performed.

###  Question 15: Which other agencies may serve as joint lead agencies? {#question-15-which-other-agencies-may-serve-as-joint-lead-agencies .unnumbered}

**Answer:** Section 6002 makes no change regarding which other Federal
agencies may serve as joint lead agencies. In addition to the required
lead agencies, other governmental entities may act as [joint lead
agencies, at the discretion of
USDOT](http://ceq.eh.doe.gov/nepa/regs/ceq/1501.htm#1501.5), in
accordance with CEQ regulations. For example, the U.S. Department of
Homeland Security may serve as a joint lead agency with USDOT and the
project sponsor on a transportation improvement at a national border
crossing. The environmental documents prepared must satisfy the
requirements of both lead Federal agencies.

Private entities, either acting as sponsors or co-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 16: 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? {#question-16-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 .unnumbered}

**Answer:** On any project for which the State DOT is the direct
recipient of Federal transportation funds, the State DOT is required to
act as a joint lead agency with the USDOT Federal lead agency. Local
government agencies that are subrecipients of Federal funds are not
required to serve, but may [serve as joint lead agencies at the
discretion of
USDOT](http://ceq.eh.doe.gov/nepa/regs/ceq/1501.htm#1501.5).

### Question 17: How does the lead Federal agency requirement apply to the FHWA Public Lands Highway Program and FTA's Alternative Transportation in Parks and Public Lands Program?  {#question-17-how-does-the-lead-federal-agency-requirement-apply-to-the-fhwa-public-lands-highway-program-and-ftas-alternative-transportation-in-parks-and-public-lands-program .unnumbered}

**Answer:** SAFETEA-LU specifically states that USDOT shall be the
"Federal lead agency" for the environmental review process for any
project requiring a USDOT approval. Section 6002 does not apply to
projects carried out by Federal Lands Highway that are for another
agency and do not use Title 23 funds. Existing agreements with Federal
land management agencies that designate FHWA as a cooperating agency
should be amended or replaced to ensure that FHWA is designated as the
lead or joint lead agency. New agreements between FTA and Federal land
management agencies related to the new Alternative Transportation
program ([49 USC
5320](http://www.fta.dot.gov/legal/statutes/49_usc_53/501_2124_ENG_HTML.htm))
will specify that FTA is the lead or joint lead agency for the
environmental review process. An agreement establishing joint lead
agency status for multiple Federal agencies should provide that
environmental documents prepared under that agreement satisfy the
requirements of all lead agencies.

### Question 18: What are the roles of lead agencies under SAFETEA-LU?  {#question-18-what-are-the-roles-of-lead-agencies-under-safetea-lu .unnumbered}

**Answer:** The lead agencies must perform the functions that they have
traditionally performed in preparing an EIS in accordance with [23 CFR
part 771](http://www.fhwa.dot.gov/legsregs/directives/fapg/cfr0771.htm)
and [40 CFR parts
1500-1508](http://ceq.eh.doe.gov/nepa/regs/ceq/toc_ceq.htm). In
addition, the lead agencies now must identify and involve participating
agencies; develop coordination plans; provide opportunities for public
and participating agency involvement in defining the purpose and need
and determining the range of alternatives; and collaborate with
participating agencies in determining methodologies and the level of
detail for the analysis of alternatives. In addition, lead agencies must
provide increased oversight in managing the process and resolving
issues.

### Question 19: How has USDOT's role as lead Federal agency changed under SAFETEA-LU? {#question-19-how-has-usdots-role-as-lead-federal-agency-changed-under-safetea-lu .unnumbered}

**Answer:** SAFETEA-LU strengthens the management and facilitation role
of USDOT as the lead Federal agency during the environmental review
process. USDOT, therefore, must perform the duties previously associated
with the lead Federal agency and is responsible for the overall
direction of the environmental review process and for expediting the
delivery of the transportation project. At times, this role will require
that USDOT take more proactive and assertive actions than in the past to
facilitate the timely and adequate delivery of the environmental review
process. Such actions may include deciding on issues, enforcing
established schedules, facilitating conflict resolution, or
appropriately asserting itself in other ways to ensure that the
environmental review process moves forward in a timely manner.

### Question 20: Which agencies can prepare the environmental document?  {#question-20-which-agencies-can-prepare-the-environmental-document .unnumbered}

**Answer:** For FHWA, any of the joint lead agencies can prepare the
environmental document. The decision on who will prepare the document is
a joint decision by the lead agencies. For FTA, the transit agency will
continue to prepare the environmental document under the guidance and
direction of FTA. The lead Federal agency remains responsible for the
content of the document. SAFETEA-LU does not change the responsibility
of USDOT, as the lead Federal agency, to furnish guidance, independently
evaluate and approve documents under its authority, and ensure that
project sponsors comply with mitigation commitments.

## Participating Agencies [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Section139d) {#participating-agencies-link-to-safetea-lu .unnumbered}

###  {#section-2 .unnumbered}

### Question 21: Which agencies should be invited to be participating agencies, and how is this decided? {#question-21-which-agencies-should-be-invited-to-be-participating-agencies-and-how-is-this-decided .unnumbered}

**Answer:** All Federal, State, tribal, regional, and local government
agencies that may have an interest in the project should be invited to
serve as participating agencies. Nongovernmental organizations and
private entities cannot serve as participating agencies.

Although the project sponsor initially identifies potential
participating agencies, the lead agencies collectively decide which
agencies to invite to serve as participating agencies. Some reasonable
division of labor among the lead agencies in distributing the
invitations may be appropriate. For example, the lead agencies may agree
that the project sponsor will be responsible for inviting State and
local agencies, and that the USDOT agency will be responsible for
Federal agencies and Native American tribal governments. Such an
understanding should be defined in the coordination plan ([discussed
below](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)),
or in some other written form.

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 permitting authority,
special expertise, or interest in transportation projects. In some
States, this list may vary depending on the location of proposed
projects. The process for identifying possible State and local agencies
may be more difficult than the process of identifying Federal agencies.
A good first step toward finding State or local agencies to serve as
participating or cooperating agencies is to look at the agencies already
participating in the NEPA streamlining or NEPA/404 merger processes.
These include the State historic preservation offices, regional planning
agencies, and departments of natural resources.

FTA will work with joint lead agencies to develop a list of potential
participating agencies on a case-by-case basis. Over time, as transit
projects are advanced through SAFETEA-LU's new environmental review
process, FTA anticipates developing a database of agencies interested in
transit projects within each metropolitan area.

### Question 22: What are the roles and responsibilities of participating agencies?  {#question-22-what-are-the-roles-and-responsibilities-of-participating-agencies .unnumbered}

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

-   Participating in the NEPA process starting at the earliest possible
    time, especially with regard to the development of the purpose and
    need statement, range of alternatives, methodologies, and the level
    of detail for the analysis of alternatives.

-   Identifying, as early as practicable, any issues of concern
    regarding the project's potential environmental or socioeconomic
    impacts. Participating agencies also may participate in the issue
    resolution process described later in this guidance.

-   Providing meaningful and timely input on unresolved issues.

-   Participating in the scoping process.

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 its statutory limits, if applicable.

### Question 23: Who sends out the invitations to serve as participating agencies? When should the invitation be sent?  {#question-23-who-sends-out-the-invitations-to-serve-as-participating-agencies-when-should-the-invitation-be-sent .unnumbered}

**Answer:** Any of the lead agencies may send invitations to potential
participating agencies. Unless there is an agreement between the project
sponsor and a particular Native American Tribe regarding direct
coordination, the lead Federal agency shall be responsible for inviting
federally recognized tribes that may have an interest in the project.

Potential participating agencies should be identified and invited to
serve after project initiation, which is described in [Question
11](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated).

### Question 24: What needs to be included in the invitation sent to potential participating agencies?  {#question-24-what-needs-to-be-included-in-the-invitation-sent-to-potential-participating-agencies .unnumbered}

**Answer:** The invitation should be in the form of a hardcopy letter
and must include a basic project description and map of the project
location. The project description may be included with scoping materials
enclosed with the letter. The invitation must clearly request the
involvement of the agency as a participating agency and should state the
reasons why the project is expected to interest the invited agency. Lead
agencies should bear in mind that invited agencies (e.g., EPA) may have
obligations under several authorities, and, in such case, 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. A response deadline of no
more than 30 days, similar to the comment deadlines set forth in
SAFETEA-LU, is suggested. See [Appendix B](#appendix-b) for sample
invitation letters for FHWA and FTA.

### Question 25: What is involved in accepting or declining an invitation to be a participating agency?  {#question-25-what-is-involved-in-accepting-or-declining-an-invitation-to-be-a-participating-agency .unnumbered}

**Answer:** The invitation should request a response either accepting or
declining the role of participating agency. Per SAFETEA-LU, a Federal
agency invited to participate shall be designated as a participating
agency unless the agency declines the invitation by the specified
deadline. If a Federal agency chooses to decline, their response letter
must state 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.
If the Federal agency's response does not state the agency's position in
these terms, then the agency should be treated as participating agency.

A State, tribal, or local agency must respond affirmatively to the
invitation to be designated as a participating agency. If the State,
tribal, or local agency fails to respond or declines the invitation,
regardless of the reasons for declining, the agency should not be
considered a participating agency.

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

### Question 26: What happens if an agency does not initially become a participating agency, but subsequent events indicate that the agency wants or needs to become involved in the environmental review process?  {#question-26-what-happens-if-an-agency-does-not-initially-become-a-participating-agency-but-subsequent-events-indicate-that-the-agency-wants-or-needs-to-become-involved-in-the-environmental-review-process .unnumbered}

**Answer:** The answer depends on the situation, as illustrated in the
following scenarios:

-   If an invited agency declines to be a participating agency, but the
    lead agencies think the invited agency has jurisdiction or authority
    over the project and will be required to make a decision about the
    project, or if the invited agency has acknowledged special expertise
    or has 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 may wish to pursue the statutory issue resolution process
    described in [Questions 61 through
    63](#issue-identification-and-resolution-link-to-safetea-lu) below.

-   If an agency correctly declines an invitation, 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
    has agreed to be a participating agency, then it would be a part of
    the consultation process for making that determination.

-   If an agency declines an invitation to become a participating agency
    and later wants to participate, then the agency should be invited to
    become a participating agency but previous decisions will not be
    revisited.

-   If initially an agency was unintentionally left out and now wants to
    participate, the agency should be extended an invitation to become a
    participating agency as soon as the oversight is realized. The lead
    agencies should request input and consider whether and how the new
    agency's participation in the process 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.

###  {#section-3 .unnumbered}

### Question 27: What happens if an agency declines to be a participating agency, but later submits comments on the project?  {#question-27-what-happens-if-an-agency-declines-to-be-a-participating-agency-but-later-submits-comments-on-the-project .unnumbered}

**Answer:** All Federal agencies with jurisdiction or authority over the
project, or acknowledged special expertise or information relevant to
the project, by necessity should be cooperating or participating
agencies. Any other agency that has an interest, but declines to be a
participating agency, is free to comment on the project in the same
manner that a member of the public may comment. The lead agencies will
always consider any substantive comments submitted by interested
parties. However, the comments of agencies that decline an invitation to
participate are not entitled to any greater or lesser deference than
those of the general public. In order to avoid misunderstandings, the
lead agencies should make it clear in the responses to the agency's
comments and in any subsequent coordination that the agency declined to
serve as a participating agency.

If the comments made by a Federal agency that declines participating
agency status present substantial problems that may delay completion of
the environmental review process, the matter should be submitted to the
appropriate USDOT headquarters office and Federal agency headquarters
for resolution. If issues of concern arise based on such agency's
comments that cannot otherwise be resolved, then the lead agencies may
consider pursuing the issue resolution procedures described in
[Questions 61 through
63](#issue-identification-and-resolution-link-to-safetea-lu) below.

###  {#section-4 .unnumbered}

### Question 28: What if an agency becomes a participating agency, but does not fully participate during the environmental review process?  {#question-28-what-if-an-agency-becomes-a-participating-agency-but-does-not-fully-participate-during-the-environmental-review-process .unnumbered}

**Answer:** The intent of the concept of "participating agency" is to
allow for early and timely input regarding issues of concern. Therefore,
it is incumbent upon the participating agencies to provide meaningful
input at appropriate opportunities. Failure to raise issues that could
have been addressed during such opportunities may result in these
comments not receiving due consideration later in the decisionmaking
process.

Expectations and commitments about agency participation should be
addressed in the coordination plan described in [Questions 47 through
53](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)
below. It is appropriate to tailor agency participation to meet project
and agency needs. If the coordination plan calls for agency involvement
in a particular issue, and the agency does not participate in that
issue, the lead agencies must decide how critical the agency's input is
to making a decision on the issue. If the participating agency has no
jurisdiction or acknowledged expertise that relates to the issue, the
lead agencies may decide to complete the decisionmaking on that issue
and move forward. If the lead agencies determine that participation by
the agency in question is critical and may affect future decisions on
the project, then the lead agencies may wish to pursue informal dispute
resolution with the affected participating agency. Use of the formal
dispute resolution procedures discussed in [Questions 61 through
63](#issue-identification-and-resolution-link-to-safetea-lu) below, may
be an option if the lead agencies deem the agency's participation to be
critical to the project.

### Question 29: If an agency decides not to submit comments or otherwise participate in USDOT's environmental review process, can that agency still submit comments to non-USDOT agencies when they review the project and make decisions under other laws?  {#question-29-if-an-agency-decides-not-to-submit-comments-or-otherwise-participate-in-usdots-environmental-review-process-can-that-agency-still-submit-comments-to-non-usdot-agencies-when-they-review-the-project-and-make-decisions-under-other-laws .unnumbered}

**Answer:** SAFETEA-LU requires all Federal agencies, to the maximum
extent practicable, to carry out their responsibilities under other laws
in a manner that is concurrent and coordinated with the USDOT review
process \[[23 USC 139(d)(7)](#Concurrent_Reviews)\]. Nothing in
SAFETEA-LU prevents anyone from submitting comments to a Federal agency
exercising its own jurisdictional authority over a project. However, the
SAFETEA-LU requirements on Federal agency coordination should serve to
encourage the early identification of concerns and thereby prevent the
submission of unexpected or "first time" substantive comments by Federal
agencies during the proceedings of non-USDOT agencies (such as the Corps
of Engineers). Additionally, the coordination plan described in
[Questions 47 through
53](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)
below should build safeguards into the environmental review process to
help ensure timely comments by all participating agencies.

##  {#section-5 .unnumbered}

##  {#section-6 .unnumbered}

## Cooperating Agencies [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Cooperating_Agency)  {#cooperating-agencies-link-to-safetea-lu .unnumbered}

### Question 30: What is the difference between a participating agency and a cooperating agency?  {#question-30-what-is-the-difference-between-a-participating-agency-and-a-cooperating-agency .unnumbered}

**Answer:** Cooperating agencies are, by definition, participating
agencies, but not all participating agencies are cooperating agencies.
The roles and responsibilities of cooperating and participating agencies
are very similar, but cooperating agencies have a slightly higher degree
of authority, responsibility, and involvement in the environmental
review process. Cooperating agencies are, by definition in [40 CFR
1508.5](http://ceq.eh.doe.gov/nepa/regs/ceq/1508.htm#1508.5), agencies
with jurisdiction by law or special expertise, whereas participating
agencies are those with only an interest in the project.

Another distinguishing feature of a cooperating agency is that the CEQ
regulations ([40 CFR Section
1501.6)](http://ceq.eh.doe.gov/nepa/regs/ceq/1501.htm#1501.6) 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](http://ceq.eh.doe.gov/nepa/regs/ceq/1506.htm#1506.3), "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, such as the U.S. Army Corps of
Engineers, who, as cooperating agencies, routinely adopt USDOT
documents.

### Question 31: Must the lead agencies invite an agency that qualifies for both designations to serve as both a cooperating and a participating agency?  {#question-31-must-the-lead-agencies-invite-an-agency-that-qualifies-for-both-designations-to-serve-as-both-a-cooperating-and-a-participating-agency .unnumbered}

**Answer:** An agency that qualifies under CEQ regulations to serve as a
cooperating agency should be invited to serve in that capacity. By
definition, a cooperating agency is also a participating agency and
should be treated as such in accordance with this guidance. Therefore,
the invitation should include all of the roles and responsibilities
expected of the agency. [The SAFETEA-LU requirement](#Section139d) for
the designation of participating agencies does not alter USDOT's
responsibility under the CEQ regulations to consult with agencies
qualifying to be cooperating agencies.

## Purpose and Need [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Purpose_And_Need) {#purpose-and-need-link-to-safetea-lu .unnumbered}

### Question 32: Who is responsible for developing the project's purpose and need? {#question-32-who-is-responsible-for-developing-the-projects-purpose-and-need .unnumbered}

**Answer:** Development of the project's purpose and need should be a
collaborative process in which the lead agencies must provide
opportunities for the involvement of participating agencies and the
public and must consider the input provided by these groups. Per
previous guidance issued by CEQ (see [Question
33](#question-33-what-direction-does-safetea-lu-give-for-the-content-of-the-purpose-and-need-statement)),
which was affirmed by Congress in its conference report on SAFETEA-LU,
participating agencies should afford substantial deference to the
USDOT\'s articulation of the purpose and need for a transportation
action. After considering this input, the lead Federal agency, in
consultation with the other lead agencies, is ultimately responsible for
making the decision regarding the purpose and need used in the NEPA
evaluation.

### Question 33: What direction does SAFETEA-LU give for the content of the purpose and need statement? {#question-33-what-direction-does-safetea-lu-give-for-the-content-of-the-purpose-and-need-statement .unnumbered}

**Answer:** SAFETEA-LU does not substantively change the concept of
purpose and need that was established by CEQ. SAFETEA-LU requires a
clear statement of identified objectives that the proposed project is
intended to achieve for improving transportation conditions. The
objectives should be derived from needs and may include, but are not
limited to, the following outlined in SAFETEA-LU:

-   Achieving a transportation objective identified in an applicable
    statewide or metropolitan transportation plan;

-   Supporting land use, economic development, or growth objectives
    established in applicable Federal, State, local, or tribal plans;

-   Serving national defense, national security, or other national
    objectives, as established in Federal laws, plans, or policies.

> Although many transportation studies have established these listed or
> similar objectives in the past, SAFETEA-LU affirms the use of these
> objectives in establishing the purpose and need for a transportation
> project. For example, the statement of objectives might include goals
> and objectives obtained from Federal, State, or local planning
> documents that describe land use, growth, or other targets or
> limits. These planning objectives might indicate that high density
> land use is planned for the study area and would require improved
> infrastructure. In such a case, it would be appropriate for travel
> demand forecasting or other modeling to consider the future land use
> as long as the land use forecast was obtained from an official
> Federal, State, or local planning document and was determined
> appropriate for use during NEPA. The FHWA/FTA guidance on linking
> planning and NEPA in [Appendix D](#appendix-d) describes
> considerations for using planning information in the NEPA process.

General direction on developing concise and discernable purpose and need
statements is found in the CEQ/USDOT letter exchange found online at
<http://www.environment.fhwa.dot.gov/guidebook/Ginterim.asp> and in
FHWA/FTA Joint Guidance issued July 23, 2003, found online at
<http://www.environment.fhwa.dot.gov/guidebook/Gjoint.asp>.

### Question 34: SAFETEA-LU requires an "opportunity for involvement" for participating agencies and the public in defining the project purpose and need. How can this requirement be satisfied? {#question-34-safetea-lu-requires-an-opportunity-for-involvement-for-participating-agencies-and-the-public-in-defining-the-project-purpose-and-need.-how-can-this-requirement-be-satisfied .unnumbered}

**Answer:** The lead agencies must give participating agencies and the
public the chance to become involved in the development of the project
purpose and need statement in a timely and meaningful way. This
opportunity can occur early during the transportation planning process,
if the project is sufficiently well-defined at that time, or later
during the scoping process. 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.

The opportunity for involvement must be provided prior to the lead
Federal agency's decision regarding the purpose and need presented in
the NEPA document. The project's coordination plan (described in
[Questions 47 through
53](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the involvement
opportunities and the timing of the decision on purpose and need.

### Question 35: How does the transportation planning process relate to the development of a project's purpose and need statement?  {#question-35-how-does-the-transportation-planning-process-relate-to-the-development-of-a-projects-purpose-and-need-statement .unnumbered}

**Answer:** Transportation objectives developed during the
transportation planning process and identified in a statewide or
metropolitan transportation plan should be one of the primary sources of
information leading to a project's purpose and need statement. The
transportation planning process enables State and local governments and
metropolitan planning organizations, with the involvement of
stakeholders and the public, to establish a vision for a region's future
transportation system, define a region's transportation goals and
objectives for realizing that vision, decide which needs to address, and
determine the timeframe for addressing these needs. Out of the process
emerge proposed projects intended to meet the needs and achieve the
objectives of the plan.

When the transportation planning process produces a specific purpose and
need statement for a particular project, that purpose and need can be
used in the NEPA process as follows: if the specific steps outlined in
this guidance to identify participating agencies and to involve these
agencies and the public in the development of the project purpose and
need were taken during the transportation planning process, then further
review of the project purpose and need may not be necessary; otherwise,
the participating agencies and the public must be provided an
opportunity for involvement to further support the planning products
once the environmental review process has been initiated. For more
information, see [Appendix D.](#appendix-d)

## Alternatives Analysis[^2] [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Alternatives_Analyses) {#alternatives-analysis-link-to-safetea-lu .unnumbered}

### Question 36: Who is responsible for developing the range of alternatives? {#question-36-who-is-responsible-for-developing-the-range-of-alternatives .unnumbered}

**Answer:** Development of the range of alternatives should be a
collaborative process in which the lead agencies must provide
opportunities for the involvement of participating agencies and the
public and must consider the input provided by these groups. After
considering this input, the lead Federal agency, in consultation with
the other lead agencies, is ultimately responsible for deciding the
range of alternatives to be considered in the NEPA evaluation.

### Question 37: SAFETEA-LU requires an "opportunity for involvement" by participating agencies and the public in defining the range of alternatives. How can this requirement be satisfied? {#question-37-safetea-lu-requires-an-opportunity-for-involvement-by-participating-agencies-and-the-public-in-defining-the-range-of-alternatives.-how-can-this-requirement-be-satisfied .unnumbered}

**Answer:** The lead agencies must give participating agencies and the
public the chance to become involved in defining the range of
alternatives in a timely and meaningful way. 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. These required involvement
opportunities for purpose and need and range of alternatives may be
concurrent or sequential. 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.

The opportunity for involvement must be provided prior to the lead
Federal agency's decision regarding the range of reasonable alternatives
to be evaluated. The project's coordination plan (described in
[Questions 47 through
53](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the involvement
opportunities and the timing of the decision on the range of
alternatives to be evaluated in the NEPA document.

### Question 38: What new requirements are included in SAFETEA-LU for developing the methodologies for the analysis of alternatives?  {#question-38-what-new-requirements-are-included-in-safetea-lu-for-developing-the-methodologies-for-the-analysis-of-alternatives .unnumbered}

**Answer:** Under SAFETEA-LU, the lead agencies must determine, in
collaboration with the participating agencies, the appropriate
methodologies to be used and the level of detail required in the
analysis of each alternative. Accordingly, the lead agencies must give
participating agencies the opportunity to provide input on the
methodologies and level of detail to be used in the analysis of the
alternatives. The participating agencies may provide input on how the
performance of alternatives will be evaluated or on how the impacts of
alternatives on various resources will be assessed. The project's
coordination plan (described in [Questions 47 through
53](#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the
participating agencies' involvement in developing methodologies for the
analysis of alternatives.

In accordance with [40 CFR
1503.3(b)](http://ceq.eh.doe.gov/nepa/regs/ceq/1503.htm#1503.3), if a
commenting \[participating\] agency criticizes the proposed methodology
to be used in the analysis of an alternative, then the commenting
\[participating\] agency should describe the alternate methodology that
it prefers and state why. 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.

> Given the track record of interagency disagreements over methodology
> late in the development of an EIS, the lead agency should aggressively
> use the scoping process as described in [40 CFR
> 1501.7](http://www.nepa.gov/nepa/regs/ceq/1501.htm#1501.7) to solicit
> public and agency input on possible methodologies and to reach closure
> on what methodologies will be used to evaluate important issues. This
> is particularly important on issues, such as the analysis of indirect
> and cumulative effects, for which questions of methodology are very
> open. As part of this scoping process, the lead agency should
> communicate decisions on methodology to participating agencies soon
> after they are made. Unless the participating agencies object to the
> selected methodologies as described above, in most cases it is
> reasonable for the lead agency to assert that comments on methodology
> received late in the process (after issuance of a DEIS) are not timely
> and will therefore not be acted upon. 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 agency made and communicated the decision on methodology.
>
>  

The involvement of a participating agency in the methodologies and level
of detail can be accomplished on a project-by-project, programmatic, or
regionwide basis, as appropriate. If an approach other than
project-by-project involvement is used, however, the participating
agency must be aware that its input on methodologies and level of detail
will be applied programmatically or regionally by the lead agencies and
must agree in writing to that approach. In the absence of a written
agreement, project-by-project collaboration on methodologies is
required.

## Preferred Alternative [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Alternatives_Analyses) {#preferred-alternative-link-to-safetea-lu .unnumbered}

###  {#section-7 .unnumbered}

### Question 39: Who decides whether the preferred alternative can be developed to a higher level of detail than the other alternatives? {#question-39-who-decides-whether-the-preferred-alternative-can-be-developed-to-a-higher-level-of-detail-than-the-other-alternatives .unnumbered}

**Answer:** The lead Federal agency, in consultation with other lead
agencies, will decide whether to develop the preferred alternative,
after it has been officially identified, to a higher level of detail
than the other alternatives. As a part of that decision, the lead
Federal agency must determine that the development of the preferred
alternative to a higher level of detail than the other alternatives
under review will not prevent the lead agencies from making an impartial
decision on the appropriate course of action. The lead agencies should
agree that a particular alternative is the preferred alternative and
that the relevant conditions stated herein are met, before developing
that alternative in greater detail. A "locally preferred alternative"
that has not been accepted by the lead Federal agency as the preferred
alternative cannot be developed to a higher level of design detail under
this provision of SAFETEA-LU.

### Question 40: Why may a preferred alternative be developed to a higher level of detail?  {#question-40-why-may-a-preferred-alternative-be-developed-to-a-higher-level-of-detail .unnumbered}

**Answer:** SAFETEA-LU permits the preferred alternative to be developed
to a higher level of detail than the other alternatives for only the
following reasons: (1) to facilitate the development of mitigation
measures, or (2) to facilitate concurrent compliance with other
applicable environmental laws. Applied appropriately, this provision
will be an effective tool for achieving the concurrent reviews called
for in SAFETEA-LU.

### Question 41: How is the preferred alternative officially identified? {#question-41-how-is-the-preferred-alternative-officially-identified .unnumbered}

**Answer:** The preferred alternative may be officially identified in a
NEPA document (e.g., the DEIS), which is signed by the appropriate
authority within each lead agency. The preferred alternative also may be
identified by means of a separate letter or other decision document
issued by the State or local lead agency and accepted by the lead
Federal agency. When the State or local lead agency wants to develop an
alternative, which has not yet been identified in a signed NEPA document
as the preferred alternative, to a higher level of detail, then the
official from the State or local lead agency authorized to sign EISs
must send a letter to the lead Federal agency identifying the State or
local agency's preferred alternative and the reasons for that
preference. If the lead Federal agency accepts the identification of the
preferred alternative at that time, it will so indicate to the other
lead agencies. In deciding whether to accept the identification of the
preferred alternative, the lead Federal agency will consider its ability
to comply with Federal requirements such as Section 4(f), the Section
404(b)(1) guidelines, the Executive Order on Floodplain Management, etc.
Once a preferred alternative is officially identified, subsequent NEPA
documents should disclose that preference.

### Question 42: Who can initiate a request for development of a preferred alternative to a higher level of detail, and how is that done?  {#question-42-who-can-initiate-a-request-for-development-of-a-preferred-alternative-to-a-higher-level-of-detail-and-how-is-that-done .unnumbered}

**Answer:** Normally, the State or local lead agency will initiate the
request to develop the preferred alternative to a higher level of
detail. The request may be included in the letter requesting acceptance
of the identification of a preferred alternative. If the preferred
alternative is identified in the DEIS, a separate letter requesting
approval to develop the preferred alternative to a higher level of
detail should be sent to the lead Federal agency by the official
authorized by the agency to sign the EIS, or that official's authorized
delegate.

The request should provide the following information:

-   Reasons why the agency wants to develop the preferred alternative to
    a higher level of detail before completion of NEPA review, including
    the specific Federal laws, impacts, resources, and mitigation
    measures that are being facilitated by the proposed differential
    treatment of the alternatives;

-   The general nature and extent of the work the agency would perform
    on the preferred alternative if the request is approved; and

-   The reasons why greater design detail will not prejudice the lead
    agencies' consideration of other alternatives.

In accordance with good practice for administrative records, the lead
Federal agency should document its determination that the relevant
conditions described in this guidance are met before any work is done to
develop a preferred alternative in greater detail.

### Question 43: When can the lead agencies identify a preferred alternative and allow its development to a higher level of detail? What factors should be considered when deciding? {#question-43-when-can-the-lead-agencies-identify-a-preferred-alternative-and-allow-its-development-to-a-higher-level-of-detail-what-factors-should-be-considered-when-deciding .unnumbered}

**Answer:** USDOT, as lead Federal agency, will not accept the
identification of a preferred alternative prior to the completion of the
scoping process. The decision to develop a preferred alternative to a
higher level of detail may occur only after the preferred alternative
has been officially identified. Therefore, the completion of scoping is
the earliest point that a preferred alternative can be identified and
proposed for development to a higher level of detail.

The scoping process is not complete until the lead agencies have
provided the opportunity for the involvement of the public and
participating agencies in the development of purpose and need and the
range of alternatives, and have considered their input and comments.
This participating agency and public involvement may occur prior to
scoping or during scoping, but the scoping process is not complete until
it has occurred. Although the completion of scoping is the earliest time
that the lead Federal agency will consider accepting the identification
of a preferred alternative, the lead Federal agency may decide even at
that time that such identification is premature.

In any event, a State or local lead agency proposing to develop the
preferred alternative to a higher level of detail should state why it
needs the greater design detail and why such work will not prejudice the
consideration of alternatives. The lead Federal agency should evaluate
carefully any proposal to develop a preferred alternative to a higher
level of detail and consider the potential that such action has for
creating a bias in the later consideration and selection of project
alternatives. The evaluation also should consider other factors that may
affect the environmental review process. Examples of such factors
include whether the identification of a preferred alternative might have
an unacceptably adverse effect on public confidence in the environmental
review process for the project; how the difference in level of detail
among the alternatives might affect the presentation of the alternatives
in the NEPA documents and other documents; or the extent to which the
proposed preferred alternative is supported by the results of public and
participating agency involvement.

### Question 44: What considerations might be relevant to the required lead Federal agency determination about future impartiality? {#question-44-what-considerations-might-be-relevant-to-the-required-lead-federal-agency-determination-about-future-impartiality .unnumbered}

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

-   Whether the information on all alternatives already is sufficiently
    definite and well-developed to identify important resources and
    potential impacts, and to permit a reasonably informed choice.

-   Whether the project coordination plan or the collaboration with
    participating agencies on impact methodologies resulted in an
    agreement about the level of detail for alternatives that can
    continue to guide preparation of the analysis of alternatives.

-   The potential impact of the resulting financial and time commitments
    on overall project costs and schedule if another alternative
    ultimately is selected.

-   The likelihood that fair comparisons among alternatives will result
    despite the identification of a preferred alternative and its
    development to a higher level of detail.

The key question is whether identifying a preferred alternative and
developing it more fully would cause, in the mind of the NEPA
decisionmaker, an imbalanced comparison among alternatives because of
time, money, or energy expended. The lead Federal agency must be
confident that the lead agencies will be able to make a different choice
of alternative, if warranted, at the end of the NEPA process. The use of
this SAFETEA-LU provision must not result in "pro forma" treatment of
alternatives other than the preferred alternative.

### Question 45: Should the development of the preferred alternative to a higher level of design detail affect the presentation of the alternatives in the NEPA environmental document?  {#question-45-should-the-development-of-the-preferred-alternative-to-a-higher-level-of-design-detail-affect-the-presentation-of-the-alternatives-in-the-nepa-environmental-document .unnumbered}

**Answer:** SAFETEA-LU 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. Each alternative must be explored at a sufficient
level of detail to support a reasoned choice.

Key issues for the NEPA alternatives evaluations in these cases will be
the use of "apples-to-apples" comparisons of alternatives, and the
assurance that additional information developed on the preferred
alternative is evaluated to identify and address any new or different
information that might affect the choice of alternatives.

As always, the comparison of alternatives has to 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 must 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 environmental document should disclose the additional design work
and the changes in impacts arising out of that design detail. If the
impacts identified at the higher level of design detail are
substantially different, they should be reviewed to determine whether
additional work on other alternatives and/or reconsideration of the
identification of the preferred alternative is warranted.

###  {#section-8 .unnumbered}

### Question 46: Are there any limitations on how far a preferred alternative can be developed before NEPA is complete and the USDOT Record of Decision (ROD) is issued? {#question-46-are-there-any-limitations-on-how-far-a-preferred-alternative-can-be-developed-before-nepa-is-complete-and-the-usdot-record-of-decision-rod-is-issued .unnumbered}

**Answer:** In accordance with SAFETEA-LU, the additional development of
the preferred alternative may not proceed beyond that level necessary to
identify ways to avoid or further minimize impacts, to develop
mitigation, or to comply with other applicable environmental laws, such
as [Section 404 of the Clean Water
Act](http://www.epa.gov/owow/wetlands/regs/sec404.html), [Section 7 of
the Endangered Species
Act](http://www.fws.gov/Endangered/esa.html#Lnk07), or [Section 106 of
the National Historic Preservation
Act](http://www.achp.gov/106summary.html). 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.

 

# Process Management

This section of the guidance focuses on the parts of SAFETEA-LU Section
6002 that describe some of the logistics of managing the environmental
review process and provides guidance on developing coordination plans
and schedules, undertaking concurrent reviews, identifying and resolving
issues of concern, ensuring compliance with mitigation commitments,
adopting and using documents, and providing or receiving funding for
activities related to the environmental review process.

Regarding coordination and scheduling,
[SAFETEA-LU](#CoordinationandSchedule) requires the establishment of a
plan for coordinating public and agency participation. The coordination
plan may include the development of a schedule for the completion of the
environmental review process. This guidance identifies the factors that
should be considered in establishing a schedule, establishes timeframes
for various activities within the process, and outlines the procedures
to be followed in the event of a failure to make timely decisions. When
using the section on coordination and schedules, the reader also is
directed 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 are closely related.

On the topic of concurrent reviews, [SAFETEA-LU](#Concurrent_Reviews)
indicates that each Federal agency acting as a participating agency
should carry out its obligations under other applicable laws
concurrently and in conjunction with, the review required under NEPA,
unless 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.

[SAFETEA-LU](#IssueIdentificationandResolution) also includes
information on how the agencies involved in a project should identify
and resolve issues of concern. Lead agencies, for example, must make
information available to participating agencies on the environmental and
socioeconomic resources located in the project area and the impacts of
the alternatives on those resources, so that the participating agencies
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 or approval cannot be resolved among the
lead and participating agencies, SAFETEA-LU provides a procedure for
resolution of that issue.

On the issue of ensuring compliance with mitigation commitments,
SAFETEA-LU does not change current USDOT practice specified in the
current regulation at [23 CFR
771.109(b)](http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2003/aprqtr/pdf/23cfr771.109.pdf).
However, by codifying the mitigation requirement in Federal law,
SAFETEA-LU reinforces the former regulatory requirement that it shall be
the responsibility of the project sponsor, in cooperation with the
USDOT, to implement those mitigation measures stated as commitments in
the environmental documents.

Finally, SAFETEA-LU describes the circumstances under which the State
may provide Federal funding to agencies involved in the environmental
review process. This provision specifies that only government agencies
and federally recognized tribes acting as participating agencies can
receive Federal funding. In addition, Federal funding may be made
available to agencies and Tribes only if they measurably expedite or
improve the project delivery process.

## Coordination and Schedule [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#CoordinationandSchedule) {#coordination-and-schedule-link-to-safetea-lu .unnumbered}

### Question 47: Who is responsible for developing a project coordination plan for public and agency participation?  {#question-47-who-is-responsible-for-developing-a-project-coordination-plan-for-public-and-agency-participation .unnumbered}

**Answer:** SAFETEA-LU requires that the lead agencies establish a plan
for coordinating public and agency participation and comment during the
environmental review process.

### Question 48: When should the coordination plan be developed?  {#question-48-when-should-the-coordination-plan-be-developed .unnumbered}

**Answer:** Coordination plans are developed early in the environmental
review process after project initiation. Many elements of a coordination
plan may be repetitious from project to project, and may therefore be
established by the lead agencies programmatically, for greater
efficiency. 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 various lead and/or participating agencies. In addition,
consultation with the participating agencies is required for a
coordination plan that includes a project schedule (see [Question
52](#question-52-are-the-lead-agencies-required-to-develop-a-project-schedule-as-part-of-the-project-coordination-plan)).

### Question 49: How does a coordination plan for the environmental review process relate to the "project management plan" required for FHWA's [Major Projects](http://www.fhwa.dot.gov/realestate/majprojguid.htm) and for transit New Starts projects?  {#question-49-how-does-a-coordination-plan-for-the-environmental-review-process-relate-to-the-project-management-plan-required-for-fhwas-major-projects-and-for-transit-new-starts-projects .unnumbered}

[]{.mark}

**Answer:** FHWA's Major Projects are those projects receiving Federal
financial assistance under [23
USC](http://www.access.gpo.gov/uscode/title23/chapter1_.html) that (1)
have an estimated total cost of \$500 million or more or (2) have been
identified by the USDOT as being "Major" as a result of some special
interest in the project. SAFETEA-LU established a new requirement for
Project Management Plans (PMPs) on all FHWA Major Projects. The PMP
serves as a "roadmap" to help the project delivery team maintain a
constant focus toward delivering the Major Project in an efficient and
effective manner. The ultimate purpose of the PMP is to clearly define
the roles, responsibilities, processes, and activities that will result
in the FHWA Major Project being completed on time, within budget, with
the highest degree of quality and safety, and in a manner in which the
public trust, support, and confidence in the project will be maintained.
The preparation of an initial PMP prior to initiating the project's
environmental study is critical to ensure that the FHWA Major Project is
delivered in an efficient and effective manner. Therefore, the
coordination plan required for the environmental review process should
be fully integrated into the PMP, if applicable.

FTA has been requiring PMPs for major capital transit projects for many
years and defines the purpose and content of the PMP in its project
management oversight regulation at [49 CFR Part
633](http://www.access.gpo.gov/nara/cfr/waisidx_05/49cfr633_05.html).
The PMP for a major capital transit project is first developed at entry
into Preliminary Engineering and is substantially updated at the start
of each successive phase of project development through "Start-up of
Revenue Operation." Although the PMP and the environmental coordination
plan serve different purposes, there may be substantial overlap between
the initial PMP and the environmental coordination plan, especially if a
project schedule is included in the coordination plan. Consistency
between these plans is essential, but integration of the plans, which
serve different purposes, is not required.

###  Question 50: What should be included in a coordination plan?  {#question-50-what-should-be-included-in-a-coordination-plan .unnumbered}

**Answer:** The purposes of the coordination plan are to facilitate and
document the lead agencies' structured interaction with the public and
other agencies and to inform the public and other agencies of how the
coordination will be accomplished. The coordination plan should outline
(1) how the lead agencies have divided the responsibilities for
compliance with the various aspects of the environmental review process,
such as the issuance of invitations to participating agencies, 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. The plan also should identify coordination
points, such as:

-   Notice of intent publication and scoping activities.

-   Development of purpose and need.

-   Identification of the range of alternatives.

-   Collaboration on impact assessment methodologies.

-   Completion of the DEIS.

-   Identification of the preferred alternative and the level of design
    detail.

-   Completion of the final environmental impact statement (FEIS).

-   Completion of ROD.

-   Completion of permits, licenses, or approvals after the ROD.

In addition, the coordination plan may establish a schedule of regular
meetings and may identify which persons, organizations, or agencies
should be included for each coordination point, as well as timeframes
for input by those persons, organizations, and agencies. (See [Question
54](#question-54-what-deadlines-have-been-established-under-safetea-lu-for-the-public-and-participating-agencies-to-submit-comments).)

The lead agencies can incorporate the coordination plan into a
Memorandum of Understanding (MOU) that is applicable to a single project
or to a category of projects. A separate MOU between one or more of the
lead agencies and a specific participating agency on a particular
resource or impact of interest to that participating agency, or on the
process for dealing with that impact of interest, may be executed and
incorporated into the overall coordination plan.

### Question 51: Does each State DOT need to update its public involvement procedures that were developed pursuant to [23 CFR 771.111(h)](http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/cfr_2002/aprqtr/23cfr771.111.htm)?  {#question-51-does-each-state-dot-need-to-update-its-public-involvement-procedures-that-were-developed-pursuant-to-23-cfr-771.111h .unnumbered}

**Answer:** Each State DOT should review their public involvement
policies and procedures to determine whether they need to be updated to
meet the new requirements in SAFETEA-LU. Depending on their level of
detail, the policies and procedures may need to be updated to include
the "participating agency" concept, the requirement that additional
"interested parties" should be involved in statewide and metropolitan
transportation planning, and the opportunities for public and
participating agency involvement in determining purpose and need and the
range of alternatives to be considered, as well as participating agency
collaboration on impact assessment methodologies.

### Question 52: Are the lead agencies required to develop a project schedule as part of the project coordination plan? {#question-52-are-the-lead-agencies-required-to-develop-a-project-schedule-as-part-of-the-project-coordination-plan .unnumbered}

**Answer:** Prior to enactment of SAFETEA-LU, FHWA policy required a
negotiated schedule for the NEPA process for all EIS and EA projects.
This FHWA policy remains in effect and is further strengthened by the
law. Project schedules are optional on FTA projects. SAFETEA-LU
encourages, but does not require, the inclusion of a project schedule in
the coordination plan. CEQ regulations ([40 CFR
1501.8](http://ceq.eh.doe.gov/nepa/regs/ceq/1501.htm#1501.8)) also
strongly encourage the establishment of timeframes.

When the lead agencies include a project schedule in the coordination
plan, that schedule must be prepared in consultation with each
participating agency, the project sponsor, and the State. The schedule
should include decisionmaking deadlines for each agency approval, such
as permits, licenses, and other final decisions, consistent with
statutory and regulatory requirements, in order to encompass the full
environmental review process (See [Questions 53 and
54](#question-53-what-factors-should-be-considered-when-creating-a-schedule-as-part-of-a-project-coordination-plan)).

### Question 53: What factors should be considered when creating a schedule as part of a project coordination plan? {#question-53-what-factors-should-be-considered-when-creating-a-schedule-as-part-of-a-project-coordination-plan .unnumbered}

**Answer:** To establish a realistic schedule, SAFETEA-LU requires
consideration of the following factors:

-   The responsibilities of participating agencies under applicable
    laws.

-   The resources available to the cooperating agencies.

-   The overall size and complexity of the project.

-   The overall schedule for and cost of the project.

-   The sensitivity of the natural and historic resources that could be
    affected by the project.

CEQ regulations ([40 CFR
1501.8](http://ceq.eh.doe.gov/nepa/regs/ceq/1501.htm#1501.8)) suggest
these and additional considerations, such as the degree of public
controversy and the extent to which relevant information about the
project or its impacts are already known, also be considered in setting
a schedule.

It should be emphasized that the lead agencies must design the schedule
so that they have adequate time to accept and consider public and
participating agency comments and input and have the time to conduct any
appropriate additional engineering studies or impact assessments and to
make any necessary project changes resulting from the comments and
input. The schedule must be consistent with the SAFETEA-LU requirements
regarding comment deadlines. (See [Question
54](#question-54-what-deadlines-have-been-established-under-safetea-lu-for-the-public-and-participating-agencies-to-submit-comments).)
The schedule also must be consistent with other applicable time periods
established under other laws.

To help State DOTs and resource agencies negotiate timeframes for
completing environmental reviews of proposed transportation projects,
FHWA developed the Negotiated Timeframes Wizard (the Wizard) software
program. Among its many features, the Wizard enables agencies to set
project-specific timeframes for completing requirements, track the
progress of meeting timeframes, and maintain a history of events. To
download a copy of the Wizard, visit
<http://environment.fhwa.dot.gov/wizard/wiz_download.asp>.

### Question 54: What deadlines have been established under SAFETEA-LU for the public and participating agencies to submit comments?  {#question-54-what-deadlines-have-been-established-under-safetea-lu-for-the-public-and-participating-agencies-to-submit-comments .unnumbered}

**Answer:** SAFETEA-LU mandates that the DEIS comment period not exceed
60 days, unless a different comment period is established by agreement
of the lead agencies, the project sponsor, and all participating
agencies. The DEIS comment period begins on the date that EPA publishes
the notice of availability of the DEIS in the *Federal Register*.

For any other point within the environmental review process at which the
lead agencies seek comment by the public or participating agencies, the
lead agencies shall 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.
At these points, although the 30-day maximum period applies, a shorter
period commensurate with the volume and complexity of the materials to
be reviewed may be appropriate. The comment period is measured, in these
cases, from the date of availability of the materials on which comment
is requested. All comment periods should be specified in the
coordination plan.

### Question 55: Should the coordination plan provide the public and participating agencies with an opportunity for comment during the period between the publication of a FEIS and the issuance of a ROD? {#question-55-should-the-coordination-plan-provide-the-public-and-participating-agencies-with-an-opportunity-for-comment-during-the-period-between-the-publication-of-a-feis-and-the-issuance-of-a-rod .unnumbered}

> **Answer:** The 30-day waiting period between the FEIS notice in the
> *Federal Register* and the signing of the ROD is required by CEQ
> regulations \[[40 CFR
> 1506.10(b)](http://www.nepa.gov/nepa/regs/ceq/1506.htm#1506.10)\] but
> is not a required comment period. The 30-day wait provides time for
> other Federal agencies that find the project environmentally
> unsatisfactory to refer the decision to CEQ \[[40 CFR
> 1504](http://www.nepa.gov/nepa/regs/ceq/1504.htm)\].
>
> Occasionally, the lead agencies will seek comment on a specific
> unresolved issue discussed in the FEIS. In those cases, the comment
> deadline provisions of SAFETEA-LU ([Question
> 54](#question-54-what-deadlines-have-been-established-under-safetea-lu-for-the-public-and-participating-agencies-to-submit-comments))
> apply and the comment period should run concurrently with the required
> 30-day waiting period. Even if the lead agencies do not request
> comments on a FEIS, they will address any new and substantive comments
> submitted during the 30 days following the FEIS publication \[[40 CFR
> 1503.1](http://www.nepa.gov/nepa/regs/ceq/1503.htm#1503.1)\].
>
> Note, however, that an effective environmental review process results
> in the submission of comments when they are most useful to
> decisionmaking by the lead agencies. After the FEIS, comments
> typically should focus on commitments discussed in the FEIS and on
> conditions that parties want the lead agencies to include in the ROD.
> The process should avoid duplication, and the lead agencies are not
> required to re-address comments that present issues specifically
> raised during the DEIS comment period and addressed in the FEIS.
>
> Comments to which the lead agencies respond would be addressed in the
> ROD or in an attachment to the ROD. Neither the need to solicit
> further comments on an issue unresolved in the FEIS, nor the receipt
> of unsolicited comments that require a response, can be anticipated.
> Therefore, these contingencies would not be addressed in a
> coordination plan.

###  Question 56: Once a schedule has been established, can it be modified? {#question-56-once-a-schedule-has-been-established-can-it-be-modified .unnumbered}

**Answer:** The lead agencies may modify the schedule. The lead agencies
may lengthen the schedule for good cause, and the good cause for the
change should be documented in the administrative record. The schedule
may be shortened only with the concurrence of the affected cooperating
agencies. Only the affected cooperating agencies, not all of the
participating agencies, must concur on the shortened schedule, and
evidence of these concurrences should be included in the administrative
record.

###  Question 57: How and to whom must the schedule be made available? {#question-57-how-and-to-whom-must-the-schedule-be-made-available .unnumbered}

**Answer:** If a project schedule is prepared and is included in the
coordination plan, that schedule must be provided to all participating
agencies, the State DOT, and the project sponsor, and must be made
available to the public. 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 the people 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 in the same way as the previous schedule.

## Requirements Placed on Non-USDOT Federal Agencies {#requirements-placed-on-non-usdot-federal-agencies .unnumbered}

###  {#section-9 .unnumbered}

### Question 58: What are the new requirements related to deadlines for decisions under other Federal laws?  {#question-58-what-are-the-new-requirements-related-to-deadlines-for-decisions-under-other-federal-laws .unnumbered}

**Answer:** SAFETEA-LU requires USDOT to report to Congress when project
decisions by other Federal agencies are not completed within 180 days
after the later of two statutory milestones. The first milestone is the
completion of decisionmaking by the USDOT agency, which occurs with the
signing of the NEPA ROD. The second milestone is the date of submission
of a complete application to the Federal agency for a permit, license,
or approval for the project. The completeness of the application is
determined by the Federal agency with jurisdiction over the permit,
license, or approval.

### Question 59: How will USDOT implement this requirement to report to Congress on the deadlines for decisions under other Federal laws?  {#question-59-how-will-usdot-implement-this-requirement-to-report-to-congress-on-the-deadlines-for-decisions-under-other-federal-laws .unnumbered}

**Answer:** The USDOT field offices (i.e., the FHWA Division Office or
the FTA regional office), in cooperation with the project sponsor and
State or local lead agency (if different from the project sponsor), are
responsible for tracking these decisionmaking timelines as a part of
their management of the project. This new reporting responsibility
requires the lead agencies' field offices to continue to track and
monitor project milestones after the completion of the USDOT ROD.

The USDOT field office should begin to address schedule problems as soon
as they occur. If it appears likely that project decisions will not be
completed by the later of the two 180-day deadlines, then the USDOT
field office should notify the affected Federal agency that the
reporting deadline for its decision is approaching. If the overall
project coordination process is proceeding appropriately, all Federal
agencies will already be aware that the reporting deadline is
approaching and will know the reasons the decision is not complete.
However, in order to ensure clear communication on the reporting
requirement, the USDOT field office should contact the affected Federal
agency to discuss the issue and causes at least 60 days before the
deadline. Following that coordination, the USDOT field office should
inform its Headquarters Program Office of the situation and the reasons
underlying it. The Headquarters Program Office, in turn, will contact
the affected Federal agency headquarters office to alert them to the
situation and to the likelihood that the reporting requirement will be
triggered for the project. This initial coordination and reporting
process should be completed before the expiration of the 180-day
deadline.

If a Federal agency that must make a decision on the project is not
going to meet the 180-day deadline, and there is no decisionmaking
schedule in the project coordination plan *or* the scheduled time for a
decision has passed, then the USDOT field office should ask the affected
Federal agency for input on the explanation for the delay. That
information, together with the lead agencies' perspectives on the issue,
should be included in the USDOT field office report described above.

If the project coordination plan provides a deadline later than the
statutory 180-day deadline, the field office should report to the
Headquarters Program Office that the 180-day deadline will pass without
a decision. The report should describe the relevant scheduling
provisions of the coordination plan and indicate that the schedule was
agreed to by the lead agencies as a part of the plan.

The second phase of the reporting process begins after the later of the
two 180-day deadlines has passed. The USDOT field office should contact
its Headquarters Program Office to confirm the information about each
Federal agency decision that has not been completed and to identify any
new information affecting the ability of the Federal agency to complete
its decisionmaking. This second report also should indicate when the
Federal agency expects to make its final decision. The USDOT field
offices should submit updates on the status of project decisionmaking
every 60 days thereafter until all Federal agency decisions are
complete.

When the USDOT Headquarters Program Office receives the second phase
field office report confirming that the applicable 180-day deadline has
been missed, the Program Office will coordinate with the affected
Federal agency's headquarters office and prepare the required report to
the Senate Committee on Environment and Public Works and the House of
Representative's Committee on Transportation and Infrastructure. The
report to Congress should identify each Federal agency decision that
remains outstanding, the reasons that the decision is not complete, and
the expected completion date. The report should reflect any results from
the USDOT coordination process with the affected Federal agency about
the deadlines. Headquarters should update and resubmit this report to
Congress every 60 days until all Federal agency decisions are complete.
The USDOT Headquarters Program Office will provide a copy of any USDOT
report to Congress under this SAFETEA-LU provision to the affected
Federal agency headquarters office and to the project sponsor and State
or local lead agency.

## Concurrent Reviews [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Concurrent_Reviews) {#concurrent-reviews-link-to-safetea-lu .unnumbered}

### Question 60: For transportation projects, SAFETEA-LU directs that, to the maximum extent practicable and consistent with statutory obligations, *each Federal agency* (a) carry out its obligations under other Federal laws concurrently and in conjunction with the USDOT environmental review process required by NEPA; and (b) formulate and implement mechanisms to ensure the completion of the environmental review process in a timely, coordinated, and environmentally responsible manner. How is USDOT approaching this directive to other Federal agencies?  {#question-60-for-transportation-projects-safetea-lu-directs-that-to-the-maximum-extent-practicable-and-consistent-with-statutory-obligations-each-federal-agency-a-carry-out-its-obligations-under-other-federal-laws-concurrently-and-in-conjunction-with-the-usdot-environmental-review-process-required-by-nepa-and-b-formulate-and-implement-mechanisms-to-ensure-the-completion-of-the-environmental-review-process-in-a-timely-coordinated-and-environmentally-responsible-manner.-how-is-usdot-approaching-this-directive-to-other-federal-agencies .unnumbered}

**Answer:** USDOT will utilize the provisions of SAFETEA-LU and
[Executive Order (EO)
13274](http://www.fhwa.dot.gov/stewardshipeo/eo13274.htm),
*Environmental Stewardship and Transportation Infrastructure Project
Reviews*, to promote efficiencies in the environmental review of
transportation projects. USDOT intends to rely on the EO Task Force,
comprised of high-level executives from the eight Federal agencies most
often involved in transportation projects, as one of the most important
mechanisms for attaining this goal.

At the individual project level, USDOT, as the lead (or joint lead)
Federal agency, will work on developing and implementing coordination
plans that ensure concurrent reviews and facilitate productive
interaction to the maximum extent practical. USDOT will ensure the early
involvement of other Federal agencies through the designation of, and
interaction with, participating and cooperating agencies. As issues
arise during the environmental review process, USDOT will intervene with
the appropriate parties to facilitate a resolution.

## Issue Identification and Resolution [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#IssueIdentificationandResolution) {#issue-identification-and-resolution-link-to-safetea-lu .unnumbered}

In 2002, USDOT issued guidance designed to encourage collaborative
decisionmaking and facilitate the resolution of interagency disputes at
lower levels of decisionmaking. This
[guidance](http://www.environment.fhwa.dot.gov/strmlng/adrguide/index.asp)
is still in effect and is promoted as an effective tool for the
resolution of most issues. Any participant in the process -- Federal,
State, Tribal or local -- may initiate the elevation or resolution
process.

SAFETEA-LU also provides a process for identifying and resolving issues
if the conflict cannot be resolved by the lead agencies at the project
staff level. This process is just one tool available to lead and
participating agencies for resolving issues of concern. Other tools
include the CEQ referral process under [40 CFR Part
1504](http://ceq.eh.doe.gov/nepa/regs/ceq/1504.htm).

###   {#section-10 .unnumbered}

### Question 61: What is involved in the SAFETEA-LU issue resolution process? {#question-61-what-is-involved-in-the-safetea-lu-issue-resolution-process .unnumbered}

**Answer:** When local elevation procedures and dispute resolution
efforts, including the implementation of [2002
guidance](http://www.environment.fhwa.dot.gov/strmlng/adrguide/index.asp)
discussed above, have not succeeded, SAFETEA-LU provides for the project
sponsor or State Governor to initiate the issue resolution process
illustrated in the following flow chart:

### Question 62: What are "issues of concern" that may trigger the issue resolution process? {#question-62-what-are-issues-of-concern-that-may-trigger-the-issue-resolution-process .unnumbered}

**Answer:** Issues of concern are any issues that could substantially
delay or prevent an agency from granting a permit or other approval that
is needed for the transportation project. It also includes any issue
that could result in a delay in meeting a timeframe for review or other
major milestone.

### Question 63: What is meant by resolution of the issue(s)? {#question-63-what-is-meant-by-resolution-of-the-issues .unnumbered}

**Answer:** Resolution of the issue(s) means that the agencies involved
agree on how to proceed so that they are able to reach decisions on
matters within their authority. For example, the resolution may be an
agreed upon framework or process for proceeding with the issuance of the
permit or other approval needed for a project. This agreement should be
in the form of a signed document.

## Adoption and Use of Documents [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Adoption) {#adoption-and-use-of-documents-link-to-safetea-lu .unnumbered}

### Question 64: Does SAFETEA-LU change anything regarding the adoption and use of documents?  {#question-64-does-safetea-lu-change-anything-regarding-the-adoption-and-use-of-documents .unnumbered}

**Answer:** Yes. Notwithstanding the lead agency status of the recipient
of USDOT funds, any environmental document prepared in accordance with
SAFETEA-LU must receive the same consideration for agency adoption given
to a document prepared solely by a lead Federal agency. The CEQ
regulatory provision on adoption in [40 CFR
1506.3](http://ceq.eh.doe.gov/nepa/regs/ceq/1506.htm#1506.3) states:
*(a) An agency may adopt a Federal draft or final EIS or portion thereof
provided that the statement or portion thereof meets the standards for
an adequate statement under these (CEQ's) regulations.* The adopting
agency remains responsible for independently evaluating the document to
ensure its adequacy under CEQ and the adopting agency's NEPA procedures
[(40 CFR 1506.5)](http://ceq.eh.doe.gov/nepa/regs/ceq/1506.htm#1506.5).

**[[Performance Measurement]{.underline}]{.smallcaps}**
[**[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}**](#Performance_Measurement)

### Question 65: SAFETEA-LU requires USDOT to (1) establish a program for measuring progress in improving the planning and environmental review process for transportation projects, and (2) report on the findings and results of the elements of the process that are measured. How will this requirement be implemented? {#question-65-safetea-lu-requires-usdot-to-1-establish-a-program-for-measuring-progress-in-improving-the-planning-and-environmental-review-process-for-transportation-projects-and-2-report-on-the-findings-and-results-of-the-elements-of-the-process-that-are-measured.-how-will-this-requirement-be-implemented .unnumbered}

**Answer:** FHWA will rely primarily on existing performance measures to
fulfill the performance measurement mandate in SAFETEA-LU. FHWA's
Strategic Implementation Plan currently includes the [Vital Few Goal of
Environmental Stewardship and Environmental
Streamlining](http://www.environment.fhwa.dot.gov/strmlng/vfovervw.asp).
Progress toward this goal is measured by evaluating the median
processing times for EAs and EISs, whether Negotiated Timeframes are
met, and the implementation of integrated approaches and context
sensitive solutions. FTA also plans to address performance measurements
through its strategic planning process.

###  {#section-11 .unnumbered}

### Question 66: Are other measurements of the environmental review process being considered?  {#question-66-are-other-measurements-of-the-environmental-review-process-being-considered .unnumbered}

**Answer:** In addition to the existing measurements, FHWA intends to
use the results of the upcoming second round of the Gallup survey,
"Implementing Performance Measurement in Environmental Streamlining."
Initially conducted in 2003, the survey captured the current state of
relations and perceptions between different agencies that are involved
in transportation development and review, and created a standard against
which the quality of future interagency coordination can be compared.
USDOT may develop other measures in the future.

## Funding of Additional Agency Resources [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Funding) {#funding-of-additional-agency-resources-link-to-safetea-lu .unnumbered}

### Question 67: What does SAFETEA-LU say about the use of USDOT funding by participating agencies to expedite environmental reviews? {#question-67-what-does-safetea-lu-say-about-the-use-of-usdot-funding-by-participating-agencies-to-expedite-environmental-reviews .unnumbered}

**Answer:** SAFETEA-LU establishes a process for early and continuous
engagement by other agencies in the environmental review process that
may create an additional strain on existing resources and staff.
Therefore, SAFETEA-LU allows USDOT to approve the request of a State to
provide Federal-aid highway or Federal transit funds to a Federal or
State agency or federally recognized Indian tribe participating in the
environmental review process, to support activities by that agency or
tribe that directly and meaningfully contribute to expediting and
improving the planning and delivery of transportation projects in that
State. USDOT encourages the use of this authority where agency resources
are a constraint on the environmental review process.

SAFETEA-LU does not extend this authority to transit agencies that are
not State agencies. A transit agency that is not a State agency and that
seeks to invest FTA funding in expeditious reviews by particular Federal
or State agencies or Indian tribes must work through the State DOT in
order to accomplish this objective in accordance with SAFETEA-LU.

### Question 68: What changes does SAFETEA-LU make to the similar funding provision in TEA-21? {#question-68-what-changes-does-safetea-lu-make-to-the-similar-funding-provision-in-tea-21 .unnumbered}

**Answer:** SAFETEA-LU makes several changes to the former funding
provision in TEA-21. SAFETEA-LU makes this funding available for
additional activities, such as transportation planning activities that
precede the initiation of the environmental review process, training of
agency personnel, information gathering and mapping, and the development
of programmatic agreements. SAFETEA-LU also enables the State to provide
such funding to additional agencies. The State can now provide funds to
Federal agencies, State agencies, and federally recognized Indian Tribes
that are participating in the environmental review process for one or
more transportation projects in the State. In addition, SAFETEA-LU
explicitly recognizes that USDOT can receive funds to expedite and
improve the environmental review process. The FHWA guidance *Interagency
Guidance: Transportation Funding for Federal Agency Coordination
Associated with Environmental Streamlining Activities* has been revised
to reflect the changes from TEA-21 to SAFETEA-LU. The revised guidance
is found in [Appendix C](#appendix-c).

Under TEA-21, Federal transit funds granted to a transit agency could
have been provided to a natural resource agency to expedite an
environmental review. Transit agencies used the TEA-21 provision very
rarely, if at all. Under SAFETEA-LU, only a State agency may request the
Federal transit funds to be used for this propose. In the unlikely event
that a transit agency that is not a State agency seeks to use Federal
transit funds in this manner, FTA will work with that agency and with
the relevant State DOT to see if an accommodation in accordance with
SAFETEA-LU can be reached.

### Question 69: How must the agency that receives such funds from a State use the funds? {#question-69-how-must-the-agency-that-receives-such-funds-from-a-state-use-the-funds .unnumbered}

**Answer:** 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* resources
needed to meet the time limits established for environmental reviews of
transportation projects. Those time limits must be less than the
customary time necessary for such reviews.

The funds must be used for activities that directly and meaningfully
contribute to expediting and improving the planning and delivery of
transportation projects in that State. These activities are beyond the
normal and ordinary capabilities of the receiving agency when operating
under its general appropriation. 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. "Customary time" is defined as the time typically
required for environmental reviews as of the date of the adoption of
SAFETEA-LU (August 10, 2005).

# Statute of Limitations

[]{.mark}

Section 6002 establishes a 180-day statute of limitations (SOL) on
claims against USDOT and other Federal agencies for certain
environmental and other approval actions. The [SOL established by
SAFETEA-LU](#LimitationsOnClaims) applies to a permit, license, or
approval action by a Federal agency if:

1.  The action relates to a transportation project (as [defined
    above](#_Question_1%3A_What_does_the_term_\“tra)); and

2.  A SOL notification is published in the *Federal Register* (FR)
    announcing that a Federal agency has taken an action on a
    transportation project that is final under the Federal law pursuant
    to which the action was taken.

If no SOL notice is published, the period for filing claims is not
shortened from what is provided by other parts of Federal law. If other
Federal laws do not specify a statute of limitations, then a 6-year
claims period applies.

Because FHWA and FTA programs differ, FHWA and FTA have developed
slightly different processes for implementing the Section 6002 SOL
provision. Part A of this Section 3 covers the FHWA process, and Part B
covers the FTA process.

**PART A: FHWA Process for Implementing the Statute of Limitations**

This FHWA portion of the SOL guidance discusses publication of SOL
notices for Federal agency actions on Federal-aid highway projects. The
information is based on current perspectives on the law and its
administration. As experience with the application of the law provides
new insights or presents new issues, FHWA will update its guidance on
implementation of the SOL provision in SAFETEA-LU.

The SOL provision is intended to expedite the resolution of issues
affecting transportation projects. Whether a SOL notice is needed or is
the best way to achieve such resolution on a project is a risk
management decision. A determination should include consideration of the
nature of the Federal laws under which decisions were made for the
project, the actual risk of litigation, and the potential effects if
litigation were to occur several years after the FHWA NEPA decision or
other Federal agency decisions. A SOL notice can be used for a highway
project regardless of the category of documentation used under NEPA.
FHWA anticipates that it will publish notices for most EIS projects and
many EA projects. FHWA does not expect SOL notices to be used for
projects that are CEs under 23 CFR 771.117(c). FHWA anticipates that the
notice may be appropriate for documented CE projects under 23
CFR.771.117(d).

FHWA encourages efforts to help stakeholders and the public to
understand this change in the law. For that reason, FHWA believes that
it would be useful to include a statement summarizing the SOL provision
in future NEPA documents (See [Appendix E, Question
E-23](#QuestionE23)).

Detailed guidance on FHWA SOL notices is contained in [Appendix
E](#appendix-e). This guidance replaces interim guidance issued by FHWA
on December 1, 2005. This guidance includes sample forms to assist the
FHWA Division Offices in preparing notices for FR publication ([Appendix
E, Attachments 1 to 3](#Attachment1)). The guidance also includes
examples of notices for a single project ([Attachment 4](#Attachment4))
and multiple projects ([Attachment 5](#Attachment5)) FHWA recommends
that the Division Offices coordinate with field counsel when preparing
the notices.

Part B: FTA Process for Implementing the Statute of Limitations

To implement this provision, FTA intends to use rolling publication of
FR notices announcing its environmental approvals. When a ROD, Finding
of No Significant Impact (FONSI), separate Section 4(f) determination,
or other final environmental approval is signed by an FTA Regional
Administrator, copies will be transmitted to the project sponsor and to
the FTA Office of Planning and Environment (TPE). TPE will notify all
FTA regional offices of the impending FR publication of a NEPA SOL
notice. If any FTA regional office indicates that another environmental
approval action is expected within one week to 10 days, FR publication
of the SOL notice will be postponed in order to include the forthcoming
environmental approval in the notice; otherwise, the SOL notice for the
one approval action will be processed immediately.

In addition, FTA or the project sponsor will post the FTA approval
document (ROD, FONSI, etc.), including any attachments, on the Internet.
The FR notice will direct any interested party to the web site where the
FTA approval document of interest is posted. The FR notice also will
name an FTA contact person who can provide a copy of any FTA approval
document upon request by a party who does not have Internet access.

# Acronym List {#acronym-list .unnumbered}

  -------------- -------------------------------------------------------------
  CE             categorical exclusion

  CEQ            Council on Environmental Quality

  DEIS           draft environmental impact statement

  DOT            Department of Transportation

  EA             environmental assessment

  EIS            environmental impact statement

  FEIS           final environmental impact statement

  FHWA           Federal Highway Administration

  FR             Federal Register

  FTA            Federal Transit Administration

  MOU            Memorandum of Understanding

  MPO            Metropolitan Planning Organizations as defined in 23 CFR part
                 450

  NEPA           National Environmental Policy Act of 1969

  NOI            Notice of Intent

  PMP            Project Management Plan

  ROD            Record of Decision

  SAFETEA-LU     Safe, Accountable, Flexible, Efficient Transportation Equity
                 Act: A Legacy for Users

  SEIS           Supplemental Environmental Impact Statement

  SOL            Statute of Limitations

  TEA-21         Transportation Equity Act for the 21^st^ Century

  TPE            FTA Office of Planning and Environment

  USDOT          As defined in [Question
                 2](#question-2-to-which-agencies-does-the-term-usdot-refer)
  -------------- -------------------------------------------------------------

# Appendix A {#appendix-a .unnumbered}

[]{#Appendix_A2 .anchor}

**SEC. 6002. EFFICIENT ENVIRONMENTAL REVIEWS FOR PROJECT
DECISIONMAKING.**

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

\`Sec. 139. Efficient environmental reviews for project decisionmaking

> \`(a) Definitions- In this section, the following definitions apply:
>
> \`(1) []{#AgencyDef .anchor}AGENCY- The term \`agency\' means any
> agency, department, or other unit of Federal, State, local, or Indian
> tribal government.
>
> \`(2) []{#Environmental_Impact_Statement .anchor}ENVIRONMENTAL IMPACT
> STATEMENT- The term \`environmental impact statement\' means the
> detailed statement of environmental impacts required to be prepared
> under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
> seq.).
>
> \`(3) []{#Environmental_Review_Process .anchor}ENVIRONMENTAL REVIEW
> PROCESS-
>
> \`(A) IN GENERAL- The term \`environmental review process\' means the
> process for preparing for a project an environmental impact statement,
> environmental assessment, categorical exclusion, or other document
> prepared under the National Environmental Policy Act of 1969 (42
> U.S.C. 4321 et seq.).
>
> \`(B) INCLUSIONS- The term \`environmental review process\' includes
> the process for and completion of any environmental permit, approval,
> review, or study required for a project under any Federal law other
> than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
> seq.).
>
> \`(4) LEAD AGENCY- The term \`lead agency\' means the Department of
> Transportation and, if applicable, any State or local governmental
> entity serving as a joint lead agency pursuant to this section.
>
> \`(5) MULTIMODAL PROJECT- The term \`multimodal project\' means a
> project funded, in whole or in part, under this title or chapter 53 of
> title 49 and involving the participation of more than one Department
> of Transportation administration or agency.
>
> \`(6) PROJECT- The term \`project\' means any highway project, public
> transportation capital project, or multimodal project that requires
> the approval of the Secretary.
>
> \`(7) []{#Project_Sponsor .anchor}PROJECT SPONSOR- The term \`project
> sponsor\' means the agency or other entity, including any private or
> public-private entity, that seeks approval of the Secretary for a
> project.
>
> \`(8) STATE TRANSPORTATION DEPARTMENT- The term \`State transportation
> department\' means any statewide agency of a State with responsibility
> for one or more modes of transportation.
>
> \`(b)[]{#Applicabilty .anchor} Applicability-
>
> \`(1) IN GENERAL- The project development procedures in this section
> are applicable to all projects for which an environmental impact
> statement is prepared under the National Environmental Policy Act of
> 1969 and may be applied, to the extent determined appropriate by the
> Secretary, to other projects for which an environmental document is
> prepared pursuant to such Act.
>
> \`(2) FLEXIBILITY- Any authorities granted in this section may be
> exercised for a project, class of projects, or program of projects.
>
> \`(c) []{#Lead_Agencies_Text .anchor}Lead Agencies-
>
> \`(1) FEDERAL LEAD AGENCY- The Department of Transportation shall be
> the Federal lead agency in the environmental review process for a
> project.
>
> \`(2) JOINT LEAD AGENCIES- Nothing in this section precludes another
> agency from being a joint lead agency in accordance with regulations
> under the National Environmental Policy Act of 1969.
>
> \`(3) PROJECT SPONSOR AS JOINT LEAD AGENCY- Any project sponsor that
> is a State or local governmental entity receiving funds under this
> title or chapter 53 of title 49 for the project shall serve as a joint
> lead agency with the Department for purposes of preparing any
> environmental document under the National Environmental Policy Act of
> 1969 and may prepare any such environmental document required in
> support of any action or approval by the Secretary if the Federal lead
> agency furnishes guidance in such preparation and independently
> evaluates such document and the document is approved and adopted by
> the Secretary prior to the Secretary taking any subsequent action or
> making any approval based on such document, whether or not the
> Secretary\'s action or approval results in Federal funding.
>
> \`(4) ENSURING COMPLIANCE- The Secretary shall ensure that the project
> sponsor complies with all design and mitigation commitments made
> jointly by the Secretary and the project sponsor in any environmental
> document prepared by the project sponsor in accordance with this
> subsection and that such document is appropriately supplemented if
> project changes become necessary.
>
> \`(5) []{#Adoption .anchor}ADOPTION AND USE OF DOCUMENTS- Any
> environmental document prepared in accordance with this subsection may
> be adopted or used by any Federal agency making any approval to the
> same extent that such Federal agency could adopt or use a document
> prepared by another Federal agency.
>
> \`(6) ROLES AND RESPONSIBILITY OF LEAD AGENCY- With respect to the
> environmental review process for any project, the lead agency shall
> have authority and responsibility\--
>
> \`(A) to take such actions as are necessary and proper, within the
> authority of the lead agency, to facilitate the expeditious resolution
> of the environmental review process for the project; and
>
> \`(B) to prepare or ensure that any required environmental impact
> statement or other document required to be completed under the
> National Environmental Policy Act of 1969 is completed in accordance
> with this section and applicable Federal law.
>
> \`(d) []{#Section139d .anchor}Participating Agencies-
>
> \`(1) IN GENERAL- The lead agency shall be responsible for inviting
> and designating participating agencies in accordance with this
> subsection.
>
> \`(2) INVITATION- The lead agency shall identify, as early as
> practicable in the environmental review process for a project, any
> other Federal and non-Federal agencies that may have an interest in
> the project, and shall invite such agencies to become participating
> agencies in the environmental review process for the project. The
> invitation shall set a deadline for responses to be submitted. The
> deadline may be extended by the lead agency for good cause.
>
> \`(3) FEDERAL PARTICIPATING AGENCIES- Any Federal agency that is
> invited by the lead agency to participate in the environmental review
> process for a project shall be designated as a participating agency by
> the lead agency unless the invited agency informs the lead agency, in
> writing, by the deadline specified in the invitation that the invited
> agency\--
>
> \`(A) has no jurisdiction or authority with respect to the project;
>
> \`(B) has no expertise or information relevant to the project; and
>
> \`(C) does not intend to submit comments on the project.
>
> \`(4) EFFECT OF DESIGNATION- Designation as a participating agency
> under this subsection shall not imply that the participating agency\--
>
> \`(A) supports a proposed project; or
>
> \`(B) has any jurisdiction over, or special expertise with respect to
> evaluation of, the project.
>
> \`(5) []{#Cooperating_Agency .anchor}COOPERATING AGENCY- A
> participating agency may also be designated by a lead agency as a
> \`cooperating agency\' under the regulations contained in [part 1500
> of title 40, Code of Federal
> Regulations.](http://ceq.eh.doe.gov/nepa/regs/ceq/toc_ceq.htm)
>
> \`(6) DESIGNATIONS FOR CATEGORIES OF PROJECTS- The Secretary may
> exercise the authorities granted under this subsection for a project,
> class of projects, or program of projects.
>
> \`(7) []{#Concurrent_Reviews .anchor}CONCURRENT REVIEWS- Each Federal
> agency shall, to the maximum extent practicable\--
>
> \`(A) carry out obligations of the Federal agency under other
> applicable law concurrently, and in conjunction, with the review
> required under the National Environmental Policy Act of 1969 (42
> U.S.C. 4321 et seq.), unless doing so would impair the ability of the
> Federal agency to carry out those obligations; and
>
> \`(B) formulate and implement administrative, policy, and procedural
> mechanisms to enable the agency to ensure completion of the
> environmental review process in a timely, coordinated, and
> environmentally responsible manner.
>
> \`(e) []{#Project_Initiation .anchor}Project Initiation- The project
> sponsor shall notify the Secretary of the type of work, termini,
> length and general location of the proposed project, together with a
> statement of any Federal approvals anticipated to be necessary for the
> proposed project, for the purpose of informing the Secretary that the
> environmental review process should be initiated.
>
> \`(f) []{#Purpose_And_Need .anchor}Purpose and Need-
>
> \`(1) PARTICIPATION- As early as practicable during the environmental
> review process, the lead agency shall provide an opportunity for
> involvement by participating agencies and the public in defining the
> purpose and need for a project.
>
> \`(2) DEFINITION- Following participation under paragraph (1), the
> lead agency shall define the project\'s purpose and need for purposes
> of any document which the lead agency is responsible for preparing for
> the project.
>
> \`(3) OBJECTIVES- The statement of purpose and need shall include a
> clear statement of the objectives that the proposed action is intended
> to achieve, which may include\--
>
> \`(A) achieving a transportation objective identified in an applicable
> statewide or metropolitan transportation plan;
>
> \`(B) supporting land use, economic development, or growth objectives
> established in applicable Federal, State, local, or tribal plans; and
>
> \`(C) serving national defense, national security, or other national
> objectives, as established in Federal laws, plans, or policies.
>
> \`(4) []{#Alternatives_Analyses .anchor}ALTERNATIVES ANALYSIS-
>
> \`(A) PARTICIPATION- As early as practicable during the environmental
> review process, the lead agency shall provide an opportunity for
> involvement by participating agencies and the public in determining
> the range of alternatives to be considered for a project.
>
> \`(B) RANGE OF ALTERNATIVES- Following participation under paragraph
> (1), the lead agency shall determine the range of alternatives for
> consideration in any document which the lead agency is responsible for
> preparing for the project.
>
> \`(C) METHODOLOGIES- The lead agency also shall determine, in
> collaboration with participating agencies at appropriate times during
> the study process, the methodologies to be used and the level of
> detail required in the analysis of each alternative for a project.
>
> \`(D) PREFERRED ALTERNATIVE- At the discretion of the lead agency, the
> preferred alternative for a project, after being identified, may be
> developed to a higher level of detail than other alternatives in order
> to facilitate the development of mitigation measures or concurrent
> compliance with other applicable laws if the lead agency determines
> that the development of such higher level of detail will not prevent
> the lead agency from making an impartial decision as to whether to
> accept another alternative which is being considered in the
> environmental review process.
>
> \`(g) []{#CoordinationandSchedule .anchor}Coordination and Scheduling-
>
> \`(1) COORDINATION PLAN-
>
> \`(A) IN GENERAL- The lead agency shall establish a plan for
> coordinating public and agency participation in and comment on the
> environmental review process for a project or category of projects.
> The coordination plan may be incorporated into a memorandum of
> understanding.
>
> \`(B) SCHEDULE-
>
> \`(i) IN GENERAL- The lead agency may establish as part of the
> coordination plan, after consultation with each participating agency
> for the project and with the State in which the project is located
> (and, if the State is not the project sponsor, with the project
> sponsor), a schedule for completion of the environmental review
> process for the project.
>
> \`(ii) FACTORS FOR CONSIDERATION- In establishing the schedule, the
> lead agency shall consider factors such as\--
>
> \`(I) the responsibilities of participating agencies under applicable
> laws;
>
> \`(II) resources available to the cooperating agencies;
>
> \`(III) overall size and complexity of the project;
>
> \`(IV) the overall schedule for and cost of the project; and
>
> \`(V) the sensitivity of the natural and historic resources that could
> be affected by the project.
>
> \`(C) CONSISTENCY WITH OTHER TIME PERIODS- A schedule under
> subparagraph (B) shall be consistent with any other relevant time
> periods established under Federal law.
>
> \`(D) MODIFICATION- The lead agency may\--
>
> \`(i) lengthen a schedule established under subparagraph (B) for good
> cause; and
>
> \`(ii) shorten a schedule only with the concurrence of the affected
> cooperating agencies.
>
> \`(E) DISSEMINATION- A copy of a schedule under subparagraph (B), and
> of any modifications to the schedule, shall be\--
>
> \`(i) provided to all participating agencies and to the State
> transportation department of the State in which the project is located
> (and, if the State is not the project sponsor, to the project
> sponsor); and
>
> \`(ii) made available to the public.
>
> \`(2) COMMENT DEADLINES- The lead agency shall establish the following
> deadlines for comment during the environmental review process for a
> project:
>
> \`(A) For comments by agencies and the public on a draft environmental
> impact statement, a period of not more than 60 days after publication
> in the Federal Register of notice of the date of public availability
> of such document, unless\--
>
> \`(i) a different deadline is established by agreement of the lead
> agency, the project sponsor, and all participating agencies; or
>
> \`(ii) the deadline is extended by the lead agency for good cause.
>
> \`(B) For all other comment periods established by the lead agency for
> agency or public comments in the environmental review process, a
> period of no more than 30 days from availability of the materials on
> which comment is requested, unless\--
>
> \`(i) a different deadline is established by agreement of the lead
> agency, the project sponsor, and all participating agencies; or
>
> \`(ii) the deadline is extended by the lead agency for good cause.
>
> \`(3) DEADLINES FOR DECISIONS UNDER OTHER LAWS- In any case in which a
> decision under any Federal law relating to a project (including the
> issuance or denial of a permit or license) is required to be made by
> the later of the date that is 180 days after the date on which the
> Secretary made all final decisions of the lead agency with respect to
> the project, or 180 days after the date on which an application was
> submitted for the permit or license, the Secretary shall submit to the
> Committee on Environment and Public Works of the Senate and the
> Committee on Transportation and Infrastructure of the House of
> Representatives\--
>
> \`(A) as soon as practicable after the 180-day period, an initial
> notice of the failure of the Federal agency to make the decision; and
>
> \`(B) every 60 days thereafter until such date as all decisions of the
> Federal agency relating to the project have been made by the Federal
> agency, an additional notice that describes the number of decisions of
> the Federal agency that remain outstanding as of the date of the
> additional notice.
>
> \`(4) INVOLVEMENT OF THE PUBLIC- Nothing in this subsection shall
> reduce any time period provided for public comment in the
> environmental review process under existing Federal law, including a
> regulation.
>
> \`(h) []{#IssueIdentificationandResolution .anchor}Issue
> Identification and Resolution-
>
> \`(1) COOPERATION- The lead agency and the participating agencies
> shall work cooperatively in accordance with this section to identify
> and resolve issues that could delay completion of the environmental
> review process or could result in denial of any approvals required for
> the project under applicable laws.
>
> \`(2) LEAD AGENCY RESPONSIBILITIES- The lead agency shall make
> information available to the participating agencies as early as
> practicable in the environmental review process regarding the
> environmental and socioeconomic resources located within the project
> area and the general locations of the alternatives under
> consideration. Such information may be based on existing data sources,
> including geographic information systems mapping.
>
> \`(3) PARTICIPATING AGENCY RESPONSIBILITIES- Based on information
> received from the lead agency, participating agencies shall identify,
> as early as practicable, any issues of concern regarding the
> project\'s potential environmental or socioeconomic impacts. In this
> paragraph, issues of concern include any issues that could
> substantially delay or prevent an agency from granting a permit or
> other approval that is needed for the project.
>
> \`(4) ISSUE RESOLUTION-
>
> \`(A) MEETING OF PARTICIPATING AGENCIES- At any time upon request of a
> project sponsor or the Governor of a State in which the project is
> located, the lead agency shall promptly convene a meeting with the
> relevant participating agencies, the project sponsor, and the Governor
> (if the meeting was requested by the Governor) to resolve issues that
> could delay completion of the environmental review process or could
> result in denial of any approvals required for the project under
> applicable laws.
>
> \`(B) NOTICE THAT RESOLUTION CANNOT BE ACHIEVED- If a resolution
> cannot be achieved within 30 days following such a meeting and a
> determination by the lead agency that all information necessary to
> resolve the issue has been obtained, the lead agency shall notify the
> heads of all participating agencies, the project sponsor, the
> Governor, the Committee on Environment and Public Works of the Senate,
> the Committee on Transportation and Infrastructure of the House of
> Representatives, and the Council on Environmental Quality, and shall
> publish such notification in the Federal Register.
>
> \`(i) []{#Performance_Measurement .anchor}Performance Measurement- The
> Secretary shall establish a program to measure and report on progress
> toward improving and expediting the planning and environmental review
> process.
>
> \`(j) []{#Funding .anchor}Assistance to Affected State and Federal
> Agencies-
>
> \`(1) IN GENERAL- For a project that is subject to the environmental
> review process established under this section and for which funds are
> made available to a State under this title or chapter 53 of title 49,
> the Secretary may approve a request by the State to provide funds so
> made available under this title or such chapter 53 to affected Federal
> agencies (including the Department of Transportation), State agencies,
> and Indian tribes participating in the environmental review process
> for the projects in that State or participating in a State process
> that has been approved by the Secretary for that State. Such funds may
> be provided only to support activities that directly and meaningfully
> contribute to expediting and improving transportation project planning
> and delivery for projects in that State.
>
> \`(2) ACTIVITIES ELIGIBLE FOR FUNDING- Activities for which funds may
> be provided under paragraph (1) include transportation planning
> activities that precede the initiation of the environmental review
> process, dedicated staffing, training of agency personnel, information
> gathering and mapping, and development of programmatic agreements.
>
> \`(3) USE OF FEDERAL LANDS HIGHWAY FUNDS- The Secretary may also use
> funds made available under section 204 for a project for the purposes
> specified in this subsection with respect to the environmental review
> process for the project.
>
> \`(4) AMOUNTS- Requests under paragraph (1) may be approved only for
> the additional amounts that the Secretary determines are necessary for
> the Federal agencies, State agencies, or Indian tribes participating
> in the environmental review process to meet the time limits for
> environmental review.
>
> \`(5) CONDITION- A request under paragraph (1) to expedite time limits
> for environmental review may be approved only if such time limits are
> less than the customary time necessary for such review.
>
> \`(k) Judicial Review and Savings Clause-
>
> \`(1) JUDICIAL REVIEW- Except as set forth under subsection (l),
> nothing in this section shall affect the reviewability of any final
> Federal agency action in a court of the United States or in the court
> of any State.
>
> \`(2) SAVINGS CLAUSE- Nothing in this section shall be construed as
> superseding, amending, or modifying the National Environmental Policy
> Act of 1969 or any other Federal environmental statute or affect the
> responsibility of any Federal officer to comply with or enforce any
> such statute.
>
> \`(3) LIMITATIONS- Nothing in this section shall preempt or interfere
> with\--
>
> \`(A) any practice of seeking, considering, or responding to public
> comment; or
>
> \`(B) any power, jurisdiction, responsibility, or authority that a
> Federal, State, or local government agency, metropolitan planning
> organization, Indian tribe, or project sponsor has with respect to
> carrying out a project or any other provisions of law applicable to
> projects, plans, or programs.
>
> \`(l) []{#LimitationsOnClaims .anchor}Limitations on Claims-
>
> \`(1) IN GENERAL- Notwithstanding any other provision of law, a claim
> arising under Federal law seeking judicial review of a permit,
> license, or approval issued by a Federal agency for a highway or
> public transportation capital project shall be barred unless it is
> filed within 180 days after publication of a notice in the Federal
> Register announcing that the permit, license, or approval is final
> pursuant to the law under which the agency action is taken, unless a
> shorter time is specified in the Federal law pursuant to which
> judicial review is allowed. Nothing in this subsection shall create a
> right to judicial review or place any limit on filing a claim that a
> person has violated the terms of a permit, license, or approval.
>
> \`(2) NEW INFORMATION- The Secretary shall consider new information
> received after the close of a comment period if the information
> satisfies the requirements for a supplemental environmental impact
> statement under section 771.130 of title 23, Code of Federal
> Regulations. The preparation of a supplemental environmental impact
> statement when required shall be considered a separate final agency
> action and the deadline for filing a claim for judicial review of such
> action shall be 180 days after the date of publication of a notice in
> the Federal Register announcing such action.\'.
>
> \](b) Existing Environmental Review Process- Nothing in this section
> affects any existing State environmental review process, program,
> agreement, or funding arrangement approved by the Secretary under
> section 1309 of the Transportation Equity Act for the 21st Century
> (112 Stat. 232; 23 U.S.C. 109 note) as such section was in effect on
> the day preceding the date of enactment of the SAFETEA-LU.
>
> \(c\) Conforming Amendment- The analysis for such subchapter is
> amended by inserting after the item relating to section 138 the
> following:
>
> \`139. Efficient environmental reviews for project decisionmaking.\'.
>
> \(d\) Repeal- Section 1309 of the Transportation Equity Act for the
> 21st Century (112 Stat. 232) is repealed.

# Appendix B {#appendix-b .unnumbered}

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

**FHWA Sample Letter of Invitation**

![](media/image1.wmf) *\[Insert Date\]*

###  {#section-12 .unnumbered}

> *\[Insert Agency Representative\]*
>
> *\[Insert Agency Address\]*

Dear \[*Agency Representative\]*:

Re: Invitation to Become Participating Agency \[and Cooperating Agency\]
on *\[Insert Project Name\]*

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

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

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

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

1)  Provide meaningful and early input on defining the purpose and need,
    determining the range of alternatives to be considered, and the
    methodologies and level of detail required in alternatives analysis.

2)  Participate in coordination meetings and joint field reviews as
    appropriate.

3)  Timely review and comment on the pre-draft or pre-final
    environmental documents to reflect the views and concerns of your
    agency on the adequacy of the document, alternatives considered, and
    the anticipated impacts and mitigation.

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

-   Has no jurisdiction or authority with respect to the project;

-   Has no expertise or information relevant to the project; and

-   Does not intend to submit comments on the project.

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

Thank you for your cooperation and interest in this project.

Sincerely,

> Division Administrator

Enclosure *Attach Project NOI if applicable*

cc:

#   {#section-13 .unnumbered}

**FTA Sample Letter of Invitation**

![](media/image2.wmf){width="0.45in" height="0.4465277777777778in"}

> U.S. Department
>
> of Transportation
>
> **Federal Transit**
>
> **Administration**

*\[Insert Date\]*

*\[Insert Agency Representative\]*

*\[Insert Agency Name and Address\]*

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

Dear *\[Agency Representative\]*:

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

Section 6002 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users establishes an enhanced
environmental review process for certain FTA projects, increasing the
transparency of the process, as well as opportunities for participation.
The requirements of section 6002 apply to the project that is the
subject of this memorandum. As part of the environmental review process
for this project, the lead agencies must identify, as early as
practicable, any other Federal and non-Federal agencies that may have an
interest in the project, and invite such agencies to become
participating agencies in the environmental review process.[^3] Your
agency has been identified preliminarily as one that may have an
interest in this project, because *\[give reasons, such as adverse
impacts, resources affected, etc., why agency may be interested\]*;
accordingly, you are being extended this invitation to become actively
involved as a participating agency in the environmental review process
for the project.

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

> \- Provide input on the impact assessment methodologies and level of
> detail in your agency's area of expertise;
>
> \- Participate in coordination meetings, conference calls, and joint
> field reviews, as appropriate; and
>
> \- Review and comment on sections of the pre-draft or pre-final
> environmental documents to communicate any concerns of your agency on
> the adequacy of the document, the alternatives considered, and the
> anticipated impacts and mitigation.

Your agency does not have to accept this invitation. If, however, your
agency is a Federal agency, and you elect not to become a participating
agency, you must decline this invitation in writing, indicating that
your agency has no jurisdiction or authority with respect to the
project, no expertise or information relevant to the project, and does
not intend to submit comments on the project. The declination may be
transmitted electronically to *\[insert e-mail address\]*; please
include the title of the official responding. In order to give Federal
agencies adequate opportunity to weigh the relevance of their
participation in this environmental review process, written responses to
this invitation are not due until after the close of the scoping
process, now scheduled to conclude *\[insert date\]*. Written responses
from Federal agencies declining designation as participating agencies
should be transmitted to this office not later than *\[insert date\]*.

Additional information will be forthcoming during the public scoping
process, notification of which will be provided in the near future. If
you have questions regarding this invitation, please contact *\[insert
name and telephone number\]*.

Sincerely,

*\[Insert FTA Regional Planning Director\]*

Attachments: Scoping Information Packet

Draft Coordination Plan

Draft Schedule

cc: *\[Sponsoring Transit Agency\]*

# Appendix C {#appendix-c .unnumbered}

**Interagency Guidance: Transportation Funding for Federal Agency
Coordination Associated**

**with Environmental Streamlining Activities**

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

The complete text of this guidance will be included in the final version
of this document.

# Appendix D {#appendix-d .unnumbered}

**Linking the Transportation Planning and National Environmental Policy
Act (NEPA) Processes**

This guidance can be found at
<http://www.fhwa.dot.gov/hep/plannepa050222.pdf>.

The complete text of this guidance will be included in the final version
of this document.

# Appendix E {#appendix-e .unnumbered}

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

This guidance provides information on FHWA administration of the
[statute of limitations (SOL) provisions in
SAFETEA-LU](#LimitationsOnClaims). Attached to this guidance are sample
notice forms ([Attachments 1 to 3](#Attachment1)) and examples of a
single project notice ([Attachment 4](#Attachment4)) and a multiple
projects notice ([Attachment 5](#Attachment5)).

> **Question E-1: What is the "limitations on claims" provision in
> SAFETEA-LU?**
>
> **Answer:** The limitation on claims provision establishes a category
> of final action by Federal agencies that can be made subject to a
> 180-day time limitation for seeking judicial review. The law applies
> to Federal agency decisions on highway projects. The law will provide
> certainty and predictability in the transportation decisionmaking
> process and for transportation program implementation. If a SOL notice
> is published in the *Federal Register* (FR) that declares that there
> have been final Federal agency actions, then claims covered by the
> notice must be filed within 180 days after the date of the FR notice.
> A decision not to publish a SOL notice does not prevent an action from
> being final for other purposes.
>
> **Question E-2: What if the Federal law under which the action is
> taken sets a different length of time for filing an appeal?**
>
> **Answer:** If the statute in question has a judicial review provision
> that contains a time period of less than 180 days, then the shorter
> time limit applies. If the statute in question has a judicial review
> provision that contains a time period greater than 180 days, then the
> 180-day time limit applies.
>
> **Question E-3: What if no SOL notice is published in the FR?**
>
> **Answer:** If the claim is for review of a Federal action under NEPA,
> then the limitation on claims that applies is [28 USC
> §2401](http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+28USC2401).
> That law provides a claims period of six (6) years. The limitations on
> claims periods vary under other Federal laws.
>
> In addition, sometimes the failure to act on a claim in a timely
> manner may prevent individuals from obtaining judicial review
> regardless of the time period for claims provided by statute. This
> principle, known as laches, may apply in cases where someone has acted
> on the Federal agency decision in a way that makes it unfair to change
> the outcome of the decisionmaking process (e.g., if physical
> construction of the project is underway).
>
> Question E-4: Which Federal agency actions are included under the
> "permit, license, or approval" language of [23 USC
> §139(l)](#LimitationsOnClaims)?
>
> **Answer:** A 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. This includes decisions of other Federal agencies,
> such as the U.S. Army Corps of Engineers, that apply to the project.
> It also includes Federal agency decisions that FHWA considers when
> making its own decisions in accordance with NEPA.
>
> **Question E-5: How does FHWA determine whether a decision is "final"
> within the meaning of the SOL provision?**
>
> **Answer:** Generally, a Federal agency action is considered final if
> the agency has completed its decisionmaking process under the relevant
> law and the action is one that determines rights or obligations, or is
> an action from which legal consequences will flow. For example, when
> FHWA signs a ROD, that is the final action in FHWA's decisionmaking
> process under NEPA with respect to issues such as project
> alternatives, potential environmental effects of the project, and the
> avoidance and minimization of impacts.
>
> In most instances, staff at the FHWA Division Office will be able to
> determine finality for purposes of the SOL provision based on their
> knowledge of the project and the Federal agencies' decisionmaking
> processes. If questions arise in this area, the Division Office should
> consult with the FHWA Office of Chief Counsel before making a
> determination. Guidance will be issued if needed.
>
> Question E-6: What is required for the notice to apply to claims under
> Federal laws other than NEPA?
>
> **Answer:** While there is a presumption that the notice will cover
> all Federal agencies' actions that relate to the project and are
> within the scope of the SOL provision, the notice should expressly
> state that other Federal agencies have taken actions that are final
> under the governing laws. The key laws listed in the notice should
> include those under which the Federal agencies took final action. The
> sample forms and examples that accompany this guidance illustrate
> these points ([Attachments 1 to 3](#Attachment1)).
>
> **Question E-7: Does assignment of CE responsibilities under
> SAFETEA-LU Sections 6004 or 6005, or assignment of other environmental
> responsibilities under Section 6005, change the process for the use of
> the limitation on claims provision?**
>
> **Answer:** Because the SAFETEA-LU delegations substitute the State
> for the FHWA in the NEPA process, the SOL notice will reflect the fact
> that the NEPA decision is issued by the State. Otherwise, the basic
> content requirements for the notice remain unchanged in the event of a
> Section 6004 or 6005 assignment. FHWA will continue to be the party
> that arranges for publication of the notice in the FR.
>
> **Question E-8: Can a Federal agency publish a SOL notice for a
> project that has no Federal funding, but does require decisions by
> Federal agencies as part of its permitting or review process?**
>
> **Answer:** Yes, but only if there is a legal requirement for approval
> of the project by the USDOT Secretary and the project is a highway
> project, a public transportation capital project, or a multimodal
> project. These requirements are set forth in the definition of
> "project" in Section 6002 of SAFETEA-LU. The Federal agency serving as
> the lead agency for NEPA would be the agency that would determine
> whether to publish a SOL notice for such project.
>
> Question E-9: Does the SOL provision apply to permits, licenses, or
> approvals issued by State agencies that administer other Federal
> programs, such as the Floodplain Permit program?
>
> **Answer:** The SOL provision applies only to Federal agency actions.
> If a State agency is acting as a Federal agency, as is the case under
> the SAFETEA-LU Section 6004 provisions for CEs, then the SOL provision
> applies. If the State agency is acting as a State agency under the
> authority of State laws, then the SOL provision does not apply.
>
> **Question E-10: Can the SOL** **notice process be used if project
> decisionmaking was completed prior to the effective date of SAFETEA-LU
> on August 10, 2005?**
>
> **Answer:** Yes. Because publishing the notice will establish a
> reasonable period of time (180 days) prospectively for filing claims,
> it may be used for projects on which the NEPA decision was made prior
> to August 10, 2005. The 180-day period will run from the date the
> notice is published. As stated previously, the Division Office should
> work with field counsel to decide whether publication of a notice is a
> good choice for the project(s) in question.
>
> If a Division Office wants to publish notices for several projects
> that were approved before August 10, 2005, it may wish to use the
> multiproject sample form as a guide for consolidating the projects
> under a single notice. (See [Attachment 3](#Attachment3).)
>
> **Question E-11: Does the limitation on claims provision apply to all
> NEPA categories of projects?**
>
> **Answer:** The process can be used for any category of NEPA project
> that generates a documented decision. This includes documented CEs,
> EAs, and EISs. Before deciding to publish a notice, the FHWA Division
> Office, in consultation with the State, should consider whether
> publication is justified. This is further discussed below. (See
> Questions [E-12](#QuestionE12) and [E-13](#QuestionE13).)
>
> []{#QuestionE12 .anchor}**Question E-12: How does the project's NEPA
> category (CE, EA, EIS) affect whether the notice should be used?**
>
> **Answer:** The likely benefits of public notice, as well as the risk
> and potential effects of litigation, generally are different for each
> NEPA category. FHWA anticipates that all EIS projects will merit use
> of the SOL notice. EIS projects typically are substantial in size and
> complexity, and the potential effects of delay due to litigation will
> be the greatest. EA projects also may be likely candidates for a SOL
> notice, depending upon the nature of the project, the types of issues
> decided, the estimated likelihood of future litigation, and the
> potential effects of litigation. For example, publication of a SOL
> notice would be appropriate if an EA is used on a project involving an
> action that is listed in 23 CFR 771.115(a) as normally requiring an
> EIS. By contrast, the use of a SOL notice for a CE should be
> relatively rare. FHWA does not expect SOL notices to be used for
> projects that are CEs under 23 CFR 771.117(c). FHWA anticipates that
> the notice may be appropriate for documented CE projects under 23 CFR
> 771.117(d). Because of the potential volume of notices where they are
> used for CE projects, FHWA urges use of the consolidated notice
> approach (See Question E-15)
>
> []{#QuestionE13 .anchor}**Question E-13: What kinds of factors should
> be considered when deciding whether to publish a SOL notice?**
>
> **Answer:** The goal is to balance the benefits of providing notice to
> the public about the Federal government's decisions, against the costs
> of doing so. In all cases, it is important to consider the facts of
> the project when deciding whether to publish a notice. The FHWA
> Division Office must determine whether publication of the notice,
> which starts its own 180-day clock for claims, is the best course in
> light of all factors affecting the project. FHWA recommends that
> Division Offices work with their field counsel as they make these
> determinations.
>
> For practitioners considering whether to publish a SOL notice, it will
> be useful to examine the potential for litigation from several
> perspectives. The laws and procedures under which Federal agency
> decisions were made for the project also may affect the decision
> whether to publish a SOL notice. For example, if the project involves
> an individual permit under Section 404 of the Clean Water Act, or a
> formal or informal consultation process under the Endangered Species
> Act, publication of a notice would be appropriate. If there are known
> interested parties threatening to file a lawsuit, then the notice may
> serve to ensure that such action occurs quickly. On the other hand, a
> notice may prompt some parties to sue merely to preserve their claims
> until they are more certain whether their interests are adversely
> affected by the Federal action. A notice may be very useful in cases
> where there are no known potential litigants, but where there is a
> desire to ensure that the project can move into implementation without
> the risk of unexpected claims against it. A 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 protection
> afforded by the SOL notice, then there may be little benefit from
> publication of a SOL notice.

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

> **Answer:** Yes, the SOL notice provision does apply to a tiered EIS
> to the extent that the tiered EIS results in final decisions. FHWA is
> coordinating with other Federal agencies on this topic and will issue
> additional guidance.

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

> **Answer:** Nothing prohibits the consolidation of notices for
> multiple projects into a single FR notice. This may be a cost
> effective approach if the Division Office is publishing several
> notices in the same timeframe, and especially if notices are published
> for CE projects. To help readers identify the laws involved with each
> project, FHWA suggests that each individual project description
> reference the primary laws applicable to that project. A sample form
> for a consolidated notice accompanies this guidance ([Attachment
> 3](#Attachment3)) as well as an example of a consolidated notice
> ([Attachment 5](#Attachment5)). The example shows one way that the
> individual project references can be done when a notice covers
> multiple projects.

**Question E-16: Who decides whether a limitation on claims notice gets
published in the FR?**

> **Answer:** The decision whether to use the SOL notice process is one
> that the FHWA Division Office will make in consultation with the
> State. For existing Federal Lands Highway projects, consultation
> should take place with the lead agency for NEPA, if it is an agency
> other than FHWA. If Federal Lands has assumed joint lead agency
> responsibilities, the two agencies will decide together.
>
> The FHWA Division also should ensure that there is coordination with
> other Federal agencies whose decisions are covered by a notice. It is
> important for those agencies to be aware of the intention to publish a
> notice, especially if the notice directs readers to those other
> agencies for information about their actions on the project. Such
> coordination also is important because it permits the FHWA to confirm
> that there are no other pending actions or proceedings at the other
> Federal agency that might affect that agency's project decision.

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

> **Answer:** The notice must provide enough information to give the
> public reasonable notice of the general nature of the project and of
> the fact that there has been action by one or more Federal agencies
> that is final and subject to the 180-day limitation period. The notice
> should specify that claims will be barred at the end of the 180-day
> period, and state the legal authority for agency action and for the
> 180-day limitation.
>
> FHWA notices often will cover actions by several Federal agencies and
> an array of agency decisions, rather than just the FHWA's NEPA action.
> In such cases, the notice should state that it applies to the actions
> of those other Federal agencies and to all laws under which Federal
> agencies took action. The sample forms and example that accompany this
> guidance contain language covering these points ([Attachments 1 to
> 5](#Attachment1)).
>
> Other factors to consider in drafting a notice include how to identify
> the project in a way that the general public will understand, and how
> best to direct readers to one or more sources for detailed information
> about the project and the decisions made by the Federal agencies.
> Because the notice contains only very abbreviated information about a
> project, and the burden is placed on the readers to seek detailed
> information, the instructions for obtaining detailed information are
> especially important. Web sites are an excellent resource for this
> purpose, although alternative means for obtaining information still
> will be important for those who do not have easy access to the
> Internet. Contact information for other Federal agencies that made a
> project decision may be included in the notice, but is not required as
> long as the information about the decisions of those Federal agencies
> is available from the FHWA or State contacts.
>
> The SOL notices must comply with FR technical requirements. The sample
> forms reflect the necessary format ([Attachments 1 to
> 3](#Attachment1)). Some important points to remember:

1.  An FHWA official with appropriate delegated authority must sign the
    notice. This is usually the Division Administrator.

2.  The "issuance date" must be the same date as when the notice
    actually is signed. Pre- and post-dating are not acceptable.

3.  The person whose name is inserted in the signature block must be the
    person who signs the notice. It is not permissible to sign for
    another person.

4.  The signatory must sign three (3) originals of the notice.

5.  There should not be a page number on the first page of the notice.

6.  There should be two spaces between the period at the end of one
    sentence and the first letter at the beginning of the next sentence.

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

> **Answer:** The Division Offices can use the sample forms as models
> when they prepare SOL notices under this guidance for an EIS, EA, or
> documented CE project. The sample forms include instructions (in bold
> and bracketed text) for inserting project-specific information into
> the notice. When using a sample form, the Division Offices will need
> to exercise professional judgment about how to adapt the form to meet
> the needs of the project. FHWA encourages the Division Offices to work
> with their environmental specialist and their field counsel when
> questions arise about the appropriate content for a particular project
> notice. Those individuals, in turn, can consult with FHWA Headquarters
> representatives as needed.
>
> One example of the judgment required is in completing the section that
> lists the primary Federal laws under which the Federal agencies have
> made final decisions on the project. The purpose of the notice is to
> advise the public that actions have been taken that trigger the
> limitation period. The list of laws is intended to help inform readers
> about the types of matters decided by the Federal agencies. It is
> *not* intended to be an all-inclusive list of the laws relevant to
> Federal agency decisionmaking. For many projects, it may be
> appropriate to list only the key laws under which Federal agencies
> took their actions, such as the Federal-aid Highway Act, NEPA, 4(f),
> Section 106, and the Clean Air Act. In some situations, a more
> extensive list may be useful if other laws create the authority (or
> the obligation) for decisions that are potentially controversial, or
> are of high interest to major stakeholders or the general public. As a
> resource, FHWA offers [a list of laws that affect
> transportation](http://www.fhwa.dot.gov/environment/env_sum.htm). That
> resource may assist Division Offices in preparing the SOL notice list
> of the laws that apply to the project. Division Offices should be
> careful to include in the SOL notice only those laws under which a
> documented Federal agency decision was made on the project.
>
> This guidance includes the following three types of FHWA sample forms:
> a single EIS project where all Federal agency decisions have been
> made; a notice covering a Federal agency decision made after FHWA
> acted and issued an initial SOL notice; and a consolidated notice to
> cover multiple projects of varying NEPA categories. Examples also are
> provided, showing mock-ups of actual notices for a single project
> ([Attachment 3](#Attachment3)) and multiple projects ([Attachment
> 5](#Attachment5)). As needed, FHWA will issue additional sample forms
> to cover other types of situations.
>
> **Question E-19: How much detail should be included in the SOL
> notice's description of the project?**
>
> **Answer:** The description of the project should be very brief and
> contain only the information that is critical to a reader's
> comprehension of the general nature of the project. For example, it is
> not necessary to recite the history of the project or details about
> how or why decisions were made. The following examples illustrate an
> appropriate level of detail for project descriptions:
>
> [Example 1]{.underline}: Notice is hereby given that the FHWA and
> other Federal agencies have taken final agency actions by issuing
> licenses, permits, and approvals for the following highway project in
> the State of Illinois: U.S. Route 20 from Galena to Freeport in Jo
> Daviess and Stephenson Counties. The project will be a 79.8 km (49.7
> mi) long, four-lane freeway with grade separations at all intersecting
> roadways (i.e. a fully access-controlled facility). It will begin
> northwest of Galena near the existing intersection of IL Route 84 and
> U.S. Route 20. It will then proceed to the north and east of Galena,
> south of the Galena Territory, along the north side of Tapley Woods,
> north of Elizabeth and Woodbine, north of Stockton and south of Lena.
> It will end northwest of Freeport, tying into the western end of the
> U.S. Route 20 Freeport Bypass. Except for the termini, which tie in
> along the existing U.S. Route 20, the entire proposed freeway will be
> on new alignment.
>
> [Example 2]{.underline}: Notice is hereby given that the FHWA and
> other Federal agencies have taken final agency actions by issuing
> licenses, permits, and approvals for the following highway project in
> the State of Wisconsin: WI-26 State Trunk Highway (STH) Improvements,
> Janesville at IH-90 to STH-60-East north of Watertown Road in Rock,
> Jefferson, and Dodge Counties. The project begins on the north side of
> Janesville at IH 90 and extends north about 77 km (48 mi) to about 15
> km (9 mi) north of Watertown at STH 60-East. The proposed action
> involves upgrading the existing two-lane STH 26 corridor to a
> four-lane divided rural highway.

**Question E-20: How should publication of SOL notices be timed if
Section 404 or other permits or approvals remain outstanding as of the
date of the FHWA ROD, FONSI, or documented CE?**

> **Answer:** A SOL notice will not be effective unless the Federal
> agency action covered by the notice qualifies as "final" within the
> meaning of the SOL provision in SAFETEA-LU. Usually, it will make
> sense to publish the SOL notice only when all Federal agency permits,
> licenses, and approvals are in place.
>
> Exceptions may occur. For example, it may make sense to proceed with
> publication of the SOL notice immediately after FHWA issues its ROD if
> the remaining Federal decisions are not expected to occur within a
> reasonable period of time. Another reason not to wait might be if the
> remaining Federal decisions pertain to noncontroversial matters that
> no one is likely to litigate. Once the other Federal agencies have
> completed their decisionmaking processes, a decision can be made
> whether to publish an additional SOL notice.
>
> If more than one notice is published for a project, the 180-day claims
> period will run separately for the Federal agency actions covered by
> each notice. For example, if a notice were published for a FHWA ROD on
> December 1, 2005, and for the project's Section 404 permit on August
> 1, 2006, the 180-day period for the NEPA claim would be measured
> starting on December 1, 2005. The limitation period for the Section
> 404 permit would start on August 1, 2006.

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

> **Answer:** FHWA does not think so, but this is likely to be the
> subject of debate until decided through litigation. In light of the
> language in the SOL provision, a prudent person contesting an action
> would assume that the Federal agency decisions covered in the first
> SOL notice could not be challenged in litigation following a Section
> 404 decision more than 180 days after the first notice.
>
> **Question E-22: How does the SOL notice provision apply to a
> supplemental environmental impact statement (SEIS)?**
>
> **Answer:** The [SOL provision in SAFETEA-LU](#LimitationsOnClaims)
> makes it clear that a SEIS requires a separate SOL notice. A notice
> published for earlier NEPA documents or for earlier Federal agency
> decisions would not suffice for matters contained in the SEIS or for
> decisions made based on the SEIS.
>
> []{#QuestionE23 .anchor}**Question E-23: Should a reference to the SOL
> provision be included in NEPA documents?**
>
> **Answer:** FHWA recommends, but will not require, that future NEPA
> documents include a statement setting forth the SOL provisions so that
> readers of the NEPA documentation are aware of the statutory provision
> and its effects. A sample SOL statement appears below.
>
> *A Federal agency may publish a notice in the Federal Register,
> pursuant to 23 USC §139(l), indicating that one or more Federal
> agencies have taken final action on permits, licenses, or approvals
> for a transportation project. If such notice is published, claims
> seeking judicial review of those Federal agency actions will be barred
> unless such claims are filed within 180 days after the date of
> publication of the notice, or within such shorter time period as is
> specified in the Federal laws pursuant to which judicial review of the
> Federal agency action is allowed. If no notice is published, then the
> periods of time that otherwise are provided by the Federal laws
> governing such claims will apply.*

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

> **Answer:** No. However, the limitation on claims provision increases
> the importance of effective documentation and tracking of governmental
> agency decisions. It also will be important to ensure that copies of
> the decisions and supporting documents for actions taken by other
> Federal agencies are included in the FHWA project records, even if
> those agencies acted after the FHWA NEPA decision. This is because the
> SOL notice will direct readers to FHWA's records for information on
> all of the decisions relating to the project.
>
> In some cases, it may be useful to consider ways to make it easier for
> readers of NEPA documents to understand what Federal decisions are
> made in connection with the project. It also will be helpful to
> evaluate how effectively the NEPA documentation informs readers of the
> status of various Federal agency decisions as of the time the NEPA
> documents are issued.
>
> A SOL notice will direct interested parties to FHWA and the State for
> information about the project and the project-related actions of
> various Federal agencies. For this reason, it will be very important
> that both agencies have project documents readily available for public
> inspection as of the date of the publication of the SOL notice.
>
> **Question E-25: How is publication in the FR handled? How does
> publication work in States that receive assigned powers under
> SAFETEA-LU Sections 6004 or 6005?**
>
> **Answer:** The publication of the SOL notice should follow the same
> process used for authorization and publication of a notice of intent
> under NEPA. This applies regardless of Sections 6004 or 6005 status.
> At the present time, FHWA must handle publication of the notice in the
> FR because the FR typically accepts items only from Federal agencies.

**Question E-26: Who pays for the notices?**

> **Answer:** Presently, the cost of notices is paid from FHWA's general
> operating expense funds. FHWA is developing a procedure to treat
> payment for notices as an eligible project cost, so that States may
> reimburse FHWA for the costs of the notices.

**[Attachments:]{.underline}**

**Attachment 1 -- Single Project SOL Notice Sample Form**

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

**Attachment 3 -- Multiple Projects Consolidated SOL Notice Sample
Form**

**Attachment 4 -- Example of Single Project SOL Notice**

**Attachment 5 -- Example of Multiple Projects Consolidated SOL Notice**

> []{#Attachment1 .anchor}**[Attachment 1]{.smallcaps}**
>
> **[FHWA SOL Sample Form: Single Project]{.smallcaps}**
>
> \[*Scenario: All Federal agency decisions, including §404, have been
> completed.*\]
>
> **DEPARTMENT OF TRANSPORTATION** \[4910-22-P\]

**Federal Highway Administration**

> **Notice of Final Federal Agency Actions on Proposed Highway in
> \[*fill in State name*\]**
>
> **AGENCY:** Federal Highway Administration (FHWA), DOT
>
> **ACTION:** Notice of Limitation on Claims for Judicial Review of
> Actions by FHWA, Army Corps of Engineers (USACE), DoD, and Other
> Federal Agencies
>
> **SUMMARY:** This notice announces actions taken by the FHWA, USACE
> and other Federal agencies that are final within the meaning of 23 USC
> §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 USC §139(l)(1). A claim seeking judicial
> review of the Federal agency actions on the highway project will be
> barred unless the claim is filed on or before \[Insert date 180 days
> after publication in the Federal Register\] ***\[previous phrase must
> be included as written, including the brackets, since it is an
> instruction to the Federal Register\]***. If the Federal law that
> authorizes judicial review of a claim provides a time period of less
> than 180 days for filing such claim, then that shorter time period
> still applies.
>
> **FOR FURTHER INFORMATION CONTACT:** For FHWA: **\[*fill in FHWA
> contact information, including name, title, agency name, office
> address and regular office hours, telephone, and e-mail*\].** For
> USACE: **\[*fill in USACE contact information, including name, title,
> agency name, office address and regular office hours, telephone, and
> e-mail*\].** For ***\[fill in name of State agency\]*: \[*fill in
> State contact information, including name, title, agency name, office
> address and regular office hours, telephone, and e-mail*\].**
>
> **SUPPLEMENTARY INFORMATION:** Notice is hereby given that the FHWA,
> USACE, and other Federal agencies have taken final agency actions by
> issuing licenses, permits, and approvals for the following highway
> project in the State of **\[*fill in State name*\]**: **\[*Fill in
> very brief description of project (target is no more than 3-5
> sentences): project location, project/construction type, length of
> project, general purpose, FHWA project reference number*\]**. The
> actions by the Federal agencies, and the laws under which such actions
> were taken, are described in the Final Environmental Impact Statement
> (FEIS) for the project, approved on **\[*fill in date*\]**, in the
> FHWA Record of Decision (ROD) issued on **\[*fill in date***\], and in
> other documents in the FHWA project records. The FEIS, ROD, and other
> project records are available by contacting the FHWA or the **\[*fill
> in name of State agency*\]** at the addresses provided above. The FHWA
> FEIS and ROD can be viewed and downloaded from the project web site at
> \[***fill in the link***\] or viewed at public libraries in the
> project area **\[*delete text on electronic and library access if not
> applicable\]***. The USACE decision and permit (USACE Permit ***\[fill
> in permit reference\]***) are available by contacting USACE at the
> address provided above, and can be viewed and downloaded from
> ***\[fill in the link to USACE or project web site, or delete this
> electronic availability text, if not applicable\]***, or viewed at
> public libraries in the project area ***\[delete text on library
> access if not applicable\]***.
>
> This notice applies to all Federal agency decisions as of the issuance
> date of this notice and all laws under which such actions were taken,
> including but not limited to **\[*Insert the key laws and Executive
> Orders under which Federal agencies have made final, documented
> decisions about the project; [drafters should]{.underline}* [*not
> list* *any law or Executive Order that does not apply to the project,
> or for which the Federal agency decision is not
> final.*]{.underline}\]**:

1.  
2.  
3.  
4.  

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

> Authority: 23 USC §139(l)(1)
>
> Issued on: **\[date signed\]**
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **\[Signatory Name\]**
>
> **\[Signatory Title\]**
>
> **\[City\]**
>
> **[Attachment 2]{.smallcaps}**
>
> **[FHWA SOL Notice Sample Form: Post-ROD 404 Decision]{.smallcaps}**
>
> \[*Scenario: FHWA previously published a notice for its NEPA and other
> decisions, this notice covers USACE and other Federal agency decisions
> since the first notice.*\]
>
> **DEPARTMENT OF TRANSPORTATION** \[4910-22-P\]

**Federal Highway Administration**

> **Final Federal Agency Actions on Proposed Highway in \[*fill in State
> name*\]**
>
> **AGENCIES:** Federal Highway Administration (FHWA), DOT
>
> **ACTION:** Notice of Limitation on Claims for Judicial Review of
> Actions by Army Corps of Engineers, (USACE), DoD, and Other Federal
> Agencies
>
> **SUMMARY:** This notice announces actions taken by the USACE and
> other Federal agencies that are final within the meaning of 23 USC
> §139(l)(1). The actions relate to a proposed highway project,
> **\[*fill in highway name/number and starting and ending cities or
> other points*\]** in the County of **\[*fill in county name(s)*\],**
> State of **\[*fill in State name*\]**. Those actions grant licenses,
> permits, and approvals for the project.
>
> **DATES:** By this notice, the FHWA is advising the public of final
> agency actions subject to 23 USC §139(l)(1). A claim seeking judicial
> review of the Federal agency actions that are covered by this notice
> will be barred unless the claim is filed on or before \[Insert date
> 180 days after publication in the Federal Register\] ***\[previous
> phrase must be included as written, including the brackets, since it
> is an instruction to the Federal Register\]***. If the Federal law
> that authorizes judicial review of a claim provides a time period of
> less than 180 days for filing such claim, then that shorter time
> period still applies.
>
> **FOR FURTHER INFORMATION CONTACT:** For FHWA: **\[*fill in FHWA
> contact information, including name, title, agency name, office
> address and regular office hours, telephone, and e-mail*\].** For
> USACE: **\[*fill in USACE contact information, including name, title,
> agency name, office address and regular office hours, telephone, and
> e-mail*\].** For ***\[fill in name of State agency\]***: **\[*fill in
> State contact information, including name, title, agency name, office
> address and regular office hours, telephone, and e-mail*\].**
>
> **SUPPLEMENTARY INFORMATION:** On \[***fill in date***\], the FHWA
> published a \"Notice of Final Federal Agency Actions on Proposed
> Highway in **\[*fill in State name*\]**\" in the Federal Register at
> \[***fill in FR reference***\] for the following highway project:
> **\[*Fill in very brief description of project (target is no more than
> 3-5 sentences): project location, project/construction type, length of
> project, general purpose, FHWA project reference number, type(s) of
> FHWA NEPA document(s), and date(s) issued*\]**. Notice is hereby given
> that, subsequent to the earlier FHWA notice, the USACE has taken final
> agency actions within the meaning of 23 USC §139(l)(1) by issuing
> permits and approvals for the highway project. The actions by the
> USACE, related final actions by other Federal agencies, and the laws
> under which such actions were taken, are described in the USACE
> decisions and its project records, referenced as **\[*fill in USACE
> permit number(s)*\]**. That information is available by contacting the
> USACE at the address provided above.
>
> Information about the project and project records also are available
> from the FHWA and the **\[*fill in name of State agency*\]** at the
> addresses provided above. The FHWA **\[*insert references to FHWA NEPA
> documents, such as FEIS and ROD or EA and FONSI*\]** can be viewed and
> downloaded from the project web site at \[***fill in the link***\], or
> viewed at public libraries in the project area **\[*delete text on
> electronic and library access if not applicable*\]**. The USACE
> decision can be viewed and downloaded from the USACE web site at
> ***\[fill in link\]*** or the project web site at \[***fill in the
> link***\] or viewed at public libraries in the project area
> **\[*delete text on electronic and library access if not
> applicable*\]**.
>
> This notice applies to all USACE and other Federal agency final
> actions taken after the issuance date of the FHWA Federal Register
> notice described above. The laws under which actions were taken
> include, but are not limited to **\[*Insert the key laws and Executive
> Orders under which Federal agencies have made final, documented
> decisions about the project since the date of the first §139(l)
> notice; [drafters should list law(s) and Executive Orders under which
> USACE or another Federal agency made decisions or determinations on
> the project after the issuance date of the first §139(l) Federal
> Register notice; drafters should not list]{.underline}* *[any law or
> Executive Order that does not apply to the project, or for which the
> Federal agency decision is not final.]{.underline}*\]**:

1.  
2.  
3.  
4.  
5.  

> (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 USC §139(l)(1)
>
> Issued on: **\[date signed\]**
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **\[FHWA Signatory Name\]**
>
> **\[FHWA Signatory Title\]**
>
> **\[City\]**

[]{#Attachment3 .anchor}Attachment 3

> **[FHWA SOL Sample Form: Multiple Projects]{.smallcaps}**
>
> \[*Scenario: Projects involve a variety of NEPA categories and some
> have not yet received final decisions on permits from other Federal
> agencies*.\]
>
> **DEPARTMENT OF TRANSPORTATION** \[4910-22-P\]

**Federal Highway Administration**

> **Notice of Final Federal Agency Actions on Proposed Highways in
> \[*fill in State name*\]**
>
> **AGENCY:** Federal Highway Administration (FHWA), DOT
>
> **ACTION:** Notice of Limitation on Claims for Judicial Review of
> Actions by FHWA and Other Federal Agencies
>
> **SUMMARY:** This notice announces actions taken by the FHWA and other
> Federal agencies that are final within the meaning of 23 USC
> §139(l)(1)-(2) ***\[delete the "-(2)" if the notice does not cover any
> SEIS projects\]***. The actions relate to various proposed highway
> projects in the State of **\[*fill in State name*\]**. Those actions
> grant licenses, permits, and approvals for the projects.
>
> **DATES:** By this notice, the FHWA is advising the public of final
> agency actions subject to 23 USC §139(l)(1)-(2) ***\[delete the "-(2)"
> if the notice does not cover any SEIS projects\]***. A claim seeking
> judicial review of the Federal agency actions on any of the listed
> highway projects will be barred unless the claim is filed on or before
> \[Insert date 180 days after publication in the Federal Register\]
> ***\[previous phrase must be included as written, including the
> brackets, since it is an instruction to the Federal Register\]***. If
> the Federal law that authorizes judicial review of a claim provides a
> time period of less than 180 days for filing such claim, then that
> shorter time period still applies.
>
> **FOR FURTHER INFORMATION CONTACT:** **\[*fill in FHWA contact
> information, including name, title, agency name, office address and
> regular office hours, telephone, and e-mail*\]** or **\[*fill in State
> contact information, including name, title, agency name, office
> address and regular office hours, telephone, and e-mail*\].**
>
> **SUPPLEMENTARY INFORMATION:** Notice is hereby given that the FHWA
> and other Federal agencies have taken final agency actions by issuing
> licenses, permits, and approvals for the highway projects in the State
> of **\[*fill in State name*\]** that are listed below. The actions by
> the Federal agencies on a project, and the laws under which such
> actions were taken, are described in the documented categorical
> exclusion (CE), environmental assessment (EA), environmental impact
> statement (EIS), or supplemental EIS (SEIS) issued in connection with
> the project **\[*delete here, and elsewhere, references to any
> document types that are not included in this notice*\]**, and in other
> project records. The CE, EA, FEIS, Findings of No Significant Impact
> (FONSI), Record of Decision (ROD), or SEIS, and other project records
> for the listed projects are available by contacting the FHWA or the
> **\[*fill in name of State agency*\]** at the addresses provided
> above. The FEIS, SEIS, and ROD documents for these projects
> **\[*delete references to any document types that do not apply to
> projects in this notice*\]** also can be viewed and downloaded from
> the FHWA Division's web site at **\[*fill in the link*\]** or viewed
> at public libraries in the relevant project area **\[*delete text on
> electronic and library access if not applicable\]***.
>
> 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 **\[i*nsert the laws and Executive Orders under
> which Federal agencies have made final, documented decisions about the
> projects subject to this notice; [drafters should]{.underline}*
> [*list* *the laws and Executive Orders under which a Federal agency
> made a final decision for at least one (or more) of the projects
> covered by this notice; drafters should* *not list* *any law or
> Executive Order that does not apply to at least one of the projects,
> or for which the Federal agency decision is not final. Include
> abbreviated forms of reference for each law listed in this section
> (e.g., Section 404, Section 106) to facilitate cross-referencing the
> laws within the project description. That step will help readers
> rapidly identify which key Federal laws applied to a particular
> project*]{.underline}\]**:

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4.  
5.  
6.  

> The projects subject to this notice are:

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

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

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

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

> (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 USC §139(l)(1)-(2) **\[*strike "--(2)" if no SEIS
> project is listed*\]**
>
> Issued on: **\[date signed\]**
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **\[Signatory Name\]**
>
> **\[Signatory Title\]**
>
> **\[City\]**
>
> []{#Attachment4 .anchor}**[Attachment 4]{.smallcaps}**
>
> **[FHWA SOL Notice Example: Single Project]{.smallcaps}**
>
> \[*Scenario: EIS project, all Federal agency decisions have been
> completed.*\]
>
> **DEPARTMENT OF TRANSPORTATION** \[4910-22-P\]

**Federal Highway Administration**

> **Notice of Final Federal Agency Actions on Proposed Highway in
> Yourstate**
>
> **AGENCY:** Federal Highway Administration (FHWA), DOT
>
> **ACTION:** Notice of Limitation on Claims for Judicial Review of
> Actions by FHWA, Army Corps of Engineers (USACE), DoD, and Other
> Federal Agencies
>
> **SUMMARY:** This notice announces actions taken by the FHWA, USACE,
> and other Federal agencies that are final within the meaning of 23 USC
> §139(l)(1). The actions relate to a proposed highway project, U.S.
> Route 10, Milo to Freeport, in Washington, Jefferson, and Lincoln
> Counties in the State of Yourstate. Those actions grant licenses,
> permits, and approvals for the project.
>
> **DATES:** By this notice, the FHWA is advising the public of final
> agency actions subject to 23 USC §139(l)(1). A claim seeking judicial
> review of the Federal agency actions on the highway project will be
> barred unless the claim is filed on or before \[Insert date 180 days
> after publication in the Federal Register\]. If the Federal law that
> authorizes judicial review of a claim provides a time period of less
> than 180 days for filing such claim, then that shorter time period
> still applies.
>
> **FOR FURTHER INFORMATION CONTACT:** For FHWA: Mr. Arthur Davis,
> Division Administrator, Federal Highway Administration, 3000 Federal
> Drive, Capital City, Yourstate 00000-0000; telephone: (888) 888-0000;
> e-mail: <Arthur.Davis@fhwa.dot.gov>. The FHWA Yourstate Division
> Office's normal business hours are 7:45 a.m. to 4:15 p.m. (eastern
> time). For USACE: Mr. Harold Jones, U.S. Army Corps of Engineers,
> Freeport District -- CENAB-OP-R, P.O. Box 1776, Yourstate, 20016,
> (888) 888-2222, <Harold.jones@usace.army.mil> (regular office hours
> are 8:30 am to 4:30 pm). For Yourstate Department of Transportation:
> Mr. Benjamin Smith, P.E., Yourstate Department of Transportation,
> 10000 State Street, Capital City, Yourstate 00000-0000; telephone:
> (888) 888-1111.
>
> **SUPPLEMENTARY INFORMATION:** Notice is hereby given that the FHWA
> and other Federal agencies have taken final agency actions by issuing
> licenses, permits, and approvals for the following highway project in
> the State of Yourstate: U.S. Route 10 from Milo to Freeport in
> Washington, Jefferson, and Lincoln Counties. The project will be a
> 79.8 km (49.7 mi) long, four-lane freeway with grade separations at
> all intersecting roadways (i.e. a fully access-controlled facility).
> It will begin northwest of Milo near the existing intersection of YS
> Route 64 and U.S. Route 10. It will then proceed to the north and east
> of Milo, north of Berlin and south of Darby. It will end northwest of
> Freeport, tying into the western end of the U.S. Route 10 Freeport
> Bypass. The proposed freeway will be on new alignment. The actions by
> the Federal agencies, and the laws under which such actions were
> taken, are described in the Final Environmental Impact Statement
> (FEIS) for the project, approved on August 10, 2005, in the FHWA
> Record of Decision (ROD) issued on November 18, 2005, and in other
> documents in the FHWA project files. The FEIS, ROD, and other project
> records are available by contacting the FHWA or the Yourstate
> Department of Transportation at the addresses provided above. The FHWA
> FEIS and ROD can be viewed and downloaded from the project web site at
> [www.dot.yourstate.gov/env/us10feis.htm](http://www.dot.yourstate.gov/env/us10feis.htm)
> or viewed at public libraries in the project area. The USACE decision
> and permit (USACE Permit CEN-OP-RMS (YS DOT) 06-20011-1), issued on
> March 23, 2006, can be viewed and downloaded from the USACE web site
> at http://www.mvr.usace.army.mil/Regulatory/news.htm.
>
> This notice applies to all Federal agency decisions as of the issuance
> date of this notice and all laws under which such actions were taken,
> including but not limited to:

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

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

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

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

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

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

7.  Wetlands and Water Resources: Clean Water Act, 33 U.S.C. 1251-1377
    (Section 404, Section 401, Section 319); Land and Water Conservation
    Fund (LWCF), 16 U.S.C. 4601-4604; Safe Drinking Water Act (SDWA), 42
    U.S.C. 300(f)-300(j)(6); Rivers and Harbors Act of 1899, 33 U.S.C.
    401-406; Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287; Emergency
    Wetlands Resources Act, 16 U.S.C. 3921, 3931; TEA-21 Wetlands
    Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11); Flood Disaster
    Protection Act, 42 U.S.C. 4001-4128.

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

> (Catalog of Federal Domestic Assistance Program Number 20.205, Highway
> Planning and Construction. The regulations implementing Executive
> Order 12372 regarding intergovernmental consultation on Federal
> programs and activities apply to this program.)
>
> Authority: 23 USC §139(l)(1)
>
> Issued on: **\[date signed\]**
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Arthur Davis
>
> Division Administrator
>
> Capital City
>
> []{#Attachment5 .anchor}**[Attachment 5]{.smallcaps}**
>
> **[FHWA SOL Example: Multiple Projects]{.smallcaps}**
>
> **DEPARTMENT OF TRANSPORTATION** \[4910-22-P\]

**Federal Highway Administration**

> **Notice of Final Federal Agency Actions on Proposed Highways in
> Yourstate**
>
> **AGENCY:** Federal Highway Administration (FHWA), DOT
>
> **ACTION:** Notice of Limitation on Claims for Judicial Review of
> Actions by FHWA and Other Federal Agencies
>
> **SUMMARY:** This notice announces actions taken by the FHWA and other
> Federal agencies that are final within the meaning of 23 USC
> §139(l)(1). The actions relate to various proposed highway projects in
> the State of Yourstate. Those actions grant licenses, permits, and
> approvals for the projects.
>
> **DATES:** By this notice, the FHWA is advising the public of final
> agency actions subject to 23 USC §139(l)(1). A claim seeking judicial
> review of the Federal agency actions on any of the listed highway
> projects will be barred unless the claim is filed on or before
> \[Insert date 180 days after publication in the Federal Register\]. If
> the Federal law that authorizes judicial review of a claim provides a
> time period of less than 180 days for filing such claim, then that
> shorter time period still applies.
>
> **FOR FURTHER INFORMATION CONTACT:** Mr. Arthur Davis, Division
> Administrator, Federal Highway Administration, 3000 Federal Drive,
> Capital City, Yourstate 00000-0000; telephone: (888) 888-0000; e-mail:
> <Arthur.Davis@fhwa.dot.gov>. The FHWA Yourstate Division Office's
> normal business hours are 7:45 a.m. to 4:15 p.m. (eastern time). You
> may also contact Mr. Benjamin Smith, P.E., Yourstate Department of
> Transportation, 10000 State Street, Capital City, Yourstate
> 00000-0000; telephone: (888) 888-1111.
>
> **SUPPLEMENTARY INFORMATION:** Notice is hereby given that the FHWA
> and other Federal agencies have taken final agency actions by issuing
> licenses, permits, and approvals for the highway projects in the State
> of Yourstate that are listed below. The actions by the Federal
> agencies on a project, and the laws under which such actions were
> taken, are described in the documented categorical exclusion (CE),
> environmental assessment (EA), or environmental impact statement (EIS)
> issued in connection with the project, and in other project records.
> The CE, EA, FEIS, Findings of No Significant Impact (FONSI), Record of
> Decision (ROD), and other project records for the listed projects are
> available by contacting the FHWA or the Yourstate Department of
> Transportation at the addresses provided above. The FEIS, SEIS, and
> ROD documents for these projects also can be viewed and downloaded
> from the FHWA Division's web site at
> [www.dot.yourstate.gov/env/.htm](http://www.dot.yourstate.gov/env/.htm)
> or viewed at public libraries in the relevant project area.
>
> This notice applies to all Federal agency decisions as of the issuance
> date of this notice and all laws under which such actions were taken,
> including but not limited to:

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

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

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

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

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

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

7.  Wetlands and Water Resources: Clean Water Act, 33 U.S.C. 1251-1377
    (Section 404, Section 401, Section 319); Rivers and Harbors Act of
    1899 (RHA), 33 U.S.C. 401-406;

8.  Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988
    Floodplain Management; E.O. 11514 Protection and Enhancement of
    Environmental Quality.

> The projects subject to this notice are:

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

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

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

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

> (Catalog of Federal Domestic Assistance Program Number 20.205, Highway
> Planning and Construction. The regulations implementing Executive
> Order 12372 regarding intergovernmental consultation on Federal
> programs and activities apply to this program.)
>
> Authority: 23 USC §139(l)(1)
>
> Issued on: **\[date signed\]**
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **\[Signatory Name\]**
>
> **\[Signatory Title\]**
>
> **\[City\]**

[^1]: At this time, Appendices C and D only include Internet links to
    the documents referenced above. In the final version of this
    guidance, Appendices C and D will contain the full text of the
    documents.

[^2]: For transit New Starts projects, a planning Alternatives Analysis,
    as defined in [49 USC
    5309(a)(1)](http://www.fta.dot.gov/legal/statutes/49_usc_53/501_2114_ENG_HTML.htm),
    is required. In Section 6002, the term "alternatives analysis" does
    not refer to the transit New Starts requirement. It refers to the
    broad analysis of reasonable alternatives required by NEPA, which
    may range from the evaluation of alternative modes and alignments to
    consideration of site-specific design and mitigation options, to
    consideration of no action. For clarity, this guidance uses the term
    "New Starts Alternatives Analysis" to refer to the requirement in
    [49 USC
    5309](http://www.fta.dot.gov/legal/statutes/49_usc_53/501_2114_ENG_HTML.htm).

[^3]: Designation as a "participation agency" does not imply that the
    participating agency supports the proposed project or has any
    jurisdiction over, or special expertise concerning the proposed
    project or its potential impacts. A "participating agency" differs
    from a "cooperating agency," which is defined in regulations
    implementing the National Environmental Policy Act as "any Federal
    agency other than a lead agency which has jurisdiction by law or
    special expertise with respect to any environmental impact involved
    in a proposal (or a reasonable alternative) for legislation or other
    major Federal action significantly affecting the quality of the
    human environment." [40 C.F.R. §
    1508.5.](http://ceq.eh.doe.gov/NEPA/regs/ceq/1508.htm#1508.5)