**SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS**

**FINAL GUIDANCE**

**November 15, 2006**

***This guidance is non-binding should not be construed as***

***rules of general applicability and legal effect.***

**Table of Contents**

[Introduction 7](#introduction)

[1. The Environmental Review Process 9](#__RefHeading___Toc148770545)

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

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

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

[Question 3: What is meant by the "environmental review process"?
10](#question-3-what-is-meant-by-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?
10](#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)?
11](#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?
11](#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](#__RefHeading___Toc148770553)

[Applicability Requirements ~(Link\ to\ SAFETEA-LU)~
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 Notice of Intent was
published 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?
13](#question-10-if-a-nepa-review-for-which-the-notice-of-intent-was-published-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 ~(Link\ to\ SAFETEA-LU)~
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 and Small Starts projects, how does the
NEPA process, as enhanced by Section 6002, interface with the planning
Alternatives Analysis that is part of the project development process
for New and Small Starts projects?
14](#question-13-for-fta-new-starts-and-small-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-project-development-process-for-new-and-small-starts-projects)

[Lead Agencies ~(Link\ to\ SAFETEA-LU)~
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?
16](#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?
16](#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 Federal lead 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-federal-lead-agency-requirement-apply-to-the-fhwa-federal-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?
17](#question-18-what-are-the-roles-of-lead-agencies-under-safetea-lu)

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

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

[Participating Agencies ~(Link\ to\ SAFETEA-LU)~
18](#participating-agencies-link-to-safetea-lu)

[Question 21: Which agencies should be invited to be participating
agencies, and how is this decided?
18](#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?
18](#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?
19](#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?
19](#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?
19](#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?
20](#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?
20](#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?
21](#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?
21](#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 ~(Link\ to\ SAFETEA-LU)~
22](#cooperating-agencies-link-to-safetea-lu)

[Question 30: What is the difference between a participating agency and
a cooperating agency?
22](#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?
22](#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 ~(Link\ to\ SAFETEA-LU)~
23](#purpose-and-need-link-to-safetea-lu)

[Question 32: Who is responsible for developing the project's purpose
and need?
23](#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?
23](#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?
24](#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?
24](#question-35-how-does-the-transportation-planning-process-relate-to-the-development-of-a-projects-purpose-and-need-statement)

[Alternatives Analysis ~(Link\ to\ SAFETEA-LU)~
25](#alternatives-analysis-link-to-safetea-lu)

[Question 36: Who is responsible for developing the range of
alternatives?
25](#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?
25](#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?
26](#question-38-what-new-requirements-are-included-in-safetea-lu-for-developing-the-methodologies-for-the-analysis-of-alternatives)

[Preferred Alternative ~(Link\ to\ SAFETEA-LU)~
27](#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?
27](#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?
28](#question-40-why-may-a-preferred-alternative-be-developed-to-a-higher-level-of-detail)

[Question 41: How is the preferred alternative officially identified?
28](#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?
28](#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?
29](#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
determination about future impartiality?
30](#question-44-what-considerations-might-be-relevant-to-the-required-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 document?
30](#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-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?
31](#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 32](#process-management)

[Coordination and Schedule ~(Link\ to\ SAFETEA-LU)~
32](#coordination-and-schedule-link-to-safetea-lu)

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

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

[Question 49: What should be included in a coordination plan?
33](#question-49-what-should-be-included-in-a-coordination-plan)

[Question 50: 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 and Small Starts projects?
34](#question-50-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-and-small-starts-projects)

[Question 51: Does each State DOT need to update its public involvement
procedures that were developed pursuant to 23 CFR 771.111(h)?
34](#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 coordination plan?
34](#question-52-are-the-lead-agencies-required-to-develop-a-project-schedule-as-part-of-the-coordination-plan)

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

[Question 54: What deadlines have been established under SAFETEA-LU for
the public and participating agencies to submit comments?
36](#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?
36](#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?
37](#section-7)

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

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

[Question 58: What are the new requirements related to deadlines for
decisions under other Federal laws?
37](#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?
37](#question-59-how-will-usdot-implement-this-requirement-to-report-to-congress-on-the-deadlines-for-decisions-under-other-federal-laws)

[Concurrent Reviews ~(Link\ to\ SAFETEA-LU)~
38](#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?
38](#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 ~(Link\ to\ SAFETEA-LU)~
39](#issue-identification-and-resolution-link-to-safetea-lu)

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

[Question 62: What is an "issue of concern" that may trigger the issue
resolution process?
41](#question-62-what-is-an-issue-of-concern-that-may-trigger-the-issue-resolution-process)

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

[Adoption and Use of Environmental Documents ~(Link\ to\ SAFETEA-LU)~
41](#adoption-and-use-of-environmental-documents-link-to-safetea-lu)

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

[Performance Measurement ~(Link\ to\ SAFETEA-LU)~
41](#performance-measurement-link-to-safetea-lu)

[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?
41](#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?
41](#question-66-are-other-measurements-of-the-environmental-review-process-being-considered)

[Funding of Additional Agency Resources ~(Link\ to\ SAFETEA-LU)~
42](#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?
42](#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?
42](#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?
42](#question-69-how-must-the-agency-that-receives-such-funds-from-a-state-use-the-funds)

[3. Statute of Limitations 44](#statute-of-limitations)

[Acronym List 46](#acronym-list)

[Appendix A: Section 6002 - Efficient Environmental Reviews for Project
Decisionmaking.
48](#appendix-a-section-6002---efficient-environmental-reviews-for-project-decisionmaking.)

[Appendix B: Sample Invitation Letters
55](#appendix-b-sample-invitation-letters)

[Appendix C: Interagency Guidance: Transportation Funding for Federal
Agency Coordination Associated with Environmental Streamlining
Activities
59](#appendix-c-interagency-guidance-transportation-funding-for-federal-agency-coordination-associated-with-environmental-streamlining-activities)

[Appendix D: Linking the Transportation Planning and National
Environmental Policy Act (NEPA) Processes
60](#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes)

[Appendix E: FHWA Guidance on Limitation on Claims Notices, 23 U.S.C.
Section 139(*l*)
61](#appendix-e-fhwa-guidance-on-limitation-on-claims-notices)

**SAFETEA-LU ENVIRONMENTAL REVIEW PROCESS**

**FINAL 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-section-6002---efficient-environmental-reviews-for-project-decisionmaking.)
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). These changes
are the result of efforts to make the environmental review process more
efficient and timely, and to protect environmental and community
resources. This should result in expedited approvals of urgently needed
transportation improvements such as those identified by USDOT's
congestion initiative. Section 6002 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 funds 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 informs 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 the
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.) are hyperlinked to corresponding
definitions in SAFETEA-LU or other regulations.

This guidance is divided into three sections:

-   [Environmental Review Process](#_The_Environmental_Review_Process_1)
    -- 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-a-section-6002---efficient-environmental-reviews-for-project-decisionmaking.)
contains the full text of 23 USC §139, and [Appendix
B](#appendix-b-sample-invitation-letters) contains sample invitation
letters to a participating agency. [Appendix
C](#appendix-c-interagency-guidance-transportation-funding-for-federal-agency-coordination-associated-with-environmental-streamlining-activities)
features the resource document, *Interagency Guidance: Transportation
Funding for Federal Agency Coordination Associated with Environmental
Streamlining Activities*. [Appendix
D](#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes)
links to the FHWA/FTA guidance, *Linking the Transportation Planning and
National Environmental Policy Act* *(NEPA) Processes*. Finally,
[Appendix E](#section-14) provides the updated FHWA guidance, including
attachments, for FHWA implementation of the 180-day statute of
limitations established by SAFETEA-LU in 23 U.S.C. §139(*l*). Appendix E
does not apply to FTA and does not apply to projects for which FTA is
the Federal lead agency.

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 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. While Section 6002 does create new requirements for the
environmental review process, the FTA and FHWA believe that project
sponsors that use proactive participation, communication, and
coordination practices will succeed in expediting project reviews.

# The Environmental Review Process

SAFETEA-LU establishes a new [environmental review
process](#Environmental_Review_Process) for transportation projects
developed as environmental impact statements (EISs).[^1] All EISs for
which the Notice of Intent was published in the *Federal Register* 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.

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 Federal
lead 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, whether they
are serving as a joint lead agency under the authority of Section 6002
or by invitation pursuant to CEQ regulations, in making a decision or
performing a task. Where not otherwise specified, 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. If the lead agencies do not agree on a particular
matter under their joint authority, then they must work out their
differences because that particular matter cannot progress until the
lead agencies reach 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
with an interest in the proposed project 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.

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).

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 .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. In addition to NEPA
requirements, the term also includes the process for compliance with,
and completion of, any environmental permit, approval, review, or study
required for the transportation project under any Federal law. 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. In some States, a State
agency may have partial or complete authority over a Federal
environmental program that is included in the environmental review
process, as a result of a delegation to the State, or assumption of that
authority by the State.

> USDOT is responsible for ensuring that any EIS or other required NEPA
> document[^2] 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 provides for actions and
    strategies that protect and enhance the environment, promote energy
    conservation, improve the quality of life, and promote consistency
    between transportation improvements and State and local planned
    growth and economic development patterns;

-   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-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes)),
> 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-and-small-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-project-development-process-for-new-and-small-starts-projects),
> 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: An interagency agreement in place prior to August 10, 2005 may
> continue to be used, at the discretion of the lead agencies, to govern
> the coordination among the signatories to that agreement. However,
> such agreements cannot be imposed on participating agencies that are
> not party to the agreement. These agencies and the general public must
> be granted the opportunities for involvement provided by Section 6002
> regardless of the terms of a pre-existing interagency agreement.
> Therefore, the coordination plans described in Questions 47-57
> typically will require supplementation beyond the pre-existing merger
> agreement, because such agreement would not address the entire
> environmental review process encompassed by Section 6002.
>
> The lead agencies' decision whether to import pre-existing merger
> agreement procedures into a project-specific or programmatic
> coordination plan should be based on their judgment of how best to
> expedite the environmental review process while continuing to advance
> the environmental objectives of NEPA and other Federal laws.
> Interagency merger agreements should be reviewed to determine if their
> future application will meet the purpose and intent of SAFETEA-LU. For
> example, the lead agencies may need to renegotiate or dissolve a
> merger agreement that calls for other agencies to concur in purpose
> and need statements or the range of alternatives if the agreement is
> not expediting project development. In the absence of an applicable
> merger agreement, participating agencies are encouraged to offer
> input---supportive or adverse---at these points and these comments
> must be considered 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.
>
> Where a pre-existing merger agreement does include concurrence
> requirements, the lead agencies may continue to use those parts of the
> merger agreement if they wish, as indicated above. However, if the
> lead agencies conclude that concurrence on an issue is not achievable
> on a particular project, then the lead agencies must exercise their
> decisionmaking obligations under Section 6002.
>
> While not required, it is in the best interest of efficiency and good
> government to work cooperatively 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. (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 1 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. However, 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. When the lead agencies initiate Tier 2 proceedings,
> the SAFETEA-LU requirements will apply, but procedures and
> documentation should be adapted as appropriate to reflect the results
> of the Tier 1 proceedings.

## 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 was published in the *Federal Register* after
August 10, 2005, must follow the procedures outlined in Section 6002. A
limited exception is 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). For EA projects, the
decision on the use of Section 6002 will be made by the FHWA Division
Office or FTA Regional Office, with the concurrence of the other lead
agency(ies), on a case-by-case basis for individual projects or classes
of projects. The "default" assumption, which need not be documented
outside this guidance, is that the Section 6002 environmental review
process will not be applied to EAs. The decision to apply Section 6002
to a particular EA or class of EAs should depend on the benefits, in
terms of expediting the EA process and stewarding the environment that
would result by following this process. A decision to follow these
procedures for an EA or class of EAs should be documented in the
coordination plan or other project record.

At this time, USDOT does not intend to exercise the authority to apply
the Section 6002 process to CEs through this guidance.

Because this guidance was not available between August 10, 2005, and the
date of this guidance, lead agencies may have used procedures to comply
with Section 6002 that differ in some detail from the procedures
contained in this guidance. In such cases, the Federal lead agency will
determine whether additional action is needed and practical in order to
make the process consistent with Section 6002.

### 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
their program under those processes. States wishing to pursue this
grandfathering exemption should submit a request to the FHWA Office of
Planning, Environment, and Realty for review and approval by March 31,
2007. The request should provide supporting documentation that the
State's existing process was approved by the FHWA under TEA-21 §1309. An
environmental review process approved by FHWA for this grandfathering
treatment must be used for the State's program as a whole or for a
pre-approved class of projects, but cannot be substituted for Section
6002 procedures on a project-by-project basis.

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 Notice of Intent was published 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-notice-of-intent-was-published-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 Notice of Intent was published in
the *Federal Register* prior to the enactment of SAFETEA-LU, the
SAFETEA-LU environmental review process need not be followed if:

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

(2) an SEIS as described in [23 CFR
    771.130](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, is being re-scoped due to changes in plans or
    priorities, even if a revised Notice of Intent is published. "Active
    development" is evidenced by one or more of the following actions:
    documented meetings with members of the public or other agencies,
    correspondence with other agencies, or publication of project
    newsletters.

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 using the Section 6002 process, 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 must also provide a list of any other Federal approvals
(e.g., [Section 404](http://www.epa.gov/owow/wetlands/regs/sec404.html)
permits) anticipated to be necessary for the proposed project, to the
extent that such approvals are known at the outset. The notice also
should indicate the timeframe within which the environmental review
process should be started. 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 on using products of the planning process,
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-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes).
The notification can be provided in the form of a letter or through a
programmatic document (discussed below) such as the State Transportation
Improvement Program (STIP) that meets the informational requirements in
Section 6002.

If a notification letter is used, it should be signed or emailed 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. States may use existing
procedures that provide the project initiation information required by
SAFETEA-LU if the appropriate official originates the notice. For
example, a draft Notice of Intent under 40 CFR 1501.7 and 1508.22, sent
to the Division or Regional Administrator by the appropriate official of
the sponsoring agency, may serve as the initiation notice under Section
6002 so long as the information required by Section 6002 is contained in
the draft Notice of Intent.

Notices of initiation also may be consolidated (batched) into a
multi-project notice of initiation if the lead agencies determine that
the resources of the lead agencies and the timing for the projects
support such practice.

States may propose, and the USDOT may accept, programmatic approaches to
satisfying the project initiation requirements of SAFETEA-LU. In any
such proposal, the State must provide to USDOT in a properly approved
document: (a) the information about each project (i.e., type of work,
termini, length, general location, and the list of other Federal
approvals) required for project initiation; and (b) an indication of
exactly when the environmental review process for each project will
commence, i.e., when the staff, consultant services, financial
resources, and leadership attention necessary to move the project's
environmental review process forward will be committed to that end. For
example, a State that updates its STIP annually may propose to use it as
the vehicle for project initiation by including in the STIP the project
initiation information and the dates that each draft Notice of Intent
will be delivered to USDOT.

###  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 by devoting appropriate staff, consultant services,
financial resources, and leadership attention to the project. The
notification would normally occur prior to the publication of the Notice
of Intent 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 and Small Starts projects, how does the NEPA process, as enhanced by Section 6002, interface with the planning Alternatives Analysis that is part of the project development process for New and Small Starts projects? {#question-13-for-fta-new-starts-and-small-starts-projects-how-does-the-nepa-process-as-enhanced-by-section-6002-interface-with-the-planning-alternatives-analysis-that-is-part-of-the-project-development-process-for-new-and-small-starts-projects .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 initiation of the environmental
review process, 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, "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 NEPA
processes ([Appendix
D](#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes))
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-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes).
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.

The New Starts discussion above applies also to any Small Starts project
that would significantly affect the quality of the human environment and
would therefore require an EIS under CEQ regulations. Although the Small
Starts program is new, FTA expects that transit agencies will propose
for Small Starts funding many projects that do not require an EIS. Such
projects would not be subject to Section 6002 procedures, unless the
transit agency seeks to use Section 6002 to expedite the environmental
review process in accordance with Question 8.

## 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 Federal lead 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 is typically the direct recipient of project
funds, and therefore must serve as a joint lead agency along with FHWA.
A local governmental agency that is the project sponsor may be invited
to serve as a joint lead agency as described in Question 16.

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
governmental agencies may serve as joint lead agencies. In addition to
the required lead agencies, other Federal, State, or local governmental
entities, including but not limited to toll, port, and turnpike
authorities and MPOs, may act as [joint lead agencies, at the discretion
of the required lead
agencies,](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. Agencies that become joint
lead agencies by invitation assume the roles, responsibilities, and the
authority of a lead agency under Section 6002.

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:** USDOT has interpreted SAFETEA-LU to mean that the direct
recipient of Federal funds must serve as a joint lead agency with the
USDOT. In the example presented in this question, the direct recipient
would be the State DOT. Local governmental entities that are
subrecipients of Federal funds, at the discretion of the Federal and
non-Federal lead agencies, may be invited to be joint lead agencies, but
are not required to serve. A subrecipient that will actually be
designing and constructing the project will normally be asked to serve
as a joint lead agency with the USDOT and the State DOT.

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

### Question 17: How does the Federal lead agency requirement apply to the FHWA Federal Lands Highway Program and FTA's Alternative Transportation in Parks and Public Lands Program?  {#question-17-how-does-the-federal-lead-agency-requirement-apply-to-the-fhwa-federal-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. 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.

FTA's role in the environmental review process for projects funded
through the new Alternative Transportation in Parks and Public Lands
Program ([49 USC
5320](http://www.fta.dot.gov/legal/statutes/49_usc_53/501_2124_ENG_HTML.htm))
is presented in separate guidance specifically about that program. See
"[Alternative Transportation in Parks and Public Lands Program:
Requirements for Recipients of FY 2006
Funding](http://www.fta.dot.gov/atppl/)," July 2006.

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

**Answer:** SAFETEA-LU strengthens the management and facilitation role
of USDOT as the Federal lead agency during the environmental review
process. USDOT, therefore, must perform the duties previously associated
with the Federal lead agency and is responsible for the overall
direction of the environmental review process and for expediting the
delivery of the transportation project. Under Section 6002, USDOT,
together with the other lead agency(ies), holds responsibility for
deciding certain issues, including purpose and need, range of
alternatives to be analyzed, and whether to develop the preferred
alternative to a higher level of detail. At times, this role will
require that USDOT take more proactive and assertive actions than in the
past to facilitate the timely and adequate completion of the
environmental review process. Such actions may include enforcing
schedules (where applicable), facilitating resolution of issues, 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 documents?  {#question-20-which-agencies-can-prepare-the-environmental-documents .unnumbered}

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

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

###  {#section-1 .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:** 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. The lead agencies
cannot know with certitude all the agencies with a potential interest
until the alternatives have been developed, and the alternatives cannot
be set until the participating agencies have had an opportunity for
involvement. Therefore, the lead agencies are expected to make good
faith, common-sense efforts to identify and involve interested agencies
early on, the objective being to surface and resolve issues as early and
quickly as possible. It is not necessary to invite agencies that have
only a tangential, speculative, or remote interest in the project. If
the lead agencies do not agree on which agencies should be invited, then
they must work out their differences because progress on inviting agency
participation, and other activities that depend on the identification of
participating agencies, will be held up until the lead agencies agree.
The success of this element of the Section 6002 process will depend on
the lead agencies exercising common sense and good faith to make the
process work.

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-the-coordination-plan-for-public-and-agency-participation)),
or in some other written form.

Appropriate practices for inviting participating agencies may vary from
State to State. 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 NEPA streamlining or
NEPA/[404](http://www.epa.gov/owow/wetlands/regs/sec404.html) merger
processes. These may include the State historic preservation offices,
regional planning agencies, and departments of natural resources.

For FTA projects, transit agencies should seek access to the list of
agencies developed by the State DOT for the project area. Over time, as
transit projects are advanced through SAFETEA-LU's new environmental
review process, the larger transit agencies that have ongoing programs
of major projects should develop their own lists. Otherwise, FTA will
work with the sponsoring transit agency to develop a list of potential
participating agencies on a case-by-case basis.

### 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. The scoping process should be
    designed so that agencies whose interest in the project comes to
    light as a result of initial scoping activities are invited to
    participate and still have an opportunity for involvement.

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. Lead
agencies should recognize that resource constraints may make full
participation by an interested agency difficult at times and should
strive to facilitate participation in scheduling and locating meetings,
use of conferences calls, etc. However, the objective of Section 6002 is
to move project reviews forward expeditiously, and participating
agencies that cannot fully participate may have to prioritize their
activities. Funding of additional agency resources, as described in
Questions 67-69, may be considered by the States to alleviate chronic
resource problems impeding environmental review processes.

### 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
> non-Federal lead agencies and a particular Native American Tribe
> regarding direct coordination, the Federal lead agency shall be
> responsible for inviting federally recognized tribes that may have an
> interest in the project. The timing of invitations to potential
> participating agencies may vary. To the extent that the lead agencies
> know prior to scoping that certain entities should be invited to
> serve, the lead agencies may send invitations at or after the time of
> the project notice of initiation (described in [Question
> 11](#question-11-how-is-the-environmental-review-process-for-a-transportation-project-initiated)).
> If, as the project progresses, the lead agencies identify additional
> entities that should be invited to serve as participating agencies,
> then they should invite those entities promptly.

### 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 or email
letter and must include a basic project description and map of the
project location. If the invitation is sent electronically, it should be
tracked to ensure delivery. As with all correspondence, a copy should be
placed in the project file. The project description may be included in
scoping materials enclosed with the letter. 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., U.S. Environmental Protection Agency (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, consistent with the comment deadlines set forth in
SAFETEA-LU, is suggested. The scoping process may be conducted
concurrently with the invitation process as long as the potential
participating agencies are provided with sufficient scoping information
and opportunity for involvement. See [Appendix
B](#appendix-b-sample-invitation-letters) 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
(electronic or hard copy) 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. Under the statutory
provisions regarding Federal agency participation, it is likely that any
invited Federal agency will serve as a participating agency. Therefore,
in the interest of good resource management, invitations to Federal
agencies should be sent with appropriate forethought about whether the
agency has an actual interest in the project.

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 by the stated deadline 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 elevate the issue within the agencies or 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
    agrees to be a participating agency, then the lead agencies should
    consult with that new participating agency in determining whether
    the new information affects previous decisions.

-   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-2 .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:** Any 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 declining agency
foregoes the opportunity to provide early input on several project
issues such as the development of purpose and need, the range of
alternatives, and methodologies. The lead agencies will always consider
any substantive comments submitted by interested parties. However, the
comments of an agency that declines an invitation to participate will be
treated in accordance with the procedures outlined in the answer to
Question 26. In order to avoid misunderstandings, the lead agencies
should make it clear in the responses to the agency's comments that the
agency declined to serve as a participating agency and, if applicable,
that its comments therefore were not received at the appropriate time
and could not be considered and acted upon at that time.

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-3 .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 the same consideration that they would have
received if raised at the appropriate time.

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

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-the-coordination-plan-for-public-and-agency-participation)
below. It is appropriate to tailor an agency's participation to its area
of interest or jurisdiction. In doing so, the lead agencies should make
their choices after considering the potential effects if the agency is
not provided an opportunity for involvement in some aspects of the
environmental review process.

If the coordination plan calls for an agency's involvement in a
particular issue of interest to that agency, and the agency does not
participate in that issue, the lead agencies must decide how critical
that agency's input is to making a decision on the issue. If the
participating agency has no separate jurisdiction or permit authority
over the project, the lead agencies may decide to accept the agency's
implicit "no comment" 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 the involvement of the other agency through informal dispute
resolution or other means. 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 it appropriate.

### 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 issues of concern 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-the-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-4 .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:** According to CEQ ([40 CFR
1508.5](http://ceq.eh.doe.gov/nepa/regs/ceq/1508.htm#1508.5)),
"cooperating agency" means any Federal agency, other than a lead agency,
that has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposed project or project
alternative. A State or local agency of similar qualifications or, when
the effects are on lands of tribal interest, a Native American tribe
may, by agreement with the lead agencies, also become a cooperating
agency.

Participating agencies are those with an interest in the project. The
standard for participating agency status is more encompassing than the
standard for cooperating agency status described above. Therefore,
cooperating agencies are, by definition, participating agencies, but not
all participating agencies are cooperating agencies. The lead agencies
should consider the distinctions noted below in deciding whether to
invite an agency to serve as a cooperating/participating agency or only
as a participating agency.

The roles and responsibilities of cooperating and participating agencies
are similar, but cooperating agencies have a higher degree of authority,
responsibility, and involvement in the environmental review process. A
distinguishing feature of a cooperating agency is that the CEQ
regulations ([40 CFR 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
environmental 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:** [The SAFETEA-LU requirement](#Section139d) for the
designation of participating agencies does not alter USDOT's
responsibility under CEQ regulations to consult with Federal agencies
qualifying to be cooperating agencies. Therefore, if a Federal agency
qualifies as a cooperating agency, it should be invited to serve in that
capacity as well as the participating agency capacity. A non-Federal
agency or Native American tribe that qualifies under CEQ regulations to
serve as a cooperating agency may be invited to serve in that capacity
or as a participating agency, at the discretion of the lead agencies.

The invitation to an agency to serve as a cooperating agency should
address the roles and responsibilities expected of a participating
agency as well. In the interest of administrative efficiency, a single
invitation should cover both roles, as illustrated in [Appendix
B](#appendix-b-sample-invitation-letters). If a Federal agency declines
the invitation to serve as a cooperating agency, that agency should be
treated as a participating agency unless its declination is couched in
the terms described in Question 25.

## 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:** The lead agencies are responsible for the development of the
project's purpose and need statement. In developing the statement of
purpose and need, 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 agencies will decide the project's purpose and need. If the lead
agencies do not agree, they must work out their differences because
progress on stating the project's purpose and need, and other activities
that depend on the statement of purpose and need will be stalled until
the lead agencies agree. If a cooperating or participating agency has
permit or other approval authority over the project, it would be useful,
though not required, for the lead agencies and that permitting agency to
develop jointly a purpose and need statement that can be utilized for
all applicable environmental reviews and requirements. 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,
other Federal agencies should afford substantial deference to the
USDOT\'s articulation of the purpose and need for a transportation
action.

### 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 ([Appendix
> D](#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes))
> describes considerations for using planning information in the NEPA
> process. In accordance with that guidance:

-   The purpose and need for a project can be shaped by goals and
    objectives established in a corridor or subarea study carried out by
    a state DOT, MPO, or transit agency as part of the statewide or
    metropolitan planning process;

-   A general travel corridor or general mode or modes (i.e., highway,
    transit, or a highway/transit combination) resulting from
    transportation planning analyses may be part of the project's
    purpose and need statement; and

-   If the financial plan for an MPO's long-range transportation plan
    indicates that funding for a specific project will require special
    funding sources (e.g., tolls or public-private financing), such
    information may be included in the purpose and need statement.

General direction on developing concise and understandable 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. This opportunity can occur early during the
transportation planning process, or later during the scoping process.
The level of involvement will be determined by the lead agencies
case-by-case, taking into account the overall size and complexity of the
project.[^3] 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 project's
coordination plan (described in [Questions 47 through
53](#question-47-who-is-responsible-for-developing-the-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the required
involvement opportunities and the timing of the decision on purpose and
need.

The opportunity for involvement must be provided prior to the lead
agencies' decision regarding the purpose and need that will be
incorporated into the NEPA document. The lead agencies' decision on
purpose and need and their considerations in making that decision should
be documented and shared with participating agencies to ensure that any
disputes are surfaced as early as possible.

### 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 can be the primary source of 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.

In accordance with the [USDOT guidance on linking planning and
NEPA](http://www.fhwa.dot.gov/hep/plannepa050222.pdf), the USDOT will
give deference to decisions resulting from the transportation planning
process under the conditions set forth in Question 7 of that guidance.
Because of its obligations under NEPA, the USDOT must be able to stand
behind the overall soundness and credibility of analyses conducted and
decisions made during the transportation planning process if they are
incorporated into a NEPA document.

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 environmental review 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 once the environmental review
process has been initiated. For more information, see the USDOT guidance
on linking planning and NEPA ([Appendix
D).](#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes)

## Alternatives Analysis[^4] [[~(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:** The lead agencies are responsible for the development of the
range of alternatives. In developing the alternatives, the lead agencies
must provide opportunities for the involvement of participating agencies
and the public and must consider the input provided by these groups.
After considering this input, the lead agencies will decide the range of
alternatives for analysis. If the lead agencies do not agree, then they
must work out their differences because progress on the alternatives,
and other activities that depend on the alternatives, is halted until
the lead agencies agree. If a cooperating or participating agency has
permit or other approval authority over the project, it would be useful,
though not required, for the lead agencies and that permitting agency to
develop jointly the range of alternatives that can be utilized for all
applicable environmental reviews and requirements.

### 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:** As early as practicable, the lead agencies must give
participating agencies and the public the chance to become involved in
defining the range of alternatives. The level of involvement will be
determined by the lead agencies case-by-case, taking into account the
overall size and complexity of the project.[^5] 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 project's coordination plan (described in
[Questions 47 through
53](#question-47-who-is-responsible-for-developing-the-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the required
involvement opportunities and the timing of the decision on the range of
alternatives to be evaluated in the NEPA document. The required
involvement opportunities for purpose and need and range of alternatives
may be concurrent or sequential. If the opportunities are concurrent,
and if the purpose and need statement is substantially altered as a
result of the public and participating agency involvement, then the lead
agencies must consider whether an opportunity for involvement in the
range of alternatives that derive from the new purpose and need is
warranted.

The opportunity for involvement must be provided prior to the lead
agencies' decision regarding the range of alternatives to be evaluated
in the NEPA document. The lead agencies' decision on the range of
alternatives and their considerations in making that decision should be
documented and shared with participating agencies to ensure that any
disputes are surfaced as early as possible.

### 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[^6] with the participating agencies, the appropriate
methodologies to be used and the level of detail required in the
analysis of alternatives. Accordingly, the lead agencies must work
cooperatively and interactively with the relevant participating agencies
on the methodology and level of detail to be used in a particular
analysis. Consensus is not required, but the lead agencies must consider
the views of the participating agencies with relevant interests before
making a decision on a particular methodology. Well-documented, widely
accepted methodologies, such as those for noise impact assessment and
Section 106 (historic preservation) review, should require minimal
collaboration.[^7] The project's coordination plan (described in
[Questions 47 through
53](#question-47-who-is-responsible-for-developing-the-coordination-plan-for-public-and-agency-participation)
of this guidance) will establish the timing and form of the required
collaboration with participating agencies in developing the
methodologies.

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. If the
lead agencies do not agree, then they must work out their differences
because progress on the methodologies and level of detail, and on the
analyses that depend on these decisions is stalled until the lead
agencies agree. The lead agencies' decisions on methodologies and their
considerations in making those decisions should be documented and shared
with participating agencies to ensure that any disputes are surfaced as
early as possible.

> Given the track record of interagency disagreements over methodology
> late in project development, the lead agencies 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 methodologies and to reach closure on what
> methodologies will be used to evaluate important issues. This approach
> 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 the scoping process, the lead agencies should
> communicate decisions on methodology to the participating agencies
> with relevant interests or expertise soon after they are made. The
> lead agencies may define a comment period on the methodology. At the
> discretion of the lead agencies, methodologies may be developed
> incrementally, with the initial methodology that is developed during
> scoping being refined with further collaboration after an initial
> impact analysis has been performed. Unless a participating agency
> objects to the selected, duly communicated methodology as described
> above, the lead agencies can reasonably assert in most cases
> that comments on methodology received much later in the process (e.g.,
> after issuance of the 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 agencies made and
> communicated the decision on methodology. USDOT has determined that
> this procedure is the best approach to addressing the requirements of
> Section 6002 in a manner that is consistent with the comment and
> response process embodied in 40 CFR Part 1503.
>
>  

The collaboration with a participating agency on the methodologies and
level of detail can be accomplished on a project-by-project, program, or
region-wide basis, or for some special class of projects (e.g., all
projects affecting a particular watershed), as deemed appropriate by the
lead agencies. If an approach other than project-by-project
collaboration is used, however, the participating agencies with an
interest in that methodology must be made aware at the outset of the
collaboration that the lead agencies intend to develop a comprehensive
methodology to be applied to a program or class of projects or to a
region. The participating agencies' input on that methodology and level
of detail should take into account the intended scope of use. While the
level of detail used in describing such methodologies is left to the
discretion of the lead agencies, the success of this newly required
collaboration in surfacing disagreements for early resolution depends on
an unambiguous description of the methodology and the impacts to which
it applies. Once a methodology has been determined for a region,
program, or class of project, the lead agencies can apply the
methodology to qualifying projects without project-specific
collaboration if the relevant participating agencies and lead agencies
have entered into a programmatic agreement to that effect. If no such
agreement is in place, the lead agencies still may apply that
methodology to a qualifying project, but project-specific collaboration
is necessary. It is expected that project-specific collaboration in such
cases will be highly expedited and can be accomplished by advising the
relevant agencies of the intention to apply the methodology in question.

The lead agencies may revise a methodology at any time, but if the
reason is other than to respond to the concerns of a participating
agency, then collaboration with the participating agencies with an
interest in that methodology is needed when the methodology is revised.
When there is a written programmatic agreement on a methodology that
applies to the project, such agreement is binding only on the parties to
the agreement. Other participating agencies with an interest in the
methodology in question retain the right to collaborate on that
methodology. The results of the collaboration on methodologies and level
of detail should be communicated to participating agencies in written
form so that any objections can be surfaced as early as possible.

If a cooperating or participating agency has permit or other approval
authority over the project, it would be useful, though not required, for
the lead agencies and that permitting agency to develop jointly
methodologies that can be utilized for all applicable environmental
reviews and requirements.

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

###  {#section-5 .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 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. The lead agencies
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 and is necessary to facilitate the
development of mitigation measures or concurrent compliance with other
environmental laws. The lead agencies must 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. If the lead agencies do not agree, then they must work
out their differences because work on developing an alternative in
greater detail cannot proceed until the lead agencies agree.

### 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.

Nothing in this guidance is intended to alter the established practice
of FTA concerning the level of detail of the evaluation of New Starts
and Small Starts under 49 U.S.C. 5309. 

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

**Answer:** As in the past, 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. This approach is
appropriate whether or not the intent is to develop that alternative to
a higher level of detail. The preferred alternative must be identified
in the FEIS in accordance with CEQ regulations (40 CFR 1502.14(e)).

Another approach to officially identifying the preferred alternative is
available when a non-Federal lead agency (normally the project sponsor)
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. The preferred alternative may be identified by means of a
separate letter or other decision document issued by the non-Federal
lead agency and accepted by the other lead agencies. The official of the
non-Federal lead agency who is authorized to sign EISs may send a letter
(electronic or hard copy) to the other lead agencies identifying the
non-Federal agency's preferred alternative and briefly stating the
reasons for that preference. If the other lead agencies accept the
identification of the preferred alternative at that time, each one will
so indicate to the other lead agencies. In deciding whether to accept
the identification of the preferred alternative, the USDOT lead agency
will consider its ability to comply with Federal requirements such as
Section 4(f), the Section 404(b)(1) guidelines,[^8] the Executive Order
on Floodplain Management, etc. Once a preferred alternative is
officially identified, subsequent NEPA documents should disclose that
preference.

If the USDOT lead agency accepts the identified alternative as the
preferred, it does so in accordance with CEQ regulations (40 CFR
1502.14(e)) regarding the identification of the preferred alternative.
Such acceptance is not a commitment to issue a Record of Decision (ROD)
for that alternative or to fund that alternative. For FTA, acceptance of
the preferred alternative is strictly for NEPA purposes, and it does not
affect the New Starts or Small Starts rating process. In addition, the
decision to accept the identification of a preferred alternative and the
decision to develop that alternative in greater detail are separate
decisions subject to different considerations as detailed herein.

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

-   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 whose processing would be 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 USDOT
lead agency should document its determination that the relevant
conditions described in Section 6002 are met before any work is done to
develop a preferred alternative in greater detail. This documentation
may be in the form of a response letter (electronic or hard copy) to the
non-Federal lead agency's request.

### 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:** The scenario that most readily fits the statutory provisions
about the preferred alternative being developed to a higher level of
detail is that the DEIS would identify the preferred alternative but
treat it no differently than the other alternatives. Then, between the
DEIS and FEIS when actions to deal with comments on the DEIS are
underway, the lead agencies would develop the preferred alternative in
greater detail to deal with mitigation issues and compliance with other
laws. This scenario is not the only scenario that would comply with this
provision of Section 6002. USDOT has developed the following minimum
requirements for use in other cases.

The decision to develop a preferred alternative to a higher level of
detail may occur only after the preferred alternative has been
officially identified. USDOT, as Federal lead agency, will not accept
the identification of a preferred alternative until completion of
sufficient scoping and analysis of the alternatives to support the
identification. 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.
Even after the completion of scoping and a preliminary analysis of
alternatives, the USDOT lead agency may decide that identification of a
preferred alternative is premature because there is not yet sufficient
information on the alternatives to support the decision. For example,
the USDOT lead agency may not be convinced, on the basis of only
preliminary information, that a Section 4(f) determination will be
possible for the non-Federal lead agency's preferred alternative.

Under any scenario, a non-Federal 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. All lead agencies 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 of alternatives and selection
of the project alternative. 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; whether
that adverse effect on public confidence could be avoided by delaying
the differential treatment of alternatives until a later point in the
environmental review process; how the difference in level of detail
among the alternatives might affect the presentation of the alternatives
in the environmental 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 determination about future impartiality? {#question-44-what-considerations-might-be-relevant-to-the-required-determination-about-future-impartiality .unnumbered}

**Answer:** The lead agencies should identify and consider any factors
relevant to the project that would prevent them from making impartial
decisions about alternatives in the future. The factors will vary from
project to project. Considerations that may be relevant 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 early coordination with the public and participating
    agencies and the collaboration with participating agencies on impact
    methodologies resulted in general 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 development of a preferred alternative to a higher level
    of detail.

The key question is whether developing the preferred alternative more
fully would cause, in the mind of the NEPA decisionmakers, an imbalanced
comparison among alternatives because of time, money, or energy
expended. The Federal lead 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 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-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 should be included in the
comparative analysis of the alternatives even though those other
alternatives are not designed to the same level of detail. This
comparison of mitigation across alternatives will ensure that the
preferred alternative is not presented in an artificially positive
manner as a result of its greater design detail.

The NEPA document should disclose the additional design work and the
changes in impacts arising out of that design detail. 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-6 .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. This section 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 environmental 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 a schedule for the completion of the environmental
review process. This guidance identifies the factors that should be
considered in developing the coordination plan and establishing a
schedule. The section on coordination and schedules is closely related
to other sections of the guidance, particularly the questions on
participating agencies, purpose and need, the range of alternatives, and
analysis methodologies, all of which should be read in conjunction with
each other.

On the topic of concurrent reviews, [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
adequate information available to participating agencies so that they
can identify potential issues of concern as early as practicable. Most
issues will be amicably resolved or will be decided by the lead agencies
on the merits of the case without repercussions on the process. 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, but strongly reinforces, the 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).

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 States may provide Federal
funds to government agencies and federally recognized tribes acting as
participating agencies if they can thereby 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 the coordination plan for public and agency participation?  {#question-47-who-is-responsible-for-developing-the-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. Lead agencies may find that best results
occur when they consult with the participating agencies on the
coordination plan, because key elements of the coordination plan may be
setting expectations that require a commitment of resources by the
participating agencies.

As with all joint responsibilities, the lead agencies must agree on the
coordination plan or must work out their differences before proceeding
to implement any element of the plan that is in dispute.

### 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. The initial coordination plan
may be changed by the lead agencies as additional participating agencies
are identified or the complexity of issues becomes clearer. 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. Participating agencies may
prefer programmatic elements in coordination plans because such elements
would provide greater predictability and assist them in their allocation
of resources. A coordination plan for an individual project may be
established separately from any programmatic coordination plan, or it
may incorporate one or more programmatic coordination plans established
by the lead agencies to govern coordination with one or more
participating agencies.

As stated in Question 6, pre-existing merger or other agreements may be
incorporated into the coordination plan. New MOUs and agreements
consistent with Section 6002 may also be incorporated into the
coordination plan if the lead agencies agree that such MOU or agreement
would expedite or otherwise improve the process. For example, a separate
MOU or agreement 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
coordination plan.

The coordination plan must be shared with the public and with
participating agencies so that they know what to expect and so that any
disputes are surfaced as early as possible.

Consultation with the participating agencies on the project schedule is
required whenever a coordination plan includes a project schedule (see
[Question
52](#question-52-are-the-lead-agencies-required-to-develop-a-project-schedule-as-part-of-the-coordination-plan)).

###  Question 49: What should be included in a coordination plan?  {#question-49-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. Section 6002 allows the lead agencies
to decide how detailed the coordination plan should be. The coordination
plan has the potential to expedite and improve the environmental review
process by clearly establishing interactions and expectations, but its
success will depend on the lead agencies exercising common sense and
good faith to make it work.

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 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 the 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. The plan may set
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.

### Question 50: 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 and Small Starts projects?  {#question-50-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-and-small-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 coordination plan serve
different purposes, there may be substantial overlap between the initial
PMP and the 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. Any Project Development Agreement (PDA) signed by FTA
would also have to be consistent with the 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" be involved in statewide and metropolitan
transportation planning, 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 methodologies.

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

**Answer:** 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.

Project schedules are optional on FTA projects. FTA will agree to
include a schedule, developed in accordance with Section 6002, if the
project sponsor so requests. In deciding whether to include a schedule,
the FTA Regional Office and the non-Federal lead agency should consider
the extent to which a schedule for the environmental review process
would expedite the process, improve project management, and force
discipline on all parties involved.

The FHWA assumes that a schedule will be used on all EA and EIS projects
processed under section 6002. If the non-Federal lead agency believes
that a schedule is not needed, then the non-Federal lead agency will be
expected to consult with the FHWA about how the project will proceed.

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 (if not a lead agency), and
the State. Concurrence in the schedule by the participating agencies is
not required.

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. Section 6002 allows the
lead agencies to decide how detailed the schedule should be, and whether
to use specific dates or durations. In deciding the level of detail of
the schedule, the lead agencies should keep in mind the objective of
expediting the process by communicating expectations and forcing
discipline on themselves and others.

### Question 53: What factors should be considered when creating a schedule as part of a coordination plan? {#question-53-what-factors-should-be-considered-when-creating-a-schedule-as-part-of-a-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.[^9]

-   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. In preparing the schedule, the lead agencies must also
solicit and consider any comments on the schedule by the participating
agencies, the project sponsor (if not a lead agency), and the State.

Overarching all of these considerations in developing the schedule is
the SAFETEA-LU objective of expediting project delivery. FHWA has
adopted a policy objective of reducing the median time for completing
EISs. If that objective is to be achieved, then schedules, though
realistic, must also be aggressive.

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. It should be remembered that the goal of
using projects schedules is to reduce the overall timed needed to
complete the environmental review process.

To help State DOTs and resource agencies develop 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 and the lead agencies must provide participating
agencies and the public with notice of comment periods.

In both cases, the lead agency has the authority to extend the deadlines
for good cause.

### 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.

###    {#section-7 .unnumbered}

### 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. For example,
the initial schedule may not take into account the sensitivity of
affected resources, the level of public controversy, and other
complexities that become clear as the environmental review process
progresses. The schedule may be shortened only with the concurrence of
the affected cooperating agencies, and evidence of these concurrences
should be included in the administrative record. Only the affected
cooperating agencies, not all of the participating agencies, must concur
in the shortened schedule, but consultation with the other participating
agencies on the shortened schedule should be considered.

###  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 as described above.

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

###  {#section-8 .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 a
project decision by a Federal agency is 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 or Finding of No Significant Impact (FONSI). 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) and the other lead agencies 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. The affected Federal agency's explanation for the delay,
together with the lead agencies' perspectives on the issue, should be
included in the USDOT field office report described below.

Following that initial coordination, the USDOT field office should
report to its Headquarters Program Office about 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 congressional 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. Either the USDOT field office or the Headquarters
Program Office may initiate formal or informal dispute resolution
procedures as appropriate.

If the 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, joint lead agencies, and to the
project sponsor and the State (if not joint lead agencies).

## 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:** Lead and participating agencies have legal and general
> governmental obligations to work cooperatively to improve the
> environmental review process. The roles and responsibilities specified
> in Section 6002 for lead agencies and participating agencies form a
> part of those obligations. The USDOT is working with other Federal
> agencies to help them understand their obligations under Section 6002
> and to encourage actions to meet those obligations.

At the individual project level, USDOT, as the Federal lead 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}

For minor disagreements, the lead agencies may, after due consideration
of the concerns of the participating agencies, decide to proceed without
resort to any dispute resolution process. When there is disagreement on
important issues of concern, the lead agencies may decide that the most
effective approach would be to work out the disagreement in some formal
or informal way. In 2002, FHWA issued
[guidance](http://www.environment.fhwa.dot.gov/strmlng/adrguide/index.asp)
to facilitate the resolution of interagency disputes at lower levels of
decisionmaking. The methods presented in that guidance, such as the use
of qualified neutral mediators, remain valid and should be considered by
the lead agencies when appropriate. The FHWA will develop updated
procedures to guide FHWA-initiated dispute resolution efforts on
projects subject to Section 6002. The lead agencies may find it useful
to address dispute resolution procedures in the coordination plan.

SAFETEA-LU provides a formal process for resolving serious issues that
may delay the project or result in a denial of a required approval for
the project. The project sponsor or the Governor of the State in which
the project is located may invoke the Section 6002 process for issue
resolution at any time. While the Section 6002 process is a tool
available to States and project sponsors for resolving issues of
concern, there are other options that are available to lead and
participating agencies. Those options include procedures embodied in a
coordination plan, and the CEQ referral process under [40 CFR Part
1504](http://ceq.eh.doe.gov/nepa/regs/ceq/1504.htm).

###   {#section-9 .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 there is a serious disagreement that may delay the
project or result in denial of a required approval for the project,
SAFETEA-LU provides that the project sponsor or State Governor may
initiate the issue resolution process illustrated in the flow chart
below. In order to help assure an effective process, each party invited
to a meeting convened under the SAFETEA-LU dispute resolution provision
should be represented by a person of sufficient rank and authority to
make binding commitments on behalf of that party. Accordingly, the
organizational level of the persons invited to such meetings by the
Federal lead agency may vary depending upon the issues in dispute.

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

**Answer:** An issue of concern that may trigger the issue resolution
process in SAFETEA-LU is any issue that could delay the project or could
prevent an agency from granting a permit or other approval that is
needed for the project.

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

**Answer:** Resolution of the issue of concern 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 Environmental Documents [[~(Link\ to\ SAFETEA-LU)~]{.smallcaps}](#Adoption) {#adoption-and-use-of-environmental-documents-link-to-safetea-lu .unnumbered}

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

**Answer:** Any environmental document prepared in accordance with
SAFETEA-LU must receive the same consideration for adoption by another
Federal agency that the agency would give to a document prepared solely
by a Federal lead agency. The adopting agency remains responsible for
independently evaluating the document to ensure its adequacy under CEQ's
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) {#performance-measurement-link-to-safetea-lu .unnumbered}

### 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-10 .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 provide any additional funding for this purpose. The
State proposing to use this authority must take the funds out of its
normal allocation of Federal transportation funds.

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-interagency-guidance-transportation-funding-for-federal-agency-coordination-associated-with-environmental-streamlining-activities).

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. **Appendix E, which contains detailed guidance
on implementing the SOL provisions, applies only to FHWA and projects
for which it is the Federal lead agency**.

The Federal lead agencies expect to handle the publication of all SOL
notices under Section 6002. On intermodal projects, FHWA and FTA
typically will issues separate SOL notices. However, on a case-by-case
basis, the notices may be combined for efficiency purposes or other
reasons.

Despite the differences in the implementation procedures between the FTA
and FHWA, the agencies stress that they interpret the scope and intent
of the SAFETEA-LU SOL provision in the same way and that their
implementation decisions are based solely on administrative differences
between the FTA and FHWA programs.

**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](#section-14). This guidance replaces interim guidance issued by FHWA
on December 1, 2005. This guidance includes sample forms and examples to
assist the FHWA Division Offices in preparing notices for FR publication
([Appendix E](#Attachment1)). FHWA recommends that the Division Offices
coordinate with FHWA 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, 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

  CFR            Code of Federal Regulations

  CSS            context sensitive solutions

  DEIS           draft environmental impact statement

  DOT            Department of Transportation

  EA             environmental assessment

  EIS            environmental impact statement

  EPA            United States Environmental Protection Agency

  FEIS           final environmental impact statement

  FHWA           Federal Highway Administration

  FONSI          finding of no significant impact

  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

  PDA            Project Development Agreement

  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

  STIP           Statewide Transportation Improvement Program

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

  TPE            FTA Office of Planning and Environment

  USC, U.S.C.    United States Code

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

# Appendix A: Section 6002 - Efficient Environmental Reviews for Project Decisionmaking. {#appendix-a-section-6002---efficient-environmental-reviews-for-project-decisionmaking. .unnumbered}

> \(a\) 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- 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: Sample Invitation Letters {#appendix-b-sample-invitation-letters .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-11 .unnumbered}

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

Dear \[*Agency Representative\]*:

Re: Invitation to Become Participating Agency \[*and Cooperating Agency,
if applicable*\] 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
are *\[Insert Project Description, including general map location\]*.
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 \[*and cooperating agency, if applicable*\] 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 the 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).* If your agency declines, the response
should state your reason for declining the invitation. Pursuant to
SAFETEA-LU Sec. 6002, any Federal agency that chooses to decline the
invitation to be a participating agency must specifically state in its
response that it:

-   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-12 .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 letter. 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.[^10] 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.

*\<Insert one of the following two paragraphs, for invitations to
Federal and non-Federal agencies, respectively.\>*

*Federal agencies:*

Your agency does not have to accept this invitation. If, however, 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 your agency adequate opportunity to weigh the relevance
of your participation in this environmental review process, written
response to this invitation are not due until after the interagency
scoping meeting scheduled for *\[insert date/time\] at \[insert
location\]*. You or your delegate is invited to represent your agency at
this meeting. Your agency will be treated as participating agency unless
your written response declining such designation as outlined above is
transmitted to this office not later than *\[insert date\]*.

*Non-Federal agencies:*

If you elect to become a participating agency, you must accept this
invitation in writing. The acceptance may be transmitted electronically
to *\[insert e-mail address\]*; please include the title of the official
responding. In order to give your agency adequate opportunity to weigh
the relevance of your participation in this environmental review
process, written responses to this invitation are not due until after
the interagency scoping meeting, scheduled for *\[insert date\] at
\[insert location\]*. You or your delegate is invited to represent your
agency at this meeting. Written responses accepting designation as
participating agencies should be transmitted to this office not later
than *\[insert date\]*.

Additional information will be forthcoming during the scoping process.
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: Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities {#appendix-c-interagency-guidance-transportation-funding-for-federal-agency-coordination-associated-with-environmental-streamlining-activities .unnumbered}

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

# Appendix D: Linking the Transportation Planning and National Environmental Policy Act (NEPA) Processes {#appendix-d-linking-the-transportation-planning-and-national-environmental-policy-act-nepa-processes .unnumbered}

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

# Appendix E: FHWA Guidance on Limitation on Claims Notices,  {#appendix-e-fhwa-guidance-on-limitation-on-claims-notices .unnumbered}

# 23 U.S.C. Section 139(*l*) {#u.s.c.-section-139l .unnumbered}

Appendix E provides information on FHWA administration of the [statute
of limitations (SOL) provisions in SAFETEA-LU](#LimitationsOnClaims).
Appendix E does not apply to FTA. Appendix E can be found at
<http://www.fhwa.dot.gov/hep/section6002/>.

#   {#section-13 .unnumbered}

#  {#section-14 .unnumbered}

[^1]: The guidance applies to all projects using the Section 6002
    environmental review process. The process is mandatory for EIS
    projects. For the applicability of Section 6002 in the case of
    projects involving environmental assessments or categorical
    exclusions, see Question 8.

[^2]: This document uses the term "NEPA document" to refer to documents
    prepared specifically to comply with NEPA, and uses "environmental
    document" to refer more generally to documents prepared to comply
    with NEPA or with any other Federal environmental law whose
    compliance is folded into the environmental review process.

[^3]: Conference Report 109-203, page 1047-1048.

[^4]: For transit New Starts and Small 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).

[^5]: Conference Report 109-203, page 1048.

[^6]: The congressional Conference Report 109-203 (page 1048)
    accompanying SAFETEA-LU states: "Collaboration means a cooperative
    and interactive process. It is not necessary for the lead agency to
    reach consensus with the participating agencies on these issues; the
    lead agency must work cooperatively with the participating agencies
    and consider their views, but the lead agency remains responsible
    for decisionmaking."

[^7]: The methodology used by the lead agencies must be consistent with
    any methodology established by statute or regulation under the
    authority of another Federal agency (e.g., the EPA's hot spot
    analysis under the Clean Air Act).

[^8]: 40 CFR Part 230.

[^9]: While not required by statute, consideration also should be given
    to the resources available to the participating agencies.

[^10]: 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)