# Presentation: 206497

## SAFETEA-LU Section 6002 “Efficient Environmental Reviews for Project Decisionmaking”

## SAFETEA-LU  Section 6002

- Was intended to make project development a more predictable process
- Supplements existing NEPA regulations
- Defines an “environmental review process” which includes NEPA and any environmental permit, approval or licensing process required for a transportation project
- Must be used for all EIS projects

**Notes:**
Congress’ objective in passing section 6002 was to make a project’s trajectory through the NEPA process not necessarily shorter, but more predictable.

By law, the procedural requirements of section 6002 apply to all EISs, and, at FTA’s discretion, to EAs.  FTA will apply the 6002 procedural requirements only to EISs at this time.  This decision may be reconsidered after some experience is gained with the process.

## Section 6002 – Lead Agencies

- _FTA Role_
- FTA must be lead agency for projects requiring its approval
- FTA is expected to guide projects through NEPA process more proactively
- _  _
- _Transit Agency Role_
- Sponsoring transit agency must be joint lead agency with FTA
- Sponsoring transit agency now has the statutory authority to prepare NEPA document, as has been the practice
- Must provide other agencies with appropriate, timely information about alternatives and impacts

**Notes:**
FTA Role:  The thematic thrust of section 6002 is that the FHWA and FTA should take a much more active management role in guiding projects through NEPA and related environmental processes.  Additional resources to do this are not provided. 

NEPA Role of Transit Agency: Section 6002 makes transit agencies co-lead agencies with FTA on all environmental reviews.  This provision essentially gives our grantees the statutory authority to prepare NEPA documents, as they have been doing.  However, prior to SAFETEA-LU, they really didn’t have that authority (except in limited cases), and FTA has been very lucky not to have been legally challenged.  FAA was, and lost the case over this issue.  This provision applies to all levels of NEPA review.  

## Section 6002 –Participating Agencies

- Include all Federal, state and local agencies and tribes with an interest in project
- Lead agencies must identify and formally invite participating agencies
- If invited, a Federal agency must accept unless it relinquishes all rights and authorities over the project (and this won’t happen)
- Participating agencies must identify any issues of concern which may substantially delay approval or result in denial of permit
- “Cooperating agencies,” as defined by CEQ, also serve as participating agencies, but have other roles (e.g., they can adopt the EIS)

**Notes:**
Participating Agencies: Section 6002 creates the new concept of a “participating agency,” defined as any Federal, State, or local agency or Indian tribe that may have an interest in the project.  Participating agencies must be identified early and must be formally invited by letter to participate.  They will be asked to comment at key milestones.  FTA and the sponsoring agency, as joint lead agencies, should agree on an appropriate division of labor regarding invitations.  However, FTA must deal with tribes directly, unless the tribe waives that right. 
Declining an Invitation and Failure to Participate: The statutory requirements that a declining agency must satisfy are repeated in the guidance.  Also, the consequence of an agency’s failure to participate for various reasons are discussed in detail, at FHWA’s insistence.  All this will probably be of little practical value to FTA.    
Cooperating agencies:  Cooperating agencies, as created by CEQ regulations, still exist and must be brought in, as in the past.  Cooperating agencies are also, by definition, participating agencies and must be treated as such.  

## Section 6002 – Project Initiation

- Sponsor must notify USDOT of the type of work, termini, length, and general location of the proposed action, with a statement of other Federal approvals required
- For FTA New Starts, “type of work” may be “fixed guideway transit” for an AA/DEIS

**Notes:**
Initiation of the NEPA Process: Section 6002 requires a formal initiation of the NEPA process separate from the Federal Register Notice of Intent (NOI).  The project sponsor must send a letter to FTA requesting NEPA initiation and describing the proposed action.  If FTA agrees that the action is ready for an FTA NEPA review, the NOI would then be developed.  

## Section 6002 – Purpose and Need

- Lead agencies must provide opportunity for involvement by participating agencies and public in determining the proposed project’s purpose and need
- After considering comments, lead agencies decide purpose and need
- Scoping is not complete until this involvement by participating agencies and public is done
- By law, USDOT’s purpose and need statement *may* include:
- Achieving an objective in a transportation plan
- Supporting local land use and growth objectives
- Serving national defense, security needs

**Notes:**
Participating agencies and the public must be given an opportunity to comment on the project’s purpose and need.  Scoping has not been completed until this task has been performed and any comments received have been considered. 

The P&N is ultimately the responsibility of the lead Federal agency.  The law states that, among other things, providing transportation support for State or local land use plans, economic development plans, or growth plans is a valid P&N for FHWA and FTA projects.

## Section 6002 – Alternatives

- Lead agencies must provide opportunity for involvement by participating agencies and public in determining range of alternatives to be considered in an EIS
- Lead agencies must collaborate with participating agencies on impact assessment methodologies and level of detail
- After considering comments, lead agencies decide range of alternatives and methodologies
- Scoping is not complete until this involvement by participating agencies and public is done

**Notes:**
Participating agencies must be given an opportunity to comment on the range of alternatives to be evaluated in the EIS and the methodologies to be used in assessing impacts and evaluating alternatives.   The general public must also have an opportunity to comment on the range of alternatives to be evaluated in the EIS.  Scoping has not been completed until these tasks have been performed and any comments received have been considered. 

## Section 6002 - Preferred Alternative

- Such designation, initially proposed by the sponsoring agency, must be accepted by FTA
- May be developed to higher level of detail than other alternatives to develop mitigation or to comply with other environmental laws
- FTA must determine that higher level of detail would not prevent an impartial decision among alternatives

**Notes:**
Preferred Alternative:  The preferred alternative may be developed to a higher level of detail than the other alternatives, but only for the following reasons specified in the law: to develop mitigation for adverse impacts; and to comply with other Federal environmental requirements such as section 404 permitting or compliance with the Endangered Species Act or with Section 106.  FTA has essentially allowed greater detail for one alternative in the past, but now we have the statutory authority to do it.  However, to treat an alternative in this manner under this guidance, we must: (a) agree with the grantee on the preferred alternative; and tie the need for greater detail to the specific reasons mentioned in the law for treating alternatives differently.  FHWA’s legal shop is extremely concerned about the litigation potential of this provision, and as a result extensive coverage of the issue is provided in the guidance. 

## Section 6002 – Coordination Plan

- Must be established by lead agencies
- Must address participation by other agencies and the public in the environmental review process, including:
- Coordination points or milestones
- Expected review times
- Communication mechanisms
*May *include (*must *include, for FHWA) a schedule, developed in consultation with participating agencies
*May* be incorporated into an interagency MOU
*May* be programmatic or project-specific
*May* incorporate other agreements (e.g. a 404 merger)

**Notes:**
Coordination Plan: A plan for coordinating public and participating agency involvement and comment during the entire NEPA process is required.  The coordination plan may include a project schedule (FHWA is requiring a schedule but the law does not), and the plan may be formalized in an MOU.  The coordination plan must be made public so that the public and participating agencies know the milestones at which their input will be sought and considered.  

Other programmatic agreements between FTA and a resource agency (e.g., a NEPA/section 404 merger agreement with the Army Corps) may be incorporated into the coordination plan.

## Section 6002 – Project Schedule

- May be included in the coordination plan
- If included, must take into account resources available to other agencies, the size and complexity of the project, the severity of the impacts, etc.
- Schedule may be modified
- by lengthening it only for good cause, and
- by shortening it only with the concurrence of the affected cooperating agencies
- FHWA is requiring a schedule even though it’s optional by law; FTA seeks comment on advisability of following suit

**Notes:**
Project Schedule:  If a project schedule is included in the coordination plan, it must take into account certain specified factors such as the resources available to other agencies and the severity of the impacts.  The schedule may be modified by lengthening it only for good cause, and by shortening it only with the concurrence of the affected cooperating agencies [sic].  (TPE has suggested that some of the flip-flopping in the law between the use of “cooperating agencies” and “participating agencies” was inadvertent and should be technically corrected, but that hasn’t happened.)  The draft Federal Register notice requests public comment on the advisability of requiring a project schedule in the coordination plan, though Section 6002 makes it optional.  FHWA is requiring a schedule as a project management tool. 

## Section 6002 – Issue Resolution

- An elaborate, high-level process for resolving interagency disagreements that may cause delay
- Would only be invoked as an absolute last resort under dire circumstance
- Once invoked, periodic reports to congressional committees, the Governor, and CEQ on progress in reaching resolution is required

**Notes:**
Issue Resolution Process:  An elaborate, high-level process for resolving disagreements among agencies that may delay a project is laid out in detail.  It would only be invoked as an absolute last resort under dire circumstance.  Once invoked, periodic reports to congressional committees on progress in reaching resolution is required.  Though not required, a more practical, staff-level process for issue resolution can be included in the coordination plan, and should be if any disagreement is anticipated. 

## Section 6002 – “Tattletale Clause”

- FTA and transit agency are expected to monitor the performance of other Federal agencies (e.g., Army Corps, U.S. Fish and Wildlife)
- Those agencies must act on a permit application or other approval request within 180 days of the FTA ROD or receipt of the application (whichever is later)
- If they don’t, FTA must report to certain congressional committees on that agency’s failure
- FTA and transit agency should work to resolve the delay before reporting becomes necessary

**Notes:**
“Tattletale” Clause: FTA and the grantee are expected to monitor the performance of other federal agencies (e.g., the Corps of Engineers, U.S. Fish and Wildlife Service), and if they do not act on a permit application or other approval request within 180 days of the FTA ROD or receipt of the application (whichever is later), then FTA must report to certain congressional committees on that agency’s failure.  FTA will probably comply with this so-called “tattletale” clause by reporting only egregious failures that truly affect a project’s schedule and are brought to FTA’s attention by the grantee. 

## Section 6002 – FTA Assistance to Resource Agencies

- _State Assistance to Other Agencies_
- FTA can approve a State request to fund resource agency activities with project funds
- Activities are eligible for funding if they *“meaningfully contribute to expediting”  *the* *project.  Examples include:
- Dedicated staffing (at SHPO, Army Corps, U.S. Fish, e.g.)
- Training or travel expenses
- Participation in pre-NEPA Alternatives Analyses
- Resource mapping
- Transit agency that is not a State DOT and wants to use this provision would have to work out an arrangement with the State DOT

**Notes:**
Funding for Resource Agencies:  SAFETEA-LU allows FHWA and FTA to approve the request of a State to provide Federal 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 contribute to expediting and improving the delivery of transportation projects in that State.  A similar provision was included in TEA-21, but SAFETEA-LU only permits the State (not a transit agency) to initiate this use of Federal funds.  FTA did not object to this apparent oversight during the development of SAFETEA-LU, because the authority provided was not used, or only rarely used, by transit agencies during TEA-21.  A transit agency that sees value in such an expenditure of its FTA funding could work with and through its state DOT to accomplish the objective in accordance with this law. 

## Section 6002 –Statute of Limitations

- _Statute of Limitations_
- Applies to decisions by any Federal agency approving or permitting a highway or transit project
- Bars lawsuits unless filed within _180 days_ after Federal Register (FR) notice of decision
- Common FTA decisions include NEPA completion, Section 4(f), project-level air quality conformity, and Section 106 (historic preservation)
- FTA will be posting final decision documents (RODs and FONSIs) on the FTA website prior to the FR notice

## Section 6002 – What It Means

_*Section 6002 Should:*_
- Give the lead agency greater responsibility for overall management of the process
- Ensure all agencies are at the table
- Ensure a role for agencies and the public in defining P&N and range of alternatives
- Establish a “normal range” for comment periods – while allowing for longer periods

## Section 6002 – What It Means

_*Section 6002 Should (cont’d)*_
- Support concurrent compliance with NEPA and other requirements, such as Sec. 404
- By allowing more detail for Preferred Alternative
- Allow funding for activities that expedite NEPA reviews but occur *outside *the NEPA process
- Encourage faster resolution of any litigation after NEPA is complete.

## Section 6002 – What It Means

_*What Section 6002 Doesn’t Do:*_
- Doesn’t reduce resource agencies’ authority
- Doesn’t reduce public opportunities for comment
- Doesn’t require “rigid” comment deadlines
- Doesn’t alter other laws
- Doesn’t magically speed up the process