# Presentation: 806557

## Outreach to Resource Agencies and Indian Tribal Governments on Section 6002 of SAFETEA-LU, “Efficient Environmental Reviews for Project Decisionmaking”

**February 27  2:00 – 3:30 PM EST**
**FHWA Office of Project Development and Environmental Review**

## Resources for 6002 Environmental Review Process

**SAFETEA-LU Environmental Review Process Final Guidance:**
- _[http://www.fhwa.dot.gov/hep/section6002/index.htm](http://www.fhwa.dot.gov/hep/section6002/index.htm)_
**Re:NEPA:**
- _[http://nepa.fhwa.dot.gov/ReNEPA/ReNepa.nsf/home?OpenForm&Group=SAFETEA-LU&tab=REFERENCE&start=30](http://nepa.fhwa.dot.gov/ReNEPA/ReNepa.nsf/home?OpenForm&Group=SAFETEA-LU&tab=REFERENCE&start=30)_

## Participants Please Identify Yourselves

- In the Chat Pod please set to “everyone” so that everyone may see who is participating
- Please identify your State and number of individuals from Division, DOT, or resource agency
- Utah, 3 USACE, 2 Div,
- New Jersey, 2 DOT, 1 SHPO

## Asking Questions

- Please type questions in the Chat Pod
- Set chat to “everyone”
- Send in chat questions at any time
- We’ll also be taking voice questions
- Questions after Webinar: send to FHWA Division , who will discuss with liaisons, DOT, and FHWA HQ, as needed.

## Transportation

- Resource Agency

- System-level Planning

- Project-level Decision

- Integrated Planning, Consultation

- Linking Planning and NEPA

- NEPA, Environmental Review Process

- System-level Planning

- Project-level Decision

**S-LU 6001**

**S-LU 6002**

**Guidance/ Appendix A**

## Transportation Planning and Linking Planning and NEPA

- S-LU S. 6001 established new requirements for transportation planning agencies
- Long range plans must include
- Consultations w/ resource agencies
- Discussion of mitigation
- Great opportunity for resource agencies to get involved early in transportation decision-making process
- New planning regulations also encourage planning-level decisions/info to be used in NEPA
- Opportunities for outreach on 6001/new reg’s in the near future
- More info see Planning and Environment Linkages: _[http://environment.fhwa.dot.gov/integ/index.asp](http://environment.fhwa.dot.gov/integ/index.asp)_

## Environmental Review Process

- Required for all EIS project initiated after August 10, 2005
- For EA projects, Div. Office decides with concurrence of joint leads
- Not intended to apply to CEs at this time
- Final Guidance Question 8

## FHWA Federal Register Notices of Intent for EIS projects,

- <date/time>

- 3

- 5

- 2

- CT -1

- MD - 2

- DC - 1

- 2

- 1

- 1

- 2

- 1

- 2

- 2

- 2

- 1

- 1

- 1

- 4

- 1

- 1

- 3

- 1

- 2

- 4

- 2

- 3

- 1

- 1

**FHWA Federal Register Notices of Intent for EIS projects,**
** ****Issues since August 10, 2005**

- February 5, 2007

## Transportation and Resource Agencies – Reality Show

- Matching:
- Legislation
- Information
- Congressional Intent, and
- Proper Attitude . . .
- To serve the American traveling public in
***“******A More Excellent Way”***

- With SAFETEA-LU            w/o SAFETEA-LU
-        and You

## FHWA Headquarters Resource Agency Liaisons

- Joe Burns - U.S. Fish & Wildlife Service
- Jennifer Moyer - U.S. Army Corps of Engineers
- Carol Legard - Advisory Council on Historic Preservation
- Paul Anderson - U.S. Forest Service
- James Gavin - EPA

## Today’s Panel

- Ruth Rentch (Participating Agencies)
- Marlys Osterhues (Joint-Lead Agencies)
- Michael Culp (Methodologies/ level of detail)
- David Carlson (Coordination Plan/deadlines)
- Janet Myers (Limitation on Claims)
- Neel Vanikar (Streamlining & Stewardship 					Opportunities)

## NEPA Joint Lead Agencies Roles and Responsibilities 

- “Traditional” lead agency role, *40 CFR Parts 1500-   **	**08* and *23 CFR Part 771*, and
- Role in SAFETEA-LU, including:
- 	- Identifying and inviting participating agencies
- 	- Developing coordination plans
- 	- Providing opportunity for public/agency involvement
- 	  in defining Purpose & Need and determining range of
- 	  alternatives
- 	- Collaborating with agencies on determining
-       methodologies and alternatives analysis level of detail
- Final Guidance Question 18

## Who should be the Joint Leads?

- Mandatory Lead Agencies –
- 	-USDOT must serve as the Federal Lead Agency for a transportation project (unless NEPA delegated)
- 	-The direct recipient of Federal funds must serve as a Joint Lead Agency (State DOT)
- Discretionary Lead Agencies –
- 	-Other Federal, state or local gov’t agencies
- 	-Tribes
- Final Guidance Questions 14, 15, 16 & 17

## What’s Changed Under the Environmental Review Process?

- Emphasis on Joint Lead Agencies’ collaboration in process and decisions
- USDOT agencies do not reserve final decision making authority – Joint Leads have ***shared responsibilities*** for decision making
- Final Guidance Questions 20,32,36,38,39,& 47

## Joint Lead Oversight

- Increased Focus on Managing Process and Resolving Issues
- Partnership in responsibilities, such as coordination, participating agency invitations, and consultation
- Collaborative and coordinated decision making
- Timely consideration and resolution of issues
- Final Guidance Questions 18 & 19

## Congressionally-instituted issue resolution procedure for issues that could delay environmental process or permit approvals
If a project sponsor or State Governor requests, the Federal lead agency convenes meeting with relevant participating agencies to resolve issues
If no resolution in 30 days and lead agencies have all necessary information, then the Federal lead agency will notify all parties, CEQ, and report  non-resolution to Congressional committees
Final Guidance Questions 61, 62, & 63

- If a project sponsor or State Governor requests, the Federal lead agency convenes meeting with relevant participating agencies to resolve issues
- If no resolution in 30 days and lead agencies have all necessary information, then the Federal lead agency will notify all parties, CEQ, and report  non-resolution to Congressional committees
- Final Guidance Questions 61, 62, & 63

- What’s New?

## Congress requires that other Federal agency actions related to USDOT project must be made within 180 days of USDOT final decision or permit application, whichever is later 
USDOT must report to Congress on outstanding Federal agency actions beyond 180 days 
Report to Congress updated every 60 days until other Federal agency decision made

Final Guidance Questions 58 & 59 

- USDOT must report to Congress on outstanding Federal agency actions beyond 180 days
- Report to Congress updated every 60 days until other Federal agency decision made
- Final Guidance Questions 58 & 59

- What’s New? Cont.

## Questions?

## Am I a Participating Agency?

**Agency defined: any agency, department, or other unit of Federal, State, local, or Indian tribal government**
**Who thinks so?**
**Them: the Lead Agencies who do the invitations because of interest**
**You: the resource agencies themselves because of interest**
**NGO’s and Private Entities **_**cannot**_** be Participating Agencies**
**Final Guidance Questions 21, 23, & 26 **

## Invitations ? (this is New) 

**Now you’ve been invited to be a participating agency? **
**Been also asked to be a cooperating agency? **
**Cooperating=participating, but not vice versa**
**Final Guidance Questions 23, 24, 30 & 31**

## Participating 

- Participating
- Agencies
- & Indian Tribal
- Governments

- Joint Lead
- Agencies

- Cooperating Agencies

- The Public
- Private Business
- NGOs

## Roles & Responsibilities of Participating Agencies

** ****Review project information / decisions, participate in** **meetings, and consult on:**
- Coordination Plan (this is NEW)
- Purpose & Need
- Range of Alternatives
- Methodologies
- Level of Detail for Analysis of Alternatives
-  **Identify issues of concern**
-  **Provide meaningful & timely input**
**Final Guidance Questions 22, 28 & 29**
** **

## Participating Agency Invitation

**Similar to Cooperating Agency letter invitation (could be same)**
**Specify response deadline** (30 days)
**Federal agency may decline only when: **
- 1) no jurisdiction; and
- 2) no expertise; and
- 3) no intent to comment
- In writing
- Otherwise treat as Participating Agency
- Final Guidance Questions 25 & 31

## Participating Agency Invitation (cont.)

**State, Tribal, or Local agencies must reply affirmatively to invitation in order to become Participating Agency**
**Acceptance as Participating Agency **_**does not**_** equal project support**
**Final Guidance Questions 22 & 25**

## Late Participating Agency Invitation

**Invited as soon as oversight or new  information (scoping) indicates agency should participate (invitation guidance applies)**
**Leads determine if past decision points and milestones to date need to be reconsidered **
**Final Guidance Questions 23, 24 & 26**

## How should agencies respond?

**First, the desire is for agencies to engage in the process**
**Engage by participating in scoping, meetings, and by reviewing draft products**
**Make your comments/concerns known, as early as possible**
**Provide timely and meaningful input**
**Final Guidance Questions 22,25 and 28 **

## Opportunities and Benefits?

**Project Perspective- Keep the project development process moving forward**
**Resource Perspective- get concerns considered and address early on**

## Questions?

## Opportunity for Involvement and Collaboration on Methodologies

## Opportunity for Involvement:Where do I fit in, as a resource agency? 

- Early in the process, the lead agencies will provide an _opportunity for involvement_ for participating agencies and the public in:
- Defining the _purpose and need_ for a project
- Determining the _range of alternatives_ to be considered
- Lead agencies make final decision, but only after input is given (not “decide-announce-defend”)
- Final Guidance Questions  32, 34, 36, 37

## Opportunity for Involvement:More about “involvement”

- Coordination methods and timing may vary, depending on pre-existing agreements, project complexity, etc...incorporated into coord. plan
- Should be early in process, could be in the transportation planning process
- Involvement in scoping process emphasized
- Opportunistic for resource agencies
- Final Guidance Question 34, 37

## Collaboration on Methodologies: Where do I fit in, as a resource agency? 

- For alternatives analysis, the lead agencies must determine, in *collaboration* with the participating agencies:
- _appropriate methodologies_ to be used
- _level of detail required_
- Final Guidance Question 38

## Collaboration on Methodologies: What is “collaboration”?

- Cooperative and interactive process
- Not necessary to reach consensus
- Lead agencies must work cooperatively with the participating agencies, consider their views
- Lead agencies remain responsible for decision
- Final Guidance Question 38
- Conference Report 109-203 (page 1048)

## Collaboration on Methodologies: Where do I fit in, as a resource agency? 

- Final decision made by lead agencies, but must consider the relevant views of participating agencies
- Methods and timing may vary, depending on pre-existing agreements, project complexity, etc...in coordination plan.
- Per CEQ 40 CFR 1503.3 (b): If part. agency is disagrees, should propose alternate methodologies
- Final Guidance Question 38
- CEQ Regs 40 CFR 1503.3(b)

## What’s new in these two provisions? 

- Establishes a more structured way to gain insights and seek input from resource agencies at key points in process
- Good, now required practice for lead agencies to involve and collaborate (open door)
- Additional emphasis on scoping
- Structured and predictable opportunities for resource agencies to help shape projects early in the process, avoid issues later in process

## What are the opportunities/benefits?

- Early involvement helps shape and make better projects
- More opportunities to raise and resolve issues early
- Involvement on env. issues, P&N, and alternatives can occur in transportation planning process – “linking planning & NEPA”, S-LU 6001
- Process efficiency, predictability and environmental stewardship
- Better projects/better environmental outcomes

## Questions?

## Managing the Process:  The Coordination Plan

- Development is Lead agency responsibility
- All Lead agencies must agree on the plan
- Leads are encouraged to consult with participating agencies before plan and schedule is finalized, since it will involve commitments
- Lead Agencies will provide adequate information to allow for early identification of agency concerns **	**
**	****	****	****	****	****	****Final Guidance Question 47**

- Managing the Process:  The Coordination Plan

**Notes:**
Something that you’ve not seen before.  
Participation in the NEPA process for both coop. and participating agencies as well as the public.

A blueprint  for agency and public participation during the  NEPA process and for the post-NEPA permits
Development is Lead agency responsibility
All Lead agencies must agree on the plan 
Leads are encouraged to consult with participating agencies before plan and schedule is finalized, since it will involve commitments
Lead Agencies will provide adequate information to allow for early identification of agency concerns 	

## Coordination Plan (cont...)

- Will be developed early
- Has a schedule attached
- Should incorporate pre-existing or new agreements (such as merger agreements)
- To provide greater predictability for your resource allocation, some elements may be established programmatically
- Revise initial plan as necessary when issues become clearer
**	****	****	****	****	****	****Final Guidance Question 48**

**Notes:**
Make plan available to public— this is new

Will be developed early in the process– start development sometime after the LOPI and before scoping.  Scoping should be a more informed process with a plan in place.  

Has a schedule attached

Should incorporate pre-existing or new agreements (such as merger agreements) 
Where working effective and efficiently, may continue and be incorporated into coordination plan and schedule.
- May be used for coordination only with signatories of agreement.
- Agencies, and the public, not part of existing agreement, need to be granted opportunities for involvement as provided by SAFETEA-LU process.

To provide greater predictability for your resource allocation, some elements may be established programmatically  

Revise initial plan as necessary when issues become clearer

## Purpose of the Plan

- Facilitate and document lead agency interaction with the public and agencies
- Establish and manage expectations
- Outlines the responsibilities for compliance with the NEPA process &
- Methods for public and agency participation
- Identify coordination points and establish schedule of meetings
- Disputes in process/schedule should surface and be addressed early
**	**
**	****	****	****	****	****	****Final Guidance Question 49**

## Schedule 

- In development of schedule Leads:
- must consult with participating agencies
- include major project milestones
- consider factors (complexity of project, resources impacted, participating agency responsibilities)
- include deadlines & timeframes for agencies’ reviews and input
- The Wizard!
**	****	****	****	****	****	****Final Guidance Questions 52, 53**

- Schedule

**Notes:**
FHWA expects that all...
Critical tool for successful project management

## Deadlines

- DEIS: Not to exceed 60 days
- All other comment periods: Not to exceed 30 days
- Schedule can be modified:
- lengthened for good cause by joint leads agreement
- Shortened schedule established by agreement of lead agencies and cooperating
- be sure to document cause
**	****	****	****	****	****	****Final Guidance Questions 54, 55**

**Notes:**
DEIS comment period – 60 days max
Other comment periods – 30 days
Unless another period is agreed upon

## Where and When do you fit in?

- As participating agency, throughout the NEPA process, and beyond if have permitting authority
- Be prepared to incorporate portions of merger agreements, so that issues are not always revisited on a project by project basis
- Be prepared to actively participate and bring expertise to the process early and often
- Expectation for concurrent reviews with the NEPA process and acknowledged in Plan

**Notes:**
As with voting this is your chance to participate early and often.  

Should be prepared to bring expertise and information to the effort.  

## An Ideal...

- Coordination plan created
- early in the process (before scoping)
- soon after joint leads are identified
- in conjunction with invitation of participating agencies
- Adequate information is provided and agreements are made
- Can modify an existing coordination plan template and draw from a list of interested agencies and contact information
- Draft plan and revisions are shared with agencies and public

## Questions??

## Limitation on Claims Notices

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

## 23 U.S.C. 139(l)

**180-day statute of limitations**
**May cover any Federal agency decision **
**Covered decisions must be “final” within meaning of 139(*****l*****) **
**180-day period measured from date of *****Federal Register***** notice**
**Applies to pre- and post-SAFETEA-LU projects**

**Final Guidance Appendix E, Qs E-1, E-4, E-5, E-6, E-10**

## States that have filed SOL Notices

**States that have filed SOL Notices**

- February 8, 2007

## Publication

**Notice published by Federal lead agency**
**Decision to publish made by FHWA Division in consultation with other lead agencies**
**Timing of notice, use of multiple notices for a project depends on circumstances**

**Final Guidance Appendix E, Qs** **E-16, E-20**

## Best Practices

**Deciding agency acknowledges final decision(s) in project comments **
**FHWA/State coordinate with affected Federal agencies to inform and confirm finality**
**Achievement of concurrent project review processes facilitates use of single notice**

**Final Guidance Appendix E, Qs** **E-16, E-20**

## Questions? 

## SAFETEA-LU 6002 STREAMLINING & STEWARDSHIP OPPORTUNITIES:

-  Impact on Existing Merger Agreements
-  Your Resource Focus in the New Process
-  Expanded Funding Opportunities for 	Participating Agencies in the 	Environmental 	Review Process

## Section 6002 Impact on Existing Merger Agreements

- Existing merger agreements with participating and cooperating agencies should be integrated in the transportation project coordination plan and schedule.
- Benefits :
- 	Coordinates review times and deadlines
- 	Provides incentive to create additional merger agreements to streamline process
- 	Prevents duplication of analysis / Coordination
- Final Guidance Question 6

## Section 6002 Impact on Existing Merger Agreements

- Examples Include:
-  NEPA / 404 Merger Agreement with Army Corps of Engineers
-  State & Local Resource Agency Agreements
-  Fish & Wildlife Service Agreements
-  Section 106 Agreements w/State Historic Preservation Office & ACHP

## Resource Agency Focus in New Environmental Review Process:

- Should be prepared to be involved early
- Benefit from Engaging Early:
- Input in development of purpose and need statement
- Input in development of range of alternatives
- Involves early participation in planning process
**Better Planning Makes Better Projects!!!**
- SAFETEA-LU 6001:
- STIP & TIP discussion of potential mitigation activities
- Consultation in development of Long-Range Transportation Plans.
-    (i.e. Development of better purpose & need statements)
- Final Guidance Question 22

## Expanded Funding Opportunitiesunder SAFETEA-LU

- Funds...”only to support activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery for projects in that State”
- Areas of Funding Assistance:
- Liaison Positions (Continuation from TEA-21)
- Transportation planning activities that precede the initiation of the environmental review process
- Dedicated staffing and training of agency personnel
- Information gathering and mapping
- Development of programmatic agreements
- Final Guidance Questions 67, 68 & 69

## CT – 6.5

- 1

- 17

- 2.5

- MD - 6

- DC - 1

- 36

- 5.5

- 9

- 3.5

- 11

- 0.5

- 3

- 25

- 2*

- 1

- 29

- 9.5

- 6

- 9.5

- 1

- 1

- TxDOT* 1.5
- Tx Div   3

- 5

- 2

- 14

- 3

- 6

**DOT Supported Positions at Federal and State Resources Agencies, **
**Local Governments, **
**and Tribes, 2005, and Changes from 2003**

- February 5, 2007

- 8*

- 6

- 3

- 2

- 2

- 2

- NJ - 8

- 22

- Note:  This table does not include the District of Columbia and Puerto Rico, which funded no positions at resource agencies.  The Texas Division of FHWA has been added, because TxDOT cannot fund positions at federal resources agencies and the Texas Division has done so instead.  TxDOT’s remaining positions, like several from other states (noted with an *), are actually funded through services agreements and hence do not technically fund positions; however, this table intends to account for all positions funded, directly or indirectly, unless otherwise categorized and discussed in this report. The percentages on the following page are accounted utilizing 50 entities (states, with FHWA Texas Division included with TxDOT).

- RI - 3

- 2

## Questions?