U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

Purpose:
To transmit guidance to FHWA Divisions on NEPA approvals that require prior concurrence from HQ.

Background:
In October of 1996, FHWA Administrator Rodney Slater announced new operating procedures that delegated to FHWA field offices the responsibility and accountability for managing the NEPA process to assure high quality documents and project decisions. The revised delegations still provided for Headquarters prior concurrence for projects that are highly controversial or involve issues of national policy or program significance.

During July of 2000 FHWA's Office of NEPA Facilitation distributed for your review and comment a draft guidance package on Headquarters prior concurrence for NEPA approvals. Attached is the final guidance for prior concurrence. The guidance has been revised to respond to a number of specific suggestions received from field offices. Overall, this version of the guidance remains consistent with the earlier draft in treating prior concurrence as an opportunity for the Divisions, Headquarters, and Resource Centers to partner with each other for addressing our environmental responsibilities.

A number of reviewers requested guidance on how, or whether, prior concurrence differs from the review of an environmental document for legal sufficiency. We have included a Question and Answer (#15) to address this issue.

This guidance was coordinated with the Office of Chief Counsel. For easy reference, it will be included on the Environmental Guidebook web site.

Attachment

1. What is FHWA prior concurrence for EISs?
2. What projects require prior concurrence?
3. How does a project become a "prior concurrence" project?
4. Where is prior concurrence referred to in the regulations? In the Delegations of Authority?
5. Doesn't 23 CFR 771.125(c) refer only to final EISs?
6. Can prior concurrence apply to draft EISs?
7. Is prior concurrence ever required for a Record of Decision?
8. Does prior concurrence apply to NEPA classes of action other than EISs?
9. In any case, why is prior concurrence necessary?
10. What percentage of EIS projects typically require prior concurrence?
11. What is Headquarters' role in prior concurrence projects?
12. What kinds of information does Headquarters need to perform this role?
13. How will Headquarters document its prior concurrence?
14. When is the determination of prior concurrence made?
15. What is the difference between prior concurrence and legal sufficiency reviews?

1. What is FHWA prior concurrence for EISs?

Starting in 1996, FHWA delegated to the Divisions greater responsibility in the oversight of the National Environmental Policy Act (NEPA)/Project Development process for transportation projects. However, because certain NEPA actions could rise to the level of national policy or significant controversy, certain projects may warrant a "prior concurrence" by FHWA Headquarters (HQ). For these selected, pre-identified projects, prior concurrence is a step in the project development process at which FHWA field offices obtain a "green light," or approval, from HQ before proceeding with key approvals under NEPA. Prior concurrence is a finding by the Planning, Environment & Real Estate Services Core Business Unit (CBU) that the project and document in question are acceptable from a policy/program perspective. Prior concurrence may apply to FHWA approvals for both draft as well as final NEPA documents, and is required only on projects as identified in this guidance.

2. What projects require prior concurrence?

This is decided on a case-by-case basis, but projects with one or more of the following characteristics can be considered to be potential candidates:

• Impacts of unusual magnitude
• High levels of controversy
• Emerging or national policy issues under development
• Issues for which the Division office seeks policy assistance

Some examples of the above characteristics could be: the threat of a project's referral to the Council on Environmental Quality; the failure to resolve issues involving Federal environmental responsibilities; major disagreements with resource agencies, including the possibility of an adverse rating (e.g., "Environmentally Unsatisfactory\EU" or "Inadequate Statement\3"); or the active involvement of high-profile participants, such as members of Congress or national environmental organizations.

The focus of prior concurrence should be the need for a HQ policy perspective, rather than routine technical assistance which Divisions can obtain from the Resource Centers without a HQ prior concurrence role.

3. How does a project become a "prior concurrence" project?

Either the Division office or HQ can identify a particular project as being appropriate for prior concurrence, based on the "triggering" characteristics described above. Ideally, this identification should occur at the earliest possible stage in the project development process. Nevertheless, prior concurrence can be initiated at any time before the FHWA Division makes its final NEPA decision. Either the Division or HQ may initiate the request for prior concurrence. The initial discussions for the determination of the applicability of prior concurrence may be conducted orally, by e-mail, or by regular mail. Whatever method or methods are used, the point is for the parties to exchange their perspectives on whether HQ's prior concurrence of the project in question is warranted.

When the need for prior concurrence is determined, it will be documented through the exchange of correspondence initiated by either the Division office or HQ's Office of NEPA Facilitation. The correspondence should identify:

1. The key issues that are involved in the project
2. Any project-specific coordination needs that are to be addressed
3. HQ's role in pending NEPA/project development approvals
4. General time frames for communications between and needed actions by the Division and HQ

The recipient of the correspondence will in turn reply and acknowledge that the project in question has become subject to prior concurrence. For information purposes the Office of Chief Counsel and the Director of Field Services/Administrator of Federal Lands Highway Office (FLHO) should be provided copies of this correspondence.

4. Where is prior concurrence referred to in the regulations? In the Delegations of Authority?

The FHWA/FTA regulation on Environmental Impact and Related Procedures appears in Part 771 of Title 23 of the Code of Federal Regulations [23 CFR 771]. Prior concurrence is covered in section 125 (c). The Delegation and Organization Manual (Order M1100.1A) addresses prior concurrence in chapter 5, Federal-aid, section 2, paragraph 22. (Chapter 6, Federal Lands, has a cross-reference in paragraph 8.)

5. Doesn't 23 CFR 771.125(c) refer only to final EISs?

Yes, this section of the regulation refers only to prior concurrence on final environmental impact statements (EISs). When this regulation was adopted in 1987, HQ's Office of Environmental Policy routinely reviewed draft EISs from the field Divisions. In 1996, however, FHWA changed its procedures and set the stage for delegating to the FHWA Divisions the responsibility and accountability for managing the quality of EIS documents and the project development process. The prior concurrence procedure described in this guidance assures appropriate HQ oversight for selected project of high controversy or national policy/program significance.

6. Can prior concurrence apply to draft EISs?

Yes, prior concurrence can also be applied to a draft EIS. Normally, HQ will not exercise a formal concurrence role in advance of a Division's approval of a draft EIS. There may be exceptions to this rule, which will be spelled-out in project memoranda (see #3 above). Nevertheless, for projects flagged for prior concurrence at an early stage, staff at both HQ and Division levels will typically consult with each other concerning the appropriate strategies for addressing key issues during early coordination activities and in the draft EIS.

7. Is prior concurrence ever required for a Record of Decision?

There may be projects with critical issues (see #2 above) that are not fully addressed in the final EIS. If not already engaged in the prior concurrence process for such a project, HQ could advise the Division in the development of the ROD. In such cases HQ and the Division will work together to address the project-specific coordination and concurrence issues.

8. Does prior concurrence apply to NEPA classes of action other than EISs?

Prior concurrence applies mainly to EISs. However, on rare occasions HQ prior concurrence may be required for projects for which the Federal-aid or Federal Lands Division office proposes to issue a Finding of No Significant Impact (FONSI). For example, another Federal agency may object through its Headquarters office to the issuance of a FONSI. In this instance, complex issues addressed in an environmental assessment may require further deliberation and resolution before a FONSI can be made.

9. In any case, why is prior concurrence necessary?

The FHWA/NEPA project development and approval process for some projects may impact FHWA's ability to deliver its Streamlining/Stewardship goals of reducing transportation project delays and protecting and enhancing the environment. Prior concurrence of a key stage (or stages) of a project's approval allows HQ the opportunity to work with the Division office to provide additional assistance to address political or policy issues, or to coordinate the proposed action at the Federal agency HQ level. The prior concurrence process allows FHWA HQ, Division offices, and Resource Centers to combine their respective resources to assure the timely approval of NEPA process documents and related permits. An effectively managed NEPA process, in which prior concurrence can be a part, supports FHWA's Streamlining/Stewardship goals by effectively addressing potential opposition to advancing the project.

10. What percentage of EIS projects typically require prior concurrence?

Currently about ten percent of EIS projects require prior concurrence. This is a substantial decrease from the era when HQ routinely reviewed all draft EISs, when about half of the EIS projects required prior concurrence.

11. What is Headquarters' role in prior concurrence projects?

Headquarters will utilize the prior concurrence process to facilitate and ensure the resolution of the issues that required its involvement. HQ may function in any or all of the following roles in the prior concurrence process: inform and advise the Administrator; provide necessary interdisciplinary policy assistance and project management advice to the FHWA Division office; and, when necessary, engage the Headquarters offices of other Federal agencies in resolving interagency conflicts. HQ staff will focus on the specific issues of a project that warrant a national perspective. The Division office will retain responsibility, however, for the quality control of the entire NEPA document and the management of the project's decisionmaking process.

12. What kinds of information does Headquarters need to perform this role?

It depends on the project and the issues. Concise background information on the project's purpose, alternatives, cost, potentially affected sensitive resources, and so on (including maps or other graphic exhibits) will always be needed. Information needs will vary during a project's life, and with the particular issues in question. For example, in the case of a project in which interagency consultation has been a problem, information describing past and planned efforts to engage other Federal agencies in making decisions regarding the proposed project will be of great importance. Information relating to the scheduling of milestone and key decision points will be critical for projects with a time sensitivity. Projects with unusually high impacts or requiring new or different interpretations of national policy will require more detailed information on impacts to specific resources. And, for projects with Congressional involvement, the positions of the key political participants is highly valuable.

13. How will Headquarters document its prior concurrence?

The Director of the Office of NEPA Facilitation (HEPE) will document the determination of prior concurrence through a memorandum (including e-mail) to the Division Administrator or Federal Lands Highway Division Engineer, as appropriate. The memorandum will summarize the reasons for concurrence (e.g., satisfaction that the issues in question had been appropriately resolved). The memorandum will, when appropriate, cite the specific actions that were undertaken to address the critical issues. The determination of prior concurrence may also be made by other means, depending on the pertinent agreements contained in the Division-HQ prior concurrence correspondence (see #3) and the stage in the project's NEPA process at which the critical issues are considered to be addressed.

14. When is the determination of prior concurrence made?

As noted above, HQ's Office of NEPA Facilitation will send notice of the determination of prior concurrence to the FHWA field official at the appropriate approval stage of the NEPA process. In the past, before the current delegations of authority, this meant before the issuance of the Final EIS. However, as was discussed in the above guidance points, there may well be projects for which the critical issues (those which triggered prior concurrence in the first place) can be fully addressed at either earlier or later stages of the NEPA process. The determination of HQ's prior concurrence can therefore be made at the particular stage of the process - DEIS, FEIS, ROD - at which the critical issues have been appropriately addressed. Except under highly unusual circumstances HQ will grant prior concurrence within 30 days of receiving completed documentation from the Division.

15. What is the difference between prior concurrence and legal sufficiency reviews?

Prior concurrence is a finding by the Planning and Environment CBU that the document in question is acceptable from a policy/program perspective. Legal sufficiency is a review by the Office of Chief Counsel to ensure that the documentation meets legal minimums and will therefore be defensible in court.

Legal sufficiency review is required on all final EISs and final Section 4(f) evaluations [see Part 771.125(b) and 771.135(k), respectively]; prior concurrence is required only on projects as identified in this guidance. For projects requiring both prior concurrence and legal sufficiency review, HQ program and legal staff will coordinate in order to eliminate inconsistency or mixed signals. Early involvement by the Office of Chief Counsel will help to address any legal issues before the determination of prior concurrence, allowing the legal sufficiency review of the final document to be pro forma if the legal issues have been resolved.

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