Frequently Asked Questions on the Environmental Review Process

What is the difference between a cooperating agency and a participating agency regarding roles and responsibilities in the process to prepare an EIS?
Does a project coordination plan have to contain a project schedule?
When a State agency is invited as a participating agency, and is responsible for a decision under State law that implements a Federal law, must that State agency respond affirmatively to participate or would the absence of a reply result in the State agency automatically being treated as a participating agency (just as a Federal agency would)?
Who decides what agencies should be invited to be participating or cooperating agencies? Can an agency request to be a a participating agency?
When an EA is elevated to an EIS does the Environmental Review Process apply?
Must a project have followed the Environmental Review Process to be eligible to file a Statute of Limitations (SOL) claims notice for the project?
If an aspect of the schedule changes, what must be done regarding notifying the public about the change?
If FHWA is a lead agency only because there is an Interstate access approval needed, must the State also be a joint lead agency?
Should Tribal Historic Preservation Officers (THPOs), along with Indian tribal governments, be invited to be participating agencies?
During the development of the coordination plan and schedule, with whom must the joint lead agencies consult?
If I want to publish a SOL notice that covers Section 106 and 4(f) decisions on a historic property, should I contact the THPO and/or State Historic Preservation Officer (SHPO) or the Advisory Council on Historic Preservation (ACHP) to advise them of the proposed notice?

(1) What is the difference between a cooperating agency and a participating agency regarding roles and responsibilities in the process to prepare an EIS?

Answer: "Cooperating agency" is defined in NEPA regulation and "participating agency" is defined in 23 U.S.C. 139(d). According to CEQ regulation (40 CFR 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, as defined by SAFETEA-LU, 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 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) 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, "a cooperating agency may adopt without recirculation of 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.

(2) Does a project coordination plan have to contain a project schedule?

Answer: The language in SAFETEA-LU (23 U.S.C. 139(g)(1)) encourages, but does not require, the inclusion of a project schedule in the coordination plan. CEQ regulations (40 CFR 1501.8) also strongly encourage the establishment of timeframes.

The FHWA assumes that a schedule will be used on all EA and EIS projects processed under the Environmental Review Process. 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. The joint lead agencies must reach agreement on whether to include a schedule in the project coordination plan.

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 (if serving as a joint lead agency). Concurrence in the schedule by the participating agencies is not required.

The schedule should include decision-making 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. SAFETEA-LU 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.

(3) When a State agency is invited as a participating agency, and is responsible for a decision under State law that implements a Federal law (such as a State water quality agency acting under Section 401 of the Clean Water Act, a SHPO acting pursuant to Section 106 of the National Historic Preservation Act), must that State agency respond affirmatively to participate or would the absence of a reply result in the State agency automatically being treated as a participating agency (just as a Federal agency would)?

Answer: When a State agency is invited to be a participating agency, and is administering a State law that implements a requirement of Federal law, it still should respond according to the procedures for State agencies. A State, Indian tribal government, or local agency should respond affirmatively to the invitation to be designated as a participating agency. If the State, Indian tribal government, 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.

(4) Who decides what agencies should be invited to be participating or cooperating agencies? Can an agency request to be a participating agency?

Answer: It is the responsibility of the lead agencies to identify, invite, and involve participating agencies. 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, but are part of public involvement.

An agency may make a request to the lead agencies to be a participating agency, but it is the lead agency(ies) decision as to who should be invited to be a participating agency.

(5) When an EA is elevated to an EIS does the Environmental Review Process apply?

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 Environmental Review Process. So, if a project , that was originally to be processed as an EA, is elevated and is being processed as an EIS, it must follow the Environmental Review Process. (23USC 139(b)(1))

(6) Must a project have followed the Environmental Review Process to be eligible to file a Statute of Limitations (SOL) claims notice for the project?

Answer: The SOL notice may be used for projects on which the NEPA decision was made prior to August 10, 2005, and therefore did not follow the Environmental Review process. The 180-day period will run from the date the notice is published in the Federal Register. As stated previously, the Division Office should work with FHWA field counsel to decide whether publication of a notice is a good choice for the project(s) in question.

If a Division Office wants to publish notices for several projects that were approved before August 10, 2005, it may wish to use the multiproject sample form as a guide for consolidating the projects under a single notice.

The SOL notice can be used for any category of NEPA project that generates a documented decision. This includes documented CEs, EAs, and EISs. Before deciding to publish a notice, the FHWA Division Office, in consultation with the State, should consider whether publication is justified.

(7) If an aspect of the schedule changes, what must be done regarding notifying the public about the change?

Answer: If the schedule is modified, then the modified schedule shall be shared with all participating agencies, the State DOT, and the project sponsor, and shall be made available to the public. If only one aspect of the schedule has been changed, such as one review timeframe for one phase of the project, then only the notification and change needs to be communicated for that part. (23USC 139 (g)(1)(E))

(8) If FHWA is a lead agency only because there is an Interstate access approval needed, must the State also be a joint lead agency?

Answer: The State must be a joint lead agency when it is the direct recipient of Federal funds for the project. (23USC 139 (c)(3)) If this is not the case, SAFETEA-LU does not mandate that the State be a joint lead agency, however, as a practical matter, the State still would take on the responsibilities it carried out under 23 CFR 771 prior to SAFETEA-LU.

(9) Should Tribal Historic Preservation Officers (THPOs), along with Indian tribal governments, be invited to be participating agencies?

Answer: The lead agency's invitation to an Indian tribal government to be a participating agency should be sent to the chief executive officer of the tribe. It is the decision of the Indian tribal government to identify their point of contact for purposes of the environmental review process. The individual designated to be the point of contact for the environmental review process may or may not be the same the individual designated to act under Section 106. The point of contact for compliance with Section 106 of the National Historic Preservation Act is likely to be the Tribal Historic Preservation Officer (THPO). The lead agency is encouraged to consult with the Indian tribal government to identify the point(s) of contact.

(10) During the development of the coordination plan and schedule, with whom must the joint lead agencies consult?

Answer: If the coordination plan does not include a schedule, then the lead agencies may establish it without consultation with participating agencies. However, the lead agencies may find that best results occur when they consult with the participating agencies on the coordination plan. Key elements of the coordination plan may be setting expectations that require a commitment of resources by the participating agencies. Consultation with the participating agencies on the project schedule is required whenever a coordination plan includes a project schedule.

SAFETEA-LU (23 U.S.C. 139(g)(1)(e) requires that a coordination plan that includes a schedule 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. It is a good practice to share the coordination plan with the public and participating agencies regardless whether such sharing is required under SAFETEA-LU.

(11) If I want to publish a SOL notice that covers Section 106 and 4(f) decisions on a historic property, should I contact the THPO and/or State Historic Preservation Officer (SHPO) or the Advisory Council on Historic Preservation (ACHP) to advise them of the proposed notice?

Answer: The answer depends on whether the ACHP was directly involved in the consultation on the project. If the ACHP declined to become involved following notification of an adverse effect determination and is not a signatory to any memorandum of agreement for the project, then contacting the THPO/SHPO is sufficient. When the ACHP has raised no objection to the determination of effect or expressed their desire to participate in resolving any adverse effects, then the Section 106 process is concluded among the FHWA, THPO/SHPO, and any additional parties invited to sign the MOA. If the ACHP commented on a disputed determination or participated in the MOA, then coordination with ACHP would be appropriate.