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SAFETEA-LU Environmental Review Process (Public Law 109-59)

FINAL GUIDANCE

November 15, 2006

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This guidance should not be construed as rules of general applicability and legal effect.

Table of Contents

Introduction

1. The Environmental Review Process

General Information about the Environmental Review Process

Question 1: What does the term "transportation project" mean in this guidance?

Question 2: To which agencies does the term "USDOT" refer?

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?

Question 5: How does the SAFETEA-LU environmental review process relate to FHWA's 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?

Question 7: Do the new requirements in SAFETEA-LU Section 6002 apply to Tier 1 EIS documents?.

Applicability Requirements

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?.

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

Question 11: How is the environmental review process for a transportation project initiated?

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?

Lead Agencies

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?

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 Federal Lands Highway Program and FTA's Alternative Transportation in Parks and Public Lands Program?

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?

Question 20: Which agencies can prepare the environmental documents?

Participating Agencies

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?

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?

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?

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?

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?

Cooperating Agencies

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?

Purpose and Need

Question 32: Who is responsible for developing the project's purpose and need?

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?

Question 35: How does the transportation planning process relate to the development of a project's purpose and need statement?

Alternatives Analysis

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?

Question 38: What new requirements are included in SAFETEA-LU for developing the methodologies for the analysis of alternatives?

Preferred Alternative

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?

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?

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?

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?

2. Process Management

Coordination and Schedule

Question 47: Who is responsible for developing the coordination plan for public and agency participation?

Question 48: When should the coordination plan be developed?

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?

Question 51: Does each State DOT need to update its public involvement procedures that were developed pursuant to 23 CFR 771.111(h)?

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?

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?

Question 56: Once a schedule has been established, can it be modified?

Question 57: How and to whom must the schedule be made available?

Requirements Placed on Non-USDOT Federal Agencies

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?

Concurrent Reviews

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

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?

Question 63: What is meant by resolution of the issue of concern?

Adoption and Use of Environmental Documents

Question 64: Does SAFETEA-LU change anything regarding the adoption and use of environmental documents?

Performance Measurement

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?

Funding of Additional Agency Resources

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?

Question 69: How must the agency that receives such funds from a State use the funds?

3. Statute of Limitations

Acronym List

Appendix A: Section 6002 - Efficient Environmental Reviews for Project Decisionmaking

Appendix B: Sample Invitation Letters

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

Appendix E: FHWA Guidance on Limitation on Claims Notices, 23 U.S.C. Section 139(l)

To provide feedback, suggestions, or comments for this page, contact Ruth Rentch at ruth.rentch@dot.gov