National Procedures for elevating to the Secretary
Disputes Involving Environmental Reviews of Transportation Projects
Section 1309 ("Environmental Streamlining") of the Transportation
Equity Act for the 21st Century (TEA-21), Public Law 105-178
(as amended by the TEA-21 Restoration Act, Public Law 105-206) directs
Federal agencies to develop and implement coordinated environmental (including
historic and archeological) reviews of transportation projects. The U.S.
Department of Transportation (Department) and key Federal environmental
resource and regulatory agencies have agreed in the spirit of partnership
and cooperation to work toward the goal of expediting the development
of transportation projects while at the same time protecting and, to the
extent feasible, enhancing environmental outcomes. To this end, the Department
has entered into a National Memorandum of Understanding (MOU) with the
U.S. Department of Interior, the U.S. Department of Agriculture, the U.S.
Department of Commerce, the U.S. Environmental Protection Agency (EPA),
the U.S. Army Corps of Engineers (Corps), and the Advisory Council on
Historic Preservation. The National MOU is an agreement to collaboratively
plan and develop transportation projects, and to conduct concurrent project
reviews under the National Environmental Policy Act (NEPA) and in connection
with issuing environmental permits, licenses and approvals. Agreement
on review timeframes for individual projects is a key aspect of concurrent
project reviews. New regulations from the Federal Highway Administration
(FHWA) and the Federal Transit Administration (FTA) will provide the operational
framework for fully implementing Section 1309 and the MOU.
Environmentally responsible transportation improvements, delivered on
time and within budget, is a vision that all too often eludes the Department
and its various partners. Public demands for transportation solutions
today, not ten years from now, are understandable given the magnitude
and pervasiveness of America's transportation problems. Equally understandable
is the public's desire for environment protection and enhancement. Sometimes
these two goals appear to be at odds and conflict results. When this conflict
takes the form of disputes among transportation and environmental agencies
at the state and federal levels, projects can be delayed considerably.
The Department is developing a comprehensive conflict management and
dispute resolution system. The Department recognizes that conflict can
be constructive if it forces agencies to acknowledge differing views and
be creative in accommodating diverse interests. However, conflict that
damages agency or personal relationships and causes undue project delays
is highly destructive. The Department's conflict management and dispute
resolution system has four components: 1) guidance for agencies in resolving
disputes as they arise in the project development process using both unassisted
and assisted problem solving, 2) training courses to help agency staff
understand the dispute resolution guidance and to develop more effective
problem-solving and collaboration skills, 3) access to qualified third-party
neutrals who can provide professional assistance in resolving disputes,
and 4) procedures for elevating disputes to the Secretary of the Department
under Section 1309(c) of TEA-21.
Purpose of Section 1309(c)
Section 1309 of TEA-21 requires the Department to ensure that Federal
agencies cooperatively develop and meet agreed-upon time periods for environmental
reviews, analyses or opinions, or issuance of an environmental permits,
licenses or approvals. If timely compliance is not achieved, the Secretary
of the Department (Secretary), pursuant to Subsection 1309(c), must respond
in prescribed ways to close the record and/or resolve the dispute.
These Procedures are the steps that the Department and other Federal
agencies will take to address disputes that are not otherwise resolved,
specifically to make Subsection 1309(c) operational. They are designed
to address significant interagency disputes that have caused or threaten
to cause undue project delays, and to do so in a focused and expeditious
The Procedures set forth here apply to Federal agencies and to state
agencies with Federally delegated authority, including the project applicant,
during environmental reviews of highways and transit projects that are
funded wholly or in part by the Department. Specifically, they apply to
the NEPA process and to the issuance of permits by the Corps under Section
404 of the Clean Water Act and by the U.S. Coast Guard under various laws,
the consultation by the U.S. Fish and Wildlife Service (USFWS) and the
National Marine Fisheries Service (NMFS) under the Endangered Species
Act, approvals by the EPA and consultation or approvals required by various
Federal agencies under applicable laws. The Procedures 1) take into account
the respective statutory mandates and commitments of these Federal agencies,
and 2) are not intended to circumvent or serve as a substitute for other
statutory or regulatory processes available to Federal agencies for dispute
Affected Agency - any Federal agency including the FHWA and the
FTA that is the subject of a dispute elevated to the Secretary under these
Head of a Federal Agency - the top administrative official for
the department or agency unit directly involved in the dispute. For example,
a dispute between the Department of Transportation and the EPA would involve
the Secretary and the Administrator for EPA; a dispute between the U.S.
Department of Transportation and the U.S. Department of Interior's USFWS
would involve the Secretary and the Director of the USFWS. Negotiations
among the affected agencies will involve staff with the full authority
of the Secretary and the head of the agency. If the authority is delegated
below the agency director level, then such delegation must be to a person
vested with the full authority of the Secretary or agency head on the
issues in dispute.
Participating Agency - any Federal agency that is a cooperating
agency under NEPA or is otherwise involved in providing reviews of or
granting a permit, license or approval for a transportation project that
is the subject of a dispute elevated to the Secretary under these Procedures,
but that is not party to the dispute (that is, is not an Affected Agency).
Project Applicant - the transportation sponsor, typically a state
department of transportation.
Project Review Timeline - a timeline mutually developed and agreed
to by 1) the lead and cooperating NEPA agencies for completing environmental
reviews under the Department's NEPA process for a specific transportation
project, or 2) the lead NEPA agency under the Department's NEPA process
and all Federal agencies involved in providing reviews, opinions, analyses
or approvals in connection with issuing an environmental permit or license
for a specific transportation project. Failure to comply with a project
review timeline ("failure to comply"), or the anticipation thereof,
is the basis for initiating the elevation process.
These Procedures are designed to expedite decision-making and move toward
finalizing transportation projects developed through a coordinated process
in accordance with Section 1309 of TEA-21. Specifically, all participating
Federal agencies must cooperatively develop and agree upon a project review
timeline for individual projects as required by Subsection 1309(b)(2).
If a participating agency fails to render its review, opinion or analysis,
or fails to make a decision on issuing a permit within the agreed-upon
time period, such failure may be elevated to the Secretary per Subsection
1309(c). Failure to comply should be interpreted as failure to render
timely opinions or reach decisions at major decision events such as concurrence
points in the NEPA process. The lead agency in the Department's NEPA process
- either the Federal Highway Administration (FHWA) or the Federal Transit
Administration (FTA) - may elevate the matter to the Secretary. Disagreements
may also be elevated prior to a failure to comply if the FHWA or the FTA
Administrator believes a disagreement is so serious or fundamental or
involves questions about agency mandates or policy that it will likely
cause a failure. Likewise, any participating agency can request elevation
for a qualifying dispute that it believes is the result of actions by
the project applicant, FHWA or FTA.
The elevation process begins with the project applicant or a participating
agency notifying the FHWA Division Administrator or the FTA Regional Administrator
of a failure to comply or the imminence of such a failure. The Division
or Regional Administrator reviews the case and may decide to send the
request for elevation to the FHWA or FTA Administrator, who then may elevate
the dispute to the Secretary.
The following steps specify the elevation process:
Initial Notification to FHWA or FTA. The transportation project
applicant or a participating agency may notify the FHWA Division Administrator
or the FTA Regional Administrator (depending on which is the lead
agency under the Department's NEPA process) of a failure to comply
(or anticipated failure to comply). The notification will be accompanied
by a brief position paper summarizing the issues and the project applicant's
or participating agency's position. The Division or Regional Administrator
will then decide whether to recommend to the FHWA or FTA Administrator
that the matter be elevated to the Secretary.
Notice of Intent to Elevate to the Secretary. The Administrator
of FHWA or FTA will provide written notice to the relevant office(s)
and to the head(s) of the other affected Federal agency(ies) that
it intends to elevate a failure to comply to the Secretary.
Joint Statements and Position Papers. The elevating agency
will invite the other affected Federal agency(ies) to prepare a joint
statement of the issues. This statement will clearly define the reason
why the review or decision deadline was or is anticipated to be missed,
including any substantive issues that need to be resolved. Each agency
will also include a brief statement (position paper) of its perspective
on the issues, and will share its position paper with the other agency(ies).
The joint statement and position papers shall accompany the written
request to the Secretary for intervention and will provide focus for
deliberations at the Secretarial level. The joint statement and position
papers are to be simple, focused summaries (e.g., two to five pages),
and will be prepared within ten (10) calendar days of the elevating
agency's notice. The joint statement should be a combined effort among
all the affected agencies, and should be prepared by staff at the
organizational level within each agency where the dispute originated.
Staff from the affected agencies may find it useful to engage a qualified
third-party neutral to help craft the joint statement, as recommended
in the Department's "Guidance on Resolving Disputes During Environmental
Reviews and Approvals of Transportation Projects."
Elevation to the Secretary. The written request to the Secretary
will be accompanied by the joint statement and position papers, which
will provide focus for deliberations at the Secretarial level. If
the joint statement and position papers have not been prepared within
10 days, the elevating agency may proceed to request intervention
by the Secretary using its position paper only. In this event, the
elevating agency must certify in writing that it has made a good faith
effort to prepare a joint statement with the other affected agency(ies).
Determination of Failure to Comply with a Project Review Timeline.
Within five (5) calendar days of the date of referral, the
Secretary will determine if a failure to comply with a project review
timeline has occurred (or is imminent) and, if so, will provide written
notice of the request for intervention to the heads of the other affected
agencies. The notice will include as attachments the joint statement
and agency position papers. At the Secretary's discretion, the notice
may also be sent to the heads of other Federal agencies that are participating
agencies for the subject project.
Consultation. The Secretary will review the joint statement
and agency position papers and consult with the other Federal agency(ies).
Consultation in the context of Subsection 1309(c) is an informal process
consisting of phone and/or in-person discussions, and may involve
the use of a third-party neutral. Although such consultation has no
prescribed time limit, it should be undertaken expeditiously in the
spirit of Subsection 1309(c).
Action by the Secretary. Following consultation, the Secretary
will choose one of three courses of action: a) extend the time for
review, b) close the record, or c) conduct negotiations with the other
agency(ies) in order to resolve any disagreements.
Extension of Time for Review. If the Secretary extends
the time for review, the referring agency will be directed to
continue its deliberations with the other affected agency(ies)
at an organizational level identified by the Secretary. An extension
of time would be the appropriate course of action if the Secretary
determines that an impasse has not been reached and more discussion
at lower organizational levels may lead to resolution. However,
most disputes that reach the Secretarial level are likely to involve
serious disagreements that have resisted lower level resolution
or which involve issues of statutory mandates or agency policy.
In those rare situations where time extensions are warranted,
the conditions for the extension shall be cooperatively determined
among the affected agencies, as well as procedures to follow at
the end of the extension period. Failure to reach agreement by
the end of the extension period would re-qualify the dispute for
elevation again to the Secretary.
Close the Record Regarding the Subject Before the Secretary.
If the Secretary decides to close the record, the lead NEPA agency
(FHWA or FTA) will be directed to proceed with the next step in
the NEPA process. If a final Environmental Impact Statement has
been prepared, this would be the lead agency's Record of Decision.
The Secretary's authority to close the record does not extend
to reviews, analyses, opinions or decisions conducted by another
agency on any permit, license or approval issued by that agency.
Closing the record would be the appropriate action if the Secretary
1) determines that further deliberation with the head(s) of the
other Federal agency(ies) or among the affected agencies at lower
levels would not likely lead to resolution, and 2) does not reach
a finding as described in Step 7(c).
Negotiations. If the Secretary decides to conduct negotiations
with the head(s) of other affected agency(ies), the decision must
be based on a finding that an issue involved in the dispute is
one that the other agency(ies) has (have) jurisdiction over by
operation of Federal law. Such negotiations must be completed
within thirty (30) calendar days of this finding unless
a time extension is agreed to in writing by all affected agencies.
- The first meeting involving interagency negotiations will include
a joint briefing by the staffs of the affected agencies focused on issues
previously identified in the joint statement of the issues.
- Negotiations should focus on understanding the reasons behind the
dispute and attempt to resolve disagreements in creative and concrete
- Resolution of the matters at hand may involve either substantive agreement
among the agencies or agreement on how to proceed without substantive
agreement. In case of the latter, the Secretary and the head of another
Federal agency involved in the dispute may agree to disagree, with the
respective agencies free to pursue other jurisdictional avenues and
statutory responsibilities. For example, the Secretary may decide to
close the record with respect to the Department's NEPA process while
the head of another affected agency decides to proceed on a separate
schedule to render a decision on a permit for the project. Resolution
may also be part substantive and part procedural. For example, a regulatory
agency may continue to oppose the need for a project in its regulatory
process but agree not to veto it in return for additional impact mitigation
- The Secretary will prepare a report summarizing the issues in dispute
and the resolution reached by the affected agencies. The Secretary and
the head of the other affected agency(ies) will sign the report and
make it available to the public.
Assistance in Consultations or Negotiations
To facilitate consultations pursuant to Step 6 or negotiations pursuant
to Step 7(c) among the affected agencies, the Secretary or the head of
any affected agency may request assistance from the U.S. Institute for
Environmental Conflict Resolution, the Council on Environmental Quality
(CEQ), or any other organization or individual. A request for assistance
with consultation can be made any time prior to the Secretary's finding
in Step 7(c). A request for assistance with negotiations can be made anytime
within the 30-day time period (or an agreed upon extended period) provided
in Step 7(c). The costs of these services are eligible project costs and
can be covered by project funding.
Other Dispute Resolution and Decision-Making Processes
Nothing in these Procedures will interfere with other processes available
by law or regulation. In particular, any Federal agency engaged in a NEPA
process may refer disagreements with the lead agency to the CEQ for resolution
per Part 1504 of the CEQ regulations (43 FR 55998, Nov. 29, 1978). Such
referrals can be made in the NEPA process up to 25 days after the final
Environmental Impact Statement has been issued to the public. Similarly,
procedures for elevating "404" decisions by the Corps under
Section 404(q) of the Clean Water Act and per a memorandum of agreement
among the Corps, the EPA, the USFWS and the NMFS, remains in place and
available to all Federal agencies engaged in the "404" review
and approval process.
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