National Procedures for elevating to the Secretary
Disputes Involving Environmental Reviews of Transportation Projects

DISCUSSION DRAFT

Preamble

Section 1309 ("Environmental Streamlining") of the Transportation Equity Act for the 21^st 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 manner.

Applicability

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 resolution.

Definitions

Affected Agency - any Federal agency including the FHWA and the FTA that is the subject of a dispute elevated to the Secretary under these Procedures.

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.

Procedures

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:

1. 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.

2. 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.

3. 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."

4. 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).

5. 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.

6. 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).

7. 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.

   1. 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.

   2. 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).

   3. 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 ways.

• 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 measures.

• 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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