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Last Updated: Tuesday, September 24, 2013 1:09 PM

Chapter 32 - Environmental Impact Statements (EIS)

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NOTE: IF YOU ARE PREPARING A JOINT CEQA/NEPA DOCUMENT - ALSO SEE CHAPTER 37

WHAT DOES THIS TOPIC INCLUDE?

This chapter discusses the preparation and processing of a NEPA Notice of Intent, Draft and Final Environmental Impact Statement, Record of Decision, Notice of Availability, Notice of Limitation on Claims, and the "Efficient Environmental Review Process" mandated by 23 USC 139. It also discusses the preparation of supplemental Environmental Impact Statements. In most cases EISs are prepared jointly with CEQA Environmental Impact Reports (EIRs). For guidance on joint CEQA/NEPA Environmental Impact Statements/Environmental Impact Reports (EIR/EIS) see the Environmental Handbook, Volume I, Chapter 37.

ENVIRONMENTAL IMPACT STATEMENT DECISION TREE

LAWS, REGULATIONS AND GUIDANCE

See Chapter 1 - for the complete list of federal requirements

Laws, Executive Orders

Regulations - See Chapter 1 - for the complete list of regulations

Guidance and Manuals - See Chapter 1 - for the complete list of guidance

Policy Memos

23 USC 139 EFFICIENT ENVIRONMENTAL REVIEW PROCESS

SAFETEA-LU stands for the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A legacy for Users and is the transportation funding act that was signed by President George W. Bush on August 10, 2005. SAFETEA-LU included a number of changes aimed at streamlining the environmental review process. MAP-21 stands for the Moving Ahead for Progress in the 21st Century Act (P.L. 112-141) and was signed into law by President Obama on July 6th, 2012. MAP-21 authorizes the federal surface transportation programs for highways, highway safety, and transit and provides funding funding of over $105 billion for federal fiscal years (FY) 2013 and 2014. It covers a variety of transportation related issues including financing, state and metropolitan transportation planning, congestion relief, improved safety, expedited project delivery, consolidation of federal programs, goods movement, and transportation related research and studies.

MAP-21 makes further amendments to the environmental review process added by SAFETEA-LU and codified at 23 USC 139.

  • Environmental review process. The environmental review process mandated by 23 USC 139 applies to EIS documents for which a Notice of Intent (NOI) was issued after August 10, 2005. In summary, 23 USC 139 requires the following:
    • The project sponsor must send a project initiation letter to the Department's Environmental Management Office Chief, prior to the start of NEPA. There are several options for doing this; the NOI itself can serve this function.
    • Under NEPA Assignment (23 USC 327) the Department serves two roles: the federal lead agency for a transportation project, and the direct recipient of federal-aid funds joint lead agency. Local agencies can serve as a joint lead agency at the discretion of the Department.
    • The lead agencies must invite all federal, state, tribal, regional and local government agencies that may have an interest in the project to be participating agencies.
    • Lead agencies must develop a coordination plan for public and agency participation and comment during the environmental review process.
    • Note: If a schedule is developed as part of the coordination plan, then participating agency concurrence is required.
    • Participating agencies and the public must be given an opportunity for input in the development of the purpose and need and the range of alternatives.
    • Lead agencies must collaborate with participating agencies on the appropriate methodologies and level of detail of analysis to be used. Note: This does not require concurrence.
    • FHWA may issue a 150-day statute of limitations (SOL) on claims against USDOT and other federal agencies for certain environmental and other approval actions. The 150-day SOL starts from the date that notice is published in the Federal Register by FHWA. A SOL notice can be used for a highway project regardless of the category of documentation used under NEPA. It is expected that notices will be published for most EIS projects and many EA projects, but not for projects that are CEs. Note: Even under NEPA Assignment (23 USC 327) FHWA is still the entity who must publish the notice in the Federal Register.

23 USC 139 Efficient Environmental Review Process

23usc139flowchart (34KB)

LEAD AGENCY UNDER 23 USC 139

Under the provisions of 23 USC 139, USDOT (FHWA for most Department projects) must serve as the federal lead agency, and the Department as the direct recipient of federal-aid highway funds must be a joint lead agency. Under 23 USC 139 and pursuant to the NEPA Assignment MOU with FHWA, the Department will serve in both roles (please see Standard Environmental Reference (SER) Volume 1, Chapter 38, NEPA Assignment). In addition to the required lead agencies, other federal, state, or local governmental entities may act as joint lead agencies, at the discretion of the Department. See the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance discussion on Lead Agencies for more information.

DEFINITION AND PURPOSE OF AN ENVIRONMENTAL IMPACT STATEMENT (EIS)

Under the National Environmental Policy Act (NEPA), a federal agency must prepare an Environmental Impact Statement when it determines that a proposed action may significantly affect the quality of the human environment. The purpose of this statement is set forth in the Council on Environmental Quality’s (CEQ) regulations for implementing NEPA: the purpose of an Environmental Impact Statement (EIS) is to “serve as an action-forcing device to insure that the policies and goals defined in NEPA are infused into the ongoing programs and actions of the federal government” (40 CFR 1502.1). An EIS is not merely a disclosure document, it is to be used by federal officials, in conjunction with other relevant information, to plan actions and make decisions.

FHWA’s NEPA regulations identify three classes of actions (23 CFR 771.115). The probable class of action is to be identified as soon as sufficient information is available to identify the probable impacts (23 CFR 771.111(b)). The three classes of actions prescribe the appropriate level of documentation required to comply with NEPA:

  • Class I actions are those that significantly affect the environment; these actions require preparation of an EIS.
  • Class II actions are those that are excluded from the requirement to prepare a NEPA document (refer to Chapter 30).
  • Class III actions are those for which the significance of environmental impacts is not clearly established. All actions that are not Class I or II are Class III. For these actions, an EA is prepared to determine the appropriate environmental document required (refer to Chapter 31).

NEPA provides that a state agency which has statewide jurisdiction and which has responsibility for a project may prepare an EIS (42 USC 4332(2)(D), provided that the federal agency furnish guidance and participate in the preparation of the document, and that it independently evaluate the EIS prior to approval and adoption. Under this provision, Department and local agencies are allowed to prepare Environmental Impact Statements for the review and approval of the Department. Please see SER, Volume 1, Chapter 38 for quality control and EIS review and approval procedures.

STATE COMPLIANCE CONSIDERATIONS

The majority of the Department's projects involve compliance with both NEPA and CEQA and other federal and state environmental laws. When both NEPA and CEQA apply, it is generally preferable to prepare a joint NEPA/CEQA document that satisfies both requirements (See Chapter 37). Even when circumstances dictate the preparation of separate federal and state environmental documents, it is good practice to take both processes into consideration when consulting with the relevant federal and state agencies, providing for public participation and determining the need for special studies and permits. Planning and coordination that considers both federal and state requirements avoids duplication of effort and unnecessary delay and cost.

INITIATION OF ENVIRONMENTAL REVIEW UNDER 23 USC 139

The first step in the 23 USC 139 environmental review process is the notification by the lead agency of the initiation of the review process. 23 USC 139 requires that the project sponsor notify FHWA about the type of work, termini, length, and general location of the proposed project. The notification must also provide a list of any other federal approvals (e.g., Section 404 permits) anticipated to be necessary for the proposed project. The notice also should indicate the timeframe within which the environmental review process should be started (publication of the Notice of Intent [NOI]). Under the NEPA Assignment (23 USC 327), this notification is now sent to the Department's Environmental Management Office Chief. Much of the required information should be available from planning documents. An NOI may be used as this notification as long as it contains the information required for the notification of the initiation of the 23 USC 139 environmental review process (see below). An annual STIP update may serve as the notification of the initiation of the review process for a group of projects as long as the required 23 USC 139 information is included in the STIP update submittal to FHWA and notification is submitted to the Department's Environmental Management Office Chief. The notification of the initiation of the review process precedes, or occurs simultaneously with, the publication of the NOI in the Federal Register, and may be issued during the planning process if the required information is available.

NOTICE OF INTENT TO PREPARE AN EIS (NOI)

A NOI serves as the official legal notice that a federal agency is commencing to prepare an EIS. Pursuant to the NEPA Assignment (23 USC 327) MOU, the HQ District Environmental Coordinator must concur in the class of action determination for an EIS before issuance of the NOI (see SER, Volume 1, Chapter 38, Class of Action Determinations). This concurrence can be done via an e-mail, which contains the project description, class of action determination and rationale, to the HQ District Environmental Coordinator. The CEQ regulations (32 CFR1508.22) require that a NOI include the following information:

  • A description of the proposed action
  • A description of potential alternatives, including the No-build
  • Information regarding the proposed scoping process including whether, when and where scoping meetings will be held
  • The name and address of a contact within the Caltrans district/region for the proposed project and the EIS

Detailed guidance for the format and content of a Notice of Intent are found in Appendix B of FHWA Technical Advisory T 6640.8A and Notice of Intent - EIS Sample on the SER Forms/Templates page.

To permit the NOI to also serve as the 23 USC 139 notification of the initiation of the environmental review process, the NOI must also include:

  • the type of work
  • the project's termini, length, and general location
  • other federal approvals, such as permits
  • timeframe within which the environmental review process should be started

The District prepares the NOI and submits it to FHWA for publication in the Federal Register; this is still the case under the NEPA Assignment (23 USC 327). It is advisable to allot sufficient time in the project schedule for this publication process to occur. For local assistance projects, the agency prepares the NOI and submits it to the Department, which reviews and approves it and forwards it to FHWA for publication in the Federal Register. For projects off the State Highway System additional information on coordination with resource and regulatory agencies is discussed in the Local Assistance Procedures Manual (LAPM), Chapter 6.

SCOPING

Scoping is the process by which a lead agency solicits input from the public and other agencies regarding the breadth and depth of issues to be addressed and the significant issues related to a proposed action (40 CFR 1501.7). The lead agency is required to invite the participation of affected agencies, Indian tribes, project proponents and other interested persons, and to consult with and obtain the comments of any federal agency with jurisdiction by law or special expertise with respect to any environmental impact of the proposed action. 23 USC 139 requires that lead agencies identify and invite "participating" agencies to become involved in project scoping, among other project development activities.

NEPA encourages the use of scoping as early as reasonable in the project planning process. Question 13 in Forty Most Asked Questions Concerning CEQ’s NEPA Regulations addresses the limitations on scoping prior to publication of a Notice of Intent (NOI). It should be noted that public meetings are a common form of public involvement, but are not specifically required as a part of the scoping process. Typically, the participation of the public and agencies prior to the publication of the NOI is referred to as "informal" or "pre-scoping," while their participation regarding the breadth and depth of issues, purpose and need, the development of the range of alternatives, and potential mitigation measures after the publication of the NOI is called "scoping."

Meetings and substantive contacts with government agencies regarding scoping should be documented. Correspondence with cooperating agencies, participating agencies, or the public becomes a part of the record and should be retained in the environmental file. Pertinent correspondence is also incorporated into a draft and final EIS. Public involvement and coordination with tribes and with local, state and federal agencies are summarized in the EIS and documented in the appendix to the document. It is helpful to keep a brief summary of public involvement activities as they occur (e.g., dates of key meetings and correspondence), so this can be easily added to the EIS without having to reconstruct the information from the project files.

The process of scoping is discussed in the SER, Volume I, Chapter 6. The Project Development Procedures Manual, Chapters 11 and 22, provide guidance for public involvement including information on planning and preparing for public meetings or workshops. For projects off the State Highway System additional information on coordination with resource and regulatory agencies is discussed in the Local Assistance Procedures Manual (LAPM), Chapter 6. Additional information about scoping may also be found in CEQ’s memorandum regarding NEPA regulations (1983), and in CEQ’s memorandum regarding scoping (1981).

Letters also should be sent to owners of property that may be directly affected by a project, and to organizations and individuals who have previously expressed an interest in the project or requested to be notified. In the case of projects where there is a high level of community interest or concern, the formation of a citizen advisory committee may be appropriate to resolve issues during the scoping phase.

Cooperating Agencies

As early as practicable, the federal lead agency requests other agencies to be cooperating agencies. The invitation to become a cooperating agency may occur before or shortly after the publication of the NOI. Typically, the cooperating agencies have accepted that role prior to the publication of the NOI and are listed in the NOI. According to CEQ (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. Upon request of the lead agency, any federal agency with jurisdiction by law shall be a cooperating agency. Any other federal agency with special expertise with respect to any environmental issue may be a cooperating agency. An agency may request to be designated as a cooperating agency. All cooperating agencies are also participating agencies pursuant to 23 USC 139 (see below).

Where appropriate, the lead agency should also seek the cooperation of state or local agencies with jurisdiction by law or special expertise. When the effects are on lands of tribal interest (reservation, Rancheria, or land held in trust), a Native American tribe may, by agreement with the lead agencies, also become a cooperating agency. The Department's district/region environmental staff has the responsibility to consult with federally-recognized tribes regarding becoming a cooperating or a participating agency.

Being a cooperating agency involves a commitment to participation in a process in which the agencies have mutually agreed to assigned roles. Cooperating agencies are required to assume responsibility for the development of information and the preparation of environmental analysis for an EIS (40 CFR 1501.7(a)(4)). However, a cooperating agency may reply that other program commitments preclude its involvement, and, in practice, cooperating agencies rarely prepare analysis. For a more extensive discussion of cooperating agencies, refer to Question 14 of Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, and FHWA’s Revised Guidance on Cooperating Agencies (March 19, 1992).

Coordination with cooperating agencies is initiated by sending a letter inviting them to participate in the development of the environmental document. FHWA’s Revised Guidance on Cooperating Agencies provides examples of letters inviting agencies to participate in the environmental process. Sample joint cooperating and participating agency invitation letters have also been developed (see below). Cooperating agencies are invited in writing to participate in early meetings to discuss issues and alternatives, allocate responsibilities, and determine the scope of issues that may be involved in the project. A copy of the letter and the agency’s response shall be retained in the project file.

Participating Agencies

Pursuant to 23 USC 139, a "participating agency" is any federal or non-federal agency (federal, state, tribal, regional, and local government agency) that may have an interest in the project. Nongovernmental organizations and private entities cannot serve as participating agencies. The lead agencies collectively decide which other agencies to invite to become participating agencies into the environmental review process. The Department's district/region staff shall be responsible for inviting federally recognized tribes that may have an interest in the project. Federal agencies are required to be "participating" unless they declare in writing that they have no jurisdiction, no expertise or information, and do not intend to comment on the project. To the extent that the lead agencies know prior to scoping that certain entities should be invited to serve, the lead agencies may send invitations simultaneously with the notice of initiation of the environmental review process or at anytime afterward. Federal agencies must respond to the invitation in writing. If the state, tribal, 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. A copy of the letter and the agency’s response shall be retained in the project file. See the FHWA / FTA SAFETEA-LU Environmental Review Process Final Guidance for additional information on the roles and responsibilities of participating agencies.

  • Sample Participating Agency List MS Word (45KB)
  • Sample Participating Agency Invitation Letter (include project location map) MS Word (27KB)
  • Sample Joint Participating and Cooperating Agency Invitation Letter (include project location map) MS Word (27KB)

NEPA/404 Coordination

In 2006, the Department entered into a Memorandum of Understanding with FHWA, U.S. Environmental Protection Agency (U.S. EPA), U.S. Fish and Wildlife Service (USFWS), the Army Corps of Engineers (USACE), and NOAA Fisheries to merge the NEPA and Clean Water Act Section 404 processes. Projects that have five or more acres of permanent impacts to waters of the United States and require the preparation of an EIS are subject to the NEPA/404 Integration MOU (April 2006). If all the MOU signatories agree, the integration process may be applied to project that do not meet the threshold. For NEPA/404 Integration projects, a set of procedures is initiated, preferably prior to scoping, and these procedures are integrated with preparation of the EIS.

For information regarding the handling of interagency agreements under NEPA Assignment (23 USC 327), please see Chapter 38 of Volume 1 of the SER.

As early as possible, the transportation agencies (the Department and, if applicable, the local agency), must notify the "responding agencies" (U.S. EPA, USACE, and the appropriate resource agency [FWS and/or NOAA Fisheries]) that the project meets the threshold for the NEPA/404 integration process and request the designation of mid-level and senior-level representatives should the issue resolution process prove necessary. The integration process includes on-going coordination, meetings at specified points, and three checkpoints. The checkpoints are 1) Purpose and Need, 2) identification of the range of alternatives to be studied in the Draft EIS, and 3) the Preliminary Least Environmentally Damaging Practicable Alternative (LEDPA) and Conceptual Mitigation Plan. The MOU outlines the roles and responsibilities of the signatory agencies and sets forth an issue resolution process. The Department in its role as FHWA has the authority to determine the project's purpose and need and the range of alternatives for NEPA documents, however, because the USACE is the lead federal agency for the issuance of Clean Water Act Section 404 permits, the USACE must concur in the Preliminary LEDPA. The Department may not issue the final EIS until the USACE concurs in the LEDPA.

On-line training regarding the NEPA/404 MOU is available on the Division of Environmental Analysis' Training on Demand website.

23 USC 139 Coordination Plan and Collaboration on Methodologies/Detail

23 USC 139 requires lead agencies to establish a plan for coordinating public and agency participation and comment during the environmental review process. This plan should be developed early in the environmental review process and should involve the participating agencies because the plan will include responsibilities and timeframes for actions by participating agencies. The plan must be shared with the public and the participating agencies. The plan may include programmatic elements (such as the 2006 NEPA/404 MOU and the Section 106 PA) that are consistent with 23 USC 139. A template has been developed for the coordination plan. Please refer to FHWA/FTA Environmental Review Process Final Guidance on Coordination and Schedule exit Ct icon for questions and answers on developing the Coordination Plan. According to the FHWA/FTA Final Guidance:

"The purposes of the coordination plan are to facilitate and document the lead agencies' structured interaction with the public and other agencies and to inform the public and other agencies of how the coordination will be accomplished. Section 6002 allows the lead agencies to decide how detailed the coordination plan should be. The coordination plan has the potential to expedite and improve the environmental review process by clearly establishing interactions and expectations, but its success will depend on the lead agencies exercising common sense and good faith to make it work.

The coordination plan should outline (1) how the lead agencies have divided the responsibilities for compliance with the various aspects of the environmental review process, such as the issuance of invitations to participating agencies, and (2) how the lead agencies will provide the opportunities for input from the public and other agencies, in accordance with applicable laws, regulations, and policies. The plan also should identify coordination points, such as:

  • Notice of intent publication and scoping activities.
  • Development of purpose and need.
  • Identification of the range of alternatives.
  • Collaboration on methodologies.
  • Completion of the draft environmental impact statement (DEIS).
  • Identification of the preferred alternative and the level of design detail.
  • Completion of the final environmental impact statement (FEIS).
  • Completion of the record of decision (ROD)
  • Completion of permits, licenses, or approvals after the ROD.

In addition, the coordination plan may establish a schedule of regular meetings and may identify which persons, organizations, or agencies should be included for each coordination point. The plan may set timeframes for input by those persons, organizations, and agencies."

FHWA assumes that schedules will be developed for projects requiring EAs and EISs, but the schedules are not required to be a part of the coordination plan. If a schedule is developed as part of the coordination plan, then concurrence from each participating agency is required.

Under 23 USC 139, the lead agencies must determine, in collaboration with the participating agencies, the appropriate methodologies to be used and the level of detail required in the analysis of alternatives. Accordingly, the lead agencies must work cooperatively and interactively with the relevant participating agencies on the methodology and level of detail to be used in a particular analysis. Consensus is not required, but the lead agencies must consider the views of the participating agencies with relevant interests before making a decision on a particular methodology. Well-documented, widely accepted methodologies, such as those for noise impact assessment and Section 106 (historic preservation) review, should require minimal collaboration. This requirement can be met on a project-by-project basis or by a programmatic approach; currently, the Department is doing this on a project-by-project basis. One way this requirement can be met to send an information packet to the participating agencies that states that the Department intends to use the methodologies and analytical framework set forth in the SER and then allow the participating agencies the opportunity for input. This could also be done in the context of a meeting. Whatever means is used to fulfill this requirement, make sure that the project file contains documentation that the requirement was met.

 

EIS ORGANIZATION AND FORMAT

Standard Outline for an Environmental Impact Statement (EIS)

The President's Council on Environmental Quality (CEQ) regulations specify several required sections for an EIS. The Department’s annotated EIS/EIR outline, developed in cooperation with FHWA, provides guidance regarding the organization and layout of a combined Environmental Impact Statement/Environmental Impact Report. The annotated outline also includes standard language for particular topics, standard graphics, and tips for analyses. The outline incorporates all of CEQ’s requirements for compliance with NEPA as well as CEQA EIR requirements. All EIS/EIR documents prepared for projects on the State Highway System are to follow this outline. A NEPA-only EIS outline has been prepared for federal-aid projects on local streets and roads. At minimum, local agencies must use the NEPA-only annotated outline for projects off the State Highway System. Use of this outline will ensure a document that meets FHWA and the Department standards, and it will facilitate speedier project review. Please refer to the SER, Volume I, Chapter 37 "Preparing Joint NEPA/CEQA Documentation" which describes how the analyses and documentation are presented to comply with both requirements.

Download the Department's annotated outline.

The EIS Outline includes the following sections, which are discussed in detail further below:

  • Cover Sheet
  • Title Sheet
  • Summary
  • Table of Contents
  • Chapter 1 - Purpose and Need for Project
    • Introduction
    • Purpose and Need
  • Chapter 2 - Project Alternatives
    • Project Description
    • Alternatives
    • Permits and Approvals Needed
  • Chapter 3 - Affected Environment, Environmental Consequences, and Avoidance, Minimization and/or Mitigation Measures
    • Affected Environment, Environmental Consequences, and Avoidance, Minimization and/or Mitigation Measures for each relevant topic
    • The Relationship Between Local Short-Term Uses of Man’s Environment and the Maintenance and Enhancement of Long-Term Productivity
    • Irreversible and Irretrievable Commitments of Resources Which Would Be Involved in the Proposed Action
    • Construction Impacts (optional placement)
    • Cumulative Impacts (optional placement; see below)
  • Chapter 4 - Comments and Coordination
  • Chapter 5 - List of Preparers
  • Chapter 6 - Distribution List
  • Appendices
  • References
  • List of Technical Studies
  • Index

Topics under this section are grouped by broad subject areas that include human environment, physical environment, and biological environment. The list of topics in the standard outline is comprehensive, and individual topics may not be relevant to all projects. While the substantive information regarding the discussion of the “Affected Environment” contained in the FHWA Technical Advisory T6640 A8 remains relevant, it should be noted that the topical organization presented in the Advisory has been superseded by the Annotated EIS/EIR Outline.

Under the NEPA-only EIS annotated outline, discussion of cumulative impacts may be placed in either of two places, on a case-by-case basis. Cumulative impacts affecting a limited number of resources should be addressed under the relevant topical headings within the “Affected Environment” section. A more complex and comprehensive cumulative impact analysis should be placed in a separate “Cumulative Impact” chapter. For further information, see “Cumulative Impacts,” below.

For additional discussion of the major components of an EIS, refer to Chapter 1, especially the information under CEQ’s regulations and NEPA .

PREPARING A DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS)

The Council on Environmental Quality (CEQ) NEPA guidance encourages conciseness in EIS documents (40 CFR 1502.7). The preparation of a Draft Environmental Impact Statement (DEIS) calls for the exercise of judgment in dealing with questions of relevance, emphasis and organization. The level of the discussion should be commensurate with the scale of the proposed project and the impact. Exhibits (charts, tables, maps and other graphics) are useful in reducing the amount of narrative required. Such exhibits should be technically accurate and of high quality. The adequacy of a DEIS, in the end, is measured by its functional usefulness in decision making, not by its size or amount of detail. Technical information and studies developed to analyze impacts are summarized in the document and/or incorporated by reference. These technical studies, which support the DEIS, are not environmental documents under NEPA; however, they are a part of the environmental compliance record and are public documents. For information on alternative development for an EIS, please see the Alternatives Analysis Frequently Asked Questions.

Under specific circumstances, however, 23 USC 139 allows the lead agencies to develop the alternative that has been officially identified as the preferred alternative to a higher level of detail than the others. 23 USC 139 permits the preferred alternative to be developed to a higher level of detail than the other alternatives for only the following reasons: 1) to facilitate the development of mitigation measures, or 2) to facilitate concurrent compliance with other applicable environmental laws. Refer to the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance section on Preferred Alternative for a detailed discussion of how and why to use this provision and when an alternative may be officially identified early so that it may be developed to a higher level of detail in the DEIS. USDOT anticipates that most projects that use this provision of 23 USC 139 will continue to analyze all alternatives, included the officially identified preferred alternative, if there is one, to a similar degree in the DEIS and take the opportunity to develop the preferred alternative to a higher level after circulation of the DEIS while addressing comments and developing mitigation.

The Department's annotated NEPA-only EIS Outline specifies standard appendices that should be included in all EIS documents. These include:

  • Section 4(f) (where applicable)
  • Title VI Policy Statement
  • Summary of Relocation Benefits (where applicable)
  • Glossary of Technical Terms
  • Minimization and/or Mitigation Summary (this can be detached and used separately during project implementation)
  • List of Acronyms

Section 4(f) Evaluation (Department of Transportation Act of 1966)

If the EIS includes a Section 4(f) evaluation pursuant to the Department of Transportation Act of 1966, the EIS must be circulated to the appropriate agencies. Requirements for coordination of Section 4(f) documents are provided in 23 CFR 774.5 Guidance is also provided in FHWA’s Technical Advisory T6640.8A and in the SER, Volume I, Chapter 20.

When a programmatic Section 4(f) evaluation is used for the proposed project, this information must be included in the EIS along with identification of the resource(s) protected by Section 4(f). The avoidance alternatives evaluation required by Section 4(f) need not be repeated in the EIS. This evaluation would be part of the documentation supporting the applicability and findings of the programmatic document and is placed in the appendix.

INTERNAL REVIEW AND APPROVAL OF DRAFT EIS

The Department has an environmental quality control program under the NEPA Assignment. An important aspect of the quality control program is the NEPA Quality Control Review. The purpose of this review component is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. For additional information regarding the quality control program, please see the policy memo on Environmental Document Quality Control Program under the NEPA Assignment. See SER, Volume 1, Chapter 38, Quality Control Program for full details.

The EIS review and approval procedures have been revised to comply with the requirements of NEPA Assignment (23 USC 327).

DRAFT EIS CIRCULATION REQUIREMENTS

CEQ regulations (40 CFR 1503.1) require that after preparing a DEIS and before preparing an FEIS, the DEIS must be made available to the following entities or persons for comment (quantities are those specified in FHWA’s Technical Advisory T6640.8A):

  • Federal agencies with jurisdiction by law or special expertise
  • Appropriate state and local agencies
  • Indian Tribes (if a project will affect tribal lands or interests)
  • Any agency which has requested to receive statements on actions of the kind proposed
  • Applicant (if applicable)
  • Members of the public, including persons and/or organizations that may be interested or affected
  • Headquarters of the United States Environmental Protection Agency (U.S. EPA) in Washington, D.C. (electronic submittal-see below)
  • The appropriate U.S. EPA Regional Office (2 copies)
  • Headquarters of the Department of the Interior in Washington, D.C. (1 electronic copy OR 12 hard copies). For additional information, please see the U.S. Department of the Interior Environmental Distribution Requirements.

Also see the distribution list for joint documents in the SER Forms and Templates.

In addition to the list above, agencies are also required to file the draft document with the Governor’s Office of Planning and Research (OPR) State Clearinghouse (SCH), pursuant to Executive Order 12372 - Intergovernmental Review of Federal Programs . OPR’s State Clearinghouse Handbook (June 2012) describes submittal requirements for all environmental documents, whether prepared pursuant to CEQA or NEPA. OPR’s requirements call for submittal of at least 15 copies of a DEIS. For additional filing requirements that apply to environmental documents that are jointly prepared in compliance with both NEPA and CEQA, refer to the SER, Volume I, Chapter 37. Although OPR distributes copies of the draft document to state and local agencies, it is good practice to provide copies directly to agencies with permit or approval authority over the project. Registered mail copies legally confirm that the document was sent and received by jurisdictional agencies. Mailing receipts should be retained as a part of the project environmental file.

CEQA also requires electronic submittal of CEQA environmental documents to the SCH, if an electronic version is available. While NEPA documents such as EISs are technically not subject to this new state requirement unless they are jointly prepared in compliance with both NEPA and CEQA, it is highly recommended that all NEPA-only EISs submitted to SCH also be submitted electronically. See Chapter 37 for additional SCH related information.

The distribution list used to circulate the DEIS is incorporated into the DEIS itself. Supporting documentation, such as the technical studies, generally is not circulated with the DEIS. However, both the DEIS and all technical studies and information referenced in the DEIS must be available for inspection by the public, normally in the Department's District office or the local agency office.

FHWA also requires that the document be sent to any state or federal land management entities that may be significantly affected by the proposed action (223 CFR 771.123).

The Department circulates the DEIS. FHWA and U.S. EPA regulations state that the DEIS must be made available to the public and transmitted to agencies no later than the time it is filed with U.S. EPA for publication of the Notice of Availability in the Federal Register.

For projects under NEPA Assignment, the Department must transmit the DEIS to U.S. EPA. U.S. EPA will prepare a Notice of Availability for publication in the Federal Register. All submissions to U.S. EPA must be made electronically via U.S. EPA's "e-NEPA system." Each District has designated staff with access to the e-NEPA system for document submittals. Please contact your HQ Environmental Coordinator for more information. In addition to the e-NEPA submission, two hard copies must be sent to the appropriate U.S. EPA regional office.

For projects where FHWA is the lead agency under NEPA, the Department must submit the DEIS to FHWA for submittal to U.S. EPA.

The Notice of Availability published in the Federal Register establishes a period of not less than 45 days for the return of comments on the DEIS. 23 USC 139 mandates that the comment period for a DEIS not exceed 60 days unless a different comment period is established by agreement of the lead agencies, the project sponsor, and all participating agencies. The Notice of Availability must indicate to whom and where comments are to be sent.

FHWA regulations require that one or more public hearings or the opportunity for hearing(s) be held for any project that requires significant amounts of right-of-way, substantially changes the layout or functions of connecting roadways or of the facility being improved, has a substantial adverse impact on abutting property, otherwise has a significant social, economic, environmental or any other effect, or for which the FHWA determines that a public hearing is in the public interest. Normally, a public hearing will be held when a DEIS is prepared. Where the Department determines it is advisable to hold a public hearing to provide information and take comment on the DEIS, the draft document must be made available for a minimum of 15 days prior to the hearing, and the DEIS must be available at the hearing. The hearing must be publicly noticed. A "Notice of Opportunity" for a public hearing may be used if the project is noncontroversial and a hearing request is unlikely. This can be determined by analysis of comments received from the public or local agencies or through prior contacts and information meetings. If no hearing is held, a notice must be placed in a newspaper advising that the DEIS is available for review, and informing the public regarding how copies may be obtained and where comments are to be sent. Notice requirements are outlined in 23 CFR 771.111(h) and in 23 CFR 771.123(h). Additional guidance on notices may be found in the Project Development Procedures Manual, Chapter 11, Article 2, “Public Notices and Publicity.” Sample notices may be found in the Project Development Procedures Manual, Appendix HH.

CONSIDERATION OF COMMENTS RECEIVED ON DRAFT EIS

The FEIS must contain the lead agency’s responses to comments received and must discuss any responsible opposing view which was not adequately addressed in the DEIS, and must indicate the agency’s response to the issues raised (40 CFR 1502.9(b)). The FEIS should include a copy of the substantive comments from the U.S. Secretary of Transportation, each cooperating agency, each participating agency, and other commenters on the DEIS. Where the response is voluminous, the comments may be summarized. An appropriate response should be provided to each substantive comment received. In addition, the FEIS should summarize the substantive comments made at any public hearing(s) or other public involvement activities, discuss the consideration given to the issues raised, and provide sufficient information to support the position taken (FHWA’s Technical Advisory T6640.8A).

Responses to comments can include modifying alternatives; developing, supplementing or modifying analysis; making factual corrections; and/or evaluating alternatives not previously considered. If the latter case occurs and comments raise an entirely new alternative which has not been previously considered by the agency, and which the agency determines should be considered, then the lead agency must prepare a supplement to the DEIS (see “Supplemental EIS,” below).

The lead agency may also explain why it does not consider a comment to warrant response. In this case the agency must cite the sources, authorities or reasons which support its position and, if appropriate, indicate the circumstances that would trigger agency reappraisal. It should be noted that comments received from USDOT (Washington, D.C.) are included in the final document along with any response.

PREPARING A FINAL ENVIRONMENTAL IMPACT STATEMENT (FEIS)

FHWA has provided detailed regulations (23 CFR 771.12 ) and guidance (Technical Advisory T 6640.8A ) on the preparation and circulation of an FEIS. The EIR/EIS annotated outline and the NEPA-only EIS outline meet all the FHWA requirements. An FEIS is prepared after comments on the DEIS have been received and reviewed. At a minimum, an FEIS must include both comments and the lead agency’s response (see above, “Consideration of Comments Received”). The FEIS also must identify the preferred alternative, discuss the basis for preferring it, and evaluate all reasonable alternatives considered. It must summarize the public involvement process and describe the mitigation measures that are to be incorporated into the proposed action. The FEIS also should document compliance with all applicable environmental laws and Executive Orders.

If interagency disagreement occurs on a proposed action, every reasonable effort must be made to resolve the dispute(s) prior to the issuance of an FEIS. If substantial issues remain unresolved, the FEIS must identify the disputed issues and document the consultations and other efforts that were made to resolve them.

FHWA’s Technical Advisory T6640.8A notes that the distribution list in the FEIS should include those who submitted comments on the DEIS and those receiving a copy of the FEIS.

INTERNAL REVIEW AND APPROVAL OF FINAL EIS

The Department has an environmental quality control program under NEPA Assignment. An important aspect to the quality control program is the addition of a NEPA Quality Control Review. The purpose of this review component is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. The text below summarizes each of the quality control reviews that must take place. For additional information regarding, the quality control program, please see SER, Volume 1, Chapter 38, Quality Control Program for full details.

Please see also the EIS review and approval procedures that comply with NEPA Assignment (23 USC 327) requirements.

FINAL EIS CIRCULATION REQUIREMENTS

The FEIS must be made available to the following:

  • Federal agencies with jurisdiction by law or special expertise
  • Appropriate state and local agencies
  • Indian Tribes (if a project will affect tribal lands or interests)
  • Members of the public including persons and/or organizations that may be interested or affected.
  • State and federal land managing agencies (if a project will affect them)
  • All federal, state and local agencies, private organization and members of the public who provided substantive comment on the DEIS
  • All agencies, organizations of members of the public who request a copy
  • Headquarters of the United States Environmental Protection Agency (EPA) (electronic submittal-see below)
  • The appropriate EPA Regional Office (2 copies)
  • Headquarters of the Department of the Interior (1 electronic copy OR 9 hard copies)-For additional information, please see the U.S. Department of the Interior Environmental Distribution Requirements. exit ct

Also see the distribution list for joint documents in the SER, Volume I, Chapter 37.

It is not necessary to send copies of the FEIS to the Governor’s Office of Planning and Research State Clearinghouse; that is only required for the DEIS (see above). A Notice of Availability for an FEIS must be published in a local newspaper. Download a template of a sample language for NOA. The FEIS must be available at the Department District Office, as well as through accessible public institutions such as local government offices, libraries and schools.

The Department circulates the FEIS. The FEIS must be available to the public for 30 days prior to the agency taking any action on the project. FHWA and U.S. EPA regulations state that the FEIS must be made available to the public and transmitted to agencies no later than the time it is filed with U.S. EPA for publication of the Notice of Availability in the Federal Register. This 30-day waiting period commences with the date of publication in the Federal Register and allows federal agencies that find the project environmentally unsatisfactory to file with the CEQ.

For projects under NEPA Assignment, the Department must transmit the FEIS to U.S. EPA. U.S. EPA will prepare a Notice of Availability for publication in the Federal Register. All submissions to U.S. EPA must be made electronically via U.S. EPA's "e-NEPA system." Each District has designated staff with access to the e-NEPA system for document submittals. Please contact your HQ Environmental Coordinator for more information. In addition to the e-NEPA submission, two hard copies must be sent to the appropriate U.S. EPA regional office.

For projects where FHWA is the lead agency under NEPA, the Department must submit the FEIS to FHWA for submittal to U.S. EPA.

The California Transportation Commission (CTC) does not review or approve NEPA-only draft or final documents.

RECORD OF DECISION (ROD)

After preparing an FEIS, and at the time the lead agency makes a decision to select a project alternative, the agency must prepare a Record of Decision (ROD) explaining its course of action (40 CFR 1505.2 ). The ROD represents the agency’s final decision regarding the project. It is a judicially enforceable document. Please see SER, Volume 1, Chapter 38 for details on processing and approving the ROD under the NEPA Assignment (23 USC 327).

The ROD must briefly describe each alternative and explain the balancing of values that formed the basis for the selection of the alternative. The ROD must identify the environmentally preferable alternative(s) (see CEQ’s Forty Questions , question number 6 ). Where the selected alternative is other than the environmentally preferable alternative, the ROD should clearly state the reasons for not selecting the environmentally preferable alternative. The values that were important factors in the decision-making process should be clearly stated along with the reasons some values were considered more important than others.

The ROD should also summarize any mitigation measures that will be incorporated into the project to compensate for identified significant impacts and any measures adopted to otherwise minimize environmental harm. The ROD also must describe any monitoring or enforcement program adopted for specific mitigation measures. If a Section 4(f) Evaluation is involved, the ROD should include a summary of the Section 4(f) Evaluation outlined in 23 CFR 774.9 .

For projects under NEPA Assignment, at the time the FEIS is prepared, a draft of the Record of Decision (ROD) may be prepared, but the ROD cannot be finalized and approved by the Department District Director until comments on the FEIS have been received and responses have been prepared. The Deputy District Director for Environmental and the HQ District Environmental Coordinator jointly recommend to the District Director that the EIS title page or the ROD is ready for signature. The District Director signs the EIS or ROD. This signature may not be delegated. All substantive comments received on the FEIS should be identified and given appropriate response in the ROD.

Until a ROD has been signed, no further approvals may be given for the project except for administrative activities taken to secure further project funding and other activities consistent with 40 CFR 1506.1. The Department must complete and sign a Record of Decision (ROD) no sooner than 30 days after publication of the FEIS notice in the Federal Register or 90 days after publication of a notice for the DEIS, whichever is later. Because a ROD is an environmental document, it must be made publicly available, but its publication in the Federal Register is not required by law or regulation. CEQ, however, encourages the publication of the ROD and FHWA typically submits RODs for publication in the Federal Register. Note: Even under NEPA Assignment (23 USC 327), FHWA is the entity that publishes the Federal Register notice. It is advisable to allow sufficient time in the project schedule for this publication. The FHWA Division Office can assist in setting a realistic schedule for publication.

23 CFR 771.12 and FHWA Technical Advisory T 6640 8A provide additional guidance on the preparation and content of a ROD.

STATUTE OF LIMITATIONS

23 USC 139 established a 180-day statute of limitations (SOL) on claims against USDOT and other federal agencies for certain environmental and other approval actions if certain circumstances apply (23 CFR 771.139 ). The enactment of MAP-21 revised this to a 150-day statute of limitations. The action must be related to a transportation project (as defined in 23 USC 139) and a Statute of Limitations Notice must be published in the Federal Register announcing that a federal agency has taken an action on a transportation project that is final under the federal law pursuant to which the action was taken. Note: Even under the NEPA Assignment (23 USC 327), FHWA is the entity that publishes the Federal Register notice. If a SOL notice is not published in the Federal Register, the normal 6-year period for claims applies. All federal agency decisions, permits, and approvals must be final before the SOL notice can be published. The statute of limitations provision covers all levels of NEPA documentation, although FHWA anticipates that it will be used primarily for EISs and EA/FONSIs but rarely for CEs. FHWA will file the SOL notice in the same manner as it files Notices of Intent. (NOIs and SOL notices are not submitted to EPA for publication in the Federal Register.)

Download a SER template for a Notice of Statute of Limitations on Claims.

See the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance Statute of Limitations and its Appendix E for questions and answers as well as formats to cover various situations.

SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT

Whenever there are changes, new information, or new circumstances on a project for which a draft or final EIS has been prepared, a determination must be made as to whether these result in significant environmental impacts that were not evaluated in the EIS. Where there is uncertainty of the significance of the new impacts, the Department will develop appropriate environmental studies to assess the impacts of the changes, new information or new circumstances. Refer to Chapter 33, Reevaluation. If the Department determines that changes to the proposed action or new information or circumstances would result in significant environmental impacts not evaluated in the EIS, a supplemental EIS shall be prepared.

The most recently distributed version of a DEIS, FEIS or supplemental EIS may be supplemented at any time. A supplement is to be developed using the same process and format (i.e., DEIS, FEIS, and ROD) as an original EIS, except that scoping is not required. The supplemental EIS should provide sufficient information to briefly describe the proposed action, the reason(s) why a supplement is being prepared, and the status of the previous draft or final EIS. The supplement needs to address only those changes or new information that are the basis for preparing the supplement and were not addressed in the previous EIS. Portions of the original EIS that are unchanged and are still valid may be briefly summarized and referenced. New environmental requirements need to be addressed in the supplemental EIS to the extent that they apply to the portion of the project being evaluated and are relevant to the subject of the supplement. The supplement should summarize the results of any reevaluations that have been performed for the proposed action. By this inclusion, the supplement will reflect an up-to-date consideration of the entire proposed action and its effects on the environment. When a previous EIS is referenced, the supplemental EIS transmittal letter should indicate that copies of the original (draft or final) EIS are available and will be provided to all requesting parties.

If the supplemental EIS involves a reassessment of more than a limited portion of the overall action, the Department shall suspend any activities that would have an adverse environmental impact or limit the choice of reasonable alternatives, until the supplemental EIS is completed. If the supplemental EIS addresses issues of limited scope, such as the extent of proposed mitigation or the evaluation of location or design variations for a limited portion of the overall project, for any activity not directly affected by the supplement, the preparation of a supplement shall not necessarily 1) prevent the granting of new approvals; 2) require the withdrawal of previous approvals; or 3) require the suspension of project activities.

If, based upon the studies, the Department determines that a supplemental EIS is not necessary, this determination must be documented using the NEPA/CEQA Re-validation form. Following a DEIS, the determination should be noted in the FEIS; following approval of an FEIS, it may be noted in the project file.

A supplemental EIS will not be necessary where 1) the changes to the proposed action, new information or new circumstances result in a lessening of adverse environmental impacts evaluated in the EIS without causing other significant environmental impacts that were not evaluated in the EIS; or 2) FHWA decides to approve an alternative fully evaluated in an approved FEIS but not identified as the preferred alternative. In the latter case, a revised ROD shall be prepared and circulated.

A supplemental EIS is distributed in the same manner as a FEIS and a Notice of Availability is published in the Federal Register by EPA.

 

(Last content update:10/18/12 mcc, MCS, 09/22/12: LK, GMapp)