The 1978 CEQ regulations (40 CFR 1501) introduced the concepts of lead agency and cooperating agency. SAFETEA-LU Section 6002 introduced the concept of participating agencies. The purpose of these designations is to assist with early coordination and faster and better processing of the NEPA environmental evaluation and documentation.
The lead agency has the responsibility to supervise the preparation of the environmental document when more than one federal agency is called upon to take action on the same project. Federal, state and/or local agencies, including at least one federal agency, may act as joint lead agencies. FHWA is the federal lead agency when federal transportation funding is used for the project. Projects that are developed under the SAFETEA-LU environmental review process (typically only EIS documents) may have joint lead agencies. TDOT as the project sponsor for transportation projects in Tennessee receiving federal-aid funds is a joint lead agency.
The lead agency should request all other federal agencies that have an action on the project, including permitting, to become cooperating agencies. Cooperating agencies are those governmental agencies specifically requested by the lead agency to participate during the environmental evaluation process. FHWA's NEPA regulations (23 CFR 771.111(d)) require that those federal agencies with jurisdiction by law or special expertise be requested to be cooperating agencies for EAs and EISs. Examples of agencies requested to be cooperating agencies are:
Potential cooperating agencies may also include any other federal agency with special interest or expertise needed for the specific project, Indian tribes when Indian reservation land is involved, or local governments.
As discussed above, the early coordination phase is the time to identify potential cooperating agencies and request their participation as a cooperating agency under NEPA for the subject project. Generally, TDOT decides on FHWA's behalf which agencies should be invited to be cooperating agencies for a specific project. A separate cooperating agency letter is prepared by the Environmental Division planner, as a part of initial coordination. Through the letter, TDOT and FHWA request the agency to serve as a cooperating agency for the project. A Federal agency that declines to be a cooperating agency for a specific project must respond in writing.
The role of a cooperating agency is not necessarily to perform the analysis or provide any substantive narrative for the NEPA documentation, although the agency may in rare circumstances choose to provide their expertise by contributing to specific sections of the document. At the beginning of their involvement, the expectations and responsibilities of a cooperating agency should be clearly understood by the agency, FHWA and TDOT. When a cooperating agency has jurisdiction by law, that agency's role should be acknowledged in the environmental documentation. While a cooperating agency does not have to agree with every word in the environmental documentation, it should be in a position at the end of the process to state that the final document fulfills that agency's responsibilities under NEPA (FHWA, August 21, 1992, Transportation Decision Making: Project Development and Documentation Overview, Chapter II Environmental Documents, Early Coordination, page 4 of 11).
SAFETEA-LU (Section 6002) created a new category of agencies to participate in the environmental review process for EISs. During the early planning for the EIS, TDOT and FHWA must identify Federal and non-Federal governmental agencies that may have an interest in the project. These participating agencies are formally invited to participate in the environmental review of the project. One or more of these agencies may also be a cooperating agency for the project. Cooperating agencies are, by definition, participating agencies, but not all participating agencies are cooperating agencies. Cooperating agencies have a slightly higher degree of authority, responsibility and involvement in the environmental review process. Cooperating agencies are agencies with jurisdiction by law or with special expertise, while participating agencies are those with an interest in the project. Non-governmental organizations and private entities cannot serve as participating agencies.
Designation as a participating agency does not imply that the agency either supports the proposal or has any special expertise with respect to evaluation of the project.
The role of a participating agency is to identify, as early as practicable, any issues of concern regarding the project's potential environmental or socioeconomic impacts that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project. Specifically, participating agencies are asked to:
If an agency chooses not to be a participating agency for this project, it should respond back to TDOT stating the reason for declining the invitation. Pursuant to SAFETEA-LU Section 6002, any Federal Agency that chooses to decline the invitation must specifically state that the agency:
If a Federal agency does not respond that they do not wish to be a participating agency, then TDOT and FHWA will treat them as a participating agency, until such time that the Federal agency specifically declines.
A non-Federal agency (state, local or Tribal) must respond affirmatively to the invitation in order to be designated as a participating agency. If the non-Federal agency fails to respond or declines the invitation, regardless of the reasons for its declination, the agency should not be considered a participating agency.
The participating agencies will have defined opportunities for meaningful participation in the decision-making process for the project. Specific opportunities are provided via the TESA process for the four key agency concurrence points (defined below in Section 4.5 ). Participating agencies that are not a part of the formal TESA process will receive Purpose and Need and Study Area, and the Alternatives to be
Considered packages, but will not be expected to concur with any decisions included within the package. Non-TESA participating agencies will instead be requested to provide input and/or comments on any issues or concerns. Non-TESA participating agencies will receive copies of the approved EA or DEIS once the document is approved by FHWA for circulation.