Cooperating Agencies: one of WEP's illegalities
November 2005 WEP Project Update and Two-Month Forecast from ODOT
"Public Involvement. In response to a request from BLM, FHWA intends to issue a second Notice of Intent (NOI) to publish a SFEIS, because BLM was not a Federal cooperating agency on the project when the prior NOI was issued (1997). Issuance of the NOI is pending resolution of an agreement between ODOT and USACE on how best to proceed with the 404 wetland fill permit process."
This statement does not fulfill the legal requirements for "cooperating agencies" in Environmental Impact Statement processes to be part of the "scoping" process at the start of the EIS. This page describes some of the legalese behind ODOT / FHWA's refusal to follow Federal environmental law about cooperating agencies.
Cooperating Agencies
Date: Tue, 07 May 2002
To: Mark.H.WIGG@odot.state.or.us (WEP project manager at that time)
From: Mark Robinowitz
Subject: RE: NEPA and "cooperating agencies"
Cc: Thomas.B.BOYATT@odot.state.or.us, Robert.PIRRIE@odot.state.or.us,
Karl.D.WIESEKE@odot.state.or.us
Thank you for your questions. You obviously have knowledge of the NEPA process and access to NEPA guidance documents. Please refer to 40 CFR 1506.3 Adoption. In summary, it states that an agency may adopt a draft EIS, final EIS or parts of these documents and that the adopting agency is not required to recirculate the document. The BLM and FHWA have agreed on a process whereby the SFEIS for the West Eugene Parkway (WEP) may be used by both agencies. You may also want to refer to FHWA's Environmental Guidebook and its guidance on cooperating agencies, specifically Question 12. In summary, it states that a cooperating agency may adopt the lead agencies NEPA documents and issue its own Record of Decision.
40 CFR § 1506.3 Adoption.
(a) An agency may adopt a Federal draft or final environmental impact statement or portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under these regulations.
(b) If the actions covered by the original environmental impact statement and the proposed action are substantially the same, the agency adopting another agency’s statement is not required to recirculate it except as a final statement. Otherwise the adopting agency shall treat the statement as a draft and recirculate it (except as provided in paragraph (c) of this section).
The original EIS is substantially different from the proposed action that is obviously the Preferred Alternative in the upcoming SFEIS in several ways. The 1997 SDEIS did not mention the Land and Water Conservation Fund issues, for example. The removal of the 6th / 7th interchange, an option rejected in the original (1985) DEIS, needs to be examined. Logical termini issues (the purpose and need states the WEP is needed to connect to I-105 / I-5) need to be examined. The new information about Peak Oil must be factored into traffic and growth projections.
The 1997 SDEIS also did not address the issues of “logical terminus” for the eastern and western termini. See "Case 4" in the FHWA “The Development of Logical Project Termini” report, also at the FHWA Environmental Guidebook. The SDEIS also stated that congestion, with the WEP, at Chambers / 6th and 7th would be unacceptable - therefore, the 6th/7th St intersection upgrade / widening project should be considered a "connected action."
(c) A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.
This seems to state that an EIS does not need to be recirculated by the cooperating agency. However, it also does not negate the requirement at 40 CFR 1501.6 (b)(2) that cooperating agencies should “participate in the scoping process.”
40 CFR § 1508.5 Cooperating agency.
“Cooperating agency” means any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) for legislation or other major Federal action significantly affecting the quality of the human environment. The selection and responsibilities of a cooperating agency are described in § 1501.6. A State or local agency Of similar qualifications or, when the effects are on a reservation, an Indian Tribe, may by agreement with the lead agency become a cooperating agency.
40 CFR § 1501.6 Cooperating agencies.
The purpose of this section is to emphasize agency cooperation early in the NEPA process. Upon request of the lead agency, any other Federal agency which has jurisdiction by law shall be a cooperating agency. In addition any other Federal agency which has special expertise with respect to any environmental issue, which should be addressed in the statement may be a cooperating agency upon request of the lead agency. An agency may request the lead agency to designate it a cooperating agency.
(a) The lead agency shall:
(1) Request the participation of each cooperating agency in the NEPA process at the earliest possible time.
(2) Use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency.
(3) Meet with a cooperating agency at the latter’s request.(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest possible time.
(2) Participate in the scoping process (described below in § 1501.7)
(3) Assume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the environmental impact statement concerning which the cooperating agency has special expertise.
(4) Make available staff support at the lead agency’s request to enhance the latter’s interdisciplinary capability.
(5) Normally use its own funds. The lead agency shall, to the extent available funds permit, fund those major activities or analyses it requests from cooperating agencies. Potential lead agencies shall include such funding requirements in their budget requests.
(6) A cooperating agency may in response to a lead agency’s request for assistance in preparing the environmental impact statement (described in paragraph (b) (3), (4), or (5) of this section) reply that other program commitments preclude any involvement or the degree of involvement requested in the action that is the subject of the environmental impact statement. A copy of this reply shall be submitted to the Council.
| BLM and
Army Corps of Engineers cannot use the SFEIS for their decision Cooperating Agencies MUST participate in “Scoping” and a Draft EIS |
The BLM is now a “Cooperating Agency” in the FHWA/ODOT Environmental Impact Statement process, and hopes to use the Supplemental Final EIS as the legal basis for its own “Record of Decision” to “dispose” of the LWCF properties or grant a waiver for ODOT to use these lands. However, an EIS process must start with a “scoping” process to determine the “purpose and need” and range of acceptable alternatives, followed by a draft EIS with a public hearing and comment period before proceeding to a Final document. If the BLM merely joins the FHWA/ODOT EIS process at this late stage in the process, there would be no opportunity for BLM to follow the procedures in the National Environmental Policy Act. This is one of the many reasons why a new Draft EIS needs to be completed for the highway proposal before a Final EIS and Record of Decision can be issued.
The 1997 SDEIS did not mention the legal issues surrounding LWCF purchased properties. The new DEIS should adequately disclose this issue, and how the WETLANDS alternative would avoid or minimize the use of LWCF purchased properties.
This waiver would set a national precedent for treatment of LWCF lands, and the BLM must complete a NEPA process (scoping, draft EIS, final EIS) before making any irreversible decisions.
The BLM has been brought into the Supplemental Final EIS for the WEP. NEPA’s implementing regulations state that “cooperating agencies” (in this case, BLM) need to be brought in at the earliest possible time, and should participate in the “scoping” process. The scoping for the WEP was performed in 1985, before the BLM owned anything in the west Eugene wetlands. So far, the BLM has not had any public involvement to discuss permitting the parkway through its parklands – whether by a land exchange or waiver or any other process. The BLM plans to use the FHWA / ODOT EIS as part of its decision making process, yet that document excluded the No Build and other alternatives before BLM became involved in the WEP issues. The 1997 SDEIS did not include any discussion of the impacts of a BLM land exchange or waiver, LWCF impacts, or the mitigation for BLM lands (as if any existed in west Eugene to compensate for the impact of the highway), so a new Draft EIS needs to be prepared before the BLM can make any decisions about the WEP.
While it is true that the BLM could use a FHWA/ODOT EIS as the basis for their Record of Decision to give up lands bought with LWCF money, without a new DEIS, there would not be any “draft” phase and comment period for the citizenry to discuss BLM’s proposed action. This new EIS could analyze the full scope of the WEP, including the indirect and cumulative environmental, social and traffic impacts, and include the required “No Build” alternative for not using BLM lands purchased with LWCF money. The No-Build alternative was dismissed in the 1990 Final EIS, before the West Eugene Wetlands Plan was adopted – so the BLM cannot use the pending SFEIS as the basis for their decision on the land exchange if they want to comply with NEPA requirements that a “No Action” alternative be considered.
The inclusion of BLM as a"Cooperating Agency" is reason for a new Draft EIS that includes "scoping" that the BLM can participate in before a Final EIS and Record of Decision are published. Ideally, the new document should be a DEIS, since an SDEIS is not required to include scoping – and NEPA requires Cooperating Agencies to participate in scoping of alternatives. This scoping should include alternatives similar to the LUTRAQ alternative – such as the WETLANDS / TREES alternative – since ODOT chose this approach as reasonable in the Portland Western Bypass study. [West Eugene Transportation, Land and Neighborhood Design Solutions / Transportation, Ecology, Energy, Sustainability]
The FHWA memo "Revised Guidance on Cooperating Agencies," www.fhwa.dot.gov/environment/guidebook/vol2/doc11a.pdf states that Cooperating agencies should
"Attend scoping and coordinating meetings ...
"provide meaningful and early input ...
"Participate in joint public involvement activities." (p. 8)
Since that scoping process preceded the BLM's acquisition of LWCF public lands in west Eugene, there is no opportunity for the public to comment on their proposal to "dispose" of these lands unless they have a draft NEPA document with their own public comment period. Since they are a "cooperating agency," the only way that the BLM could facilitate public involvement is a new DEIS.
The BLM has never participated in a "joint public involvement activity" with ODOT and FHWA - with the possible exception of the West Eugene Charette (June 2001). But that meeting did not qualify as a public involvement activity, had no public comment period, no public notice or notice of intent, and only token participation from non-governmental organizations. Furthermore, that intergovernmental meeting concluded with ODOT announcing that it would select "No Build" for the WEP EIS process!
Question 12 merely states that the cooperating agency may use the FHWA’s EIS to justify its own Record of Decision. It does not state that the cooperating agency is exempted from scoping, a draft NEPA document, and/or public comments before that Final EIS is published.
The Council on Environmental Quality "40 Questions" explain the implementing regulations for NEPA. Question 14a, "Rights and Responsibilities of Lead and Cooperating Agencies," states:
"Cooperating agencies must assume responsibility for the development of information and the preparation of environmental analyses at the request of the lead agency. Section 1501.6(b)(3). Cooperating agencies are now required by Section 1501.6 to devote staff resources that were normally primarily used to critique or comment on the Draft EIS after its preparation, much earlier in the NEPA process – primarily at the scoping and Draft EIS preparation stages."
Bringing the BLM on-board as a Cooperating Agency a few years after the SDEIS precludes their ability to participate in the scoping and Draft EIS preparation stages.
Question 30 Adoption of EISs. (from Council on Environmental Quality)
Q. When a cooperating agency with jurisdiction by law intends to adopt a lead agency's EIS and it is not satisfied with the adequacy of the document, may the cooperating agency adopt only the part of the EIS with which it is satisfied? If so, would a cooperating agency with jurisdiction by law have to prepare a separate EIS or EIS supplement covering the areas of disagreement with the lead agency?
A. Generally, a cooperating agency may adopt a lead agency’s EIS without recirculating it if it concludes that its NEPA requirements and its comments and suggestions have been satisfied. Section 1506.3(a), (c). If necessary, a cooperating agency may adopt only a portion of the lead agency’s EIS and may reject that part of the EIS with which it disagrees, stating publicly why it did so. Section 1506.3(a).
A cooperating agency with jurisdiction by law (e.g., an agency with independent legal responsibilities with respect to the proposal) has an independent legal obligation to comply with NEPA. Therefore, if the cooperating agency determines that the EIS is wrong or inadequate, it must prepare a supplement to the EIS, replacing or adding any needed information, and must circulate the supplement as a draft for public and agency review and comment. A final supplemental EIS would be required before the agency could take action. The adopted portions of the lead agency EIS should be circulated with the supplement. Section 1506.3(b). A cooperating agency with jurisdiction by law will have to prepare its own Record of Decision for its action, in which it must explain how it reached its conclusions. Each agency should explain how and why its conclusions differ, if that is the case, from those of other agencies which issued their Records of Decision earlier.
"We agree that BLM should be a formal cooperator in the preparation of the Supplemental Final EIS. Formal cooperator status will enable BLM to utilize the environmental analysis for decision-making purposes (ie. the public interest determination) without requiring additional public review periods. This procedural opportunity is available providing that the Supplemental Final EIS complies with BLM and Department of Interior requirements, which includes, among other things, a 60-day public comment period ... BLM cannot adopt, co-sign, or approve another agency’s Record of Decision (ROD), however, and must also prepare its own ROD on EISs where we have cooperator status. Other requirements for BLM to cooperate in another agency’s EIS are outlined in BLM Manual H-1790-1 - National Environmental Policy Act Handbook."
BLM Oct 3, 2000 letter
BLM August 18, 2000 letter to ODOT:
"A No Action Alternative on the construction phase proposed for crossing the BLM portion must be considered and adverse and beneficial impacts disclosed relative to that potential choice ... Another option may be tiering to or supplementing the previous EIS versions where that was presented as an alternative [the "EPA alternative"] and summarizing the impacts presented there."
".... As is indicated in the SFEIS, an application for right-of-way from ODOT would be subject to an additional NEPA review process. It should be noted that by using Cooperating Agency procedures this separate NEPA review process would not be necessary assuming an adequate EIS level analysis was completed and the public was given opportunity to influence the Record of Decision through administrative procedures . BLM would use the analysis to make its decision and issue a separate Record of Decision regarding the Bureau of Land Management lands within the WEP proposal. The BLM ROD should be issued concurrently and could be enclosed in the ODOT ROD 'package.' Our right-of-way authorization decision should be subject to appeal under 43 CFR Part 4 and the BLM ROD subject to protest as indicated above."
"additional public involvement is likely needed to assure the public has the opportunity to review the new BLM information to be added in the SFEIS and be aware that BLM lands would be involved and have had an opportunity to influence this decision. ... A Federal Register Notice, Notice of Intent (ROI) and newspaper notice would be essential, and provide for formal notice of this additional scoping of BLM issues. Public meetings or field tours are optional, but should be offered. ...
"It would be advantageous if the amendment to the West Eugene Wetlands plan in the SFEIS was more obviously and procedurally connected to BLM's need to adopt any amendment to the WEW plan before approval of the Parkway. If that were done, the approval of the parkway project would be a more direct and connected action to the 'plan amendment' and the resulting decision would be subject to protest to the director under 43 CFR 1610.5-2, rather than an implementation plan decision which would be appealable to IBLA under 43 CFR Part 4. Using the planning process however has a few more procedural requirements, including a 90 day comment period on the draft SFEIS. It needs to be clear which procedural road we intend to take at the beginning of the process ... A plan amendment type process needs the Notice of Intent (NOI) to specify the process and comply with 43 CFR 1610.2"