§ 771.111 - Early coordination, public involvement, and project development.

§ 771.111 Early coordination, public involvement, and project development.

(a)

(1) Early coordination with appropriate agencies and the public aids in determining the type of environmental review documents an action requires, the scope of the document, the level of analysis, and related environmental requirements. This involves the exchange of information from the inception of a proposal for action to preparation of the environmental review documents. These activities contribute to reducing or eliminating delay, duplicative processes, and conflict, including by incorporating planning outcomes that have been reviewed by agencies and Indian Tribal partners in project development.

(2)

(i) The information and results produced by or in support of the transportation planning process may be incorporated into environmental review documents in accordance with 40 CFR parts 1500 through 1508, 23 CFR part 450, 23 CFR part 450 Appendix A, or 23 U.S.C. 139(f), 168, or 169, as applicable.

(ii) The planning process described in paragraph (a)(2)(i) of this section may include mitigation actions consistent with a programmatic mitigation plan developed pursuant to 23 U.S.C. 169 or from a programmatic mitigation plan developed outside of that framework.

(3) Applicants intending to apply for funds or request Administration action should notify the Administration at the time that a project concept is identified. When requested, the Administration will advise the applicant, insofar as possible, of the probable class of action (see § 771.115) and related environmental laws and requirements and of the need for specific studies and findings

which

that would normally be developed

concurrently with

during the environmental review

documents.

(2) The information and results produced by, or in support of, the transportation planning process may be incorporated into environmental review documents in accordance with 40 CFR 1502.21, and 23 CFR 450.212(b) or 450.318(b). In addition, planning products may be adopted and used in accordance with 23 CFR 450.212(d) or 450.318(e), which implement 23 U.S.C. 168.

(b)

process. A lead agency, in consultation with participating agencies, must develop an environmental checklist, as appropriate, to assist in resource and agency identification.

(b)

(1) The Administration will identify the probable class of action as soon as sufficient information is available to identify the probable impacts of the action.

(2) For projects to be evaluated with an EIS, the Administration must respond in writing to a project sponsor's formal project notification within 45 days of receipt.

(c) When both the FHWA and , FRA, or FTA are jointly involved in the development of a projectan action, or when the FHWA, FRA, or FTA acts act as a joint lead agency with another Federal agency, a mutually acceptable process will be established on a case-by-case basis. A project sponsor may request the Secretary to designate the lead Federal agency when project elements fall within the expertise of multiple U.S. DOT agencies.

(d) During the early coordination process, the lead agencies may request invite other agencies having that may have an interest in the action to participate, and must . The lead agencies must, however, invite such agencies if the action is subject to the project development procedures in 23 U.S.C. 139 within 45 days from publication of the notice of intent.^[32] Agencies Any such agencies with special expertise concerning the action may also be invited to become cooperating agencies. Agencies Any such agencies with jurisdiction by law concerning the action must be requested invited to become cooperating agencies.

(e) Other States , and Federal land management entities , that may be significantly affected by the action or by any of the alternatives shall must be notified early and their views solicited by the applicant in cooperation with the Administration. The Administration will prepare a written evaluation of provide direction to the applicant on how to approach any significant unresolved issues and furnish it to the applicant for incorporation into the environmental assessment (EA) or draft EIS.

(f) In order to ensure meaningful evaluation of alternatives and to avoid commitments to transportation improvements before they are fully evaluated, the action evaluated in each EIS or finding of no significant impact (FONSI) shall

as early as possible during the environmental review process.

(f) Any action evaluated under NEPA as a categorical exclusion (CE), environmental assessment (EA), or environmental impact statement (EIS) must:

(1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

(2) Have independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and

(3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

(g) For major transportation actions, the tiering of EISs as discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate. The first tier EIS would focus on broad issues such as general location, mode choice, and areawide air quality and land use implications of the major alternatives. The second tier would address site-specific details on project impacts, costs, and mitigation measures.

(h) For the Federal-aid highway program:

(1) Each State must have procedures approved by the FHWA to carry out a public involvement/public hearing program pursuant to 23 U.S.C. 128 and 139 and CEQ regulationregulations.

(2) State public involvement/public hearing procedures must provide for:

(i) Coordination of public involvement activities and public hearings with the entire NEPA process. ;

(ii) Early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions. ;

(iii) One or more public hearings or the opportunity for hearing(s) to be held by the State highway agency at a convenient time and place for any Federal-aid project which 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 other effect, or for which the FHWA determines that a public hearing is in the public interest. ;

(iv) Reasonable notice to the public of either a public hearing or the opportunity for a public hearing. Such notice will indicate the availability of explanatory information. The notice shall must also provide information required to comply with public involvement requirements of other laws, Executive executive orders, and regulations. ;

(v) Explanation at the public hearing of the following information, as appropriate:

(A) The project's purpose, need, and consistency with the goals and objectives of any local urban planning,

(B) The project's alternatives , and major design features,

(C) The social, economic, environmental, and other impacts of the project,

(D) The relocation assistance program and the right-of-way acquisition process. , and

(E) The State highway agency's procedures for receiving both oral and written statements from the public. ;

(vi) Submission to the FHWA of a transcript of each public hearing and a certification that a required hearing or hearing opportunity was offered. The transcript will be accompanied by copies of all written statements from the public, both submitted at the public hearing or during an announced period after the public hearing. ;

(vii) An opportunity for public involvement in defining the purpose and need and the range of alternatives, for any action subject to the project development procedures in 23 U.S.C. 139. ; and

(viii) Public notice and an opportunity for public review and comment on a Section 4(f) de minimis impact finding, in accordance with 49 U.S.C. 303(d).^[4]

(3) Based on the reevaluation of project environmental documents required by § 771.129, the FHWA and the State highway agency will determine whether changes in the project or new information warrant additional public involvement.

(4) Approvals or acceptances of public involvement/public hearing procedures prior to the publication date of this regulation remain valid

23 CFR 774.5(b)(2)(i).

(i) Applicants for FRA programs or the FTA capital assistance in the FTA program:

(1) Achieve public participation on proposed projects actions through activities that engage the public, including public hearings, town meetings, and charettescharrettes, and seeking seek input from the public through the scoping process for the environmental review documentsprocess. Project milestones may be announced to the public using electronic or paper media (e.g., newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For projects actions requiring EISs, an early opportunity for public involvement in defining the purpose and need for the action and the range of alternatives must be provided, and a public hearing will be held during the circulation period of the draft EIS. For other projects that substantially affect the community or its public transportation service, an adequate opportunity for public review and comment must be provided.

(2) May participate in early scoping as long as enough project information is known so the public and other agencies can participate effectively. Early scoping constitutes initiation of NEPA scoping while local planning efforts to aid in establishing the purpose and need and in evaluating alternatives and impacts are underway. Notice of early scoping must be made to the public and other agencies. If early scoping is the start of the NEPA process, the early scoping notice must include language to that effect. After development of the proposed action at the conclusion of early scoping, FRA or FTA will publish the Notice notice of Intent intent if it is determined at that time that the proposed action requires an EIS. The Notice notice of Intent intent will establish a 30-day period for comments on the purpose and need, alternatives, and the alternativesscope of the NEPA analysis.

(3) Are encouraged to post and distribute materials related to the environmental review process, including but not limited to, NEPA environmental documents (e.g., EAs and EISs), environmental studies (e.g., technical reports), public meeting announcements, and meeting minutes, through publicly-accessible electronic means, including project Web siteswebsites. Applicants are encouraged to should keep these materials available to the public electronically until the project is constructed and open for operations.

(4) Are encouraged to Should post all findings of no significant impact (FONSIs), combined final environmental impact statements and (final EISs)/records of decision (RODs), and RODs on a project Web site website until the project is constructed and open for operation.

(j) Information on the FTA FHWA environmental process may be obtained from: FHWA Director, Office of Human and Natural EnvironmentProject Development and Environmental Review, Federal Transit Highway Administration, Washington, DC 20590, or www.fhwa.dot.gov. Information on the FHWA FRA environmental process may be obtained from: Director, Office of Project Development and Environmental Review, Federal Highway FRA Chief, Environmental and Corridor Planning Division, Office of Program Delivery, Federal Railroad Administration, Washington, DC 20590.

[52 FR 32660, Aug. 28, 1987, as amended at 70 FR 24469, May 9, 2005; 74 FR 12528, Mar. 24, 2009; 78 FR 8982, Feb. 7, 2013; 81 FR 34164, May 27, 2016]

, or www.fra.dot.gov. Information on the FTA environmental process may be obtained from: FTA Director, Office of Environmental Programs, Federal Transit Administration, Washington, DC 20590 or www.fta.dot.gov.

Footnotes - 771.111

^[

3

^2] The

FHWA and FTA have developed

Administration has guidance on 23 U.S.C.

Section

139

titled “SAFETEA-LU Environmental Review Process: Final Guidance,” November 15, 2006, and

available at http://www.fhwa.dot.gov or in hard copy upon request.

^[4] The FHWA and FTA have developed guidance on Section 4(f) de minimis impact findings titled “Guidance for Determining De Minimis Impacts to Section 4(f) Resources,” December 13, 2005, which is available at http://www.fhwa.dot.gov or in hard copy upon request.