November 2005 WEP Project Update and Two-Month
from Oregon Department of Transportation
"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.
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,
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
(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
(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.
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
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
The FHWA memo “Revised Guidance on Cooperating Agencies,”
www.fhwa.dot.gov/environment/guidebook/vol2/doc11a.pdf states that Cooperating
“Attend scoping and coordinating meetings ...
“provide meaningful and early input ...
“Participate in joint public involvement activities.” (p.
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"