SAFETEA-LU's Section 6002 - Efficient Environmental Reviews for Project Decision-making prescribed a new environmental review process for highway, public transportation capital, and multimodal projects. The new review process is mandatory for projects that are undergoing an EIS level of investigation and optional for those undergoing an EA level of investigation. (TDOT has elected to apply this review process to EAs as well as EISs.) The new process specifies changes from NEPA procedures that were in effect prior to August 11, 2005. All highway and transit EISs for which the Notice of Intent (NOI) was published on or after August 11, 2005, must follow the new process, while highway and transit EISs for which an NOI was published prior to August 11, 2005 may continue as "grandfathered" under prior law.
The environmental review process is initiated by transmittal of a letter by the project sponsor (TDOT) to FHWA describing the type of work, termini, length and general location of the proposed project prior to the publication of the Notice of Intent (NOI). The letter is sent to the FHWA Division Administrator and is signed by the TDOT official authorized to sign EIS documents. While the timing of the notification letter is flexible, it would normally be sent to FHWA prior to the publication of the NOI.
The new review process specifies a new category of agencies to be invited to participate in the NEPA process starting at the earliest possible time. "Participating" agencies may include federal, regional, state, local, or tribal agencies that reasonably may be expected to have an interest in a project, but would not include nongovernmental agencies or private groups. (See Section 126.96.36.199 below for more discussion on participating agencies.)
The new review process also requires an "opportunity for involvement" for participating agencies and the public in defining the project purpose and need and the range of alternatives. These opportunities can occur early in the transportation planning process or later, during the early coordination and scoping process. The opportunities must be widely publicized, in the form of public workshops or meetings, solicitations of verbal or written input, conference calls, postings on the Internet, distribution of printed materials or other public involvement techniques. The opportunity must be provided prior to the lead agencies' final decision regarding purpose and need, and prior to the final decision regarding the range of reasonable alternatives to be evaluated, respectively.
Under SAFETEA-LU's new environmental review process, TDOT must also give participating agencies the opportunity to provide input into the methodologies and level of detail to be used in the analysis of alternatives; this can be accomplished on a project by project basis, in a programmatic way, or on a regional basis.
SAFETEA-LU also requires the establishment of a plan for coordinating public and agency participation and comment during the environmental review process. Coordination plans are developed early in the environmental review process, and should outline how FHWA and TDOT have divided the responsibilities for compliance of the various aspects of the environmental review process, and how opportunities for input from the public and other agencies are to be provided. The plan should also identify key coordination points, such as:
Prior to the enactment of SAFETEA-LU, FHWA policy required a negotiated schedule for the NEPA process for all EIS and EA projects. This FHWA policy remains in effect and is further strengthened by the law. SAFETEA-LU encourages, but does not require, the inclusion of a project schedule in the coordination plan. For FHWA projects, all EIS coordination plans must include a project schedule. When the lead agencies include a project schedule in the coordination plan, that schedule must be prepared in consultation with each participating agency, the project sponsor, and the State. The schedule should include decision-making deadlines for each agency approval, such as permits, licenses, and other final decisions, consistent with statutory and regulatory requirements, in order to encompass the full environmental review process.
TDOT's current Public Involvement Plan and the public and agency participating requirements of SAFETEA-LU should be used to develop a project-specific public and agency involvement plan, if required. See Chapter 7, Public Involvement Process, for more information and a link to the 2007 updated TDOT Public Involvement Plan.
SAFETEA-LU's new environmental review process also allows for the incorporation of the coordination plan into a Memorandum of Understanding (MOU) that is applicable to a single project or a category of projects. The TESA process, discussed below in Section 4.5, is intended to be a MOU for all major transportation projects in Tennessee, regardless of funding source.