1 Cooperating Agencies: CEQ Perspective & Guidance Horst G GreczmielAssociate Director for NEPA OversightCouncil on Environmental QualityNovember 2013
2 CEQ Support for Cooperating Agencies CEQ Memorandum for NEPA Liaisons: Agency Implementing Procedures Under CEQ's NEPA Regulations, 1/19/1979Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 3/23/1981Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping, 4/30/1981CEQ Memorandum for NEPA Liaisons:Identifying Agencies With Special Expertise and Jurisdiction By LawSome agencies have already made arrangements among themselves for cooperation in the environmental review process. Agency implementing procedures should describe the arrangements which exist, identify letters of agreement, memoranda of understanding and other written documents reflecting the arrangements, and indicate how these documents may be obtained by members of the publics.Cooperating With State and Local AgenciesSection of the NEPA regulations provides for cooperation with State and local agencies to reduce duplication between NEPA and State and local requirements. To this end, we have attached as Appendix D a list of State and local entities with environmental review requirements that appeared in the Council's 1977 Annual Report ….FORTY QUESTIONS: 14a. Rights and Responsibilities of Lead and Cooperating Agencies.lead agency has the responsibility to solicit cooperation from other federal agencies that have jurisdiction by law or special expertise on any environmental issue that should be addressed in the EIS being prepared. Where appropriate, the lead agency should seek the cooperation of state or local agencies of similar qualifications The request for cooperation should come at the earliest possible time in the NEPA process.After discussions with the candidate cooperating agencies, the lead agency and the cooperating agencies are to determine by letter or by memorandum which agencies will undertake cooperating responsibilities. To the extent possible at this stage, responsibilities for specific issues should be assigned. The allocation of responsibilities will be completed during scoping If a cooperating agency determines that its resource limitations preclude any involvement, or the degree of involvement (amount of work) requested by the lead agency, it must so inform the lead agency in writing and submit a copy of this correspondence to the Council. Section (c).. . . The regulation refers to the "action," rather than to the EIS, to clarify that the agency is taking itself out of all phases of the federal action, not just draft EIS preparation. This means that the agency has determined that it cannot be involved in the later stages of EIS review and comment, as well as decisionmaking on the proposed action. For this reason, cooperating agencies with jurisdiction by law (those which have permitting or other approval authority) cannot opt out entirely of the duty to cooperate on the EIS.14b. How are disputes resolved between lead and cooperating agencies concerning the scope and level of detail of analysis and the quality of data in impact statements?A. Such disputes are resolved by the agencies themselves. A lead agency is supposed to use the environmental analysis and recommendations of cooperating agencies with jurisdiction by law or special expertise to the maximum extent possible, consistent with its own responsibilities as lead agency Cooperating agencies also have a duty to participate fully in the scoping process to ensure that the appropriate range of issues is determined early in the EIS process.Because the EIS is not the Record of Decision, but instead constitutes the information and analysis on which to base a decision, disagreements about conclusions to be drawn from the EIS need not inhibit agencies from issuing a joint document, or adopting another agency's EIS, if the analysis is adequate.
3 CEQ Support for Cooperating Agencies - continued CEQ Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA, 7/28/1999CEQ Memorandum for Deputy/Assistant Heads of Federal Agencies: Identifying Non-Federal Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, 9/25/20001999 Memo: “Agencies are reminded that cooperating agency status neither enlarges nor diminishes the decisionmaking authority of either federal or non-federal entities. However, cooperating agency relationships with state, tribal and local agencies help to achieve the direction set forth in NEPA to work with other levels of government “to promote the general welfare . . .” Considering NEPA’s mandate and the authority granted in federal regulation to allow for cooperating agency status for state, tribal and local agencies, cooperator status for appropriate non-federal agencies should be routinely solicited.2000 Memo: The purpose of this Memorandum is to ensure that all federal and non-federal cooperating agencies are identified on the cover sheet of each Environmental Impact Statement (EIS) prepared by your agency EPA will begin entering the names of all cooperating agencies in the database.2002 Memo: The purpose of this Memorandum is to ensure that all Federal agencies are actively considering designation of Federal and non-federal cooperating agencies in the preparation of analyses and documentation required by the National Environmental Policy Act (NEPA), and to ensure that Federal agencies actively participate as cooperating agencies in other agency’s NEPA processes While we continue to be concerned about needlessly lengthy EAs (that may, at times, indicate the need to prepare an Environmental Impact Statement (EIS)), we recognize that there are times when cooperating agencies will be useful in the context of EAs. For this reason, this guidance is recommended for preparing EAs. However, this guidance does not change the basic distinction between EISs and EAs set forth in the regulations or prior guidance.Attachment 1: Factors for Determining Whether to Invite, Decline or End Cooperating Agency Status
4 CEQ Support for Cooperating Agencies - continued CEQ Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, 1/30/2002CEQ Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, 12/23/2004
5 Reporting ResultsCEQ uses the information provided by the Federal agencies to prepare a summary report that synopsizes agency information, and includes trend analyses and conclusions about cooperating agency participation across the Executive Branch.Report on Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (NEPA), 23 May 2012
6 ReportThe use of cooperating agency status is consistent with what was reported in the first cooperating agency report issued in May 2005 and demonstrates ongoing efforts to engage cooperating agencies in developing EISs. Cooperating agencies were involved in approximately 49 percent of Environmental Impact Statements and approximately 6 percent of environmental assessments during fiscal years 2005 through Lack of capacity or resources (i.e., training, time, personnel) continues to be a major reason that formal cooperating agency status is not established. Other reasons include lack of another agency with expertise to engage with a specific environmental review, no response from potential cooperating agencies, and agencies choosing to participate on an informal basis rather than through a formal cooperating agency status designation.
7 ReportLead Federal agencies continue to frequently engage Tribal governments and Federal, Tribal, State and local governmental agencies during the National Environmental Policy Act process without formal cooperating agency status. This occurs more often when Federal lead agencies are preparing an Environmental Assessment or when they are proposing regulatory actions. Local and regional collaboration frequently takes place without formally establishing cooperating agency status. This is typically the case when intra- and inter-governmental relationships have been established and informal engagement – rather than formal designation of cooperating agencies – benefits the interests of the governments and agencies.
8 Cooperating Agency Status What is it?A formal relationship under CEQ regulations (40 CFR ) – The Lead Agency shall:Request the participation of each cooperating agency in the NEPA process at the earliest possible time.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.Meet with a cooperating agency at the latter's request.
9 Factors for Determining Cooperating Agency Status Jurisdiction by Law (40 C.F.R. § ) Authority to approve (e.g., grant permits), veto or finance all or part of implementing the proposed action.Other Factors (Each determination should be made on a case-by-case basis considering all relevant information and factors. ):Do the agencies understand what cooperating agency status means and can they legally enter into an agreement to be a cooperating agency?Can the cooperating agency participate during scoping and/or throughout the preparation of the analysis and documentation as necessary and meet milestones established for completing the process?Can the cooperating agency, in a timely manner, aid in identifying significant environmental, eliminating minor issues from further study, identifying issues previously the subject of environmental review or study, identifying the proposed actions’ relationship to the objectives of regional, State and local land use plans, policies and controls?Can the cooperating agency assist in preparing portions of the review and analysis and resolving significant environmental issues to support scheduling and critical milestones?Can the cooperating agency provide resources to support scheduling and critical milestones such as: personnel, expertise, funding, models and databases, facilities, equipment and other services?Does the agency provide adequate lead-time for review and do the other agencies provide adequate time for review of documents, issues and analyses?Can the cooperating agency(s) accept the lead agency's final decisionmaking authority regarding the scope of the analysis, including authority to define the purpose and need for the proposed action? (e.g., unable or unwilling to develop information/analysis of alternatives they favor and disfavor?)Are the agency(s) able and willing to provide data and rationale underlying the analyses or assessment of alternatives?Does the agency release predecisional information (including working drafts) in a manner that undermines or circumvents the agreement to work cooperatively before publishing draft or final analyses and documents? (state law may require)Does the agency consistently misrepresent the process or the findings presented in the analysis and documentation?
10 Factors for Determining Cooperating Agency Status Special Expertise (40 C.F.R. § )Experience regarding statutory responsibility, agency mission or related program expertise (more than an interest in a proposed action)- Expertise needed to help the lead agency meet a statutory responsibility- Expertise developed to carry out an agency mission- Related program expertise or experience- Expertise regarding the proposed actions’ relationship to the objectives of regional, State and local land use plans, policies and controls
11 Apply - after serious consideration Becoming a cooperating agency requires a significant amount of time, resources, technical expertise, and funding.Local governments in other states caution against applying to become a cooperating agency on every possible EISChose the project EISs that you become involved incarefully and cautiously
12 Responsibilities of Cooperating Agencies Participate in the NEPA process at the earliest timeParticipate in “Scoping”Develop information and prepare environmental analysesProvide staff supportNormally use its own funds
13 A Memorandum of Understanding (MOU) with the Lead Agency An MOU is not required under NEPA – options include an exchange of lettersIs the local government entering into a binding legal agreement?Use MOU (or other document) because personnel and priorities change. Address:Roles and ResponsibilitiesExpectations (timeliness; quality)
14 The Memorandum of Understanding Include a mechanism for resolving disputesThis mechanism could be as simple as a committee of representatives charged with reaching a consensus in the event of a deadlock.Consider including a provision for a 3rd party contractor and how to fund the cost of this contractor.
15 The Memorandum of Understanding Consider including a provision for an independent facilitator.Use the MOU as an opportunity to agree upon non-partial/non-political scientists, biologists, etc.Local governments might offer to split the cost of these “sound scientists.”Develop lists of potential candidates
16 Benefits of Cooperating Agency Status Establish a mechanism for addressing intergovernmental issues – a “seat at the table” that does not diminish or enhance authorityReceive relevant information early in the analytical process.Apply available technical expertise and staff support.Avoid duplication with other federal, state, tribal, and local procedures.Foster intra and intergovernmental trust. Establish a relationship communities and Bureau of Land Management/Forest Service representatives.
17 Challenges of Cooperating Agency Status Full disclosure can be frustrating – FOIA & Sunshine LawsExpectations are not always clearly outlined in the MOUNot always a clear understanding of NEPA and agency planning processes and local, State, and Tribal planningEffectiveness – involving the right people from the very beginning will save time and money in the end – dealing with changes in personnelSome local governments were rejected several times before they were finally accepted as a cooperating agency on a project. Do not give up and consider other options for increasing involvement.
18 For More Information Contact: Horst Greczmiel Associate Director Council on Environmental Quality(202) /Visit the Council on Environmental Quality (CEQ) website atVisit NEPAnet website at:Citizens’ Guide to NEPA