Cooperating Agencies: CEQ Perspective & Guidance

1. Cooperating Agencies: CEQ Perspective & Guidance Horst G Greczmiel Associate Director for NEPA Oversight Council on Environmental Quality November 2013

2. CEQ Support for Cooperating Agencies • CEQ Memorandum for NEPA Liaisons: Agency Implementing Procedures Under CEQ's NEPA Regulations, 1/19/1979 http://ceq.hss.doe.gov/nepa/regs/exec11979.html • Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 3/23/1981 http://ceq.hss.doe.gov/nepa/regs/40/40P1.HTM • Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping, 4/30/1981 http://ceq.hss.doe.gov/nepa/regs/scope/scoping.htm

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, 7/28/1999 http://ceq.hss.doe.gov/nepa/regs/ceqcoop.pdf • CEQ Memorandum for Deputy/Assistant Heads of Federal Agencies: Identifying Non-Federal Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, 9/25/2000 http://ceq.hss.doe.gov/nepa/regs/000925letter.html

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, 1/30/2002 http://ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html • CEQ Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act, 12/23/2004 http://ceq.hss.doe.gov/nepa/regs/connaughton.pdf

5. Reporting Results CEQ 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. http://ceq.hss.doe.gov/ceq_reports/cooperating_agencies.html Report on Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (NEPA), 23 May 2012 http://ceq.hss.doe.gov/nepa/reports/Cooperating_Agency_Report_2005-11_23May2012.pdf http://ceq.hss.doe.gov/nepa/reports/Cooperating_Agency_Report_2005-11_Attachment_23May2012.pdf

6. 2005-2011 Report The 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 2011. 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. 2005-2011 Report Lead 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 1501.6) – 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. § 1508.15) Authority to approve (e.g., grant permits), veto or finance all or part of implementing the proposed action.

10. Factors for Determining Cooperating Agency Status Special Expertise (40 C.F.R. § 1508.26) 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 EIS Chose the project EISs that you become involved in carefully and cautiously

12. Responsibilities of Cooperating Agencies • Participate in the NEPA process at the earliest time • Participate in “Scoping” • Develop information and prepare environmental analyses • Provide staff support • Normally 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 letters • Is the local government entering into a binding legal agreement? • Use MOU (or other document) because personnel and priorities change. Address: • Roles and Responsibilities • Expectations (timeliness; quality)

14. The Memorandum of Understanding • Include a mechanism for resolving disputes • This 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 authority • Receive 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 Laws • Expectations are not always clearly outlined in the MOU • Not always a clear understanding of NEPA and agency planning processes and local, State, and Tribal planning • Effectiveness – involving the right people from the very beginning will save time and money in the end – dealing with changes in personnel • Some 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) 395-5750 / hgreczmiel@ceq.eop.gov • Visit the Council on Environmental Quality (CEQ) website at http://www.whitehouse.gov/ceq • Visit NEPAnet website at: http://energy.gov/nepa/council-environmental-quality-ceq • Citizens’ Guide to NEPA http://ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf