Transcript An Introduction to Cooperating Agency Status

Cooperating Agencies:
CEQ Perspective &
Guidance
Horst G Greczmiel
Associate Director for NEPA Oversight
Council on Environmental Quality
November 2013
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
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
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
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
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.
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.
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.
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.
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
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
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
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)
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.
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
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.
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.
For More Information

Contact:
Horst Greczmiel
Associate Director
Council on Environmental Quality
(202) 395-5750 / [email protected]

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