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to prepare an EIS, useful information might result from early participation by
other agencies and the public in a scoping process.
CHAPTER 11
The regulations state that the scoping process is to be preceded by a Notice
of Intent (NOI) to prepare an EIS. But that is only the minimum requirement.
Scoping may be initiated earlier, as long as there is appropriate public
notice and enough information available on the proposal so that the public and
relevant agencies can participate effectively. However, scoping that is done
before the assessment, and in aid of its preparation, cannot substitute for
the normal scoping process after publication of the NOI, unless the earlier
public notice stated clearly that this possibility was under consideration,
and the NOI expressly provides that written comments on the scope of
alternatives and impacts will still be considered.
14a. Q. What are the respective rights and responsibilities of lead and
cooperating agencies? What letters and memoranda must be prepared?
A. After a lead agency has been designated (Sec. 1501.5), that 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. When the proposal may affect an Indian reservation, the agency
should consult with the Indian tribe. Section 1508.5. 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. Section
1501.7(a)(4).
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. 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 1501.6(c). In other words, the
potential cooperating agency must decide early if it is able to devote any of
its resources to a particular proposal. For this reason the regulation states
that an agency may reply to a request for cooperation 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."
(Emphasis added). 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 decision making 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. See also Question 15, relating specifically to the responsibility of
EPA.
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