Chapter 6 - Formal Scoping

NEPA requires the lead agency to conduct an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action (Section 1501.7, 40 CFR). As soon as practicable after its decision to prepare an EIS and before the scoping process, the lead agency shall publish a Notice of Intent (NOI) (Section 1508.22, 40 CFR) in the Federal Register. The scoping process will be used to identify the range of alternatives to be addressed in the EIS (Section 771.123, 23 CFR).

As part of the scoping process the lead agency shall:

• Invite the participation of affected federal, state, and local agencies, affected Indian tribes, and other interested persons, unless there is a limited exception. Agency procedures may provide limited exceptions for classified proposed actions to be kept secret in the interest of national defense or foreign policy, pursuant to Executive Order or statute. See Section 1507.3(c), 40 CFR. Early coordination with appropriate agencies and the public will help to determine the scope of the document, level of analysis, and related environmental requirements (Section 771.111, 23 CFR).
• Determine the scope and significant issues to be analyzed in depth in the EIS (Section 1508.25, 40 CFR).
• Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review, narrowing the discussion of these issues in the statement to a brief presentation of why they will not have a significant effect on the human environment or providing a reference to their coverage elsewhere (Section 1506.3, 40 CFR).
• Allocate assignments for preparation of the EIS among the lead and cooperating agencies with the lead agency retaining responsibility for the environmental document.
• Indicate any public environmental assessments and other EISs which are being or will be prepared that are related to but are not part of the scope of the impact statement under consideration.
• Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently and integrate them with the EIS.
• Indicate the relationship between the timing of the preparation of environmental analyses and the agency’s tentative planning and decision making schedule (Section 1502.25, 40 CFR).

Formal scoping is not required for environmental assessments (EA). For further guidance on EAs and informal scoping, see SER Volume 1, Chapter 31.

For additional information regarding EIS preparation and processing, see SER Volume 1, Chapter 32 and/or Chapter 37.

23 USC 139, as amended by SAFETEA-LU in 2005 and MAP-21 in 2012, includes a number of provisions designed to make the environmental review process more efficient. The provisions of 23 USC 139 apply to any USDOT EIS for which the NOI was published in the Federal Register after August 10, 2005. EIS projects with an NOI published before August 10, 2005 (or EA projects) can utilize the 23 USC 139 process at the discretion of the Department's Deputy District Directors for Environmental. Please see SER Volume 1, Chapter 38, NEPA Assignment and the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance for detailed information.

Under the provisions of 23 USC 139, USDOT (FHWA or FTA for most Department projects) must serve as the federal lead agency, and the Department as the direct recipient of Federal-aid highway funds must be a joint lead agency. Under 23 USC 327 and pursuant to the NEPA Assignment MOU, the Department will serve in both roles. For further guidance, please see SER Volume 1, Chapter 38, NEPA Assignment.

The first step in the 23 USC 139 efficient environmental review process is the notification to the Secretary of Transportation (via FHWA) by the lead agency of the initiation of the review process. 23 USC 139 requires that the project sponsor notify the Secretary of the type of work, termini, length, general location of the proposed project, and anticipated federal approvals/permits. Under NEPA Assignment, Caltrans Regions and Districts will make this notification to the Chief of the Environmental Management Office (EMO), Caltrans Division of Environmental Analysis (DEA), at the following address: P.O. Box 942874, MS-27, Sacramento, CA 94274-0001. The notification should also indicate the timeframe within which the environmental review process should be started (publication of the NOI). Much of the required information should be available from planning documents. An NOI may be used as this notification as long as it contains the information required pursuant to 23 USC 139 for streamlining purposes, this is the recommended approach. An annual STIP update may serve as the notification of the initiation of the review process for a group of projects as long as the required 23 USC 139 information is included in the STIP update submittal to FHWA. The notification of the initiation of the review process precedes or occurs simultaneously with the publication of the NOI in the Federal Register, and may be issued during the planning process if the required information is available. Note FHWA will still be the agency responsible for posting notices in the Federal Register.

An NOI serves as the official legal notice that Caltrans is starting to prepare an EIS. The CEQ Regulations Section 1508.22, 40 CFR require that an NOI include the following information:

• A description of the proposed action
• A description of potential alternatives, including the No-Build
• Information regarding the proposed scoping process, including whether, when, and where scoping meetings will be held
• The name and address of a contact within Caltrans for the proposed project and the EIS

Detailed guidance for the format and content of an NOI can be found in Appendix B of the FHWA Technical Advisory T 6640.8A.

In order for the NOI to also serve as the 23 USC 139 notification of the initiation of the environmental review process, the NOI must also include:

• The type of work
• The project's termini, length, and general location
• Other federal approvals, such as permits
• Timeframe within which the environmental should be started

As early as practicable, Caltrans requests other agencies to be cooperating agencies. The invitation to become a cooperating agency may occur before, or shortly after, the publication of the NOI in the Federal Register. A cooperating agency is any federal agency, other than a lead agency, that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed project or project alternative (see Section 1508.5, 40 CFR). Upon request of the lead agency, any federal agency with jurisdiction by law shall be a cooperating agency. Any other federal agency with special expertise regarding any environmental issue may be a cooperating agency, and an agency may request to be designated as a cooperating agency. All cooperating agencies are also participating agencies under 23 USC 139 (see below). Where appropriate, the lead agency should also seek the cooperation of state or local agencies with jurisdiction by law or special expertise. When the proposed project may affect lands of tribal interest (reservation, Rancheria, or land held in trust), a Native American tribe may, by agreement with the lead agencies, also become a cooperating agency. The Department has the responsibility to consult with federally-recognized tribes regarding becoming a cooperating or participating agency. Coordination with cooperating agencies is initiated by sending a letter inviting them to participate in the development of the environmental document. Cooperating agencies are invited in writing to participate in early meetings to discuss issues and alternatives, and to determine the scope of issues that may be involved in the project. A copy of the letter and the agency's response shall be retained in the project file. FHWA's Revised Guidance on Cooperating Agencies provides examples of letters inviting agencies to participate in the environmental process. (Also, see links to sample joint cooperating and participating agency invitation letters referenced below.)

Under 23 USC 139, a participating agency is any federal or non-federal agency (state, tribal, regional, and local government agency) that may have an interest in the project. Nongovernmental organizations and private entities cannot serve as participating agencies. The lead agencies collectively decide which other agencies to invite to become participating agencies into the 23 USC 139 efficient environmental review process. Unless there is an agreement between the non-federal lead agencies and a particular Native American tribe regarding direct coordination, the Department shall be responsible for inviting federally-recognized tribes that may have an interest in the project. Federal agencies are required to be participating agencies unless they declare in writing that they have no jurisdiction, expertise, or information, and do not intend to comment on the project. To the extent that the lead agencies know prior to scoping that certain entities should be invited to serve, the lead agencies may send invitations simultaneously with the notice of initiation of the environmental review process or at anytime afterward. Federal agencies must respond to the invitation in writing. If the state, tribal, regional, or local agency fails to respond by the stated deadline, or declines the invitation, regardless of the reasons for declining, the agency should not be considered a participating agency. A copy of the letter and the agency's response shall be retained in the project file. See the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance for additional information on the roles and responsibilities of participating agencies. Sample letters are available in the SER Volume 1, Chapter 32.

See SER Volume 1, Chapter 32 for the next step in the 23 USC 139 environmental review process and for further guidance.

Under CEQA (Guidelines), determination of the “scope” of an EIR incorporates consultation with responsible agencies, trustee agencies, federal agencies and the general public. Once the lead agency has decided that an EIR is required for a project, it must send a Notice of Preparation (NOP) stating that an EIR will be prepared to each CEQA responsible agency and federal agency involved in approving or funding the project, and to each state trustee agency responsible for natural resources affected by the project. The lead agency may also consult directly with any person or organization it believes will be concerned with the environmental effects of the project. Scoping as a means of early consultation with the public is, however, permissive although authorized and strongly encouraged (Section 15083, Title 14, CCR). Where a state or local agency is preparing an EIR/EIS with a federal agency, scoping will be required in order to meet the requirements under NEPA for the federal agency.

Under CEQA, the scoping process and the NOP process are essentially one and the same. The NOP procedures are stipulated in Section 15082, Title 14, CCR and include the following provisions:

• Describing the project including location, proposed activities, and probable environmental effects of the project.
• Sending copies of the NOP to responsible agencies, trustee agencies and if applicable, federal agencies pursuant to agency listings established by the Office of Planning and Research (OPR) with a copy to the State Clearinghouse within the OPR. The State Clearinghouse will ensure that the state responsible agencies and trustees reply to the lead agency within the required time. Copies of the NOP should also be sent to any special interest groups or interested members of the general public who have requested such notice.
• Conducting one or more meetings between representatives of the agencies involved to assist the lead agency in determining the scope and content of the environmental information which the responsible agency may require. Such meetings shall be convened by the lead agency as soon as possible, but no later than 30 days after the meetings were requested. For projects of statewide, regional, or areawide significance, the lead agency is required to conduct at least one scoping meeting. The lead agency shall provide notice of the scoping meeting to any responsible agency and any county or city that borders on a county or city in which the project is located, unless otherwise designated by annual agreement between the lead agency and the county or city. See Section 15082(c)(1)(A)(B), Title 14, CCR.

For EIRs, the state identification number issued by the Clearinghouse for the NOP shall be the identification number for all subsequent environmental documents on the project, and should be referenced on all subsequent correspondence regarding the project.

For additional information regarding EIR preparation and processing, see SER Volume 1, Chapter 36 and/or Chapter 37.