Lead and Cooperating Agencies

1 C.F.R. Part ..., Subpart B
in effectEffective: 2024-07-01

1 C.F.R. § 601.4 Designation of Lead Agency.

(a) A Federal Agency applicant shall serve as the Lead Agency and prepare an EA or an EIS for: (1) An application that requires Commission approval; and (2) An application for action on a master plan that includes future projects that require Commission approval; provided that: (i) The applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and (ii) The applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for specific projects referenced in the master plan. (b) NCPC shall serve as Lead Agency and prepare an EA or an EIS for: (1) An application submitted by a Non-Federal Agency that requires Commission approval; (2) An application submitted by a Non-Federal Agency for action on a master plan that includes future projects that require Commission approval; provided that: (i) The Non-Federal Agency applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and (ii) The Non-Federal Agency applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for a specific project referenced in the master plan; and (3) An application for approval of land acquisitions undertaken pursuant to 40 U.S.C. 8731-8732.

1 C.F.R. § 601.5 Lead Agency obligations.

(a) The obligations of a Federal Agency applicant designated as the Lead Agency in accordance with § 601.4(a) shall include, without limitation, the following: (1) Act as Lead Agency as defined in 40 CFR 1501.5 for the NEPA process. (2) Integrate other environmental reviews and other applicable regulatory requirements to include, without limitation, Section 106 of the NHPA. (3) Allow NCPC, to participate as a Co-lead or Cooperating Agency, as appropriate, and consult with Commission staff as early as possible in the planning process to obtain guidance with respect to the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis. (4) Invite affected Federal, state, regional and local agencies to participate as a Cooperating Agency in the NEPA process. (5) Consult with the affected agencies as early as possible in the planning process to obtain guidance on the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis. (6) Work with Cooperating Agencies and stakeholders in the following manner: (i) Keep them informed on the project schedule and substantive matters; and (ii) Allow them an opportunity to review and comment within reasonable time frames on, without limitation, Public Scoping notices; technical reports; public materials (including responses to comments received from the public); potential Mitigation measures; the draft EA or EIS; and the draft FONSI or ROD. (7) Prepare the appropriate Environmental Document consistent with the applicant's NEPA regulations, the requirements of this part, and CEQ regulations. If the Lead Agency applies a CATEX and NCPC as Cooperating Agency does not have a corresponding CATEX that it can apply, the Lead Agency shall prepare an EA to satisfy NCPC's NEPA requirement. (8) Determine in its Environmental Document whether an action will have an adverse environmental impact or would limit the choice of reasonable alternatives under 40 CFR 1505.1(e) and take appropriate action to ensure that the objectives and procedures of NEPA are achieved. (9) Prepare, make available for public review, and issue a FONSI or ROD. (10) Ensure that the draft and final EIS comply with the requirements of 40 CFR 1506.5(c) and include a disclosure statement executed by any contractor (or subcontractor) under contract to prepare the EIS document and that the disclosure appears as an appendix to the EIS. (11) Compile, maintain, and produce the Administrative Record. (12) Provide periodic reports on implementation of Mitigation measures to NCPC and other Cooperating Parties consistent with a schedule established in the Environmental Document. All such reports shall be posted on NCPC's Web site. (13) For an application that has yet to obtain final Commission approval, re-evaluate and update Environmental Documents that are five or more years old as measured from the time of their adoption when either or both of the following criteria apply: (i) There are substantial changes to the proposed action that are relevant to environmental concerns. (ii) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts. (14) Consult with NCPC on the outcome of the re-evaluation of its Environmental Document; provided that if NCPC disagrees with the Lead Agency's conclusion on the need to update its Environmental Document, NCPC may, at its sole discretion, either prepare its own Environmental Document or decline to consider the application. (b) When NCPC serves as Lead Agency in accordance with § 601.4(b), in addition to the obligations listed in paragraphs (a)(1) through (14) of this section, NCPC shall: (1) Require Non-Federal Agency applicants other than the District of Columbia and the Maryland National Capital Parks and Planning Commission to enter into a MOA with NCPC. In the MOA, and in subsequent implementation thereof, the Non-Federal Agency shall commit to providing all necessary assistance to facilitate and ensure NCPC's compliance with its NEPA obligation. (2) The MOA may be prepared as a programmatic MOA that addresses a uniform approach for the treatment of all applications from a particular Non-Federal Agency applicant or address a specific Non-Federal Agency application. The request to enter into a project specific MOA shall be made after a determination is made as to the inability to utilize a CATEX. (3) A MOA with a Non-Federal Agency shall specify, without limitation, roles and responsibilities; project information necessary to prepare the proper Environmental Document; project timelines and submission schedules; the submission of periodic reports on implementation of Mitigation measures, principal contacts and contact information; and a mechanism for resolving disputes. (4) Upon adoption of the MOA, NCPC shall publish the MOA in the Federal Register and post it on NCPC's Web site.

1 C.F.R. § 601.6 Resolving disputes over Lead Agency status.

(a) In the event of a dispute with a Federal Agency applicant over Co-Lead Agency status, the parties shall use their best efforts to cooperatively resolve disputes at the working levels of their respective agencies and, if necessary, by elevating such disputes within their respective agencies. (b) If internal resolution at higher agency levels proves unsuccessful, at NCPC's sole discretion, one of the following actions shall be pursued: The parties shall request CEQ's determination on which agency shall serve as Lead, or NCPC shall prepare its own Environmental Document, or NCPC shall decline to take action on the underlying application. (c) Disputes other than those relating to the designation of Lead Agency status or Cooperating Agency status as described in § 601.7(b), shall be governed by the requirements of subpart G of this part.

1 C.F.R. § 601.7 Cooperating Agencies.

(a) When a Federal Agency applicant serves as the Lead Agency, NCPC shall act as a Cooperating Agency. As a Cooperating Agency, NCPC shall, without limitation, undertake the following: (1) Act as a Cooperating Agency as described in 40 CFR 1501.6. (2) Assist in the preparation of and sign a MOA with terms agreeable to NCPC if requested by the Lead Agency. At the Lead Agency's discretion, the MOA may be prepared as a programmatic MOA that addresses a uniform approach for the treatment of all applications where NCPC serves as a Cooperating Agency or address a specific application. The request to enter into a project specific MOA shall be made after a determination is made by the Lead Agency on the inability to utilize a CATEX. (3) Participate in the NEPA process by providing comprehensive, timely reviews of and comments on key NEPA materials including, without limitation, Public Scoping notices; technical reports; documents (including responses to comments received from the public); the draft and final EA or EIS; and the Draft FONSI or ROD. (4) Supply available data, assessments, and other information that may be helpful in the preparation of the Environmental Document or the Administrative Record in a timely manner. (5) Make an independent evaluation of the Federal Agency applicant's Environmental Document and take responsibility for the scope and contents of the EIS or EA when it is sufficient as required by 40 CFR 1506.5. (6) Prepare and, following Commission final approval of an application, sign a FONSI or ROD. Alternatively, if NCPC concurs with the contents of a Federal Agency's FONSI or ROD, NCPC may co-sign the Federal Agency's document following the Commission's final approval of an application if co-signing is consistent with the Federal Agency's NEPA regulations. (7) Provide documentation requested and needed by the Lead Agency for the Administrative Record. (b) In the event a Federal Agency applicant fails to allow NCPC to participate in a meaningful manner as a Cooperating Agency, the parties shall agree to use their best efforts to cooperatively resolve the issue at the working levels of their respective agencies, and, if necessary, by elevating the issue within their respective agencies. If internal resolution at higher agency levels is unsuccessful, the parties may agree to seek mediation. Alternatively, NCPC may prepare its own Environmental Document either as a stand-alone document or a supplement to the Federal Agency applicant's Environmental Document or take no action on the underlying application.

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