Photo by Shealah Craighead
CHANNEL 1 LOS ANGELES
WASHINGTON DC 4/9/18
President Donald J. Trump, joined by Vice President Mike Pence and members of his Cabinet, from left to right, Director of the National Economic Council Larry Kudlow; Mick Mulvaney the Director of the Office of Management and Budget; U.S. Secretary of Homeland Security Kristjen Nielsen; U.S. Administrator of the Environmental Protection Agency Scott Pruitt; U.S. Secretary of Interior Ryan Zinke; U. S. Secretary of Housing and Urban Development Ben Carson; U.S. Secretary of Transportation Elaine Chao; U.S. Commerce Secretary Wilbur Ross; U.S. Secretary of Agriculture Sonny Perdue; Assistant to the President Ivanka Trump ; Secretary of the U.S. Army, Mark T. Esper and Assistant Secretary of U.S. Army Ricky “R.D.” James, holds the signed One Federal Decision Memorandum of Understanding in the Oval Office at the White House, Monday, April 9, 2018, in Washington, D.C., which establishes a coordinated and timely process for environmental reviews of major infrastructure projects.
https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2.pdf
MEMORANDUM OF UNDERSTANDING
IMPLEMENTING ONE FEDERAL DECISION UNDER
EXECUTIVE ORDER 13807
I. Introduction
The undersigned Federal agencies (agencies) enter into this Memorandum of Understanding
(MOU) to establish a cooperative relationship for the timely processing of environmental
reviews and authorization decisions for proposed major infrastructure projects under the One
Federal Decision (OFD) policy established in Executive Order (E.O.) 13807. 1 E.O. 13807
requires the Office of Management.and Budget (OMB) and the Council on Environmental
Quality (CEQ), in consultation with the Federal Permitting Improvement Steering Council
(Permitting Council), to develop a framework for implementation of the Executive Order. On
April 9th, 2018, OMB and CEQ issued an OMB/CEQ Memorandum to Heads of Federal
Departments and Agencies titled “One Federal Decision Framework for the Environmental
Review and Authorization Process for Major Infrastructure Projects under Executive Order
13807” (OFD Framework) pursuant to which agencies enter into this MOU. The agencies
accordingly agree to work together to implement OFD as set forth in this MOU.
II. Background
Under the OFD approach established in E.O. 13807, Federal agencies with a role in the
environmental review and permitting process for a major infrastructure project are directed to
develop an environmental review and authorization decision schedule for that project. For each
major infrastructure project, agencies will work together to develop a single Permitting
Timetable for the necessary environmental review and authorization decisions, prepare a single
environmental impact statement (EIS), sign a single record of decision (ROD), and issue all
necessary authorization decisions within 90 days of issuance ofthe ROD, subject to limited
exceptions.2 E.O. 13807 sets a goal for agencies of reducing the time for completing
environmental reviews and authorization decisions to an agency average of not more than two
years from publication of a Notice oflntent (NOi) to prepare an EIS. The purposes of this MOU
are to:
• provide a more predictable, transparent and timely Federal review and authorization process
for delivering major infrastructure projects;
1 E.0. 13807 defines a “major infrastructure project” as “an infrastructure project for which multiple authorizations
by Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it
will prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA), 42
U.S.C. §§ 4321 et seq., and the project sponsor has identified the reasonable availability of funds sufficient to
complete the project.” E.O. 13807 of August 15, 2017, “Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for Infrastructure Projects,” 82 Fed. Reg. 40,463, 40,464 (Aug. 24,
2017). The funding criterion ofE.O. 13807 ensures that agencies are expending resources on the environmental
review and authorization of project proposals that are likely to be constructed. Public and private funds shall be
considered “reasonably available” whether or not they are contingent on completion of environmental reviews and
issuance of necessaty authorizations for the project. 2 All references to days in this MOU are to calendar days unless otherwise indicated.
A-1
• establish standard operating procedures for how the Federal Government will make
concurrent and synchronized reviews for major infrastructure projects; and
• eliminate duplication of effort among agencies, improve the efficiency of project delivery,
make better-informed. decisions and promote good environmental, community and economic
outcomes.
III. Definitions
Terms used herein have the definitions assigned to them in E.O. 13807 and 40 C.F.R. Parts
1500-1508.
IV. Authorities
Section 5(a) of E.O. 13807 directs Federal agencies to implement an OFD policy in accordance
with the framework developed by OMB and CEQ under Section 5(b) of the Executive Order.
Section 5(e) of the Executive Order authorizes CEQ to issue such regulations, guidance, and
directives to Federal agencies as it may deem appropriate to further the goals of the order. Other
authorities for agencies to enter into this MOU include NEPA, Title 41 of the Fixing America’s
Surface Transportation Act, 42 U.S.C. §§ 4370m et seq. (FAST-41) and the specific authorities
of each agency.
V. General Agreements
The lead agency will decide whether a project sponsor has identified the reasonable availability .
of funds, and whether the project otherwise meets the definition of “major infrastructure project”
under E.O. 13807, and is therefore subject to OFD. The lead agency’s decision shall be
determinative for purposes ofthis MOU.
This MOU sets forth the agreement of the signatory agencies through which they will jointly and
cooperatively process environmental reviews and make authorization decisions for major
infrastructure projects, to the extent consistent with applicable law.
A. Two-year goal. Agencies will undertake to meet the goal set forth in E.O. 13807 of
reducing the time to two years for each agency to complete all environmental reviews and
authorization decisions for major infrastructure projects starting from the date the NOI is
published to issuance of a ROD, except as provided in the OFD Framework. To help
achieve this goal, agencies commit to cooperate, communicate, share information, and
resolve conflicts that could prevent meeting milestones.
B. Agency Implementation of OFD. Agencies will develop appropriate policies to ensure
the use and efficient implementation of OFD for major infrastructure projects. Within 90
days, each agency will transmit to CEQ and OMB a plan to facilitate the efficient
implementation of OFD.
C. Communication. Agencies will actively participate in environmental reviews and
authorization processes for major infrastructure projects, and communicate with one
A-2
another, as well as project applicants and sponsors, in an effective and structured manner
that starts early and continues throughout the review process. This active communication
should provide all agencies with the opportunity to identify concerns, raise potential
issues early in the review process, and identify solutions.3
D. Concurrent Reviews. Agencies will carry out their obligations with respect to the
environmental review and authorization decisions for a major infrastructure project
concurrently, and in conjunction with the review performed by the lead agency under
NEPA, to the extent consistent with applicable law.
E. Permitting Timetable. Agencies will work together to meet the milestones, including the
intermediate and final completion dates of any reviews or authorization decisions, of the
Permitting Timetable established pursuant to this MOU.
F. Commitment to Process Enhancements. Agencies will work individually and
collectively, as appropriate, to:
1. identify and remove process impediments to implementing OFD;
2. implement best practices that will result in more efficient reviews;
3. develop and implement appropriate programmatic agreements with respect to project
reviews where multiple major infrastructure projects present common issues;
4. as appropriate, update, develop and adopt internal procedures, including amendments
to their NEPA implementing procedures, to implement their respo~nsibilities under
E.O. 13807 and the OFD Framework, including through the E.O. 13807 Sec. 5(e)(iii)
working group process; and
5. work together to revise and improve this MOU from time to time, as needed,
including through prompt notification of any changes to agency Chief Environmental
Review and Permitting Officers (CERPOs)4 or other key personnel.
G. Cooperating Agency for FERC Proceedings.
1. Each agency whose authorization is required, or which otherwise has jurisdiction by
law, for a major infrastructure project with respect to which FERC is lead agency
under NEPA and which is the subject of a FERC proceeding will, upon the request of
FERC, participate as a cooperating agency under Section VI. Other agencies may
participate as cooperating agencies with respect to such projects at FERC’s invitation,
as provided in 40 C.F.R. 1501.6.
3 Predecisional documents prepared by FERC or submitted to FERC in FERC proceedings are to be treated as
confidential. Such documents may not be released, including release requested under the Freedom oflnformation
Act or other applicable law, without prior authorization from FERC. FERC regulations prohibit the disclosure of
“the nature and time of any proposed action by the Commission” and limit the disclosure of interagency
communications. 18 C.F.R. §§ 3c.2(b), 388.107(e). 4 Agency CERPOs are designated by agency heads pursuant to 42 U.S.C. § 4370m-l(b)(2)(A)(iii)(I).
A-3
2. Under 40 C.F .R. 1501.6, agencies may decline any such FERC invitation only if the
agency has no jurisdiction by law. Ag~ncies that decline to be cooperating agencies at
FERC’s invitation agree not to join the FERC proceeding as an intervenor.
3. An agency’s participation as a cooperating agency under this subsection shall not
impede such agency’s ability to submit comments to the FERC docket for the
relevant proceeding, nor impede the agency’s ability to defend any mandatory
conditions in court proceedings.
VI. Determination of Lead and Cooperating Agencies
A. Determination of Lead and Cooperating Agencies. Lead and cooperating agencies will
be determined as soon as practicable and in accordance with 40 C.F .R. 1501.5 and
1501.6. Each potential lead or cooperating agency will, as soon as practicable, designate
a point of contact (Project POC), which may be the agency CERPO, to represent the
agency in interagency consultations about that project. In any case where the lead agency
is disputed:
1. The Project POC for the agency that receives the first substantial contact with the
project sponsor (originating agency) will notify the Project POCs for the other
potential cooperating and lead agencies of the dispute regarding lead agency
determination.
2. The Project POC ofthe notified agencies will have 10 business days to object. If
a notified agency Project POC objects to the selection of lead agency, then the
originating agency will convene a meeting with all other notified agency Project
POCs to occur no later than 15 business days after responses have been received.
During the meeting, the agencies will agree on an agency to be the lead agency.
3. If agencies cannot agree, then the originating agency CERPO will follow the
procedures for lead agency determination by CEQ pursuant to 40 C.F.R. 1501.5.
4. Co-lead agencies may designate one of the co-lead agencies to be “lead agency”
for purposes ofthis MOU and ofthe OFD Framework.
VII. Permitting Timetable
A. Development ofPermitting Timetable.
1. The lead agency, in consultation with the project sponsor and cooperating and
participating agencies,5 will develop a Permitting Timetable that identifies the actions
and associated milestones for applicable environmental reviews and authorizations.
The Permitting Timetable will be developed as soon as practicable after the project is
sufficiently advanced to allow the determination of relevant milestones and generally
before publication of an NOL To the maximum extent practicable and permitted by
5 For purposes ofthis MOU, “paiiicipating agency” shall have the meaning set forth in FAST-41 or such other law
as may apply to the lead agency’s authorization ofthe project.
A-4
law, the Permitting Timetable will establish a schedule of no more than two years
from NOi to publication of a single ROD that will provide for the completion of all
required authorization decisions.
2. After consultation with all cooperating and participating agencies, the lead agency
will transmit to each cooperating agency a proposed Permitting Timetable for ·
comment. Ifno agency CERPO or Project POC objects in writing to the proposal
within 10 business days, the proposal will be the Permitting Timetable for the project.
To the extent an agency objects to a proposed milestone, such agency will
communicate its objection and the basis for the objection to the lead agency in writing
within 10 business days. Ifthe objecting agency has authorization responsibility for
the project, such agency will also include an alternative proposed milestone which
will comport with the two-year OFD schedule, unless special circumstances or
applicable law make the two-year schedule impracticable.
3. With respect to cooperating agencies with authorization decision responsibilities, if
the lead agency cannot reconcile the alternative proposed milestone with other
proposed Permitting Timetable milestones, the lead agency will elevate the issue to
an appropriate senior official ofthe cooperating agency for timely resolution. After
an opportunity to resolve the issue, the 1ead agency will issue the Permitting
Timetable.
4. All agencies will comply with the milestones set forth in the Permitting Timetable to
the maximum extent practicable and permitted by law.
B. Contents of Permitting Timetable.
1. The Permitting Timetable for major infrastructure projects should include the
environmental review and authorization milestones specified in Appendix B of the
CEQ/OMB Memorandum on “Guidance to Federal Agencies Regarding the
Environmental Review and Authorization Processes for Infrastructure Projects,” as
amended. The lead agency may also include any other appropriate milestones in the
Permitting Timetable that the lead agency deems appropriate, are requested by the ,
project sponsor, or are requested by a cooperating or participating agency.
2. The lead agency will design the Permitting Timetable so that it has adequate time to
accept and consider public, cooperating agency, and participating agency comments
and input, and conduct any appropriate alternatives analysis or impact assessments.
3. The Permitting Timetable will account for intermediate and final completion dates for
any environmental review or authorization required for the project. The Permitting
Timetable should include estimated milestones for the project sponsor to develop and
submit complete applications and any other information required for Federal
authorization of the project, including required authorization decisions by nonFederal
entities. In such cases, lead agencies will estimate when the project’s design
will be advanced enough to determine such dates, and establish estimated milestones
accordingly.
A-5
C. Modifications and Updates.
1. Following consultations with cooperating agencies, the lead agency will update,
and as necessary modify, the Permitting Timetable at least quarterly. A modified
Permitting Timetable will be transmitted to each cooperating and participating
agency Project POC and to the project sponsor.
2. With respect to the modification of milestones concerning actions by cooperating
agencies with authorization decision responsibilities, lead agencies may modify
such milestones following the procedures contained in Section VII.A.
3. Ifthe lead agency receives a written request from the project sponsor to suspend
or cancel the environmental review and authorization process, or otherwise
determines that the project sponsor has suspended or cancelled the project, the
lead agency will document the request and modify the Permitting Table
accordingly.
D. Publication. A copy of the Permitting Timetable and any modifications will be made
available to the public onpne, including, as appropriate and practicable, through the
Federal Permitting Dashboard.
VIII. Agency Roles and Responsibilities
A. Lead Agencies.
1. The lead agency is respon~ible for organizing the Federal environmental review and
authorization processes for a proposed project, including assigning a management
official to lead the environmental review process and identifying a primary Federal
point of contact at each cooperating or participating agency for the project.
2. After a lead agency has been designated, that agency will be responsible for
requesting cooperation from other Federal agencies that have jurisdiction by law or
special expertise (as determined by the lead agency under 40 C.F.R. 1501.6) on any
environmental issue that should be addressed in the EIS. To the fullest extent
possible and at the earliest time practicable, the lead agency should seek the
cooperation of State, tribal or local agencies of similar qualifications in accordance
with 40 C.F .R. 1506.2. The lead agency should also identify and invite participating
agencies.
3. The lead agency will prepare a single EIS for the project in coordination with the
other Federal cooperating agencies with authorization decision responsibilities and
will ensure that the final EIS (FEIS) includes an adequate level of detail to inform
decisions by all agencies with review or authorization decision responsibilities for the
proposed project.
4. The lead agency will inform cooperating agencies regarding new material information
and changes related to the project.
A-6
5. The lead agency is responsible for developing the Purpose and Need, identifying the
range of alternatives to be analyzed, identifying the preferred alternative and
determining whether to develop the preferred alternative to a higher level of detail.
6. The lead agency will provide the cooperating agencies the opportunity to review and
contribute to all relevant substantive phases of the EIS preparation in conformity with
the Concurrence Points set forth in Section XI.
7. The lead agency is responsible for preparing and publishing a single ROD for all
Federal agencies with authorization responsibility for the project to support any
necessary authorization decisions. The ROD will incorporate the decisions of each
such agency, unless an exception to a single ROD is met as set forth in Section XIII
or where Federal law provides for the lead agency to issue a combined FEIS/ROD.
8. The lead agency will maintain a consolidated project file ofthe information
assembled and utilized by the Federal cooperating agencies as the basis for their
environmental reviews under NEPA.
B. Cooperating Agencies.
1. Cooperating agencies with authorization decision responsibilities will coordinate and
synchronize their authorization reviews with the lead agency’s development of the
FEIS and issuance of the ROD.
2. Agencies with authorization decision responsibilities will participate as cooperating
agencies when invited by the lead agency, consistent with 40 C.F .R. 1501.6. Agencies
without authorization decision responsibilities may participate as cooperating
agencies whenever invited by the lead agency.
3. At the request ofthe lead agency, cooperating agel)cies will make available personnel
and/or expertise to the lead agency, to the extent practicable.
4. Cooperating agencies will be responsible for identifying any information necessary to
complete application review and authorizations in accordance with the Permitting
Timetable, as well as the means of obtaining such information.
5. Cooperating agencies will ensure that any issues that may delay the Permitting
Timetable are promptly brought to the attention of the lead agency.
6. Each cooperating agency should limit its comments to those issues that are within that
agency’s areas of special expertise or jurisdiction.
7. · Each cooperating agency will be responsible for making its respective authorization
decisions, and will maintain the administrative record associated with such decisions
and provide such information as the lead agency may request for the consolidated
project file.
A-7
C. Participating Agencies. Participating agencies will complete their reviews and provide
any necessary input in compliance with the requests ofthe lead agency.
D. State, Local, and Tribal Agencies. Lead agencies may invite any relevant State, local or
tribal agency with Federal authorization decision responsibilities for a major
infrastructure project to be a cooperating agency. Lead agencies will seek to secure such
State, local or tribal agency’s commitment to comply with the Permitting Timetable and
such other obligations of a cooperating agency under this MOU as the lead agency may
deem appropriate and necessary for the project, if necessary by the execution of a
separate written agreement with such agency.
E. CERPOs.
1. Each agency CERPO will help oversee the implementation ofthis MOU and E.O.
13807 at that agency.
2. Each agency CERPO should be informed of all major infrastructure projects for
which that agency is either a lead agency or cooperating agency, and ofthe
Permitting Timetables for such projects.
3. Each agency CERPO should help agency leadership ensure the prioritization of
resources at that agency to comply with applicable Permitting Timetables.
IX. Preliminary Project Planning
A. Preapplication Procedures and Prescoping. After a lead agency is determined, the lead
agency should begin prescoping, including through using any applicable preapplication
procedures at that agency. The lead agency should also identify and begin discussions
with potential cooperating and participating agencies and the project sponsor to identify
potentially significant environmental issues, the community and .stakeholders affected,
the extent ofthe analysis needed, and the time required to complete environmental review
and authorization decision processes. The lead agency will complete its prescoping
process as expeditiously as possible.
B. Preliminary Planning. During prescoping, or as soon as practicable, the lead agency, in
consultation with the cooperating agencies and the project sponsor, may develop a
preliminary project plan that will establish how agencies will work together to process
the environmental review and authorization decisions for the project. Plans and
timetables developed for F AST-41 projects may serve as preliminary project plans. The
plan may include:
• A Permitting Timetable;
• A project-specific framework for all agencies’ reviews, analyses and decisions;
• Specific areas ofresponsibilities and roles of all involved agencies;
• Identification ofthe significant issues and concerns that affect the environmental
review and authorizations needed for the project;
• A stakeholder, public and tribal outreach and engagement plan;
A-8
• Requirements for complete applications for respective authorizations, and an
identification ofthe earliest possible stage when the application could be submitted;
• Procedures for integration of environmental review and authorization processes with
the goal ofmeeting milestones in the Permitting Timetable; and
• Potential avo”idance, minimization, and mitigation strategies.
C. Programmatic Coordination Plan. A preliminary project plan for an individual project
may be established separately from any programmatic coordination plan, or it may
incorporate one or more programmatic coordination plans established by the lead agency
to govern coordination with one or more agencies.
X. Notice oflntent
B. Timing of Publication. The lead agency will publish the NOi as soon as practicable after
determining (1) that a project is a major infrastructure project; and (2) after consultation
with cooperating agencies, that the project proposal is sufficiently developed to permit
scoping and meaningful public comment. The publication ofthe NOi should not be
unreasonably delayed.
B. Revision or Withdrawal. Ifthe lead agency determines that the NOi must be revised,
supplemented, corrected, reissued, or withdrawn, the lead agency will transmit the
proposed change to all cooperating and participating agencies and to the project sponsor,
and modify the Permitting Timetabfo accordingly, before publishing a new NOi. The
modified Permitting Timetable will reflect the date ofthe new NOi as the new start date
for purposes ofthe two-year OFD schedule.
XI. Scoping and Concurrence Points
A. Scoping.
1. The scoping process should be an open process for determining the scope of issues to
be addressed in the EIS, identifying the significant issues related to the proposed
project and engaging stakeholders and the public. Lead agencies should determine
the level and form of public engagement on a case-by-case basis, taking into account
factors such as the overall size and complexity ofthe project.
2. Agencies will use the NEPA scoping process to agree on the relevant analyses,
studies and engineering design that will be needed in order for each agency to be able
to sign a single ROD and for all the authorization decisions to be issued within 90
days after the ROD is signed.
3. Agencies will consult and seek to agree on the best use and relevance of prior
developed information, such as information developed during a planning process.
B. Requirement of Coordination.
A-9
1. The OFD policy integrates the requirements of all Federal agencies with authorization
decision responsibilities. The undersigned agencies commit to implementing the OFD
process early in project development to avoid schedule delays. The environmental
review process will be conducted concurrently with the applicable authorization
decision processes, and, as such, the lead agency should obtain a written concurrence
from all cooperating agencies whose authorization is required for the project at three
key milestones: 1) Purpose and Need, 2) Alternatives To Be Carried Forward for
Evaluation, and 3) the Preferred Alternative. Lead agencies, in consultation with the
relevant cooperating agencies with applicable authorization decision responsibilities,
have discretion to add other concurrence points as necessary to meet project specific
circumstances.
2. The lead agency will request written concurrence on each concurrence point from all
cooperating agencies whose authorization is required for the project. “Concurrence”
for purposes Of this MOU means confirmation by the agency that the information is
sufficient for that stage, and the environmental review process may proceed to the
next stage ofthe NEPA process, as set forth in the lead agency’s request for written
concurrence. Each applicable cooperating agency will either confirm its concurrence
or inform the lead agency that it cannot yet concur. A non-concurring agency will
undertake to resolve the issue and provide the requested concurrence, and will if
necessary elevat_e the issue pursuant to Section XII. Cooperating agency Project
POCs will respond to the lead agency’s request for concurrence within 10 business
days. Failure to respond within 10 business days may be treated as concurrence, at the
discretion ofthe lead agency.
3. With respect to cooperating agencies whose authorization is not required for the
project, comments should be considered by the lead agency and reflected in the
environmental analysis and/or project planning, as appropriate.
C. Specific Concurrent Points.
~
1. Concurrence Point # 1 : Purpose and Need.
(a) The concurrence point will generally occur early in the NEPA review process,
prior to issuance of an NOL The Purpose and Need statement is tl).e foundation for
the NEPA alternatives analysis. Cooperating agencies with authorization decision
responsibilities for a projectwill review the lead agency’s Purpose and Need
statement and determine if it meets their NEPA obligations.
2. Concurrence Point #2: Alternatives to be Carried Forward for Evaluation.
(a) This concurrence point identifies the alternatives to be carried forward for
analysis in the EIS. Concurrence should be sought as early as possible and prior
to detailed analysis in the draft EIS (DEIS). Concurrence should be obtained
prior to presenting the results of alternatives screening to the public. In order to
fulfill the needs of other agencies’ authorities, there may be alternatives that
require analysis beyond what is necessary for the lead agency.
A-10
3. Concurrence Point #3 – Preferred Alternative.
(a) A preferred alternative should be identified in the DEIS and must be identified in
the FEIS. A final decision is identified in the ROD. Before a preferred alternative
is identified in a DEIS or FEIS, the lead agency will request written concurrence
on the preferred alternative from all agencies whose authorization is required for
the project, and will explain in such request the rationale for its selection. An
agency’s concurrence on a preferred alternative identified in the DEIS will also
serve as concurrence for that preferred alternative in the FEIS, unless there is a
material change in the preferred alternative from DEIS to FEIS.
D. Changed Circumstances. If after concurrence, the lead agency determines that changes to
the Purpose and Need, Alternatives, or the Preferred Alternative are necessary, then the
lead agency and cooperating agencies with authorization decision responsibilities will
review such changes to determine if concurrence should be revisited.
XII. Elevation of Delays and Dispute Resolution
A. Any issue or dispute that arises between or among agencies during the OFD process will
be addressed expeditiously to avoid delay.
B. Agencies will implement this section consistent with any dispute resolution process
established in an applicable law, regulation, or legally binding agreement to the
maximum extent permitted by law.
C. Agencies will seek to resolve issues or disputes at the earliest possible time at the project
level through staff who have day-to-day involvement in the project.
D. Agencies will notify their CERPOs of any instance where a dispute is to be elevated.
Where appropriate, agencies will also consult with the project sponsor, and its input
should also be considered.
E. If a dispute between agencies causes a milestone to be missed or extended, or the lead
agency anticipates that a Permitting Timetable milestone will be missed or will need to be
extended, then the dispute should be elevated to an official designated by the relevant
agency for resolution. Such elevation should take place as soon as practicable after the
lead agency becomes aware of the dispute or potential missed milestone. Disputes that
do not impact the ability of an agency to meet a milestone may be elevated as appropriate
F. Once elevated to the designated official, if no resolution has been reached at the end of
30 days after the relevant milestone date or extension date, then the relevant agencies will
elevate the dispute to senior agency leadership for resolution.
XIII. Exceptions
A-11
A. The lead agency will grant exceptions to the single EIS and single ROD requirement of
E.O. 13807 when:
1. the project sponsor requests that the agencies issue separate NEPA documents;
2. the NEPA obligations of a cooperating or participating agency have already been.
satisfied; or
3. the lead agency determines that one ROD would not promote efficient completion of
the project’s environmental review and authorization process.
B. The lead agency may grant an exception to the single ROD requirement ofE.O. 13807
when Federal law provides for the lead agency to issue a combined FEIS/ROD and
cooperating agencies are not authorized to issue a combined FEIS/ROD. When a lead
agency elects to grant such an exception, the agencies not authorized to issue a combined
FEIS/ROD will issue a joint ROD or other appropriate decision document as soon as
practicable, consistent with applicable law and the Permitting Timetable.
C. FERC will grant an exception to the single ROD requirement ofE.O. 13807 when the
FERC licensing order serves as the ROD. In such situations, the agencies not authorized
to issue a combined FEIS/ROD will issue a joint ROD or other appropriate decision
document as soon as practicable, consistent with applicable law and the Permitting
Timetable.
D. The lead agency may also extend the 90-day deadline for any authorization required for a
project in the following circumstances:
1. when applicable law prohibits an agency from issuing its approval or permit within
the 90-day period;
2. the project sponsor requests that the permit decision or approval follow a different
timeline; or
3. an extension would better promote completion of the project’s environmental review
and authorization process.
E. The lead agency f!lay terminate the coordinated development of the single EIS and/or
single ROD under OFD upon request of.the project sponsor, changed circumstances, or if
the project sponsor fails to respond timely to lead agency requests.
XIV. Miscellaneous Provisions
A. Agencies may enter into appropriate agreements as necessary to implement OFD,
including agreements on a program- and project-specific basis. Any such agreements
will be consistent with this MOU, E.O. 13807, the OFD Framework, and Federal law.
A-12
B. Nothing contained in this MOU is intended to or should be construed to limit or affect the
authority or legal responsibilities of the undersigned agencies,. or binds the undersigned
agencies to perform actions beyond their respective authorities.
D. Nothing in this MOU shall be construed to impair or otherwise adversely affect:
1. the authority granted by law to an executive department or agency, or the head thereof;
or
2. the functions of the Director of the Office of Management and Budget relating to
budgetary, administrative, or legislative proposals.
E. Nothing in this MOU is intended to, or should, be construed to restrict the agencies from
participating in similar activities or arrangements with other public or private entities,
organizations, or individuals.
F. Independent agency staff will comply with this MOU to the maximum extent practicable,
consistent with such agency’s status as an independent agency, statutory requirements,
and such agency’s regulations and procedures.6
G. The mission requirements, funding, personnel, and other priorities ofthe undersigned
agencies may affect their ability to fully implement all the provisions identified in this
MOU.
H. This MOU shall be implemented consistent with applicable law and subject to the
availability of appropriations.
I. Specific activities that involve the transfer of money, services, or property between or
among the undersigned agencies may require execution of separate agreements or
contracts.
J. This MOU is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.
K. This MOU may be modified and amended, or terminated, by written agreement among
the undersigned agencies.
L. Additional Federal agencies may become parties to this MOU by signing an addendum to
the MOU.
M. This MOU is effective on April, 1 oth, 2018.
6 For purposes ofthis MOU, “independent agency” means an independent regulatory agency as defined in 44 U