A key component of the NEPA process, especially if litigation is anticipated, is to ensure that there is a comprehensive record of the federal agency’s decision-making process. This is called the Administrative Record. But what sometimes causes some confusion is when the scope of work requests a copy of the Project Record. An understanding of the difference between the two is not always clear. This question comes up often and we’re here to demystify the difference and to share some lessons we’ve learned along the NEPA practitioner way when preparing EAs and EISs.
1. What is an Administrative Record, How is it Used, and What is Included?
NEPA does not have provisions for citizens to file lawsuits against the NEPA document decision. However, citizens can file a lawsuit over a NEPA decision by using the Administrative Procedures Act.
The Administrative Procedures Act allows for citizens who believe they may be or have been harmed by a federal action to obtain a judicial review of the federal action. In this situation, the court rules on whether the decision was rational, arbitrary or capricious. The Administrative Record is the basis for legal defense of the NEPA decision document.
How is the Administrative Record Used:
- Serves as the evidence of the decision-making process that the federal agency undertook throughout the NEPA process.
- Compilation of the decision-making documents for a NEPA document.
- Subset of the Project Record.
What to include in an Administrative Record:
When determining what to include in your Administrative Record, bear in mind the decision-making process for the NEPA document. Here are some examples of documents to include in the Administrative Record:
- Final NEPA document
- Draft NEPA documents
- Interagency consultation
- Public comments
- Technical/scientific reports and studies (draft and final)
- Computer modeling and GIS files
- Certain e-mails (more details below)
What about e-mails to include in an Administrative Record:
- Include e-mails that reflect the decision-making process (substantive debate and/or detailed analysis). Tip: Don’t just provide a data dump of all emails.
- Consider if the e-mail contributes to a decision on the NEPA document. Examples include:
- Government guidance on the purpose and need or project description.
- Direction from the federal agency’s counsel on the project.
- E-mails from agencies/public.
2. What is a Project Record and What is Included?
Compared to an Administrative Record, a Project Record is more extensive. The Project Record includes all documents in the Administrative Record as well as other documents that show the process of the NEPA document. Here are some examples of documents to include in the Project Record:
- All documents in the Administrative Record
- All emails associated with the project (discussions on logistics, schedule, etc.)
- Schedules and progress reports
- Internal draft versions of the NEPA documents or supporting studies
- Meeting minutes
- Documents generated after the final decision document
3. What are Scout’s Top Lessons Learned When Maintaining an Administrative Record and a Project Record?
- Rely on the federal agency’s legal counsel guidance when preparing an Administrative Record or Project Record if you anticipate the EA or EIS will be controversial or potentially be litigated once the EA or EIS is complete.
- Start the Administrative Record and Project Record file/data collecting process early. This can be a time-consuming process if you try to compile at the end of the project rather than at each draft document submittal stage. Ensure all references are in electronic format.
- Identify one main point person to receive/collect the documents needed, in particular the one person who should receive all e-mails that reflect the decision-making process. This is another time-consuming process if those types of e-mails are not sent to the Administrative Record point person.
- Ensure photos are reviewed before including in the Administrative Record or Project Record to ensure that they do not violate any operational security requirements.
- If collecting GIS data as part of any survey effort, ensure the GIS files meet the scope of work GIS formatting/data files requirements. Remember if you have not collected any GIS data but rather used existing GIS data from the federal agency, it is usually acceptable to just provide the GIS figures and the GIS data used to create the figures, but to be sure, check with the project contracting officer representative.
Remember, these are not comprehensive lists of items to include in your Administrative Record or Project Record. For further help with your NEPA needs, contact us today to help guide you through the process from beginning to end: firstname.lastname@example.org.