(a) An eligible agency is:

(1) Any Federal, State, Tribal, or local agency that is qualified to participate in the development of an environmental assessment or environmental impact statement by virtue of its jurisdiction by law, consistent with 42 U.S.C. 4336a(a)(3);

(2) Any Federal, State, Tribal, or local agency that is qualified to participate in the development of an environmental assessment or environmental impact statement by virtue of its special expertise. 1

(b) The Responsible Official for a lead bureau may invite eligible agencies to participate as cooperating agencies when the bureau is developing an environmental assessment and must invite eligible agencies to participate as cooperating agencies when the bureau is developing an environmental impact statement, subject to the exception described in paragraph (c) of this section.

(c) The Responsible Official for the lead bureau must consider any request by an eligible agency to participate in a particular environmental impact statement or environmental assessment as a cooperating agency. Such request shall not be arbitrarily denied. If the Responsible Official for the lead bureau denies a request, or determines it is inappropriate to extend an invitation, he or she must state the reasons in the environmental impact statement or environmental assessment, as applicable. Denial of a request for cooperating agency status is not subject to any internal administrative appeals process, nor is it a final agency action subject to review under the Administrative Procedure Act, 5 U.S.C. 701 et seq.

(d) Bureaus should work with cooperating agencies to develop and adopt appropriate documentation that includes their respective roles, assignment of issues, schedules, and staff commitments so that the NEPA process remains on track and within the time schedule. Such documentation must be used in the case of non-Federal agencies and must include a commitment to maintain the confidentiality of documents and deliberations during the period prior to the public release by the bureau of any environmental document, including drafts, to the extent permitted by the Freedom of Information Act and other applicable law. However, no memorandum can require a cooperating agency to waive the right to judicial review.

(e) Bureaus within the Department will be cooperating agencies with other bureaus when requested.