Environmental Review Toolkit
Accelerating Project Delivery

Interagency Guidance: Transportation Funding
for Federal Agency Coordination
Associated with Environmental Streamlining Activities

IV. REQUIREMENTS FOR COST REIMBURSEMENT AGREEMENTS UNDER SAFETEA-LU

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Any Federal or State agency or Federally recognized Indian tribe who is anticipated to provide activities that directly and meaningfully contribute to expediting and improving transportation project planning and delivery to be eligible for funding reimbursement under §139(j). The §139(j) funding can only be used for the additional resources that are needed for Federal agencies, State agencies, or Federally recognized Indian tribes to meet the time limits established for environmental reviews.

§139(j) funds cannot be used to increase Congress's general appropriation for an agency's operating expenses. Acceptance and use of §139(j) funding requires a determination by FHWA that the requested level of service or activity is above and beyond what typically could be provided as a part of regular operations funded under the agency's general appropriation. A baseline determination is necessary in order to avoid a conflict with the legal prohibition against a Federal agency augmenting its Congressional appropriations. Work that might be performed on other matters cannot be paid for under §139. For example, if an agency hires a temporary employee to help expedite environmental reviews on highway or transit projects, but the employee also works on other matters, the reimbursement will be limited to only a prorated portion of the employee's salary based on the amount of time spent on work related to highway and transit environmental reviews.

Funds cannot be used for routine project reviews, but can only be used for the purpose of expediting a review. This means that the agency receiving the funds must have agreed that, with the assistance of the additional resource, it will conduct its environmental reviews in a time frame that is less than the time it would ordinarily have taken to complete this review. The "customary time" for a review should be based on the best data available or should reflect the best estimate of the agency based on its historical experience. SAFETEA-LU has added planning activities as eligible activities for funding, and therefore, State agencies may include Metropolitan Planning Organizations (MPO), local governments, and tolling commissions that have approved processes for project delivery. Baselines of services and associated times need to be done to determine the contribution, reduction, and/or improvement to transportation planning and project delivery.

The decision to participate in this funding option remains with the States agencies, which are encouraged to take a flexible approach to the concept of funding assistance to affected State and Federal agencies.

There are three steps to using the funding under §139(j).

  1. A State must submit a request to the FHWA Division Administrator to use Federal-aid funds to pay for costs of activities that contribute to expediting and improving transportation project planning and delivery for projects in that State. The request should identify the additional resource(s) (staff position, travel, etc.) needed and describe the work that the requested resource(s) would perform or other assistance it would provide. The request should also explain how this additional resource(s) would enable the agency to directly and meaningfully contribute to meet time limits for environmental reviews on highway or transit projects that are less than the customary time for review.

    Where a proposal is to fund activities that are not project-specific, such as process improvement or programmatic agreements, the criteria relating to environmental review time limits will be deemed satisfied so long as the efforts are designed to produce a reduction in the customary time for environmental reviews in the State. The request should explain why the agency cannot accomplish these time limits with its current resources.
  2. The Division Administrator must approve this request, like other approvals regarding project eligibility, as either a part of the original project agreement and authorization, or as a subsequent modification. If the work will affect a number of projects, the costs should be prorated across those projects.
  3. An agreement should be executed between the State and the Federal agency upon approval of the funds.

Please note that the interagency agreement(s) must be valid in accordance with state procurement requirements.

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