Environmental Review Toolkit
Accelerating Project Delivery

NEPA Program Assignment

Program Assignment (23 U.S.C. 327)

Surface Transportation Project Delivery Program describes the assignment of U.S. DOT environmental responsibilities under NEPA and other environmental laws. The program—for which all States are eligible—allows the Secretary of Transportation to assign, and the State to assume, the Secretary's responsibilities under NEPA for one or more highway projects, as well as one or more railroad, public transportation, and/or multimodal project. This program replaces the SAFETEA-LU Surface Transportation Project Delivery Pilot Program.

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23 U.S. Code § 327 - Surface transportation project delivery program

(a) Establishment.—

    (1) In general.— The Secretary shall carry out a surface transportation project delivery program (referred to in this section as the “program”).
    (2) Assignment of responsibility.—
      (A) In general.— Subject to the other provisions of this section, with the written agreement of the Secretary and a State, which may be in the form of a memorandum of understanding, the Secretary may assign, and the State may assume, the responsibilities of the Secretary with respect to one or more highway projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
      (B) Additional responsibility.— If a State assumes responsibility under subparagraph (A)—
        (i) the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of a specific project;
        (ii) at the request of the State, the Secretary may also assign to the State, and the State may assume, the responsibilities of the Secretary with respect to 1 or more railroad, public transportation, or multimodal projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
        (iii) in a State that has assumed the responsibilities of the Secretary under clause (ii), a recipient of assistance under chapter 53 of title 49 may request that the Secretary maintain the responsibilities of the Secretary with respect to 1 or more public transportation projects within the State under the National Environmental Policy Act of 1969 (42 U.S.C. [1] 4321 et seq.); but
        (iv) the Secretary may not assign—
          (I) any responsibility imposed on the Secretary by section 134 or 135 or section 5303 or 5304 of title 49; or
          (II) responsibility for any conformity determination required under section 176 of the Clean Air Act (42 U.S.C. 7506).
      (C) Procedural and substantive requirements.— A State shall assume responsibility under this section subject to the same procedural and substantive requirements as would apply if that responsibility were carried out by the Secretary.
      (D) Federal responsibility.— Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary.
      (E) No effect on authority.— Nothing in this section preempts or interferes with any power, jurisdiction, responsibility, or authority of an agency, other than the Department of Transportation, under applicable law (including regulations) with respect to a project.
      (F) Preservation of flexibility.— The Secretary may not require a State, as a condition of participation in the program, to forego project delivery methods that are otherwise permissible for projects.
      (G) Legal fees.— A State assuming the responsibilities of the Secretary under this section for a specific project may use funds apportioned to the State under section 104 (b)(2) for attorneys’ fees directly attributable to eligible activities associated with the project.
(b) State Participation.—
    (1) Participating states.— All States are eligible to participate in the program.
    (2) Application.— Not later than 270 days after the date on which amendments to this section by the MAP-21 take effect, the Secretary shall amend, as appropriate, regulations that establish requirements relating to information required to be contained in any application of a State to participate in the program, including, at a minimum—
      (A) the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;
      (B) verification of the financial resources necessary to carry out the authority that may be granted under the program; and
      (C) evidence of the notice and solicitation of public comment by the State relating to participation of the State in the program, including copies of comments received from that solicitation.
    (3) Public notice.—
      (A) In general.— Each State that submits an application under this subsection shall give notice of the intent of the State to participate in the program not later than 30 days before the date of submission of the application.
      (B) Method of notice and solicitation.— The State shall provide notice and solicit public comment under this paragraph by publishing the complete application of the State in accordance with the appropriate public notice law of the State.
    (4) Selection criteria.— The Secretary may approve the application of a State under this section only if—
      (A) the regulatory requirements under paragraph (2) have been met;
      (B) the Secretary determines that the State has the capability, including financial and personnel, to assume the responsibility; and
      (C) the head of the State agency having primary jurisdiction over highway matters enters into a written agreement with the Secretary described in subsection (c).
    (5) Other federal agency views.— If a State applies to assume a responsibility of the Secretary that would have required the Secretary to consult with another Federal agency, the Secretary shall solicit the views of the Federal agency before approving the application.
(c) Written Agreement.— A written agreement under this section shall—
    (1) be executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway construction;
    (2) be in such form as the Secretary may prescribe;
    (3) provide that the State—
      (A) agrees to assume all or part of the responsibilities of the Secretary described in subsection (a);
      (B) expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary assumed by the State;
      (C) certifies that State laws (including regulations) are in effect that—
        (i) authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
        (ii) are comparable to section 552 of title 5, including providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
      (D) agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
    (4) require the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;
    (5) have a term of not more than 5 years; and
    (6) be renewable.
(d) Jurisdiction.—
    (1) In general.— The United States district courts shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under this section.
    (2) Legal standards and requirements.— A civil action under paragraph (1) shall be governed by the legal standards and requirements that would apply in such a civil action against the Secretary had the Secretary taken the actions in question.
    (3) Intervention.— The Secretary shall have the right to intervene in any action described in paragraph (1).
(e) Effect of Assignment of Responsibility.— A State that assumes responsibility under subsection (a)(2) shall be solely responsible and solely liable for carrying out, in lieu of and without further approval of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (j).
(f) Limitations on Agreements.— Nothing in this section permits a State to assume any rulemaking authority of the Secretary under any Federal law.
(g) Audits.—
    (1) In general.—To ensure compliance by a State with any agreement of the State under subsection (c) (including compliance by the State with all Federal laws for which responsibility is assumed under subsection (a)(2)), for each State participating in the program under this section, the Secretary shall—
      (A) not later than 180 days after the date of execution of the agreement, meet with the State to review implementation of the agreement and discuss plans for the first annual audit;
      (B) conduct annual audits during each of the first 4 years of State participation; and
      (C) ensure that the time period for completing an annual audit, from initiation to completion (including public comment and responses to those comments), does not exceed 180 days.
    (2) Public availability and comment.—
      (A) In general.— An audit conducted under paragraph (1) shall be provided to the public for comment.
      (B) Response.— Not later than 60 days after the date on which the period for public comment ends, the Secretary shall respond to public comments received under subparagraph (A).
    (3) Audit team.—
      (A) In general.‐ An audit conducted under paragraph (1) shall be carried out by an audit team determined by the Secretary, in consultation with the State, in accordance with subparagraph (B).
      (B) Consultation.‐ Consultation with the State under subparagraph (A) shall include a reasonable opportunity for the State to review and provide comments on the proposed members of the audit team.
(h) Monitoring.— After the fourth year of the participation of a State in the program, the Secretary shall monitor compliance by the State with the written agreement, including the provision by the State of financial resources to carry out the written agreement.
(i) Report to Congress.— The Secretary shall submit to Congress an annual report that describes the administration of the program.
(j) Termination.—
    (1) Termination by the Secretary.— The Secretary may terminate the participation of any State in the program if—
      (A) the Secretary determines that the State is not adequately carrying out the responsibilities assigned to the State;
      (B) the Secretary provides to the State—
        (i) a notification of the determination of noncompliance;
        (ii) a period of not less than 120 days to take such corrective action as the Secretary determines to be necessary to comply with the applicable agreement; and
        (iii) on request of the Governor of the State, a detailed description of each responsibility in need of corrective action regarding an inadequacy identified under subparagraph (A); and
      (C) the State, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary.
    (2) Termination by the state.— The State may terminate the participation of the State in the program at any time by providing to the Secretary a notice by not later than the date that is 90 days before the date of termination, and subject to such terms and conditions as the Secretary may provide.
(k) Capacity Building.— The Secretary, in cooperation with representatives of State officials, may carry out education, training, peer‐exchange, and other initiatives as appropriate—
    (1) to assist States in developing the capacity to participate in the assignment program under this section; and
    (2) to promote information sharing and collaboration among States that are participating in the assignment program under this section.
(l) Relationship to Locally Administered Projects.— A State granted authority under this section may, as appropriate and at the request of a local government—
    (1) exercise such authority on behalf of the local government for a locally administered project; or
    (2) provide guidance and training on consolidating and minimizing the documentation and environmental analyses necessary for sponsors of a locally administered project to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any comparable requirements under State law.
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The Final Rule (23 CFR 773) establishes the requirements relating the information that must be contained in the State application to participate in the program.

23 CFR § 773—Surface Transportation Project Delivery Program Application Requirements and Termination

Authority: 23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 1.85
Source: 79 FR 55398, Sept. 16, 2014, unless otherwise noted.

§773.101 Purpose.

The purpose of this part is to establish the requirements for an application by a State to participate in the Surface Transportation Project Delivery Program (Program). The Program allows, under certain circumstances, the Secretary to assign and a State to assume the responsibilities under the National Environmental Policy Act of 1969 (NEPA) and for environmental review, consultation, or other action required under certain Federal environmental laws with respect to one or more highway, railroad, public transportation, or multimodal projects within the State.

§773.103 Definitions.

Unless otherwise specified in this part, the definitions in 23 U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in this part:

Classes of projects means either a defined group of projects or all projects to which Federal environmental laws apply.

Federal environmental law means any Federal law, regulation, or Executive Order (E.O.) under which the Secretary of the U.S. Department of Transportation (DOT) has responsibilities for environmental review, consultation, or other action with respect to the review or approval of a highway, railroad, public transportation, or multimodal project. The Federal environmental laws for which a State may assume the responsibilities of the Secretary under this Program include the list of laws contained in Appendix A to this part.

Highway project means any undertaking that is eligible for financial assistance under title 23 U.S.C. and for which the Federal Highway Administration has primary responsibility. A highway project may include an undertaking that involves a series of contracts or phases, such as a corridor, and also may include anything that may be constructed in connection with a highway, bridge, or tunnel. The term highway project does not include any project authorized under 23 U.S.C. 202, 203, or 204 unless the State will design and construct the project.

MOU means a Memorandum of Understanding, a written agreement that complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Operating Administration means any agency established within the DOT, including the Federal Aviation Administration, Federal Highway Administration (FHWA), Federal Motor Carrier Safety Administration, Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Maritime Administration, National Highway Traffic Safety Administration, Office of the Secretary of Transportation, Pipeline and Hazardous Materials Safety Administration, and Saint Lawrence Seaway Development Corporation.
Program means the “Surface Transportation Project Delivery Program” established under 23 U.S.C. 327.

Public transportation project means a capital project or operating assistance for “public transportation,” as defined in chapter 53 of title 49 U.S.C.

Railroad project means any undertaking eligible for financial assistance from FRA to construct (including initial construction, reconstruction, replacement, rehabilitation, restoration, or other improvements) a railroad, as that term is defined in 49 U.S.C. 20102, including: environmental mitigation activities; an undertaking that involves a series of contracts or phases, such as a railroad corridor; and anything that may be constructed in connection with a railroad. The term railroad project does not include any undertaking in which FRA provides financial assistance to Amtrak or private entities.

State means any agency under the direct jurisdiction of the Governor of any of the 50 States or Puerto Rico, or the mayor in the District of Columbia, which is responsible for implementing highway, public transportation, or railroad projects eligible for assignment. The term “State” does not include agencies of local governments, transit authorities or commissions under their own board of directors, or State-owned corporations.

§773.105 Eligibility.

(a) Applicants. A State must comply with the following conditions to be eligible and to retain eligibility for the Program.
    (1) For highway projects:
      (i) The State must act by and through the State Department of Transportation (State DOT) established and maintained in conformity with 23 U.S.C. 302 and 23 CFR 1.3;
      (ii) The State expressly consents to accept the jurisdiction of the Federal courts for compliance, discharge, and enforcement of any responsibility assumed by the State;
      (iii) The State has laws in effect that authorize the State to take the actions necessary to carry out the responsibilities it is assuming;
      (iv) The State has laws in effect that are comparable to the Freedom of Information Act (FOIA) (5 U.S.C. 552), including laws providing that any decision regarding the public availability of a document under those State laws is reviewable by a court of competent jurisdiction; and
      (v) The State has the financial and personnel resources necessary to carry out the responsibilities it is assuming.
    (2) For railroad or public transportation projects:
      (i) The State must comply with paragraphs (a)(1)(ii) through (v) of this section; and
      (ii) The State must have assumed the responsibilities of the Secretary under this part with respect to one or more highway projects.
(b) Responsibilities. Responsibilities eligible for Program assignment and State assumption include all NEPA responsibilities and all or part of the reviews, consultations, and other actions required under other environmental laws, regulations, and E.O.s. Appendix A to this part contains an example list of other environmental laws, regulations, and E.O.s that may be assigned to and assumed by the State. These may include the environmental review responsibilities for the elements of a multimodal project that are within an applicable Operating Administration's jurisdiction. The following responsibilities are ineligible for Program assignment and State assumption:
    (1) Conformity determinations required under section 176 of the Clean Air Act (42 U.S.C. 7506);
    (2) The Secretary's responsibilities under 23 U.S.C. 134 and 135;
    (3) The Secretary's responsibilities under 49 U.S.C. 5303 and 5304;
    (4) The Secretary's responsibilities for government-to-government consultation with Indian tribes;
    (5) The Secretary's responsibilities for approvals that are not considered to be part of the environmental review of a project, such as project approvals, Interstate access approvals, and safety approvals; and
    (6) The Secretary's responsibilities under NEPA and for reviews, consultations, and other actions required under other Federal environmental laws for actions of Operating Administrations other than FHWA, FRA, and FTA.
(c) Projects. Environmental reviews ineligible for assignment and State assumption under the Program include reviews for the following types of projects:
    (1) Projects that cross State boundaries, and
    (2) Projects adjacent to or that cross international boundaries.
(d) Discretion retained. Nothing in this section limits an Operating Administration's discretion to withhold approval of assignment of eligible responsibilities or projects under this Program.

§773.107 Pre-application requirements.

(a) Coordination meeting. The State must request and participate in a pre-application coordination meeting with the appropriate Division or Regional, and Headquarters office of the applicable Operating Administration(s) before soliciting public comment on its application.
(b) Public comment. The State must give notice of its intention to participate in the Program and must solicit public comment by publishing the complete application in accordance with the appropriate State public notice laws not later than 30 days prior to submitting its application to the appropriate Operating Administration(s). If allowed under State law, publishing a statewide notice of availability of the application rather than the application itself may satisfy the requirements of this provision so long as the complete application is made available on the internet and is reasonably available to the public for inspection. Solicitation of public comment must include solicitation of the views of other State agencies, tribal agencies, and Federal agencies that may have consultation or approval responsibilities associated with the project(s) within State boundaries.
    (1) The State requesting FTA's responsibilities with respect to public transportation projects must identify and solicit public comment from potential recipients of assistance under chapter 53 of title 49 U.S.C. These comments may include requests for the Secretary to maintain the environmental review responsibilities with respect to one or more public transportation projects.
    (2) The State must submit copies of all comments received as a result of the publication of the respective application(s). The State must summarize the comments received, develop responses to substantive comments, and note any revisions or actions taken in response to the public comment.
(c) Sovereign immunity waiver. The State must identify and complete the process required by State law for consenting and accepting exclusive Federal court jurisdiction with respect to compliance, discharge, and enforcement of any of the responsibilities being sought.
(d) Comparable State laws. The State must determine that it has laws that are in effect that authorize the State to take actions necessary to carry out the responsibilities the State is seeking and a public records access law that is comparable to FOIA. The State must ensure that it cures any deficiency in applicable State laws before submitting its application.

§773.109 Application requirements.

(a) Highway project responsibilities. An eligible State DOT may submit an application to FHWA to participate in the Program for one or more highway projects or classes of highway projects. The application must include:
    (1) The highway projects or classes of highway projects for which the State is requesting assumption of Federal environmental review responsibilities under NEPA. The State must specifically identify in its application each highway project for which a draft environmental impact statement has been issued and for which a final environmental impact statement is pending, prior to the submission of its application;
    (2) Each Federal environmental law, review, consultation, or other environmental responsibility the State seeks to assume under this Program. The State must indicate whether it proposes to phase-in the assumption of these responsibilities, i.e., initially assuming only some responsibilities with a plan to assume additional responsibilities at specific future times;
    (3) For each responsibility requested in paragraphs (a)(1) and (2) of this section, the State must describe how it intends to carry out these responsibilities. Such description must include:
      (i) A summary of State procedures currently in place to guide the development of documents, analyses, and consultations required to fulfill the environmental review responsibilities requested. For States that have comparable State environmental review procedures, the discussion should describe the differences, if any, between the State environmental review process and the Federal environmental review process, focusing on any standard that is mandated by State law, regulation, executive order, or policy that is not applicable to the Federal environmental review. The State must submit a copy of the procedures with the application unless these are available electronically. The State may submit the procedures electronically, either through email or by providing a hyperlink;
      (ii) Any changes that the State has made or will make in the management of its environmental program to provide the additional staff and training necessary for quality control and assurance, appropriate levels of analysis, adequate expertise in areas where the State is requesting responsibilities, and expertise in management of the NEPA process and reviews under other Federal environmental laws;
      (iii) A discussion of how the State will conduct legal reviews for the environmental documents it produces, including legal sufficiency reviews where required by law, policy, or guidance;
      (iv) A discussion of how the State will identify and address those projects that without assignment would have required FHWA Headquarters' prior concurrence of the final environmental impact statement under 23 CFR 771.125(c); and
      (v) A discussion of otherwise permissible project delivery methods the State intends to pursue, and the process it will use to decide whether pursuing those project delivery methods and being responsible for the environmental review meet the objectivity and integrity requirements of NEPA.
    (4) A verification of the personnel necessary to carry out the authority that the State may assume under the Program. The verification must contain the following information:
      (i) A description of the staff positions, including management, that will be dedicated to fulfilling the additional functions needed to perform the assigned responsibilities;
      (ii) A description of any changes to the State's organizational structure that would be necessary to provide for efficient administration of the responsibilities assumed; and
      (iii) A discussion of personnel needs that may be met by the State's use of outside consultants, including legal counsel provided by the State Attorney General or private counsel;
    (5) A summary of the anticipated financial resources available to meet the activities and staffing needs identified in paragraphs (a)(3) and (4) of this section, and a commitment to make adequate financial resources available to meet these needs;
    (6) Certification and explanation by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has legal authority to assume the responsibilities of the Secretary for the Federal environmental laws and projects requested, and that the State consents to exclusive Federal court jurisdiction with respect to the responsibilities the State is requesting to assume. Such consent must be broad enough to include future changes in relevant Federal policies and procedures or allow for its amendment to include such future changes;
    (7) Certification by the State's Attorney General, or other State official legally empowered by State law to issue legal opinions that bind the State, that the State has laws that are comparable to FOIA, including laws that allow for any decision regarding the public availability of a document under those laws to be reviewed by a court of competent jurisdiction;
    (8) Evidence that the required notice and solicitation of public comment by the State relating to participation in the Program has taken place and copies of the State's responses to the comments;
    (9) A point of contact for questions regarding the application and a point of contact regarding the implementation of the Program (if different); and
    (10) The State Governor's (or in the case of District of Columbia, the Mayor's) signature approving the application. For the Secretary's responsibilities with respect to highway projects, the top ranking transportation official in the State who is charged with responsibility for highway construction may sign the application instead of the Governor.
(b) Public transportation project responsibilities. An eligible State may submit an application to FTA to participate in the Program for one or more public transportation projects or classes of public transportation projects. The application must provide the information required by paragraphs (a)(1) through (10) of this section, but with respect to FTA's program and the public transportation project(s) at issue. In addition, the application must include:
    (1) Evidence that FHWA has assigned to the State, or the State has requested assignment of the responsibilities of, FHWA with respect to one or more highway projects within the State under NEPA; and
    (2) Evidence that any potential recipients of assistance under chapter 53 of title 49 U.S.C. for any public transportation project or classes of public transportation projects in the State being sought for Program assignment have received written notice of the application with adequate time to provide comments on the application.
(c) Railroad project responsibilities. An eligible State may submit an application to FRA to participate in the Program for one or more railroad projects or classes of railroad projects. The application must provide the information required by paragraphs (a)(1) through (10) of this section, but with respect to the railroad project(s) at issue. In addition, the application must include evidence that FHWA has assigned to the State, or the State has requested assignment of, the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA.
(d) Multimodal project responsibilities. The Operating Administration(s) will presume that the responsibilities sought by the State include the Secretary's environmental review responsibilities for multimodal projects' elements that would otherwise fall under the Operating Administration's authority. These responsibilities include establishing appropriate relationships with the other Operating Administration(s) involved in the multimodal project, including cooperating agency, participating agency, and lead or co-lead agency relationships under NEPA. The State must affirmatively reject multimodal environmental review responsibilities in its application if it intends to have the responsibilities remain with the Operating Administration when a multimodal project is involved. In addition, States may:
    (1) Request the Secretary's environmental review responsibilities with respect to the highway, railroad, and/or public transportation elements of one or more particular multimodal projects by submitting an application with the information required in paragraphs (a)(1) through (10) of this section, but with respect to the multimodal project(s) at issue. The application must either request highway responsibilities for the multimodal project or include evidence that FHWA has assigned to the State, or the State has requested assignment of, the responsibilities of FHWA with respect to one or more highway projects within the State under NEPA; and
    (2) Request, at the same time the State applies for assignment of one of the Operating Administration's environmental review responsibilities, the general multimodal environmental review responsibilities of the other Operating Administration(s).
(e) Electronic submissions. Applications may be submitted electronically to the appropriate Operating Administration.
(f) Joint application. A State may submit joint applications for multiple Operating Administrations' responsibilities. A joint application should avoid redundancies and duplication of information to the maximum extent practicable. In its application, the State must distinguish the projects or classes of projects it seeks to assume by transportation mode. A joint application must provide all of the information required by each Operating Administration for which a State is seeking assignment. A State must submit joint applications to FHWA.
(g) Requests for additional information. The appropriate Operating Administration(s) may request that the State provide additional information to address any deficiencies in the application or clarifications that may be needed prior to determining that the application is complete.

§773.111 Application review and approval.

(a) The Operating Administration(s) must solicit public comment on the pending request and must consider comments received before rendering a decision on the State's application. Materials made available for this public review must include the State's application, a draft of the MOU, and a list of responsibilities sought by the State that the Operating Administration(s) proposes to retain. The notification may be a joint notification if two or more Operating Administrations are involved in the assignment for a project or a class of projects.
(b) If the Operating Administration(s) approves the application of a State, then the Operating Administration(s) will invite the State to execute the MOU.
(c) The Administrator for the appropriate Operating Administration will be responsible for approving the application and executing the MOU on behalf of the Operating Administration.
(d) The State's participation in the Program is effective upon full execution of the MOU. The Operating Administration's responsibilities under NEPA and any other environmental laws may not be assigned to or assumed by the State prior to execution of the MOU with the exception of renewal situations under §773.115(g) of this part.
(e) The MOU must have a term of not more than 5 years that may be renewed pursuant to §773.115 of this part.
(f) The State must publish the MOU and approved application on its Web site and other relevant State Web sites and make it reasonably available to the public for inspection and copying.

§773.113 Application amendments.

(a) After a State submits its application to the appropriate Operating Administration(s), but prior to the execution of the MOU(s), the State may amend its application at any time to request the addition or withdrawal of projects, classes of projects, or environmental review responsibilities consistent with the requirements of this part.

    (1) Prior to submitting any such amendment, the State must coordinate with the appropriate Operating Administration(s) to determine if the amendment represents a substantial change in the application to such an extent that additional notice and opportunity for public comment is needed. The Operating Administration is responsible for making the final decision on whether notice and public comment is needed and whether to provide one opportunity (pursuant to §773.107(b)) or two opportunities (pursuant to §773.107(b) and §773.111(a)) for public comment. The Operating Administration will make this determination based on the magnitude of the changes.
    (2) If the Operating Administration determines that notice and solicitation of public comment is needed pursuant to §773.107(b), the State must include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made in response to the comments.
(b) After the execution of the MOU(s) or renewal MOU(s), a State may amend its application to the appropriate Operating Administration(s) to request additional projects, classes of projects, or more environmental review responsibilities consistent with the requirements of this part.
    (1) Prior to requesting any such amendment, the State must coordinate with the appropriate Operating Administration(s) to determine if the amendment represents a substantial change in the application information to the extent that additional notice and opportunity for public comment is needed. The Operating Administration is responsible for making the final decision on whether notice and public comment are needed and whether to provide one opportunity (pursuant to §773.107(b) or §773.111(a)) or two opportunities (pursuant to §773.107(b) and §773.111(a)) for public comment. The Operating Administration will make this determination based on the magnitude of the changes.
    (2) If the Operating Administration determines that notice and solicitation of public comment is required pursuant to §773.107(b), the State must include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made in response to the comments.
    (3) The Operating Administration is responsible for making the final decision on whether to accept the amendment and whether an amendment to the MOU is required. Amendments do not change the expiration date of the initial or renewal MOU.

§773.115 Renewals.

(a) A State that intends to renew its participation in the Program must notify the appropriate Operating Administration(s) at least 12 months before the expiration of the MOU.
(b) Prior to requesting renewal, the State must coordinate with the appropriate Operating Administration(s) to determine if significant changes have occurred or new assignment responsibilities are being sought that would warrant statewide notice and opportunity for public comment prior to the State's submission of the renewal package. The Operating Administration is responsible for making the final decision on whether the State should engage in statewide notification prior to its submittal. The Operating Administration will make this determination based on the magnitude of the change(s) in the information and/or circumstances.
(c) The renewal package must:

    (1) Describe changes to the information submitted in the initial Program application;
    (2) Provide up-to-date certifications required in §773.109(a)(6) and (7) of this part for the applicable Operating Administration(s), if up-to-date certifications are needed or if the necessary State laws have termination dates that would occur before the end of a renewal period;
    (3) Provide evidence of the statewide public notification, if one was required under paragraph (b) of this section, and include copies of all comments received, responses to substantive comments, and note the changes, if any, that were made to the renewal package in response to the comments; and
    (4) Include the State Governor's (or in the case of District of Columbia, the Mayor's) signature approving the renewal package. For the Secretary's responsibilities with respect to highway projects, the top ranking transportation official in the State who is charged with responsibility for highway construction may sign the renewal package instead of the Governor.
(d) A State must submit a renewal package no later than 180 days prior to the expiration of the MOU.
(e) The Operating Administration(s) may request that the State provide additional information to address any deficiencies in the renewal application or to provide clarifications.
(f) The Operating Administration(s) must provide Federal Register notification and solicit public comment on the renewal request and must consider comments received before approving the State's renewal application. Materials made available for this public review will include the State's original application, the renewal package, a draft of the renewal MOU, a list of responsibilities sought by the State that the Operating Administration proposes to retain, and auditing and monitoring reports developed as part of the Program. The notification may be a joint notification if two or more Operating Administrations are involved in the assignment for a project or a class of projects.
(g) In determining whether to approve the State's renewal request, the Operating Administration will take into account the renewal package, comments received if an opportunity for public comments was provided in accordance with paragraph (f) of this section, the auditing and monitoring reports, and the State's overall performance in the Program. If the Operating Administration(s) approves the renewal request, then the Operating Administration(s) will invite the State to execute the renewal MOU. The Administrator for the appropriate Operating Administration will be responsible for approving the application and executing the renewal MOU on behalf of the Operating Administration. The renewal MOU must have a term of not more than 5 years, and the State must publish it on the State's DOT Web site and other relevant State Web site(s).
(h) At the discretion of the Operating Administration, a State may retain temporarily its assigned and assumed responsibilities under a MOU after the expiration of the MOU, where the relevant Operating Administration(s) determines that:
    (1) The State made a timely submission of a complete renewal application in accordance with the provisions of this section;
    (2) The Operating Administration(s) determines that all reasonable efforts have been made to achieve a timely execution of the renewal; and
    (3) The Operating Administration(s) determines that it is in the best interest of the public to grant the continuance.

§773.117 Termination.

(a) Termination by the Operating Administration. An Operating Administration(s) that approved the State's participation in the Program may terminate the State's participation if the Operating Administration(s) determines that the State is not adequately carrying out the responsibilities assigned to the State. Examples of situations where such a finding may be made include: persistent neglect of, or noncompliance with, any Federal laws, regulations, and policies; failure to address deficiencies identified during the audit or monitoring process; failure to secure or maintain adequate personnel and/or financial resources to carry out the responsibilities assumed; intentional noncompliance with the terms of the MOU(s); and persistent failure to adequately consult, coordinate, and/or take into account the concerns of other Operating Administrations, when applicable, and appropriate Federal, State, tribal, and local agencies with oversight, consulting, or coordination responsibilities under Federal environmental laws and regulations.
    (1) The Operating Administration(s) may rely on the auditing and monitoring reports as sources for a finding that the State is not adequately carrying out its responsibilities. The Operating Administration(s) may also rely on information on noncompliance obtained outside the auditing and monitoring process.
    (2) The Operating Administration(s) may not terminate a State's participation without providing the State with notification of the noncompliance issue that could give rise to the termination, and without affording the State an opportunity to take corrective action to address the noncompliance issue. The Operating Administration(s) must provide the State a period of no less than thirty (30) days to take the corrective actions. The Operating Administration(s) is responsible for making the final decision on whether the corrective action is satisfactory.
(b) Termination by the State. The State may terminate its participation at any time by notifying the Secretary no later than 90 days prior to the proposed termination date. The notice must include a draft transition plan detailing how the State will transfer the projects and responsibilities to the appropriate Operating Administration(s). Termination will not take effect until the State and the Operating Administration(s) agree, and the Operating Administration(s) approve a final transition plan. Transition plans must include:
    (1) A list of projects and their status in the environmental review process that the State will return to the Operating Administration(s);
    (2) A process for transferring files on pending projects;
    (3) A process for notifying the public that the State will terminate its participation in the Program and a projected date upon which this termination will take effect;
    (4) Points of contacts for pending projects; and
    (5) Any other information required by the Operating Administration(s) to ensure the smooth transition of environmental review responsibilities and prevent disruption in the environmental reviews of projects to the maximum extent possible.
(c) Termination by mutual agreement. The State and the Operating Administration(s) may agree to terminate assignment on a specific date before the expiration of the MOU. Termination will not take effect until the State and the Operating Administration(s) agree, and the Operating Administration(s) approve a final transition plan. Transition plans must include the information outlined in paragraphs (b)(1)-(5) of this section.
(d) Effect of termination of highway responsibilities. Termination of the assignment of the Secretary's environmental review responsibilities with respect to highway projects will result in the termination of assignment of environmental responsibilities for railroad, public transportation, and multimodal projects.

Appendix A to Part 773—Example List of the Secretary's Environmental Review Responsibilities That May Be Assigned Under 23 U.S.C. 327

Federal Procedures

NEPA, 42 U.S.C. 4321 et seq.
Regulations for Implementing the Procedural Provisions of NEPA at 40 CFR parts 1500-1508.
FHWA/FTA environmental regulations at 23 CFR part 771.
FRA's Procedures for Considering Environmental Impacts, 64 FR 28545, May 26, 1999 and 78 FR 2713, Jan. 14, 2013.
Clean Air Act, 42 U.S.C. 7401-7671q. Any determinations that do not involve conformity.
Efficient Environmental Reviews for Project Decisionmaking, 23 U.S.C. 139.

Noise

Noise Control Act of 1972, 42 U.S.C. 4901-4918.
Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521-47534.
FHWA noise regulations at 23 CFR part 772.

Wildlife

Endangered Species Act of 1973, 16 U.S.C. 1531-1544.
Marine Mammal Protection Act, 16 U.S.C. 1361-1423h.
Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f.
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
Migratory Bird Treaty Act, 16 U.S.C. 703-712.
Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801-1891d.

Historic and Cultural Resources

National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.
Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa-470mm.
Archeological and Historic Preservation Act, 16 U.S.C. 469-469c.
Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001-3013; 18 U.S.C. 1170.

Social and Economic Impacts

American Indian Religious Freedom Act, 42 U.S.C. 1996.
Farmland Protection Policy Act, 7 U.S.C. 4201-4209.

Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1387.
Section 404, 33 U.S.C. 1344
Section 401, 33 U.S.C. 1341
Section 319, 33 U.S.C. 1329
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
Coastal Zone Management Act, 16 U.S.C. 1451-1466.
Safe Drinking Water Act, 42 U.S.C. 300f—300j-26.
Rivers and Harbors Act of 1899, 33 U.S.C. 403.
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921.
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14).
FHWA wetland and natural habitat mitigation regulations at 23 CFR part 777.
Flood Disaster Protection Act, 42 U.S.C. 4001-4130.

Parklands

Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138.
FHWA/FTA Section 4(f) regulations at 23 CFR part 774.
Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11.

Hazardous Materials

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675.
Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9671-9675.
Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k.

Executive Orders Relating to Eligible Projects

E.O. 11990, Protection of Wetlands
E.O. 11988, Floodplain Management
E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations
E.O. 13112, Invasive Species

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Initial planning and coordination is an essential piece in preparing for the NEPA Assignment. Strong and continuing coordination between the State DOT and FHWA is needed to ensure that all affected parties (e.g., Federal agencies and the public) understand and provide feedback on the proposed assignment of responsibilities. The State DOT and FHWA should conduct several planning and coordination activities that are important when preparing to apply for the NEPA Assignment. The State DOT and FHWA can determine the order of addressing each activity, while considering that many will run concurrently.

State DOT staff should start their consideration of the NEPA Assignment Program with informal discussions with their FHWA Division Office and the Office of Project Development and Environmental Review staffs. These discussions should allow for posing questions, describing expectations, and laying out options for the possible scale of responsibilities a State might assume. For example, these discussions could result in helping a State DOT determine whether it should send a letter of interest and apply for the NEPA Assignment Program (23 U.S.C. 327) or proceed to develop an MOU to only assume CE responsibilities (23 U.S.C. 326).

plus sign Applying for NEPA Assignment
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FHWA regulation 23 CFR 773.109(a) describes the information required in a State's application to assume Federal environmental review responsibilities. FHWA recommends, but does not require, that the State DOT share draft versions of the application with the FHWA constituents of a working group (FHWA Division Office, FHWA-Office of Project Development and Environmental Review, FHWA Chief Counsel's Office, and FHWA Resource Center). These reviews are intended for FHWA to evaluate whether the application is complete and whether there are provisions that require clarification. The State DOT may find such informal reviews of the draft application to be of value, so as to address information that is missing, unclear, or difficult to understand. Review comments also may serve to prepare the State for the assignment (e.g., provide training for staff, make needed changes to procedures, organization charts, etc.) when the MOU becomes effective.

Once the State has a complete application, according to regulation [23 CFR 773.107(b)] it must publish a statewide notice of its availability for review and comment. The State should follow its own State procedures for notification and timing of this public review period (23 U.S.C. 327(b)(3)). After the close of the comment period, the State DOT must include all comments as part of their application submittal and respond to substantive comments by making revisions to the application (23 CFR 773.109(a)(8)). When the State DOT formally submits its application, FHWA may request that the State provide additional information to address any deficiencies in the application or provide clarifications that may be needed prior to determining that the application is complete. In addition to requesting this additional information, FHWA could direct the State DOT to disclose the revised application in a second public notice and comment period (23 CFR 773.113(a)). FHWA must solicit public comment on the pending request (including the State's application and draft MOU) and must consider comments received before rendering a decision on the State's application.

Letter of Interest

FHWA recommends, but does not require, that the State DOT's top official submit a letter of interest to the FHWA Division Administrator for their State. The letter would declare the State DOT's intent to submit an application for the Program. Appendix D provides example letters of interest. The timing of this letter is less important, whether it is before a briefing workshop or the passage of a waiver of sovereign immunity by the State's legislature. The State DOTs should send this letter once they are committed to pursue the NEPA Assignment Program. Upon receipt of this letter, the FHWA Division Administrator will commit resources and staff to assist the State in its preparation for the Program.

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A State DOT's eligibility to meet the NEPA Assignment Program's application requirements hinges on the State having waived its sovereign immunity under the Eleventh Amendment to the U.S. Constitution. The State must have a waiver in place to submit the application for NEPA Assignment to FHWA and to enable the execution of the MOU (23 CFR 773.107(c)). This waiver is a statement, typically codified in law, stating that the State consents to and accepts the exclusive jurisdiction of the Federal courts with respect to compliance, discharge, and enforcement of any of the responsibilities being assigned in the MOU.

The process for consenting to Federal court jurisdiction and waiving sovereign immunity varies from State to State. Many States require State legislative action but there may be States where gubernatorial action may be sufficient. The waiver must be legally valid. The State's attorneys would be in the best position to determine the validity; and a legally binding opinion from the State's attorney would ensure that the waiver is valid and supported by law. Typically the appropriate attorney to issue such an opinion is the State Attorney General, but in some States the State DOT general counsel may have the authority under the State Constitution or State statute to issue legal opinions that bind the State.

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map of the U.S showing states where NEPA Assignment is in place (CA, UT, TX, OH, and FL), states where NEPA Assignment is in progress (AK), and states where there is NEPA Assignment interest (ID)
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Reports to Congress

Audit Reports

California

Texas

Monitoring Reports

State Self Assessments


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