State Section 106 Programmatic Agreement

THIRD AMENDED PROGRAMMATIC AGREEMENT AMONG THE FEDERAL HIGHWAY ADMINISTRATION,
THE UTAH STATE HISTORIC PRESERVATION OFFICER, THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ARMY CORPS OF ENGINEERS, SACRAMENTO DISTRICT, AND THE UTAH DEPARTMENT OF TRANSPORTATION

REGARDING

SECTION 106 IMPLEMENTATION FOR FEDERAL-AID TRANSPORTATION PROJECTS IN THE STATE OF UTAH

WHEREAS, the Federal Highway Administration (FHWA), under the authority of 23 U.S.C. 101 et seq., implements the Federal-aid Highway Program (Program) in the state of Utah by funding and approving state and locally sponsored transportation projects that are administered by the Utah Department of Transportation (UDOT); and

WHEREAS, Title 23 United States Code Section 327 (23U.S.C. 327) and 23 United States Code Section 326 (23U.S.C. 326) allows the United States Department of Transportation Secretary, acting through FHWA, to assign responsibilities for compliance with the National Environmental Policy Act of 1969 (NEPA) and other federal environmental laws to a State Department of Transportation through a memorandum of understanding; and

WHEREAS, UDOT and FHWA, entered into a NEPA Assignment Memorandum of Understanding (NEPA MOU) concerning the UDOT’s participation in the Program in which FHWA assigned and UDOT assumed FHWA’s responsibilities under NEPA and Section 106 of the National Historic Preservation Act (NHPA), as amended, and codified in its implementing regulations, 36 CFR Part 800, as amended (August 5, 2004); and

WHEREAS, pursuant to the NEPA MOU, UDOT is deemed to be a federal agency for all Federal-aid Highway projects it has assumed, and in that capacity UDOT assigned the role of “agency official” to the UDOT Division of Environmental Services Director for the purpose of compliance with 36 C.F.R. Part 800; and

WHEREAS, FHWA Utah Division Administrator retains responsibility for environmental review, consultation and decision-making for specific undertakings identified in the NEPA MOU and therefore shall be the “agency official” for those specific undertakings; and

WHEREAS, the United States Army Corps of Engineers, Sacramento District (USACE) may also have an Undertaking with Section 106 responsibilities because it issues a Clean Water Act Section 404 permit for discharges of dredged or fill material into jurisdictional waters of the United States associated with a FHWA/UDOT project; and

WHEREAS, for the purpose of Section 106 compliance for all Federal undertakings pertaining to the Federal-aid Highway Program, the USACE has participated in this consultation, will recognize UDOT as the lead Federal agency, and has been invited to be a signatory to this agreement pursuant to 36 CFR 800.2(a)(2); and

WHEREAS, UDOT administers Federal-aid projects throughout the State of Utah as authorized by Title 23 U.S.C. 302 and Sections 72-1-201 and 72-2-111 of the Utah Code and has participated in this consultation, and has been invited to be a signatory to this Agreement; and

WHEREAS, the responsibilities of the Utah State Historic Preservation Officer (SHPO) under Section 106 of the NHPA and 36 CFR Part 800 are to advise, assist, review, and consult with Federal agencies as they carry out their historic preservation responsibilities and to respond to Federal agencies’ requests within a specified period of time and has been invited to be a signatory to this Agreement; and

WHEREAS, FHWA, UDOT, and USACE have determined that implementation of the Program in Utah may have an effect upon properties included in, or eligible for inclusion in, the National Register of Historic Places (NRHP), hereafter referred to as historic properties, and has consulted with the Utah State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (Council) pursuant to 36 CFR 800.14(b); and

WHEREAS, pursuant to the consultation conducted under 36 CFR 800.14(b), the signatories have developed this Programmatic Agreement (Agreement) in order to establish an efficient and effective program alternative for taking into account the effects of the Program on historic properties in Utah and for affording the Council a reasonable opportunity to comment on undertakings covered by this agreement; and

WHEREAS, FHWA has notified the public, Federal and State agencies, Certified Local Governments (CLGs), and federally recognized Indian tribes (Tribes) with ancestral lands in Utah about this Agreement, has requested their comments, and has taken any comments received into account. These Tribes include the Confederated Tribes of the Goshute Reservation, Northern Arapaho, Hopi, Eastern Shoshone Tribe of the Wind River Reservation, Navajo Nation, Northwestern Band of Shoshone Nation, Paiute Indian Tribe of Utah, San Juan Southern Paiute Tribe, Skull Valley Band of Goshute Indians, Ute Indian Tribe, Ute Mountain Ute Tribe, and White Mesa Band of Ute Mountain Ute Tribe; and

WHEREAS, FHWA and the Corps, as federal agencies, have a unique legal relationship with Indian tribes as set forth in the Constitution of the United States, treaties, statues, executive orders and court decision, and while an Indian tribe may agree to work directly with UDOT as part of the 36 C.F.R Part 800 compliance process, the FHWA and the USACE remain legally responsible for government-to-government consultation with Indian tribes; and

WHEREAS, this Agreement shall supersede the previous letter agreement between FHWA, SHPO, and UDOT (June 6, 1990; Delegation of Section 106 Responsibility); and

WHEREAS, the parties to this Agreement (except USACE) executed an earlier agreement on April 16, 2007, entitled Programmatic Agreement Among the Federal Highway Administration, the Utah Department of Transportation, the Utah State Historic Preservation Officer, and the Advisory Council on Historic Preservation Regarding Section 106 Implementation for Federal-Aid Transportation Projects in the State of Utah., which was amended on April 16, 2010 and June 3, 2013. This 3^rd amendment of the Agreement replaces and supersedes the earlier agreements in full.

NOW, THEREFORE, FHWA, SHPO, Council, USACE, and UDOT agree that the Program in Utah shall be carried out in accordance with the following stipulations in order to take into account the effects of the Program on historic properties in Utah and that these stipulations shall govern compliance of the Program with Section 106 of the NHPA until this Amended Programmatic Agreement expires or is terminated.

STIPULATIONS

UDOT, either as assigned by FHWA or under FHWA’s authority through this Agreement, shall ensure that the following measures are carried out. For those projects where FHWA has retained NEPA responsibilities, FHWA will ensure that the stipulations are carried out. To aid the signatories of this PA, the stipulations are organized in the following order:

1. Applicability and Scope
2. Definitions
3. Professional Qualifications Standards
4. Responsibilities
5. Consultation with Tribes
6. Participation of Other Consulting Parties and the Public
7. CE Delegation
8. Project Review
9. The Section 106 Process
10. Emergency Situations
11. Post-Review Discoveries
12. Treatment of Human Remains
13. Administrative Stipulations

I. APPLICABILITY AND SCOPE

1. This Agreement sets forth the process by which UDOT, will meet the responsibilities pursuant to Section 106 and 110 of the NHPA (16 U.S.C. 470f and 470h-2), as assigned by FHWA, and applies to all federal undertakings under the Program in Utah as detailed in the NEPA MOU. The NEPA MOU does not supersede the existing MOU between FHWA and UDOT under which FHWA, pursuant to 23 U.S.C 326 assigned its NEPA responsibilities to UDOT for projects that qualify as Categorical Exclusions (CE).
2. The objective of this Agreement is to make more efficient the methods by which UDOT reviews individual undertakings processed under Section 106 that may affect historic properties and to establish the process by which FHWA, Council, SHPO, USACE, and interested parties will be involved in any such review.
3. Through the NEPA MOU, FHWA authorizes UDOT to conduct consultation with SHPO and other consulting parties for purposes of compliance with Section 106 of the NHPA.
4. Through this Agreement, two tiers of project review are established, dependent upon the type of impacts to historic properties.
   1. Tier 1 Project Review: Tier 1 projects have the potential to affect historic properties, but following screening, may be determined to require no case-by-case review or consultation with SHPO because they result in a finding of no historic properties affected. Tier 1 undertakings must meet the criteria outlined in Stipulation VIII.A.4.
   2. Tier 2 Project Review: Tier 2 projects result in a finding of no adverse effect or adverse effect.
5. FHWA retains the responsibility for formal government-to-government consultation with Tribes as required under 36 CFR 800.16(m). UDOT may assist FHWA if individual Tribes agree to alternate procedures.
6. This Agreement shall not apply to undertakings that occur on or affect tribal lands as they are defined in 36 CFR 800.16(x). Tribal lands are all lands within the exterior boundaries of any Indian reservation, and all dependent Indian communities. For such undertakings, FHWA shall follow the procedures in 36 CFR Part 800.
7. This Agreement does not supersede existing agreements currently in use in Utah by FHWA, SHPO, Council, and UDOT, except for the June 6, 1990 delegation letter. These existing agreements remain in force and are separate from this Agreement. A list of these agreements is attached hereto as Attachment 2.
8. Cooperating Federal agencies who recognize UDOT as the lead Federal agency for an undertaking may fulfill their obligations under Section 106 of NHPA by having UDOT act on their behalf in fulfilling their collective responsibilities (36 CFR 800.2(a)(2)), provided UDOT follows the requirements of this Agreement and the cooperating agency’s undertaking does not have the potential to cause effects to historic properties beyond those considered by UDOT.
   1. UDOT will consult with other agencies involved in the undertaking (except USACE, who is a signatory to this Agreement) to reach an agreement that UDOT is the lead Federal agency for the undertaking, and that they will accept UDOT’s compliance with NHPA.
   2. These agencies will be considered consulting parties in the undertaking.
   3. All consultation with an agency regarding lead Federal agency status and compliance with Section 106 will be documented.
   4. The process whereby USACE meets their Section 106 compliance responsibilities on projects that need, or anticipate, a USACE permit, is outlined in Attachment 3.

II. DEFINITIONS

1. For purposes of this Agreement, the definitions provided in 36 CFR 800.16 (a) through (z) inclusive shall apply whenever applicable.
2. There are three classes of action defined in the Council on Environmental Quality regulations (40 CFR 1500) that implement the National Environmental Policy Act (NEPA): Categorical Exclusion (CE), Environmental Assessment (EA), and Environmental Impact Statement (EIS).
3. SAFETEA-LU = Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59).

III. PROFESSIONAL QUALIFICATIONS STANDARDS

All actions prescribed by this Agreement that involve the identification, evaluation, analysis, recording, treatment, monitoring, or disposition of historic properties, or that involve the reporting or documentation of such actions in the form of reports, forms, or other records, shall be carried out by or under the direct supervision of a person or persons who meets the Secretary of the Interior’s Professional Qualifications Standards (published in 48 FR 44738-44739) and who has been permitted (for archaeology only) by the state of Utah in accordance with U.C.A. 9-8-305 and its implementing rules, and who meets permit requirements of other agencies as appropriate. However, nothing in this stipulation may be interpreted to preclude UDOT or any agent or contractor thereof from using the services of persons who do not meet these qualifications standards, providing their activities are conducted under the direct supervision of a person who does meet the standards.

UDOT shall employ personnel trained, experienced, and qualified in the fields of archaeology, history, and architectural history (as defined in 36 CFR 61, Appendix A). They are designated as professionally qualified staff (PQS). All consultation with SHPO under this Agreement, and decisions made under Tier I, shall be performed by UDOT PQS.

IV. RESPONSIBILITIES

The following section identifies the responsibilities of FHWA and of UDOT in complying with the terms of this Agreement. These responsibilities are listed in more detail in Attachment 4.

A. FHWA Responsibilities

1. FHWA retains the responsibility for formal government-to-government consultation with Tribes as defined in 36 CFR 800.16(m). UDOT may assist FHWA in consultation if the individual Tribes agree to alternate procedures.

B. UDOT Responsibilities

Each PQS shall be responsible for ensuring that the following activities are carried out (Attachment 4). This list is not inclusive of all responsibilities of UDOT under this Agreement.

1. Consistent with the requirements of 36 CFR 800.2(a) and 800.2(c)(4), UDOT, as the agency official, is legally responsible for ensuring that the terms of this Agreement are carried out and for all findings and determinations made pursuant to this Agreement.
2. Determine whether the proposed federal action is an undertaking as defined in 36 CFR 800.16(y).
3. Determine under 36 CFR 800.3(a) whether the undertaking is a type of activity that has the potential to cause effects on historic properties
4. Determine under 36 CFR 800.3(c) and (d) whether the undertaking may occur on or has the potential to affect historic properties on tribal lands as they are defined in 36 CFR 800.16(x).
5. Solicit public comment and involvement, in accordance with 36 CFR 800.3(e) and UDOT’s public involvement procedures.
6. Except as identified in Stipulation V, identify additional consulting parties, including Tribes, as described in 36 CFR 800.3, and invite them to participate in the undertakings covered by this Agreement.
7. Determine and document the scope of identification efforts and level of effort, as described in 36 CFR 800.4 (a) and (b), including the undertaking’s area of potential effects (APE). SHPO consultation on the APE will not be required on routine projects (defined as those projects classified as a CE). For undertakings that are non-routine or those with the potential for substantial indirect and/or cumulative effects (EAs and EISs), SHPO shall be consulted in writing.
8. Determine boundaries for historic properties.
9. Determine the eligibility of properties within the APE for listing on the NRHP.
10. Determine whether historic properties may be affected by the undertaking. Assess effects by applying the criteria of adverse effects as described in 36 CFR 800.5(a)(1)
11. In consultation with USACE (if a permitted undertaking, and the adverse effects are on historic properties in the USACE jurisdictional APE), SHPO, and Council (if it has chosen to participate), resolve adverse effects through the development, circulation, and execution of a Memorandum of Agreement (MOA), if appropriate.
12. Ensure conformance with the Secretary of the Interior’s Standards and Guidelines for Archaeology and Historic Preservation; The Advisory Council on Historic Preservation – Section 106 Archaeology Guidance; UDOT’s Guidelines for Identifying, Recording, and Evaluating Archaeological and Paleontological Resources and UDOT’s Guidelines for Documenting and Evaluating Architectural Resources (2011), UDOT’s Environmental Manual of Instruction, and any successors to those guidelines; and applicable guidelines and procedures of land-managing agencies whose lands may be affected by the undertaking.
13. The UDOT PQS shall submit to the Utah Division of State History (UDSH) copies of all fieldwork reports, Utah Archaeology Site Forms, Reconnaissance Level Survey (RLS) forms, Intensive Level Survey (ILS) forms, and any other relevant documents and digital data. If a project qualifies as a Tier 1 project, these materials will be submitted quarterly in accordance with Stipulation VIII.C
14. Ensure curation of archaeological materials produced under this Agreement at a facility meeting the standards of 36 CFR 79 and U.C.A. 53B-17-603, as appropriate.

V. CONSULTATION WITH TRIBES

1. FHWA shall retain ultimate responsibility for complying with all federal requirements pertaining to formal government-to-government consultation with Tribes. Notwithstanding any other provision of this stipulation, FHWA shall honor the request of any Tribe for formal government-to-government consultation regarding an undertaking covered by this Agreement.
2. In accordance with 36 CFR 800.3(f)(2), any Tribes that might attach religious and cultural significance to historic properties in the area of potential effects shall be identified by UDOT and invited to be consulting parties.
3. UDOT shall ensure that consultation with Tribes is initiated early in the project planning process to identify cultural, confidentiality, or other concerns and to allow adequate time for consideration.
4. UDOT shall ensure that consultation continues with Tribes throughout the Section 106 review process prescribed by this Agreement whenever such tribes express a concern about an undertaking or about historic properties that may be affected by an undertaking.
5. Tribal consultation shall be done in accordance with 36 CFR Part 800, except where separate agreements have been executed with Tribes (Attachment 2).
6. If a Tribe requests formal government-to-government consultation with FHWA, Stipulations V.B-E will be the responsibility of FHWA, and, if the Tribe agrees, involve UDOT in that consultation process for the remainder of the project. If a Tribal request for government-to- government consultation with the federal government is received by UDOT, UDOT shall immediately inform FHWA. All correspondence with the Tribe prior to this request will be provided to FHWA. UDOT shall continue to carry out the remainder of responsibilities under this Agreement that are not the subject of government-to government consultation. This request will also apply to the consultation process for any post-review discoveries associated with the project, as described in Stipulation XI.B.
7. As described in Part 3.2.3 of the NEPA MOU, if a Tribe or FHWA determines that a project- specific issue or concern will not be satisfactorily resolved by UDOT where UDOT is deemed to be a federal agency, then FHWA may reassume all or part of the federal responsibilities for processing the project.

VI. PARTICIPATION OF OTHER CONSULTING PARTIES AND THE PUBLIC

A. Consulting Parties

1. Consulting parties shall be identified pursuant to, and their participation in undertakings covered under this Agreement shall be governed by, 36 CFR 800.2(c)(5) and 800.3(f). Other individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties. Other parties entitled to be consulting parties shall be invited by UDOT to participate in the Section 106 process. Any land-managing agency whose land may be affected by an undertaking shall be invited by UDOT to participate in the Section 106 process.
2. UDOT shall invite any local governments (including Certified Local Governments, or CLGs) or applicants that are entitled to be consulting parties under 36 CFR 800.2(c). UDOT shall consider all written requests of individuals and organizations to participate as consulting parties and determine which should be consulting parties for the undertaking.

B. Public Involvement

1. Public involvement in planning and implementing undertakings covered by this Agreement shall be governed by UDOT’s environmental compliance procedures. UDOT’s Public Involvement Policy and UDOT’s Manual of Instruction will provide guidance for identifying, informing, and involving the public. FHWA’s Technical Advisory (T6640.8A, October 30, 1987) and similar and subsequent guidance documents will also be used where appropriate. Public involvement and the release of information hereunder shall be consistent with 36 CFR 800.2(d), 800.3(e), and 800.11(c)(1) and (3).
2. The UDOT shall continue to seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, and the likely interest of the public in the effects on historic properties, to remain consistent with the intent of 36 CFR Part 800, as amended.
3. For those actions that do not routinely require public review and comment (e.g., certain activities classified as a CE), appropriate public involvement should be based on the specifics of the situation and commensurate with the type and location of historic properties, and the undertaking’s potential impacts on them.
4. The UDOT shall make SHPO, and the USACE aware of any and all public controversy as it relates to the historic properties potentially affected by the proposed undertaking, including properties of religious and/or cultural significance to the Tribes.

VII. SECTION 106 DELEGATION

1. UDOT, under 23U.S.C 327 and 23U.S.C.326, has assumed full responsibility for Section 106 compliance pursuant to the MOUs in Attachment 1 of this Agreement. UDOT shall be deemed to be a Federal agency for those undertakings for the duration of this delegation.
2. UDOT shall satisfy the provisions of Section 106 of the NHPA, 36 CFR 800, and Section 4(f) of the DOT Act of 1966 by complying with the stipulations of this Agreement.
3. FHWA shall retain responsibility for formal government-to-government consultation with Tribes as defined in 36 CFR 800.16(m).
   1. If UDOT resolves any project-specific Tribal issues or concerns, FHWA’s role in the environmental process shall be limited to carrying out the formal government-to-government consultation process.
   2. If FHWA determines through consultation with a Tribe, or a Tribe indicates to FHWA, that the proposed resolution of Tribal issues or concerns by UDOT is not adequate and requires government-to-government consultation to resolve, FHWA shall reassume responsibility for Section 106 for that project while continuing to comply with the stipulations of this Agreement.
4. FHWA will provide necessary and appropriate monitoring and oversight of UDOT’s Section 106 compliance and this Agreement. Monitoring will primarily consist of regular audits and assessment of performance measures as detailed in the NEPA MOU in Attachment 1.
5. In furtherance of those obligations, FHWA may elect to attend meetings between UDOT and another agency, and may submit comments to UDOT and the other agency, if FHWA determines that an issue between UDOT and the other agency has broad or unique policy implications for the administration of the state or national program.

VIII. PROJECT REVIEW

A. Tier 1 Project Review

1. 1. Tier 1 undertakings are those undertakings that have the potential to affect historic properties, but following appropriate screening, may be determined to require no further review or consultation under this Agreement. Pursuant to consultation with the other signatories to this Agreement, UDOT has identified undertakings that meet certain criteria and that will be addressed in accordance with Attachment 5 to this Agreement. The undertakings classified in this Attachment as Tier 1 undertakings do not require case-by-case review by SHPO, but may be reviewed by SHPO in a quarterly report under this Agreement when the steps set forth in the Attachment have been satisfactorily completed and when UDOT determines that no condition of the undertaking necessitates further review pursuant to this Agreement.
2. The PQS is responsible for screening undertakings to determine if those individual undertakings require further consideration, or if they may be determined not to require further review or consultation under the terms of this Agreement. The UDOT PQS may consult at any time, either formally or informally, with SHPO on any undertaking.
3. The PQS shall include the identification of all known storage, disposal, or borrow areas and construction easements, prior to the screening process. If additional project areas are added to a screened undertaking, the undertaking must be re-screened.
4. The criteria for determining if an undertaking requires no further review and consultation beyond the screening assessment and documentation of decision making by UDOT, are as follows:
   1. Has no known public controversy based on historic preservation issues; and
   2. Has one of the following effect findings:
      1. No Historic Properties Affected: no cultural resources present, as determined by UDOT PQS; or
      2. No Historic Properties Affected: no historic properties (i.e., eligible for the National Register) present, as determined by UDOT PQS; or
      3. No Historic Properties Affected: Historic properties are present, but are completely avoided by the undertaking and there is no or negligible potential for adverse indirect effects, as determined by UDOT PQS.
5. If a cultural resource inventory is conducted under this stipulation, any cultural resource reports generated from the survey shall be submitted to the UDSH quarterly for filing, in accordance with Stipulation VIII.C.
6. The UDOT Standard Specification 01355, Part 3.8, Discovery Of Historical, Archaeological, or Paleontological Objects, Features, Sites, Human Remains (Attachment 6), applies to all UDOT projects and will be referenced in all environmental documents (CEs, EAs, EISs).
7. The requirements for reporting on the projects that qualify and are processed as Tier 1 undertakings will be in accordance with Attachment 5.
8. The PQS will ensure that the documentation in Attachment 5 is included in the appropriate NEPA document and project file. For Tier 1 undertakings, to document compliance in USACE decisions, UDOT shall notify USACE by submittal of screening form in permit application.
9. UDOT administratively completes Section 106 activities and assumes authority, responsibility, and liability for all actions, findings, and determinations.

B. Tier 2 Project Review

Tier 2 projects are all other projects not processed as Tier 1 projects (i.e., projects that result in a finding of no adverse effect or adverse effect). UDOT administratively completes Section 106 activities, and assumes authority, responsibility, and liability for all actions, findings, and determinations.

C. Quarterly Reports

1. On a quarterly basis (no later than January 15, April 15, July 15, and October 15), the UDOT Region PQS shall submit to the UDOT Central PQS a list of all projects that were processed as screened undertakings (Tier 1) (Attachment 5) in that quarter. The Central PQS will compile a complete list of Tier 1 projects, including assigned projects, for submission to FHWA, SHPO, and USACE within 30 days from the end of the quarter (submitted January 31, April 30, July 31, and October 31).
2. This list shall include the county, project name and number, type of undertaking, level of effort, consultation measures, and a description of any archaeological sites, buildings, or structures evaluated during the project. The list will also indicate which projects require a USACE permit.
3. All cultural resource reports, site forms, and other documentation for undertakings completed during the quarter, will be submitted to the SHPO by UDOT.
4. UDOT will provide the list to SHPO and USACE, who will review it for compliance with this Agreement. If there are objections regarding the manner in which the terms of this Agreement are being carried out, the parties to this agreement will proceed in accordance with Stipulation XIII.C.
5. Similar reporting of the Tier 1 undertakings will be included in the annual self-assessment report to FHWA in accordance with the 23 U.S.C. 326 MOU (Attachment 1).

IX. THE SECTION 106 PROCESS

For all undertakings reviewed pursuant to this Agreement, UDOT shall use the following process:

A. Initiation of the Section 106 Process

1. Establish the undertaking, determine if the undertaking is a type of activity that has the potential to cause effects on historic properties, and determine if the undertaking will occur on Tribal lands, or if the undertaking will require consultation with USACE. Coordination with USACE should be conducted early in the Section 106 process in order to determine if a permit is required.
2. If UDOT determines that the undertaking is one with no potential to cause effects, UDOT will document this decision in the project record and Section 106 is complete. Otherwise, continue the process.
3. Identify the appropriate SHPO.
4. Identify consulting parties, including Tribes, as appropriate, during the early stages of Section 106 review. If UDOT wishes to consult with SHPO on the identification of consulting parties, SHPO shall have 15 days to respond or concur. If SHPO does not respond within that time period, UDOT may assume that SHPO has no objections and may proceed.
5. Develop planning to involve the public, Tribes, USACE, and other consulting parties.
6. Begin consultation with consulting parties subject to limitations specified in Stipulation V.

B. Identification of Historic Properties

1. Pursuant to 36 CFR 800.4(a), UDOT shall determine the scope of identification efforts, including determining and documenting the undertaking’s area of potential effects (APE), as defined at 36 CFR 800.16(d) and Attachment 7. If UDOT wishes to consult with SHPO and the USACE (to ensure scope and APE cover USACE’s permit area) on the scope of the identification efforts and the definition of the APE, SHPO shall have 15 days to respond or concur. If SHPO does not respond within that time period, UDOT may assume that SHPO has no objections and may proceed.
2. Pursuant to 36 CFR 800.4(b), UDOT shall ensure the identification of historic properties that may be affected by an undertaking and gather information to evaluate the eligibility and integrity of these properties for listing in the NRHP.
3. Information shall be obtained through cultural resource surveys or other appropriate methods.
4. Identification of historic properties shall follow the Secretary of the Interior’s Standards and Guidelines for Identification (48 FR 44720-23), and should be consistent with guidance issued by SHPO, UDOT, and USACE and any other guidance, methodologies, agreements, or protocols that UDOT, and SHPO agree should be used to identify properties, including those of other land-managing agencies.
5. If no historic properties are found to be present in the APE, the project will be processed as a Tier 1, in accordance with Stipulation VIII.A.

C. Evaluating Historic Significance

1. UDOT shall evaluate the historic significance of identified properties in accordance with 36 CFR 800.4(c), and shall make appropriate findings regarding eligibility. Where historic property boundaries have not previously been established, the PQS will identify boundaries, following standards set forth in National Register Bulletin 21, Defining Boundaries for National Register Properties. UDOT shall consult with SHPO on the outcome of identification and evaluation of historic resources.
2. For undertakings that have properties that are determined by the PQS to be not eligible for inclusion in the NRHP, the project will be processed as a Tier 1, in accordance with Stipulation VIII.A.
3. UDOT may simultaneously request SHPO concurrence on findings of inventory, eligibility, and effect covered by 36 CFR 800.3 through 800.6, provided other consulting parties and the public are afforded an adequate opportunity to express their views pursuant to 36 CFR 800.2(d).
   1. If SHPO fails to comment on any findings contained in a submission within 30 calendar days of receipt, UDOT may assume they have no objection and proceed to the next step in the consultation process pursuant to 36 CFR 800.3(c)(4).
   2. For purposes of Section 4(f) (36 CFR 774), if SHPO does not respond to a request for concurrence in the determination of no adverse effect within 30 days, the non-response together with the written agreement in Attachment 8 will be considered written concurrence in the Section 106 determination that will be the basis of the de minimis impact finding by UDOT.
4. Agreements regarding the NRHP eligibility of properties evaluated hereunder, and any disagreements pertaining thereto, shall be governed by 36 CFR 800.4(c)(2), except that in the event of a disagreement, UDOT shall first consult with the disagreeing party to resolve the disagreement.
   1. If the disagreement cannot be resolved through informal consultation, UDOT, SHPO, and any consulting party shall consult to resolve the disagreement within a mutual acceptable time frame.
   2. If the disagreement is not resolved, UDOT shall refer the issue to the Keeper of the National Register to obtain a determination of eligibility.

D. Finding of Effect

1. No Historic Properties Affected
   1. If UDOT finds that either there are no historic properties present or there are historic properties present within the APE, but the undertaking will have no effect on them as defined in 36 CFR 800.16(i), UDOT shall make a finding of no historic properties affected (36 CFR 800.4(d)(1).
   2. For projects processed as Tier 1 undertakings, the findings will be documented in the quarterly reports, and documentation submitted quarterly to FHWA, SHPO, and USACE.
   3. UDOT shall notify all consulting parties, and make the documentation available for public inspection, consistent with the confidentiality provisions of 36 CFR 800.11(c), prior to approving the undertaking.
2. No Adverse Effect
   1. UDOT shall make a formal finding of no adverse effect if none of the undertaking’s anticipated effects meet the Criteria of Adverse Effect under 36 CFR 800.5(a)(1), or if UDOT modifies the undertaking or imposes conditions that will avoid adverse effects to historic properties.
   2. UDOT shall submit its finding of effect (FOE) and supporting documentation to all consulting parties for comment, and will request SHPO concurrence on the finding.
   3. UDOT may consult at any time, either formally or informally, with SHPO regarding application of the criteria.
   4. If SHPO, or another consulting party, objects within 30 days of receipt of a UDOT finding of no adverse effect, the disagreement will be addressed in accordance with Stipulation IX.C.4.
   5. UDOT shall maintain a record of the finding and provide information on the finding to all consulting parties and the public on request, consistent with the confidentiality provisions of 36 CFR 800.11(c), prior to approving the undertaking.
3. Adverse Effect
   1. Where adverse effects, as defined by the Criteria of Adverse Effect set forth in 36 CFR 800.5(a), cannot be avoided, UDOT shall make a finding of adverse effect.
   2. Prior to any finding of adverse effect, UDOT shall consult with Tribes that ascribe traditional cultural and religious significance to affected historic properties, and may consult either formally or informally with SHPO regarding application of the criteria of adverse effect.
4. Resolution of Adverse Effect
   1. When a finding of adverse effect has been made, UDOT shall, in consultation with SHPO, USACE (if this is a permitted undertaking and the adverse effect is on a historic property within USACE jurisdictional APE), and other consulting parties, evaluate alternatives or modifications to the project that would avoid, minimize, or mitigate adverse effects on historic properties. UDOT shall propose measures to resolve adverse effects, to be documented in a memorandum of agreement (MOA) or other appropriate agreement document.
   2. UDOT shall make information available to the public, including the documentation specified in 36 CFR 800. 11(e), subject to the confidentiality provisions of 36 CFR 800.11(c).
   3. UDOT shall provide an opportunity for members of the public to express their views on resolving adverse effects of the project through UDOT’s public involvement process.
   4. UDOT will also notify the public of the adverse effect by publishing the notice in statewide or local newspapers, providing notice in a project newsletter, providing information at a public meeting, or other manner appropriate to the scope and complexity of the project (consistent with the intent of Stipulation VI.B of this Agreement).
   5. UDOT will notify the Council of the finding, pursuant to 36 CFR 800.6(a)(1), and that UDOT will be preparing a MOA to resolve adverse effects. UDOT will provide supporting documentation in accordance with 36 CFR 800.11(e), and determine Council participation pursuant to 36 CFR 800.6(a)(1).
      1. The Council shall advise the agency and the consulting parties whether it will participate within 15 days of receipt of notice.
   6. After consideration of the views of all consulting parties and the public, if UDOT, SHPO, USACE (if this is a permitted undertaking and the adverse effect is on a historic property within USACE jurisdictional APE), and Council (if it has chosen to participate [pursuant to 36 CFR 800 Appendix A]) agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement (MOA), pursuant to 36 CFR 800.6(c).
   7. A copy of the MOA shall be provided to each signatory, invited signatory, and concurring parties, as well as the Council (if they are not a signatory).
   8. Once finalized, the measures to resolve adverse effects shall be incorporated into the undertaking, and the undertaking may be implemented.
   9. If UDOT determines that an undertaking may adversely affect a National Historic Landmark, UDOT will notify and invite the SHPO, Council, and Secretary of the Interior, as well as any other consulting parties, to participate in consultation to resolve any adverse effects, pursuant to 36 CFR 800.10.

C. Resolving Objections

1. If SHPO, and UDOT are unable to agree on measures to resolve the adverse effects of an undertaking pursuant to this stipulation, they shall invite the Council to participate in the resolution process pursuant to 36 CFR 800.6(b)(2).
2. FIf the parties fail to agree to measures to resolve the adverse effects, SHPO or the Council may terminate consultation pursuant to 36 CFR 800.7(a). Upon termination, the signatories shall comply with the remaining requirements of 36 CFR 800.7.

X. EMERGENCY SITUATIONS

1. For the purposes of this Agreement, emergencies are defined as occurrences that require emergency highway system/facility repairs that are necessary to 1) protect the life, safety, or health of the public; 2) minimize the extent of damage to the highway system/facilities; 3) protect remaining highway facilities; or 4) restore essential traffic.
   1. These repairs can occur regardless of funding category, and regardless of declarations made by federal, state, or local agencies.
   2. If the emergency repair project could affect historic properties, UDOT shall notify SHPO, USACE (if a permitted undertaking) and Tribes within 24 hours. SHPO and any Tribe that may attach religious and cultural significance to historic properties likely to be affected will have 72 hours to respond.
   3. For projects where the repair must be made within the first 30 days of the occurrence of the event that caused the emergency or the declaration of the emergency by an appropriate authority, the processing of environmental documentation will happen concurrently or after the fact. In these cases, UDOT will comply with the procedures in Stipulation IX of this Agreement to the extent possible, but the reviews will likely be conducted after the emergency work is completed.
   4. For projects taking longer than 30 days for repair, UDOT will comply with the procedures in Stipulation IX.
   5. Written notification of an emergency action shall be provided to SHPO. The notice shall be clearly and prominently marked as an emergency notification, and shall include an explanation of how the action meets the requirements for emergency as defined herein. The notice shall also include a brief description of the eligibility and/or significance of the resource(s) involved, the nature, effect, and anticipated effect of the emergency action on the resource(s), and the anticipated time frame available for comment.

XI. POST-REVIEW DISCOVERIES

A. Planning for Subsequent Discoveries

When UDOT’s identification efforts in accordance with Stipulation IX.B indicate that historic properties are likely to be discovered during implementation of an undertaking, UDOT shall include in any environmental document a plan for discovery of such properties. Implementation of the plan as originally proposed, or modified as necessary owing to the nature and extent of the properties discovered, will be in accordance with 36 CFR 800.4-6.

B. Discoveries Without Prior Planning

1. If previously unidentified archaeological or historic properties, or unanticipated effects, are discovered after UDOT has completed its review under this Agreement, that portion of the project will stop immediately, in accordance with UDOT Standard Specification 01355, Part 3.8 (Attachment 6).
2. No further construction in the area of discovery will proceed until the requirements of 36 CFR 800.13 have been satisfied, including consultation with Tribes that may attach traditional cultural and religious significance to the discovered property.
3. UDOT will notify SHPO, USACE (if a permitted undertaking), and the Tribes, within 48 hours of the discovery with a description of the discovery, and the actions that are proposed to document the discovery, evaluate NRHP eligibility of the property, and determine the project’s effect on the property if the discovery is determined eligible.
4. If there will be an adverse effect to the property, UDOT will consult with SHPO, USACE (if a permitted undertaking), and the Tribes to design a plan for avoiding, minimizing, or mitigating adverse effects on the eligible property.
5. If neither SHPO nor a Tribe files an objection within 72 hours to UDOT’s plan for addressing the discovery or resolving adverse effects, UDOT may carry out the requirements of 36 CFR 800.13 on behalf of FHWA, and the Council does not need to be notified.
6. UDOT will provide SHPO, USACE (if a permitted undertaking), and the Tribes a copy of the treatment plan and the report of the actions when they are completed.

XII. TREATMENT OF HUMAN REMAINS

Native American remains and any funerary objects, sacred objects, or objects of cultural patrimony (cultural objects) found within the APE shall be treated pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 (25 U.S.C. 3001 et seq. and its implementing regulations (43 CFR 10, as amended) or the Utah Native American Graves Protection and Repatriation Act (Utah NAGPRA) of 1992 (U.C.A. 9-9-401, et seq., and its implementing Rule R230-1, depending on land ownership (BLM, Forest Service, SITLA, UDOT, private, etc.).

XIII. ADMINISTRATIVE STIPULATIONS

A. Documentation

1. 1. All documentation that supports findings and determinations made under this Agreement shall be consistent with 36 CFR 800.11 and shall be in accordance with the UDOT Guidelines for Archaeological Survey and Testing, and its subsequent revisions or editions, with attachments to this Agreement, and with applicable guidelines and procedures of land- managing agencies that have jurisdiction over the land involved in the undertaking.
2. Documentation prepared by local agencies or their consultants in support of such findings shall be submitted to UDOT for review and approval by the UDOT PQS. UDOT shall transmit all documentation cited herein to SHPO as stipulated by this Agreement. UDOT shall not transmit to SHPO any documentation that has not been reviewed and approved by the UDOT PQS.
3. All documentation prepared under this Agreement shall be kept on file at UDOT and made available to consulting parties and the public as stipulated by the Agreement, consistent with applicable confidentiality requirements [as described in 36 CFR 800.11(c)].
4. The UDOT PQS shall submit to the UDSH copies of all fieldwork reports, Utah Archaeology Site Forms, Reconnaissance Level Survey (RLS) forms Intensive Level Survey (ILS) forms, and any other relevant documents as soon as possible (and no later than 2 years) after completion of the work, unless an agreement between UDOT and UDSH states a different period.
5. For projects processed as Tier 1 projects, reports and forms will be submitted on a quarterly basis, in accordance with Stipulation VIII.A.

B. Monitoring Implementation of this Agreement

1. SHPO, USACE, and Council may review activities carried out pursuant to this Agreement. UDOT shall facilitate this review by compiling specific categories of information to document the effectiveness of the Agreement and by making this information available on an annual basis to SHPO, USACE, and Council in the form of a written report. Categories of information can include, but are not limited to, a summary of actions taken under the Agreement, including all findings and determinations, accomplishments, estimated time and cost savings, public objections, and inadvertent effects or foreclosures. The range and type of information included by UDOT in the written report and the manner in which this information is organized and presented must be such that it facilitates the ability of the reviewing parties to assess accurately the degree to which the Agreement and its manner of implementation constitute an efficient and effective program alternative under 36 CFR 800, and to determine whether this Agreement should remain in effect, and if so, whether and how it should be improved through appropriate amendment.
2. UDOT shall prepare the written report of these findings annually following execution of the Agreement. UDOT shall submit the annual reports to SHPO, USACE, and Council no later than three (3) months following the end of the Federal fiscal year (September 30).
3. UDOT, USACE, and SHPO will meet annually to evaluate the Agreement, to suggest revisions to its provisions, and to evaluate the quality of the resource identification and protection activities carried out under the Agreement. Prior to any such meetings, the Council will be notified at least 30 days in advance, and may participate at its discretion. Thirty days prior to the annual evaluation, UDOT shall submit the report of the previous year’s activities to SHPO, USACE, and Council.
4. UDOT shall provide notice to the public that the annual report herein prescribed is available for public inspection and ensure that potentially interested members of the public are made aware of its availability and that the public may comment to signatory parties on the report. UDOT, in consultation with SHPO, USACE, and Council, shall identify the specific recipients of the public notice herein described.
5. At the request of any other signatory party to this Agreement, UDOT shall ensure that one or more meetings are held to facilitate review of, and comment on, the report to address questions and issues, or to resolve adverse comments.
6. In conjunction with the review of the reports prepared by UDOT pursuant to this Stipulation, the signatory parties shall consult to review the overall effectiveness and benefits of the Agreement, determine if its requirements are being met, decide if amendments to the Agreement are warranted, review the reporting format and categories for adequacy, and identify any other actions that may be needed in order to take into account the effects of the Program on historic properties in Utah.
7. FHWA review of the activities carried out under this Agreement will be conducted through the monitoring and audit process in accordance with the 23 U.S.C. 327 MOU (Attachment 1).
8. If any signatory party determines that a UDOT Region is not meeting its responsibilities under this Agreement, measures will be taken to resolve the concerns with the UDOT PQS, and the Central PQS if appropriate.

C. Resolving Objections to Implementation of this Agreement

1. Should any signatory party object in writing to UDOT regarding the manner in which the terms of this Agreement are carried out, UDOT will immediately notify the other signatory parties of the objection and proceed to consult with the objecting party to resolve the objection. UDOT will honor the request of any signatory party to participate in the consultation and will take any comments provided by such parties into account. UDOT shall establish a reasonable time frame for such consultations. If the objection concerns the manner in which UDOT is performing its Section 106 responsibilities as outlined in the NEPA MOU, the objection should be submitted to FHWA.
2. If the objection is resolved through consultation, UDOT may authorize the disputed action to proceed in accordance with the terms of such resolution.
3. If after initiating such consultation, UDOT determines that the objection cannot be resolved through consultation, UDOT shall forward all documentation relevant to the objection to the Council and other signatory parties, including the proposed response to the objection. Within 30 days after receipt of all pertinent documentation, Council shall exercise one of the following options:
   1. Advise UDOT that Council concurs in UDOT’s proposed response to the objection, whereupon UDOT will respond to the objection accordingly; or
   2. Provide UDOT with recommendations, which UDOT shall take into account in reaching a final decision regarding its response to the objection; or
   3. Notify UDOT that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4) and proceed to refer the objection and comment. In this event, UDOT shall ensure that the Agency Official is prepared to take the resulting comments into account in accordance with 36 CFR 800.7(c)(4).
4. Should Council not exercise one of the foregoing options within 30 days after receipt of all pertinent documentation, UDOT may assume Council’s concurrence in its proposed response to the objection
5. UDOT shall take into account any Council recommendation or comment and any comments from the other signatory parties to this Agreement in reaching a final decision regarding the objection. UDOT’s responsibility to carry out all actions under this Agreement that are not the subject of the objection shall remain unchanged.
6. UDOT shall provide all other signatory parties to this Agreement with a written copy of its final decision regarding any objection addressed pursuant to this Stipulation.
7. UDOT may authorize any action subject to objection under this Stipulation to proceed, provided the objection has been resolved in accordance with the terms of this Stipulation.
8. At any time during implementation of the terms of this Agreement, should any member of the public raise an objection in writing pertaining to such implementation to any signatory party to this Agreement, that signatory party shall immediately notify UDOT. UDOT shall immediately notify the other signatory parties in writing of the objection. Any signatory party may choose to comment on the objection to UDOT. UDOT shall establish a reasonable time frame for this comment period. UDOT shall consider the objection, and in reaching its decision, UDOT will take all comments from the other signatory parties into account. Within 15 days following closure of the comment period, UDOT will render a decision regarding the objection and respond to the objecting party. UDOT will promptly notify the other signatory parties of its decision in writing, including a copy of the response to the objecting party. UDOT’s decision regarding resolution of the objection will be final. Following the issuance of its final decision, UDOT may authorize the action subject to dispute hereunder to proceed in accordance with the terms of that decision.

D. Amendment

1. Any signatory party may propose amendments to the Agreement, whereupon all signatory parties shall consult to consider such amendment.
2. This agreement may be amended when such an amendment is agreed to in writing by all signatories. The amendment will be effective on the date a copy signed by all the signatories is filed with the Council.
3. Each attachment to this Agreement may be individually amended through consultation of the signatory parties without requiring amendment of the Agreement, unless the signatory parties through such consultation decide otherwise.

E. Termination

1. Any signatory party may terminate this agreement. If this Agreement is not amended as provided for in Stipulation XIII.D, or if any signatory party proposes termination of this Agreement for other reasons, the party proposing termination shall notify the other signatory parties in writing, explain the reasons for proposing termination, and consult with the other parties for no more than 30 days to seek alternatives to termination.
2. Should such consultation result in an agreement on an alternative to termination, the signatory parties shall proceed in accordance with that agreement.
3. Should such consultation fail, the signatory party proposing termination may terminate this Agreement by promptly notifying the other parties in writing.
4. Should this Agreement be terminated, UDOT would carry out the requirements of 36 CFR Part 800 for individual undertakings, as stated in Stipulation XIII.D.5.
5. Beginning with the date of termination, UDOT shall ensure that until and unless a new Agreement is executed for the actions covered by this Agreement, such undertakings shall be reviewed individually in accordance with 36 CFR 800.4-800.6.

F. Confidentiality

All parties to this Agreement acknowledge that information about historic properties, potential historic properties, or properties considered historic for purposes of this Agreement are or may be subject to the provisions of Section 304 of NHPA., Section 304 allows UDOT to withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if UDOT determines that disclosure may 1)cause a significant invasion of privacy; 2) risk harm to the historic resource; or 3) impede the use of a traditional religious site by practitioners. Having so acknowledged, all parties to this Agreement will ensure that all actions and documentation prescribed by this Agreement are, where necessary, consistent with the requirements of Section 304 of the NHPA.

G. Duration of Agreement

This Agreement shall remain in effect for a period of ten years after the date it takes effect, unless it is terminated prior to that time. Six months prior to the conclusion of the ten year period, UDOT will notify all parties in writing. If there are no objections from consulting parties, the term of the Agreement will automatically be extended for an additional ten years. If any party objects to extending the Agreement, or proposes amendments, UDOT will consult with the parties to consider amendments or other actions to avoid termination.

Execution of this Agreement by the FHWA, SHPO, Council, USACE, and UDOT, and implementation of its terms evidence that FHWA and USACE have taken into account the effects of the Program and its individual undertakings on historic properties, afforded the Council an opportunity to comment, and has complied with Section 106 of the NHPA and 36 CFR 800 for the Program and its individual undertakings.

SIGNATORIES:

Execution of this Agreement by the FHWA, SHPO, Council, USACE, and UDOT, and implementation of its terms evidence that FHWA and USACE have taken into account the effects of the Program and its individual undertakings on historic properties, afforded the Council an opportunity to comment, and has complied with Section 106 of the NHPA and 36 CFR 800 for the Program and its individual undertakings.

FEDERAL HIGHWAY ADMINISTRATION

By: Ivan Marrero, Utah Division Administrator

Date: 7/6/2017

UTAH DEPARTMENT OF TRANSPORTATION

By: Carlos Braceras, Executive Director

Date: 7/5/2017

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: John Fowler, Executive Director

Date: 8/23/2017

UTAH STATE HISTORIC PRESERVATION OFFICER

By: P. Bradford Westwood, USHPO

Date: 7/11/2017

UNITED STATES ARMY CORPS OF ENGINEERS, SACRAMENTO DISTRICT

By: Michael S. Jewell, Chief Regulatory Division

Date: 7/31/2017

ATTACHMENT 1

MEMORANDUM OF UNDERSTANDING FOR NEPA AND CE DELEGATION

23 U.S.C. 327 NEPA Assignment: Memorandum Of Understanding Between The Federal Highway Administration And The Utah Department Of Transportation Concerning State Of Utah's Participation In The Surface Transportation Project Delivery Program Pursuant To 23 u.s.c. 327

23 U.S.C. 326 CE Assignment MOU: FHWA, Utah Division; and the Utah Department of Transportation-Renewed Memorandum of Understanding between the Federal highway Administration, and the Utah Department of Transportation for State Assumption of Responsibility for Categories Exclusions (June 30, 2011)

MEMORANDUM OF UNDERSTANDING BETWEEN
THE FEDERAL HIGHWAY ADMINISTRATION AND THE
UTAH DEPARTMENT OF TRANSPORTATION CONCERNING
STATE OF UTAH'S PARTICIPATION IN THE SURFACE TRANSPORTATION PROJECT DELIVERY
PROGRAM PURSUANT TO 23 U.S.C. 327

THIS MEMORANDUM OF UNDERSTANDING (hereinafter "MOU") is entered into by and between the FEDERAL HIGHWAY ADMINISTRATION (hereinafter "FHWA"), an administration in the UNITED STATES DEPARTMENT OF TRANSPORTATION (hereinafter "USDOT"), and the State of Utah, acting by and through its UTAH DEPARTMENT OF TRANSPORTATION (hereinafter "UDOT"), and hereby provides as follows:

WITNESSETH

Whereas, Section 327 of Title 23 of the U.S. Code (U.S.C.) establishes the Surface Transportation Project Delivery Program (hereinafter "Project Delivery Program"), which allows the Secretary of the United States Department of Transportation (hereinafter "USDOT Secretary") to assign and States to assume the USDOT Secretary's responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) (hereinafter "NEPA"), and all or part of the USDOT Secretary's responsibilities for environmental review, consultation, or other actions required under any other Federal environmental laws, with respect to highway, public transportation, railroad, and multimodal projects within the State; and

Whereas, 23 U.S.C. 327(b)(2) requires a State to submit an application in order to participate in the Program; and

Whereas, in a June 5, 2015 letter to the Federal Highway Administration's Utah Division Administrator, the State of Utah has expressed an interest in participating in the Program with respect to highway projects, and its legislature has enacted laws to allow the State to participate in the Program; and

Whereas, on October 7, 2015, prior to submittal of its application to FHWA, UDOT published notice of and solicited public comment on its intended application to the Program as required by 23 U.S.C. § 327(b)(3), and revised the application based on comments received; and

Whereas, on December 8, 2015, the State of Utah, acting by and through the UDOT, submitted its application to FHWA for participation in the Program with respect to highway projects; and

Whereas, on November 16, 2016, FHWA published a notice and provided an opportunity for comment on its preliminary decision to approve UDOT's request and solicited the views of other appropriate Federal agencies concerning UDOT's application as required by 23 U.S.C. 327(b)(5); and

Whereas, the USDOT Secretary, acting by and through FHWA pursuant to 49 C.F.R. 1.85(a)(3), has determined that UDOT's application meets all of the requirements of 23 U.S.C. 327 with respect to the Federal environmental laws and highway projects identified in this MOU.

Now, therefore, FHWA and UDOT agree as follows:

PART 1. PURPOSE OF MEMORANDUM OF UNDERSTANDING

1.1 Purpose

PART 2. [RESERVED]

PART 3. ASSIGNMENTS AND ASSUMPTIONS OF RESPONSIBILITY

3.1 Assignments and Assumptions of NEPA Responsibilities

3.2 Assignments and Assumptions of Responsibilities to Comply with Federal Environmental Laws Other Than NEPA

3.3 Highway Projects

3.4 Limitations

3.4.1 As provided at 23 U.S.C. § 327(e), UDOT will be solely responsible and solely liable for carrying out all of the responsibilities it has assumed under this MOU, in lieu of and without further approval of the USDOT Secretary.

3.4.2 As provided at 23 U.S.C. § 327(a)(2)(D), any highway project or responsibility of the USDOT Secretary that is not explicitly assumed by UDOT under subpart 3.3.1 in this MOU remains the responsibility of the USDOT Secretary.

PART 4. CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION

4.1 Certifications

4.2 State Commitment of Resources

4.3 Federal Court Jurisdiction

PART 5. APPLICABILITY OF FEDERAL LAW

5.1 Procedural and Substantive Requirements

5.2 Rulemaking

5.3 Effect of Assumption

5.4 Other Federal Agencies

PART 6. LITIGATION

6.1 Responsibility and Liability

6.2 Litigation

6.3 Conflict Resolution

PART 7. INVOLVEMENT WITH OTHER AGENCIES

7.1 Coordination

7.2 Processes and Procedures

PART 8. INVOLVEMENT WITH FHWA

8.1 Generally

8.2 MOU Monitoring and Oversight

8.3 Record Retention

8.4 Federal Register

8.5 Participation in Resource Agency Reports

8.6 Conformity Determinations

8.7 Certification of NEPA Compliance

8.8 Enforcement

PART 9. WITHDRAWAL OF ASSIGNED RESPONSIBILITIES

9.1 FHWA-initiated Withdrawal of Assigned Projects

9.2 UDOT-initiated Withdrawal of Assignment of Projects

PART 10. PERFORMANCE MEASURES

10.1 General

10.2 Performance Measures

PART 11. AUDITS

11.1 General

11.2 Scheduling

11.3 Other Federal Agency Involvement

11.4 Audit Report and Findings

PART 12. TRAINING

PART 13. TERM, TERMINATION AND RENEWAL

13.1 Term

13.2 Termination by the FHWA

13.3 Termination by UDOT

13.4 Validity of UDOT Actions

13.5 Renewal

PART14. AMENDMENTS

14.1 Generally

14.2 Additional Projects, Classes of Projects and Environmental Review Responsibilities

IN WITNESS THEREOF, the parties hereto have caused this MOU to be duly executed in duplicate as of the date of the last signature written below.

FEDERAL HIGHWAY ADMINISTRATION

By: Gregory G. Nadeau, Administrator, Federal Highway Administration

Dated: 1/17/2017

STATE OF UTAH, Department of Transportataion

By: Carlos M. Braceras. P.E., Executive Director

Dated: 1/5/2017

23 U.S.C. § 326 CE Assignment MOU FHWA, Utah Division and the Utah Department of Transportation

SECOND RENEWED MEMORANDUM OF UNDERSTANDING
between
Federal Highway Administration, Utah Division and the
Utah Department of Transportation

State Assumption of Responsibility for Categorical Exclusions

THIS SECOND RENEWED MEMORANDUM OF UNDERSTANDING ("MOU") made and entered into 30th day of June , 2014, by and between the FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION ("FHWA") and the STATE of Utah, acting by and through its DEPARTMENT OF TRANSPORTATION ("State"), hereby provides as follows:

WITNESSETH:

Whereas, Section 326 of amended Chapter 3 of Title 23, United States Code (23 U.S.C. § 326) allows the Secretary of the United States Department of Transportation (DOT Secretary), to assign, and a State to assume, responsibility for determining whether certain designated activities are included within classes of action that are categorically excluded from requirements for environmental assessments or environmental impact statements pursuant to regulations promulgated by the Council on Environmental Quality under part 1500 of title 40, Code of Federal Regulations (CFR) (as in effect on October l, 2003); and

Whereas, if a State assumes such responsibility for making categorical exclusion (CE) determinations under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA), the DOT Secretary also may assign and the State may assume all or part of certain Federal responsibilities for environmental review, consultation, or other related actions required; and

Whereas, on July 1, 2008, the FHWA and the State executed a MOU assigning responsibilities to the State pursuant to 23 U.S.C. 326 for a three-year period, expiring on July 1, 2011 ("Original MOU"); and

Whereas, on July l, 2011, the FHWA and the State executed a new MOU assigning responsibilities to the State pursuant to 23 U.S.C. 326 for an additional three-year period, expiring on July l, 2014 ("Renewed MOU");

Whereas, on July 6, 2012, the Moving Ahead for Progress in the 21st Century Act (P.L.112-141) was enacted, and it became effective on October 1, 2012;

Whereas, Section 1312 ofMAP-21 amended 23 U.S.C. § 326 to (1) preserve the ability of States assuming responsibility to engage in project delivery methods that are otherwise permissible for highway projects, (2) allow States to terminate their participation in the program at any time by providing the DOT Secretary with a notice no later than 90 days before such termination, and (3) allow States that assume DOT responsibilities to use funds apportioned to the State under section 23 U.S.C. § 104(b)(2) for reasonable attorney's fees directly attributable to eligible activities associated with the project; and

Whereas, FHWA and the State seek to extend the existing assignment of responsibilities to the State for an additional three year period, pursuant to a new MOU ("Second Renewed MOU" or "MOU"):

Whereas, on May 28, 2014, the FHWA published a notice of the availability of the proposed Second Renewed MOU in the Federal Register and provided a thirty (30) day opportunity for comment in the USDOT Docket Management System FHWA-2014-0017; and

Whereas, on May 28, 2014, the State published the proposed a notice of availability of the Second Renewed MOU on its website at http://www.udot.utah.gov/go/environmental and provided a 30-day opportunity for comment and

Whereas, the State and FHWA have considered the comments received on the Second Renewed MOU; and

Whereas, the DOT Secretary, acting by and through FHWA, has determined that specific designated activities are CEs and that it will assign specific responsibilities with respect to CEs to the State in accordance with this MOU; and

Whereas, the State wishes to assume such Federal agency responsibilities in accordance with this MOU and applicable law;

Now, therefore, FHWA and the State agree as follows:

STIPULATIONS

I. CATEGORICAL EXCLUSION RESPONSIBILITIES ASSIGNED TO THE STATE BY FHWA

1. For the projects covered by this MOU, FHWA hereby assigns, and the State hereby assumes, subject to the terms and conditions set forth in 23 U.S.C. § 326 and this MOU, the responsibility for determining whether a proposed Federal­ aid action is within a category of action that has been designated as a CE by the DOT Secretary, as specified in Stipulation l(B), and meets the definition of a CE as provided in 40 CFR 1508.4 (as in effect on October 1, 2003) and 23 CFR 771. l l 7(a) and (b). This assignment applies only to projects for which the Utah Department of Transportation is the direct recipient of Federal-aid highway program funding or is the project sponsor or cosponsor for a project requiring approval by the FHWA-Utah Division Office. This assignment does not apply to responsibilities carried out by other modal administrations of the US Department of Transportation (USDOT) or the Office of the Secretary.
2. This assignment pertains only to the designated activities described in this Stipulation l(B).
   1. The assignment includes the following:
      1. Activities listed in 23 CFR 771.117 (c);
      2. The example activities listed in 23 CFR 771.117(d); and
      3. Additional actions listed in Appendix A: None.
   2. Any activities added through FHWA rulemaking to those listed in 23 CFR 771. l l 7(c) or example activities listed in 23 CFR 771.1l 7(d) after the date of the execution of this MOU.
3. This MOU transfers to the State all responsibility for processing the CEs designated in Stipulation I(B) of this MOU, including any necessary CE approval actions. The State shall process all proposed projects that are CE candidates (CE projects), and any required reevaluations of CEs under 23 CFR 771.129 for all CE projects not completed prior to the date of this MOU, in accordance with the provisions of this MOU. With respect to matters covered by and subject to the terms of this MOU, this MOU supersedes any existing programmatic agreement that is solely between the State and FHWA concerning CEs.
4. The State, when acting pursuant to 23 U.S.C. § 326 and this MOU, holds assigned authority to make environmental decisions and commitments pertaining to only the individual proposed projects and activities within the scope of23 U.S.C. § 326 and this MOU. No action by the State shall bind FHWA to future action of any kind. No determination or agreement made by the State with respect to mitigation or other activities shall constitute a precedent for future determinations, agreements, or actions in the Federal-aid highway program unless FHWA consents, in writing, to such commitment.

II. OTHER FHWA RESPONSIBILITIES ASSIGNED TO THE STATE AND RESPONSIBILITIES RESERVED BY FHWA

1. For projects covered by this MOU, FHWA hereby assigns, and the State hereby assumes, the following FHWA responsibilities for environmental review, consultation, or other related actions required under Federal laws and Executive Orders applicable to CE projects: See Appendix B for a description of the environmental responsibilities assigned to the State by the FHWA for proposed projects subject to this MOU. This assignment includes the transfer to the State of the obligation to fulfill the assigned environmental responsibilities associated with any proposed projects meeting the criteria in Stipulation I(B) that were determined to be CEs prior to the effective date of this MOU but the project has not been completed. Such projects are included in the term "proposed projects" in this MOU.
2. The FHWA reserves any responsibility for any environmental review, consultation, or other related action that is not expressly assigned under this MOU, including:
   1. All government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m). Notice from the State to an Indian tribe advising the Indian tribe of a proposed activity is not considered "government-to­ government consultation" within the meaning of this MOU. If the State adequately resolves any project-specific Indian tribe issues or concerns, then ,FHWA 's role in the environmental process shall be limited to carrying out the government-to-government consultation process. If FHWA determines through consultation with an Indian tribe, or an Indian tribe indicates to FHWA, that the proposed resolution of tribal issues or concerns by the State is not adequate, then Stipulation IIl(C) applies. This MOU is not intended to abrogate, or prevent future entry into, any written agreement among the State, FHWA, and an Indian tribe under which the tribe agrees to permit the State to administer government-to-government consultation activities for FHWA . However, such agreements are administrative in nature and do not relieve FHWA of its legal responsibility for government-to-government consultation.
   2. The State and FHWA will develop and document procedures for carrying out FHWA responsibilities retained by FHWA under Stipulation II(B), including how any FHWA decisions will be communicated to the State for inclusion in the State's decision-making under Stipulations I and Il(A). The procedures will ensure that:
      1. The State provides to FHWA any information necessary in order for FHWA to carry out its consultation, evaluation, or decision-making for Stipulation Il(B) activities;
      2. The FHWA provides the State with a documented decision and any related information used for Stipulation Il(B) decisions and needed by the State in order for the State to evaluate the project and make its decision whether the project qualifies as a CE; and
      3. As part of any request for FHWA authorization for funding or other action, the State will provide to FHWA evidence that the CE processing and any other environmental responsibilities assigned under this agreement have been completed in accordance with this MOU.
3. The State agrees that its execution of environmental review, reevaluation, consultation, and other related responsibilities for CEs assigned under this MOU are subject to the same existing and future procedural and substantive requirements as if those responsibilities were carried out by FHWA. This includes, but is not limited to the responsibilities of FHWA under interagency agreements such as programmatic agreements , memoranda of understanding, memoranda of agreement, and other similar documents that relate to the environmental review process for CE projects. If such interagency agreements are between the State and FHWA only, then the assignment occurs automatically upon the signing of this MOU for projects covered by this MOU. If the interagency agreement involves signatories other than FHWA and the State, then FHWA and the State will work to obtain any necessaiy consents or amendments . Such actions include:
   1. Consulting with the other parties to obtain written consent to the continuation of the interagency agreement in its existing form, but with the substitution through assignment of the State for FHWA with respect to interagency agreement provisions applicable to CE projects;
   2. Negotiating with the other parties to amend the interagency agreement as needed so that the interagency agreement continues but that the State assumes FHWA's responsibilities with respect to CE projects.
   3. If a third party does not agree to the assignment or amendment of the interagency agreement, then to the extent permitted by applicable law and regulation, the State must carry out the assigned environmental review, consultation, or other related activity in accordance with applicable laws and regulations but without the benefit of the provisions of the interagency agreement.
4. The State shall carry out the assigned consultation, review and coordination activities in a timely and proactive manner. The State shall make all reasonable and good faith efforts to identify and resolve conflicts with Federal agencies, State and local agencies , Indian tribes as defined in 36 CFR 800.16(m), and the public during the consultation and review process.

III. ACTIONS, CONDITIONS, OR DETERMINATIONS THAT EXCLUDE DESIGNATED ACTIVITIES FROM ASSIGNMENT OF RESPONSIBILITIES

1. Notwithstanding any other provision of this MOU, any activity that does not satisfy the criteria for the CE categories described in Stipulation l(B) is excluded from this assignment. Exclusion also may occur at any time during the environmental process if the State determines that the project fails to meet the CE criteria or falls within Stipulation IIl(D). The provisions of Stipulation IV(C) apply to such cases.
2. Because the State assumes responsibility for environmental processing of the CEs designated in this MOU, FHWA no longer will be responsible for conducting the environmental review, consultation or other related actions assigned under this MOU (see Stipulation XI). However, in furtherance of its stewardship and oversight responsibilities, FHWA will evaluate the State's environmental processing of any project if FHWA has any reason to believe that the State's performance with respect to the project does not satisfy the terms and conditions of this MOU. The scope of the evaluation will be commensurate with the potential problem. If FHWA subsequently determines that the State's performance does not satisfy the terms and conditions of this MOU, then FHWA will take action to resolve the problem. Such action may include action to facilitate the State's compliance with the MOU, or action to exclude the project from assignment under this MOU. The provisions of Stipulation X(A)· X(E) apply to such FHWA •initiated exclusion.
3. If a project-related concern or issue is raised in the coordination of project review with an Indian tribe, as defined in 36 CFR 800.16(m), and either the Indian tribe or FHWA determines that the issue or concern will not be satisfactorily resolved by the State, then FHWA may reassume responsibility for processing the project or an individual responsibility assumed by the State. The FHWA shall notify the State that the project will be excluded from this MOU. The provisions of Stipulation X(A)·X(E) apply to such FHWA• initiated exclusion.
4. Other conditions or impacts that exclude a project from assignment to the State under this MOU. Not applicable.

IV. STATE PERFORMANCE REQUIREMENTS

1. Compliance with governing laws, regulations and MOU. The State shall make all determinations under this MOU in accordance with 23 CFR 77 l. l l 7(a) and (b) and succeeding regulations. All actions by the State in carrying out its responsibilities under this MOU shall comply with, and be consistent with, the coordination provisions of Stipulation II and all applicable Federal laws, regulations, Executive Orders, policies, and guidance. The State also shall comply with State and local laws to the extent applicable.
   1. Failure to meet the requirements of Stipulation IV(A) is grounds for a decision by FHWA to terminate this MOU pursuant to Stipulation IX(A) if FHWA determines, after good-faith consultation with the State, that there is an irreconcilable material conflict between a provision of State law, regulation, policy, or guidance and applicable Federal law, regulation, policy, or guidance, and FHWA reasonably determines that such conflict is preventing the State from meeting its Stipulation IV(A) obligations. The grounds for such decision may include, but are not limited to, the mere existence of the conflict (i.e., on its face) and/or the effect of the conflict on the State's decision(s) on proposed CE project(s) (i.e., as applied).
   2. Official DOT and FHWA formal guidance and policies relating to environmental review matters are posted online at FHWA's website or sent to the State electronically or in hard copy.
   3. After the effective date of this MOU, the FHWA will use its best efforts to ensure that any new or revised FHWA policies and guidance that are final and applicable to the State's performance under this MOU are communicated to the State within 10 days of issuance. Delivery may be accomplished by e-mail, mail, by publication in the Federal Register, or by means of a publicly available online posting including at the sites noted above. If communicated to the State by e-mail or mail, such material may be sent either to the party specified in this MOU to receive notices, or to the Utah Department of Transportation Director of Environmental Services.
   4. In the event that a new or revised FHWA policy or guidance is not made available to the State as described in the preceding paragraph, and if the State had no actual knowledge of such policy or guidance, then a failure by the State to comply with such Federal policy or guidance will not be a basis for termination under this MOU.
   5. The State will work with all other appropriate Federal agencies concerning the laws, guidance, and policies relating to any Federal laws that such other agencies administer.
   6. In order to minimize the likelihood of a conflict as described in (1) above, after the effective date of this MOU the State will use its best efforts to ensure that any proposed new or revised State laws, regulations, policies, or guidance that are applicable to the State's performance under this MOU are communicated to FHWA for review and comment before they become final. Delivery may be accomplished by e-mail, mail, or personal delivery. If communicated to FHWA by e-mail or mail, such material may be sent to the party specified in this MOU to receive notices for FHWA.
2. Processing projects assigned under the MOU: State identification. documentation, and review of effects. For projects and other activities assigned under Stipulations I(A)-(B) that the State determines are included in the classes of CE assigned to the State under this MOU, the State shall:
   1. Institute a process to identify and review the environmental effects of the proposed project.
   2. Carry out the other environmental responsibilities that are assigned under this MOU, as necessary or appropriate for the activity;
   3. Document in the project file the CE findings and completion of all applicable FHWA responsibilities assigned under Stipulations I and II;
   4. For CEs other than those designated in 23 CFR 77l.1 l7(c), carry out a review of proposed CE determinations, including consideration of the environmental analysis and project file documentation, prior to the States' approval of the CE determination. The process shall include, at a minimum, review of the documentation and proposed determination by a competent reviewer who is not a preparer of the CE documentation.
   5. Document its approval of the dete1mination using, at a minimum, the printed name, title, and date of the State official approving the determination; and
   6. Include the following determination statement when documenting the CE findings: "The State has determined that this project has no significant impact(s) on the environment and that there are no unusual circumstances as described in 23 CFR 771.117(b). As such, the project is categorically excluded from the requirements to prepare an environmental assessment or environmental impact statement under NEPA. The State has been assigned, and hereby certifies that it has carried out, the responsibility to make this determination pursuant to 23 U.S.C. § 326 and a Memorandum of Understanding dated June 30, 2014, executed between FHWA and the State."
   7. Document in the project file the specific categorically excluded activity, the CE finding, including the determination that the project has no significant impact(s) on the environment, there are no unusual circumstances (23 CFR 771. l l 7(b)), and completion of all applicable FHWA responsibilities assigned under Stipulations I and II.
3. Excluded projects: determination and documentation. For projects that are candidates for CE classification but that the State determines should be excluded from processing under this assignment, the State shall:
   1. Document the exclusion findings in the project file, including the reason for the finding;
   2. Notify FHWA; and
   3. Working with the FHWA as the responsible party under NEPA, proceed with review and documentation and review of the project under the appropriate NEPA procedures.
4. Required State resources, qualifications, expertise. standards. and training.
   1. The State must maintain adequate organizational and staff capability and expertise to effectively carry out the responsibilities assigned to it under this MOU. This includes, without limitation:
      1. Using appropriate technical and managerial expertise to perform the functions required under this MOU and applicable laws, regulations, policy, and guidance;
      2. Devoting adequate financial and staff resources to carry out the responsibilities assumed by the State; and
      3. Demonstrating, in a consistent manner, the capacity to perform the State's responsibilities under the MOU and applicable Federal law.
   2. The State agrees that it shall maintain on its staff or through consultant services all of the environmental and other technical expertise needed to carry out its responsibilities under this MOU and 23 U.S.C. § 326. Without limiting the foregoing, when carrying out the requirements of Section I 06 of the National Historic Preservation Act, as amended, the State shall comply with 36 CFR 800.2(a)(l). All actions that involve the identification, evaluation, analysis, recording, treatment, monitoring, or disposition of historic properties, or that involve the reporting or documentation of such actions in the form of reports, forms, or other records, shall be carried out by or under the direct supervision of a person or persons who meet the Secretary of the Interior's Professional Qualifications Standards (published at 48 FR 44738-44739). The State shall ensure that all documentation required under 36 CFR 800.11 is reviewed and approved by a staff member or consultant who meets the Professional Qualifications Standards.
5. State quality control.
   1. The State agrees to carry out regular quality control activities to ensure that its CE determinations are made in accordance with applicable law and this MOU (to view the State's environmental policy and manual visit http://www.udot.utah.gov/go/environmental).
   2. At a minimum, the State shall monitor its processes relating to project determinations, environmental analysis, and project file documentation, and check for errors and omissions. The State shall take corrective action as needed. The State shall document its quality control activities and any needed corrective actions taken.
   3. If the State implements training to meet the capability requirements of this MOU or as a corrective action, the State shall be responsible for the training. The State shall provide notice of the training to FHWA.
6. MOU performance monitoring and quality assurance. The FHWA and the State shall cooperate in monitoring performance under this MOU and each party shall modify its practices as needed to assure quality performance by the State and FHWA. Monitoring will include consideration of the technical competency and organizational capacity of the State, as well as the State's performance of its CE processing functions. Performance considerations will include, without limitation, the quality and consistency of the State's project determinations, adequacy and capability of the resources applied by the State, and the quality and consistency of the State's administration of its responsibilities under this MOU. In support of the monitoring efforts:
   1. The State shall submit to FHWA a list of the CE determinations and Section 4(f) determinations that the State approved during the previous 6 months (January 1 through June 30, and July 1 through December 31), within 15 business days after the end of each semi-annual reporting period. Based on the State's satisfactory performance of this MOU during the first 12 months, FHWA may reduce the frequency of this reporting requirement, but in no event will the reporting frequency be less than once each year. Such reduction in reporting frequency, and any revocation of such reduction by FHWA, shall not be deemed an amendment under Stipulation VIII.
   2. No less than once every 18 months, the State shall submit to FHWA (via electronic and hard copy) a report summarizing its performance under the MOU and at similar intervals thereafter if the term of the MOU is renewed. The report will identify any areas where improvement is needed and what measures the State is taking to undertake those improvements. The report will include actions taken by the State as part of its quality control efforts under Stipulation IV. The State shall schedule a follow-up meeting with FHWA at which the parties will discuss the report, the State's performance of the MOU, and FHWA's monitoring activities.
   3. The State shall maintain electronic and paper project records and general administrative records pertaining to its MOU responsibilities and the projects processed hereunder. The records shall be available for inspection by FHWA at any time during normal business hours. The State shall provide FHWA with copies of any documents FHWA may request. The State shall retain those records, including all letters and comments received from governmental agencies, the public, and others about the performance of activities assigned under this MOU, for a period of no less than 3 years after completion of project construction. This 3-year retention provision does not relieve the State of its project or program recordkeeping responsibilities under 49 CFR 18.42 or any other applicable laws, regulations, or policies.
   4. The State shall ensure that project records are available to the public consistent with requirements applicable to Federal agencies under 5 U.S.C. § 552 (the Freedom of Information Act (FOIA), as amended in 2002) and NEPA.
   5. The FHWA periodically shall review the State's records and may interview State staff to evaluate the State's performance under this MOU. Such reviews will occur no less than every 15 months, and may be coordinated with the review of the State's report under Stipulation IV(F)(2). The FHWA anticipates that, under normal circumstances, its evaluation of the State's performance will be based on a modified version of a typical FHWA CE process review (FHWA guidance on how monitoring should occur is available at http://www.fhwadot.gov/hep/6004stateassumpt.htm ). Modifications to the CE process review will include incorporation of measures specific to the responsibilities assigned to the State pursuant to 23 U.S.C. § 326, and will include performance measurements of quality and time. However, FHWA reserves the right to determine in its sole discretion the frequency, scope, and procedures used for monitoring activities. The State, by its execution of this MOU acknowledges that it is familiar with FHWA CE Process Review procedures and with the expected modifications that will be adopted for the purpose of monitoring the State's MOU performance.
   6. Nothing in this Stipulation shall prevent FHWA from undertaking other monitoring actions, including audits, with respect to the State's performance of the MOU. The FHWA, in its sole discretion, may require the State to perform such other quality assurance activities, including other types of monitoring, as may be reasonably required to ensure compliance with this MOU, 23 U.S.C. § 326, and other applicable Federal laws and regulations. Such requirement shall not be deemed an amendment under Stipulation VIII.
   7. The State agrees to cooperate with FHWA in all quality assurance activities.
7. State liability. The State agrees that it is solely responsible and solely liable for complying with and carrying out this MOU, for the performance of all assigned responsibilities as provided by applicable law and for any decisions, actions, or approvals by the State, per 23 U.S.C. § 326(b)(2). The FHWA shall have no responsibility or liability for the performance of responsibilities assigned to the State, including without limitation any decision or approval made by the State. Where the State exercises any assigned authority on a proposed project which FHWA determined to be a CE prior to the July 1, 2008, execution of the Original MOU, the State assumes sole environmental review responsibility and liability for any subsequent substantive environmental review action it takes on that project.
8. Litigation. This section assumes that FHWA will not be named as a party in litigation brought in connection with the State's discharge of its responsibilities under this MOU. If either FHWA or another agency of the United States is named in such litigation, however, nothing in this MOU affects the United States Department of Justice's (DOJ) authority to litigate such claims, including the authority to approve a settlement, on behalf of the United States.
   1. The State shall defend all claims brought in connection with its discharge of any responsibility assigned to the State. The defense shall be provided at the State's own expense, except as provided in 23 U.S.C. § 326(f). In the event that FHWA or any other Federal agency is named in litigation related to matters under this MOU, the State agrees to coordinate with DOJ in the defense of that action.
   2. The State shall notify FHWA of any notice of claim the State receives prior to initiation of litigation, which notice is given in connection with the State's acts or omissions pursuant to this MOU. The State shall provide FHWA with a copy of any such notice of claim within 7 calendar days after the State's receipt of the notice.
   3. In the event of litigation, the State shall provide qualified legal counsel, including outside counsel if necessary. The State will notify FHWA's Division Office and the DOJ, through its Office of the Assistant Attorney General, Environment and Natural Resources Division, within 7 calendar days of the receipt of service of process, of any complaint concerning its discharge of any responsibility assumed under this MOU. The State's notification to FHWA and DOJ shall be made prior to its response to the complaint. The State agrees to provide FHWA's Division Office and DOJ with copies of the complaint and any motions, pleadings, briefs, and other such documents filed in any case concerning its discharge of any responsibility assumed under this MOU. The State will deliver such copies to FHWA and DOJ via express mail or delivery service within 7 calendar days of the service or receipt of any document or, in the case of any documents filed by or on behalf of the State, within 7 calendar days of the date of filing.
   4. The State agrees to consult with FHWA and DOJ prior to filing any dispositive motion in any litigation arising out of or relating to the State's discharge of any responsibility under this MOU. The State agrees to notify FHWA's Division Office and DOJ prior to settling any action or potential action and shall provide FHWA and DOJ at least 30 calendar days to review and comment on the proposed settlement. The State agrees not to enter into any settlement agreement without prior FHWA and DOJ consent. The State's notice will serve as the State's request for FHWA and DOJ consent to the proposed settlement. The FHWA and DOJ agree to provide an answer to the request for consent by the end of the review and comment period unless either Federal agency notifies the State that additional time is needed to obtain the appropriate settlement approval. In cases where FHWA or DOJ notify the State that additional time is needed, the Federal agency will provide an expected timeframe for responding to the State's request.
   5. For litigation or pre-litigation settlement agreements, the lack ofFHWA approval of such settlement is grounds for FHWA denial of Federal-aid eligibility for any State claims for reimbursement of costs arising out of or relating to the settlement agreement.
   6. The State hereby consents to intervention by FHWA in any action or proceeding arising out of, or relating to the State' s discharge of any responsibility assigned to the State under this MOU.
   7. If FHWA reassumes responsibility for processing a project and makes the final CE determination for the project, then FHWA shall be responsible for defending that CE determination in the event of a challenge to actions FHWA takes after re-assumption. This shall include the final CE determination. Nothing in this paragraph shall relieve the State of its liability for acts or omissions prior to FHWA's re-assumption of responsibility for processing the project.
   8. Within 7 calendar days of receipt by the State, the State will provide notice to FHWA and DOJ of any court decision, judgment, and notice of appeal arising out of or relating to the responsibilities the State has assumed under this MOU. The State agrees not to take an appeal without the consent of DOJ.
9. Federal Register. While the MOU is in effect, if any CE project or program documents are required to be published in the Federal Register , such as a notice of final agency action under 23 U.S.C. § 139(1), the State shall transmit such document to the FHWA's Division Office and the FHWA will publish such document in the Federal Register on behalf of the State. The State is responsible for the expenses associated with the publishing of such documents in the Federal Register, in accordance with guidance issued by the FHWA.
10. Participation in Resource Agency Reports. The State agrees to provide data and information requested by the FHWA Office of Project Development and Environmental Review and resource agencies for the preparation of national reports to the extent that the information relates to determinations, findings, and proceedings associated with projects processed under this MOU. Such reports include but are not limited to:
    1. Archeology Report requested by the National Park Service;
    2. Endangered Species Act Expenditure Reports requested by the United States Fish and Wildlife Service and the National Marine Fisheries Service;
    3. NEPA Litigation Reports requested by the Council on Environmental Quality; and
    4. Environmental Conflict Resolution reports requested by the Council on Environmental Quality.

V. STATE CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION

1. The State hereby certifies that it has the necessary legal authority and the capacity to:
   1. Accept the assignment under this MOU;
   2. Carry out all of the responsibilities assigned to the State; and
   3. Agree to and perform all terms and conditions of the assignment as contained in this MOU and in 23 U.S.C. § 326.
2. The State consents to and accepts the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the USDOT Secretary that the State assumes under this MOU and, 23 U.S.C. § 326. The State understands and agrees that this consent constitutes a waiver of the State's immunity under the Eleventh Amendment to the U.S. Constitution for the limited purposes of addressing the compliance, discharge, and enforcement of matters arising out of this MOU and carrying out the USDOT Secretary's responsibilities that that State assumes pursuant to this MOU and 23 U.S.C. §326. This consent to Federal court jurisdiction shall remain valid after termination of the MOU, or re-assumption of the USDOT Secretary's responsibilities by the FHWA, for any act or omission by the State relating to its compliance, discharge, or enforcement of any responsibility under this MOU or 23 U.S.C. § 326. A valid, binding, and sufficient waiver of the State's sovereign immunity must be in effect at all times that the State acts under the authority of this MOU.

   As provided by Utah Code§ 72-1-207, Utah waives its immunity under the Eleventh Amendment. If this waiver is withdrawn then the State's authority to participate in this MOU will end and this MOU will terminate automatically subject to applicable survival and transitional provisions of this MOU.

3. In accordance with 23 U.S.C. § 326(e), the State agrees that it shall be deemed to be a Federal agency for the purposes of the Federal law(s) under which the State exercises any responsibilities pursuant to this MOU and 23 U.S.C. § 326.
4. The State may not assign or delegate its rights or responsibilities under this MOU to any other agency, political subdivision, or entity, or to any private individual or entity. Without limiting the foregoing, the State understands and agrees that it must retain the environmental decision-making responsibilities assigned to it under this MOU and may not assign or delegate such decision­ making responsibilities to consultants or others.
5. With respect to the public availability of any document or record under the terms of this MOU or the State's open records law, Utah Code§ 630-2-101, et seq., the State certifies that the laws of the State provide that any decision regarding the release or public availability of a document or record may be legally challenged or reviewed in the courts of the State.
6. The State certifies that the person signing this MOU is duly authorized to do so and has the legal authority to:
   1. Waive the State's Eleventh Amendment rights pursuant to the authority in Utah Code § 72-1-207.
   2. Consent to Federal court jurisdiction as specified above;
   3. Enter into this MOU on behalf of the State;
   4. Make the certifications set forth in this MOU; and
   5. Bind the State to the terms and conditions contained in this MO U.
7. The Utah State Attorney General, by signing this MOU, certifies that the foregoing is true and that upon execution of this MOU the certifications, terms, and conditions of the MOU will be legally binding and enforceable obligations of the State. A copy of the opinion letter required under Utah Code§ 72-1- 207(5)(b)(ii) is attached to this MOU as Appendix D.

VI. PUBLIC NOTICE AND COMMENT

1. The execution of this MOU, and of any amendment or renewal, requires prior public notice and an opportunity for comment.
2. The State shall publish notice of the availability of this MOU, and any proposed amendment or renewal, for public review and comment and information regarding access to the USDOT Docket Management System on its website.
3. The FHWA Division Office shall publish in the Federal Register a notice of availability of this MOU and any proposed amendment or renewal of this MOU, for public review and a thirty (30) day comment period. The notice will expressly request comments on any types of activities proposed for assignment under Stipulation I(B), and will include a statement of the public availability of supporting documentation for any assignment under Stipulation I(B). The notice also must advise the public about how to learn about FHWA's final decision on the proposed MOU, including how to obtain a copy of any resulting final MOU. The FHWA will establish a docket in the USDOT Docket Management System to receive comments.
4. The State and the FHW A shall consider comments provided by the respondents to the public notices before finalizing the MOU, or any proposed amendment or renewal agreement. Upon completion of the decision-making process, the FHWA shall publish a notice in the Federal Register that announces the agency's decision and the execution of the MOU. The notice also will inform the public of the availability in the USDOT Docket Management System of a brief summary of the results of the decision-making process and a copy of any final MOU executed by the State and the FHWA, whether initial, amended, or renewed. The notice also will advise where the final MOU is available on the State's website.
5. The State agrees that at all times that this MOU is in effect, the State will post on its website (http://www.udot.utah.gov/go/environmental) a notice of the availability to the public, upon request, of copies of the State's quarterly reports of CE determinations prepared pursuant to Stipulation IV(F)(l), the State's performance reports prepared pursuant to Stipulation IV(F)(2), and the FHWA performance monitoring reports prepared pursuant to Stipulation IV(F)(S). The FHWA will arrange for the posting of a similar notice on the FHWA's website or create a link from the FHWA's site to the State's site.

VII. INITIAL TERM AND RENEWAL

1. This MOU shall have a term of three (3) years, beginning on the date of the last signature.
2. This MOU is renewable for additional terms of three (3) years each if the State requests renewal and the FHWA determines that the State has satisfactorily carried out the provisions of this MOU. In considering any renewal of this MOU, the FHWA will evaluate the effectiveness of the MOU and its overall impact on the environmental review process. The FHWA may decide not to renew the MOU if the FHWA determines that the operation of the MOU has substantial adverse effects on the environmental review process. Such evaluation may include consideration of any effects from the assumption by the State of only some, but less than all, of the FHWA's environmental review, consultation, or other related responsibilities as listed in Stipulation II.
3. At least six (6) months prior to the end of the initial term and of any renewed term of this MOU, the State and the FHWA shall meet to discuss the results of the monitoring and consider any amendments to this MOU. This meeting may be combined with a meeting to discuss performance under the monitoring provisions in Stipulation IV(F)(2) and (F)(5) of this MOU.
4. If the parties do not renew the MOU, then it shall expire at the end of the term then in effect. The provisions of Stipulation X(A)(4), and X(C)-(E) shall apply.

VIII. AMENDMENTS

1. Any party to this MOU may request that it be amended, or administratively modified to reflect non-substantive changes, whereupon the parties shall consult to consider such an amendment. Public notice and comment is not required for the parties to agree to a technical non-substantive change.
2. If, after the required public notice and comment, the parties agree to amend the MOU, then the FHWA and the State may execute an amendment with new signatures and dates of the signatures. The term of the MOU shall remain unchanged unless otherwise expressly stated in the amended MOU. Any amendment that extends the term of the MOU shall be treated as a renewal and the FHWA must make the determinations required for a renewal under Stipulation VII.

IX. TERMINATION

1. Entire MOU. The State, or the State and FHWA by mutual agreement, may terminate this MOU in its entirety.
   1. The FHWA may terminate this MOU without the agreement of the State if the FHWA determines that the State as failed to adequately meet MOU requirements. The procedures in Stipulation X apply.
   2. The State may terminate its participation in the program by providing a written notice to FHWA no later than 90 calendar days before the date of termination.
2. Part of MOU. By mutual agreement, the FHWA and the State may terminate the State's responsibilities with respect to particular designated activities under Stipulation I, or with respect to one or more responsibilities assigned under Stipulation II. The FHWA may exercise such partial termination without the agreement of the State if the FHWA determines that the State has failed to adequately meet MOU requirements for the responsibilities in question, but that termination of the entire MOU is not warranted. The procedures in Stipulation X apply.

X. PROCEDURES FOR TERMINATION AND FHWA-INITIATED PROJECT EXCLUSIONS

1. Except as provided in Stipulation X(B) below, the process for termination under Stipulation IX(A)-IX(B), and for exclusion of a project from the MOU assignment by the FHWA under Stipulation III(B)-III(C), is as follows:
   1. The party wishing to initiate the termination or exclusion shall provide to the other party a written notice of intent. The notice should identify the proposed action and explain the reason(s) for the proposed action.
   2. Following the notice, the parties shall have a 30-day period during which the FHWA and the State shall consult on amendments or other actions that would avoid termination or exclusion. By agreement, the parties may extend this consultation period, provided that such extension may not exceed the term of the MOU.
   3. Following the consultation period, any termination or exclusion by FHWA shall be effective as of a date thirty (30) days after the date of either a post­ consultation agreement between the State and FHWA or the date of the State's receipt of a FHWA notice of final determination of termination or exclusion. In the event of termination initiated by the State, the termination shall be effective 90 days after the date of FHWA's receipt of the State's termination notice. All responsibilities covered by the termination or exclusion shall revert to the FHWA as of that effective date.
   4. In the event of termination or exclusion, the State and the FHWA agree to cooperate to make the transfer of responsibilities back to the FHWA effective in as orderly and administratively efficient manner as possible. The State will promptly provide FHWA any documents, records and other project-related material needed for FHWA to proceed with processing any affected project. Appropriate NEPA procedures, including those under any applicable programmatic CE agreement, shall apply to the subsequent processing of projects.
2. The FHWA, in its sole discretion, may exclude a project from this MOU pursuant to Stipulation III(B)-Ill(C), or terminate this MOU pursuant to Stipulation IX(A)-IX(B), without the 30-day consultation or final notice periods, if the FHWA determines that:
   1. The State is not performing in accordance with this assignment; and
   2. Extreme conditions exist that justify immediate exclusion or termination and transfer back to the FHWA of the responsibilities covered by the exclusion or termination.
   3. In such cases, the FHWA shall notify the State in writing of its determination and action, and specify the reasons for the action.
3. The State's liability for its acts and omissions under this MOU, and the provisions of Stipulation V, shall survive the MOU. This survival clause includes, without limitation, the provisions of Stipulations IV(G)-IV(H) relating to liability and litigation.
4. Termination and exclusion actions, and any decision not to renew, do not require public notice and comment.
5. Termination or other action by the FHWA in accordance with the provisions of this MOU does not limit or otherwise affect the FHWA's ability to seek any other remedy or to take action under other provisions of applicable law, including without limitation any appropriate remedies as provided in 23 CFR 1.36.

XI. STATE EXECUTION OF ASSIGNED RESPONSIBILITIES WITHOUT FHWA INVOLVEMENT

1. The FHWA will not provide any project-level assistance to the State in carrying out any of the responsibilities assigned under this MOU. "Project-level assistance" includes advice, consultation, or document review with respect to the discharge of such responsibility for a particular highway project. However, ''project-level assistance" does not include discussions concerning issues addressed in prior projects, legal interpretations of any applicable law contained in titles 23 or 49 of the United States Code, legal interpretations of any FHWA or USDOT regulation, or interpretations of FHWA or USDOT policies or guidance. If a need for project-level assistance is identified as a result of the government-to-government consultation process described in Stipulation II(B)(1), then the FHWA shall reassume responsibility for the project as provided in Stipulation III(C).
2. The FHWA will not intervene, broker, act as intermediary, or be otherwise involved in any issue involving the State's consultation or coordination with another Federal, State, or local agency with respect to the State's discharge of any of the responsibilities the State has assumed under this MOU for any particular highway project. However, the FHWA holds both monitoring and quality assurance obligations under this MOU and general oversight and stewardship obligations under the Federal-aid Highway Program. In furtherance of those obligations, the FHWA occasionally may elect to attend meetings between the State and other Federal agencies. In rare or extreme circumstances and based on its observations, the FHWA may submit comments to the State and the other Federal agency if the FHWA determines such comment is necessary and in the Federal interest because:
   1. The FHWA reasonably believes that the State is not in compliance with this MOU; or
   2. The FHWA determines that an issue between the State and the other Federal agency has broad or unique policy implications for the administration of the national Federal-aid Highway Program.

XII. NOTICES

State of Utah:
UDOT Executive Director
4501 South 2700 West - 1st Floor Salt Lake City, UT 84129

Federal Highway Administration: Division Administrator
2520 West 4700 South Suite 9A
Salt Lake City, UT 84129-1847

U.S. Department of Justice:
Office of the Assistant Attorney General Environment and Natural Resources Division 950 Pennsylvania Avenue, NW
Room 2143
Washington, D.C. 20530

SIGNATORIES

Execution of this MOU and implementation of its terms by the State formally evidence that the parties have reviewed this MOU and determined that it complies with the laws, regulations and policies applicable to the FHWA and the State. Accordingly, this MOU is approved and is effective upon the date of the last signature below.

FEDERAL HIGHWAY ADMINISTRATION

By: Ivan Marrero, Utah Division Administrator

Date: 6/30/2014

STATE OF UTAH

By: Carlos Braceras, Executive Director, Utah Department of Transportation

Date: 6/30/2014

By: Sean D Reyes, Attornery General, State of Utah

Date: 6/30/2014

APPENDIX A

23 CFR 771.117(d) Determinations that the USDOT Secretary Assigns to the State Pursuant to Stipulation l(B)(3)

Pursuant to Stipulation l(B)(3)

NONE.

APPENDIX B

List of FHWA Responsibilities Assigned

Air Quality

• Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Determinations/or project-level conformity if required for the project.

Noise

• Compliance with the noise regulations in 23 CFR 772

Wildlife

• Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544, and Section 1536 Marine Mammal Protection Act, 16 U.S.C. 1361
• Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g
• 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 et seq.

Historic and Cultural Resources

• Section l 06 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(t) et seq. 1
• Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR Part 774
• Archeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469(c)

Social and Economic Impacts

• American Indian Religious Freedom Act, 42 U.S.C. 1996¹
• Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

• Clean Water Act, 33 U.S.C. 1251-1377
• Section 404
• Section 401
• Section 319
• Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
• Coastal Zone Management Act, 16 U.S.C. 1451-1465
• Safe Drinking Water Act (SOWA), 42 U.S.C. 300f-300j-6
• Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
• Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
• Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
• TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(l 1)
• Flood Disaster Protection Act, 42 U.S.C. 4001-4128

Parklands

• Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR 774
• Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4 (known as Section 6(f))

Hazardous Materials

• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 u.s.c. 9601-9675
• Superfund Amendments and Reauthorization Act of 1986 (SARA) Resource
• Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k

Land

• Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319
• Executive Orders Relating to Highway 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. 11593, Protection and Enhancement of Cultural Reso urces 1
• E.O. 13007, Indian Sacred Sites1
• E.0. 13175, Consultation and Coordination with Indian Tribal Governments 1
• E.O. 13112, Invasive Species

Note:
¹Under these laws and Executive Orders, FHWA will retain responsibility for conducting formal government-to-government consultations with federally recognized Indian tribes. UDOT will continue to handle routine consultations with the tribes and understands that a tribe has the right to direct consultation with FHWA upon request. UDOT may also assist FHWA with formal consultations, with the consent of a tribe, but FHWA remains responsible that this consultation occurs.

23 U.S.C. § 326 CE Assignment MOU
FHWA, Utah Division and the Utah Department of Transportation

APPENDIX C

List of UDOT Programmatic Agreements/Memoranda of Understanding

Statewide Agreements

Memorandum of Agreement between the State of Utah Department of Transportation, the United States Department of Transportation Federal Highway Administration Utah Division, and the United States Department of Interior Fish and Wildlife Service Utah Field Office for Streamlining of Informal Section 7 Consultation under the Federal Endangered Species Act of 1973, as Amended
Signatories to Agreement: USFWS, FHWA, UDOT Director
Effective Date: August 30, 2005

Memorandum of Understanding Between the Utah Department of Transportation and the Utah Geological Survey Concerning Agency Responsibilities Pursuant to U.C.A. 63-73-19.
Signatories to Agreement: UGS Director, UDOT Deputy Director
Effective Date: February 12, 1998

Memorandum of Understanding Between the Utah Department of Transportation and the Utah State Historic Preservation Office Concerning State Funded Minor Highway Improvements and Structure Maintenance Activities and Agency Responsibilities Pursuant to U.C.A. 9-8-404
Signatories to Agreement: SHPO, UDOT Director
Effective Date: June 16, 2004

Programmatic Agreement among the Federal Highway Administration, the Utah State Historic Preservation Officer, and the Utah Department of Transportation Regarding Compliance with Section 106 of the National Historic Preservation Act, as it Pertains to the Administration of the Federal-Aid Highway Program in Utah.
Signatories to Agreement: SHPO, ACHP, FHWA, USACE, UDOT
Effective Date: April 16, 2007, amended June 3, 2013.

ATTACHMENT 2
EXISTING AGREEMENTS

1. Memorandum of Understanding Between the Utah Department of Transportation and the Utah State Historic Preservation Officer Concerning State Funded Minor Highway Improvements and Structure Maintenance Activities and Agency Responsibilities Pursuant to U.C.A. 9-8-404 (State Funded Minor Highway Projects MOU) (amended June 16, 2004)
2. Memorandum of Understanding Between the Utah Department of Transportation and the Utah State Historic Preservation Officer Concerning Right-of-Way Encroachment Permits and Agency Responsibilities Pursuant to U.C.A. 9-8-404 (Encroachment Permits MOU) (January 20, 1998)
3. Memorandum of Understanding Between the Utah Department of Transportation and the Utah Geological Survey Concerning Agency Responsibilities Pursuant to U.C.A. 79-3-508 (UGS MOU) (March 25, 2010)
4. Programmatic Agreement Among the Federal Highway Administration, the Utah Department of Transportation and the Confederated Tribes of the Goshute Indian Reservation Regarding Coordination and Consultation on Federal-Aid Highway Projects in Utah in Accordance with the National Historic Preservation Act Section 106 Process and 36 CFR Part 800 (Goshute PA) (July 29, 2008)
5. Programmatic Agreement Among the Federal Highway Administration, the Utah Department of Transportation, The Paiute Indian Tribe of Utah, and the Cedar Band of Paiute Indians Regarding Coordination and Consultation on Federal-Aid Highway Projects in Utah in Accordance with the National Historic Preservation Act Section 106 Process and 36 CFR Part 800 (Cedar Band PA) (September 29, 2008)
6. Programmatic Agreement Among the Federal Highway Administration, the Utah Department of Transportation, The Paiute Indian Tribe of Utah, and the Indian Peaks Band of Paiute Indians Regarding Coordination and Consultation on Federal-Aid Highway Projects in Utah in Accordance with the National Historic Preservation Act Section 106 Process and 36 CFR Part 800 (Indian Peaks PA)(September 29, 2008)
7. Programmatic Agreement Among the Federal Highway Administration, the Utah Department of Transportation, and the Shivwits Band of the Paiute Indian Tribe of Utah Regarding Coordination and Consultation on Federal-Aid Highway Projects in Utah in Accordance with the National Historic Preservation Act Section 106 Process and 36 CFR Part 800 (Shivwits PA) (March 15, 2011)
8. Agreement to Share Protected Records Between Governmental Entities (Division of State History and Utah Department of Transportation) (UDSH Records Agreement) (August 21, 2007)

ATTACHMENT 3
USACE COMPLIANCE WITH SECTION 106

There are three types of permits that are issued by the United States Army Corps of Engineers (USACE) for Utah Department of Transportation (UDOT) projects: 1) Individual permits; 2) Nationwide permits (usually NWP14); and 3) Programmatic General Permit 40, or PGP40 (Utah Joint Stream Alteration permits). Issuance of a permit in connection with a FHWA/UDOT project is the undertaking for which USACE is responsible for ensuring compliance with Section 106 of the National Historic Preservation Act (NHPA). Thus, USACE compliance responsibilities are limited to the jurisdictional area of potential effects (APE) or Permit Area (USACE Guidelines for Compliance with Section 106 of the National Historic Preservation Act, February 25, 2011). The process outlined below will be used, in addition to the process outlined in the PA, on those projects for which a USACE permit is needed, or anticipated.

Pursuant to 33 CFR 325, Appendix B.8(c), "If another agency is the lead agency as set forth by the CEQ regulations (40 CFR 1501.5 and 1501.6(a) and 1508.16), the district engineer will coordinate with that agency as a cooperating agency under 40 CFR 1501.6(b) and 1508.5 to insure that agency's resulting EIS may be adopted by the Corps for purposes of exercising its regulatory authority." This also applies to Section 106 compliance: "If more than one Federal agency is involved in an undertaking, some or all the agencies may designate a lead Federal agency, which shall identify the appropriate official to serve as the agency official who shall act on their behalf, fulfilling their collective responsibilities under Section 106" (36 CFR 800.2(a)(2)).

As a signatory to this Agreement, USACE has designated UDOT (as assigned by FHWA) as the lead Federal agency for purposes of Section 106 compliance and will serve as a cooperating agency on all Federal-aid projects that may require a permit from USACE. The process to allow USACE to adopt UDOT's Section 106 consultation by having UDOT act on their behalf in fulfilling their collective responsibilities under Section 106 is as follows:

• Invite USACE to project team meetings
• Early coordination on the draft scope of the project and the APE
  • For EAs and EISs, USACE will be copied on the Section 106 APE consultation letter to SHPO.
    • UDOT will request that USACE defines their jurisdictional APE/Permit Area; USACE will ensure that the UDOT-defined APE encompasses the USACE-defined jurisdictional APE/Permit Area.
    • USACE will have 15 days to respond or concur with the APE. If they do not respond within that time period, UDOT may assume USACE has no objections and that the UDOT-defined APE encompasses the USACE­ defined jurisdictional APE/Permit Area, and may proceed.
  • For CEs, except for the exempted projects listed below, a description of the project and the proposed APE will be sent to USACE by UDOT at the same time project notifications are sent to other potential consulting parties.
    • UDOT will request that USACE define their jurisdictional APE/Permit Area; USACE will ensure that the UDOT-defined APE encompasses the USACE-defined jurisdictional APE/Permit Area.
    • USACE will have 15 days to respond or concur with the APE. If they do not respond within that time period, UDOT may assume USACE has no objections and that the UDOT-defined APE encompasses the USACE­ defined jurisdictional APE/Permit Area, and may proceed.
• USACE will be copied on all correspondence to and from Native American Tribes
• Tier 1 projects
  • USACE will accept the Tier 1 quarterly submittals through the process defined in this PA and will not require further SHPO consultation on each individual project. UDOT will include a copy of the Tier 1 Screening Form with all permit applications.
• Tier 2 projects
  • USACE will be copied on the determination of eligibility and finding of effect (DOE-FOE) letter to SHPO submitted by UDOT.
  • The DOE-FOE or FOE will describe the effects on historic properties within the USACE-defined jurisdictional APE/Permit Area.
  • UDOT will request USACE concurrence on the determinations and findings within the USACE-defined jurisdictional APE/Permit Area.
    • If USACE fails to comment on any findings contained in a submission within 30 calendar days of receipt, UDOT may assume they have no objection and proceed to the next step in the consultation process pursuant to 36 CFR 800.3(c)(4).
• Memorandums of Agreement (MOAs)
  • USACE will be a signatory on all MOAs with adverse effects within their jurisdictional APE/Permit Area.
• On projects with a USACE permit, the discovery process will include the USACE if within their jurisdictional APE/Permit Area.

UDOT has identified certain activity types that do not require a USACE permit and qualify for an exemption from USACE coordination. These activities tend to be pavement or maintenance related and are limited to the roadway prism. Identification of which projects are exempted types of activities will be added to the Tier 1 tracking form and submitted quarterly to FHWA, SHPO, and USACE. The list of types of activities exempted is as follows:

1. Pavement Related
   1. Resurfacing the existing roadway within the roadway prism (toe of slope to top of cut) without other geometric changes. Work includes removing existing pavement surface by rotomilling or grinding, placing new pavement surface overlay using a variety of material types, and/or replacing concrete pavement panels. Existing subbase and original ground remains under the roadway.
   2. Sidewalk, curb and gutter, and pedestrian access ramp replacement and/or installation within the roadway prism and not including additional excavation outside existing disturbed area. Disturbance is less than 2 feet below existing surface. Mostly done in urban, residential, or developed/disturbed areas.
2. Maintenance Related
   1. Pavement repairs within the roadway prism including pothole repairs, joint repairs, pavement patching, soft spot repairs, crack sealing of roads, rumble strips, and pavement marking, striping, and messaging where the construction does not disturb original ground.
   2. Bridge maintenance and other structure repairs where work is limited to the structure, including deck and joint repairs, sealing, painting, approach slab work, and barrier/railing upgrades or replacement.
3. Signing Related
   1. Installation and replacement of signs within the roadway prism, including replacement of existing signs in-kind and/or any sign that does not disturb original ground. Signs include traffic signs, information signs, mile markers, and other delineators .
   2. Other signs within the roadway prism that include installation of driven foundation posts 6" or less in diameter for signs, or drilled shaft foundations generally to a maximum diameter of 36."
4. Roadside Safety Related
   1. Install, repair, replace or upgrade existing guardrail, impact attenuators, and/or crash cushions on highways within the roadway prism where construction does not disturb original ground.
   2. Install or replace center median or shoulder barriers on highways within the roadway prism where construction does not disturb original ground. Includes barriers of concrete, cable, or similar material type.
5. Traffic Monitoring Related
   1. Install, replace, and upgrade traffic signal and lighting poles, located entirely in uplands. Includes street lighting poles.
   2. Install highway monitoring systems including loop detectors (or other types of sensors), cameras, radio systems, ATMS systems, and variable message signs (with the exception of towers) where construction does not disturb original ground, located entirely in uplands.
6. Other Project Types
   1. Any project, not specifically mentioned above, where all proposed work will take place on existing roadways within roadway prism (toe of slope to top of cut).
   2. Streetscape improvements, including benches, decorative lighting, textured crosswalks, transit shelters, community signage, and containerized plantings where the construction does not disturb original ground.
   3. Rehabilitation of historic structures where construction is limited to the structure.
   4. Rehabilitation of historic transportation equipment such as railroad locomotives and rail cars.
   5. Purchase of scenic easements or abandoned rail corridors where no construction activity is planned. Resale of scenic easements is not part of this agreement.

ATTACHMENT 4
RESPONSIBILITIES TIER 1 AND TIER 2 PROJECTS

PA Stipulation No.	Activity	FHWA	UDOT	USACE	Consultant1	Comments
IV.A	Ensure compliance with the terms of Agreement	X
IV.B.l & IX.8	Determine undertaking		X
IV .B.2 & IX.A	Determine if type of undertaking has potential to cause effects		X
IV.B.3 & IX.A	Determine if undertaking has potential to affect historic properties on tribal lands		X
V.A&IX.A.C	Initial consultation with Tribes	X				Unless Tribes have agreed to consultation with UDOT PQS
V.E	Subsequent consultation with Tribes	X				Unless Tribes agree to alternate procedures
IV.B.6 & IX. A	Identify and invite consulting parties		X		X
IV.B. 5	Solicit public comment		X		X
IV.B.7 & IX.B	Determine scope and level of effort; if field survey is needed		X
IV.B and IX.B	Determine APE		X	X
IX.B	Conduct literature search		X		X
IX.B	Conduct field survey		X		X
VII.A	Determine if project qualifies for Tier l review process		X
IV.B. and IX.C	Determine historic property boundaries		X		X
NIA	Recommendations of eligibility				X
IV.B.9 & IX.C	Determine eligibility		X
NIA	Draft DOE2		X		X	May be combined with FOE
IX.C	Submit DOE to SHPO and consulting parties		X
IX.C	Resolve disagreements on eligibility, including notifying the Keeper of the National Register		X
IX.D	Determine effect		X
NIA	Draft FOE3		X		X
IX.D	Submit FOE to SHPO and consulting parties		X			May be combined with DOE
IX.D	Consult to resolve adverse effects		X
IX.D	Resolve disagreements on effect and request Council comment		X
IX.D	Notify public of adverse effect		X		X
IX.D	Draft MOA4 or Treatment Plan		X		X
IX.D	Execute MOA or Finalize Treatment Plan		X
IX.D	Distribute executed MOA or final Treatment Plan to consulting parties		X
IX.D	Send executed MOA and supporting documentation to Council		X
IX.D	Carry out stipulations in MOA or Treatment Plan		X		X
XI.B.	Notify FHWA, USACE, SHPO, Council, Tribes of discovery		X
XI.B.	Develop treatment plan for discovery		X		X
XI.B	Consultation on discovery		X
XI.B	Data recovery of discovery		X		X
XIII.B	Monitor implementation of Agreement	X
XIII.C	Resolving objections to implementation of Agreement		X

¹ At the request and under the direction of the UDOT PQS
² Determination of Eligibility
³ Finding of Effect
⁴ Memorandum of Agreement

DELEGATED CEs

PA Stipulation No.	Activity	FHWA	UDOT PQS	USACE	Consultant1	Comments
IV.A	Ensure compliance with the terms of Agreement	X
IV.B.l & IX.8	Determine undertaking		X
IV .B.2 & IX.A	Determine if type of undertaking has potential to cause effects		X
IV.B.3 & IX.A	Determine if undertaking has potential to affect historic properties on tribal lands		X
V.A & IX. A.C	Initial consultation with Tribes	X				Unless Tribes have agreed to consultation with UDOT PQS
V.E	Subsequent consultation with Tribes	X				Unless Tribes agree to alternate procedures
IV.B.6 & IX.A	Identify and invite consulting parties		X		X
IV.B . 5	Solicit public comment		X		X
IV.B.7 & IX.B	Determine scope and level of effort; if field survey is needed		X
IV.Band IX.B	Determine APE		X	X
IX.B	Conduct literature search		X		X
IX.B	Conduct field survey		X		X
Vil.A	Determine if project qualifies for Tier 1 review process		X
IV.B. and IX.C	Determine historic property boundaries		X		X
NIA	Recommendations of eligibility				X
IV.B.9 & IX.C	Determine eligibility		X
NIA	Draft DOE2		X		X	May be combined with FOE
IX.C	Submit DOE to SHPO and consulting parties		X
IX.C	Resolve disagreements on eligibility, including notifying the Keeper of the National Register		X
IX.D	Determine effect		X
NIA	Draft FOE3		X		X
IX.D	Submit FOE to SHPO and consulting parties		X			May be combined with DOE
IX.D	Consult to resolve adverse effects		X
IX.D	Resolve disagreements on effect and request Council comment		X
IX.D	Notify public of adverse effect		X		X
IX.D	Draft MOA4 or Treatment Plan		X		X
IX.D	Execute MOA or finalize Treatment Plan			X
IX.D	Distribute executed MOA or final Treatment to consulting parties			X
IX.D	Send executed MOA and supporting documentation to Council		X
IX.D	Carry out stipulations in MOA or Treatment Plan		X		X
XI.B.	Notify FHWA, USACE, SHPO, Council, Tribes of discovery		X
XI.B.	Develop treatment plan for discovery		X		X
XI.B	Consultation on discovery		X
XI.B	Data recovery of discovery		X		X
XIII.B	Monitor implementation of Agreement		X
XIII.C	Resolving objections to implementation of Agreement	X

¹ At the request and under the direction of the UDOT PQS
² Determination of Eligibility
³ Finding of Effect
⁴ Memorandum of Agreement

ATTACHMENT 5
SCREENED UNDERTAKINGS (Tier 1)

The Screening Process

The determination that an undertaking is exempt from further review or consultation will be made by the PQS, although some of the activities included in the screening may be done by qualified consultants, as specified in Stipulation IV.B.

The screening process may include one or more of the following procedures. The process is not limited to the procedures below, nor is all these procedures required for all unde rtakings. Screening should be appropriate to the specific complexity, scale, and location of the undertaking.

• Literature/record-s review to determine potential for involvement of historic properties
• Consultation with Tribes who may attach religious or cultural significance to properties within the project area, as appropriate for the scope of the undertaking.
• Field review of project area, including survey if necessary
• Review of detailed project plans
• Consultation with local historic societies, or knowledgeable informants, as appropriate for the scope of the undertaking
• Review of aerial photographs, UDOT photologs, historic maps, or as-built records
• Review of right-of-way, assessment parcel, or ownership data

Based on the outcome of the screening process, the PQS may determine that individual undertakings require no further review and consultation . Documentation of the screening must be completed using the following form which will be included in the appropriate environmental document. The Tier 1 Screening Form and Supporting documentation will be submitted to the SHPO quarterly.

ATTACHMENT 6

SECTION 01355 - ENVIRONMENT AL COMPLIANCE
PART 3.8 - DISCOVERY OF HISTORICAL, ARCHAEOLOGICAL, OR PALEONTOLOGICAL OBJECTS, FEATURES, SITES, OR HUMAN REMAINS

1. Immediately suspend construction operations in the vicinity (minimum 100-ft buffer around the perimeter) of the discovery if a suspected historic, archaeological, or paleontological item, feature, or site is encountered, or if suspected human remains are encountered.
2. Verbally notify the Engineer of the nature and exact location of the findings.
3. The Engineer contacts the UDOT Region staff archaeologist, who will assess the nature of the discovery and determine the necessary course of action.
4. Protect the discovered objects or features and provide written confirmation of the discovery to the Engineer within two calendar days.
5. The Engineer keeps the Contractor informed concerning the status of the restriction.
   1. The time necessary for the Department to handle the discovered item, feature, or site is variable, dependent on the nature and condition of the discovery.
   2. The Engineer will provide written confirmation when work may resume in the area.

Should a discovery occur, UDOT will consult with SHPO/THPO, Tribes (as appropriate), and USACE (if permit action is involved and discovery is within the USACE jurisdictional APE) in accordance with 36 CFR 800.13(b)(3) and this Agreement toward developing and implementing an appropriate treatment plan prior to resuming construction.

ATTACHMENT 7
DELINEATION OF AREA OF POTENTIAL EFFECTS (APE)

In accordance with Stipulations IV.B. and IX.B., UDOT will establish the area of potential effects (APE) for undertakings covered by this Agreement. The UDOT PQS, in consultation with the project manager, is responsible for describing and establishing an APE.

When the guidelines below are followed, specific consultation with SHPO regarding APE and level of effort will typically not be necessary. Consultation with SHPO may be needed for large and complex undertakings, when there are issues of access for inventory and evaluation, when there are concerns over delineating whole properties, or when there is public controversy such as potential for litigation, concerns expressed by outside parties, or issues related to Native American consultation.

As defined in 26 CFR 800.16(d), an APE is "the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking." An APE therefore depends on an undertaking's potential for effects. Effects to be considered may include, but are not limited to, physical damage or destruction of all or part of a property; physical alterations; moving or realigning a historic property, isolating a property from its setting; visual, audible, or atmospheric intrusions; shadow effects; vibrations; and change in access or use.

An APE delineates the boundaries within which it can be reasonably expected that a proposed undertaking has the potential to affect historic properties, should any be present. It may be the right-of-way itself, or an area either more or less than the right-of-way, depending on the scope and design of the undertaking.

An APE may extend well beyond the right-of-way. It must include all construction easements, such as slope and drainage easements, stormwater detention basins, off-site biological mitigation sites requiring ground disturbance, and mandatory borrow and disposal sites. It may include project-related activity areas such as utility relocations, access roads, equipment storage areas, or conservation or scenic easements.

An APE addresses indirect effects when warranted. Indirect effects may extend beyond the right­ of-way to encompass visual, audible, or atmospheric intrusions; shadow effects; vibrations from construction activities; or change in access or use. Delineation of an indirect APE must be considered carefully, particularly for potential audible and visual effects, taking into account proximity and use of adjoining properties, the surrounding topography, and other aspects of a property's setting.

1. Noise: When considering potential noise effects, there must be a reasonable basis for predicting an effect based on an increase over existing noise level. Noise effects should be considered when a project would result in a new through lane or a substantial change in vertical or horizontal alignment.
2. Visual: Highways on new alignments, multi-level structures, or elevated roadways are considered to have potential for visual effects if they could be out of character with or intrude upon a historic property or isolate it from its setting. Projects for improvement or expansion of existing transportation facilities that will not substantially deviate from existing alignment or profile are not expected to involve visual impacts. If circumstanced indicate potential for visual effects, consultation with SHPO may be warranted .

Different APEs may be established for archaeological and built properties:

1. For archaeological properties, an APE is typically established based on an undertaking's potential for direct effects from ground-disturbing activities. On occasion, archaeological sites may also have qualities that could be affected indirectly.
2. Buildings, structures, objects, districts, traditional cultural properties, and cultural landscapes are more likely to be subject to indirect, as well as direct, effects; thus an APE for the built and cultural environment is usually broader than an archaeological APE in order to include the potential for such effects. For instance, the first row of potential properties beyond the right-of-way may be subject to such effects, and thus be included in an indirect APE when warranted.

In delineating the APE, consideration must always be given to the undertaking's potential effects on a historic property as a whole. If any part of a property may be affected, the APE will generally encompass the entire property, including the reasonably anticipated or known boundaries of archaeological sites. However, it is rarely necessary to extend an APE to include entire large districts or landscapes, large rural parcels, extensive functional systems, or long linear features, if potential effects on the whole would clearly be negligible .

The guiding principle on delineating an APE is that it should be commensurate with, and provide for, an appropriate level of effort to take into account an undertaking's potential for effects on historic properties.

While an APE will generally encompass an entire property, physical intrusion such as testing of archaeological sites must be focused on areas subject to reasonably foreseeable effects of the undertaking, and should be guided by a project- or site-specific research design. Areas of an archaeological site that are unlikely to be affected by an undertaking should not be tested unless compelling reasons to conduct such testing are provided in the research design.

Whenever an undertaking is revised (e.g., design changes, utility relocations, or additional off-site mitigation areas), UDOT PQS will determine if the changes require modifying the APE. If an APE proves to be inadequate, UDOT is responsible for informing consulting parties in a timely manner of needed changes. The APE shall be revised commensurate with the nature and scope of the changed potential effects.

In order to encourage consideration of historic properties early in the planning a design of an undertaking, UDOT PQS may designate a study area of use in conducting cultural resource studies until an APE can be delineated. A study area should encompass all land that could potentially be included in the final APE. Establishing a study area is especially pertinent to those undertakings subject to a phased identification and evaluation process.

ATTACHMENT 8
SECTION 4(F) DE MIN/MIS AGREEMENT

Section 4(f) De Minimis Determination; Pursuant to SAFETEA-LU Section 6009 In Conjunction with Section 106 Programmatic Agreement Among the Federal Highway Administration, the Advisory Council on Historic Preservation, the Utah State Historic Preservation Officer, and the Utah Department of Transportation (July 19, 2007)

A Letter on Utah Department of Transportationn letterhead

April 13, 2017
Mr. Brad Westwood
Deputy State Historic Preservation Officer Utah Division of State History
300 Rio Grande
Salt Lake City, UT 84101-1182

RE: Section 4(f) De Minimis Determination Pursuant to SAFETEA-LU Section 6009

Dear Mr. Westwood:

In accordance with Parts 3. l.l and 3.2.1 of the Memorandum of Understanding Between the Federal Highway Administration and the Utah Department of Transportation Concerning State of Utah's Participation in the Surface Transportation Project Delivery Program Pursuant lo 23 USC §327 (executed January 17, 2017), the Utah Department of Transportation (UDOT) assumes responsibility, assigned by the Federal Highway Administration (FHW A), for ensuring compliance with Section 4(f) of the DOT Act of l 966, as amended. This letter was prepared in accordance with FHW A Guidance regarding Section 6009(a) of the 2005 Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 6009 allows increased flexibility with respect to minor transportation impacts lo Section 4(1) properties, including historic properties. It simplifies the processing and approval of federally funded transportation projects that have a de minimis impact on lands protected by Section (f). For historic properties, a finding of de minimis impact on a historic site may be made by the UOOT when Section \06 consultation results in the written concurrence of the State Historic Preservation Office (SHPO) with the determination of"no adverse effect" or "no historic properties affected".

SAFETEA-LU has no other Section 106 implications other than the requirement for written SHPO concurrence with Section 106 findings of effect for individual Section 4(t) properties. It does require UDOT to notify the SHPO of UDOT's intent to utilize the finding of"no historic properties affected" or "no adverse effect" for individual Section 4(f) properties as a basis for making a Section 4(f) de minimis use finding.

On December 13, 2005, FHW A issued guidance to implement the Section 6009 provision of SAFETEA-LU. The guidance (attached) includes Questions and Answers on the Application of lhe Section 4(j) de minimis impact Criteria and offers several points of relevant direction. We refer you to Question 2 of the guidance titled: De Minimis Impact Findings for Section 4(j) Uses of Historic Prop ertie.􀀇.

Therefore, in accordance with the 2005 Guidance, and by transmittal of this letter, the FHW A is notifying your office ofUDOT's intent to make the Section 4(f) de minimis use finding for properties where a determination of"no historic properties affected" or "no adverse effect" has been concurred in by your office or when your office has not replied within the appropriate timeframe with written concurrence.

Should you have any questions or need additional information, please feel free to contact Liz Robinson at 801-910- 2035 or lizrobinson@utah.gov. Please return this signed letter to UDOT Central Environmental Division.

Sincerely,
Brandon Weston
Environmental Services Director UDOT Central Environmental

By the following signature, the SHIPO acknowledges it has been notified of the intent of the UDOT to make a de Min nis finding based on Section 106 determinations of effect for specific properties.

P. Bradfored Westwood, 4/21/2017

Enclosures