NEPA Assignment

Categorical Exclusion Assignment (23 U.S.C. 326)

23 U.S.C. §326 CE Assignment MOU Template

State Assumption of Responsibility for Categorical Exclusions

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MEMORANDUM OF UNDERSTANDING
between
Federal Highway Administration, Division
and the
Department of Transportation [fill in state transportation or highway agency title]
State Assumption of Responsibility for Categorical Exclusions

THIS MEMORANDUM OF UNDERSTANDING (“MOU”), made and entered into this day of 20XX, by and between the FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES DEPARTMENT OF TRANSPORTATION (“FHWA”) and the STATE of [fill in State’s name], acting by and through its DEPARTMENT OF TRANSPORTATION [fill in state transportation or highway agency title] (“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 1, 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, Section 1312 of the Moving Ahead for Progress in the 21st Century Act (P.L.112-141) amended 23 U.S.C. §326 to preserve the ability of States assuming responsibility to engage in project delivery methods that are otherwise permissible for highway projects, 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 to allow States assuming responsibility to use funds apportioned to the State under section 104(b)(2) for reasonable attorney’s fees directly attributable to eligible activities associated with the project; and
Whereas, on _________, FHWA published a notice of the availability of the proposed MOU in the Federal Register and provided a 30-day opportunity for comment; and
Whereas, on _________, the State published a notice of the availability of the proposed MOU in the _______________and provided a 30-day opportunity for comment; and
Whereas, the State and FHWA have considered the comments received; 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

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 I(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 771.117(a) and (b). This assignment applies only to projects for which the ___ [fill in the State DOT name] is the direct recipient of Federal-aid highway program funding or is the project sponsor or cosponsor for a project requiring approval by FHWA - [fill in the State] Division Office. This assignment does not apply to responsibilities carried out by other modal administrations of the US Department of Transportation (DOT) or the Office of the Secretary.
2. This assignment pertains only to the designated activities described in this Stipulation I(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.
  2. Any activities added through FHWA rulemaking to those listed in 23 CFR 771.117(c) or example activities listed in 23 CFR 771.117(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. Such programmatic agreement remains in effect with respect to matters not covered in this MOU until said programmatic agreement is terminated, or superseded, by subsequent agreement(s) between the State and FHWA or by law. A CE project that is excluded from this MOU, but is within the scope of a programmatic CE agreement between FHWA and the State, may be processed pursuant to such programmatic agreement so long as that agreement remains in effect and does not conflict with the terms of this MOU.
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 of 23 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.
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: [list here those responsibilities that are assumed, or add a list as an Appendix item]. 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 III(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. Responsibility for [list here those environmental review, consultation, or other responsibilities that are retained by FHWA].
  3. The State and FHWA will develop and document procedures for carrying out FHWA responsibilities retained by FHWA under Stipulation II(B)(2), including how any FHWA decisions will be communicated to the State for inclusion in the State’s decisionmaking under Stipulations I and II(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 decisionmaking for Stipulation II(B) activities;
    2. The FHWA provides the State with a documented decision and any related information used for Stipulation II(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 necessary 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.
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 CEs categories described in Stipulation I(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 III(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 are [insert a listing specific to your State; if none, then insert “Not applicable.”].
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 771.117(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 Web site or sent to the State electronically or in hard copy.
  3. After the effective date of this MOU, 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 individual designated by the State.
  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 771.117(c), carry out a review of proposed CE determinations, including consideration of the environmental analysis and project file documentation, prior to the State’s 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 determination 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 the NEPA. The State has been assigned, and hereby certifies that it has carried out, the responsibility to make this determination pursuant to Chapter 3 of title 23 U.S.C. §326 and a Memorandum of Understanding dated [TO BE FILLED], 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 771.117(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 FHWA as the responsible party under NEPA to proceed with documentation and review of the project under the appropriate NEPA procedures (including those under a programmatic CE agreement, if applicable).
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 106 of the National Historic Preservation Act, as amended, the State shall comply with 36 CFR 800.2(a)(1). 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.
  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.
  4. Without limiting the foregoing, the State also shall implement the following quality control procedures [insert any other specific quality control activities agreed upon by FHWA and the State or insert “Not applicable”].
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 [the Division Office should select an appropriate time frame of at least 12, but no more than 18, months]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 [select electronic, paper, or 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 12 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 (to view FHWA guidance on how monitoring should occur visit https://www.fhwa.dot.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. 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 [enter date of execution of the 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 the FHWA’s Division Office and 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 the 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 either litigation or pre-litigation settlement agreements, the lack of FHWA 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 re-assumes 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(l), the State shall transmit such document to the FHWA’s Division Office and 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 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.
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 DOT 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 11th Amendment to the United States Constitution for the limited purposes of addressing the compliance, discharge, and enforcement of the DOT 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 DOT Secretary’s responsibilities by 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.
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 decisionmaking responsibilities assigned to it under this MOU and may not assign or delegate such decisionmaking 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, [insert citation to the State’s FOIA/open records law, 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 11th Amendment rights pursuant to the authority in [fill in the citation to the State law authorizing the waiver];
  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 MOU.
  The State’s Attorney General, by signing this MOU, or by issuing an opinion letter that is addressed to the FHWA Administrator and attached to 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.
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 the MOU, and any proposed amendment or renewal, for public review and comment in one or more newspapers of statewide circulation.
3. The FHWA Division Office shall publish in the Federal Register a notice of availability of the proposed MOU, and any proposed amendment or renewal, for public review and a 30-day comment period. The notice will expressly request comments on any proposed additional designation of activities as CEs, including any types of activities described in a MOU Appendix pursuant to Stipulation I(B)(3). 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 Federal Docket Management System at http://www.regulations.gov to receive comments.
4. The State and FHWA shall consider comments provided by the respondents to the notices before finalizing the MOU, or any proposed amendment or renewal agreement. Upon completion of the process, FHWA shall place in the Federal Docket Management System a brief summary of the results of the process and the availability of any final MOU executed by the State and FHWA, whether initial, amended, or renewed.
5. The State agrees that at all times that this MOU is in effect, the State will post on its Web site (insert State’s Web site) and make available to the public upon request, copies of the State’s semi-annual reports of the CE determinations under Stipulation IV(F)(l), the State’s performance reports under Stipulation IV(F)(2), and FHWA performance monitoring reports pursuant to Stipulation IV(F)(5). The FHWA will arrange for the posting of a similar notice on the FHWA’s Web site or create a link from the FHWA’s Web site to the State’s Web site.
INITIAL TERM AND RENEWAL
1. This MOU shall have an initial term of 3 years, beginning on the date of the last signature.
2. This MOU is renewable for additional terms of 3 years each if the State requests renewal and FHWA determines that the State has satisfactorily carried out the provisions of this MOU. In considering any renewal of this MOU, 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 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 FHWA’s environmental review, consultation, or other related responsibilities as listed in Stipulation II. At least 6 months prior to the end of the initial term and of any renewed term of this MOU, the State and 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)(5) of this MOU.
3. 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.
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 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 FHWA must make the determinations required for a renewal under Stipulation VII.
TERMINATION
1. Entire MOU. The State, FHWA, 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 FHWA determines that the State has 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, 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 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.
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 by 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 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. Effective date.
    1. Terminations shall be effective either 30 days after the date of the State’s receipt of a FHWA notice of termination or 90 days after the date of FHWA’s receipt of the State’s termination notice.
    2. Exclusions shall be effective 30 days following the date of either execution of 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 exclusion.
    3. All responsibilities covered by the termination or exclusion shall revert to FHWA as of the effective date of either the termination or exclusion notice.
  4. In the event of termination or exclusion, the State and FHWA agree to cooperate to make the transfer of responsibilities back to FHWA effective in as orderly and administratively efficient manner as possible. The State promptly will provide to 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)-III(C), or terminate this MOU pursuant to Stipulation IX(A)-IX(B), without the 30-day consultation or final notice periods, if 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 FHWA of the responsibilities covered by the exclusion or termination.
  In such cases, 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 FHWA in accordance with the provisions of this MOU does not limit or otherwise affect 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.
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 DOT regulation, or interpretations of FHWA or DOT 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 FHWA may 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, 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, FHWA occasionally may elect to attend meetings between the State and other Federal agencies. Based on its observations, FHWA may submit comments to the State and the other Federal agency in the following extraordinary circumstances:
  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.
NOTICES
Any notice to either party may be given electronically so long as a paper original of the notice also is delivered to the party. The effective date of the notice shall be the date of delivery of the paper original. Paper notices shall be delivered as follows:

State of :
[fill in title, address]

Federal Highway Administration:
[fill in title, address]

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
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 FHWA and the State. Accordingly, this MOU is approved and is effective upon the date of the last signature below.
FEDERAL HIGHWAY ADMINISTRATION

*[Insert name]* Division Administrator		Date
*STATE OF* *[Fill in State name]*
*[Insert title of chief officer (i.e., Secretary, Commissioner)]* *[Fill in transportation agency name]*		Date
[Insert name] Attorney General *[confirm and correct title as needed]*