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Programmatic Agreement

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Programmatic Agreement document sample

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									      State of Alaska‟s
Assumption of Responsibility
 for Categorical Exclusions
        from FHWA

  Sometimes referred to as the Section 6004 assignment

                 Anchorage – June 25, 2009
                   Juneau – June 26, 2009
                  Fairbanks - July 15, 2009
                Training Overview

• History/Background of CE Assumption
  (What has been accomplished so far…)


• FHWA/DOT&PF MOU Details
  (What will we be required to do…)


• The „new‟ CE Procedure
 (How are we going to do this…)
  – Process
  – QA/QC


                                         2
       History and Background

SAFETEA-LU Section 6004 (signed into law by
George Bush on Aug 10, 2005):

Allowed the USDOT Secretary to assign, and a
State to assume responsibility for determining
whether activities are categorically excluded
from the requirements for EAs or EISs.




                                                 3
        History and Background

If a State assumes such responsibility… the
USDOT Secretary may also assign …certain
Federal responsibilities for environmental
review, consultation, or other related actions …

  Such as…

• Section 106 Consultation
• Bald and Golden Eagle Act Consultation
• Essential Fish Habitat (EFH) Consultation

                                                   4
         History and Background

Alaska is only the third state to request
assumption.

  (California and Utah are the other two
  states and have already successfully
  assumed CE responsibilities).




                                            5
      History and Background

DOT&PF and the Alaska Division of FHWA have
developed a Memorandum Of Understanding
(MOU) and are waiting for final signatures.

Have CEQ & FHWA Headquarters approval.

FHWA and DOT&PF have issued public notices,
received and responded to comments.



                                          6
        History and Background

 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…

In other words…
  …the State…shall be deemed to be a Federal
  agency


                                                  7
        History and Background
 this…constitutes a waiver of the State‟s
 immunity under the Eleventh Amendment to the
 U.S. Constitution for … purposes of addressing
 the compliance, discharge, and enforcement of
 …responsibilities that the State assumes under
 this MOU….

In other words…
  The State can now be sued for our CE
  documents.

                                                  8
       History and Background

DOT&PF is completing the necessary supporting
work:

– Updated 3 of the Environmental Procedures
  Manual chapters (CE, Section 4(f) and Re-
  evaluations),
– Developed an Internal Programmatic Agreement
  for certain CEs (approved April 23, 2009), and
– Revised the Project Information Sheet.



                                                   9
                Training Overview

• History/Background of CE Assumption
  (What has been accomplished so far…)


• FHWA/DOT&PF MOU Details
  (What will we be required to do…)


• The „new‟ CE Procedure
 (How are we going to do this…)
  – Process
  – QA/QC


                                         10
                MOU Details
The MOU Supersedes any existing programmatic
agreement solely between the State and the FHWA
concerning CEs.

FHWA Programmatic Agreements for CEs (4)
remain in effect for those non-assigned projects.

Internal (DOT&PF) Programmatic Agreement for
CEs only applies to assigned projects. The internal
programmatic agreement has 3 programmatic
approvals (#1, 2, & 3).

                                                      11
                       MOU Details
The CE assignment only applies to the following projects:

     • Meets the definition of a CE as provided in 40 CFR 1508.4
       and 23 CFR 771.117(a and b);
     • Activities listed in 23 CFR 771.117 (c); or
     • The example activities listed in 23 CFR 771.117(d).

If the activity is not included on either the “c” or “d” list then it is
not assigned and FHWA Alaska Division approves the CE.




                                                                           12
                 MOU Details
The CE assignment only applies to the following
projects:

Federal Aid highway projects requiring approval
(funding) by the FHWA Alaska Division office.

Projects with mixed Federal funding sources (Western
Federal Lands, FTA, FAA, BIA, Denali Commission, etc.)
cannot be assigned to the State.




                                                     13
                   MOU Details
FHWA will retain the responsibility for the following:

Formal Government-to-Government (G2G) consultation
with Federally recognized tribes as defined in 36 CFR
800.16(m)

(Initiation notification (scoping) from the State to a Tribe
is not considered Government-to-Government.)

Inadequate resolution of an issue/concern raised during
G2G with a tribe [as defined in 36 CFR 800.16(m)] can
cause exclusion from CE assignment.


                                                               14
                 MOU Details
FHWA will retain the responsibility for the
following:

– Formal consultation under Section 7 of the
  Endangered Species Act (T&E)
– Formal consultation under ANILCA for a Title XI
  approval (roads through public conservation system
  unit, national recreation area or national conservation
  area)
– Individual Section 4(f) Evaluations


                                                        15
                  MOU Details

State Responsibilities:

  The State agrees that it is solely responsible and
  solely liable for complying with and carrying out
  this MOU.

  State must provide evidence of document
  completion to FHWA when requesting funding
  authorizations.


                                                   16
                     MOU Details
State Responsibilities:
  State will work with other appropriate Federal
  agencies concerning laws, guidance, and policies.

  The State must provide quality control:
  •   monitor Class of Action determinations and documentation
  •   take corrective action, as needed
  •   provide training
  •   implement QC in state procedures



                                                             17
               MOU Details
State Responsibilities:
  The MOU also requires that the State must
  maintain capability and expertise such as:

        • appropriate technical and managerial
          expertise
        • adequate financial and staff resources
        • demonstrate the capacity to perform the
          responsibilities


                                                    18
                   MOU Details

State must comply with:

  – 23 CFR 771.117(a)&(b), and
  – all applicable fed laws, regulations, policies and
    guidance, and
  – State and local laws

    Failure to meet these requirements is grounds for
    termination of the MOU.




                                                         19
                 MOU Details

State Responsibilities:

   • Quarterly Listing Report of CE determinations
   • Performance Report after 5 quarters (15/30
     months)
   • FHWA/DOT&PF Meeting 6 months before
     renewal date (initial term is 3 years)
   • Maintain records – FOIA availability
   • FHWA process reviews (minimum annually)


                                                 20
                 MOU Details

FHWA Responsibilities:
 The FHWA shall have no responsibility or liability
 for the performance of responsibilities assigned
 to the State.

  The FHWA will not intervene or be otherwise
  involved in any issue involving the State‟s
  consultation or coordination with another
  Federal, State, or local agency.


                                                 21
                 MOU Details
FHWA Responsibilities:
 Although, FHWA may elect to attend meetings
 between the State and other Federal agencies
 as part of monitoring.

  The FHWA will not provide project-level NEPA
  assistance, which includes advice, consultation,
  or document review for a particular highway
  project….


                                                     22
                  MOU Details
FHWA Responsibilities:
 …does not include discussions concerning prior
 projects, legal interpretations of titles 23 or 49,
 FHWA or USDOT regulation, policies or
 guidance.

 FHWA retains Federal Aid funding approval.

 FHWA policies and guidance are to be
 communicated to the State within 10 days of
 issuance.

                                                       23
               MOU Details

The MOU shall have an initial term of three (3)
years.

Renewable for additional terms of three (3)
years each if DOT&PF requests and the FHWA
Alaska Division determines we have
satisfactorily carried out the provisions of the
MOU.



                                                   24
                Training Overview

• History/Background of CE Assumption
  (What has been accomplished so far…)


• FHWA/DOT&PF MOU Details
  (What will we be required to do…)


• The ‘new’ CE Procedure
 (How are we going to do this…)
  – Process
  – QA/QC


                                         25
       CE Procedure – Process

Any CE project or CE re-evaluation that has not
been completed prior to the date the MOU gets
signed, that qualifies for assignment, will be
transferred to the State.

Non-assignable projects will remain with FHWA.




                                                  26
         CE Procedure – Process
The MOU requires that the State shall:

  Institute a process to identify and review
  environmental effects of a proposed project or
  activity (new Chapter 5 – Categorical Exclusions
  within the Environmental Procedures Manual).

  The procedure in developing an assigned CE
  will not change that much from the current
  process.

                                                 27
          CE Procedure – Process

• The analyst, Regional Environmental Manager (REM),
  and Engineering Manager will review the scope of the
  project.

• The REM submits in writing the class of action
  determination to the Statewide NEPA Manager. The
  REM provides the Statewide NEPA Manager with
  enough information to make this determination. The
  REM will also make certain that there are no exclusions
  that would keep the CE from being assigned.



                                                            28
           CE Procedure – Process

• Statewide Environmental will then either concur in writing
  that the project is “assignable for State processing as a
  Categorical Exclusion (CE)” or must be given to FHWA
  to approve.

• An assigned CE should be basically developed the same
  way they are now, the only difference is that questions or
  concerns must be routed through the REM to the
  Statewide NEPA Manager instead of to FHWA.




                                                          29
     CE Procedure – Process
CE Approval:
• Project fits one of the Programmatic Approvals
  of the Internal Programmatic Agreement (no CE
  Document needed) – No documentation is
  needed, the REM certifies and provides written
  notification to the Statewide NEPA Manager.
  That written documentation must be attached to
  all funding requests that go to FHWA.



                                               30
          CE Procedure – Process

CE Approval:
• Project fits one of the three programmatic approvals
  (CE Document needed) – the analyst, and
  Engineering Manager sign, REM reviews, approves
  (certifies), and forwards a copy to the Statewide
  NEPA Manager for concurrence and file. (The
  Statewide NEPA Manager does not need to sign the
  CE, but to add some QA/QC measures; they will
  look over the document and make certain that the
  programmatic agreement fits the project.)


                                                     31
          CE Procedure – Process

CE Approval:

• Project that does not fit one of the programmatic
  approvals – analyst, and Engineering Manager sign,
  REM reviews, signs, and forwards a copy to the
  Statewide NEPA Manager for approval and signature.
  (The Statewide NEPA Manager will review, approve and
  then sign the CE Document to complete the
  environmental process.)




                                                     32
       CE Procedure – QA/QC

The process shall include review by a
competent reviewer who is not the preparer
of the CE documentation.

The competent reviewer within each of the
regions is the Regional Environmental Manager.




                                             33
          Contact Information
Currently two Statewide NEPA Program
Managers:
   • Northern & SE Region
     Ben White, 465-6961
   • Central Region
     Susan Wick, 269-6229


DOT&PF is currently recruiting for another
Statewide NEPA Program Manager.

                                             34
                 Questions ?

• History/Background of CE Assumption
  (What has been accomplished so far…)

• FHWA/DOT&PF MOU Details
   (What will we be required to do…)

• The „new‟ CE Procedure
  (How are we going to do this…)
   – Process
   – QA/QC

                                         END
                                           35
         CE Procedure – Process
Exclusions:
• Not on “c” or “d” List
• Uses ANILCA Land that requires a Title XI
  approval
• Inadequate issue resolution with a federally
  recognized tribe
• Likely to adversely affect T&E species such that
  formal Section 7 Consultation or conference is
  needed
• Requires an Individual Section 4(f) Evaluation
• other Federal funding (i.e. FTA, FAA, BIA)
                                                     36
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