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

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

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

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  1. State of Alaska’sAssumption 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

  2. 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

  3. 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.

  4. 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

  5. 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).

  6. 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.

  7. 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

  8. 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.

  9. 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.

  10. 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

  11. 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).

  12. 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.

  13. 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.

  14. 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.

  15. 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

  16. 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.

  17. 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

  18. 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

  19. 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.

  20. 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)

  21. 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.

  22. 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….

  23. 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.

  24. 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.

  25. 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

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. 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.

  31. 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.)

  32. 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.)

  33. 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.

  34. 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.

  35. 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

  36. 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) BACK

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