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MEMORANDUM OF UNDERSTANDING
National Environmental Policy Act
and
Clean Water Act Section 404
Integration Process
for
Surface Transportation Projects
in the
State of Hawaii

I. APPLICABILITY

A. This memorandum of understanding (MOU) applies to all projects needing both Federal Highway Administration (FHWA)/ Federal Transit Administration (FTA) action under the National Environmental Policy Act (NEPA) and a U.S. Army Corps of Engineers (Corps) individual permit under section 404 of the Clean Water Act. This MOU is limited to issues pertaining to waters of the United States (waters of the U.S.) and associated sensitive species.

B. Regulatory/resource agency participation in this process does not imply endorsement of all aspects of a transportation plan or project. Nothing in this MOU or its Appendices is intended to diminish, modify, or otherwise affect the statutory or regulatory authorities of the agencies involved.

II. BACKGROUND

In a May 1, 1992 agreement, the U.S. Department of Transportation, the U.S. Department of Army-Civil Works, and the U.S. Environmental Protection Agency (EPA) adopted as agency policy (1) improved interagency coordination and (2) integration of NEPA and the Clean Water Act section 404 procedures. This MOU implements this policy.

III. NEPA-SECTION 404 INTEGRATION

The signatories to this MOU are committed to integrating NEPA and section 404 of the Clean Water Act in the transportation planning and project development stages. We are committed to ensuring the earliest possible consideration of environmental concerns pertaining to waters of the U.S., including wetlands, at each of these two stages. We place a high priority on the avoidance of adverse impacts to waters of the U.S. and associated sensitive species, including threatened and endangered species.

Whenever avoidance of waters of the U.S. is not practicable, minimization of impacts will be achieved, and unavoidable impacts will be mitigated to the extent reasonable and practicable. We will improve interagency cooperation and consultation at all levels of government throughout the process. We will integrate compliance with the Section 404(b)(1) Guidelines with compliance with the National Environmental Policy Act.

IV. ANTICIPATED BENEFITS OF PROCESS

The process embodied in this MOU will:

  1. Improve cooperation and efficiency of governmental operations at all levels, thereby better serving the public,
  2. Expedite construction of necessary transportation projects, with benefits to mobility and the economy at large,
  3. Enable more transportation projects to proceed on budget and on schedule, and
  4. Protect and enhance the waters of the U.S., which will benefit the State's aquatic ecosystems and the public interest.

V. IMPLEMENTATION PROCEDURES

A. Appendix A is a NEPA-404 Concurrent Process paper for the Project Development stage which is incorporated into this MOU.

B. The signatory agencies agree to use guidance papers to facilitate the implementation of this MOU. These guidance papers include, but are not limited to, the following:

  1. Purpose and Need
  2. Alternatives Analysis and Avoidance
  3. Mitigation
  4. Level of Data Needs / Threshold for Regulatory/Resource Agency Involvement

VI. CONCURRENCE/NONCONCURRENCE

A. Timeliness: Regulatory/resource agencies will provide their comments in a timely manner, as defined for each stage (see Agency Commitments section below).

B. Concurrence: written determination that:

  1. The information to date is adequate for this stage, and
  2. The project may proceed to the next stage without modification.

Agencies agree not to revisit previous concurrences unless there is significant new information or significant changes to the project, the environment, or laws and regulations.

C. Nonconcurrence: written determination that:

  1. The information to date is not adequate for this stage,
  2. The potential adverse impacts of the project are severe.

Agencies are encouraged to try to resolve issues before sending a written determination of nonconcurrence. Agencies agree to provide an explanation of the basis for nonconcurrence. All agencies (transportation and regulatory/ resource) agree to attempt to resolve issues causing nonconcurrence, and to try to do so informally before entering formal dispute resolution.

VII. DISPUTE RESOLUTION

Initiated upon request of any signatory agency. Reasons may include:

  1. Unresolved written nonconcurrence,
  2. Lack of response within agreed-upon time limits, and 3. Substantive departure from the MOU process. See Appendix B, Dispute Resolution.

VIII. PARTICIPATION

If Corps, EPA, Fish and Wildlife Service (FWS), and/or National Marine Fisheries Service (NMFS) choose not to participate in early planning or the pre-scoping phase of project development, they will notify the project sponsors, who may proceed to the next stage (or next phase of project development) without prejudice. There would be no formal concurrence or nonconcurrence. However, nonparticipation implies that, based upon information provided by the project sponsors, it appears that regulatory and resource issues are of_a magnitude amenable to resolution at the next stage.

IX. MONITORING/EVALUATING IMPLEMENTATION OF MOU

The signatory agencies will monitor the success of the MOU process and modify it as necessary to improve it. Each signatory agency shall designate a representative to serve on a monitoring and evaluation team. See Appendix C, MOU Monitoring and Evaluation.

X. AGENCY COMMITMENTS

A. Pipeline Projects

Projects that were extant on the date this MOU is approved (but for which a Record of Decision or FONSI has not been signed) are "pipeline" projects. These projects may proceed to the next concurrence point without prejudice; however, signatory agencies may request and receive information developed in earlier phases of the project. The remaining MOU integration process will then be followed.

B. Neighbor Island Projects

Hawaii DOT will adhere to the processes contained in the MOU for Neighbor Island projects.

C. Continuity

FHWA and FTA will ensure that project sponsors provide copies of all relevant portions of correspondence from regulatory/ resource agencies in documentation at subsequent stages.

D. Systems Planning Stage 1. FHWA and FTA agree to:

  1. Issue regional guidance indicating that adherence to this MOU would satisfy the environmental planning provisions of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) regarding waters of the U.S.
  2. Emphasize consideration of environmental impacts to waters, wetlands, and associated sensitive species in their federal planning priority statements.
  3. Evaluate Oahu Metropolitan Planning Organization's (OMPO's) inclusion of planning provisions of this 140U and federal planning priorities in the Overall Work Program review.
  4. Evaluate OMPO's process for avoiding impacts to waters of the U.S. and associated sensitive species during the review and certification of the metropolitan planning process. Modifications consistent with this MOO integration process will be recommended as appropriate.

2. State of Hawaii Department of Transportation (Hawaii DOT) agrees to:

  1. Provide technical assistance and/or existing biological data to OMPO and the Neighbor Islands Counties for the development of inventories of waters of the U.S. and associated sensitive species.
  2. Review and comment on the adequacy of information and avoidance of sensitive resources presented in the regional transportation plan (RTP) and associated environmental analyses.

3. Oahu Metropolitan Planning Organization (OMPO) agrees to:

  1. Address waters of the U.S. and associated sensitive species in the RTP.
  2. Request federal regulatory/resource agencies to review and comment on the RTP and associated environmental analyses.

4. The Corps, EPA, FWS, and NMFS agree to:

  1. Provide input to the draft RTP (relating to waters of the U. S. and to associated sensitive species).
  2. Review and comment on the RTP and associated environmental analyses within the public review period: purpose and need, alternative selection, mode, environmental impacts including cumulative impacts.
  3. Concur, not concur or conditionally concur on the RTP by the end of the public review period for the RTP. Conditional concurrence would identify portions of the information that are not adequate and/or those elements of the plan for which impacts cannot be determined.

E. Project Development Stage

All signatory agencies agree to implement Appendix A, the NEPA EIS/EA/CE-404 Permit Concurrent Process for Project Development.

1. FHWA and FTA agree to:

Not approve a final EIS, categorical exclusion (CE), or, for an environmental assessment (EA), not issue a finding of no significant impact (FONSI) unless there is written preliminary agreement from the Corps, after consultation with EPA, that the project complies with the Section 404(b)(1) Guidelines.

2. Hawaii DOT agrees to:

  1. Request regulatory/resource agency involvement early in the NEPA process.
  2. Provide the information necessary to identify the least environmentally damaging practicable alternative and associated mitigation.

3. Corps, EPA, FWS, and NMFS agree to:

  1. Participate in the project development process when aquatic resource impacts are substantial.
  2. Review and concur or nonconcur on NEPA purpose and need, section 404 basic and overall project purpose, criteria for alternative selection, project alternatives to be evaluated in the draft EIS, and the preferred alternative.
  3. Respond to requests for concurrence within 45 days.

XI. MODIFICATION/ TERMINATION

This MOU may be modified upon approval of all signatories. Modification may be proposed by one or more signatories. Proposals for modification will be circulated to all signatories for a 30-day period of review. Approval of such proposals will be indicated by written acceptance. A signatory may terminate participation in this agreement upon written notice to all other signatories.

Signed by:
Thomas J. Ptak, Regional Administrator
Federal Highway Administration, Region Nine      Date: 9/29/94

Signed by:
Stewart F. Taylor, Regional Administrator
Federal Transit Administration, Region 9      Date: 10/4/94

Signed by:
Kazu Hayashida, Director
Hawaii Department of Transportation      Date: 2/2/95

Signed by:
Gordon G. Lum, Executive Director
Oahu Metropolitan Planning Organization      Date: 1/26/95

Signed by:
Henry S. Miller, Jr., BG, U.S. Army, Division Engineer
U.S. Army Corps of Engineers, Pacific Ocean Division      Date: 1/31/95

Signed by:
Felicia Marcus, Regional Administrator
U.S. Environmental Protection Agency, Region IX      Date: 10/17/94

Signed by:
Michael Spear, Regional Director
U.S. Fish and Wildlife Service, Region I      Date: 11/21/94

Signed by:
Hilda Diaz-Soltero, Regional Director
National Marine Fisheries Service, Southwest Region      Date: 12/27/94

Appendix A

NEPA EIS - 404 PERMIT CONCURRENT PROCESS 1

PRE-SCOPING

For EIS projects likely to require a Department of Army permit Hawaii DOT in consultation with FHWA may initiate a pre-scoping process. They will invite Corps, EPA, FWS, and NMFS (when marine and anadromous fish resources are involved) to actively participate in the project development process.

The Corps, EPA, FWS, and NMFS will each choose to participate in the project development process at an appropriate level of involvement depending on the quality and quantity of resource involved (e.g., choose not to participate in some or all of the project meetings and/or in the first agreement point (marked P. below)); however, the remaining agreement points (marked i below) will be executed prior to advancing to the next stage.

Reaffirm/refine/develop Corps, EPA, FWS, NMFS, Hawaii DOT, FHWA preliminary agreement on:

SCOPING

DRAFT EIS DEVELOPMENT

Final Corps, EPA, FWS, NMFS, Hawaii DOT, FHWA agreement prior to DEIS publication on:

Hawaii DOT delineation of waters of the U.S.
Corps verification of jurisdictional determination.

FHWA/Hawaii DOT environmental inventory/impact evaluation.

Corps, EPA, FWS, NMFS participation in development of draft EIS. Such activities could include, as - appropriate:

Hawaii DOT submits application for Corps permit and initiates consultation with Hawaii Department of Health on Section 401 certification. (allowing enough time for Corps to prepare the public notice for a joint draft EIS/PN transmittal). FHWA/Hawaii DOT draft EIS approval.

DRAFT EIS CIRCULATION / SECTION 404 PUBLIC NOTICE OF EIS DOCUMENT
Note: The draft EIS circulation and 404 public notice must be closely coordinated.

FHWA/Hawaii DOT NEPA public hearing (joint NEPA/Corps 404 hearing, if appropriate). FINAL EIS DEVELOPMENT

FHWA/Hawaii DOT evaluate draft EIS comments received.
Corps evaluates comments received on public notice.

Hawaii DOT/Corps/FHWA identify final EIS NEPA preferred/section 404 least environmentally damaging practicable alternative alignment (w/ design concept) to achieve NEPA project purpose and need/404 basic project purpose.

Preliminary agreement of preferred alternative compliance with the section 404(b)(1) guidelines. The following documents are to be obtained by FHWA/Hawaii DOT for inclusion in the final EIS as a preliminary agreement of section 404(b)(1) compliance:

(1) Written FWS preliminary agreement in the project mitigation plan as a result of earlier Fish & Wildlife Coordination Act consultation.

(2) If FWS/NMFS threatened and endangered species list identifies listed species potentially in project area, written FWS/NMFS documentation: species not present, not likely to be affected, or non-jeopardy biological opinion.

(3) Written Corps and EPA preliminary agreement that:

Cooperating agency review/participation in development of final EIS
(e.g., cooperating agency review of draft EIS comments and responses).

FHWA/Hawaii DOT final EIS approval.

DEVELOPMENT OF RECORD OF DECISION

FHWA/Hawaii DOT evaluate any final EIS comments received.
Corps evaluates comments received on public notice.
Opportunity for cooperating agency review of the draft record of decision for consistency with the above preliminary agreement of section 404(b)(1) compliance.
FHWA record of decision approval.

Hawaii DOT develops final project design, finalizes mitigation plan and implementation schedule, and initiates right-of-way acquisition.

Hawaii DOT obtains 401 certification from Hawaii DOH.

CORPS PERMIT DECISION

FHWA/Hawaii DOT approval of project plans, specifications, & estimate (PS&E) (after all necessary permits/findings obtained).

Hawaii DOT advertise / award contract.
Commence construction.

Permit compliance / mitigation monitoring.

PRE-ASSESSMENT

For EA or CE projects likely to require a Department of Army permit Hawaii DOT in consultation with FHWA may initiate a prescoping process. They will invite Corps, EPA, FWS, and NMFS (when marine and anadromous fish resources are involved) to actively participate in the project development process.

The Corps, EPA, FWS, and NMFS will each choose to participate in the project development process at an appropriate level of involvement depending on the quality and quantity of resource involved (e.g., choose not to participate in some or all of the project meetings); however, the agreement points marked *0 below will be executed prior to advancing to the next stage.

Reaffirm/refine/develop Corps, EPA, FINS, NMFS, Hawaii DOT, FHWA agreement on:

DRAFT EA or CE DEVELOPMENT

Hawaii DOT delineation of waters of the U.S.
Corps verification of jurisdictional determination.

FHWA/Hawaii DOT environmental inventory/impact evaluation.

Corps, EPA, FWS, NMFS participation in development of draft EA or CE. Such activities could include, as appropriate:

For EA projects, FHWA/Hawaii DOT draft EA approval.

Hawaii DOT submits application for Corps permit.
For EA projects, a copy of the approved draft EA will be included with application.

DRAFT EA CIRCULATION / SECTION 404 PUBLIC NOTICE

For EA projects, opportunity for FHWA/Hawaii DOT NEPA public hearing
(joint NEPA/Corps 404 hearing, if appropriate).

CE's are not circulated to the general public. Required project information will be included with the section 404 public notice. Corps 404 hearing held, if appropriate

FINAL EA/CE DEVELOPMENT

For EA projects:

FHWA/Hawaii DOT evaluate draft EA comments received.
Corps evaluates comments received on public notice.

FHWA decision to prepare an EIS or to develop a FONSI.
If EIS, initiate EIS development process.

If FONSI or CE, proceed with either of the following processes that is mutually agreeable to the Corps and Hawaii DOT/FHWA:

A Hawaii DOT/FHWA identify final EA/CE preferred alternative to achieve NEPA project purpose and need.

FHWA FONSI or CE approval.

Hawaii DOT begins final project design, finalizes mitigation plan and implementation schedule, and initiates right-of-way acquisition.

Section 401 certification or waiver from State Water Quality Management Agency.

CORPS PERMIT DECISION

B Hawaii DOT/Corps/FHWA identify final EA NEPA preferred/section 404 least environmentally damaging practicable alternative alignment (w/ design concept) to achieve NEPA project purpose and need/404 basic project purpose.

Preliminary agreement of preferred alternative compliance with the section 40.1(b)(1) guidelines. The following documents are to be obtained by FHWA/Hawaii DOT for inclusion the final E4 as a preliminary agreement of section 404(b)(1) compliance:

  1. Written FVVS preliminary agreement in the project mitigation plan as a result of earlier Fish & Wildlife Coordination Act consultation.
  2. If FINS/NMFS threatened and endangered species list identifies fisted species potentially in project area, written FWS/NMFS documentation: species not present, not likely to be affected, or non-jeopardy biological opinion.
  3. Section 401 certification or waiver from State Water Quality Management Agency.
  4. Written Corps and EPA preliminary agreement that:
    the final £4 NEPA preferred/section 404 least environmentally damaging practicable alternative,
    project will not significantly degrade the aquatic environment, and
    the project mitigation plan and implementation schedule is adequate.

FHWA FONSI approval.

Hawaii DOT begins final project design, finalizes mitigation plan and implementation schedule, and initiates right-of-way acquisition.

CORPS PERMIT DECISION

FHWA/Hawaii DOT approval of project plans, specifications, & estimate (PS&E) 4
(after all necessary permits/findings obtained).

Hawaii DOT advertise / award contract. Commence construction.

Permit compliance / mitigation monitoring.


1 For transit projects, any references to FHWA and Hawaii DDT in this appendix can be replaced with FTA and FTA grantees, respectively.

2 This approval is not applicable for FTA transit projects.

3 For transit projects, any references to FHWA and Hawaii DOT in this appendix can be replaced with FTA and FrA grantees, respectively.

4 This approval is not applicable for FTA transit projects.

Appendix B

DISPUTE RESOLUTION

I. INTRODUCTION

The purpose of this dispute resolution procedure is to provide a process to resolve disagreements among signatory agencies or project sponsors. The goal is to expeditiously resolve disputes at the lowest level of the organizations through consensus and informal alternative dispute resolution processes such as partnering, facilitation or mediation.

II. LEVELS OF DISPUTE RESOLUTION

A. Informal dispute resolution

  1. "Informal dispute resolution" is project level staff and mid-level management coordination between parties to resolve the issue.
  2. Informal dispute resolution can be initiated by any signatory agency or a project sponsor who has formally, agreed to follow the NEPA/404 process.
  3. To the maximum extent possible, all normal and reasonable dispute resolution options should be exhausted before initiation of the formal dispute resolution processes.

B. Formal dispute resolution

  1. If the parties agree that the informal dispute resolution process has been exhausted, any representative of a signatory party can initiate the formal dispute resolution process.
  2. The second-level panel member will invite all signatory agencies in writing to convene a meeting of the second-level panel within 45 days to resolve the issue.
  3. The invitation will include a statement of issue and any pertinent background material.
  4. The second-level panel may elect to raise the issue to the signatory level.

C. Documentation

  1. The written documentation of the informal and formal resolution efforts will be distributed to all signatory parties by the agency initiating the resolution process.

MOU Signatory Level

Corps Division Engineer FWS/NMFS Regional Directors
EPA/FHWA/FTA Regional Administrators
Hawaii State DOT Director OMPO Executive Director

Second-Level Panel Corps District Engineer

FWS Field Office Supervisor NMFS Field Office Supervisor EPA Division Director
FHWA Division Administrator
PTA Deputy Regional Administrator State Transportation Planner
or Chief, Highways Division OMPO RTP Project Manager

Appendix C

MOU MONITORING AND EVALUATION

I. TEAM MEMBERSHIP

MOU monitoring and evaluation will be conducted by a team made up of one representative from each signatory agency. FHWA will chair the team and coordinate the meetings.

II. FREQUENCY AND SCOPE OF MEETINGS

This team shall hold semi-annual meetings to consider and recommend:

  1. Minor editorial corrections to the MOU,
  2. More substantive proposals for improvement in the MOU process,
  3. How to monitor and measure the success of the MOU process,
  4. Changes to the MOU process to reflect monitoring results, and
  5. Continuation of monitoring and evaluation.

III. PROCESS/MOU CHANGES

The monitoring and evaluation team will:

  1. Present minor revisions to the MOU to their agencies for concurrence, or
  2. For more substantive issues, recommend a process for obtaining the agreement of all signatories to amend the MOU. This may require reconvening the interagency body which developed the MOU, and/or initiating the dispute resolution process at the signatory level.

IV. REPORTING

  1. Minutes of all meetings will be distributed to signatory agencies.
  2. The team will report to the signatory agencies on implementation of this MOU one calendar year after the MOU is signed and as necessary thereafter.

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