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REIMBURSABLE AGREEMENT
MEMORANDUM OF UNDERSTANDING

AMONG THE
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL HIGHWAY ADMINISTRATION
AND THE
U.S. DEPARTMENT OF THE INTERIOR,
FISH AND WILDLIFE SERVICE

RELATIVE TO
PRIORITY HIGHWAY CONSTRUCTION PROJECT REVIEWS
BY THE U.S. FISH AND WILDLIFE SERVICE
IN
NORTH DAKOTA

SEPTEMBER 2005

This Memorandum of Understanding (MOU) among the North Dakota Department of Transportation (NDDOT), Federal Highway Administration (FHWA), and the U.S. Department of the Interior, Fish and Wildlife Service's (USFWS) North Dakota Field Office (NDFO) sets forth the responsibilities of the signatory agencies (Parties) relative to priority review of North Dakota highway construction projects, with the goal of achieving timely design and implementation of adequate, safe, and economical highway improvements while assuring such design and construction is sensitive to the protection of fish and wildlife resources for which the Parties are responsible under federal statute and regulation.

WHEREAS Authority for this agreement is pursuant to the Intergovernmental Cooperation Act (31 U.S.C. 6505); and

WHEREAS Authority for this activity was given in the Transportation Act for the 21st Century (TEA 21) and authority for funding has been continued in the Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA - LU) section 1511; and

WHEREAS, because of the federal-aid highway funding increases under the Transportation Equity Act for the 21St Century (TEA-21), NDDOT has substantially increased the number of highway construction projects the USFWS is asked to review pursuant to the Endangered Species Act (ESA) of 1973 (87 Stat. 884, as amended; 16 U.S.C. 1531 et seg.). Fish and Wildlife Coordination Act (FWCA)(48 State. 401; 16 U.S.C. 661 et seq.), Migratory Bird Treaty Act (MBTA)(16 U.S.C. 703-712, as amended), Bald and Golden Eagle Protection Act (16 U.S.C. 688-688d, as amended (B&GEPA), and National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347); and

WHEREAS, many of these projects fall within the known habitats of federally listed and proposed threatened and endangered species, designated critical habitats, and the habitats of other trust resource species pursuant to the aforementioned federal laws; and

WHEREAS, USFWS has indicated that due to staff resource constraints, the North Dakota Field Office is currently unable to provide FHWA and NDDOT with priority review, consultation, and advice for the increased number of highway construction projects pursuant to its responsibilities; and

WHEREAS, the Parties have determined that it would be mutually beneficial to dedicate USFWS staff to perform the needed field reconnaissance visits to project sites, address recent and emerging federally listed threatened and endangered species listing and critical habitat designations and other fish and wildlife resource issues under the responsibilities of the USFWS; and

WHEREAS, the Parties have determined that dedicated staff would provide priority review and consultation on federal-aid highway construction projects contemplated or under design by NDDOT; and

WHEREAS, NDDOT is willing to reimburse USFWS for dedicated staffing to provide these functions; and

WHEREAS, FHWA has indicated and agrees that North Dakota's apportioned federal-aid highway funds can be used to support this agreement and would be eligible for reimbursement at applicable federal aid match rates.

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the signatory Parties to this MOU concur with the following responsibilities and terms.

I. AGENCY RESPONSIBILITIES

A. NDDOT Shall:

  1. Program federal-aid projects to track costs and support payment to USFWS for the costs contemplated by this MOU, including:
    • Salary and benefits for one-half of one (1) full-time biologist currently on staff with the USFWS, adjusted annually to cover appropriate step-increases and cost of living allowance (COLA) costs awarded federal government employees at the rate equivalent to a federal white-collar pay schedule (General Schedule 12 (GS-12).
    • Travel, training, and per diem at federal government rates as needed to support the priority review and consultation contemplated by this MOU.
    • Indirect costs at 22 percent charged by the Denver Finance Center, Denver, Colorado.
    • It is anticipated that the total annual funds needed for these services will not initially exceed ($57,791). Actual costs may be less than this amount, depending on the amount of staff time, travel, and training needed to support the priority review and consultation contemplated by this MOU.
  2. Once this MOU is signed by all parties, the USFWS will submit to NDDOT for review quarterly USFWS submittals of actual account expenditures for salaries, benefits, travel, training, and indirect costs in support of work contemplated in paragraph LB.1 below.
  3. The NDDOT will provide an annual payment to the USFWS to fund the anticipated services provided by the dedicated staff. The annual payment will be provided to the USFWS at the beginning of the fiscal year (Oct. 1)
  4. Make available to USFWS dedicated staff, database, and office information that would be used to determine impacts of highway construction projects on federal trust fish and wildlife resources.

B. USFWS Shall:

  1. Dedicate up to one-half of an existing staff biologist's time, which currently reviews FHWA/NDDOT projects on a routine basis and use the funds provided under this MOU to pay costs of salaries and associated benefits, training, and indirect costs as prescribed in the USFWS's cost recovery policy (FWS Manual Part 264), and to reimburse reasonable travel expenses in accordance with the Federal Travel Regulations, 41 C.F.R. Chapter 301, which is incorporated into this MOU by reference.). The USFWS shall place the NDDOT annual payment in a separate account and will draw on that account as the dedicated staff accrues expenditures that result from fulfillment of the services described in this MOU.
  2. Ensure that the dedicated staff contemplated by this MOU is assigned to work on the priority projects identified by NDDOT in accordance with the coordination procedures defined in I.D. below, unless detailing to other transportation projects.
  3. Ensure that the dedicated staff funded under this MOU keeps daily time records, which identifies the number of hours spent working on each specific NDDOT project and any other work tasks such as those listed under I.D. below. These records shall account for up to 50 percent of the time worked by dedicated staff. In addition, USFWS shall keep accurate and separate accounting records of all receipts and disbursements of all funds received pursuant to this MOU and produce such records for examination by NDDOT or FHWA. The USFWS shall keep records substantiating hours and costs billed pursuant to this MOU for a period of at least three (3) years after the 4th quarter report is submitted. These records shall be subject to audit by NDDOT, FHWA, or other federal or state agencies as appropriate.
  4. Submit quarterly accounts of expenditures, including receipts, based on I.B.2. to the NDDOT Point of Contact (POC).
  5. An annual budget request will be submitted to NDDOT and FHWA by May 1 for the following year's funding needs.
  6. Once this MOU is signed, assign dedicated existing staff immediately to support work contemplated by this MOU.
  7. In the event of disagreement over statements of expenditures, negotiate in good faith towards reconciliation of the disputed amount, continue the priority review of highway construction projects throughout negotiations until resolution is rendered.
  8. Make available to NDDOT and FHWA, database and office information that is used to determine impacts of highway construction projects on federal trust fish and wildlife resources.

C. FHWA Shall:

  1. Approve programming a federal-aid project at the request of NDDOT to accomplish the work contemplated by this MOU at the applicable federal-aid reimbursement rate. Any requirement for the payment or obligation of funds by FHWA-North Dakota pursuant to this MOU will be subject to availability or appropriated funds. No provision herein shall be interpreted to require any obligation or payment of funds in violation of the Anti-Deficiency Act (31 U.S.C. .1341).
  2. Under the authority of 23 U.S.C. Section 132, reimburse NDDOT the federal share payable for any project programmed to support this MOU upon obtaining notification of its execution.

D. Coordination:

  1. Both NDDOT and USFWS agree that ready and reasonable access will be provided to working level staff of the other agency in an effort to minimize the need for formal meetings.
  2. While the focus of this MOU will be on the review of NDDOT/FHWA highway projects, the USFWS's dedicated staff may also be involved in other tasks that support agency coordination and which serves to expedite the implementation of NDDOT's highway construction program and compliance with the statutes and regulations for which the USFWS has responsibility. Examples of other tasks that may be assigned by the USFWS's NDFO management to dedicated staff at the request of NDDOT/FHWA include, but are not limited to:
    • Compilation of wildlife resources inventories (e.g., federally listed species and nesting migratory bird surveys) relative to the state's highway system;
    • Identifying and reviewing parcels of land to be used for mitigation associated with a DA permit;
    • Participating in annual reviews of NDDOT's wetland mitigation banking program;
    • Review and comment NDDOT State highway funded projects that have a federal nexus
    • Provide training and updates to NDDOT/FHWA staff regarding statutes and regulations for which the USFWS has responsibilities;
    • Attendance of NDDOT/FHWA sponsored training sessions which may benefit the USFWS in successfully implementing this MOU;
    • Participation in NDDOT scoping process for environmental documents and attend NDDOT field reviews
    • Provide detailed input on proposed highway project alternatives
    • Provide requested responses within an appropriate time frame, however not later than 30 days after the request has been make.

II. GENERAL TERMS

A. Length of the Cooperative Agreement:

The length of this MOU is one (1) year from the date of signature of the last signing party unless extended or terminated as provided in II.B. and II.C.

B. Modifications and Extension:

This MOU may be modified, amended, or extended in two-year increments by mutual agreement of the signatory parties.

C. Termination:

This MOU may be terminated by either the NDDOT or USFWS upon ninety (90) days written notice to the POC contact in the other agency.

D. Point of Contact:

The POC in each signatory agency is listed below unless such responsibility is delegated by this individual.

E. Required Clauses:

  1. During the performance of this MOU, the Parties agree to abide by the terms of Executive Order 11246 on nondiscrimination and will not discriminate against any person because of race, color, religion, sex, or national origin. The participants will take affirmative action to ensure that applicants are employed without regard to their race, color, religion, sex, or national origin.
  2. No member of or delegate to Congress, or appointed transportation official or Commissioner, shall be admitted to any share or part of this MOU or any benefit that may arise from; but this provision shall not be construed to extend this MOU if made with a corporation for its general benefit.
  3. The Parties agree that in any contracts to be developed and awarded pursuant to this MOU all designs, plans, specifications, estimates of costs, construction, utility relocation work, right-of-way acquisition procedures, acceptance of the work, and procedures in general shall, at all times, conform to the applicable federal and State laws, rules, regulations, orders, and approval, including, specifically, procedures and requirements relating to labor standards, equal employment opportunity non-discrimination, compliance with the Americans with Disabilities Act, and anti-solicitation, information, auditing, and reporting provisions.

F. Continuation of Existing Responsibilities:

  1. The Parties to this MOU are acting in an independent capacity in the performance of their respective functions under this MOU, and regardless of the funding source for any dedicated staff of USFWS to support priority review and consultation on highway constructions projects, such shall not be construed as an officer, agent, or employee of either the NDDOT or FHWA.
  2. In no way do the NDDOT, FHWA, or USFWS intend to abrogate through this MOU any obligations or duties to comply with the regulations promulgated under ESA, FWCA, MBTA, or EPA, NEPA, or the Clean Water Act (33 U.S.C. 1344 et seq.).

G. Other Agreements:

  1. This MOU does not preclude the signatory agencies from entering other interagency agreements relative to their respective roles and responsibilities; however, any other agreements should be consistent with this MOU.

III. SIGNATORY PAGE

Signed by: David A. Sprynczynetyk, Director
North Dakota Department of Transportation
Date: October 6, 2005


Signed by: Allen R. Radliff, Division Administrator
North Dakota Division
Federal Highway Administration

Date: October 14, 2005
Signed by: Ralph Morgenweck
Regional Director, Region 6
U.S. Fish and Wildlife Service
Date: October 24, 2005

 


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