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STATE OF NEBRASKA

DEPARTMENT OF ROADS
John L. Craig, Director
1500 Highway 2
PO Box 94759
Lincoln NE 68509-4759
Phone 402)471-4567
FAX (402)479-4325
wtim.dorstate.ne.us
December 2, 2004
Mike Johanns
Governor

Mr. Steve Anschutz
Nebraska Field Supervisor
U.S. Fish and Wildlife Service Federal Building 203 West Second Street
Grand Island, NE 68801

Re: Agreement Between the Nebraska Department of Roads and the U.S. Fish and Wildlife Service to Fund a Position to Work on Highway Projects in Nebraska

Dear Mr. Anschutz:

As a result of our interagency negotiations, the Nebraska Department of Roads (NDOR) has agreed to fund a full-time biologist for the U.S. Fish and Wildlife Service (USFWS) at the USFWS's Nebraska Ecological Services Field Office in Grand Island, Nebraska. Initially, we are agreeable to funding the position for a minimum period of 4 years, beginning with the date the USFWS hires the biologist. In general, the NDOR funded biologist would be dedicated to accomplishing USFWS tasks and responsibilities on NDOR road projects for the mutual benefit of both of our agencies. Detailed duties and responsibilities of both agencies are found in Enclosure 1. Due to Nebraska Law, the NDOR cannot advance payment for the subject position. The USFVVS has agreed to seek a reimbursement agreement waiver that will allow it to submit monthly billings to NDOR for services rendered, which NDOR agrees to pay within 30 days. Enclosure 2, outlines a negotiated one-year budget for the position during Fiscal Year 2005. In addition to the duties and responsibilities outlined in Enclosure 1, this agreement includes the following understandings:

1. The position will be a Federal employee hired by the USFWS, with individual interview and selection by joint agreement between NDOR and USFWS.

2. The position will be physically located at the NEFO and will be provided with basic office supplies, work space, use of copiers and faxes, etc, at no cost to NDOR.

3. A USFWS owned vehicle will be available for the selected employee to be used for business purposes only. Mileage driven for NDOR project-related travel will be included in the monthly billing the USFVVS submits to NDOR for payment.

4. The position will be subject to all U.S. Government personnel rules and regulations.

5. The position will be under the direct supervision of the NEFO Assistant Field Supervisor to guide and direct in accomplishing their daily tasks. The NEFO Assistant Field Supervisor will be the principle point-of-contact for the position.

6. The computer will be purchased by the USFWS for use by the employee selected for the position and only used for NDOR-project related tasks. Cost of the computer will be included in the first monthly billing submitted to the NDOR by the USFWS.

7. The NDOR and USFVVS will identify and provide appropriate training for the employee hired by the USFWS for the subject position.

8. The NDOR and USFWS will develop performance standards for the subject position that will be used to evaluate the efficiency and effectiveness in meeting each agency's missions. Performance standards will be developed and approved by both agencies prior to the first month's billing by USFWS to NDOR.

9. The USFWS will submit to NDOR a projected annual budget at least 60 days prior to the expiration of the existing budget. In turn, NDOR will notify USFWS no later than 30 days prior to the expiration of existing annual budget whether the projected budget submitted by the USFWS is acceptable or needs to be modified.

The NDOR looks forward to working with the USFWS under this agreement to help both of our agencies meet its missions to serve the public and protect fish and wildlife resources.

Your concurrence of this letter of agreement is appreciated.

Sincerely,

Signed By:
John L. Craig Director

I Concur:
Steve Anschutz
Nebraska Field Supervisor
Date

cc: USFWS, Denver, CO (Attn: Ralph Morgenwek)
FHWA, Lincoln, NE (Attn: William Brownell) V

MEMORANDUM OF UNDERSTANDING
AMONG THE
NEBRASKA DEPARTMENT OF ROADS
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
NEBRASKA

October 2004

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

WHEREAS, because of the federal-aid highway funding increases under the Transportation Equity Act for the 21st Century (TEA-21), NDOR has substantially increased the number of highway construction projects the USFWS has to review pursuant to the Endangered Species Act (ESA) of 1973 (87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.), Fish and Wildlife Coordination Act (FWCA)(48 Stat. 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 and proposed and designated critical habitats; and

WHEREAS, USFWS has indicated that due to staff resources constraints, it is currently unable to provide FHWA and NDOR with priority review, consultation, and permitting decisions 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 supplement USFWS staffing above normal levels which were established at pre-TEA-21 highway program levels and at levels that do not reflect additional resources needed to perform 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 resources issues under the responsibilities of the USFWS; and

WHEREAS, the Parties have determined that any supplemental staffing above normal levels would provide priority review and consultation on federal-aid highway construction projects contemplated or under design by NDOR; and

WHEREAS, NDOR is willing to reimburse USFWS for supplemental staffing to provide these functions; and

WHEREAS, FHWA has indicated and agrees that Nebraska'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. NDOR Shall:

1. Program federal-aid projects to track costs and support a pay as services are rendered State payment to USFWS for the costs contemplated by this MOU, including:

2. Once this MOU is signed by all parties, the NDOR will review and approve for payment, monthly USFWS submittals of actual account expenditures for salaries, benefits, travel, training, and indirect costs in support of work contemplated in paragraph I.B.1 below.

3. If the NDOR MOU Point of Contact (POC) agrees with the USFWS's monthly account of expenditures as submitted, an approval will be transmitted to the USFWS's NEFO within ten (10) working days. If the NDOR POC disagrees with this submittal, a meeting to clarify the account of expenditures will be requested within ten (10) working days. In the event of a disagreement over the account of expenditures, NDOR pledges to negotiate in good faith towards reconciliation of the disputed amount.

4. Make available to the USFWS supplemental 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. Supplement its existing staff, which currently reviews FHWA/NDOR projects on a routine basis, with qualified staff, 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.

2. Set up and coordinate job selection interviews for the supplemental biologist position with NDOR and FHWA. Selection of the supplemental biologist position will be made by USFWS with the consideration of the NDOR's and FHWA's recommended selection.

3. Ensure that 100 percent of the supplemental staff contemplated by this MOU is detailed to work on the priority projects identified by NDOR in accordance with the coordination procedures defined in I.D. below, unless detailing to other projects is agreed to by the NDOR Point-of-Contact (POC).

4. Ensure that the supplemental staff funded under this MOU keeps daily time records, which identifies the number of hours spent working on each specific NDOR project and any other work tasks such as those listed under I.D. below. These records shall account for 100 percent of the time worked by supplemental staff; including any time spent on non-highway projects. 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 NDOR 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 final billing is submitted. These records shall be subject to audit by NDOR, FHWA, or other federal or state agencies as appropriate.

5. Submit monthly accounts of expenditures, including receipts, based on I.B.3. to the NDOR POC for State payment.

6. An annual budget request will be submitted to NDOR and FHWA by May 1 for the following year's funding needs.

7. Once this MOU is signed, supplement existing staff as expeditiously as possible to support work contemplated by this MOU.

8. In the event of disagreement over statements of expenditure, negotiate in good faith towards reconciliation of the disputed amount, continue the priority review of highway construction projects throughout negotiations until resolution is rendered.

9. Make available to the NDOR 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 NDOR 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-Nebraska pursuant to this MOU will be subject to availability of 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 NDOR the federal share payable for any project programmed to support this MOU upon obtaining notification of its execution.

3. Make available to the USFWS supplemental staff, database and office information that would be used to determine impacts of highway construction projects on federal trust fish and wildlife resources.

D. Coordination:

1. On a quarterly basis, NDOR will establish and submit a priority listing of projects to USFWS that will guide USFWS supplemental staff efforts in the priority review process.

2. Initially, NDOR, FHWA, and USFWS will hold monthly or bimonthly meetings to discuss coordination of the priority review process. After a reasonable start-up period, the scheduling of these meetings may be changed at the discretion of the project managers.

3. Both NDOR 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.

4. Initial employee job performance standards will be developed mutually among the NDOR, FHWA, and USFWS and be in place prior to the USFWS hiring the supplemental biologist position. These performance standards will be used quarterly to evaluate the timeliness, responsiveness, availability, and attendance at meetings and overall service provided by the position. These job performance standards may be modified over time through mutual agreement of all parties as the needs and responsibilities of the position develop and solidify.

5. While the focus of this MOU will be on the review of NDORFWHA highway projects, the USFWS's supplemental staff may also be involved in other tasks that support agency coordination and which serves to expedite the implementation of NDOR'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 I USFWS's NEFO management to supplemental staff at the request of NDOR/FHWA include, but are not limited to:

II. GENERAL TERMS

A. Length of the Cooperative Agreement:
The length of this MOU is four (4) years from the date of signature of the last signing party unless extended or terminated as provided in II.B. and II.C.

B. Modification 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 NDOR 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 there 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 supplemental staff to be hired by USFWS to support priority review and consultation on highway construction projects, such staff shall not be construed as an officer, agent, or employee of either the NDOR or FHWA.

2. In no way do the NDOR, FHWA, or USFWS intend to abrogate through this MOU any obligations or duties to comply with the regulations promulgated under ESA, FWCA. MBTA, B&GEPA, 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

John Craig Signature, Director. Nebraska Department of Roads. William Brownell Signature, Division Administrator Nebraska Division Federal Highway Administration. Ralph Morgenweck Signature, Regional Director, Region 6 U.S. Fish and Wildlife Service

ENCLOSURE 2

Proposed Fiscal Year 2005 Budget for a
U.S. Fish and Wildlife Service Biologist Working on
Nebraska Department of Roads Projects

Salary and Benefits for a GS-401-9/1 Biologist$51,000
Travel and Training$5,000
Office Supplies (computer)$3,000
Indirect Costs (Regional Overhead) @ 23 percent$13,570
Total Projected Budget$72,570

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