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Programmatic Agreement for Inherently Low-Risk Oversight Projects on the Interstate System
This Agreement is made and entered into this 26 day of December, 2008, by and between the Federal Highway Administration, Nevada Division (FHWA) and the State of Nevada, acting by and through its Department of Transportation (NDOT).
WHEREAS, the FHWA has the responsibility for administering Federal requirements with respect to projects constructed with funds made available under Title 23 United States Code (U.S.C.), including responsibilities relating to design, plans, specifications, estimates, contract awards, contract administration and inspection; and
WHEREAS, some projects on the Interstate and the National Highway System (NHS) are inherently low-risk, routine and non-controversial and NDOT has a high-level of experience and documented procedures and processes for ensuring compliance with federal requirements; and
WHEREAS, it is mutually desirable to both the FHWA and NDOT to streamline the approval process of these routine and inherently low-risk projects; and
WHEREAS, Title 23, U.S.C. §106(c)(4) provides that the Secretary of the United States Department of Transportation may not assume any greater responsibility than the Secretary is permitted on September 20, 1997; and
WHEREAS, on September 30, 1997, Title 23, U.S.C. §106(c) permitted the States to approve, on a project-by-project basis, plans, specifications and estimates for projects to resurface, restore, and rehabilitate (3R) highways on the NHS, and further permitted the States to request that the Secretary no longer review and approve highway projects on the NHS with an estimated construction cost of less than One Million Dollars ($1,000,000);
NOW THEREFORE, the FHWA and NDOT agree as follows:
- Inherently low-risk oversight projects are routine, non-controversial and those in which the NDOT has a high-level of experience and documented procedures and processes in place for ensuring compliance with federal requirements. They do not involve major changes in scope or cost and would not jeopardize the safety or operation of the Interstate or NHS. For the purpose of this Agreement, inherently low-risk oversight projects include Interstate projects over One Million Dollars ($1,000,000) and under Twenty-Five Million Dollars ($25,000,000) not included in Paragraph 2 below. Resurfacing, Restoration, and Rehabilitation (3R) and landscaping projects on the Interstate or NHS, regardless of the cost, are considered inherently low-risk oversight projects.
- Inherently low-risk oversight projects do not include projects that are complex projects classified by NDOT or FHWA as “major projects,” involve new partners (public/private partnerships), involve new or innovative contracting methods, viewed as high risk, and involve complex or unique engineering features.
- For projects as defined in paragraph 1, FHWA grants its approval for the designs, plans, specifications, estimates, contract awards, contract administration and inspections in advance of the actual delivery of these projects. The advance approvals are not deemed to occur until after the completion of the National Environmental Policy Act (NEPA) process and the satisfaction of other related environmental laws and procedures. Notwithstanding this determination, FHWA retains the ability to select a 3R or landscaping project for full oversight as part of the annual selection of full oversight projects as outlined in the Stewardship Agreement between NDOT and FHWA.
- For projects as defined in paragraph 1, FHWA’s oversight will be satisfied by a risk management framework and by process/program reviews. It is understood that FHWA’s approval of funds for these projects at either the preconstruction or construction phase constitutes a determination that the project in question is eligible for Federal-aid and that the appropriate federal requirements have been met to date or defined steps are to be taken to ensure requirements will be met. Notwithstanding this determination, FHWA retains overall responsibility for all aspects of Federal-aid programs and, as such, shall be granted full access to review any aspect or record of a Federal-aid project at any time.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be duly executed, the day and year first written above.
Federal Highway Administration
Nevada Division Administrator
State of Nevada, acting by and through its
Department of Transportation