State Assumption of CEs; MOA Questions & Answers

Posted 9/25/2012

Section 1312 State Assumption of Responsibility for Categorical Exclusions

Question CE-1: How does MAP-21 change the program for State Assumption of Responsibilities for Categorical Exclusions (CE) in 23 U.S.C. 326?

Answer CE-1: MAP-21 Section 1312 amends 23 U.S.C. 326 with provisions that:

• Prohibit the Secretary from requiring a State that assumes CE responsibilities, as a condition of the assignment, to forgo project delivery methods that are otherwise permissible for projects.
• Allow for termination by the State provided the State gives notice not later than 90 days before the date of termination and subject to any such terms the FHWA or FTA may provide; and
• Allow a State that has assumed responsibilities to use Federal-aid funds for attorney's fees directly attributable to eligible activities associated with the project.
• Leave in effect the existing provision for termination by the Secretary.

Question CE-2: Does MAP-21 create a need to modify the template MOU that serves as a basis for new States to assume responsibilities under 23 U.S.C. 326, and for States that desire to renew their MOUs?

Answer CE-2: The template MOU will be revised to cover the new provisions of MAP-21. Any new MOUs developed, or any existing MOUs that are renewed, would integrate the new provisions.

Section 1320 MOAs for Early Coordination

Question ER-1: What early coordination activities does MAP-21 Section 1320 require?

Answer ER-1: All actions within this section are highly encouraged. Section 1320(b )requires the Secretary and other Federal agencies with relevant jurisdiction, upon request of a State or local planning agency, "…to the extent practicable and appropriate, as determined by the agencies, provide technical assistance to the State or local planning agency on accomplishing the early coordination activities described in subsection (d)." Section 1320(c) provides that the lead agency may establish memoranda of agreement (MOA) with project sponsors, State, and local governments, and any other appropriate entities to accomplish the early coordination and section 1320(d) describes those activities that, to the maximum extent practicable, shall be included in such an MOA.

Question ER-2: Will the technical assistance requirement (Section 1320) also apply to non-DOT Federal agencies?

Answer ER-2: Section 1320(b) states "[i]f requested at any time by a State or local planning agency, the Secretary [of Transportation] and other Federal agencies with relevant jurisdiction in the environmental review process, shall, to the extent practicable and appropriate, as determined by the agencies, provide technical assistance to the State or local planning agency on accomplishing the early coordination activities described in subsection (d)" of Section 1320.