MEMORANDUM OF UNDERSTANDING

**between**

**Federal Highway Administration, Alaska Division**

**and the**

**Alaska Department of Transportation and Public Facilities**

# State Assumption of Responsibility for Categorical Exclusions 

# 

THIS MEMORANDUM OF UNDERSTANDING ("MOU"), made and entered into this
\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2008, by and between the
FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES DEPARTMENT OF
TRANSPORTATION ("FHWA") and the STATE of ALASKA, acting by and through
its DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES ("State"), hereby
provides as follows:

WITNESSETH:

**Whereas**, Section 6004(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (P.L. 109-059)
(SAFETEA-LU), codified as Section 326 of amended Chapter 3 of title 23,
United States Code (23 U.S.C. 326) allows the Secretary of the United
States Department of Transportation (USDOT Secretary), to assign, and a
State to assume, responsibility for determining whether certain
designated activities are included within classes of action that are
categorically excluded from requirements for environmental assessments
or environmental impact statements pursuant to regulations promulgated
by the Council on Environmental Quality under part 1500 of title 40,
Code of Federal Regulations (CFR) (as in effect on October 1, 2003); and

**Whereas**, if a State assumes such responsibility for making
categorical exclusion (CE) determinations under the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), the
USDOT Secretary also may assign and the State may assume all or part of
certain Federal responsibilities for environmental review, consultation,
or other related actions required; and

**Whereas**, on \_\_\_\_\_\_\_\_\_, the FHWA published a notice of the
availability of the proposed MOU in the Federal Register and provided a
45-day opportunity for comment; and

**Whereas**, on \_\_\_\_\_\_\_\_\_, the State published a notice of the
availability of the proposed MOU in the
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_and provided a 45-day opportunity for
comment; and

**Whereas**, the State and the FHWA have considered the comments
received; and

**Whereas**, the USDOT Secretary, acting by and through the FHWA, has
determined that specific designated activities are CEs and that it will
assign specific responsibilities with respect to CEs to the State in
accordance with this MOU; and

**Whereas**, the State wishes to assume such Federal agency
responsibilities in accordance with this MOU and applicable law;

**Now, therefore**, the FHWA and the State agree as follows:

**STIPULATIONS**

I.  **CATEGORICAL EXCLUSION RESPONSIBILITIES ASSIGNED TO THE STATE BY
    FHWA**

    A.  For the proposed projects covered by this MOU, the FHWA hereby
        assigns, and the State hereby assumes, subject to the terms and
        conditions set forth in 23 U.S.C. §326 and this MOU, the
        responsibility for determining whether a proposed Federal-aid
        action is within a category of action that has been designated
        as a CE by the USDOT Secretary, as specified in Stipulation
        I(B), and meets the definition of a CE as provided in 40 CFR
        1508.4 (as in effect on October 1, 2003) and 23 CFR 771.117(a)
        and (b). This assignment applies only to projects for which the
        Alaska Department of Transportation and Public Facilities is the
        direct recipient of Federal-aid highway funding or is the
        project sponsor or co-sponsor for a project requiring approval
        by FHWA.

    B.  This assignment pertains [only]{.underline} to the designated
        activities described in this Stipulation I(B). The assignment
        includes the following:

        1.  Activities listed in 23 CFR 771.117 (c);

        2.  The example activities listed in 23 CFR 771.117(d); and

        3.  Additional actions listed in Appendix A. None.

    C.  This MOU transfers to the State all responsibility for
        processing the CEs designated in Stipulation I(B) of this MOU,
        including any necessary CE approval actions. The State shall
        process all proposed projects that are CE candidates (CE
        projects), and any required reevaluations of CEs under 23 CFR
        771.129 for all CE projects not completed prior to the date of
        this MOU, in accordance with the provisions of this MOU. With
        respect to matters covered by and subject to the terms of this
        MOU, this MOU supersedes any existing programmatic agreement
        that is solely between the State and the FHWA concerning CEs.
        Such programmatic agreement remains in effect with respect to
        matters not covered in this MOU until said programmatic
        agreement is terminated, or superseded, by subsequent
        agreement(s) between the State and FHWA or by law. A CE project
        that is excluded from this MOU, but is within the scope of a
        programmatic CE agreement between the FHWA and the State, may be
        processed pursuant to such programmatic agreement so long as
        that agreement remains in effect.

    D.  The State, when acting pursuant to 23 U.S.C. §326 and this MOU,
        holds assigned authority to make decisions and commitments
        pertaining to only the individual proposed projects and
        activities within the scope of §326 and this MOU. No action by
        the State shall bind the FHWA to future action of any kind. No
        determination or agreement made by the State with respect to
        mitigation or other activities shall constitute a precedent for
        future determinations, agreements, or actions in the Federal-aid
        Highway Program unless the FHWA consents, in writing, to such
        commitment.

II. **OTHER FHWA RESPONSIBILITIES ASSIGNED TO THE STATE**

    A.  For proposed projects covered by this MOU, the FHWA hereby
        assigns, and the State hereby assumes, the following FHWA
        responsibilities for environmental review, consultation, or
        other related actions required under Federal laws and Executive
        Orders applicable to CE projects: see Appendix B for a
        description of the environmental responsibilities assigned to
        the State by the FHWA for proposed projects subject to this MOU.
        This assignment includes transfer to the State of the obligation
        to fulfill the assigned environmental responsibilities on any
        proposed projects meeting the criteria in Stipulation I(B) that
        were determined to be CEs prior to the effective date of this
        MOU but that have not been completed as of the effective date of
        the MOU. Such projects are included in the term "proposed
        projects" in this MOU.

    B.  The FHWA reserves responsibility for any environmental review,
        consultation, or other related action that is not expressly
        assigned under this MOU, including:

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1.  All government-to-government consultation with Indian tribes as
    defined in 36 CFR 800.16(m). Notice from the State to an Indian
    tribe advising the tribe of a proposed activity is not considered
    "government-to-government consultation" within the meaning of this
    MOU. If the State adequately resolves any project-specific tribal
    issues or concerns, then the FHWA's role in the environmental
    process shall be limited to carrying out the
    government-to-government consultation process. If FHWA determines
    through consultation with a tribe, or a tribe indicates to the FHWA,
    that the proposed resolution of tribal issues or concerns by the
    State is not adequate, then Stipulation III(C) applies. This MOU is
    not intended to abrogate, or prevent future entry into, any written
    agreement among the State, the FHWA, and a tribe under which the
    tribe agrees to permit the State to administer
    government-to-government consultation activities for the FHWA.
    However, such agreements are administrative in nature and do not
    relieve the FHWA of its legal responsibility for
    government-to-government consultation.

2.  Responsibility for:

    a.  Formal Consultation under Section 7 of the Endangered Species
        Act (ESA).

    b.  Formal Consultation with the Department of Interior for actions
        that require use of Alaska National Interest Lands Conservation
        Act (ANILCA) lands where such use would require a Title XI
        approval.

    c.  Review and approval of Individual Section 4(f) Evaluations.
        \[See Stipulation III(D) that explains that proposed projects
        requiring such actions have been excluded from assignment under
        this MOU.\]

3.  In connection with the execution of their respective
    responsibilities under this MOU, the State and FHWA will ensure
    that:

    a.  The State provides to FHWA any information necessary in order
        for the FHWA to carry out its consultation, evaluation, or
        decision-making for Stipulation II(B)(1)-(2) activities.

    b.  The FHWA provides the State with a documented decision on any
        related information used for Stipulation II(B)(1)-(2) decisions
        and needed by the State in order for the State to evaluate the
        proposed project and make its decision whether the proposed
        project qualifies as a CE.

    c.  As part of any request for FHWA authorization for funding or
        other action, the State will provide to the FHWA evidence that
        the CE processing and any other environmental responsibilities
        assigned under this agreement have been completed in accordance
        with this MOU.

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    A.  The State agrees that its execution of environmental review,
        reevaluation, consultation, and other related responsibilities
        for CE projects assigned under this MOU are subject to the same
        existing and future procedural and substantive requirements as
        if those responsibilities were carried out by the FHWA. This
        includes, without limitation, the responsibilities of the FHWA
        under interagency agreements, memoranda of understanding,
        memoranda of agreement, and other similar documents that relate
        to the environmental review process for CE projects. This
        includes the interagency agreements listed in Appendix C of this
        MOU. If such interagency agreements are between the State and
        the FHWA only, then the assignment occurs automatically upon the
        signing of this MOU for proposed projects covered by this MOU.
        If the interagency agreement involves signatories other than the
        FHWA and the State, then the FHWA and the State will work to
        obtain any necessary consents or amendments. Such actions
        include:

        1.  Consulting with the other parties to obtain written consent
            to the continuation of the interagency agreement in its
            existing form, but with the substitution through assignment
            of the State for the FHWA with respect to interagency
            agreement provisions applicable to CE projects.

        2.  Negotiating with the other parties to amend the interagency
            agreement as needed so that the interagency agreement
            continues but that the State assumes the FHWA's
            responsibilities with respect to the assigned CE projects.

        3.  If a third party does not agree to the assignment or
            amendment of the interagency agreement, then to the extent
            permitted by applicable law and regulation, the State must
            carry out the assigned environmental review, consultation,
            or other related activity in accordance with applicable laws
            and regulations but without the benefit of the provisions of
            the interagency agreement.

B.  The State shall carry out the assigned consultation, review and
    coordination activities in a timely and proactive manner. The State
    shall make all reasonable and good faith efforts to identify and
    resolve conflicts with Federal agencies, state and local agencies,
    Indian tribes as defined in 36 CFR 800.16(m), and the public during
    the consultation and review process.

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III. **ACTIONS, CONDITIONS, OR DETERMINATIONS THAT EXCLUDE DESIGNATED
     ACTIVITIES FROM ASSIGNMENT OF RESPONSIBILITIES**

     A.  Notwithstanding any other provision of this MOU, any activity
         that does not satisfy the criteria for the CE categories
         described in Stipulation I(B) is [excluded]{.underline} from
         this assignment, as is any project that involves a condition or
         impact specified in Stipulation III(D). Exclusion also may
         occur at any time during the environmental process if the State
         determines that the project fails to meet the CE criteria or
         falls within Stipulation III(D). The provisions of Stipulation
         IV(C) apply to such cases.

     B.  Because the State assumes responsibility for environmental
         processing of the CEs designated in this MOU, the FHWA no
         longer will be responsible for conducting the environmental
         review, consultation or other related actions assigned under
         this MOU (see Stipulation XI). However, in furtherance of its
         stewardship and oversight responsibilities, the FHWA will
         evaluate the State's environmental processing of any project if
         the FHWA has any reason to believe that the State's performance
         with respect to the project does not satisfy the terms and
         conditions of this MOU. The scope of the evaluation will be
         commensurate with the potential problem. If the FHWA
         subsequently determines that the State's performance does not
         satisfy the terms and conditions of this MOU, then the FHWA
         will take action to resolve the problem. Such action may
         include action to facilitate the State's compliance with the
         MOU, or action to exclude the project from assignment under
         this MOU. The provisions of Stipulation X(A)-X(E) apply to such
         FHWA-initiated exclusion.

     C.  If a project-related concern or issue is raised in a
         government-to-government consultation process with an Indian
         tribe, as defined in 36 CFR 800.16(m), and either the Indian
         tribe or the FHWA determines that the issue or concern will not
         be satisfactorily resolved by the State, then the FHWA shall
         reassume responsibility for processing the project. The FHWA
         shall notify the State that the project will be excluded from
         this MOU. The provisions of Stipulation X(A)-X(E) apply to such
         FHWA-initiated exclusion.

     D.  Other conditions or impacts that exclude a project from
         assignment to the State under this MOU are as follows:

         1.  The Department of Interior determines that the project will
             require use of Alaska National Interest Lands Conservation
             Act (ANILCA) designated lands where such use would require
             a Title XI approval.

         2.  The State has determined that an Individual Section 4(f)
             Evaluation will be required.

         3.  The State has determined, in consultation with the U.S.
             Fish and Wildlife Service (USF&WS) or National Marine
             Fisheries Service (NMFS), that their action is likely to
             adversely affect a listed endangered or threatened species
             or their critical habitat, such that Formal Consultation
             under Section 7 of the Endangered Species Act (ESA) is
             required; or the USF&WS or NMFS determined that the State's
             action is likely to jeopardize the continued existence of
             any proposed species or would result in the destruction or
             adverse modification of proposed critical habitat, such
             that a Conference is required.

         4.  The action has Federal funding sources in addition to
             Federal-aid highway funding (e.g., FTA funding).

## STATE PERFORMANCE REQUIREMENTS\`

E.  [Compliance with governing laws, regulations and MOU]{.underline}.
    The State shall make all determinations under this MOU in accordance
    with 23 CFR 771.117(a) and (b) and succeeding regulations. All
    actions by the State in carrying out its responsibilities under this
    MOU shall comply with, and be consistent with, the coordination
    provisions of Stipulation II and all applicable Federal laws,
    regulations, policies, and guidance. The State also shall comply
    with State and local laws to the extent applicable.

    1.  Failure to meet the requirements of Stipulation IV(A) is grounds
        for a decision by the FHWA to terminate this MOU pursuant to
        Stipulation IX(A) if the FHWA determines, after good-faith
        consultation with the State, that there is an irreconcilable
        material conflict between a provision of State law, regulation,
        policy, or guidance and applicable Federal law, regulation,
        policy, or guidance, and the FHWA reasonably determines that
        such conflict is preventing the State from meeting its
        Stipulation IV(A) obligations. The grounds for such decision may
        include, but are not limited to, the mere existence of the
        conflict (i.e., on its face) and/or the effect of the conflict
        on the State's decision(s) on proposed CE project(s) (i.e., as
        applied).

    2.  Official USDOT and FHWA formal guidance and policies relating to
        environmental review matters are posted online at FHWA's website
        (currently at <http://www.fhwa.dot.gov/hep/legreg.htm>),
        contained in the FHWA *Environmental Guidebook* (currently at
        <http://environment.fhwa.dot.gov/guidebook/index.asp>), or sent
        to the State electronically or in hard copy.

    3.  After the effective date of this MOU, the FHWA will use its best
        efforts to ensure that any new or revised FHWA policies and
        guidance that are final and applicable to the State's
        performance under this MOU are communicated to the State within
        10 days of issuance. Delivery may be accomplished by e-mail,
        mail, by publication in the *Federal Register*, or by means of a
        publicly available online posting including at the sites noted
        above. If communicated to the State by e-mail or mail, such
        material may be sent either to the party specified in this MOU
        to receive notices, or to the Statewide Environmental Manager.

> []{.mark}

4.  In the event that a new or revised FHWA policy or guidance is not
    made available to the State as described in the preceding paragraph,
    and if the State had no actual knowledge of such policy or guidance,
    then a failure by the State to comply with such Federal policy or
    guidance will not be a basis for termination under this MOU.

[]{.mark}

5.  The State will work with all other appropriate Federal agencies
    concerning the laws, guidance, and policies relating to any Federal
    laws that such other agencies administer.

6.  In order to minimize the likelihood of a conflict as described
    in (1) above, after the effective date of this MOU the State will
    use its best efforts to ensure that any proposed new or revised
    State laws, regulations, policies, or guidance that are applicable
    to the State's performance under this MOU are communicated to the
    FHWA for review and comment before they become final. Delivery may
    be accomplished by e-mail, mail, or personal delivery. If
    communicated to the FHWA by e-mail or mail, such material may be
    sent to the party specified in this MOU to receive notices for the
    FHWA.

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F.  [Processing proposed projects assigned under the MOU: State
    identification, documentation, and review of effects]{.underline}.
    For proposed projects and other activities assigned under this MOU
    that the State determines are included in the classes of CE assigned
    to the State under this MOU, the State shall:

    1.  Institute a process to identify and review the environmental
        effects of the proposed project.

    2.  For CEs \[including those designated in 23 CFR 771.117(c)\]
        carry out a review of proposed CE determinations, including
        consideration of the environmental analysis and project file
        documentation, prior to the State's approval of the CE
        determination. The process shall include at a minimum, review of
        the documentation and proposed determination by a competent
        reviewer who is not a preparer of the CE documentation. The
        reviewer may make a recommendation to the State's decision-maker
        about whether the project meets CE criteria or, if appropriately
        authorized, the reviewer may make the CE decision.

    3.  Carry out the other environmental responsibilities that are
        assigned under this MOU, as necessary or appropriate for the
        activity.

    4.  Document its approval of the determination, specifying the
        assigned CE that applies to the proposed project and including,
        at a minimum, the printed name, title, and date of the State
        official approving the determination.

    5.  Include the following determination statement when documenting
        the CE findings: *"The State has determined that this project
        has no significant impacts on the environment and that the
        project is categorically excluded from the requirements to
        prepare an environmental assessment or environmental impact
        statement under the National Environmental Policy Act. The State
        has been assigned, and hereby certifies that it has carried out,
        the responsibility to make this determination pursuant to
        Chapter 3 of title 23, United States Code, Section 326 and a
        Memorandum of Understanding dated \[**fill in MOU date**\],
        executed between the FHWA and the State."*

    6.  Document in the project file the specific categorically excluded
        activity, the CE finding, including the determination that there
        are no unusual circumstances (23 CFR 771.117(b)), and completion
        of all applicable FHWA responsibilities assigned under
        Stipulations I and II.

G.  [Excluded projects: determination and documentation]{.underline}.
    For proposed projects that are candidates for CE classification but
    that the State determines should be excluded from processing under
    this assignment, the State shall:

    1.  Document the exclusion findings in the project file, including
        the reason for the finding;

    2.  Notify the FHWA; and

    3.  Working with the FHWA as the responsible party under NEPA,
        proceed with review and documentation of the project under the
        appropriate NEPA procedures including those under a programmatic
        CE agreement, if applicable.

## [Required State resources, qualifications, expertise, standards, and training.]{.underline}

4.  The State must maintain adequate organizational and staff capability
    and expertise to effectively carry out the responsibilities assigned
    to it under this MOU. This includes, without limitation:

    a.  Using appropriate technical and managerial expertise to perform
        the functions required under this MOU and applicable laws,
        regulations, policy, and guidance;

    b.  Devoting adequate financial and staff resources to carry out the
        responsibilities assumed by the State; and

    c.  Demonstrating, in a consistent manner, the capacity to perform
        the State's responsibilities under the MOU and applicable
        Federal law.

5.  The State agrees that it shall maintain on its staff or through the
    use of consultant services all of the environmental and other
    technical expertise needed to carry out its responsibilities under
    this MOU and 23 U.S.C. §326. Without limiting the foregoing, when
    carrying out the requirements of Section 106 of the National
    Historic Preservation Act, as amended, the State shall comply with
    36 CFR 800.2(a)(1). All actions that involve the identification,
    evaluation, analysis, recording, treatment, monitoring, or
    disposition of historic properties, or that involve the reporting or
    documentation of such actions in the form of reports, forms, or
    other records, shall be carried out by or under the direct
    supervision of a person or persons who meet the Secretary of
    Interior\'s Professional Qualifications Standards (published at 48
    FR 44738-44739). The State shall ensure that all documentation
    required under 36 CFR 800.11 is reviewed and approved by a staff
    member or consultant who meets the Professional Qualifications
    Standards.

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H.  [State quality control]{.underline}.

    1.  The State agrees to carry out regular quality control activities
        through the Statewide Environmental Office to ensure that its CE
        determinations are made in accordance with applicable laws and
        this MOU. (to view the State's environmental procedures manual
        visit
        [http://www.dot.state.ak.us/stwddes/dcsenviron/resources2.shtml#](http://www.dot.state.ak.us/stwddes/dcsenviron/resources2.shtml)
        )

    2.  At a minimum, the State shall monitor its processes relating to
        project determinations, environmental analysis, and project file
        documentation, and check for errors and omissions. The State
        shall take corrective action as needed. The State shall document
        its quality control activities and any needed corrective actions
        taken.

    3.  If the State implements training to meet the capability
        requirements of this MOU or as a corrective action, the State
        shall be responsible for the training. The State shall provide
        notice of the training to the FHWA.

    4.  Without limiting the foregoing, the State also shall implement
        the quality control procedures
        (http://www.dot.state.ak.us/stwddes/dcsenviron/resources2.shtml#)
        found in the State's procedures.

I.  [MOU performance monitoring and quality assurance]{.underline}. The
    FHWA and the State shall cooperate in monitoring performance under
    this MOU and each party shall modify its practices as needed to
    assure quality performance by the State and the FHWA. Monitoring by
    the FHWA and the State will include consideration of the technical
    competency and organizational capacity of the State, as well as the
    State's performance of its CE processing functions. Performance
    considerations will include, without limitation, the quality and
    consistency of the State's project determinations, adequacy and
    capability of the resources applied by the State, and the quality
    and consistency of the State's administration of its
    responsibilities under this MOU. In support of the monitoring
    efforts:

    1.  Within 15 business days after the end of each fiscal quarter,
        the State shall submit to the FHWA a list of the CE
        determinations that the State approved that fiscal quarter. At
        any time after the State's completion of the first four (4)
        fiscal quarters of its performance under this MOU, based on the
        State's satisfactory performance of this MOU during the first 12
        months, the FHWA may reduce the frequency of this reporting
        requirement, provided that in no event will the reporting
        frequency be less than once each year. Such reduction in
        reporting frequency, and any revocation of such reduction by the
        FHWA, shall not be deemed an amendment under Stipulation VIII.

    2.  The State shall submit to the FHWA (via electronic or hard copy)
        a report summarizing its performance under the MOU at the
        conclusion of the 15^th^ month and 30^th^ month of the MOU and
        at similar intervals thereafter if the term of the MOU is
        renewed. The report will identify any areas where improvement is
        needed and what measures the State is taking to implement those
        measures. The report will include actions taken by the State as
        part of its quality control efforts under Stipulation IV.
        Following submission of a report, the State shall schedule a
        follow-up meeting with the FHWA at which the parties will
        discuss the report, the State's performance of the MOU, and the
        FHWA's monitoring activities. If the MOU is renewed, the reports
        will be due at the conclusion of the 15th and 30th months unless
        otherwise provided by the parties in the renewed MOU.

    3.  The State shall maintain paper or electronic project records and
        general administrative records (as soon as practicable the State
        will establish an electronic records system), pertaining to its
        MOU responsibilities for proposed projects processed hereunder.
        The records shall be available for inspection by the FHWA at any
        time during normal business hours. The State shall provide the
        FHWA with copies of any documents the FHWA may request. The
        State shall retain those records, including all letters and
        comments received from governmental agencies, the public, and
        others about the performance of activities delegated under this
        MOU, for a period of no less than three (3) years after
        completion of project construction. This 3-year retention
        provision does not relieve the State of its project or program
        recordkeeping responsibilities under 49 CFR 18.42 or any other
        applicable laws, regulations, or policies.

    4.  The State shall ensure that project records are available to the
        public consistent with requirements applicable to Federal
        agencies under 5 U.S.C. 552 (the Freedom of Information Act, as
        amended in 2002) and NEPA.

    5.  The FHWA periodically shall review the State's records and may
        interview State staff or others to evaluate the State's
        performance under this MOU. Such reviews will occur no less than
        every 12 months, and may be coordinated with the review of the
        State's report under Stipulation IV(F)(2). The FHWA anticipates
        that under normal circumstances, its evaluation of the State's
        performance will be based on a modified version of a typical
        FHWA CE process review (to view FHWA guidance on how monitoring
        should occur visit
        http://www.fhwa.dot.gov/hep/6004stateassumpt.htm). Modifications
        to the CE process review will include incorporation of measures
        specific to the responsibilities assigned to the State pursuant
        to 23 U.S.C. §326, and will include performance measurements of
        quality and time. However, the FHWA reserves the right to
        determine in its sole discretion the frequency, scope, and
        procedures used for monitoring activities. The State, by its
        execution of this MOU acknowledges that it is familiar with the
        FHWA CE Process Review procedures and with the expected
        modifications that will be adopted for the purpose of monitoring
        the State's MOU performance.

    6.  Nothing in this Stipulation shall prevent the FHWA from
        undertaking other monitoring actions, including audits, with
        respect to the State's performance of the MOU. The FHWA, in its
        sole discretion, may require the State to perform such other
        quality assurance activities, including other types of
        monitoring, as may be reasonably required to ensure compliance
        with this MOU, 23 U.S.C. §326, and other applicable Federal laws
        and regulations. Such requirement shall not be deemed an
        amendment under Stipulation VIII.

    7.  The State agrees to cooperate with the FHWA in all quality
        assurance activities.

J.  [State liability]{.underline}. The State agrees that it is solely
    responsible and solely liable for complying with and carrying out
    this MOU, for the performance of all assigned responsibilities as
    provided by applicable law and for any decisions, actions, or
    approvals by the State. The FHWA shall have no responsibility or
    liability for the performance of responsibilities assigned to the
    State, including without limitation any decision or approval made by
    the State. Where a State exercises any assigned authority on a
    proposed project which FHWA determined to be a CE prior to the
    effective date of this MOU, the State assumes sole responsibility
    and liability for NEPA on that project (this includes, for example,
    NEPA re-evaluation prior to FHWA approval of construction funding).

K.  [Litigation]{.underline}. This section assumes that the FHWA will
    not be named as a party in litigation brought in connection with the
    State's discharge of its responsibilities under this MOU. If either
    the FHWA or another agency of the United States is named in such
    litigation, however, nothing in this MOU affects the United States
    Department of Justice's authority to litigate such claims, including
    the authority to approve a settlement, on behalf of the United
    States.

    1.  The State shall defend, at its own expense, all claims brought
        in connection with its discharge of any responsibility assigned
        to the State.

    2.  The State shall notify the FHWA of any notice of claim the State
        receives prior to initiation of litigation, which notice is
        given in connection with the State's acts or omissions pursuant
        to this MOU. The State shall provide the FHWA with a copy of any
        such notice of claim within 7 calendar days after the State's
        receipt of the notice.

    3.  In the event of litigation, the State shall provide qualified
        legal counsel, including outside counsel if necessary. The State
        will notify the FHWA's Division Office and the U.S. Department
        of Justice, through its Office of the Assistant Attorney
        General, Environment and Natural Resources Division, ("DOJ"),
        within 7 calendar days of the receipt of service of process, of
        any complaint concerning its discharge of any responsibility
        assumed under this MOU. The State's notification to the FHWA and
        DOJ shall be made prior to its response to the complaint. The
        State agrees to provide the FHWA's Division Office and DOJ with
        copies of the complaint and any motions, pleadings, briefs, and
        other such documents filed in any case concerning its discharge
        of any responsibility assumed under this MOU. The State will
        deliver such copies to the FHWA and DOJ via express mail or
        delivery service within 7 calendar days of the service or
        receipt of any document or, in the case of any documents filed
        by or on behalf of the State, within 7 calendar days of the date
        of filing.

    4.  The State agrees to notify FHWA's Division Office and DOJ of the
        State's decision to settle any lawsuit concerning its discharge
        of any responsibility assumed under this MOU prior to settling
        the case, and shall provide the FHWA and DOJ with a reasonable
        amount of time to review, and comment on, the proposed
        settlement. The State agrees not to enter into any litigation
        settlement agreement that affects the interpretation or
        application of any Federal law without FHWA and DOJ consent.

    5.  For either litigation or pre-litigation settlement agreements,
        the lack of FHWA approval of such settlement is grounds for FHWA
        denial of Federal-aid eligibility for any State claims for
        reimbursement of costs arising out of or relating to the
        settlement agreement.

    6.  The State hereby consents to intervention by the FHWA in any
        action or proceeding arising out of, or relating to the State's
        discharge of any responsibility assigned to the State under this
        MOU

    7.  If the FHWA re-assumes responsibility for processing a project
        and makes the final CE determination for the project, then the
        FHWA shall be responsible for defending that CE determination in
        the event of a challenge to actions the FHWA takes after
        re-assumption. This shall include the final CE determination.
        Nothing in this paragraph shall relieve the State of its
        liability for acts or omissions prior to the FHWA's
        re-assumption of responsibility for processing the project.

L.  [Federal Register]{.underline}. While the MOU is in effect, if any
    CE project or program documents are required to be published in the
    *Federal Register*, such as a notice of final agency action under 23
    U.S.C. §139(l), the State shall transmit such document to the FHWA's
    Division Office and the FHWA will publish such document in the
    *Federal Register* on behalf of the State. The State is responsible
    for the expenses associated with the publishing of such documents in
    the *Federal Register*, in accordance with guidance issued by the
    FHWA.

### STATE CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION

M.  The State hereby certifies that it has the necessary legal authority
    and the capacity to:

    1.  Accept the assignment under this MOU;

    2.  Carry out all of the responsibilities assigned to the State; and

    3.  Agree to and perform all terms and conditions of the assignment
        as contained in this MOU and in 23 U.S.C. §326.

N.  The State consents to and accepts the jurisdiction of the Federal
    courts for the compliance, discharge, and enforcement of any
    responsibility of the USDOT Secretary that the State assumes under
    this MOU pursuant to 23 U.S.C. §326. The State understands and
    agrees that this consent constitutes a waiver of the State's
    immunity under the Eleventh Amendment to the U.S. Constitution for
    the limited purposes of addressing the compliance, discharge, and
    enforcement of the USDOT Secretary's responsibilities that the State
    assumes under this MOU pursuant to 23 U.S.C. §326. This consent to
    Federal court jurisdiction shall remain valid after termination of
    the MOU, or re-assumption of the USDOT Secretary's responsibilities
    by the FHWA, for any act or omission by the State in its compliance,
    discharge, or enforcement of any responsibility under this MOU
    pursuant to 23 U.S.C. §326.

    1.  Alaska Statute 44.42.300 authorizes the State's assumption of
        the assignment responsibilities. If at any time the State ceases
        to have the necessary legal authority under State law to carry
        out this assignment, then this MOU terminates automatically,
        subject to applicable survival and transitional provisions of
        this MOU.

    2.  Alaska represents that all conditions precedent to the waiver of
        its sovereign immunity have been satisfied. Alaska Statute
        44.23.020(g), authorizes the Attorney General of Alaska to waive
        the State's sovereign immunity. By his execution of this MOU,
        the Attorney General exercises that authority for the purposes
        stated in this MOU and certifies that the waiver is valid and
        meets the requirements of this MOU and 23 U.S.C. §326. If this
        waiver is terminated, or determined by a court of competent
        jurisdiction to be invalid with respect to performance of any
        aspect of this MOU, then the State's authority to participate in
        this MOU terminates under Federal law and this MOU terminates
        automatically, subject to applicable survival and transitional
        provisions of this MOU.

O.  In accordance with 23 U.S.C. §326(e), the State agrees that it shall
    be deemed to be a Federal agency for the purposes of the Federal
    law(s) under which the State exercises any responsibilities pursuant
    to this MOU and 23 U.S.C. §326.

P.  The State may not assign or delegate its rights or responsibilities
    under this MOU to any other agency, political subdivision, or
    entity, or to any private individual or entity. Without limiting the
    foregoing, the State understands and agrees that it must retain the
    environmental decision-making responsibilities assigned to it under
    this MOU and may not assign or delegate such decision-making
    responsibilities to consultants or others.

Q.  With respect to the public availability of any document or record
    under the terms of this MOU or the State's open records law, Alaska
    Statute 40.25.100-220, the State certifies that the laws of the
    State provide that any decision regarding the release or public
    availability of a document or record may be legally challenged or
    reviewed in the courts of the State.

R.  The State certifies that the persons signing this MOU are each duly
    authorized to do so and have the respective legal authority between
    them to:

    1.  Consent to Federal court jurisdiction as specified above;

    2.  Enter into this MOU on behalf of the State;

    3.  Make the certifications set forth in this MOU; and

    4.  Bind the State to the terms and conditions contained in this
        MOU.

> The State's Attorney General, by signing this MOU certifies that the
> foregoing is true and that upon execution of this MOU the
> certifications, terms, and conditions of the MOU will be legally
> binding and enforceable obligations of the State.

### PUBLIC NOTICE AND COMMENT

S.  The execution of this MOU, and of any amendment or renewal, requires
    prior public notice and an opportunity for comment.

T.  The State shall publish notice of the availability of the initial
    MOU, and any proposed amendment or renewal, for public review and
    comment in one or more newspapers of statewide circulation.

U.  The FHWA Division Office shall publish in the *Federal Register* a
    notice of availability of the initial proposed MOU, and any proposed
    amendment or renewal, for public review and a 45-day comment period.
    If this MOU, or any amendment or renewal, includes assignment of CE
    authority in Stipulation I(B)(3), the notice will expressly request
    comments on any types of activities proposed for the assignment
    under Stipulation I(B)(3), and will include a description of the
    public availability of supporting documentation for any assignment
    under Stipulation I(B)(3). The notice must advise the public about
    how to learn about FHWA's final decision on the proposed MOU,
    including how to obtain a copy of any resulting final MOU. The FHWA
    will establish a docket in the Federal docket system at
    http://www.regulations.gov/search/index.jsp to receive comments.

V.  The State and the FHWA shall consider comments provided by the
    respondents to the public notices before finalizing the MOU, or any
    proposed amendment or renewal agreement. Upon completion of the
    decision-making process, the FHWA shall publish a notice in the
    *Federal Register* that announces the agency's decision and the
    execution of the MOU. The notice also will inform the public of the
    availability in the Federal docket system of a brief summary of the
    results of the decision-making process and a copy of any final MOU
    executed by the State and FHWA, whether initial, amended, or
    renewed. The notice also will advise where the final MOU is
    available on the State's Web site.

W.  The State agrees that at all times that this MOU is in effect, the
    State will post on its Web site
    (http://www.dot.state.ak.us/stwddes/dcsenviron/resources2.shtml#)
    and make available to the public upon request, copies of the State's
    quarterly reports of the CE determinations under Stipulation
    IV(F)(1), the State's performance reports under Stipulation
    IV(F)(2), and FHWA performance monitoring reports pursuant to
    Stipulation IV(F)(5). The FHWA will arrange for the posting of a
    similar notice on the FHWA's web site or create a link from the
    FHWA's site to the State's site.

### INITIAL TERM AND RENEWAL

X.  This MOU shall have an initial term of three (3) years, beginning on
    the date of the last signature.

Y.  This MOU is renewable for additional terms of three (3) years each
    if the State requests renewal and the FHWA determines that the State
    has satisfactorily carried out the provisions of this MOU. In
    considering any renewal of this MOU, the FHWA will evaluate the
    effectiveness of the MOU and its overall impact on the environmental
    review process. The FHWA may decide not to renew the MOU if the FHWA
    determines that the operation of the MOU has substantial adverse
    effects on the environmental review process. Such evaluation may
    include consideration of any effects from the assumption by the
    State of only some, but less than all, of the FHWA's environmental
    review, consultation, or other related responsibilities as listed in
    Stipulation II.

> At least six (6) months prior to the end of the initial term and of
> any renewed term of this MOU, the State and the FHWA shall meet to
> discuss the results of the monitoring and consider any amendments to
> this MOU. This meeting may be combined with a meeting to discuss
> performance under the monitoring provisions in Stipulation IV(F)(2)
> and (F)(5) of this MOU.

Z.  If the parties do not renew the MOU, then it shall expire at the end
    of the term then in effect. The provisions of Stipulation X(A)(4),
    and X(C)-(E) shall apply.

### AMENDMENTS

A.  Any party to this MOU may request that it be amended, whereupon the
    parties shall consult to consider such an amendment.

B.  If, after the required public notice and comment, the parties agree
    to amend the MOU, then the FHWA and the State may execute an
    amendment with new signatures and dates of the signatures. The term
    of the MOU shall remain unchanged unless otherwise expressly stated
    in the amended MOU. Any amendment that extends the term of the MOU
    shall be treated as a renewal and the FHWA must make the
    determinations required for a renewal under Stipulation VII.

### TERMINATION

C.  [Entire MOU]{.underline}. The State, or the State and FHWA by mutual
    agreement, may terminate this MOU in its entirety. The FHWA may
    terminate this MOU without the agreement of the State if the FHWA
    determines that the State has failed to adequately meet MOU
    requirements. The procedures in Stipulation X apply.

D.  [Part of MOU]{.underline}. By mutual agreement, the FHWA and the
    State may terminate the State's responsibilities with respect to
    particular designated activities under Stipulation I, or with
    respect to one or more responsibilities assigned under
    Stipulation II. The FHWA may exercise such partial termination
    without the agreement of the State if the FHWA determines that the
    State has failed to adequately meet MOU requirements for the
    responsibilities in question, but that termination of the entire MOU
    is not warranted. The procedures in Stipulation X apply.

### PROCEDURES FOR TERMINATION AND FHWA-INITIATED PROJECT EXCLUSIONS 

E.  Except as provided in Stipulation X(B) below, the process for
    termination under Stipulation IX(A)-IX(B), and for exclusion of a
    project from the MOU assignment by the FHWA under Stipulation
    III(B)-III(C), is as follows:

    1.  The party wishing to initiate the termination or exclusion shall
        provide to the other party a written notice of intent. The
        notice should identify the proposed action and explain the
        reason(s) for the proposed action.

    2.  Following the notice, the parties shall have a 30-day period
        during which the FHWA and the State shall consult on amendments
        or other actions that would avoid termination or exclusion. By
        agreement, the parties may extend this consultation period,
        provided that such extension may not exceed the term of the MOU.

    3.  Following the consultation period, any termination or exclusion
        shall be effective as of a date thirty (30) days after the date
        of either a post-consultation agreement between the State and
        FHWA, or the date of the State's receipt of a FHWA notice of
        final determination of termination or exclusion. All
        responsibilities covered by the termination or exclusion shall
        revert to the FHWA as of that effective date.

    4.  In the event of termination or exclusion, the State and the FHWA
        agree to cooperate to make the transfer of responsibilities back
        to the FHWA effective in as orderly and administratively
        efficient manner as possible. The State will promptly provide to
        FHWA any documents, records and other project-related material
        needed for FHWA to proceed with processing any affected project.
        Appropriate NEPA procedures, including those under any
        applicable programmatic CE agreement, shall apply to the
        subsequent processing of projects.

F.  The FHWA, in its sole discretion, may exclude a project from this
    MOU pursuant to Stipulation III(B)-III(C), or terminate this MOU
    pursuant to Stipulation IX(A)-IX(B), without the 30-day consultation
    or final notice periods, if the FHWA determines that

    1.  The State is not performing in accordance with this assignment;
        and

    2.  Extreme conditions exist that justify immediate exclusion or
        termination and transfer back to the FHWA of the
        responsibilities covered by the exclusion or termination.

> In such cases, the FHWA shall notify the State in writing of its
> determination and action, and specify the reasons for the action.

G.  The State's liability for its acts and omissions under this MOU, and
    the provisions of Stipulation V, shall survive the MOU. This
    survival clause includes, without limitation, the provisions of
    Stipulations IV(G)-IV(H) relating to liability and litigation.

H.  Termination and exclusion actions, and any decision not to renew, do
    not require public notice and comment.

I.  Termination or other action by the FHWA in accordance with the
    provisions of this MOU does not limit or otherwise affect the FHWA's
    ability to seek any other remedy or to take action under other
    provisions of applicable law, including without limitation any
    appropriate remedies as provided in 23 CFR 1.36.

### STATE EXECUTION OF ASSIGNED RESPONSIBILITIES WITHOUT FHWA INVOLVEMENT

J.  The FHWA will not provide any project-level assistance to the State
    in carrying out any of the responsibilities assigned under this MOU.
    "Project-level assistance" includes advice, consultation, or
    document review with respect to the discharge of such responsibility
    for a particular highway project. However, project-level assistance
    does not include discussions concerning issues addressed in prior
    projects, legal interpretations of any applicable law contained in
    titles 23 or 49 of the United States Code, legal interpretations of
    any FHWA or USDOT regulation, or interpretations of FHWA or USDOT
    policies or guidance. If a need for project-level assistance is
    identified as a result of the government-to-government consultation
    process described in Stipulation II(B)(1), then the FHWA shall
    reassume responsibility for the project as provided in Stipulation
    III(C).

K.  The FHWA will not intervene, broker, act as intermediary, or be
    otherwise involved in any issue involving the State's consultation
    or coordination with another Federal, State, or local agency with
    respect to the State's discharge of any of the responsibilities the
    State has assumed under this MOU for any particular highway project.
    However, the FHWA holds both monitoring and quality assurance
    obligations under this MOU and general oversight and stewardship
    obligations under the Federal-aid Highway Program. In furtherance of
    those obligations, the FHWA occasionally may elect to attend
    meetings between the State and other Federal agencies. Based on its
    observations, the FHWA may submit comments to the State and the
    other Federal agency if the FHWA determines such comment is
    necessitated by rare or extreme circumstances including:

    1.  The FHWA reasonably believes that the State is not in compliance
        with this MOU; or

    2.  The FHWA determines that an issue between the State and the
        other Federal agency has broad or unique policy implications for
        the administration of the national Federal-aid Highway Program.

### NOTICES

Any notice to either party may be given electronically so long as a
paper original of the notice also is delivered to the party. The
effective date of the notice shall be the date of delivery of the paper
original. Paper notices shall be delivered as follows:

State of Alaska:

Commissioner

Department of Transportation and Public Facilities

P.O. Box 112500

Juneau, Alaska 99811-2500

Federal Highway Administration:

Division Administrator

Federal Highway Administration, Alaska Division

P.O. Box 21648

Juneau, Alaska 99801-1648

U.S. Department of Justice:

Office of the Assistant Attorney General

Environment and Natural Resources Division

950 Pennsylvania Avenue, NW

Room 2143

Washington, D.C. 20530

Execution of this MOU and implementation of its terms by the State is
formal evidence that the parties have reviewed this MOU and determined
that it complies with the laws, regulations and policies applicable to
the FHWA and the State. Accordingly, this MOU is approved and is
effective upon the date of the last signature below.

***FEDERAL HIGHWAY ADMINISTRATION***

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

David C. Miller Date

Division Administrator

***STATE OF ALASKA***

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Leo von Scheben, P.E.,L.S., M.B.A. Date

Commissioner

Department of Transportation and Public Facilities

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Talis J. Colberg Date

Attorney General

Department of Law

**APPENDIX A**

**23CFR 771.117(d) Determinations the USDOT Secretary Assigns to the
State Pursuant to Stipulation I (B)(3)**

1.  NONE.

##  Appendix B {#appendix-b .unnumbered}

# List of FHWA Responsibilities Assigned

## Air Quality {#air-quality .unnumbered}

Clean Air Act (CAA), 42 U.S.C. 7401--7671q. *Determinations for
project-level conformity if required for the project.*

## Noise  {#noise .unnumbered}

Compliance with the noise regulations in 23 CFR 772

## Wildlife {#wildlife .unnumbered}

Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531--1544,
and Section 1536^2^

Marine Mammal Protection Act, 16 U.S.C. 1361

Anadromous Fish Conservation Act, 16 U.S.C. 757a--757g

Fish and Wildlife Coordination Act, 16 U.S.C. 661--667d

Migratory Bird Treaty Act, 16 U.S.C. 703--712

Bald and Golden Eagle Protection Act, as amended, 16 U.S.C. 668-668c,

Magnuson-Stevens Fishery Conservation and Management Act of 1976, as
amended, 16 U.S.C. 1801 et seq.

## Historic and Cultural Resources {#historic-and-cultural-resources .unnumbered}

Section 106 of the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470(f) et seq. ^1^

Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C.
138 and 49 U.S.C. 303^2^

Archeological and Historic Preservation Act of 1966, as amended, 16
U.S.C. 469--469(c)

## Social and Economic Impacts {#social-and-economic-impacts .unnumbered}

American Indian Religious Freedom Act, 42 U.S.C. 1996^1^

Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201--4209

## Water Resources and Wetlands {#water-resources-and-wetlands .unnumbered}

Clean Water Act, 33 U.S.C. 1251--1377

Section 404

Section 401

Section 319

Coastal Barrier Resources Act, 16 U.S.C. 3501--3510

Coastal Zone Management Act, 16 U.S.C. 1451--1465

Safe Drinking Water Act (SDWA), 42 U.S.C. 300f--300j--6

Rivers and Harbors Act of 1899, 33 U.S.C. 401--406

Wild and Scenic Rivers Act, 16 U.S.C. 1271--1287

Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931

TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(11)

Flood Disaster Protection Act, 42 U.S.C. 4001--4128

## Parklands {#parklands .unnumbered}

Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C.
138 and 49 U.S.C. 303^2^

Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4 (known as
Section 6(f))

## Hazardous Materials {#hazardous-materials .unnumbered}

Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9601--9675

Superfund Amendments and Reauthorization Act of 1986 (SARA)

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901--6992k

## Land {#land .unnumbered}

Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319

## Executive Orders Relating to Highway Projects {#executive-orders-relating-to-highway-projects .unnumbered}

E.O. 11990, Protection of Wetlands

E.O. 11988, Floodplain Management

E.O. 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low Income Populations

E.O. 11593, Protection and Enhancement of the Cultural Environment

E.O. 13007, Indian Sacred Sites^1^

E.O. 13175, Consultation and Coordination with Indian Tribal
Governments^1^

E.O. 13112, Invasive Species

Note:

1\. Under these laws and Executive Orders, FHWA will retain
responsibility for conducting formal government-to-government
consultations with Federally recognized Indian tribes. The State will
continue to handle routine consultations with the tribes and understands
that a tribe has the right to direct consultation with FHWA upon
request. The State may also assist FHWA with formal consultations, with
the consent of a tribe, but FHWA remains responsible that this
consultation occurs. FHWA's retention of formal consultation
responsibilities under NAGPRA will not limit State's existing activities
under this law.

2\. Except as specified in Stipulation II.B.2 of this Section 6004 MOU.

**APPENDIX C**

**Statewide Agreements**

Alaska Interagency Consultation and Coordination Agreement for
FHWA/DOT&PF Transportation Projects

**Signatories to Agreement:** FHWA, DOT&PF, U.S. Environmental
Protection Agency, US Fish and Wildlife Service, National Marine
Fisheries Service, U.S. Army Corps of Engineers, Alaska Department of
Environmental Conservation, Alaska Department of Natural Resources,
Alaska Department of Fish and Game

**Effective Date:** April 21, 2005