What is NEPA?
- The National Environmental Policy Act (NEPA) is a Federal procedural law that establishes a national environmental policy. NEPA provides a framework for environmental planning and decision-making on projects that receive Federal funds or require Federal approvals.
- NEPA requires Federal agencies, when planning projects or issuing permits, to conduct environmental reviews to consider the potential impacts on the environment by their proposed actions.
What is NEPA Assignment?
- The phrase “NEPA Assignment” refers to an environmental review streamlining tool offered to State Departments of Transportations (DOTs) under 23 U.S.C. §326 and §327 (explained below).
- Under NEPA Assignment, the Nebraska Department of Transportation (NDOT) may legally ”assume” Federal Highway Administration's (FHWA's) “assignment” of National Environmental Policy Act (NEPA) environmental review responsibilities for highway projects funded with federal-aid. Under this program, environmental review and approval is performed by NDOT without the involvement of FHWA.
- In reviewing and approving projects under NEPA Assignment, NDOT becomes responsible and liable for compliance with all applicable federal environmental laws and with FHWA NEPA regulations, policies, and guidance.
- Other Federal agencies may have review and permit obligations tied to individual highway projects. Under Assignment, though NDOT becomes the lead Federal Agency for federal-aid funded projects, NDOT is only responsible for environmental decision-making on the projects for FHWA, but not for other Federal agencies.
- Assignment does not change any current legal requirements, nor provide any shortcuts from what is currently required by law.
- Federal Law provides two ways for State DOTs to undertake NEPA Assignment:
- 23 U.S.C. § 326 ‐ “Categorical Exclusion Assignment” - Allows State DOTs to accept assignment via Memorandum of Understanding (MOU) to make determinations regarding mostly minor projects whose environmental review is limited to making categorical exclusion (CEs)(23 CFR 771.117) determinations.
- 23 U.S.C. § 327 ‐ called the Surface Transportation Project Delivery Program or “Full NEPA Assignment” – Allows State DOTs to assume FHWA’s NEPA responsibilities by preparing an application and then executing an MOU for a full program of environmental determinations, including Categorical Exclusion (CE), Environmental Assessments (EAs) and Environmental Impact Statements (EISs).
- NDOT is pursuing Assignment under both laws in two steps (explained below), pursuing CE Assignment first (§326 MOU), followed shortly thereafter by Full NEPA Assignment (§327 MOU).
Why would NDOT participate in the NEPA Assignment program?
- NDOT will build stronger relationships with stakeholders and public agencies through direct engagement and ownership of decision-making.
- NEPA Assignment will allow NDOT to deliver safety and highway improvement projects to the public faster while preserving environmental quality.
- The program allows for more flexibility in project decision-making, while maintaining existing requirements for environmental consultation, review, and compliance.
What other states have participated in NEPA Assignment?
- States currently under one or both of the programs:
- California (326 & 327)
- Alaska (326 and 327)
- Texas (327)
- Ohio (327)
- Florida (327)
- Utah (326 & 327)
- Arizona (326, pursuing 327)
What is NDOT's path for NEPA Assignment?
- NDOT will seek both CE Assignment and the Full NEPA Program as separate, but simultaneous efforts.
- MOU for CE Assignment will be pursued first, followed by formal application for Full Program Assignment.
- Outreach to agencies and the public
- Preparing and updating manuals and procedures
Why pursue CE Assignment first?
- Quickly assume responsibility for majority of program
- 95% of NDOT’s highway program is reviewed at the CE level.
- Gain efficiencies for CE projects, resulting in savings for State and Local projects
- Since 2015, FHWA has delegated environmental review and approval authority to NDOT for approximately 80% of our CE level projects (CE-1s and CE-2s). FHWA has remained responsible for final review and approval of CE-3s.
- NDOT has a well-established CE program, which can quickly and efficiently be modified for CE Assignment.
How will this impact NDOT?
- NDOT must comply with its MOU commitments in assuming FHWA’s environmental responsibilities, just as it has for those CEs processed under the 2015 Programmatic Categorical Exclusion Agreement between FHWA DO and NDOT.
- NDOT will continue to:
- Maintain detailed files and records, and make them available to FHWA
- Develop and maintain updated procedures on all environmental processes
- Provide continuous Quality Assurance/Quality Control (QA/QC) on all actions
- Dedicate sufficient funding and staff to implement NEPA assignment
- Maintain the necessary professional and experienced staff to carry out the required environmental analyses
- Institute and maintain a progressive training plan for environmental staff
- Conduct regular self-assessments
- Report all NEPA decisions to FHWA