Renewal Package from the State of Ohio to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding Assigning Environmental Responsibilities[...]

Renewal Package From the State of Ohio to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

DATES:

Please submit comments by April 6, 2026.

SUPPLEMENTARY INFORMATION:

Electronic Access

You may submit or retrieve comments online through the Federal eRulemaking portal at: www.regulations.gov. The website is available 24 hours each day, 365 days each year. Please follow the instructions. Electronic submission and retrieval help and guidelines are available under the help section of the website.

An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: www.federalregister.gov and the U.S. Government Publishing Office's web page at: www.govinfo.gov.

Background

Section 327 of title 23, United States Code (U.S.C.), allows the Secretary of the DOT to assign, and a State to assume, the responsibilities under NEPA (42 U.S.C. 4321 et seq. ) and all or part of the responsibilities for environmental review, consultation, or other actions required under certain Federal environmental laws with respect to one or more Federal-aid highway projects within the State. The FHWA is authorized to act on behalf of the Secretary with respect to these matters.

The ODOT entered the Program on December 28, 2015 after submitting its application to FHWA, obtaining FHWA's approval, and entering into a MOU in accordance with 23 U.S.C. 327 and FHWA's application regulations for the Program (23 CFR part 773). The MOU was amended on June 6, 2018. On December 6, 2019, after coordination with FHWA, ODOT submitted the renewal package in accordance with the renewal regulations in 23 CFR 773.115. The First Renewal MOU was executed on December 14, 2020 and currently set to expire on December 28, 2025. On November 5, 2025, FHWA extended the First Renewal MOU to June 28, 2026.

Under the proposed renewal MOU, FHWA would assign to the State, through ODOT, its responsibility of making project-level decisions in relation to NEPA on highway projects within the State of Ohio that are proposed to be funded with Title 23 funds or otherwise require FHWA approval, and that require preparation of a categorical exclusion determination, environmental assessment, or environmental impact statement with the exception of the following: (1) highway projects authorized under 23 U.S.C. 202 and 203, highway projects under 23 U.S.C. 204 unless the project will be designed and constructed by ODOT; (2) projects that cross State boundaries; (3) projects that cross or are adjacent to international boundaries; (4) recreational trails projects under 23 U.S.C. 206; and (5) any project advanced by a Non-ODOT Direct Recipient of Federal-Aid Highway Funds, i.e. a project in which the Federal funds do not pass through ODOT and there is no Local Public Agency Federal project agreement between ODOT and the Non-ODOT entity.

The assignment would give the State the responsibility to conduct environmental review, consultation, and other related activities for project delivery under the following laws and requirements:

Air Quality

• Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception of project level conformity determinations (42 U.S.C. 7506)

FHWA-Specific

• Planning and Environmental Linkages, 23 U.S.C. 168, with the exception of those FHWA responsibilities associated with 23 U.S.C. 134 and 135
• Programmatic Mitigation Plans, 23 U.S.C. 169 with the exception of those FHWA responsibilities associated with 23 U.S.C. 134 and 135

Fisheries and Wildlife

• Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
• Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
• Migratory Bird Treaty Act, 16 U.S.C. 703-712
• Endangered Species Act of 1973, 16 U.S.C. 1531-1544
• Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
• Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
• Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801-891d

Hazardous Materials Management

• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675
• Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 9671-9675
• Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k

Historic and Cultural Resources

• Archeological Resources Protection Act of 1979, 16 U.S.C. 470(aa)-470(mm)
• Native American Grave Protection and Repatriation Act, 25 U.S.C. 3001- 3013; 18 U.S.C. 1170
• Archeological and Historic Preservation Act, 54 U.S.C. 312501-312508

• National Historic Preservation Act of 1966, as amended, 54 U.S.C. 300101, et seq.

• Section 4(f) of the Department of Transportation Act of 1966 [Section 4(f)], 23 U.S.C. 138, 49 U.S.C. 303 and implementing regulations at 23 CFR part 774

Noise

• FHWA noise regulations in 23 CFR part 772
• Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

• Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310
• Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138, 49 U.S.C. 303 and implementing regulations at 23 CFR part 774

Social and Economic Impacts

• American Indian Religious Freedom Act, 42 U.S.C. 1996
• Farmland Protection Policy Act, 7 U.S.C. 4201-4209

Water Resources and Wetlands

• Clean Water Act, 33 U.S.C. 1251-1387 (sections 319, 401, 402, 404 and 408)
• Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
• FHWA wetland and natural habitat mitigation regulations, 23 CFR 777
• Flood Disaster Protection Act, 42 U.S.C. 4001-4130
• General Bridge Act of 1946, 33 U.S.C. 525-533
• Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
• Safe Drinking Water Act, 42 U.S.C. 300f-300j-26
• Wetland Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
• Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
• Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
• Coastal Zone Management Act, 16 U.S.C. 1451-1466

The Secretary's responsibilities for government-to-government consultation with Indian Tribes, as defined in 36 CFR 800.16(m), are not assigned to or assumed by ODOT under the proposed MOU. The FHWA will retain responsibility for conducting formal government-to-government consultation with federally recognized Indian Tribes. ODOT will conduct routine consultation with Indian Tribes and understands that an Indian Tribe has the right for government-to-government consultation with FHWA upon request.

Nothing in the proposed MOU shall be construed to permit ODOT's assumption of the Secretary's responsibilities for conformity determinations required by Section 176 of the CAA (42 U.S.C. 7506) or any responsibility under 23 U.S.C. 134 or 135, or under 49 U.S.C. 5303 or 5304.

On the cover page of all environmental analyses prepared under the authority granted by this MOU, ODOT shall insert the following language in a way that is conspicuous to the reader, or include it in a CE project record: The environmental review, consultation, and other actions required by applicable Federal environmental laws for this project are being, or have been, carried out by ODOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding dated [MMDDYYYY] and executed by FHWA and ODOT.

ODOT will also disclose to the public, agencies and Tribes as part of agency outreach and public involvement procedures, the above disclosure.

ODOT will not make any determination that an action constitutes a constructive use of a Section 4(f) property under 49 U.S.C. 303/23 U.S.C. 138 without first consulting with FHWA and obtaining approval of such determination.

A copy of the proposed Second Renewal MOU and renewal package may be viewed on the docket at www.regulations.gov, as described above, or may be obtained by contacting FHWA or the State at the addresses provided above. A copy also may be viewed on ODOT's website at https://www.transportation.ohio.gov/programs/nepa-odot/nepa-assignment-documentation.

The FHWA Ohio Division, in consultation with FHWA Headquarters, will consider the comments submitted when making its decision on the proposed MOU. FHWA and ODOT may revise the MOU based on substantive comments and will be make the final renewal MOU available to the public.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

(Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.117.)