# Application 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
**AGENCY:**
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
**ACTION:**
Notice, request for comments.
**SUMMARY:**
This notice announces that FRA has received and reviewed an application package from the State of Ohio (State), Ohio Department of Transportation (ODOT) in conjunction with the Ohio Rail Development Commission (ORDC), requesting participation in the Surface Transportation Project Delivery Program (Program). Under the Program, FRA may assign, and the State may assume, responsibilities under the National Environmental Policy Act (NEPA), and all or part of FRA's responsibilities for environmental review, consultation, or other actions required under any Federal environmental laws with respect to one or more railroad projects within the State. FRA has determined the application package to be complete and developed a draft MOU with the State outlining how the State will implement the Program with FRA oversight. The public is invited to comment on the State's request, including its application package and the proposed MOU, which includes the proposed assignments and assumptions of environmental review, consultation, and other activities.
**DATES:**
Comments must be received on or before October 9, 2024.
**ADDRESSES:**
Comments related to Docket No. FRA-2024-0096 may be submitted by going to *https://www.regulations.gov* and following the online instructions for submitting comments.
*Instructions:* All submissions must refer to the Federal Railroad Administration and the docket number in this notice (FRA-2024-0096). Note that all submissions received, including any personal information provided, will be posted without change and will be available to the public on *https://www.regulations.gov.* You may review DOT's complete Privacy Act Statement in the *Federal Register* published April 11, 2000 (65 FR 19477), or at *https://www.transportation.gov/privacy.*
**FOR FURTHER INFORMATION CONTACT:**
For questions about this notice, *for FRA,* please contact Ms. Lana Lau, Supervisory Environmental Protection Specialist, Office of Environmental Program Management, Federal Railroad Administration, telephone (202) 923-5314, email: *[email protected].* For ODOT, please contact Mr. Timothy Hill, Administrator of ODOT's Office of Environmental Services, Ohio Department of Transportation, 1980 West Broad Street, Mail Stop 4170, Columbus, Ohio 43223, telephone: (614) 644-0377; email: *[email protected].*
**SUPPLEMENTARY INFORMATION:**
*Background:* Section 327 of title 23, United States Code (23 U.S.C. 327) establishes the Surface Transportation Project Delivery Program (Program). It allows the Secretary of the U.S. Department of Transportation (Secretary) to assign, and a State to assume, responsibility for all or part of the Secretary's responsibilities for environmental review, consultation, or other actions required under NEPA (42 U.S.C. 4321 *et seq.* ) and any Federal environmental law with respect to one or more highway projects within the State, as well as one or more railroad, public transportation, and/or multimodal projects. [^1] FRA is authorized to act on behalf of the Secretary with respect to these matters for railroad projects.
[^1] The Secretary may not assign its responsibility for making any conformity determination required under section 176 of the Clean Air Act. Also not assignable is Government to Government consultation with federally recognized Indian Tribes.
The State of Ohio initially participated in the Federal Highway Administration's (FHWA) Surface Transportation Project Delivery Program and in accordance with 23 U.S.C. 327, entered into a Memorandum of Understanding (MOU) with the Federal Highway Administration (FHWA) for the FHWA NEPA Assignment program in Ohio. The NEPA Assignment MOU between the State, acting through ODOT, and FHWA became effective December 11, 2015, was amended on June 6, 2018, and renewed on December 14, 2020. Since being accepted into the FHWA NEPA Assignment program, the State has successfully completed four audits, eight self-assessments, and one monitoring event; a second monitoring event, as required under the MOU, is currently underway. FHWA has consistently publicly stated that the State continues to meet all requirements of the NEPA Assignment program and has held the State up as an example for other states to follow. The State will have participated in the Program for 9 years on December 11, 2024.
Pursuant to 23 CFR 773.107(b)(1) and (2): Public comment, the State's draft application was publicly noticed on June 2, 2024, for a 30-day comment period, with comments due by the close of business on July 2, 2024. A notice of the draft application's availability was published in the newspaper with the largest circulation in the following cities: Columbus, Cincinnati, Cleveland, Dayton, and Toledo. The State also sent notice of the application by email or letter with request for comment to federal and state resource agencies and federally recognized tribal governments. Lastly, the State sent notices to various associations and other groups and posted the availability of the application and how to provide comments on ODOT's website. On July 24, 2024, the State formally submitted its Application Package to FRA. The submission includes verification of statewide notice and solicitation of public comment, copies of the State's responses to comments and incorporation of comments into the application package, Ohio's determination that the State of Ohio Public Records Act is comparable to the Federal Freedom of Information Act, draft MOU, and the Director of ODOT's signature approving the application.
Under the proposed MOU, FRA would assign to the State the responsibility for making decisions on railroad projects as described in the State's application and in Part 3 of the draft MOU. The State is requesting to assume FRA's responsibilities under NEPA for the following classes of rail projects upon execution of the NEPA Assignment Program MOU with FRA. This includes all railroad projects in Ohio whose source of federal funding comes from FRA or require FRA approvals that are administered by ODOT or ORDC; these projects may include funding from other federal sources as well. For these projects, the State requests to assume only FRA's NEPA responsibilities; the request does not include assuming the NEPA responsibilities of other federal agencies
Lastly, the State would establish appropriate relationships with other Operating Administration(s) involved in a multimodal project, including cooperating agency, participating agency, and lead or co-lead agency relationships under NEPA. In addition, the State may use or adopt other federal agencies' NEPA analyses consistent with 40 CFR parts 1500-1508 and USDOT and FRA regulations, policies, and guidance. ODOT's assumption of these responsibilities program-wide will provide for the highest degree of consistency and efficiency in document review and agency coordination. It will also provide the greatest opportunity for streamlining benefits.
Excluded from assignment are the following:
(1) Railroad projects that cross state boundaries or that cross or are adjacent to international boundaries. For purposes of the State's application and the proposed MOU, a project is considered “adjacent to international boundaries” if it requires the issuance of a new, or modification of an existing, Presidential Permit.
(2) As provided at 23 U.S.C. 327(a)(2)(D), any railroad project that is not assumed by the State as identified in the State's application and under subpart 3.3 of the proposed MOU, remains the responsibility of FRA.
Under the proposed MOU, the State would also assume the responsibility to conduct the following environmental review, reevaluation, consultation, or other action pertaining to the review or approval of railroad projects specified under MOU subpart 3.3 and required under the following Federal environmental laws and executive orders related to railroad projects:
**Environmental Review Process**
Efficient environmental reviews for project decision-making, 23 U.S.C. 139
Efficient environmental reviews, 49 U.S.C. 24201
**Air Quality**
Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception of any project-level general conformity determinations, 42 U.S.C 7506
**Noise**
Noise Control Act of 1972, 42 U.S.C. 4901-4918
**Wildlife**
Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531-1544
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
Migratory Bird Treaty Act, 16 U.S.C. 703-712
**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**
National Historic Preservation Act of 1966, as amended, 54 U.S.C. 300101-307108, *et seq.* except to the extent 23 CFR 773.105(b)(4) requires FRA to retain responsibility for government-to-government consultation with Indian Tribes
23 U.S.C. 138 and section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. 303 and implementing regulations at 23 CFR part 774
Archeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469c
Archeological Resources Protection Act, 16 U.S.C. 470aa-470mm, title 54, chapter 3125
Preservation of Historical and Archeological Data, 54 U.S.C. 312501-312508
Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
**Social and Economic Impacts**
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
**Water Resources and Wetlands**
Clean Water Act, 33 U.S.C. 1251-1387 (sections 401, 402, 404, 408, and section 319)
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
Flood Disaster Protection Act, 42 U.S.C. 4001-4133
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 (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
**Parklands and Other Special Land Uses**
49 U.S.C. 303 (section 4(f)) and implementing regulations at 23 CFR part 774
Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-200310
**Executive Orders**
E.O. 11990, Protection of Wetlands
E.O. 11988, Floodplain Management (except approving design standards and determinations that a significant encroachment is the only practicable alternative under 23 CFR 650.113 and 650.115.
E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
E.O. 13112, Invasive Species, as amended by E.O. 13751, Safeguarding the Nation from the Impacts of Invasive Species
E.O. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
E.O. 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis
E.O. 14008, Tackling the Climate Change Crisis at Home and Abroad
E.O. 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All
Other Executive Orders not listed, but related to railroad projects
The proposed MOU would allow the State to act in the place of FRA in carrying out the environmental review-related functions described above, except with respect to Government-to-Government consultations with federally recognized Indian Tribes. The State would continue to handle routine consultations with the Tribes and understands that a Tribe has the right to direct consultation with FRA upon request. The State may assist FRA with Government-to-Government consultations, with consent of a Tribe, but FRA remains responsible for the consultation.
In addition, the State would not assume FRA's responsibilities for conformity determinations required under 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.
FRA will consider the comments submitted on the State's application and the proposed MOU. A copy of the application package and proposed MOU may be viewed on the docket (FRA-2024-0096) at *www.regulations.gov.* A copy also may be viewed on ODOT's website at: *https://www.transportation.ohio.gov/programs/nepa-odot/nepa-assignment-documentation.* Any final MOU approved by FRA may include changes based on comments and consultations relating to the proposed MOU and will be made publicly available.
*Authority:* 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR part 773; 40 CFR 1507.3; and 49 CFR 264.101.
Marlys Osterhues,
Director, Office of Environmental Program Management, Office of Railroad Administration.