EXAMPLE ¹
MEMORANDUM OF UNDERSTANDING

WHEREAS, the Federal Highway Administration, <STATE> Division, hereinafter FHWA, and the <STATE> Department of Natural Resources (Department of Environmental Protection, etc.), hereinafter <STATE> DNR (DEP, etc.), and the <STATE> Department of Transportation, hereinafter <STATE> DOT, have developed this Memorandum of Understanding, hereinafter MOU, to improve administration of the Recreational Trails Program, hereinafter RTP, in the State of <STATE>.

WHEREAS, the purpose of this MOU is to outline the policy and procedures for environmental processing of certain Class II Categorical Exclusions, hereinafter CE, actions pursuant to the National Environmental Policy Act, hereinafter NEPA, as defined in 23 CFR §771.117 (as amended), which normally are found to have no significant social, economic, or environmental effects.

WHEREAS, the FHWA, the <STATE> DNR (DEP, etc.), and the <STATE> DOT, have additionally developed this MOU with the participation of the <STATE> State Historic Preservation Officer, hereinafter SHPO, to incorporate certain interpretations of the regulations and policy implementing Section 106 of the National Historic Preservation Act, hereinafter NHPA, of 1966, and implementing regulations of 36 CFR Part 800 (64 FR 27071-27084).

WHEREAS, the <STATE> DNR administers federally funded RTP projects in the State of <STATE> as authorized by 23 U.S.C. 206 [and {insert relevant State legal citation(s)}]; and

WHEREAS, the activities that are eligible for Federal funding through the <STATE> DNR, administered RTP are listed in the FHWA’s RTP Guidance and the DNR application requirements; and

WHEREAS, the Division Administrator, FHWA, is the “Agency Official” responsible for compliance with the NEPA and implementing regulations (23 CFR §771.117); and

WHEREAS, the Division Administrator, FHWA, is the “Agency Official” responsible for compliance with Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (16 U.S.C. 470 et. seq.) and implementing regulations (36 CFR Part 800 as amended); and

WHEREAS, the RTP is designed to provide and maintain recreational trails for both motorized and nonmotorized recreational trails use, including pedestrian uses (hiking, running, wheelchairs), bicycling, in-line skating, equestrian uses, cross-country skiing, snowmobiling, off-road motorcycling, all-terrain vehicle riding, four-wheel driving, or using other off-road motorized vehicles. FHWA has determined that given the nature of the RTP, the fact that many of these activities are in general keeping with those of the 23 CFR §771.117(c) and (d) and as such considered categorical exclusions; and

WHEREAS, the RTP legislation (23 U.S.C. 206, Section (h)(2)) exempts the program from the requirements of Section 4(f) of the Department of Transportation Act of 1966 (23 U.S.C. 138; 49 U.S.C. 303); and

WHEREAS, the FHWA has determined that RTP projects limited to the activities described in Stipulation IA shall not constitute “undertakings” which could result in effects to the character or use of historic properties and accordingly do not require coordination in those cases with the SHPO or the Advisory Council on Historic Preservation, hereinafter ACHP, pursuant to 36 CFR Part 800 to take into account the effects of the undertaking on historic properties; and

WHEREAS, the RTP is consistent with the statewide and applicable long-range transportation plans and Metropolitan Planning Organizations Transportation Improvement Programs and State Transportation Improvement Programs.

NOW, THEREFORE, the FHWA, the <STATE> DNR, and the <STATE> DOT agree to the following stipulations in order to satisfy FHWA’s NEPA responsibilities for <STATE> DNR administered recreational trails projects. If the projects meet the stipulations herein, no further documentation to satisfy NEPA and/or Section 106 of the NHPA is necessary.

I. STIPULATIONS

The FHWA will ensure that the following measures are carried out:

Projects limited to the activities listed in Stipulations IA and IB herein, and which satisfy the conditions and criteria in Stipulation IC herein, will not result in significant environmental impacts, and are therefore categorically excluded from the requirement to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS) pursuant to the NEPA as referenced above.

Projects limited to the activities listed in Stipulation IA herein only, will have very limited or no potential to affect historic properties as defined pursuant to the NHPA and its implementing regulations as referenced above, and therefore shall not be considered undertakings, as defined at 36 CFR 800.3(a) subject to further consideration under Section 106 provided that any undertaking which may cause or which has resulted in public controversy relative to historic preservation shall be submitted to the SHPO prior to project execution. As regards consideration of historic properties, this MOU is in effect for Section 106 of the NHPA only, and will not preclude the provisions of the [legislative citation for the State's Historic Preservation Act].

As outlined in this MOU, the <STATE> DNR will determine and certify that an activity will not result in significant environmental impacts, and notify FHWA of its findings.

A. It is understood that by the nature of the activities listed below, there are no noise, air quality, sole source aquifer, historic properties, wetlands, endangered species, or right-of-way issues. The following nine activities may be designated as CEs under this agreement pursuant to the NEPA without further approval or documentation, provided they do not cause any impacts listed in Stipulation IC herein, nor involve unusual circumstances as defined in Stipulation IC-7.

Based on the above, FHWA is pre-approving all RTP projects limited to the activities and the predefined set of conditions under items 1 through 9 below pursuant to the NEPA and the NHPA:

1. trail planning and design work (as part of the State's administrative costs);
2. purchase of trail maintenance equipment, materials, and supplies (i.e., mowers, tractors, shovels, hammers, etc.);
3. renovation and restoration of trails and trail access routes, in-kind within an established path or travelway;
4. regrading of trail and/or parking areas within established travelway;
5. striping and restriping;
6. debris removal;
7. educational materials;
8. connector trails within boundaries of existing property;
9. repair of existing signs, kiosks, markers, bridges, fences, guardrails, retaining walls, and berms.

B. It is understood that by the nature of these activities, there are no noise, air quality, sole source aquifer, wetlands, endangered species, or right-of-way issues. The following eight activities may also be designated as CEs under this agreement pursuant to the NEPA without further approval or documentation, provided they do not cause any impacts listed in Stipulation C herein, nor involve unusual circumstances as defined in the Administrative Conditions, Item 7.

It is understood, however, that if any of the following eight activities listed below occurs in, on, or next to a historic property, coordination with the SHPO and others shall take place pursuant to the regulations implementing Section 106 of the NHPA and its implementing regulations. This coordination must occur prior to project authorization.

The FHWA, therefore, is pre-approving all RTP projects meeting the predefined set of conditions under items 1 through 8 below pursuant to NEPA requirements only:

1. bridge rehabilitation or replacement;
2. signs, kiosks, and markers replacement or installation;
3. upgrading the trail and or parking lot from dirt to stone or woodchips, or stone or woodchips to a paved (asphalt, concrete, or other paved surface) or boardwalk surface;
4. fencing, guardrail, retaining wall, or berm replacement or installation;
5. drainage;
6. landscaping;
7. Compliance under the Americans with Disabilities Act (ADA) including the following:
   1. ramps;
   2. railings;
   3. resurfacing (to pavement or boardwalk);
   4. parking and trail access;
   5. signage;
   6. port-a-potties;
8. permanent installation of ancillary facilities including the following:
   1. port-a-potties;
   2. bike racks;
   3. lighting;
   4. benches;
   5. trash receptacles;
   6. trail course design features (jumps, water hazards, par course equipment, picnic benches).

C. A proposed project must be individually approved by FHWA pursuant to the NEPA and Section 106 of the NHPA when a project requires or involves any of the following eight items and/or involve unusual circumstances:

1. acquisition of property;
2. new trail on new alignment;
3. adverse-effect finding from SHPO;
4. environmental permits;
5. new bridge construction;
6. endangered species;
7. hazardous materials;
8. air quality conformity impacts.

If any one of the items above applies, the <STATE> DNR and the applicant must submit a CE or other environmental document, as appropriate, to FHWA for individual approval, and/or coordinate with the appropriate parties pursuant to the regulations implementing Section 106 of the NHPA.

II. ADMINISTRATIVE CONDITIONS

Applicability. This agreement applies to all RTP projects that are administered through the <STATE> DNR and funded by the FHWA.

1. Monitoring. The FHWA may monitor any activities carried out pursuant to this agreement. The <STATE> DNR will cooperate with the FHWA in carrying out these monitoring and review responsibilities.

2. Amendments. Any party to this agreement may request that it be amended.

3. Termination. Any party to this agreement may terminate it by providing 30 days written notice to the other parties, provided that the parties will consult during the period prior to the termination to seek agreements on amendments or other actions that would avoid termination.

4. Default. In the event that the FHWA or the <STATE> DNR cannot carry out the terms of this agreement, the FHWA will comply with 23 CFR §771.

5. Regulatory Revisions. In the event that revised regulations are promulgated, it is the intent of the signatories of this agreement to continue to allow the <STATE> DNR and/or its consultants to independently conduct the work required in the equivalent provisions of the new regulations on behalf of the FHWA and to consult to amend this agreement accordingly.

6. Reevaluation. The FHWA and the <STATE> DNR will from time to time reevaluate the attached list of undertakings for possible new inclusions and/or deletions.

7. Unusual Circumstances. Any action which normally would be classified as a CE but could involve unusual circumstances will require the Administration, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper under 23 CFR 23 CFR §771.117(b). Such unusual circumstances include:
   1. Significant environmental impacts;
   2. Substantial controversy on environmental grounds;
   3. Significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the NHPA;
   4. Inconsistencies with any Federal, State, or law, requirement, or administrative determination relating to the environmental aspects of the action.

EXECUTIVE SUMMARY

MEMORANDUM OF UNDERSTANDING
FOR RECREATIONAL TRAILS PROGRAM PROJECTS

As the result of discussions between FHWA and the <STATE> DNR/DEP, the <STATE> DOT, and the <STATE> Historic Preservation Office, FHWA created a Memorandum of Understanding (MOU) which allows certain Recreational Trails Program projects to proceed as self certified categorical exclusions (CEs) pursuant to the NEPA, and which will have little or no effect on cultural resources pursuant to the NHPA, without further involvement of FHWA.

The MOU outlines the policy and procedures for environmental processing of certain Class II CE actions as defined in 23 CFR §771.117 (and as amended) which normally are found to have no significant social, economic, or environmental effects. Additionally, a process for Section 106 consultation was established.

Footnotes

1. The original Executive Summary and a Programmatic Agreement were prepared by Victoria B. Martinez, AICP, Environmental Specialist, FHWA, New Jersey Division Office, August 1999, and edited by Celeste Tracy, Carl Nittinger, and Michael Gregg, New Jersey Department of Environmental Protection, August 1999.

   Edited to be a generic MOU by MaryAnn Naber, FHWA Historic Preservation Officer, and Christopher B. Douwes, Trails and Enhancements Program Manager, October 17, 2007.