SUPPLEMENTARY INFORMATION:

Background

Section 327 of Title 23, United States Code (23 U.S.C. 327) establishes the Surface Transportation Project Delivery Program, also referred to as the NEPA Assignment 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 the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4370h) 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. FRA is authorized to act on behalf of the Secretary with respect to these matters for railroad projects and FTA is authorized to act on behalf of the Secretary with respect to these matters for public transportation projects.

The State of Utah initially participated in the Federal Highway Administration's (FHWA's) Program. In accordance with 23 U.S.C. 327, the NEPA Assignment Memorandum of Understanding (MOU) was executed between the State, acting through UDOT, and FHWA and became effective on January 17, 2017. After the initial MOU term, the agreement was renewed on May 26, 2022. Since being accepted into the FHWA NEPA Assignment Program, the State has successfully completed four audits, seven self-assessments, and one monitoring event. FHWA has consistently publicly stated that the State continues to meet all requirements of the NEPA Assignment Program. The State will have participated in the Program for 10 years on December 17, 2027.

Pursuant to 23 CFR 773.107(b)(1) and (2), UDOT provided public notice of its draft joint application requesting FRA and FTA NEPA assignment responsibilities on July 29, 2026. It was available for a 30-day comment period, with comments due by the close of business on August 28, 2026. The notice was published in a statewide newspaper and is available at: connect.udot.utah.gov/​events/​notice-of-availability-of-the-utah-department-of-transportations-application-to-assume-the-federal-railroad-administrations-and-federal-transit-administrations-nepa-responsi/​. UDOT also sent notice of the joint application by email and letter with request for comment to all transit agencies in Utah, metropolitan planning organizations, regional planning organizations, associations of governments, regulatory agencies, and Native American Tribes. UDOT notified State agencies through the State of Utah's Resource Development Coordination Council, which is responsible for notifying all State agencies and compiling any comments received related to actions that may affect the physical resources of the State. On September 3, 2026, UDOT formally submitted its joint application package to the Agencies. The submission includes a verification of Statewide notice and solicitation of public comment, Utah's determination that the State of Utah's Public Records Act is comparable to the Federal Freedom of Information Act, the draft MOU, and the UDOT Commissioner's signature approving the application.

Under the proposed MOU, the Agencies would assign to the State the responsibility for making decisions on railroad and public transportation projects as described in UDOT's application and in Part 2 of the draft MOU. As provided in subpart 2.3, UDOT is requesting to assume the Agencies' responsibilities under NEPA for the following covered classes of railroad and public transportation projects upon execution of the Program MOU with the Agencies: all railroad projects in Utah whose source of Federal funding comes from FRA or require FRA approvals; all public transportation projects in Utah whose source of Federal funding comes from FTA or requires FTA approvals; and all projects funded by other Federal agencies, or projects without any Federal funding, that also require FRA or FTA approvals. As provided in subparts 2.1.1 and 2.1.2, UDOT is requesting to assume the Agencies' responsibilities under NEPA for these covered railroad and public transportation projects where UDOT is the Direct Recipient and responsible for the design (for FTA) or final design (for FRA) and construction of the project, or where UDOT is designated in a project-specific agreement as the project sponsor or co-sponsor. For these projects, UDOT requests to assume only the Agencies' NEPA responsibilities; the request does not include assuming the NEPA responsibilities of other Federal agencies. UDOT may assume the Agencies' responsibilities under NEPA for locally administered railroad or public transportation projects by mutual agreement between the State and FRA or FTA, as applicable, pursuant to the requirements of 23 U.S.C. 327(l). In addition, UDOT 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. Lastly, UDOT may rely on other Federal agencies' NEPA analyses consistent with NEPA, USDOT, FRA and FTA regulations, policies, and guidance, as applicable. UDOT's assumption of these NEPA Assignment responsibilities will provide for the highest degree of program-wide 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 or public transportation 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 or public transportation project that is not assumed by the State as identified in the State's application and under subparts 2.3 through 2.6 of the proposed MOU, remains the responsibility of FRA or FTA.

Under the proposed MOU, UDOT would also assume the responsibility to conduct the following environmental review, reevaluation, consultation, or other action pertaining to the review or approval of railroad and public transportation projects specified under MOU subpart 2.3 and required under the following Federal environmental laws and executive orders related to ( printed page 66391) railroad and public transportation projects:

Environmental Review Process

Efficient environmental reviews for project decisionmaking and One Federal Decision, 23 U.S.C. 139

Planning and Environmental Linkages, 23 U.S.C. 168, except for FHWA and FTA responsibilities associated with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304

Programmatic Mitigation Plans, 23 U.S.C. 169, except for FHWA and FTA responsibilities associated with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304

Efficient environmental reviews, 49 U.S.C. 24201

General provisions, 49 U.S.C. 5323

Environmental Impact and Related Procedures, 23 CFR part 771

Air Quality

Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception of any general conformity determinations

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 (NHPA), as amended, 54 U.S.C. 300101-307108, et seq., and implementing regulations at 23 CFR part 800, except to the extent 23 CFR 773.105(b)(4) requires FRA or FTA to retain responsibility for government-to-government consultation with Indian tribes

Archaeological Resources Protection Act of 1979 (ARPA), as amended, 16 U.S.C. 470aa-470mm

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 319, 401, 402, 404, and 408)

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)(3)

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

Parklands and Other Special Land Uses

Section 4(f), 49 U.S.C. 303 and implementing regulations at 23 CFR part 774

Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-200310

The proposed MOU would allow UDOT to act in the place of FRA and FTA in carrying out the environmental review-related functions described above, except with respect to Government-to-Government consultations with federally recognized Indian Tribes. UDOT would continue to handle routine consultations with the Tribes and understands that a Tribe has the right to direct consultation with FRA or FTA upon request. UDOT may assist FRA or FTA with Government-to-Government consultations, with consent of a Tribe, but FRA and FTA remain responsible for the consultation.

In addition, UDOT would not assume FRA's or FTA'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 and FTA will consider the comments submitted on UDOT's joint application and the proposed MOU. A copy of the joint application package and proposed MOU may be viewed on the docket (FRA-2026-2740) at www.regulations.gov. A copy also may be viewed on UDOT's website at: connect.udot.utah.gov/​about-us/​program-development-group/​environmental-division/​. Any final MOU approved by FRA and FTA may include changes based on comments and consultations relating to the proposed MOU and will be made publicly available.

(Authority: 23 U.S.C. 139; 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR part 771; 23 CFR part 773; 49 CFR 1.89; 49 CFR 1.91; 49 CFR part 264; and 49 CFR part 622.)

91 FR 66389