§326 State assumption of responsibility for categorical exclusions

Summary

The Secretary can let a State take over decisions about whether certain activities are "categorical exclusions" — meaning they do not need an environmental assessment or an environmental impact statement under the Council on Environmental Quality rules in effect on October 1, 2003. A State may only decide about types of activities the Secretary specifically names, and it must follow criteria the Secretary sets. Those criteria must include making information public consistent with section 552 of title 5 and the National Environmental Policy Act. The Secretary cannot force a State to give up any allowed project delivery methods. If a State takes over, it may also take on the Secretary’s environmental review and consultation duties under other federal laws for those excluded actions, except government-to-government consultation with Indian tribes. The State must follow the same rules the Secretary would, and the State alone is responsible and liable. The Secretary and State must sign a public memorandum of understanding (MOU) describing the duties, when the Secretary might resume them, and other terms. The Secretary will help with training if a Governor asks, will watch the State’s performance and funding, and will consider performance when renewing the MOU. MOUs generally run no more than 3 years and can be renewed; they run 5 years if the State has held these responsibilities for at least 10 years. The Secretary can end a State’s participation if the State is not doing the work, but must notify the State, give at least 120 days to fix problems, and, on a Governor’s request, explain needed corrections. A State may leave the program with at least 90 days’ notice. A State agency acting under an MOU is treated as a Federal agency for the related federal law. For a specific project, a State may use funds apportioned under section 104(b)(2) to pay attorneys’ fees tied directly to eligible project activities.