23 U.S.C. § 326 — State assumption of responsibility for categorical exclusions

(a) Categorical Exclusion Determinations — (1) In general: The Secretary of Transportation can hand off, and a state can take on, the job of deciding whether certain kinds of highway work count as "categorically excluded" — meaning they're so minor they don't need a full environmental assessment or environmental impact statement. This follows the categories the Council on Environmental Quality had set as of October 1, 2003. (2) Scope of authority: The state can only make these calls using rules the Secretary sets, and only for the specific kinds of activities the Secretary names. (3) Criteria: Those rules must let the public see the information, following the Freedom of Information Act (5 U.S.C. § 552) and the National Environmental Policy Act. (4) Preservation of flexibility: The Secretary can't force a state to give up any project-building method that would otherwise be allowed, just because the state took on this job. (b) Other Applicable Federal Laws — (1) In general: If a state takes on the job in (a), the Secretary can also hand off other federal environmental review duties tied to those excluded projects — except for government-to-government talks with Indian tribes. The state must follow the same rules the Secretary would have followed. (2) Sole responsibility: Once the state takes on a federal law this way, the state — not the Secretary — is fully responsible and fully liable for following it. (c) Memoranda of Understanding — (1) In general: The Secretary and the state must first let the public comment, then sign a written agreement (called a memorandum of understanding) spelling out what's being handed off and when the Secretary could take it back. (2) Assistance to states: If a governor asks, the Secretary must help the state with technical assistance and training — for taking on this job, writing the agreement, or fixing problems flagged under (d)(1)(B). (3) Term: The agreement usually lasts up to 3 years and can be renewed. A state that has held this responsibility for at least 10 years gets a 5-year term instead. (4) Acceptance of jurisdiction: In the agreement, the state agrees that federal courts can enforce its compliance with the responsibilities it takes on. (5) Monitoring: The Secretary must check that the state is following the agreement and providing enough money to carry it out, and must weigh the state's performance when deciding whether to renew. (d) Termination — (1) Termination by Secretary: The Secretary can end a state's participation if the state isn't doing the job right. First the Secretary must notify the state, give it at least 120 days to fix the problem, and — if the governor asks — explain exactly what needs fixing. Only if the state still doesn't fix it can the Secretary terminate. (2) Termination by the state: The state can quit anytime by giving the Secretary at least 90 days' notice, following any conditions the Secretary sets. (e) State Agency Deemed to Be Federal Agency: A state agency doing this job is treated as if it were a federal agency for purposes of the law it's carrying out. (f) Legal Fees: A state can use its federal highway funds (apportioned under section 104(b)(2)) to pay attorney's fees tied to this work on a project.