The Federal Highway Administration (FHWA) announced on December 12, 2025, in the Federal Register that it has received and reviewed an application from the Nebraska Department of Transportation (NDOT) to join the Surface Transportation Project Delivery Program. This program, established under 23 U.S.C. 327, permits states to assume FHWA's responsibilities for environmental reviews under the National Environmental Policy Act (NEPA) and related federal laws for certain highway projects. FHWA has deemed the application complete and prepared a draft memorandum of understanding (MOU) detailing the assignment of duties. The agency now seeks public comments on the application and proposed MOU until January 12, 2026, highlighting a potential shift in how environmental compliance is managed for Nebraska's federal-aid highway initiatives. This development could streamline project delivery in the state while maintaining federal oversight, reflecting broader efforts to decentralize certain regulatory processes in transportation infrastructure.
Background on the Surface Transportation Project Delivery Program
The Surface Transportation Project Delivery Program, often called the NEPA Assignment Program, was created by Congress to allow states to take on FHWA's role in conducting environmental reviews for highway projects funded under Title 23 of the U.S. Code. Enacted as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users in 2005 and later expanded, the program aims to expedite project approvals by reducing federal bureaucracy. States must demonstrate capacity to handle these responsibilities, including staffing, legal expertise, and quality control measures.
Nebraska's application follows a path taken by other states, such as California, Texas, and Ohio, which have successfully assumed NEPA duties. For instance, California became the first state to participate in a pilot version of the program in 2007, leading to permanent authority under the Moving Ahead for Progress in the 21st Century Act of 2012. These precedents show that assignment can accelerate timelines—California reported reducing review periods by months— but also requires robust state systems to ensure compliance with federal standards. In Nebraska's case, the proposal builds on an existing Section 326 MOU from September 12, 2024, which already assigns categorical exclusion determinations, indicating a phased approach to greater autonomy.
Key Elements of Nebraska's Application and Proposed MOU
The draft MOU assigns to NDOT the responsibility for NEPA compliance and related consultations for most federal-aid highway projects in Nebraska that require categorical exclusions, environmental assessments, or environmental impact statements. This includes projects funded under Title 23 or needing FHWA approval, but excludes specific categories such as those crossing state or international borders, tribal lands under 23 U.S.C. 202 and 203, recreational trails, and projects by direct federal-aid recipients other than NDOT.
Under the MOU, NDOT would handle duties across various environmental laws, including the Clean Air Act (excluding project-level conformity), Endangered Species Act, National Historic Preservation Act, Clean Water Act sections like 404 permits, and Section 4(f) protections for parks and historic sites. For example, the MOU specifies that NDOT must consult FHWA before determining constructive use under Section 4(f), ensuring federal input on sensitive decisions. FHWA retains authority for government-to-government consultations with federally recognized Indian Tribes, as defined in 36 CFR 800.16(m), though NDOT would manage routine interactions.
The proposal mandates transparency measures. NDOT must include a conspicuous statement on all environmental documents stating that reviews are conducted pursuant to 23 U.S.C. 327 and the MOU. Public and tribal outreach must disclose this arrangement. As noted in the Federal Register, 'The environmental review, consultation, and other actions required by applicable Federal environmental laws for this project are being, or have been, carried out by NDOT pursuant to 23 U.S.C. 327 and a MOU dated [MMDDYYYY] and executed by FHWA and NDOT.' This language aims to inform stakeholders of the shifted responsibilities.
Involved Parties and Political Context
Key players include FHWA, acting on behalf of the U.S. Department of Transportation, and NDOT. FHWA's Nebraska Division, led by Administrator Sean McMaster, will oversee the process, while NDOT's Jason Jurgens serves as the contact. The program's framework reflects bipartisan support for infrastructure efficiency, seen in legislative updates like the Fixing America's Surface Transportation Act of 2015, which encouraged more states to apply.
Political forces include federalism debates, with proponents arguing that states are better positioned for local oversight, potentially cutting costs and delays. Critics, including environmental groups, worry about diluted protections if states prioritize development. For Nebraska, a state with extensive rural highways and agricultural lands, this could intersect with issues like wetland preservation under the Clean Water Act or farmland impacts under the Farmland Protection Policy Act. Perspectives vary: transportation advocates view it as a win for efficiency, while conservationists may seek assurances on rigorous enforcement.
Potential Implications and Perspectives
In the short term, approval could enable NDOT to process reviews faster, aiding projects like highway expansions amid growing traffic demands. Long-term, it might set a model for other Midwest states, influencing national infrastructure policy. However, challenges include ensuring NDOT's capacity— the state must maintain qualified staff and audit procedures, as required by 23 U.S.C. 327.
Different viewpoints emerge without consensus. State officials emphasize benefits for timely delivery, as echoed in similar programs where Texas reported a 20 percent reduction in review times. Environmental organizations, drawing from cases like California's oversight lapses in early implementation, may advocate for stronger monitoring. Legal precedents, such as court rulings upholding state assumptions in Citizens for Pennsylvania's Future v. Chao (2003), affirm the program's validity but stress adherence to NEPA's substantive requirements.
The FHWA will consider public comments before finalizing the MOU, potentially revising it based on input. This step underscores ongoing debates about balancing efficiency with environmental safeguards in federal transportation policy. Possible trajectories include MOU approval leading to expanded state roles or adjustments if concerns arise, shaping future applications nationwide.
