The practice of National Environmental Policy Act (NEPA) Assignment for state departments of transportation (DOTs) is gaining buzz. DOTs across the country are encouraged to consider managing their own responsibilities under NEPA and other environmental laws for highway projects under this program.
In a recent U.S. Department of Transportation briefing on accelerating construction of transportation projects in Nebraska, U.S. Secretary of Transportation Sean P. Duffy underscored that NEPA Assignment helps streamline environmental reviews and “get shovels in the ground sooner.” Federal Highway Administration (FHWA) Deputy Administrator Jay Payne similarly emphasized to state DOT leaders at an AASHTO Washington Briefing in February 2026 that participation can cut red tape and get projects built faster.
What is NEPA Assignment?
Under federal statute 23 U.S.C. 327, the secretary of transportation is permitted to assign, and states are permitted to assume, the responsibilities of the secretary with respect to a specific highway, railroad, public transportation, or multimodal project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq). However, there are limitations to the secretary of transportation’s responsibilities that can be assigned to state DOTs. For example, the secretary of transportation cannot assign responsibilities listed under 23 USC 134 and 135 or 49 USC 5303 and 5304 to state DOTs.
Responsibilities that are off-limits include:
- Encouraging metropolitan planning organizations (MPOs) to consult with officials responsible for other types of planning activities that are affected by transportation in the area
- Coordinating the DOT’s planning process with state and local planning activities
- Determining the specifications and format of MPO transportation plans
- Taking actions on the State Transportation Improvement Program
The final rule listed under 23 USC 773 covers application requirements, including:
Currently Alaska, Arizona, California, Florida, Maine, Nebraska, Ohio, Texas and Utah participate in NEPA Assignment.
How Can a State Apply for NEPA Assignment?
After completing an application, a state must publish statewide notice of its availability for review and comment. From there, a state must follow its own procedures for notification and revise the application, if necessary, prior to its formal submission.
What are the Benefits of NEPA Assignment?
Faster processing
This program allows for faster processing of categorical exclusions (CEs), environmental assessments, and environmental impact statements.
Accelerated project delivery
Additionally, participating states have noted faster project delivery by anywhere between several months to several years. The vehicle for these time savings is a renewable memorandum of understanding (MOU) which allows FHWA’s NEPA responsibilities to be assigned to state DOTs. Minimizing reliance on FHWA for reviews reduces the amount of delays and duplications a project faces, which saves both time and money. States are allowed to develop their own tools and systems to support these new responsibilities in a way that best helps them.
Additional benefits
NEPA Assignment provides the opportunity for more direct engagement and relationships with stakeholders and public agencies. Additionally, state-level flexibility in decision-making for projects is increased.
Is My State NEPA Assignment Ready?
States interested in diving into NEPA Assignment may find the CE Assignment Program (under 23 USC 326) to be less overwhelming. This program allows states to assess their CE procedures without fully committing to NEPA Assignment across all review levels. This can act as a testing ground for state DOTs to determine what does and doesn’t work prior to transitioning to the full NEPA Assignment program.
Generally, it is important that states understand and evaluate their current NEPA process. From there, they can collaborate with stakeholders, develop an application, publish the draft MOU, and begin implementation of NEPA Assignment.
A notable consideration is that states wishing to participate in NEPA Assignment must waive the sovereign immunity granted by the Eleventh Amendment to the U.S. Constitution (see 23 CFR 773.107(c)). Waiving sovereign immunity essentially means a state is giving up protection against being sued in federal courts with respect to compliance, discharge, and enforcement of any of the responsibilities being assigned in the effective MOU.
While not explicitly a requirement, FHWA recommends that the state DOT’s top official submit a letter of interest to the FHWA division administrator prior to starting their application.
Is your DOT ready to explore this program? Our firm looks forward to assisting state DOTs in navigating the application process and managing their responsibilities through NEPA Assignment to deliver projects faster and with greater flexibility.