Proposed Memorandum of Understanding Revision (MOU) Assigning Certain Federal Environmental Responsibilities to the State of Alaska, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

Sandra A. Garcia-Aline
Federal Highway Administration
August 3, 2015

[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Notices]
[Pages 46091-46092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18958]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2015-0018]


Proposed Memorandum of Understanding Revision (MOU) Assigning 
Certain Federal Environmental Responsibilities to the State of Alaska, 
Including National Environmental Policy Act (NEPA) Authority for 
Certain Categorical Exclusions (CEs)

AGENCY: Federal Highway Administration (FHWA).

ACTION: Notice of proposed MOU, request for comments.

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SUMMARY: The FHWA and the State of Alaska, acting by and through its 
Department of Transportation (State), propose a renewal of the State's 
participation in the 23 U.S.C. 326 program. This program allows FHWA to 
assign to States its authority and responsibility for determining 
whether certain designated activities within the geographic boundaries 
of the State, as specified in the proposed Memorandum of Understanding 
(MOU), are categorically excluded from preparation of an environmental 
assessment or an environmental impact statement under the National 
Environmental Policy Act. An amended MOU would renew the State's 
participation in the program. The MOU will be amended by incorporating 
the following changes: Projects that include Federal Aid Highway 
Program funds and other Federal funds would now be assignable; Federal 
Lands Highway Program (FLHP) projects funded under 23 U.S.C. 204 and 
designed and constructed by the State would now be assignable; and 
projects involving Section 7 Endangered Species Act (ESA) formal 
consultation would now be assignable.

DATES: Comments must be received on or before September 2, 2015.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2015-0018], by any of the 
methods described below. Electronic or facsimile comments are preferred 
because Federal offices experience intermittent mail delays from 
security screening.
    Web site: http://www.regulations.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590.
    Hand Delivery: 1200 New Jersey Ave. SE., Washington, DC 20590 
between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal 
holidays.
    For access to the docket to view a complete copy of the proposed 
MOU, or to read background documents or comments received, go to http://www.regulations.gov at any time or to 1200 New Jersey Ave., SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through 
Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT: For FHWA: Tim Haugh; by email at 
tim.haugh@dot.gov or by telephone at 907-586-7430. The FHWA Alaska 
Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Alaska 
Time), Monday-Friday, except for Federal Holidays. For State: Taylor 
Horne; by email at taylor.horne@alaska.gov; by telephone at 907-465-
6957. The Alaska Department of Transportation's normal business hours 
are 8 a.m. to 5 p.m. (Alaska Time), Monday-Friday, except for State and 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov/ and the Government Printing Office's 
database: http://www.fdsys.gov.
    An electronic version of the proposed MOU may be downloaded by 
accessing the DOT DMS docket, as described above, at http://www.regulations.gov.

Background

    Section 326 of Title 23 U.S. Code, creates a program that allows 
the

[[Page 46092]]

Secretary of the DOT (Secretary), to assign, and a State to assume, 
responsibility for determining whether certain highway projects are 
included within classes of action that are categorically excluded (CE) 
from requirements for environmental assessments or environmental impact 
statements pursuant to the National Environmental Policy Act of 1969, 
42 U.S.C. 4321 et seq. (NEPA). In addition, this program allows the 
assignment of other environmental review requirements applicable to 
these actions. The FHWA is authorized to act on behalf of the Secretary 
with respect to these matters.
    Through an amended MOU, FHWA would renew Alaska's participation in 
this program for a second time. The original MOU became effective on 
September 22, 2009, for an initial term of three (3) years and the 
first renewal followed on September 20, 2012. The proposed MOU revision 
is set to supersede the renewed MOU prior to its expiration date on 
September 20, 2015. Stipulation I(B) of the MOU describes the types of 
actions for which the State would assume project-level responsibility 
for determining whether the criteria for a CE are met. Statewide 
decision-making responsibility would be assigned for all activities 
within the categories listed in 23 CFR 771.117(c) and those listed as 
examples in 23 CFR 771.117(d).
    In addition to the NEPA CE determination responsibilities, the MOU 
would assign to the State the responsibility for conducting Federal 
environmental review, consultation, and other related activities for 
projects that are subject to the MOU with respect to the following 
Federal laws and Executive Orders:
    1. Clean Air Act (CAA), 42 U.S.C. 7401-7671q (determinations of 
project-level conformity if required for the project).
    2. Compliance with the noise regulations in 23 CFR 772.
    3. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531- 
1544, and Section 1536.
    4. Marine Mammal Protection Act, 16 U.S.C. 1361.
    5. Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g.
    6. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    7. Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    8. Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801 et seq.
    9. Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306101 et seq.
    10. Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR part 774.
    11. Archeological and Historic Preservation Act of 1966, as 
amended, 54 U.S.C. 3201
    12. American Indian Religious Freedom Act, 42 U.S.C. 1996.
    13. Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.
    14. Clean Water Act, 33 U.S.C. 1251- 1377 (Section 404, Section 
401, Section 319).
    15. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    16. Coastal Zone Management Act, 16 U.S.C. 1451-1465.
    17. Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.
    18. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406.
    19. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    20. Emergency Wetlands Resources Act, 16 U.S.C. 3921-3931.
    21. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 
(b)(11).
    22. Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
    23. Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604 
(known as section 6(f)).
    24. Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675.
    25. Superfund Amendments and Reauthorization Act of 1986 (SARA).
    26. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901- 
6992k.
    27. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C.
    28. Executive Orders Relating to Highway Projects (E.O. 11990, 
Protection of Wetlands; E.O. 11988, Floodplain Management; E.O. 12898, 
Federal Actions to Address Environmental Justice in Minority 
Populations and Low Income Populations; E.O. 11593, Protection and 
Enhancement of Cultural Resources; E.O. 13007, Indian Sacred Sites; 
E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments; E.O. 13112, Invasive Species).
    The MOU allows the State to act in the place of the FHWA in 
carrying out the functions described above, except with respect to 
government-to-government consultations with federally recognized Indian 
tribes. The FHWA will retain responsibility for conducting formal 
government-to-government consultation with federally recognized Indian 
tribes, which is required under some of the above-listed laws and 
executive orders. The State also may assist the FHWA with formal 
consultations, with consent of a tribe, but the FHWA remains 
responsible for the consultation. This assignment includes transfer to 
the State of Alaska the obligation to fulfill the assigned 
environmental responsibilities on any proposed projects meeting the 
criteria in Stipulation I(B) of the MOU that were determined to be CEs 
prior to the effective date of the proposed MOU but that have not been 
completed as of the effective date of the MOU.
    In addition to proposing a renewal of the State's participation in 
the program, the proposed MOU would have three changes from the 
previous version. The MOU will be amended by allowing assignment of 
projects that include Federal Aid Highway Program funds and other 
Federal funds. These types of projects were not available for 
assignment in the previous versions. The MOU would also be amended to 
allow assignment of Federal Lands Highway Program (FLHP) projects 
funded under 23 U.S.C. 204 and designed and constructed by ADOT&PF. For 
example, projects receiving Federal Land Access Program funds would be 
available for assignment as long as the State is the entity designing 
and constructing the project. Finally, the MOU would be amended by 
allowing the State to engage in formal consultation under Section 7 
Endangered Species Act (ESA). This responsibility was retained by FHWA 
in previous versions of the MOU.
    The FHWA will consider the comments submitted on the proposed MOU 
when making its decision on whether to execute this renewal MOU. The 
FHWA will make the final, executed MOU publicly available.

(Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.)


    Authority:  23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 
40 CFR 1507.3, 1508.4.

    Issued on: July 27, 2015.
Sandra A. Garcia-Aline,
Division Administrator, Juneau, Alaska.
[FR Doc. 2015-18958 Filed 7-31-15; 8:45 am]
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