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Renewal Package From the State of California to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

American Government Special Collections Reference Desk

American Government

Renewal Package From the State of California to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

Gregory G. Nadeau
Federal Highway Administration
16 November 2016


[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)]
[Notices]
[Pages 80708-80710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27502]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2016-0019]


Renewal Package From the State of California to the Surface 
Transportation Project Delivery Program and Proposed Memorandum of 
Understanding (MOU) Assigning Environmental Responsibilities to the 
State

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (USDOT).

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the California Department of Transportation 
(Caltrans) requesting renewed participation in the Surface 
Transportation Project Delivery Program (Program). This Program allows 
for FHWA to assign, and States to assume, responsibilities under the 
National Environmental Policy Act (NEPA), and all or part of FHWA's 
responsibilities for environmental review, consultation, or other 
actions required under any Federal environmental law with respect to 
one or more Federal highway projects within the State. The FHWA has 
determined the renewal package to be complete, and developed a draft 
renewal MOU with Caltrans outlining how the State will implement the 
program with FHWA oversight. The public is invited to comment on 
Caltrans' request, including its renewal package and the proposed 
renewal MOU, which includes the proposed assignments and assumptions of 
environmental review, consultation and other activities.

DATES: Please submit comments by December 16, 2016.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Facsimile (Fax): 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE., Washington, DC 20590 between 9:00 a.m. and 
5:00 p.m. e.t., Monday through Friday, except Federal holidays.
    Instructions: You must include the agency name and docket number at 
the beginning of your comments. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Shawn Oliver by email 
at: shawn.oliver@dot.gov or by telephone at (916) 498-5048. The FHWA 
California Division Office's normal business hours are 8 a.m. to 4:30 
p.m. (Pacific Time), Monday-Friday, except for Federal holidays. For 
the State of California: Tammy Massengale by email at 
tammy.massengale@dot.ca.gov or by telephone at (916) 653-5157. State 
business hours are the same as above although State holidays may not 
completely coincide with Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    An electronic copy of this notice may be downloaded from the 
Federal Register's home page at http://www.archives.gov. An electronic 
version of the application materials and proposed MOU may be downloaded 
by accessing the DOT DMS docket, as described above, at http://www.regulations.gov/.

Background

    Section 327 of title 23, United States Code (23 U.S.C. 327), allows 
the Secretary of the DOT (Secretary) to assign, and a State to assume, 
the responsibilities under the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321 et seq.) and all or part of the 
responsibilities for environmental review, consultation, or other 
actions required under certain Federal environmental laws with respect 
to one or more Federal-aid highway projects within the State. The FHWA 
is authorized to act on behalf of the Secretary with respect to these 
matters.
    Caltrans entered the Surface Transportation Project Delivery Pilot

[[Page 80709]]

Program on July 1, 2007, after submitting its application to FHWA, 
obtaining FHWA's approval, and entering into a Memorandum of 
Understanding (MOU) in accordance with Section 6005 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (Pub. L. 109-59, 119 Stat. 1898) (23 U.S.C. 327) and FHWA's 
application regulations for the pilot program (the original 23 CFR part 
773). On July 6, 2012, President Obama signed into law the Moving Ahead 
for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 
Stat. 545-547). Section 1313 of MAP-21 made the Program permanent, 
required that the MOU between FHWA and a State have a term of not more 
than 5 years, and allowed FHWA to renew a States' participation in the 
Program. The MAP-21 also required the Secretary to amend, as 
appropriate, the Program's application regulations to account for the 
amendments to the Program. On September 25, 2012, FHWA and Caltrans 
entered into a MOU allowing Caltrans to continue to participate in the 
Program under the terms of the existing MOU until 18 months from the 
effective date of the final Program application regulations. This 
timeframe would allow enough time for the U.S. Department of 
Transportation to develop the process for renewing a State's 
participation and for Caltrans to follow any steps required by the new 
regulations. The final rule establishing the revised Program 
application and the renewal process (the amended 23 CFR part 773) 
became effective on October 16, 2014, making April 16, 2016, the 
expiration date for Caltrans' participation under the existing MOU.
    On June 22, 2015, after coordination with FHWA, Caltrans submitted 
the renewal package in accordance with the renewal regulations in 23 
CFR 773.115. On December 4, 2015, President Obama signed into law the 
Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94, 
129 Stat. 1390-1392) making further amendments to the Program. On April 
1, 2016, FHWA extended the terms of the NEPA Assignment MOU from the 
expiration date of April 16, 2016, to December 31, 2016, to allow 
additional time for the negotiation of the terms of the renewal MOU to 
be consistent with the changes in the FAST Act. This extension was 
authorized under 23 CFR 773.115(h).
    Under the proposed renewal MOU, FHWA would assign to the State, 
through Caltrans, the responsibility for making decisions on the 
following types of highway projects:
    1. All Class I, or environmental impact statement (EIS) projects, 
both on the State highway system (SHS) and local government projects 
off the SHS that are funded by FHWA or require FHWA approvals. This 
assignment does not include the environmental review associated with 
the development and approval of the Draft EIS, Final EIS, and ROD for 
the following project: District 1: Eureka/Arcata Corridor Improvement.
    2. All Class II, or categorically excluded (CE), projects, both on 
the SHS and local government projects off the SHS that are funded by 
FHWA or require FHWA approvals, and that do not qualify for assignment 
of responsibilities pursuant to the MOU for environmental reviews and 
decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326 
program.
    3. All Class III, or environmental assessment (EA) projects, both 
on the SHS and local government projects off the SHS that are funded by 
FHWA or require FHWA approvals with the exception of the following 
projects: District 5: Highway 1 Congestion Management-Santa Cruz HOV 
Lanes and District 9: Inyo-395 Olancha to Cartago 4 Lane.
    4. Projects funded by other Federal agencies [or projects without 
any Federal funding] of any Class that also include funding by FHWA or 
require FHWA approvals. For these projects, Caltrans would not assume 
the NEPA responsibilities of other Federal agencies.
    Excluded from assignment are highway projects authorized under 23 
U.S.C. 202 and 203, highway projects under 23 U.S.C. 204 unless the 
project will be designed and constructed by Caltrans, projects that 
cross State boundaries, and projects that cross or are adjacent to 
international boundaries.
    The assignment also would give Caltrans the responsibility to 
conduct the following environmental review, consultation, and other 
related activities:

Air Quality

 Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception 
of any project level conformity determinations

Noise

 Noise Control Act of 1972, 42 U.S.C. 4901-4918
 Compliance with the noise regulations in 23 CFR 772

Wildlife

 Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544
 Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
 Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
 Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
 Migratory Bird Treaty Act, 16 U.S.C. 703-712
 Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d et seq., with Essential Fish 
Habitat requirements at 1855(b)(2)

Hazardous Materials Management

 Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. 
9671-9675
 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k

Historic and Cultural Resources

 Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306101 et seq.
 23 U.S.C. 138 and Section 4(f) of the Department of 
Transportation Act of 1966, 49 U.S.C. 303 and implementing regulations 
at 23 CFR part 774
 Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-470mm
 Title 54, Chapter 31--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-30131; 18 U.S.C. 1170

Social and Economic Impacts

 American Indian Religious Freedom Act, 42 U.S.C. 1996
 Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

 Clean Water Act, 33 U.S.C. 1251-1387 (Section 404, Section 
401, Section 319)
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1466
 Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
 Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
 Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777

[[Page 80710]]

 Flood Disaster Protection Act, 42 U.S.C. 4001-4130

Parklands

 Section 4(f) of the Department of Transportation Act of 1966, 
49 U.S.C. 303
 Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310

FHWA-Specific

 Planning and Environmental Linkages, 23 U.S.C. 168, with the 
exception of those FHWA responsibilities associated with 23 U.S.C. 134 
and 135
 Programmatic Mitigation Plans, 23 U.S.C. 169 with the 
exception of those FHWA responsibilities associated with 23 U.S.C. 134 
and 135

Executive Orders Relating to Highway Projects

 E.O. 11990, Protection of Wetlands
 E.O. 11988, Floodplain Management (except approving design 
standards and determinations that a significant encroachment is the 
only practicable alternative under 23 CFR 650.113 and 650.115)
 E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
 E.O. 13112, Invasive Species

    The proposed renewal MOU would allow Caltrans to continue to act in 
the place of FHWA in carrying out the environmental review-related 
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 listed laws and executive orders. 
Caltrans will continue to handle routine consultations with the tribes 
and understands that a tribe has the right to direct consultation with 
FHWA upon request. Caltrans also may assist FHWA with formal 
consultations, with consent of a tribe, but FHWA remains responsible 
for the consultation. The FHWA and Caltrans have received requests for 
formal consultations with several tribes regarding the proposed renewal 
of the MOU and currently are engaged in ongoing consultations. Caltrans 
also will not assume FHWA's responsibilities for conformity 
determinations required under Section 176 of the Clean Air Act (42 
U.S.C. 7506) or any responsibility under 23 U.S.C. 134 or 135, or under 
49 U.S.C. 5303 or 5304.
    The MOU content reflects Caltrans' desire to continue its 
participation in the Program without any changes (that is, no new 
responsibilities were requested). The FHWA and Caltrans have agreed to 
modify some of the provisions in the MOU to: Establish the monitoring 
process required by the permanent Program; accommodate changes 
specified in Section 1308 of the FAST Act; clarify, the role of the 
Department of Justice and FHWA in settlements and appeals; and to make 
the renewed MOU notice and review time frames consistent with other 
States in this program. The FHWA and Caltrans have also agreed on a 
process to address a possible temporary lapse in the State's statutory 
consent to Federal court jurisdiction and waiver of sovereign immunity 
waiver. If the State does not provide consent to Federal court 
jurisdiction and waive sovereign immunity by December 31, 2016, this 
MOU will be suspended and Caltrans will not be able to make any NEPA 
decisions or implement any of the environmental review responsibilities 
assigned under the MOU. The FHWA and Caltrans propose a temporary 
suspension not to exceed 90 days to provide time for the State to 
address the deficiency. In the event that the State does not take the 
necessary action and Caltrans does not provide adequate certification 
within the time period provided, the State's participation in the 
Program will be terminated.
    A copy of the proposed renewal MOU and renewal package may be 
viewed on the DOT DMS Docket, as described above, or may be obtained by 
contacting FHWA or the State at the addresses provided above. A copy 
also may be viewed on Caltrans' Web site at http://www.dot.ca.gov/hq/env/nepa/. The FHWA California Division, in consultation with FHWA 
Headquarters, will consider the comments submitted when making its 
decision on the proposed MOU revision. Any final renewal MOU approved 
by FHWA may include changes based on comments and consultations 
relating to the proposed renewal MOU and will be made 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. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 
40 CFR 1507.3, 1508.4.

    Dated: November 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-27502 Filed 11-15-16; 8:45 am]
 BILLING CODE 4910-22-P

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