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

Karla S. Petty
Federal Highway Administration
24 October 2017

[Federal Register Volume 82, Number 204 (Tuesday, October 24, 2017)]
[Notices]
[Pages 49258-49260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23011]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2017-0044]


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

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed MOU; request for comments.

-----------------------------------------------------------------------

SUMMARY: The FHWA and the State of Arizona, acting by and through its 
Department of Transportation (State), propose participation of the 
State in the Categorical Exclusion Assignment 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.

DATES: Comments must be received on or before November 24, 2017.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2017-0044], by any of the 
methods described below. To ensure that you do not duplicate your

[[Page 49259]]

submissions, please submit them by only one of the means below. 
Electronic or facsimile comments are preferred because Federal offices 
experience intermittent mail delays from security screening.
    Federal eRulemaking Portal: Go to 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 Avenue SE., Washington, DC 20590 
between 9 a.m. and 5 p.m., Eastern Time, 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., Eastern Time, Monday 
through Friday, except for 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 FHWA: Alan Hansen; by email at 
alan.hansen@dot.gov or by telephone at 602-382-8964. The FHWA Arizona's 
Division Office's normal business hours are 8 a.m. to 4:30 p.m. 
(Arizona Time), Monday-Friday, except for Federal Holidays. For State 
of Arizona: Joanie Cady; by email at JCady@azdot.gov; by telephone at 
(602) 712-8633. The Arizona Department of Transportation's business 
hours are 8 a.m. to 5 p.m. (Arizona 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 Publishing 
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 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 
Federal highway projects. The FHWA is authorized to act on behalf of 
the Secretary with respect to these matters.
    FHWA would execute Arizona's participation in this program through 
an MOU. 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), and any activities added 
through FHWA rulemaking to those listed in 23 CFR 771.117(c) or example 
activities listed in 23 CFR 771.117(d) after the date of the execution 
of this MOU. 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:
     Clean Air Act (CAA), 42 U.S.C. 7401-7671q (determinations 
of project-level conformity if required for the project);
     Noise Control Act of 1972, 42 U.S.C. 4901-4918;
     Compliance with the noise regulations in 23 CFR part 772 
(except approval of the State noise policy in accordance with 23 CFR 
772.7);
     Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and 1536;
     Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d;
     Migratory Bird Treaty Act, 16 U.S.C. 703-712;
     Section 106 of the National Historic Preservation Act of 
1966, as amended, 54 U.S.C. 306108;
     Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa, et seq.;
     Section 4(f) of the U.S. Department of Transportation Act 
of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774;
     Preservation of Historical and Archeological Data, 54 
U.S.C. 312501-312508;
     Native American Grave Protection and Repatriation Act, 25 
U.S.C. 3001-3013; 18 U.S.C. 1170;
     American Indian Religious Freedom Act, 42 U.S.C. 1996;
     Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209;
     Clean Water Act, 33 U.S.C. 1251-1377;
     Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6;
     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. 3921-3931;
     Flood Disaster Protection Act, 42 U.S.C. 4001-4128;
     FHWA wetland and natural habitat mitigation regulations at 
23 CFR part 777;
     Land and Water Conservation Fund (LWCF), Public Law 88-
578, 78 Stat. 897 (known as section 6(f));
     Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675;
     Superfund Amendments and Reauthorization Act of 1986 
(SARA), 42 U.S.C. 9671-9675;
     Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 
6901-6992k;
     Landscaping and Scenic Enhancement (Wildflowers), 23 
U.S.C. 319;
     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. 11593, Protection and Enhancement of Cultural 
Resources;
     E.O. 13007, Indian Sacred Sites;
     E.O. 13112, Invasive Species;
     Planning and Environmental Linkages, 23 U.S.C. 168, except 
for those FHWA responsibilities associated with 23 U.S.C. 134 and 135;
     Programmatic Mitigation Plans, 23 U.S.C. 169 except for 
those FHWA responsibilities associated with 23 U.S.C. 134 and 135.
    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,

[[Page 49260]]

but the FHWA remains responsible for the consultation.
    This assignment includes transfer to the State of Arizona 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.
    The FHWA will consider the comments submitted on the proposed MOU 
when making its decision on whether to execute this 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: October 18, 2017.
Karla S. Petty,
Division Administrator.
[FR Doc. 2017-23011 Filed 10-23-17; 8:45 am]
BILLING CODE 4910-22-P