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

Joseph A. Werning
Federal Highway Administration
11 August 2021

[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Notices]
[Pages 44130-44132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17112]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2021-0012]


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

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed first renewal of MOU; request for comments.

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SUMMARY: The FHWA and the State of Nebraska, acting by and through its 
Department of Transportation (State), propose renewing the MOU 
providing participation of the State in the Categorical Exclusion 
Assignment program. This program allows FHWA to assign its authority 
and responsibility for determining whether certain designated 
activities within the

[[Page 44131]]

geographic boundaries of the State, as specified in the proposed 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 September 10, 2021.

ADDRESSES: You may submit comments, identified by Docket Number FHWA-
2021-0012, by any of the methods described below. To ensure that you do 
not duplicate your 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.
     Mail: U.S. Department of Transportation, Docket 
Operations, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 
20590-0001.
     Hand Delivery or Courier: U.S. Department of 
Transportation, Docket Operations, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9:00 a.m. 
and 5:00 p.m. ET, except Federal holidays.
     Fax: (202) 493-2251.
    Instructions: You must include the agency name and docket number 
FHWA-2021-0012 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: Melissa Maiefski; by email 
at Melissa.Maiefski@dot.gov or by telephone at 402-742-8473. The 
Nebraska Division Office's normal business hours are 8 a.m. to 5 p.m. 
(Central Standard Time), Monday through Friday, except Federal 
holidays. For the State of Nebraska: Brandie Neemann: by email at 
Brandie.Neemann@nebraska.gov or by telephone at 402-479-4795. The 
Nebraska Department of Transportation's business hours are 8 a.m. to 5 
p.m. (Central Standard Time), Monday through Friday, except State and 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document, a complete copy of the proposed first renewal MOU, 
background documents, and comments received may be viewed online 
through the Federal eRulemaking portal at http://www.regulations.gov. 
The website is available 24 hours each day, 365 days each year. An 
electronic copy of this document may also be downloaded by accessing 
the Office of the Federal Register's website at www.federalregister.gov 
and the Government Publishing Office's website at www.govinfo.gov.

Background

    Section 326 of Title 23, United States Code (U.S.C.), creates a 
program that allows the Secretary of the U.S. Department of 
Transportation (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.
    The FHWA would execute the first renewal of Nebraska's 
participation in this program through an MOU. Statewide decision making 
responsibility would be assigned for all activities identified in the 
MOU within the categories listed in 23 CFR 771.117(c) and those listed 
as examples in 23 CFR 771.111(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. Including 
determinations for project-level conformity if required for the 
project, except as specified in Stipulation II.B.2 of the MOU
     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
 Bald and Golden Eagle Treaty Act, as amended, 16 U.S.C. 668-
668c
 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-mm.
 Title 54, Chapter 3125--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
 Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774, except as specified 
in Stipulation II.B.2 of the MOU
 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, Sections 401, 404, and 
319
 Rivers and Harbors Act of 1899, 33 U.S.C. 403
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(3)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4128
 Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
 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. 13175 Consultation and Coordination with Indian Tribal 
Governments

[[Page 44132]]

 E.O. 13122 and E.O. 13751, 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 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 may also assist FHWA with formal consultations, with 
consent of a tribe, but FHWA remains responsible for the consultation.
    This assignment includes transfer to the State of Nebraska the 
obligation to fulfill the assigned environmental responsibilities on 
any proposed projects meeting the criteria in Stipulation 1(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 first 
renewal 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.

Joseph A. Werning,
Division Administrator, Federal Highway Administration.
[FR Doc. 2021-17112 Filed 8-10-21; 8:45 am]
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