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Renewal Package From the State of Utah to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State Publication: Federal Register Agency: Federal Highway Administration Byline: Stephanie Pollack Date: 19 April 2022 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23307-23309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08291]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2022-0006]
Renewal Package From the State of Utah to the Surface
Transportation Project Delivery Program and Proposed Memorandum of
Understanding (MOU) Assigning Environmental Responsibilities to the
State
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
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 Utah Department of Transportation (UDOT)
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 determined the renewal package to
be complete and developed a draft renewal MOU with UDOT outlining how
the State will implement the Program with FHWA oversight. The public is
invited to comment on UDOT's 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 May 19, 2022.
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 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 www.regulations.gov, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: For FHWA: Ed Woolford by email at:
Edward.Woolford@dot.gov or by telephone at (801) 955-3524. The FHWA
Utah Division Office's normal business hours are 7:30 a.m. to 4:30 p.m.
(Mountain Time), Monday-Friday, except for Federal holidays. For the
State of Utah: Brandon Weston by email at: brandonweston@utah.gov or by
telephone at (801) 965-4603. State business hours are 8 a.m. to 5 p.m.,
Monday-Friday, except for State holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
Federal Register's home page at www.archives.gov. An electronic version
of the application materials and proposed MOU may be downloaded by
accessing the DOT docket, as described above, at www.regulations.gov/.
Background
Section 327 of Title 23, United States Code (U.S.C.), allows the
Secretary of the DOT to assign, and a State to assume, the
responsibilities under the 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.
The UDOT entered the Program on January 17, 2017, after submitting
its application to FHWA, obtaining FHWA's approval, and entering into a
MOU in accordance with 23 U.S.C. 327 and FHWA's application regulations
for the Program (the original 23 CFR part 773).
On November 16, 2016, FHWA published a notice of UDOT's draft MOU
in the Federal Register to solicit the view of the public and Federal
agencies on FHWA's preliminary decision to approve the application.
Following the comment period, FHWA and UDOT considered comments and
proceeded to execute the MOU (2017 MOU). Effective January 17, 2017,
UDOT assumed FHWA's responsibilities under NEPA, and the
responsibilities for reviews under other Federal environmental
requirements.
On July 21, 2021, after coordination with FHWA, UDOT submitted a
renewal package in accordance with the renewal regulations in 23 CFR
773.115. On November 18, 2021, UDOT requested an extension to the 2017
MOU in order to allow further discussion between the parties on the new
language for the renewal MOU. In a letter dated December 8, 2021, FHWA
granted an extension of the MOU until April 29, 2022. Under the
proposed renewal MOU, FHWA would assign to the State, through UDOT, the
responsibility for making decisions on the following types of highway
projects:
1. All Class I, or environmental impact statement projects, both on
the State highway system (SHS) and Local Agency Program (LAP) projects
off the SHS that are funded by FHWA or require FHWA approvals.
2. All Class II, or categorically excluded projects, both on the
SHS and LAP 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
[[Page 23308]]
decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326
program.
3. All Class III, or environmental assessment projects, both on the
SHS and LAP projects off the SHS that are funded by FHWA or require
FHWA approvals.
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 and meet the definition of a highway project
found at 23 CFR 773.103. For these projects, UDOT would not assume the
NEPA responsibilities of other Federal agencies. However, UDOT may use
or adopt other Federal agencies' NEPA analyses consistent with 40 CFR
1500-1508, and DOT and FHWA regulations, policies, and guidance.
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 UDOT; projects that cross
State boundaries; projects that cross or are adjacent to international
boundaries; and any projects that may be designed and constructed by
FHWA under a 23 U.S.C. 308 agreement between the FHWA Central Federal
Lands Highway Division and UDOT.
The assignment also would give UDOT 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 (42 U.S.C. 7506).
Noise
Noise Control Act of 1972, 42 U.S.C. 4901-4918
Compliance with the noise regulations in 23 CFR part 772
Wildlife
Endangered Species Act of 1973, 16 U.S.C. 1531-1544
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 Protection Act, 16 U.S.C. 668-668d
Hazardous Materials Management
Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act, 42 U.S.C. 9671-
9675
Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k
Historic and Cultural Resources
National Historic Preservation Act of 1966, as amended, 54
U.S.C. 306101, et seq.
Archeological and Historic Preservation Act of 1966, as
amended 16 U.S.C. 470aa-479mm
Title 54, Chapter 3125, 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
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act, 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1387 (Sections 401, 402 404,
408, and Section 319)
Safe Drinking Water Act, 42 U.S.C. 300f-300j-26
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
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
General Bridge Act of 1946, 33 U.S.C. 525-533
FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
Parklands
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
Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310
FHWA-Specific
Planning and Environment 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 (E.O.) 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, as amended by E.O. 13751,
Safeguarding the Nation from the Impacts of Invasive Species.
E.O. 13985--Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government
E.O. 13990--Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis
E.O. 14008--Tackling the Climate Crisis at Home and Abroad
Other E.O.'s not listed, but related to highway projects.
The proposed renewal MOU would allow UDOT 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 E.O.s. The UDOT will
continue to handle routine consultations with the Tribes and
understands that a Tribe has the right to direct consultation with FHWA
upon request. The UDOT also may assist FHWA with formal consultations,
with consent of a Tribe, but FHWA remains responsible for the
consultation. The UDOT also will not assume FHWA's responsibilities for
conformity determinations required under Section 176 of the CAA (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 UDOT's desire to continue its
participation in the Program. The FHWA and UDOT have agreed to modify
some of the provisions in the MOU to, among other things: Clarify the
categories of projects for which UDOT is assigned responsibility,
designate a Senior Agency Official at UDOT consistent with 40 CFR
1508.1(dd); remove projects for which FHWA retained responsibilities
for environmental review following a NEPA decision; remove auditing
requirements; revise monitoring requirements; update record retention
requirements; provide for enhanced reporting to FHWA on issues
including environmental justice analysis and associated mitigation,
[[Page 23309]]
where applicable; revise provisions related to data and information
requests; and revise provisions related to FHWA-initiated withdrawal of
assigned projects.
A copy of the proposed renewal MOU and renewal package may be
viewed on the DOT 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 UDOT's website at https://www.udot.utah.gov/connect/about-us/program-development-group/environmental-division/.
The FHWA Utah 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 E.O.
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 773; 40 CFR
1507.3, 1508.4.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-08291 Filed 4-18-22; 8:45 am]
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