Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

Michael T. Leary
Federal Highway Administration
July 29, 2013

[Federal Register Volume 78, Number 145 (Monday, July 29, 2013)]
[Notices]
[Pages 45599-45600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18115]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA--2013-0040]

Proposed Memorandum of Understanding (MOU) Assigning
Environmental Responsibilities to the State of Texas for Categorical
Exclusions

AGENCY: Federal Highway Administration (FHWA), Texas Division Office,
DOT.

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that the FHWA and the Texas Department
of Transportation (State) have developed a proposed MOU, pursuant to 23
U.S.C. 326, under which the FHWA would assign to the State the FHWA's
responsibility for determining whether a project is categorically
excluded from preparation of an environmental assessment or an
environmental impact statement under the National Environmental Policy
Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), and for carrying out
certain other responsibilities for conducting environmental reviews,
consultations, and related activities for Federal-aid highway projects.
The public is invited to comment on any aspect of the proposed MOU,
including the proposed designations of categorical exclusions and scope
of environmental review, consultation and other activities to be
assigned.

DATES: Please submit comments by August 28, 2013.

ADDRESSES: You may submit comments, identified by DOT Document
Management System (DMS) Docket Number FHWA-2013-0040, by any of the
methods described below. Electronic or facsimile comments are preferred
because Federal offices experience intermittent mail delays from
security screening.
1. Web site: http://www.regulations.gov. Follow the instructions
for submitting comments on the DOT electronic docket site.
2. Facsimile (Fax): 1-202-493-2251.
3. Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590.
4. Hand Delivery: 1200 New Jersey Ave. 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.

FOR FURTHER INFORMATION CONTACT:
Michael T. Leary, Director of Planning and Program Development, Federal
Highway Administration Texas Division, 300 E. 8 St., Room 826, Austin,
TX 78701, 7:00 a.m.--4:30 p.m. (CST), (512) 536-5940,
michael.leary@dot.gov.
Carlos H. Swonke, P.G., Director Environmental Affairs Division, Texas
Department of Transportation, 125 E. 11th St., Austin, TX 78701, 8:00
a.m.--5: p.m. (CST), (512) 416-2734, carlos.swonke@txdot.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this notice may be downloaded using a
computer, modem and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
home page at http://www.archives.gov and the Government Printing
Office's Web site at http://www.access.gpo.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, United States Code (23 U.S.C. 326), allows
the Secretary of the DOT (Secretary), to assign, and a State to assume,
responsibility for determining whether certain designated activities
are included within classes of action that are categorically excluded
from requirements for environmental assessments or environmental impact
statements pursuant to regulations promulgated by the Council on
Environmental Quality under part 1500 of title 40, Code of Federal
Regulations (CFR) (as in effect on October 1, 2003). The FHWA is
authorized to act on behalf of the Secretary with respect to these
matters.
Under the proposed MOU, the FHWA would assign to the State the
responsibility for making decisions on the following types of
categorical exclusions:
1. Activities listed in 23 CFR 771.117(c);
2. Activities listed in 23 CFR 771.117(d).
The assignment also would give the State the responsibility to
conduct the following environmental review, consultation, and other
related activities:

1. Air Quality

Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Any
determinations that do not involve conformity.

2. Noise

Compliance with the noise regulations in 23 CFR 772.

3. Wildlife

Section 7 of the Endangered Species Act of 1973, 16 U.S.C.
1531-1544, and Section 1536
Marine Mammal Protection Act, 16 U.S.C. 1361
Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g
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

[[Page 45600]]

1976, as amended, 16 U.S.C. 1801 et seq., with Essential Fish Habitat
requirements at 1855(b)(1)(B)

4. Historic and Cultural Resources

Section 106 of the National Historic Preservation Act of 1966,
as amended, 16 U.S.C. 470(f) 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 1977, 16 U.S.C.
470(aa)-11
Archeological and Historic Preservation Act of 1966, as
amended, 16 U.S.C. 469-469(c)
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-30131

5. Social and Economic Impacts

American Indian Religious Freedom Act, 42 U.S.C. 19961
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

6. Water Resources and Wetlands

Clean Water Act, 33 U.S.C. 1251-1377
- Section 404, Section 401, Section 319
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1465
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.
401-406
Section 9 of the Rivers and Harbors Act of 1899,(General
Bridge Act) Navigability Determinations and Lighting Exemption Waivers
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133
(b)(11)
Flood Disaster Protection Act, 42 U.S.C. 4001-4128

7. Parklands

Section 4(f) of the Department of Transportation Act of 1966,
49 U.S.C. 303
Land and Water Conservation Fund (LWCF) Act, 16 U.S.C. 4601-4

8. Hazardous Materials

Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act of 1986 (SARA)
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k

9. 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. 13112, Invasive Species

The MOU would allow 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 listed laws and executive
orders. The State will continue to handle routine consultations with
the tribes and understands that a tribe has the right to direct
consultation with the FHWA upon request. The State also may assist the
FHWA with formal consultations, with consent of a tribe, but the FHWA
remains responsible for the consultation.
A copy of the proposed MOU may be viewed on the DOT DMS Docket, as
described above, or may be obtained by contacting the FHWA or the State
at the addresses provided above. A copy also may be viewed on the
State's Web site at www.txdot.gov.
The FHWA Texas Division, in consultation with FHWA Headquarters,
will consider the comments submitted when making its decision on the
proposed MOU revision. Any final MOU approved by FHWA may include
changes based on comments and consultations relating to the proposed
MOU. Once the FHWA makes a decision on the proposed MOU, the FHWA will
place in the DOT DMS Docket a statement describing the outcome of the
decision-making process and a copy of any final MOU. Copies of those
documents also may be obtained by contacting the FHWA or the State at
the addresses provided above, or by viewing the documents at the
State's Web site at www.txdot.gov.
(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 24, 2013.
Michael T. Leary,
Director of Planning and Program Development, FHWA, Austin, Texas.
[FR Doc. 2013-18115 Filed 7-26-13; 8:45 am]
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