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

American Government Special Collections Reference Desk

American Government

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

Mike Duman
Federal Highway Administration
11 April 2016


[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Notices]
[Pages 21441-21442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08242]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2016-0007]


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

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed renewed MOU, request for comments.

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SUMMARY: The FHWA and the State of California acting by and through its 
Department of Transportation (Caltrans), propose a renewal of the 
State's participation in the 23 U.S.C. 326 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. An amended MOU would renew the 
State's participation in the program. The MOU will be amended by 
incorporating the following change: FHWA may terminate the State's 
participation in this program if FHWA provides the State a notification 
of non-compliance, and a period of not less than 120 days to take 
corrective action as FHWA determines necessary, and if the State fails 
to take satisfactory corrective action as determined by FHWA.

DATES: Comments must be received on or before May 11, 2016.

ADDRESSES: You may submit comments by any of the methods described 
below. To ensure that you do not duplicate your submissions, please 
submit them by only one of the means below. Electronic or facsimile 
comments are preferred because Federal offices experience intermittent 
mail delays due to 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 (FHWA-2016-0007).
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Avenue 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 Avenue 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: 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

    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov/ and the Government Printing 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 Federal 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 (NEPA), 42 U.S.C. 4321 et seq. In addition, this program allows 
the assignment of other environmental review requirements applicable to 
Federal highway projects. The Secretary delegated his authority to 
FHWA, which acts on behalf of the Secretary with respect to these 
matters. Through an amended Memorandum of Understanding (MOU), FHWA 
would renew California's participation in this program for a third 
time. The original MOU became effective on June 7, 2007, for an initial 
term of three (3) years. The first renewal followed on June 7, 2010, 
and the second renewal followed on June 7, 2013. The proposed third MOU 
renewal would supersede the second renewed MOU prior to its expiration 
date on June 7, 2016. Stipulation I(B) of the MOU describes the types 
of actions for which the State would assume project-level 
responsibility for determining whether the criteria for a CE are met. 
The FHWA would assign statewide decision-making responsibility for all 
activities within the categories listed in 23 CFR 771.117(c) and those 
listed as examples in 23 CFR 771.117(d), in addition to other CEs 
identified in associated Appendix A. In addition to the NEPA CE 
determination responsibilities, the MOU would assign to the State the 
following FHWA responsibilities for environmental review, consultation, 
or other related actions required under Federal laws and Executive 
Orders applicable to CE projects:

Air Quality

 Clean Air Act, 42 U.S.C. 7401-7671q. Determinations for 
project-level conformity if required for the project.

Noise

 Noise Control Act of 1972, 42 U.S.C. 4901-4918

[[Page 21442]]

 FHWA noise regulations at 23 CFR part 772

Wildlife

 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

Historic and Cultural Resources

 National Historic Preservation Act of 1966, as amended, 54 
U.S.C. 300101 et seq.
 Archeological Resources Protection Act of 1979,16 U.S.C. 
470aa-470mm
 Archeological and Historic Preservation Act, 16 U.S.C. 469-
469c
 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 319, 401, and 
404)
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1466
 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. 3901 and 3921
 Wetlands Mitigation 23 U.S.C. 119(g) and 133(b)(14)
 FHWA wetland and natural habitat mitigation regulations at 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4130

Parklands and Other Special Land Uses

 Section 4(f), 23 U.S.C. 138 and 49 U.S.C. 303
 FHWA/FTA Section 4(f) Regulations at 23 CFR part 774
 Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11

Hazardous Materials

 Comprehensive Environmental Response, Compensation, and 
Liability Act, 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act of 1986, 42 
U.S.C. 9671-9675
 Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k

Executive Orders Relating to Highway Projects

 E.O. 11990--Protection of Wetlands
 E.O. 11988--Floodplain Management, as amended by E.O. 13690--
Establishing a Federal Flood Risk Management Standard and a Process for 
Further Soliciting and Considering Stakeholder Input
 E.O. 12898--Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations
 E.O. 13112--Invasive Species

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.

    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 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 California the 
obligation to fulfill the assigned environmental responsibilities on 
any proposed project 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.
    This is the proposed third renewal of the State's participation in 
the program and incorporates changes in the termination process from 
the Fixing America's Surface Transportation (FAST) Act, Public Law 114-
94,129 Stat. 1312 (Dec. 4, 2015). Section 1307 of the FAST Act amended 
23 U.S.C. 326 to allow FHWA to terminate the State's participation in 
this program if FHWA provides the State a notification of non-
compliance and a period of not less than 120 days to take corrective 
action as FHWA determines necessary, and if the State fails to take 
satisfactory corrective action as determined by FHWA. In previous 
versions of the MOU the period for the State to take corrective action 
was 30 days.
    The FHWA will consider the comments submitted on the proposed MOU 
when making its decision on whether to execute this renewal 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; 
49 CFR 1.85; 40 CFR 1507.3, 1508.4.

Mike Duman,
California Chief Operating Officer, Federal Highway Administration.
[FR Doc. 2016-08242 Filed 4-8-16; 8:45 am]
 BILLING CODE 4910-22-P
 

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