Renewal Package From the State of California to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State |
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Gregory G. Nadeau
Federal Highway Administration
16 November 2016
[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)]
[Notices]
[Pages 80708-80710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27502]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2016-0019]
Renewal Package From the State of California to the Surface
Transportation Project Delivery Program and Proposed Memorandum of
Understanding (MOU) Assigning Environmental Responsibilities to the
State
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (USDOT).
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 California Department of Transportation
(Caltrans) 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 has
determined the renewal package to be complete, and developed a draft
renewal MOU with Caltrans outlining how the State will implement the
program with FHWA oversight. The public is invited to comment on
Caltrans' 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 December 16, 2016.
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 http://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 http://www.regulations.gov, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: For the 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
An electronic copy of this notice may be downloaded from the
Federal Register's home page at http://www.archives.gov. An electronic
version of the application materials and proposed MOU may be downloaded
by accessing the DOT DMS docket, as described above, at http://www.regulations.gov/.
Background
Section 327 of title 23, United States Code (23 U.S.C. 327), allows
the Secretary of the DOT (Secretary) to assign, and a State to assume,
the responsibilities under the National Environmental Policy Act of
1969 (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.
Caltrans entered the Surface Transportation Project Delivery Pilot
[[Page 80709]]
Program on July 1, 2007, after submitting its application to FHWA,
obtaining FHWA's approval, and entering into a Memorandum of
Understanding (MOU) in accordance with Section 6005 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (Pub. L. 109-59, 119 Stat. 1898) (23 U.S.C. 327) and FHWA's
application regulations for the pilot program (the original 23 CFR part
773). On July 6, 2012, President Obama signed into law the Moving Ahead
for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126
Stat. 545-547). Section 1313 of MAP-21 made the Program permanent,
required that the MOU between FHWA and a State have a term of not more
than 5 years, and allowed FHWA to renew a States' participation in the
Program. The MAP-21 also required the Secretary to amend, as
appropriate, the Program's application regulations to account for the
amendments to the Program. On September 25, 2012, FHWA and Caltrans
entered into a MOU allowing Caltrans to continue to participate in the
Program under the terms of the existing MOU until 18 months from the
effective date of the final Program application regulations. This
timeframe would allow enough time for the U.S. Department of
Transportation to develop the process for renewing a State's
participation and for Caltrans to follow any steps required by the new
regulations. The final rule establishing the revised Program
application and the renewal process (the amended 23 CFR part 773)
became effective on October 16, 2014, making April 16, 2016, the
expiration date for Caltrans' participation under the existing MOU.
On June 22, 2015, after coordination with FHWA, Caltrans submitted
the renewal package in accordance with the renewal regulations in 23
CFR 773.115. On December 4, 2015, President Obama signed into law the
Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94,
129 Stat. 1390-1392) making further amendments to the Program. On April
1, 2016, FHWA extended the terms of the NEPA Assignment MOU from the
expiration date of April 16, 2016, to December 31, 2016, to allow
additional time for the negotiation of the terms of the renewal MOU to
be consistent with the changes in the FAST Act. This extension was
authorized under 23 CFR 773.115(h).
Under the proposed renewal MOU, FHWA would assign to the State,
through Caltrans, the responsibility for making decisions on the
following types of highway projects:
1. All Class I, or environmental impact statement (EIS) projects,
both on the State highway system (SHS) and local government projects
off the SHS that are funded by FHWA or require FHWA approvals. This
assignment does not include the environmental review associated with
the development and approval of the Draft EIS, Final EIS, and ROD for
the following project: District 1: Eureka/Arcata Corridor Improvement.
2. All Class II, or categorically excluded (CE), projects, both on
the SHS and local government 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
decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326
program.
3. All Class III, or environmental assessment (EA) projects, both
on the SHS and local government projects off the SHS that are funded by
FHWA or require FHWA approvals with the exception of the following
projects: District 5: Highway 1 Congestion Management-Santa Cruz HOV
Lanes and District 9: Inyo-395 Olancha to Cartago 4 Lane.
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. For these projects, Caltrans would not assume
the NEPA responsibilities of other Federal agencies.
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 Caltrans, projects that
cross State boundaries, and projects that cross or are adjacent to
international boundaries.
The assignment also would give Caltrans 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
Noise
Noise Control Act of 1972, 42 U.S.C. 4901-4918
Compliance with the noise regulations in 23 CFR 772
Wildlife
Section 7 of the 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 et seq., with Essential Fish
Habitat requirements at 1855(b)(2)
Hazardous Materials Management
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C.
9671-9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
Historic and Cultural Resources
Section 106 of the National Historic Preservation Act of 1966,
as amended, 54 U.S.C. 306101 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 1979, 16 U.S.C.
470aa-470mm
Title 54, Chapter 31--Preservation of Historical and
Archeological Data, 54 U.S.C. 312501-312508
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-30131; 18 U.S.C. 1170
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. 1251-1387 (Section 404, Section
401, Section 319)
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
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. 3901 and 3921
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
[[Page 80710]]
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
Parklands
Section 4(f) of the Department of Transportation Act of 1966,
49 U.S.C. 303
Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-
200310
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
Executive Orders 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
The proposed renewal MOU would allow Caltrans 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 executive orders.
Caltrans will continue to handle routine consultations with the tribes
and understands that a tribe has the right to direct consultation with
FHWA upon request. Caltrans also may assist FHWA with formal
consultations, with consent of a tribe, but FHWA remains responsible
for the consultation. The FHWA and Caltrans have received requests for
formal consultations with several tribes regarding the proposed renewal
of the MOU and currently are engaged in ongoing consultations. Caltrans
also will not assume FHWA's responsibilities for conformity
determinations required under Section 176 of the Clean Air Act (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 Caltrans' desire to continue its
participation in the Program without any changes (that is, no new
responsibilities were requested). The FHWA and Caltrans have agreed to
modify some of the provisions in the MOU to: Establish the monitoring
process required by the permanent Program; accommodate changes
specified in Section 1308 of the FAST Act; clarify, the role of the
Department of Justice and FHWA in settlements and appeals; and to make
the renewed MOU notice and review time frames consistent with other
States in this program. The FHWA and Caltrans have also agreed on a
process to address a possible temporary lapse in the State's statutory
consent to Federal court jurisdiction and waiver of sovereign immunity
waiver. If the State does not provide consent to Federal court
jurisdiction and waive sovereign immunity by December 31, 2016, this
MOU will be suspended and Caltrans will not be able to make any NEPA
decisions or implement any of the environmental review responsibilities
assigned under the MOU. The FHWA and Caltrans propose a temporary
suspension not to exceed 90 days to provide time for the State to
address the deficiency. In the event that the State does not take the
necessary action and Caltrans does not provide adequate certification
within the time period provided, the State's participation in the
Program will be terminated.
A copy of the proposed renewal MOU and renewal package may be
viewed on the DOT DMS 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 Caltrans' Web site at http://www.dot.ca.gov/hq/env/nepa/. The FHWA California 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
Executive Order 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 771.117;
40 CFR 1507.3, 1508.4.
Dated: November 9, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-27502 Filed 11-15-16; 8:45 am]
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