Application From the State of Arizona to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State |
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Brandye L. Hendrickson
Federal Highway Administration
11 February 2019
[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Notices]
[Pages 3275-3277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01808]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2018-0046]
Application From the State of Arizona 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 (DOT).
ACTION: Notice of proposed MOU and request for comments.
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SUMMARY: This notice announces that FHWA has received and reviewed an
application from the Arizona Department of Transportation (ADOT)
requesting 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
of 1969 (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 application to
be complete and developed a draft MOU with ADOT outlining how the State
would implement the program with FHWA oversight. The FHWA invites the
public to comment on ADOT's request, including its application and the
proposed MOU, which includes the proposed assignments and assumptions
of environmental review, consultation, and other activities.
DATES: Please submit comments by March 13, 2019.
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.
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: Anthony Sarhan, Assistant Division
Administrator, Federal Highway Administration Arizona Division, 4000
North Central Avenue, Suite 1500, Phoenix, AZ 85012-3500, 7:30 a.m.-
4:30 p.m. (MST), (602) 379-3646, Anthony.Sarhan@dot.gov.
Steven Olmsted, NEPA Assignment Manager, Arizona Department of
Transportation, Environmental Planning, 1611 West Jackson, Mail Drop
EM02, Phoenix, AZ 85007, (602) 712-6421, solmsted@azdot.gov.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
Federal Register's home page at http://
[[Page 3276]]
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 U.S. Department of Transportation (Secretary) to
assign, and a State to assume, responsibility for 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-aid highway projects within the State pursuant to
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
The FHWA is authorized to act on behalf of the Secretary with respect
to these matters.
Under the proposed MOU, FHWA would assign to the State, through
ADOT, its responsibility of making project-level decisions in relation
to NEPA on highway projects within the State of Arizona that are
proposed to be funded with Title 23 funds or otherwise require FHWA
approval, and that require preparation of a categorical exclusion (CE)
determination, environmental assessment (EA), or environmental impact
statement (EIS) with the exception of the following:
(1) EIS projects--South Mountain Freeway; Interstate 11 Corridor
Tier 1 EIS, Nogales to Wickenburg; Sonoran Corridor Tier 1 EIS;
(2) EA projects--State Route 303; Interstate 10 to State Route 30;
Projects excluded in (1) and (2) above, except the South Mountain
Freeway, will be retained by FHWA until either (a) expiration of the
statute of limitations period for projects on which a limitation of
claims notice will be issued under 23 U.S.C. 139(l), or (b) completion
of the NEPA process on projects on which such notice will not be
issued. The ADOT agrees to be responsible for any re-evaluations needed
under 23 CFR 771.129 or other environmental reviews needed for such
projects thereafter. The FHWA will retain responsibility for
environmental review, consultation, or other actions required under any
Federal environmental law for the South Mountain Freeway until the
project is complete;
(3) highway projects authorized under 23 U.S.C. 202, 203, and 204,
unless the project will be designed and/or constructed by ADOT;
(4) projects that cross or are adjacent to international
boundaries;
(5) any project that crosses State boundaries;
(6) Projects advanced by direct recipients of Federal-aid Highway
funds other than ADOT, under, but not limited to, the following
programs:
1. Transportation Investment Generating Economic Recovery (TIGER)
and Better Utilizing Investments to Leverage Development (BUILD)
discretionary grants and other competitive grant programs; and
2. Transportation Infrastructure Finance and Innovation Act (TIFIA)
Credit Program.
The assignment would give the State the responsibility to conduct
environmental review, consultation, and other related activities for
project delivery under the following laws and requirements:
Air Quality
Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of
conformity determinations
Executive Orders (E.O.) Relating to Highway Projects
E.O. 11988, Floodplain Management (except approving design
standards and determinations that a significant encroachment is the
only practicable alternative under 23 CFR parts 650.113 and 650.115)
E.O. 11990, Protection of Wetlands
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. 13807, Establishing Discipline and Accountability in
the Environmental Review and Permitting Process for Infrastructure
FHWA-Specific
Efficient Project Reviews for Environmental Decision
Making, 23 U.S.C. 139
Environmental Impact and Related Procedures, 23 CFR part
771
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
Hazardous Materials Management
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601-9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
6901-6992k
Superfund Amendments and Reauthorization Act (SARA), 42
U.S.C. 9671-9675
Historic and Cultural Resources
Archeological and Historic Preservation Act of 1974, as
amended, 54 U.S.C. 312501-312508
Archeological Resources Protection Act of 1979, 16 U.S.C.
470(aa)-(mm)
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
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
Noise
Compliance with the noise regulations in 23 CFR part 772
Noise Control Act of 1972, 42 U.S.C. 4901-4918
Parklands and Other Special Land Uses
Land and Water Conservation Fund (LWCF) Act, 54 U.S.C.
200302-200310
Section 4(f) of the Department of Transportation Act of
1966, 23 U.S.C. 138, 49 U.S.C. 303 and implementing regulations at 23
CFR part 774
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 (Sections 319 and
401, 402, 404, and 408)
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
FHWA wetland and natural habitat mitigation regulations,
23 CFR part 777
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
Rivers and Harbors Act of 1899, 33 U.S.C. 403
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Wildlife
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
[[Page 3277]]
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
Section 7 of the Endangered Species Act of 1973, 16 U.S.C.
1531-1544
The Secretary's responsibilities for government-to-government
consultation with Indian tribes, as defined in 36 CFR 800.16(m), are
not assigned to or assumed by ADOT under the proposed MOU. The FHWA
will retain responsibility for conducting formal government-to-
government consultation with federally recognized Indian tribes. The
ADOT will conduct routine consultation with Indian tribes and
understands that an Indian tribe has the right for government-to-
government consultation with FHWA upon request.
Nothing in the proposed MOU shall be construed to permit ADOT's
assumption of the Secretary's responsibilities for conformity
determinations required by 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 assignment under this part does not alter the scope and terms
of the Section 326 MOU signed on January 3, 2018, between ADOT and
FHWA. As applicable, ADOT will conduct all environmental reviews
authorized under the terms of that MOU.
On the cover page of each EA, Finding of No Significant Impact
(FONSI), EIS, and Record of Decision (ROD) prepared under the authority
granted by this MOU, and for memoranda corresponding to any CE
determination it makes, ADOT shall insert the following language in a
way that is conspicuous to the reader:
The environmental review, consultation, and other actions required by
applicable Federal environmental laws for this project are being, or
have been, carried out by ADOT pursuant to 23 U.S.C. 327 and a
Memorandum of Understanding dated [MMDDYYYY] and executed by FHWA and
ADOT.
The ADOT will also disclose to the public, agencies and tribes as
part of agency outreach and public involvement procedures, the above
disclosure.
The ADOT will not make any determination that an action constitutes
a constructive use of a Section 4(f) property under 49 U.S.C. 303/23
U.S.C. 138 without first consulting with FHWA and obtaining approval of
such determination.
A copy of the proposed MOU may be viewed on the online 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 the ADOT
website at: https://www.azdot.gov/business/environmental-planning/ce-assignment-and-nepa-assignment.
The FHWA Arizona Division, in consultation with FHWA Headquarters,
will consider the comments submitted when making its decision on the
proposed MOU. Any final MOU approved by FHWA may include changes based
on comments and consultations relating to the proposed 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 771.101-
139; 23 CFR 773.109; 40 CFR 1507.3; and 49 CFR 1.85.
Issued on: February 4, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2019-01808 Filed 2-8-19; 8:45 am]
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