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Renewal Package From the State of Texas to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State


American Government

Renewal Package From the State of Texas to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

Nicole R. Nason
Federal Highway Administration
3 July 2019


[Federal Register Volume 84, Number 128 (Wednesday, July 3, 2019)]
[Notices]
[Pages 31978-31980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14198]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2019-0013]


Renewal Package From the State of Texas 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.

-----------------------------------------------------------------------

SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the Texas Department of Transportation (TxDOT) 
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 
(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 TxDOT outlining how 
the State will implement the Program with FHWA oversight. The public is 
invited to comment on TxDOT's request, including its renewal package 
and the proposed renewed MOU, which includes the proposed assignments 
and assumptions of environmental review, consultation, and other 
activities.

DATES: Please submit comments by August 2, 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.

[[Page 31979]]

     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 FHWA: Tom Bruechert by email at tom.bruechert@dot.gov or by 
telephone at 512-536-5948. The FHWA Texas Division Office's normal 
business hours are 8 a.m. to 4:30 p.m. (Central Time), Monday-Friday, 
except for Federal holidays. For the State of Texas: Sue Theiss by 
email at Sue.Theiss@txdot.gov or by telephone at 512-416-2591. State 
business hours are the same as above although State holidays may not 
completely coincide with Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at: http://www.regulations.gov. The website is 
available 24 hours each day, 365 days each year. Please follow the 
instructions. Electronic submission and retrieval help and guidelines 
are available under the help section of the website.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at: http://www.archives.gov 
and the U.S. Government Publishing Office's web page at: http://www.access.gpo.gov/nara.

Background

    Section 327 of title 23, United States Code (23 U.S.C. 327), allows 
the Secretary of DOT to assign, and a State to assume, the 
responsibilities under the NEPA of 1969 (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 TxDOT entered the Program on December 16, 2014, 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 pilot program (23 CFR part 773). On 
November 8, 2018, after coordination with FHWA, TxDOT submitted the 
renewal package in accordance with the renewal regulations in 23 CFR 
773.115.
    Under the proposed renewal MOU, FHWA would assign to the State, 
through TxDOT, 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 government 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 local government projects off the SHS that are funded by FHWA 
or require FHWA approvals.
    3. All Class III, or environmental assessment projects, both on the 
SHS and local government 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. For these projects, TxDOT 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 TxDOT, projects that cross 
State boundaries, and projects that cross or are adjacent to 
international boundaries.
    The assignment also would give TxDOT 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 conformity determinations

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

Historic and Cultural Resources

 National Historic Preservation Act of 1966, as amended, 54 
U.S.C. 300101, et seq.
 Archeological Resources Protection Act, 16 U.S.C. 470aa-mm
 Archeological and Historic Preservation Act of 1966, as 
amended, 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 (Section 401, 402, 404, 
408, and 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, 42 U.S.C. 300f--300j-26
 General Bridge Act of 1946, 33 U.S.C. 525-533
 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. 3921
 Wetlands Mitigation, 23 U.S.C. 119(g), 133(b)(14)
 Flood Disaster Protection Act, 42 U.S.C. 4001Z0-4130

Parklands and Other Special Land Uses

 23 U.S.C. 138 and 49 U.S.C. 303 (Section 4(f)) and 
implementing regulations at 23 CFR 774
 Land and Water Conservation Fund Act, 16 U.S.C. 4601-4--4601-
11

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

[[Page 31980]]

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. 13807, Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure Projects 
(aka ``One Federal Decision'')
 E.O. 13112, Invasive Species

    The proposed renewal MOU would allow TxDOT 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. The 
TxDOT 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 TxDOT also may assist FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. The FHWA and TxDOT have received requests for formal 
consultations with several Tribes regarding the proposed renewal of the 
MOU and currently are engaged in ongoing consultations. The TxDOT 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 TxDOT's desire to continue its 
participation in the Program without any changes (that is, no new 
responsibilities were requested). The FHWA and TxDOT 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 Fixing America's Surface 
Transportation Act; clarify the role of the U.S. 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.
    A copy of the proposed renewal MOU and renewal package may be 
viewed on the docket at www.regulations.gov, 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 TxDOT's website at: https://www.txdot.gov/inside-txdot/division/environmental/nepa-assignment.html. 
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 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.

    Issued on: June 25, 2019.
Nicole R. Nason,
Administrator, Federal Highway Administration.
[FR Doc. 2019-14198 Filed 7-2-19; 8:45 am]
 BILLING CODE 4910-22-P

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