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 |
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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]
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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.
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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]
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