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

Karla Petty
Federal Highway Administration
28 October 2020

[Federal Register Volume 85, Number 209 (Wednesday, October 28, 2020)]
[Notices]
[Pages 68403-68405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23785]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2020-0022]


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

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation.

ACTION: Notice of proposed MOU, request for comments.

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SUMMARY: The FHWA and the State of Arizona, acting by and through its 
Department of Transportation (State), propose a renewal of the State's 
participation in the State Assumption of Responsibility for Categorical 
Exclusions. 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

[[Page 68404]]

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 
changes: Including language to reference the State's responsibilities 
under 23 CFR 327; Clarifying that this assignment applies to highway 
projects; and Removing the stipulation regarding Section 4(f) and legal 
sufficiency training.

DATES: Comments must be received on or before November 27, 2020.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2020-0022], by any of the 
methods described below. Electronic or facsimile comments are preferred 
because Federal offices experience intermittent mail delays from 
security screening.
    Website: http://www.regulations.gov/. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    Facsimile (Fax): 1-202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590.
    Hand Delivery: 1200 New Jersey Ave. SE, Washington, DC 20590 
between 9 a.m. and 5 p.m. e.t., 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 Ave. SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through 
Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT: For FHWA: Ms. Jennifer Elsken, 
Environmental Program Manager, Federal Highway Administration, 4000 
North Central Avenue, Suite 1500, Phoenix, AZ 85012; by email at 
jennifer.elsken@dot.gov or by telephone at 602-382-8974. The FHWA 
Arizona Division Office normal business hours are 8 a.m. to 4:30 p.m. 
(Arizona Time), Monday-Friday, except for Federal Holidays.
    For State: Mr. Steve Olmsted, NEPA Assignment Manager, Arizona 
Department of Transportation, 1611 West Jackson, Mail Drop EM02, 
Phoenix, AZ 85007; by email at solmsted@azdot.gov or by telephone at 
602-712-6421. The Arizona Department of Transportation normal business 
hours are 8 a.m. to 4:30 p.m. (Arizona Time), Monday-Friday, except for 
State and 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 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, 
42 U.S.C. 4321 et seq. (NEPA). In addition, this program allows the 
assignment of other environmental review requirements applicable to 
these actions. The FHWA is authorized to act on behalf of the Secretary 
with respect to these matters. Through an amended MOU, FHWA would renew 
Arizona's participation in this program for the first time. The 
original MOU became effective on January 3, 2018, for an initial term 
of three (3) years and the first renewal is set to supersede the 
original MOU prior to its expiration date on January 3, 2021.
    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. Statewide 
decisionmaking responsibility would be assigned 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 the NEPA CE determination 
responsibilities, the MOU would assign to the State the responsibility 
for conducting Federal environmental review, consultation, and other 
related activities for projects that are subject to the MOU with 
respect to the following Federal laws and Executive Orders:
    (1) Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Including 
determinations for project-level conformity if required for the 
project.
    (2) Noise Control Act of 1972, 42 U.S.C. 4901-4918; Compliance with 
the noise regulations in 23 CFR part 772 (except approval of the State 
noise requirements in accordance with 23 CFR 772.7).
    (3) Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and 1536.
    (4) Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    (5) Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    (6) Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108.
    (7) Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa, et seq.
    (8) Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774.
    (9) Title 54, Chapter 3125--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508.
    (10) Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170.
    (11) American Indian Religious Freedom Act, 42 U.S.C. 1996.
    (12) Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.
    (13) Clean Water Act, 33 U.S.C. 1251-1377.
    (14) Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.
    (15) Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    (16) Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    (17) Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931.
    (18) Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
    (19) FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777.
    (20) Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR part 774.
    (21) Land and Water Conservation Fund (LWCF), Public Law 88-578, 78 
Stat. 897 (known as Section 6(f)).
    (22) Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675.
    (23) Superfund Amendments and Reauthorization Act of 1986 (SARA), 
42 U.S.C. 9671-9675.
    (24) Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k.
    (25) Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319.
    (26) E.O. 11990, Protection of Wetlands.
    (27) 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).

[[Page 68405]]

    (28) E.O. 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low Income Populations.
    (29) E.O. 11593, Protection and Enhancement of Cultural Resources.
    (30) E.O. 13007, Indian Sacred Sites.
    (31) E.O. 13112, Invasive Species.
    (32) Planning and Environmental Linkages, 23 U.S.C. 168, except for 
those FHWA responsibilities associated with 23 U.S.C. 134 and 135.
    (33) Programmatic Mitigation Plans, 23 U.S.C. 169 except for those 
FHWA responsibilities associated with 23 U.S.C. 134 and 135.
    The MOU allows the State to act in the place of the 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 also 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 
Arizona the obligation to fulfill the assigned environmental 
responsibilities on any proposed projects 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. The FHWA may terminate the State's 
participation in this program if FHWA provides the State a notification 
of noncompliance, 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.
    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; 
40 CFR 1507.3, 1508.4.

    Issued on: October 21, 2020.
Karla Petty,
Division Administrator, Phoenix, Arizona.
[FR Doc. 2020-23785 Filed 10-27-20; 8:45 am]
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