Proposed 2022 Renewal of Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

Proposed 2022 Renewal of Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

Publication: Federal Register
Agency: Federal Highway Administration
Byline: Vincent Mammano
Date: 14 March 2022
Subjects: American Government

, Roads & Highways

[Federal Register Volume 87, Number 49 (Monday, March 14, 2022)]
[Notices]
[Pages 14317-14319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05332]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0001]

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

ACTION: Notice of proposed renewal of MOU, request for comments.

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SUMMARY: The FHWA and the State of California, acting by and through
its Department of Transportation (Caltrans), propose renewing the MOU
authorizing Caltrans' participation in the Categorical Exclusion
Assignment program. This program allows FHWA to assign its authority
and responsibility for determining whether certain designated
activities within the geographic boundaries of the State, as specified
in the proposed MOU, are categorically excluded from preparation of an
environmental assessment or an environmental impact statement under the
National Environmental Policy Act.

DATES: Comments must be received on or before April 13, 2022.

ADDRESSES: You may submit comments, identified by DOT Document
Management System (DMS) Docket Number FHWA-2022-0001, by any of the
methods described below. To ensure that you do not duplicate your
submissions, please submit them by only one of the means below.
Electronic comments are preferred because Federal offices experience
intermittent mail delays from security screening.
Federal eRulemaking Portal: Go to 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 Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except
Federal holidays.
For access to the docket to view a complete copy of the proposed
2022 renewal MOU, or to read background documents or comments received,
go to http://www.regulations.gov/ at any time, or to 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern
Time, 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: Shawn Oliver; by email at
Shawn.Oliver@dot.gov or by telephone at 916-498-5048. The California
Division Office's normal business hours

[[Page 14318]]

are 8 a.m. to 4:30 p.m. (Pacific Time), Monday through Friday, except
Federal holidays. For the State of California: Chris Benz-Blumberg: By
email at Chris.Benz-Blumberg@dot.ca.gov or by telephone at 916-956-
8660. The Caltrans' business hours are the same as above although State
holidays may not completely coincide with 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 Publishing
Office's database at: http://www.govinfo.gov/. An electronic version of
the proposed 2022 renewal 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 U.S. Department of Transportation (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 Federal highway projects. The FHWA is
authorized to act on behalf of the Secretary with respect to these
matters.
The FHWA renewed California's participation in this program for a
fourth time on April 18, 2019. The original MOU became effective on
June 7, 2007, for an initial term of 3 years. The first renewal
followed on June 7, 2010, the second renewal followed on June 7, 2013.
The third renewal followed on May 31, 2016, and was amended on December
30, 2016. The fourth renewal has an expiration date of April 18, 2022.
Prior MOUs in this program had 3-year terms. Changes to 23 U.S.C.
326(c)(3) under the Bipartisan Infrastructure Law (Infrastructure
Investment and Jobs Act, Pub. L. 117-58), enacted on November 15, 2021,
require that MOUs have a term of 5 years for a State that has assumed
the responsibility for CEs under the program for 10 years or longer.
Caltrans has participated in this program for 14 years. Therefore, this
proposed renewal MOU will have a term of 5 years.
Statewide decision making responsibility would be assigned for all
activities identified in the MOU within the categories listed in 23 CFR
771.117(c) and those listed as examples in 23 CFR 771.111(d), and any
activities added through FHWA rulemaking to those listed in 23 CFR
771.117(c) or example activities listed in 23 CFR 771.117(d) after the
date of the execution of this MOU. 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:

Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Including
determinations for project-level conformity if required for the
project, except as specified in Stipulation II.B.2 of the MOU
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 policy in accordance with 23 CFR
772.7)
Section 7 of the Endangered Species Act of 1973, 16 U.S.C.
1531-1544, and 1536
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
Section 106 of the National Historic Preservation Act of 1966,
as amended, 54 U.S.C. 306108
Archeological Resources Protection Act of 1979, 16 U.S.C.
470aa-mm
Title 54, Chapter 3125--Preservation of Historical and
Archeological Data, 54 U.S.C. 312501-312508
Native American Grave Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
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, except as specified
in Stipulation II.B.2 of the MOU
American Indian Religious Freedom Act, 42 U.S.C. 1996
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Clean Water Act, 33 U.S.C. 1251-1377, Sections 401, 404, and
319
Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
Coastal Zone Management Act, 16 U.S.C. 1451-1466
Rivers and Harbors Act of 1899, 33 U.S.C. 403
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
Wetlands Mitigation, 23 U.S.C 103(b)(6)(m), 133(b)(3)
FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
Flood Disaster Protection Act, 42 U.S.C. 4001-4128
Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
Land and Water Conservation Fund (LWCF), Public Law 88-578, 78
Stat. 897 (known as Section 6(f))
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601-9675
Superfund Amendments and Reauthorization Act of 1986 (SARA),
42 U.S.C. 9671-9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C.
319
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. 11593, Protection and Enhancement of Cultural Resources
E.O. 13007, Indian Sacred Sites
E.O. 13122, Invasive Species
Planning and Environment Linkages, 23 U.S.C. 168, except for
those FHWA responsibilities associated with 23 U.S.C. 134 and 135
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 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.

[[Page 14319]]

The State may also assist FHWA with formal consultations, with consent
of a tribe, but FHWA remains responsible for the consultation.
The FHWA will consider the comments submitted on the proposed fifth
renewal MOU when making its decision on whether to execute this 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.

Vincent Mammano,
Division Administrator, Federal Highway Administration.
[FR Doc. 2022-05332 Filed 3-11-22; 8:45 am]
BILLING CODE 4910-22-P