Notice2022-08294
Renewal Package From the State of California to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State
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Published
April 19, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This notice announces that FHWA has received and reviewed a renewal package from the California Department of Transportation (Caltrans) requesting renewed 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 determined the renewal package to be complete and developed a draft renewal MOU with Caltrans outlining how the State will implement the Program with FHWA oversight. The public is invited to comment on Caltrans' request, including its renewal package and the proposed renewal MOU, which includes the proposed assignments and assumptions of environmental review, consultation, and other activities.
Full Text
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<title>Federal Register, Volume 87 Issue 75 (Tuesday, April 19, 2022)</title>
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[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23311-23313]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08294]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2022-0007]
Renewal Package From the State of California to the Surface
Transportation Project Delivery Program and Proposed Memorandum of
Understanding (MOU) Assigning Environmental Responsibilities to the
State
AGENCY: Federal Highway Administration (FHWA), 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 California Department of Transportation
(Caltrans) requesting renewed 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
determined the renewal package to be complete and developed a draft
renewal MOU with Caltrans outlining how the State will implement the
Program with FHWA oversight. The public is invited to comment on
Caltrans' request, including its renewal package and the proposed
renewal MOU, which includes the proposed assignments and assumptions of
environmental review, consultation, and other activities.
DATES: Please submit comments by May 19, 2022.
ADDRESSES: To ensure that you do not duplicate your docket submissions,
please submit them by only one of the following means:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and
follow the online instructions for submitting comments.
<bullet> Facsimile (Fax): 1-202-493-2251.
<bullet> 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.
<bullet> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: For FHWA: Shawn Oliver by email at:
<a href="/cdn-cgi/l/email-protection#14477c75637a3a5b787d62716654707b603a737b62"><span class="__cf_email__" data-cfemail="51023930263f7f1e3d3827342311353e257f363e27">[email protected]</span></a> or by telephone at (916) 498-5048. The FHWA
California Division Office's normal business hours are 8:00 a.m. to
4:30 p.m. (Pacific Time), Monday-Friday, except for Federal holidays.
For the State of California: Chris Benz-Blumberg by email at
<a href="/cdn-cgi/l/email-protection#77341f051e04593512190d5a351b021a151205103713180359141659101801"><span class="__cf_email__" data-cfemail="4f0c273d263c610d2a2135620d233a222d2a3d280f2b203b612c2e61282039">[email protected]</span></a> or by telephone at (916) 956-8660. State
business hours are the same as above although State holidays may not
completely coincide with Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
Federal Register's home page at <a href="http://www.archives.gov">www.archives.gov</a>. An electronic version
of the application materials and proposed MOU may be downloaded by
accessing the DOT docket, as described above, at <a href="http://www.regulations.gov/">www.regulations.gov/</a>.
Background
Section 327 of Title 23, United States Code (U.S.C.), allows the
Secretary of the DOT to assign, and a State to assume, the
responsibilities under the NEPA (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
[[Page 23312]]
FHWA is authorized to act on behalf of the Secretary with respect to
these matters.
Caltrans entered the Program on July 1, 2007, 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 Program (the original 23 CFR part 773).
On April 11, 2007, FHWA published a notice of Caltrans' draft MOU
in the Federal Register to solicit the view of the public and Federal
agencies on FHWA's preliminary decision to approve the application.
Following the comment period, FHWA and Caltrans considered comments and
proceeded to execute the MOU. Effective July 1, 2007, Caltrans assumed
FHWA's responsibilities under NEPA, and the responsibilities for
reviews under other Federal environmental requirements. Subsequently,
Caltrans has applied to renew its participation in the Program.
Caltrans entered into renewal MOUs with FHWA on October 1, 2012, and
December 23, 2016 (2016 MOU).
On June 1, 2021, after coordination with FHWA, Caltrans submitted a
renewal package in accordance with the renewal regulations in 23 CFR
773.115. On October 21, 2021, Caltrans requested an extension to the
2016 MOU in order to allow further discussion between the parties on
the new language for the renewal MOU. In a letter dated December 8,
2021, FHWA granted an extension of the MOU until April 29, 2022. Under
the proposed renewal MOU, FHWA would assign to the State, through
Caltrans, 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 Assistance projects off the
SHS that are funded by FHWA or require FHWA approvals.
2. All Class II, or categorically excluded (CE) projects, both on
the SHS and Local Assistance projects off the SHS that are funded by
FHWA or require FHWA approvals, and that do not qualify for assignment
of responsibilities pursuant to the MOU for environmental reviews and
decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326
program.
3. All Class III, or environmental assessment projects, both on the
SHS and Local Assistance 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 and meet the definition of a highway project
found at 23 CFR 773.103. For these projects, Caltrans would not assume
the NEPA responsibilities of other Federal agencies. However, Caltrans
may use or adopt other Federal agencies' NEPA analyses consistent with
40 CFR 1500-1508, and DOT and FHWA regulations, policies, and guidance.
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 Caltrans; projects that
cross State boundaries; projects that cross or are adjacent to
international boundaries; and any projects that may be designed and
constructed by FHWA under a 23 U.S.C. 308 agreement between the FHWA
Central Federal Lands Highway Division and Caltrans.
The assignment also would give Caltrans the responsibility to
conduct the following environmental review, consultation, and other
related activities:
Air Quality
<bullet> Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception
of any project level conformity determinations.
Noise
<bullet> Noise Control Act of 1972, 42 U.S.C. 4901-4918
<bullet> FHWA noise regulations in 23 CFR part 772
Wildlife
<bullet> Endangered Species Act of 1973, 16 U.S.C. 1531-1544
<bullet> Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
<bullet> Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
<bullet> Migratory Bird Treaty Act, 16 U.S.C. 703-712
<bullet> Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
<bullet> Magnuson-Stevens Fishery Conservation and Management Act of
1976, as amended, 16 U.S.C. 1801-1891d
Historic and Cultural Resources
<bullet> National Historic Preservation Act of 1966, as amended, 54
U.S.C. 306101, et seq.
<bullet> Archaeological Resources Protection Act of 1979, 16 U.S.C.
470aa-470mm
<bullet> Archeological and Historic Preservation Act, 54 U.S.C. 312501-
312508
<bullet> Native American Grave Protection and Repatriation Act, 25
U.S.C. 3001-3013; 18 U.S.C. 1170
Social and Economic Impacts
<bullet> American Indian Religious Freedom Act, 42 U.S.C. 1996
<bullet> Farmland Protection Policy Act, 7 U.S.C. 4201-4209
Water Resources and Wetlands
<bullet> Clean Water Act, 33 U.S.C. 1251-1387 (Sections 401, 402 404,
and Section 319)
<bullet> Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
<bullet> Coastal Zone Management Act, 16 U.S.C. 1451-1466
<bullet> Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
<bullet> Rivers and Harbors Act of 1899, 33 U.S.C. 403
<bullet> Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
<bullet> Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
<bullet> Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)
<bullet> FHWA wetland and natural habitat mitigation regulations, 23
CFR part 777
<bullet> Flood Disaster Protection Act, 42 U.S.C. 4001-4130
Parklands
<bullet> Section 4(f), 23 U.S.C. 138 and 49 U.S.C. 303
<bullet> Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310
Hazardous Materials Management
<bullet> Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601-9675
<bullet> Superfund Amendments and Reauthorization Act, 42 U.S.C. 9671-
9675
<bullet> Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k
FHWA-Specific
<bullet> Planning and Environment Linkages, 23 U.S.C. 168, with the
exception of those FHWA responsibilities associated with 23 U.S.C. 134
and 135
<bullet> Programmatic Mitigation Plans, 23 U.S.C. 169, with the
exception of those FHWA responsibilities associated with 23 U.S.C. 134
and 135
Executive Orders (E.O.) Relating to Highway Projects
<bullet> E.O. 11990, Protection of Wetlands
<bullet> 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)
<bullet> E.O. 12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low Income Populations
[[Page 23313]]
<bullet> E.O. 13112, Invasive Species
<bullet> E.O. 13985--Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government
<bullet> E.O. 13990--Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis
<bullet> E.O. 14008--Tackling the Climate Crisis at Home and Abroad
<bullet> Other EOs not listed, but related to highway projects.
The proposed renewal MOU would allow Caltrans 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 EOs. Caltrans will
continue to handle routine consultations with the Tribes and
understands that a Tribe has the right to direct consultation with FHWA
upon request. Caltrans also may assist FHWA with formal consultations,
with consent of a Tribe, but FHWA remains responsible for the
consultation. Caltrans 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 Caltrans' desire to continue its
participation in the Program. The FHWA and Caltrans have agreed to
modify some of the provisions in the MOU to, among other things:
clarify the categories of projects for which Caltrans is assigned
responsibility, designate a Senior Agency Official at Caltrans
consistent with 40 CFR 1508.1(dd); remove projects for which FHWA
retained responsibilities for environmental review following a NEPA
decision; update record retention requirements; provide for enhanced
reporting to FHWA on issues including environmental justice analysis
and associated mitigation, where applicable; revise provisions related
to data and information requests; and revise provisions related to
FHWA-initiated withdrawal of assigned projects.
Prior MOUs in this Program had 5-year terms. Changes to 23 U.S.C.
327(c)(5) 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 10 years for a State that has assumed
the responsibility for environmental review under the Program for 10
years or longer. Caltrans has participated in this program for 15
years. Therefore, this proposed renewal MOU will have a term of 10
years.
A copy of the proposed renewal MOU and renewal package may be
viewed on the DOT 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 Caltrans' website at: <a href="https://dot.ca.gov/programs/environmental-analysis/nepa-assignment">https://dot.ca.gov/programs/environmental-analysis/nepa-assignment</a>.
The FHWA California 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 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 773; 40 CFR
1507.3, 1508.4.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-08294 Filed 4-18-22; 8:45 am]
BILLING CODE 4910-22-P
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