Notice2022-28114
California High-Speed Rail Authority-Construction Exemption-In Merced, Madera, and Fresno Counties, Cal.; California High-Speed Rail Authority-Construction Exemption-In Fresno, Kings, Tulare, and Kern Counties, Cal.; Decision
Primary source
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Published
December 23, 2022
Issuing agencies
Surface Transportation Board
Full Text
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<title>Federal Register, Volume 87 Issue 246 (Friday, December 23, 2022)</title>
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[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Notices]
[Pages 79034-79060]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28114]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 35724; Docket No. FD 35724 (Sub-No. 1)]
California High-Speed Rail Authority--Construction Exemption--In
Merced, Madera, and Fresno Counties, Cal.; California High-Speed Rail
Authority--Construction Exemption--In Fresno, Kings, Tulare, and Kern
Counties, Cal.; Decision
On September 17, 2021, the California High-Speed Rail Authority
(Authority), a Class III non-operating rail carrier, filed a petition
to reopen Docket No. FD 35724 (Merced Petition) and a petition to
reopen Docket No. 35724 (Sub-No. 1) \1\ (Fresno Petition). In Docket
No. FD 35724, the Board in 2013 granted the Authority an exemption
under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C.
10901 to construct approximately 65 miles of high-speed passenger rail
line between Merced, Cal., and Fresno, Cal. (the Merced to Fresno
Section),\2\ and in Docket No. FD 35724 (Sub-No. 1), the Board in 2014
granted the Authority an exemption to construct approximately 114 miles
of high-speed passenger rail line between Fresno and Bakersfield, Cal.
(the Fresno to Bakersfield Section).\3\
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\1\ These proceedings are not consolidated. A single decision is
being issued for administrative convenience.
\2\ Cal. High-Speed Rail Auth.--Constr. Exemption--in Merced,
Madera, & Fresno Cntys., Cal. (June 2013 Decision), FD 35724 (STB
served June 13, 2013).
\3\ Cal. High-Speed Rail Auth.--Constr. Exemption--in Fresno,
Kings, Tulare, & Kern Cntys., Cal. (Aug. 2014 Decision), FD 35724
(Sub-No. 1) (STB served Aug. 12, 2014).
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In its September 2021 petitions to reopen those dockets, the
Authority sought the Board's approval for an
[[Page 79035]]
addition to the Merced to Fresno Section and a modification to the
Fresno to Bakersfield Section, neither of which were previously
considered by the Board. In a decision served on February 11, 2022
(February 2022 Decision), the Board found that the Authority provided
new evidence and demonstrated changed circumstances that warranted
reopening the two proceedings. The Board granted the petitions to
reopen and solicited comments on the transportation merits of the
proposed additions and modifications to the sections. No comments on
the transportation merits were filed.
The Authority, as the current lead agency under National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 to 4370m-11, and the
National Historic Preservation Act (NHPA), 54 U.S.C. 300101-307108, and
the Federal Railroad Administration (FRA), as the previous lead agency
under NEPA and NHPA, conducted environmental and historic reviews of
the proposed modifications. The Board, through its Office of
Environmental Analysis (OEA), participated as a cooperating agency. The
environmental and historic reviews considered the environmental and
historic impacts the proposed route modifications would have, potential
alternatives, and whether different or additional conditions should be
recommended to mitigate the impacts. OEA prepared an Environmental
Memorandum in each of these proceedings summarizing the environmental
and historic reviews and making final recommendations to the Board.
OEA's Environmental Memoranda are appended to this decision.
In this decision, the Board authorizes the Authority's proposed
changes to these construction projects, subject to the final
recommended mitigation measures set forth in OEA's environmental
memoranda.
Background
On March 27, 2013, and September 26, 2013, the Authority filed
petitions seeking exemptions under 49 U.S.C. 10502 from the prior
approval requirements of 49 U.S.C. 10901 to construct the Merced to
Fresno Section and the Fresno to Bakersfield Section, respectively.
Both sections are components of the California High-Speed Rail (HSR)
System. The HSR System consists of eight rail line sections that,
together, ultimately would comprise a high-speed rail line from San
Francisco, Cal., to Anaheim, Cal. (Merced Pet. 2.) The Merced to Fresno
Section and the Fresno to Bakersfield Section are the first and only
two sections of the HSR System for which the Authority has sought
construction authority from the Board. (See Fresno Pet. 2 n.4.) The
Board authorized the construction of the Merced to Fresno Section in
the June 2013 Decision and the construction of the Fresno to
Bakersfield Section in the August 2014 Decision, subject to extensive
environmental mitigation conditions to avoid or minimize the projects'
potential environmental impacts. (See Merced Pet. 3; Fresno Pet. 3.)
The Merced to Fresno Section. The Merced to Fresno Section connects
the Downtown Merced Station to the Downtown Fresno Mariposa Avenue
Station along a mostly north-south alignment and includes a wye to
allow an east-west connection to the proposed San Jose to Merced
section of the HSR System.\4\ (Merced Pet. 2.) FRA and the Authority
conducted a joint environmental review pursuant to NEPA and the
California Environmental Quality Act (CEQA), Cal. Pub. Res. Code
section 21000-21189.3, and issued an Environmental Impact Report/
Environmental Impact Statement (EIR/EIS),\5\ after which FRA
subsequently issued its Record of Decision (ROD) in 2012.\6\ However,
finding that part of the alignment merited further study,\7\ FRA
deferred final consideration of the Central Valley Wye (CVY), which
would connect the north-south Merced to Fresno Section with the
proposed east-west San Jose to Merced section. (Merced Pet. 2-3; see
also ROD 19.)
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\4\ The term ``wye'' refers to the Y-like formation that is
created at the point where train tracks branch off the mainline to
continue in different directions. The transition of mainline track
to a wye requires splitting two tracks into four tracks that cross
over one another before the wye legs can diverge in opposite
directions to allow two-way travel. For the Merced to Fresno
Section, the two tracks traveling east-west from the proposed San
Jose to Merced Section must become four tracks--a set of two tracks
branching toward Merced to the north and a set of two tracks
branching toward Fresno to the south.
\5\ The environmental documents were titled EIR/EIS to meet the
obligations of both CEQA and NEPA, respectively. The Board is only
required to comply with NEPA; accordingly, hereafter this decision
will refer to the environmental documentation prepared in these
cases as ``EISs.''
\6\ The FRA's 2012 ROD is available on the Authority's website
at <a href="http://hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/final_EIR_MerFres_FRA09182012.pdf">hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/final_EIR_MerFres_FRA09182012.pdf</a>.
\7\ As noted in the Final EIS, the selection of the alignment
for the wye connection impacted the environmental analysis for both
the Merced to Fresno Section and the San Jose to Merced section.
FRA, Final Merced to Fresno Section Project EIR/EIS 2-3, April 20,
2012, <a href="http://railroads.dot.gov/environmental-reviews/california-hsr-merced-fresno/merced-fresno-final-eireis">railroads.dot.gov/environmental-reviews/california-hsr-merced-fresno/merced-fresno-final-eireis</a>. The alignment of the latter
section, which would impact the ultimate location of the wye
connection, was being studied and analyzed at the time of the June
2013 Decision. See id. Since then, the Authority has identified a
preferred alternative for the San Jose to Merced section, for which
it published a Draft EIS on April 24, 2020. The public comment
period on that Draft EIS closed on June 23, 2020. See California
High-Speed Rail Authority, Project Section Environmental Documents--
San Jose to Merced, <a href="http://hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/san-jose-to-merced-project-section-draft-environmental-impact-report-environmental-impact-statement/">hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/san-jose-to-merced-project-section-draft-environmental-impact-report-environmental-impact-statement/</a>.
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As the lead Federal agency, FRA initiated the consultation process
under Section 106 of NHPA (54 U.S.C. 306108) for the Merced to Fresno
Section prior to OEA's involvement. June 2013 Decision, FD 35724, slip
op. at 27. During that process, FRA consulted with the California State
Historic Preservation Officer (SHPO), the Advisory Council on Historic
Preservation (ACHP), and other interested parties. Id. The parties
executed a Programmatic Agreement (PA) setting out a general process
for Section 106 compliance for the proposed entire 800-mile system on
June 11, 2011.\8\ Id. The Section 106 consultation process, as well as
evaluations conducted during the NEPA review, identified properties
that are included in, or eligible for inclusion in, the National
Register of Historic Places (National Register) that would be adversely
affected by construction and operation of the Merced to Fresno Section.
Id. FRA, the SHPO, and the Authority \9\ then executed a Memorandum of
Understanding (MOA) \10\ that outlines additional surveys, historic
property treatment, mitigation measures, and other efforts. Id.
Subsequently, the parties executed a First Amendment to the MOA in 2013
to add OEA, for the Board, as a party. Id.
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\8\ With the PA set to expire on July 21, 2021, the Signatories
to the PA executed the First Amendment to the PA on July 21, 2021.
In addition to extending the duration of the document, the amendment
added OEA, for the Board, as an Invited Signatory to the agreement
and designated the Authority as lead federal agency to Section 106
consultation and implementation.
\9\ ACHP chose not to participate.
\10\ Due to access restrictions, surveys for archaeological
properties were incomplete and, therefore, additional National
Register-eligible properties could have been present. The
regulations implementing Section 106 allow for the development of an
MOA when the effects of an undertaking cannot be fully determined
prior to approval of an undertaking. June 2013 Decision, FD 35724,
slip op. at 27. When there would be an adverse effect, the MOA can
also establish responsibilities for the treatment of historic
properties, implementation of mitigation measures, and ongoing
consultation efforts. Id.
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OEA conducted an independent analysis of the Final EIS prepared by
FRA and the Authority and, following this review, recommended that the
Board adopt the Final EIS for the
[[Page 79036]]
Merced to Fresno Section, which included the decision to defer
consideration of the alignment of the CVY.\11\ (Merced Pet. 3.) OEA
also recommended that the Board find that OEA's participation in the
MOA would satisfy the Board's obligations under Section 106. In the
June 2013 Decision, the Board agreed with OEA's recommendations,
adopted FRA and the Authority's Final EIS (subject to environmental
conditions, including environmental conditions developed by OEA), found
that the MOA would satisfy the Board's obligations under Section 106,
and granted the Authority's petition for exemption. Both FRA's 2012 ROD
and the Board's June 2013 Decision approved portions of the north-south
alignment and the Downtown Merced and Downtown Fresno Mariposa Station
locations, but they intentionally did not address the area known as the
``wye connection,'' which includes the location of the north-south
track in that area. (See ROD 22.)
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\11\ When the Authority petitioned the Board for authority to
construct the Merced to Fresno Section in March 2013, the
environmental review under NEPA for that section had already been
completed by the Authority and FRA. Consequently, the Board did not
participate in the environmental review as a cooperating agency.
However, as described further in this decision, the Board (through
OEA) acted as a cooperating agency for the CVY Final Supplemental
EIS.
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The Authority states that, since the June 2013 Decision, it has
conducted significant additional analysis on the alignment of the wye
connection to the proposed San-Jose-to-Merced section.\12\ (Merced Pet.
4.) Of 17 possible alignments, the Authority and FRA selected four
options for additional analysis. (Id. & n.10.) Based on that analysis
and input from interested parties, the SR 152 (North) to Road 11 Wye
Alternative was selected as the preferred alternative for the CVY.
(Id.) The CVY Final Supplemental EIS was issued by the Authority on
August 7, 2020, and the Authority issued its Supplemental ROD on the
CVY in September 2020, subject to environmental mitigation measures.
(Id.) The additional analysis, according to the Authority, allowed it
to refine alternative alignments for the CVY that ``minimized impacts
on farmland and communities and balanced environmental impacts with
concerns for travel time and construction costs.'' (Id. at 6.) The
Board (through OEA) participated as a cooperating agency for the CVY
Final Supplemental EIS.
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\12\ Pursuant to 23 U.S.C. 327, under a NEPA Assignment
Memorandum of Understanding between FRA and the State of California,
effective July 23, 2019, the Authority became the lead agency for
compliance with NEPA and other federal laws for the HSR System,
including the issuance of EISs and RODs under NEPA. Accordingly, the
supplemental environmental reviews for both HSR sections were
conducted by the Authority, not FRA.
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Citing these developments that followed the June 2013 Decision as
new evidence and changed circumstances, the Authority requested that
the Board reopen the proceeding in Docket No. FD 35724 to consider the
CVY. The Authority also requested that the Board review and adopt the
supplemental environmental and historic review completed by the
Authority and FRA, pursuant to 40 CFR 1506.3. (Merced Pet. 6.) In the
February 2022 Decision reopening Docket No. FD 35724, the Board stated
that it would review the supplemental environmental and historic review
and decide whether to adopt the Final Supplemental EIS. The Board also
solicited comments on the transportation merits of the CVY. No comments
on the transportation merits were received.
The Fresno to Bakersfield Section. The Authority and FRA conducted
a joint environmental review for the Fresno to Bakersfield Section,
with the Board, through OEA, acting as a cooperating agency. (Fresno
Pet. 2.) In 2014, a Final EIS was issued, and FRA issued its ROD. (Id.)
As lead agency at the time, FRA initiated section-specific NHPA
review for the Fresno to Bakersfield section. August 2014 Decision, FD
35724 (Sub-No. 1), slip op. at 20. The Section 106 consultation
process, as well as evaluations conducted during the NEPA review,
identified properties that are included, or eligible for inclusion, in
the National Register that would be adversely affected by construction
and operation of the Preferred Build Alternative. FRA, the Authority,
the Board (through OEA), the U.S. Army Corps of Engineers, the SHPO,
and ACHP executed an MOA on May 14, 2014, that outlines additional
surveys, historic property treatment, mitigation measures, and other
efforts that will take place prior to construction of the Fresno to
Bakersfield Section. Id.
OEA recommended that the Board adopt the Final EIS, with several
additional environmental mitigation measures. (Id. at 2-3.) OEA also
recommended that the Board find that OEA's participation in the MOA
process would satisfy the Board's obligations under Section 106. In the
August 2014 Decision, the Board accepted OEA's recommendations, adopted
the Final EIS and OEA's recommended mitigation measures, found that the
MOA would satisfy the Board's obligations under Section 106, and
authorized construction of the Fresno to Bakersfield Section.
In June 2014, the City of Bakersfield (the City) filed a lawsuit
against the Authority, claiming, among other things, that ``the
Preferred Alternative identified in the Fresno to Bakersfield Section
Final EIS would severely affect the City's ability to utilize existing
city assets, including its corporation yard, senior housing, and
parking facilities at Rabobank Arena, Theatre and Convention Center;
would render unusable one of the city's premier health care facilities;
and would affect the Bakersfield Commons project, a retail/commercial/
residential development.'' (Fresno Pet. 3-4 (quoting the description of
the lawsuit in Suppl. ROD Section 1.3.2 at 1-9.)) After the Board
issued its August 2014 Decision, the Authority and the City entered
into a settlement agreement, dated December 19, 2014. (Fresno Pet. 4.)
According to the Authority, as part of the settlement agreement, the
Authority agreed ``to develop and study alternative routes that would
address the City's concerns as well as the design needs of the
Authority.'' (Id.)
The Authority states that, following the settlement agreement, it
worked with the City and other stakeholders to develop the alternative
(the Locally Generated Alternative, or LGA) that is now the subject of
its exemption request. (Id.) The LGA consists of a 23.13-mile
alternative alignment between the cities of Shafter, Cal., and
Bakersfield, Cal., and a new location of the Bakersfield Station at F
Street. (Id.) The Authority, as lead NEPA agency, conducted an
environmental review of the modification (with the Board, through OEA,
participating as cooperating agency) and issued a combined Final
Supplemental EIS and Supplemental ROD on October 31, 2019. (Id. at 5.)
The Authority represents that the proposed modifications would not
disturb the remainder of the Fresno to Bakersfield Section authorized
in the August 2014 Decision. (Fresno Pet. 4.)
The Authority sought to reopen Docket No. FD 35724 (Sub-No. 1), the
Fresno to Bakersfield Section proceeding, to allow the Board to
consider the LGA. In addition, the Authority requests that the Board
review and adopt the environmental and historic review of the LGA
completed by the Authority, pursuant to 40 CFR 1506.3. (Fresno Pet. 6.)
In the February 2022 Decision reopening the proceeding, the Board
stated that it would review the supplemental environmental and historic
review and decide whether to adopt the Final Supplemental EIS. The
Board also solicited comments on the
[[Page 79037]]
transportation merits of the LGA, but none were filed.
Discussion and Conclusions
Rail Transportation Analysis
The construction of new railroad lines requires prior Board
authorization, through either a full application and certificate under
49 U.S.C. 10901 or, as requested here, an exemption under 49 U.S.C.
10502 from the prior approval requirements of section 10901. Section
10901(c) directs the Board to grant authority for a rail line
construction proposal unless it finds the proposal ``inconsistent with
the public convenience and necessity.'' See Alaska R.R.--Constr. &
Operation Exemption--a Rail Line Extension to Port MacKenzie, Alaska,
FD 35095, slip op. at 5 (STB served Nov. 21, 2011), aff'd sub nom.
Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 2013). Thus, there is a
statutory presumption that rail construction projects are in the public
interest and should be approved unless shown otherwise. N. Plains Res.
Council v. STB, 668 F.3d 1067, 1091-92 (9th Cir. 2011); Mid States
Coal. for Progress v. STB, 345 F.3d 520, 552 (8th Cir. 2003).
Under section 10502(a), the Board must exempt a proposed rail line
construction from the prior approval requirements of section 10901 when
it finds that (1) those procedures are not necessary to carry out the
rail transportation policy of 49 U.S.C. 10101, and (2) either (a) the
proposal is of limited scope or (b) the full application procedures are
not needed to protect shippers from an abuse of market power.
In the June 2013 Decision and the August 2014 Decision, the Board
found that the Authority met the standards of 49 U.S.C. 10502 for
exemptions from the prior approval requirements of 49 U.S.C. 10901 for
the construction of the proposed Merced to Fresno Section and the
proposed Fresno to Bakersfield Section, respectively. In both
decisions, the Board concluded that the requested exemptions would
reduce the need for Federal regulation (49 U.S.C. 10101(2)), ensure the
development of a sound rail transportation system with effective
competition to meet the needs of the shipping public (49 U.S.C.
10101(4)), foster sound economic conditions in transportation (49
U.S.C. 10101(5)), reduce regulatory barriers to entry (49 U.S.C.
10101(7)), and encourage and promote energy conservation (49 U.S.C.
10101(14)). See June 2013 Decision, FD 35724, slip op. at 22-23; Aug.
2014 Decision, FD 35724 (Sub-No. 1), slip op. at 12-13. The Board also
found that although parties argued that certain other aspects of the
rail transportation policy would be affected, no evidence was provided
supporting the claims. See June 2013 Decision, FD 35724, slip op. at
23; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 14. The Board
found that potential health and safety impacts (49 U.S.C. 10101(8))
were fully analyzed during the environmental review processes and that
the extensive environmental mitigation that would be imposed on the
projects would eliminate or minimize potential impacts on public health
and safety to the extent practicable. See June 2013 Decision, FD 35724,
slip op. at 24; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at
14. Finally, the Board found that regulation of the proposed
construction projects was not necessary to protect shippers or the
traveling public from the abuse of market power. See June 2013
Decision, FD 35242, slip op. at 24-25; Aug. 2014 Decision, FD 35724
(Sub-No. 1), slip op. at 14-15. The Authority sought, and the Board
granted authority to reopen to reconsider the exemptions, based on a
finding of substantially changed circumstances. However, no party has
challenged the Board's 2013 or 2014 conclusions on the transportation
merits of the proposals, and there is nothing in the record since 2013
and 2014 that would call those conclusions into question. The Board
therefore reaffirms the 2013 and 2014 conclusions here with regard to
the transportation merits of the Merced to Fresno and Fresno to
Bakersfield Sections, as modified, and now turns to consideration of
the environmental and historic aspects of the proposed modifications to
the project.
Environmental and Historic Analysis
NEPA requires Federal agencies to examine the environmental effects
of proposed major Federal actions and to inform the public concerning
those effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462
U.S. 87, 97 (1983). Under NEPA and related environmental laws, the
Board must consider significant potential beneficial and adverse
environmental impacts in deciding whether to authorize railroad
construction as proposed, deny the proposal, or grant it with
conditions (including environmental mitigation conditions). Tex. Ry.
Exch.--Constr. & Operation Exemption--Galveston Cnty., Tex., FD 36186
et al., slip op. at 5 (STB served Jan. 17, 2020). While NEPA prescribes
the process that must be followed, it does not mandate a particular
result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Once the environmental effects, if any, of a proposed action
have been adequately identified and evaluated, an agency may conclude
that other values outweigh those environmental effects. Id.
Section 106 of NHPA requires Federal agencies to ``take into
account the effect of'' their licensing decisions (in this case,
whether to grant the Authority's request for an exemption, also called
the ``undertaking'' under NHPA) on properties included in, or eligible
for inclusion in, the National Register, and prior to the approval of
an undertaking, to afford the ACHP a reasonable opportunity to comment.
See 54 U.S.C. 306108. Consultation with the SHPO is also required. See
36 CFR 800.2(a)(4) & (c)(1), 800.3(c)(3). If the undertaking would have
an adverse effect on historic properties, the agency (here, the
Authority, as lead agency) must continue to consult to possibly
mitigate the adverse effect. See 36 CFR 800.6(a).
The Environmental and Historic Review Process--CVY. As explained in
more detail in OEA's Environmental Memorandum to the Board for the CVY
(CVY Memorandum) (Appendix A), the Authority, as the lead agency under
NEPA, conducted an environmental review of the CVY (with the Board,
through OEA, participating as a cooperating agency). Of 17 possible CVY
alignments, four build alternatives were selected for additional
environmental review. The Authority issued a Draft Supplemental EIS in
September 2019 for a 45-day public comment period, and a Final
Supplemental EIS on August 7, 2020.\13\ Based on this environmental
review process, on September 16, 2020, the Authority issued its
Supplemental ROD, in which the Authority selected the State Route 152
(North) to Road 11 Wye alignment as its preferred and environmentally
preferable alternative for the CVY. (Suppl. ROD 31-32.) The remaining
portions of the Merced to Fresno Section that were authorized by the
Board in the June 2013 Decision, north of the CVY from Ranch Road to
the Merced Station and south of the CVY from Avenue 19 to the Fresno
Station, are unaffected by the Supplemental ROD. The Authority's
Supplemental ROD also imposes extensive mitigation conditions through
its Mitigation & Monitoring Enforcement Plan (MMEP) for the CVY, which
supplements the mitigation required by the 2012 MMEP for the Merced to
Fresno Section. (Suppl. ROD 29; id. at App. D.)
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\13\ The Draft and Final Supplemental EISs for the CVY are
available on the Authority's website at <a href="http://hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/merced-to-fresno-central-valley-wye/">hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/merced-to-fresno-central-valley-wye/</a>.
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[[Page 79038]]
As for the Section 106 process, since the June 2013 Decision, a
Second Amendment to the MOA was executed in 2017 to improve the
process. However, because the CVY was contemplated as part of the
Merced to Fresno section at the time the MOA was executed for the
Merced to Fresno Section, there was no need to amend the MOA further to
address the CVY. Indeed, the SHPO approved the Authority's assessment
of adverse effects to historic resources from the CVY in 2018 in Merced
to Fresno Section: Central Valley Wye Final Supplemental Section 106
Findings of Effect Report. (Suppl. ROD 40.)
In its Environmental Memorandum, OEA concludes that (1) OEA's
substantive comments and suggestions were incorporated into the Draft
and Final Supplemental EISs for the CVY; (2) the EISs adequately assess
the potential environmental impacts associated with the CVY and meet
the standards of the Council on Environmental Quality's (CEQ's) NEPA
regulations and the Board's own environmental regulations at 49 CFR
part 1105; and (3) the State Route 152 (North) to Road 11 Wye alignment
represents the preferred and environmentally preferable alternative for
the CVY. See App. A, CVY Env't Mem. section 6.1-6.3. OEA further
concludes that execution of the MOA and the First and Second Amendments
to the MOA, their filing with ACHP, and subsequent implementation of
their terms satisfy the requirements of Section 106 (36 CFR 800.6(c))
for the Merced to Fresno Section, including the CVY. OEA does not
recommend any additional mitigation but recommends that the Board adopt
and impose conditions requiring compliance with the MMEP, the
mitigation plan developed by the Authority, and the mitigation
contained in the Section 106 MOA, as amended.
Accordingly, OEA recommends that, in order to satisfy its NEPA and
Section 106 obligations, the Board adopt the Draft and Final
Supplemental EISs in any decision granting the Authority's request to
construct the CVY and impose the mitigation developed by the Authority,
through its MMEP and the MOA, as amended.
The Board's Analysis of Environmental and Historic Issues--CVY. The
Board adopts the analysis and conclusions in OEA's Environmental
Memorandum on the CVY, the Draft and Final Supplemental EISs, and the
final recommended mitigation measures. As explained in detail in OEA's
memorandum, while the Draft and Final Supplemental EISs show that there
would be certain unavoidable impacts from the CVY modification
(including residential and business relocations, impacts to agriculture
lands, and impacts to aesthetic and visual resources), the Authority
adopted an approximately 126-page MMEP in its Supplemental ROD that
specifies means to avoid, minimize, or mitigate likely environmental
harm caused by construction and operation of the proposed CVY
modification.\14\ The Authority's Supplemental ROD obligates it to
comply with all the mitigation measures in the MMEP. The Board is
satisfied that OEA, together with the Authority and other parties, have
taken the requisite hard look at the potential environmental impacts
associated with the CVY and properly determined that the recommended
environmental mitigation for the CVY will adequately address the
potential impacts of the proposal.
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\14\ The MMEP is attached to the Supplemental ROD as Appendix D
and is available on the Authority's website at <a href="http://hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/A-10_CVY_ROD_APP_D_MMEP.pdf">hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/A-10_CVY_ROD_APP_D_MMEP.pdf</a>.
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The Board also adopts OEA's conclusion that execution of the MOA
and the First and Second Amendments to the MOA, their filing with ACHP,
and subsequent implementation of their terms satisfy the requirements
of Section 106 for the Merced to Fresno Section, including the CVY.
The Environmental and Historic Review Process--LGA. As detailed in
OEA's Environmental Memorandum to the Board for the LGA (LGA
Memorandum) (Appendix B), the Authority, as the current lead agency
under NEPA, and FRA, as the previous lead agency under NEPA, conducted
an environmental review of the LGA (with the Board, through OEA,
participating as a cooperating agency). FRA issued a Draft Supplemental
EIS in November 2017 for a 60-day public comment period and held a
public hearing on December 19, 2017, to receive oral testimony and
comments. The Authority issued a combined Final Supplemental EIS and
Supplemental ROD on October 31, 2019.\15\ The Draft Supplemental EIS
and Final Supplemental EIS assess the potential environmental impacts
of the LGA and compare those impacts to those of the previously
approved component of the Fresno to Bakersfield Section that the LGA
would replace.
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\15\ The Authority's Supplemental ROD is available on its
website at <a href="http://hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/fresno-to-bakersfield-locally-generated-alternative/">hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/fresno-to-bakersfield-locally-generated-alternative/</a>.
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As to the Section 106 process, the parties expanded the process to
include the LGA in a First Amendment to the MOA that the parties
executed on January 4, 2017.
In the Supplemental ROD, the Authority approved the LGA, including
the F Street Station in Bakersfield, as its preferred and
environmentally preferable alternative for this portion of the Fresno
to Bakersfield Section. (Suppl. ROD 6-1.) The remaining portion of the
Fresno to Bakersfield Section that was authorized by the Board in the
August 2014 Decision is unchanged and unaffected by the Supplemental
ROD. The Authority's Supplemental ROD also imposes extensive mitigation
conditions through its MMEP for the LGA. (Suppl. ROD 5-1; id. at App.
C.)
In its Environmental Memorandum for the LGA, OEA concludes that (1)
OEA's substantive comments and suggestions were incorporated into the
Draft and Final Supplemental EISs; (2) the EISs adequately assess the
potential environmental impacts associated with the LGA modification
and meet the standards of CEQ's NEPA regulations and the Board's own
environmental regulations at 49 CFR part 1105; and (3) the LGA
represents the preferred and environmentally preferable alternative for
the 23-mile portion of the Fresno to Bakersfield Section. See App. B,
LGA Env't Mem. section 6.1. OEA also concludes that execution of the
MOA and First Amendment to the MOA, their filing with ACHP, and
subsequent implementation of their terms satisfy the requirements of
Section 106 for the Fresno to Bakersfield Section, including the LGA.
OEA does not recommend any additional mitigation but recommends that
the Board adopt and impose conditions requiring compliance with the
MMEP, the mitigation plan developed by the Authority, as amended, and
the mitigation contained in the Section 106 MOA, as amended. OEA
further recommends that the Board remove a mitigation measure, which
prohibits pile driving near Mercy Hospital, imposed in the August 2014
Decision because the measure pertains specifically to the component of
the Fresno to Bakersfield Section that the LGA would replace.
Accordingly, OEA recommends that, in order to satisfy its NEPA and
Section 106 obligations, the Board adopt the Draft and Final
Supplemental EISs in any decision granting the Authority's request to
construct the LGA modification and impose the mitigation developed by
the Authority, through its
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MMEP,\16\ as amended \17\ and the MOA, as amended. See App. B, LGA
Env't Mem. section 6.1, 6.3.
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\16\ The Board imposed the mitigation in the MMEP in the August
2014 Decision.
\17\ The MMEP, as amended, is attached to the Supplemental ROD
as Appendix C, and is available on the Authority's website at
<a href="http://hsr.ca.gov/wp-content/uploads/docs/programs/fresno-baker-eir/FBLGA_ROD_Attachment_C_MMEP.pdf">hsr.ca.gov/wp-content/uploads/docs/programs/fresno-baker-eir/FBLGA_ROD_Attachment_C_MMEP.pdf</a>.
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The Board's Analysis of Environmental and Historic Issues--LGA. The
Board adopts the analysis and conclusions in the LGA Environmental
Memorandum and the Draft and Final Supplemental EISs including the
final recommended mitigation measures.\18\ As explained in detail in
the LGA Environmental Memorandum, while the Draft and Final
Supplemental EISs show that there would be certain unavoidable impacts
from the LGA modification (including road closures, residential and
business relocations, noise impacts, and impacts to agriculture lands,
aesthetic and visual resources, community cohesion, and environmental
justice populations), the Authority adopted an approximately 180-page
MMEP, as amended, in its Supplemental ROD that specifies extensive
means to avoid, minimize, or mitigate likely environmental harm caused
by construction of the proposed LGA modification.\19\ See App. B, LGA
Env't Mem. section 4.0, 6.2, 6.3. As a result, the LGA represents the
environmentally preferable modification to the Fresno to Bakersfield
Section. The Authority's Supplemental ROD obligates it to comply with
all the mitigation measures in the amended MMEP. The Board is satisfied
that OEA, together with the Authority and other parties, have taken the
requisite hard look at the potential environmental impacts associated
with the LGA and properly determined that the final recommended
environmental mitigation will appropriately address the potential
impacts of the proposal.
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\18\ The final recommended mitigation measures include removal
of the condition related to pile driving near Mercy Hospital. The
Board adds two new measures to assure compliance with the
Authority's final environmental and Section 106 mitigation.
\19\ As the LGA Environmental Memorandum explains, the LGA would
have substantial impacts on minority and low-income populations even
after mitigation measures are taken. See App. B, LGA Env't Mem. sec.
4.0 (citing Draft Suppl. EIS). Such mitigation measures include
installing sound barriers; acquiring property easements; locating
suitable replacement properties and facilities; adding landscaping
to screen structures, light, glare, and blocked views. (Suppl. ROD
Section 6-8.) Continued environmental justice outreach in adversely
affected neighborhoods could also provide resident feedback that may
be used to further mitigate some of these impacts. (See Suppl. ROD,
Attachment C, MMEP, Table 1 at 1-49, SO-MM#6.) Input from these
communities would be used to refine the LGA during ongoing
engineering design efforts. (Id.)
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The Board adopts OEA's conclusion that execution of the MOA and
First Amendment to the MOA, their filing with ACHP, and subsequent
implementation of their terms, satisfy the requirements of Section 106
for the Fresno to Bakersfield Section, including the LGA.
This action, as conditioned, will not significantly impact the
quality of the human environment or the conservation of energy
resources.
It is ordered:
1. In Docket No. FD 35724, under 49 U.S.C. 10502, the Board exempts
construction of the Authority's proposed route addition to the Merced
to Fresno Section from the prior approval requirements of 49 U.S.C.
10901.
2. In Docket No. FD 35724 (Sub-No. 1), under 49 U.S.C. 10502, the
Board exempts construction of the Authority's proposed route
modifications to the Fresno to Bakersfield Section from the prior
approval requirements of 49 U.S.C. 10901.
3. In Docket No. FD 35724, the Board adopts the environmental
mitigation measures set forth in OEA's Environmental Memorandum
regarding the CVY (Appendix A) and imposes them as conditions to the
exemption granted here.
4. In Docket No. FD 35724 (Sub-No. 1), the Board adopts the
environmental mitigation measures set forth in OEA's Environmental
Memorandum regarding the LGA (Appendix B) and imposes them as
conditions to the exemption granted here.
5. Notice will be published in the Federal Register on December 23,
2022.
6. Petitions for reconsideration must be filed by January 9, 2023.
7. This decision is effective on its service date.
Decided: December 19, 2022.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
BILLING CODE 4915-01-P
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[FR Doc. 2022-28114 Filed 12-22-22; 8:45 am]
BILLING CODE 4915-01-C
</pre></body>
</html>Indexed from Federal Register on December 23, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.