Notice2023-21279
Proposed Second 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)
Primary source
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Published
September 28, 2023
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
The FHWA and the State of Arizona, acting by and through its Department of Transportation (State), propose a second renewal of the State's participation in the State Assumption of Responsibility for Categorical Exclusions program. 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 categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement under the National Environmental Policy Act. This MOU would renew and continue the State's participation in the program. The renewed MOU will amend the existing MOU by incorporating the following changes: Including language to reference the State's responsibility to report project impacts to environmental justice populations; clarifying that this assignment applies to any action to which a CE is applicable including non-highway projects; and adding a reference to the Final April 2020 Programmatic Agreement Pursuant to Section 106 of the National Historic Preservation Act Regarding Implementation of Federal-Aid Transportation Projects in the State of Arizona (September 2020).
Full Text
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<title>Federal Register, Volume 88 Issue 187 (Thursday, September 28, 2023)</title>
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[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Notices]
[Pages 66930-66931]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21279]
[[Page 66930]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2023-0032]
Proposed Second 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 second renewal of the
State's participation in the State Assumption of Responsibility for
Categorical Exclusions program. 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
categorically excluded from the requirement to prepare an environmental
assessment or an environmental impact statement under the National
Environmental Policy Act. This MOU would renew and continue the State's
participation in the program. The renewed MOU will amend the existing
MOU by incorporating the following changes: Including language to
reference the State's responsibility to report project impacts to
environmental justice populations; clarifying that this assignment
applies to any action to which a CE is applicable including non-highway
projects; and adding a reference to the Final April 2020 Programmatic
Agreement Pursuant to Section 106 of the National Historic Preservation
Act Regarding Implementation of Federal-Aid Transportation Projects in
the State of Arizona (September 2020).
DATES: Comments must be received on or before October 30, 2023.
ADDRESSES: You may submit comments, identified by DOT Document
Management System (DMS) Docket Number [FHWA-2023-0032], by any of the
methods described below. Electronic or facsimile comments are preferred
because Federal offices experience intermittent mail delays from
security screening.
Website: <a href="http://www.regulations.gov/">www.regulations.gov/</a>. 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
<a href="http://www.regulations.gov/">www.regulations.gov/</a> 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. Rebecca Yedlin, Environmental Program Manager,
Federal Highway Administration, 4000 North Central Avenue, Suite 1500,
Phoenix, AZ 85012; by email at <a href="/cdn-cgi/l/email-protection#74061116111717155a0d1110181d1a34101b005a131b02"><span class="__cf_email__" data-cfemail="b0c2d5d2d5d3d3d19ec9d5d4dcd9def0d4dfc49ed7dfc6">[email protected]</span></a> or by telephone
at 602-382-8979. 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, 205 S 17th Ave., Mail Drop EM02, Phoenix,
AZ 85007; by email at <a href="/cdn-cgi/l/email-protection#12617d7e7f61667776527368767d663c757d64"><span class="__cf_email__" data-cfemail="e89b8784859b9c8d8ca889928c879cc68f879e">[email protected]</span></a> 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: <a href="http://www.federalregister.gov">www.federalregister.gov</a> and the
Government Printing Office's database: <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>. An electronic
version of the proposed MOU may be downloaded by accessing the DOT DMS
docket, as described above, at <a href="http://www.regulations.gov/">www.regulations.gov/</a>.
Background
Section 326 of title 23, United States Code (U.S.C.), 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 second time. The original MOU became effective on
January 3, 2018, for an initial term of three (3) years. The first
renewal became effective on January 4, 2021, for a second term of three
(3) years. The second renewal is set to supersede the first renewal MOU
prior to its expiration date on January 4, 2024.
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 decision-
making 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.
[[Page 66931]]
(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).
(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.
(34) E.O. 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government.
(35) E.O. 14008, Tackling the Climate Crisis at Home and Abroad.
(36) E.O. 14091, Further Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government.
(37) E.O. 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All.
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 second renewal MOU.
A copy of the proposed draft MOU is also posted on the Arizona
Department of Transportation website <a href="https://azdot.gov/business/environmental-planning/ce-assignment-and-nepa-assignment">https://azdot.gov/business/environmental-planning/ce-assignment-and-nepa-assignment</a> for review.
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.
Karla Petty,
Division Administrator, Phoenix, Arizona.
[FR Doc. 2023-21279 Filed 9-27-23; 8:45 am]
BILLING CODE 4910-22-P
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