[Federal Register Volume 72, Number 69 (Wednesday, April 11, 2007)]
[Pages 18312-18314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6787]



Federal Highway Administration

[Docket No. FHWA-2007-27804]

Proposed 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)

AGENCY: Federal Highway Administration (FHWA), California Office, DOT.

ACTION: Notice of proposed MOU, request for comments.


SUMMARY: This notice announces that the FHWA and the State of 
California, acting by and through its Department of Transportation 
(State), propose to enter into a MOU pursuant to 23 U.S.C. 326. The MOU 
would transfer to the State the FHWA's authority and responsibility for 
determining whether certain designated activities within the geographic 
boundaries of the State, as specified in the proposed MOU, are

[[Page 18313]]

categorically excluded from preparation of an environmental assessment 
or an environmental impact statement under the National Environmental 
Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). The MOU also would 
assign to the State the responsibility for carrying out certain other 
environmental review, consultation, and related activities for those CE 
Federal-aid Highway Program projects within the State. The public is 
invited to comment on any aspect of the proposed MOU, including the 
types of projects for which CE decision-making authority would be 
assigned to the State and the scope of the environmental review, 
consultation, and other activities that would be assigned.

DATES: Please submit comments by May 29, 2007.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2007-27804], by any of the 
methods described below. Electronic or facsimile comments are preferred 
because Federal offices experience intermittent mail delays from 
security screening.
    1. Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    2. Facsimile (Fax): 1-202-493-2251.
    3. Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590.
    Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC., 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://dms.dot.gov at any time or to Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC., between 9 
a.m. and 5 p.m. e.t., Monday through Friday, except for Federal 
holidays. After June 1, 2007, those wishing to inspect documents should 
confirm the current address for the Docket management facility because 
it is scheduled to relocate later this year.

Project Development and Environment, Federal Highway Administration, 
California Division, 650 Capitol Mall, Suite 4-100, Sacramento, CA 
95814; by e-mail at [email protected] or by telephone at 916-
498-5020. The FHWA California Division Office's normal business hours 
are 8 a.m. to 4:30 p.m. (Pacific Time), Monday-Friday, except for 
Federal Holidays.
    For State: Cindy Adams, NEPA Delegation Manager, California 
Department of Transportation, Division of Environmental Analysis, 
MS27, P.O. Box 942874, Sacramento, CA, 94274-0001; by e-mail 
at [email protected]; by telephone at (916) 653-5157. The 
California Department of Transportation's normal business hours are 8 
a.m. to 5 p.m. (Pacific Time), Monday-Friday, except for State and 
Federal holidays.


Electronic Access

    An electronic copy of this notice may be downloaded using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at http://www.archives.gov and the Government Printing 
Office's Web site at http://www.access.gpo.gov. An electronic version 
of the proposed MOU may be downloaded by accessing the DOT DMS docket, 
as described above, at http://dms.dot.gov.


    Section 6004(a) of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (Pub. L. 109-059, 119 
Stat. 1144), codified as Section 326 of amended Chapter 3 of title 23, 
United States Code (23 U.S.C. 326), allows the Secretary of the DOT 
(Secretary), to assign, and a State to assume, responsibility for 
determining whether certain designated activities are included within 
classes of action that are categorically excluded from requirements for 
environmental assessments or environmental impact statements pursuant 
to regulations promulgated by the Council on Environmental Quality 
under part 1500 of title 40, Code of Federal Regulations (CFR) (as in 
effect on October 1, 2003). The FHWA is authorized to act on behalf of 
the Secretary with respect to these matters.
    The FHWA and the State propose to enter into a MOU that would have 
an initial term of three (3) years. Stipulation I (B) of the proposed 
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), 
those listed as examples in 23 CFR 771.117(d), and the following 
additional categories of actions:
    1. Construction, modification, or repair of storm water treatment 
devices (e.g., detention basins, bio-swales, media filters, and 
infiltration basins), protection measures such as slope stabilization 
and other erosion control measures.
    2. Replacement, modification, or repair of culverts or other 
drainage facilities.
    3. Projects undertaken to assure the creation, maintenance, 
restoration, enhancement, or protection of habitat for fish, plants, or 
wildlife (e.g., revegetation of disturbed areas with native plant 
species; stream or river bank revegetation; construction of new, or 
maintenance of existing fish passage conveyances or structures; 
restoration or creation of wetlands).
    4. Routine repair of facilities due to storm damage, including 
permanent repair to return the facility to operational condition that 
meets current standards of design and public health and safety without 
expanding capacity (e.g., slide repairs, construction or repair of 
retaining walls).
    5. Routine seismic retrofit of facilities to meet current seismic 
standards and public health and safety standards without expansion of 
    6. Air space leases subject to Subpart D, Part 710, Title 23, Code 
of Federal Regulations.
    7. Drilling of test bores/soil sampling.
    The proposed MOU also 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 (determinations of 
project-level conformity if required for the project).
    2. Compliance with the noise regulations in 23 CFR part 772.
    3. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, and Section 1536.
    4. Marine Mammal Protection Act, 16 U.S.C. 1361.
    5. Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g.
    6. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    7. Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    8. Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801 et seq.
    9. Section 106 of the National Historic Preservation Act of 1966, 
as amended, 16 U.S.C. 470(f) et seq.

[[Page 18314]]

    10. Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303.
    11. Archeological and Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 469-469(c).
    12. American Indian Religious Freedom Act, 42 U.S.C. 1996.
    13. Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.
    14. Clean Water Act, 33 U.S.C. 1251-1377 (Section 404, Section 401, 
Section 319).
    15. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    16. Coastal Zone Management Act, 16 U.S.C. 1451-1465.
    17. Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.
    18. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406.
    19. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    20. Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931.
    21. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11).
    22. Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
    23. Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4 
(known as Section 6(f)).
    24. Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675.
    25. Superfund Amendments and Reauthorization Act of 1986 (SARA).
    26. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
    27. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
    28. Executive Orders Relating to Highway Projects (E.O. 11990, 
Protection of Wetlands; E.O. 11988, Floodplain Management; 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. 13175, Consultation and Coordination with Indian Tribal 
Governments; E.O. 13112, Invasive Species).
    The MOU would allow 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 consultations with federally-recognized Indian 
tribes, which is required under some of the listed laws and executive 
orders. The State will continue to handle routine consultations with 
the tribes and understands that a tribe has the right to direct 
consultation with the FHWA upon request. The State also may assist the 
FHWA with formal consultations, with the consent of a tribe, but the 
FHWA remains responsible for the consultation.
    The scope of the proposed assignment and terms and conditions of 
the assignment are contained in the proposed MOU. A copy of the 
proposed MOU, together with State documentation supporting the 
assignment of decision-making authority under 23 CFR 771.117(d) for the 
seven categories of activities listed above, may be viewed on the DOT 
DMS Docket, as described above, or may be obtained by contacting the 
FHWA or the State at the addresses provided above. A copy also may be 
viewed at http://www.dot.ca.gov/hq/env/nepa_pilot/imndex.htm.
    The FHWA California Division, in consultation with FHWA 
Headquarters, will consider the comments submitted when making its 
decision on the proposed MOU. Once the FHWA makes a decision on the 
proposed MOU and on the categories of actions to which the assignment 
will apply, the FHWA will place in the DOT DMS Docket a statement 
describing the outcome of the decision-making process and a copy of any 
final MOU, including final descriptions of the CE authority assigned to 
the State. The FHWA also will publish in the Federal Register a notice 
of the FHWA decision and the availability of any final MOU. Copies of 
the final documents also may be obtained by contacting the FHWA or the 
State at the addresses provided above, or by viewing the documents at 

(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: April 3, 2007.
Gene K. Fong,
California Division Administrator Sacramento.
 [FR Doc. E7-6787 Filed 4-10-07; 8:45 am]