[Federal Register Volume 84, Number 28 (Monday, February 11, 2019)]
[Pages 3275-3277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01808]



Federal Highway Administration

[Docket No. FHWA-2018-0046]

Application From the State of Arizona to the Surface 
Transportation Project Delivery Program and Proposed Memorandum of 
Understanding (MOU) Assigning Environmental Responsibilities to the 

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

ACTION: Notice of proposed MOU and request for comments.


SUMMARY: This notice announces that FHWA has received and reviewed an 
application from the Arizona Department of Transportation (ADOT) 
requesting 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 
of 1969 (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 has determined the application to 
be complete and developed a draft MOU with ADOT outlining how the State 
would implement the program with FHWA oversight. The FHWA invites the 
public to comment on ADOT's request, including its application and the 
proposed MOU, which includes the proposed assignments and assumptions 
of environmental review, consultation, and other activities.

DATES: Please submit comments by March 13, 2019.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
     Facsimile (Fax): 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor 
Room W12-140, Washington, DC 20590.
     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 http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: Anthony Sarhan, Assistant Division 
Administrator, Federal Highway Administration Arizona Division, 4000 
North Central Avenue, Suite 1500, Phoenix, AZ 85012-3500, 7:30 a.m.-
4:30 p.m. (MST), (602) 379-3646, [email protected].
    Steven Olmsted, NEPA Assignment Manager, Arizona Department of 
Transportation, Environmental Planning, 1611 West Jackson, Mail Drop 
EM02, Phoenix, AZ 85007, (602) 712-6421, [email protected].


Electronic Access

    An electronic copy of this notice may be downloaded from the 
Federal Register's home page at http://

[[Page 3276]]

www.archives.gov. An electronic version of the application materials 
and proposed MOU may be downloaded by accessing the DOT DMS docket, as 
described above, at http://www.regulations.gov/.


    Section 327 of title 23, United States Code (23 U.S.C. 327), allows 
the Secretary of the U.S. Department of Transportation (Secretary) to 
assign, and a State to assume, responsibility for 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-aid highway projects within the State pursuant to 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 
The FHWA is authorized to act on behalf of the Secretary with respect 
to these matters.
    Under the proposed MOU, FHWA would assign to the State, through 
ADOT, its responsibility of making project-level decisions in relation 
to NEPA on highway projects within the State of Arizona that are 
proposed to be funded with Title 23 funds or otherwise require FHWA 
approval, and that require preparation of a categorical exclusion (CE) 
determination, environmental assessment (EA), or environmental impact 
statement (EIS) with the exception of the following:
    (1) EIS projects--South Mountain Freeway; Interstate 11 Corridor 
Tier 1 EIS, Nogales to Wickenburg; Sonoran Corridor Tier 1 EIS;
    (2) EA projects--State Route 303; Interstate 10 to State Route 30;
    Projects excluded in (1) and (2) above, except the South Mountain 
Freeway, will be retained by FHWA until either (a) expiration of the 
statute of limitations period for projects on which a limitation of 
claims notice will be issued under 23 U.S.C. 139(l), or (b) completion 
of the NEPA process on projects on which such notice will not be 
issued. The ADOT agrees to be responsible for any re-evaluations needed 
under 23 CFR 771.129 or other environmental reviews needed for such 
projects thereafter. The FHWA will retain responsibility for 
environmental review, consultation, or other actions required under any 
Federal environmental law for the South Mountain Freeway until the 
project is complete;
    (3) highway projects authorized under 23 U.S.C. 202, 203, and 204, 
unless the project will be designed and/or constructed by ADOT;
    (4) projects that cross or are adjacent to international 
    (5) any project that crosses State boundaries;
    (6) Projects advanced by direct recipients of Federal-aid Highway 
funds other than ADOT, under, but not limited to, the following 
    1. Transportation Investment Generating Economic Recovery (TIGER) 
and Better Utilizing Investments to Leverage Development (BUILD) 
discretionary grants and other competitive grant programs; and
    2. Transportation Infrastructure Finance and Innovation Act (TIFIA) 
Credit Program.
    The assignment would give the State the responsibility to conduct 
environmental review, consultation, and other related activities for 
project delivery under the following laws and requirements:

Air Quality

     Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of 
conformity determinations

Executive Orders (E.O.) Relating to Highway Projects

     E.O. 11988, Floodplain Management (except approving design 
standards and determinations that a significant encroachment is the 
only practicable alternative under 23 CFR parts 650.113 and 650.115)
     E.O. 11990, Protection of Wetlands
     E.O. 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low Income Populations
     E.O. 13112, Invasive Species, as amended by E.O. 13751, 
Safeguarding the Nation from the Impacts of Invasive Species
     E.O. 13807, Establishing Discipline and Accountability in 
the Environmental Review and Permitting Process for Infrastructure


     Efficient Project Reviews for Environmental Decision 
Making, 23 U.S.C. 139
     Environmental Impact and Related Procedures, 23 CFR part 
     Planning and Environmental Linkages, 23 U.S.C. 168, with 
the exception of those FHWA responsibilities associated with 23 U.S.C. 
134 and 135
     Programmatic Mitigation Plans, 23 U.S.C. 169, with the 
exception of those FHWA responsibilities associated with 23 U.S.C. 134 
and 135

Hazardous Materials Management

     Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
     Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 
     Superfund Amendments and Reauthorization Act (SARA), 42 
U.S.C. 9671-9675

Historic and Cultural Resources

     Archeological and Historic Preservation Act of 1974, as 
amended, 54 U.S.C. 312501-312508
     Archeological Resources Protection Act of 1979, 16 U.S.C. 
     Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170
     Section 106 of the National Historic Preservation Act of 
1966, as amended, 54 U.S.C. 306101 et seq.
     23 U.S.C. 138 and Section 4(f) of the Department of 
Transportation Act of 1966, 49 U.S.C. 303 and implementing regulations 
at 23 CFR part 774


     Compliance with the noise regulations in 23 CFR part 772
     Noise Control Act of 1972, 42 U.S.C. 4901-4918

Parklands and Other Special Land Uses

     Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 
     Section 4(f) of the Department of Transportation Act of 
1966, 23 U.S.C. 138, 49 U.S.C. 303 and implementing regulations at 23 
CFR part 774

Social and Economic Impacts

     American Indian Religious Freedom Act, 42 U.S.C. 1996
     Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

Water Resources and Wetlands

     Clean Water Act, 33 U.S.C. 1251-1387 (Sections 319 and 
401, 402, 404, and 408)
     Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
     FHWA wetland and natural habitat mitigation regulations, 
23 CFR part 777
     Flood Disaster Protection Act, 42 U.S.C. 4001-4130
     Rivers and Harbors Act of 1899, 33 U.S.C. 403
     Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
     Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
     Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287


     Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d

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     Migratory Bird Treaty Act, 16 U.S.C. 703-712
     Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d
     Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 

    The Secretary's responsibilities for government-to-government 
consultation with Indian tribes, as defined in 36 CFR 800.16(m), are 
not assigned to or assumed by ADOT under the proposed MOU. The FHWA 
will retain responsibility for conducting formal government-to-
government consultation with federally recognized Indian tribes. The 
ADOT will conduct routine consultation with Indian tribes and 
understands that an Indian tribe has the right for government-to-
government consultation with FHWA upon request.
    Nothing in the proposed MOU shall be construed to permit ADOT's 
assumption of the Secretary's responsibilities for conformity 
determinations required by Section 176 of the Clean Air Act (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 assignment under this part does not alter the scope and terms 
of the Section 326 MOU signed on January 3, 2018, between ADOT and 
FHWA. As applicable, ADOT will conduct all environmental reviews 
authorized under the terms of that MOU.
    On the cover page of each EA, Finding of No Significant Impact 
(FONSI), EIS, and Record of Decision (ROD) prepared under the authority 
granted by this MOU, and for memoranda corresponding to any CE 
determination it makes, ADOT shall insert the following language in a 
way that is conspicuous to the reader:

The environmental review, consultation, and other actions required by 
applicable Federal environmental laws for this project are being, or 
have been, carried out by ADOT pursuant to 23 U.S.C. 327 and a 
Memorandum of Understanding dated [MMDDYYYY] and executed by FHWA and 

    The ADOT will also disclose to the public, agencies and tribes as 
part of agency outreach and public involvement procedures, the above 
    The ADOT will not make any determination that an action constitutes 
a constructive use of a Section 4(f) property under 49 U.S.C. 303/23 
U.S.C. 138 without first consulting with FHWA and obtaining approval of 
such determination.
    A copy of the proposed MOU may be viewed on the online 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 the ADOT 
website at: https://www.azdot.gov/business/environmental-planning/ce-assignment-and-nepa-assignment.
    The FHWA Arizona Division, in consultation with FHWA Headquarters, 
will consider the comments submitted when making its decision on the 
proposed MOU. Any final MOU approved by FHWA may include changes based 
on comments and consultations relating to the proposed 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 771.101-
139; 23 CFR 773.109; 40 CFR 1507.3; and 49 CFR 1.85.

    Issued on: February 4, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2019-01808 Filed 2-8-19; 8:45 am]