[Federal Register Volume 85, Number 98 (Wednesday, May 20, 2020)]
[Notices]
[Pages 30785-30787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10780]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2020-0011]


Proposed Fourth Renewed Memorandum of Understanding (MOU) 
Assigning Certain Federal Environmental Responsibilities to the State 
of Utah, Including National Environmental Policy Act (NEPA) Authority 
for Certain Categorical Exclusions (CEs)

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

ACTION: Notice of proposed MOU and request for comments.

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[[Page 30786]]

SUMMARY: The FHWA and the State of Utah, acting by and through its 
Department of Transportation (State), propose a renewal of the State's 
participation in the State Assumption of Responsibility for Categorical 
Exclusions. 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 preparation of an environmental assessment or an 
environmental impact statement under the National Environmental Policy 
Act. An amended MOU would renew the State's participation in the 
program. The MOU will be amended by incorporating the following 
changes: Clarifying that this assignment applies to highway projects; 
and including provisions for UDOT's use of the Federal Transit 
Administration (FTA) and the Federal Transit Administration's (FRA) CEs 
for highway projects. In order to use FTA or FRA's CEs, UDOT will 
consult with FTA or FRA, as appropriate, and report to FHWA at the end 
of the calendar year the instances where it applied a CE using this 
provision.

DATES: Comments must be received on or before June 19, 2020.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number [FHWA-2020-0011], by any of the 
methods described below. Electronic comments are preferred because 
Federal offices experience intermittent mail delays from security 
screening.
     Website: http://www.regulations.gov/. 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 9:00 a.m. and 5:00 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://www.regulations.gov/ 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. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: FHWA: Mr. Edward Woolford, 
Environmental Program Manager, Federal Highway Administration, 2520 
West 4700 South, Suite 9A, Salt Lake City, UT 84129; by email at 
[email protected] or by telephone at 801-955-3524. The FHWA Utah 
Division Office's normal business hours are 7 a.m. to 4:30 p.m. 
(Mountain), Monday-Friday, except for Federal holidays. Mr. Jay Payne, 
Office of the Chief Counsel, (202) 366-4241, [email protected], 
Federal Highway Administration, U.S. Department of Transportation, 1200 
New Jersey Avenue SE, Washington, DC 20590. For the State: Mr. Brandon 
Weston, Environmental Services Director, Utah Department of 
Transportation, 4501 South 4700 West, Salt Lake City, UT 84129; by 
email at [email protected] or by telephone at 801-965-4603. The 
Utah Department of Transportation's normal business hours are 8 a.m. to 
5 p.m. (Mountain), 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: http://www.archives.gov/ and the Government Printing Office's 
database: http://www.fdsys.gov/. An electronic version of the proposed 
MOU may be downloaded by accessing the DOT DMS docket, as described 
above, at http://www.regulations.gov.

Background

    Section 326 of title 23, U.S. Code, 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 Utah's participation in 
this program for a fourth time. The original MOU became effective on 
July 1, 2008, for an initial term of three (3) years and the first 
renewal followed on July 1, 2011, the second renewal followed on June 
30, 2014, and the third renewal followed on June 23, 2017. The proposed 
fourth MOU revision is set to supersede the third renewed MOU prior to 
its expiration date on June 23, 2020. 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), 
those listed as examples in 23 CFR 771.117(d), and for activities that 
are highway projects within the categories listed in 23 CFR 771.116 and 
23 CFR 771.118. 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 (determinations of 
project-level conformity if required for the project).
    2. Noise Control Act of 1972, 42 U.S.C. 4901-4918.
    3. Compliance with the noise regulations in 23 CFR part 772.
    4. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, and Section 1536.
    5. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    6. Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    7. Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 300101, et seq.
    8. Section 4(f) Requirements, 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, 25 
U.S.C. 3001-3013; 18 U.S.C. 1170.
    11. American Indian Religious Freedom Act, 42 U.S.C. 1996.
    12. Farmland Protection Policy Act, 7 U.S.C. 4201-4209.
    13. Clean Water Act, 33 U.S.C. 1251-1377 (Section 401, 404, and 
Section 319).
    14. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    15. Coastal Zone Management Act, 16 U.S.C. 1451-1465.
    16. Safe Drinking Water Act, 42 U.S.C. 300f-300j-6.
    17. Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    18. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.

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    19. Emergency Wetlands Resources Act, 16 U.S.C. 3921-3931.
    20. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11).
    21. Flood Disaster Protection Act, 42 U.S.C. 4001-4128.
    22. Wetlands Mitigation, 23 U.S.C. 119(g), 133(b)(14).
    23. FHWA wetland and natural habitat mitigation regulations, 23 CFR 
777.
    24. Land and Water Conservation Fund Act, 54 U.S.C. 200301 et seq. 
(known as Section 6(f)).
    25. Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675.
    26. Superfund Amendments and Reauthorization Act of 1986 (SARA).
    27. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k.
    28. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319.
    29. 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.
    30. Programmatic Mitigation Plans, 23 U.S.C. 169, with the 
exception of those FHWA responsibilities associated with 23 U.S.C. 134 
and 135.
    31. E.O. 11990, Protection of Wetlands; 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); E.O. 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low Income 
Populations; E.O. 13007, Indian Sacred Sites; E.O. 13175, Consultation 
and Coordination with Indian Tribal Governments; E.O. 13112, Invasive 
Species.
    The MOU allows the State to act in the place of 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 the FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. This assignment includes transfer to the State of Utah 
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.
    This is the proposed fourth renewal of the State's participation in 
the program and incorporates changes to clarify that this assignment 
applies to highway projects, as defined in 23 CFR 773.103; and to 
include provisions for UDOT's use of the Federal Transit 
Administration's (FTA) and the Federal Transit Administration's (FRA) 
CEs (23 CFR 771.116 and 23 CFR 771.118, respectively) for highway 
projects, as provided for in 23 CFR 771.117(h). In order to use FTA or 
FRA's CEs, UDOT will consult with FTA or FRA, as appropriate, and 
report to FHWA at the end of the calendar year the instances where it 
applied a CE using this provision.
    The FHWA will consider the comments submitted on the proposed MOU 
when making its decision on whether to execute this renewal MOU. 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)

Ivan Marrero,
Division Administrator, Salt Lake City, Utah, Federal Highway 
Administration.
[FR Doc. 2020-10780 Filed 5-19-20; 8:45 am]
 BILLING CODE 4910-22-P