[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Pages 38014-38016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13579]



Federal Highway Administration

[Docket No. FHWA-2020-0009]

Renewal Package From the State of Ohio 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; request for comments.


SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the Ohio Department of Transportation (ODOT) 
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 
(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 renewal package to be 
complete, and developed a draft renewal MOU with ODOT outlining

[[Page 38015]]

how the State will implement the Program with FHWA oversight. The 
public is invited to comment on ODOT's request, including its renewal 
package and the proposed renewed MOU, which includes the proposed 
assignments and assumptions of environmental review, consultation, and 
other activities.

DATES: Please submit comments by July 24, 2020.

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 FHWA: Noel Mehlo by email at [email protected] or by telephone 
at 614-280-6841. The FHWA Ohio Division Office's normal business hours 
are 8 a.m. to 4:30 p.m. (Eastern Time), Monday-Friday, except for 
Federal holidays. For the State of Ohio: Tim Hill by email at 
[email protected] or by telephone at 614-644-0377. State business 
hours are the same as above although State holidays may not completely 
coincide with Federal holidays.


Electronic Access

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at: http://www.regulations.gov. The website is 
available 24 hours each day, 365 days each year. Please follow the 
instructions. Electronic submission and retrieval help and guidelines 
are available under the help section of the website.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at: http://www.archives.gov 
and the U.S. Government Publishing Office's web page at: http://www.access.gpo.gov/nara.


    Section 327 of title 23, United States Code (23 U.S.C. 327), allows 
the Secretary of DOT to assign, and a State to assume, the 
responsibilities under NEPA (42 U.S.C. 4321 et seq.) and all or part of 
the responsibilities for environmental review, consultation, or other 
actions required under certain Federal environmental laws with respect 
to one or more Federal-aid highway projects within the State. The FHWA 
is authorized to act on behalf of the Secretary with respect to these 
    The ODOT entered the Program on December 28, 2015, after submitting 
its application to FHWA, obtaining FHWA's approval, and entering into a 
MOU in accordance with 23 U.S.C. 327 and FHWA's application regulations 
for the pilot program (23 CFR part 773). The MOU was amended on June 6, 
2018. On December 6, 2019, after coordination with FHWA, ODOT submitted 
the renewal package in accordance with the renewal regulations in 23 
CFR 773.115.
    Under the proposed renewal MOU, FHWA would assign to the State, 
through ODOT, the responsibility for making decisions on the following 
types of highway projects:
    1. All Class I, or environmental impact statement projects, both on 
the State Highway System (SHS) and local government projects off the 
SHS that are funded by FHWA or require FHWA approvals.
    2. All Class II, or categorically excluded projects, both on the 
SHS and local government projects off the SHS that are funded by FHWA 
or require FHWA approvals.
    3. All Class III, or environmental assessment projects, both on the 
SHS and local government projects off the SHS that are funded by FHWA 
or require FHWA approvals.
    4. Projects funded by other Federal agencies (or projects without 
any Federal funding) of any Class that also include funding by FHWA or 
require FHWA approvals. For these projects, ODOT would not assume the 
NEPA responsibilities of other Federal agencies.
    Excluded from assignment are highway projects authorized under 23 
U.S.C. 202 and 203, highway projects under 23 U.S.C. 204 unless the 
project will be designed and constructed by ODOT, projects that cross 
State boundaries, projects that cross or are adjacent to international 
boundaries, projects under the Recreational Trails Program (23 U.S.C. 
206), and programs and projects advanced by direct recipients of 
Federal-aid highway program funds other than ODOT.
    The assignment also would give ODOT the responsibility to conduct 
the following environmental review, consultation, and other related 

Air Quality

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


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


     Endangered Species Act of 1973, 16 U.S.C. 1531-1544
     Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
     Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
     Migratory Bird Treaty Act, 16 U.S.C. 703-712

Hazardous Materials Management

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

Historic and Cultural Resources

     National Historic Preservation Act of 1966, as amended, 54 
U.S.C. 300101, et seq.
 Archeological Resources Protection Act of 1979, 16 U.S.C. 
 Title 54, Chapter 3125--Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C. 1170

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 (Section 401, 402, 404, 
408, and Section 319)
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1466
 Safe Drinking Water Act, 42 U.S.C. 300f- 300j-26

[[Page 38016]]

 General Bridge Act of 1946, 33 U.S.C. 525-533
 Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
 Wetlands Mitigation, 23 U.S.C. 119(g), 133(b)(14)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4130


 23 U.S.C. 138 and 49 U.S.C. 303 (Section 4(f)) and 
implementing regulations at 23 CFR part 774
 Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-


 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

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

 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. 13112, Invasive Species
 E.O. 13807, Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure Projects 
(aka ``One Federal Decision'').

    The proposed renewal MOU would allow ODOT to continue to act in the 
place of FHWA in carrying out the environmental review-related 
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 listed laws and executive orders. The 
ODOT also will not assume FHWA's responsibilities for conformity 
determinations required under Section 176 of the CAA (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.
    A copy of the proposed renewal MOU and renewal package may be 
viewed on the docket at www.regulations.gov, 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 ODOT's website at: https://transportation.ohio.gov/wps/portal/gov/odot/programs/nepa-assignment. 
The FHWA will consider the comments submitted when making its decision 
on the proposed MOU revision. Any final renewal MOU approved by FHWA 
may include changes based on comments and consultations relating to the 
proposed renewal MOU and will be made publicly available.

    Authority: 23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 
40 CFR 1507.3, 1508.4.

Nicole R. Nason,
Administrator, Federal Highway Administration.
[FR Doc. 2020-13579 Filed 6-23-20; 8:45 am]