[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23307-23309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08291]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0006]


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

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

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the Utah Department of Transportation (UDOT) 
requesting renewed 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 determined the renewal package to 
be complete and developed a draft renewal MOU with UDOT outlining how 
the State will implement the Program with FHWA oversight. The public is 
invited to comment on UDOT's request, including its renewal package and 
the proposed renewal MOU, which includes the proposed assignments and 
assumptions of environmental review, consultation and other activities.

DATES: Please submit comments by May 19, 2022.

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 www.regulations.gov and 
follow the online instructions for submitting comments.
     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 20590-0001.
     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 www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Ed Woolford by email at: 
[email protected] or by telephone at (801) 955-3524. The FHWA 
Utah Division Office's normal business hours are 7:30 a.m. to 4:30 p.m. 
(Mountain Time), Monday-Friday, except for Federal holidays. For the 
State of Utah: Brandon Weston by email at: [email protected] or by 
telephone at (801) 965-4603. State business hours are 8 a.m. to 5 p.m., 
Monday-Friday, except for State holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice may be downloaded from the 
Federal Register's home page at www.archives.gov. An electronic version 
of the application materials and proposed MOU may be downloaded by 
accessing the DOT docket, as described above, at www.regulations.gov/.

Background

    Section 327 of Title 23, United States Code (U.S.C.), allows the 
Secretary of the DOT to assign, and a State to assume, the 
responsibilities under the 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 matters.
    The UDOT entered the Program on January 17, 2017, 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 Program (the original 23 CFR part 773).
    On November 16, 2016, FHWA published a notice of UDOT's draft MOU 
in the Federal Register to solicit the view of the public and Federal 
agencies on FHWA's preliminary decision to approve the application. 
Following the comment period, FHWA and UDOT considered comments and 
proceeded to execute the MOU (2017 MOU). Effective January 17, 2017, 
UDOT assumed FHWA's responsibilities under NEPA, and the 
responsibilities for reviews under other Federal environmental 
requirements.
    On July 21, 2021, after coordination with FHWA, UDOT submitted a 
renewal package in accordance with the renewal regulations in 23 CFR 
773.115. On November 18, 2021, UDOT requested an extension to the 2017 
MOU in order to allow further discussion between the parties on the new 
language for the renewal MOU. In a letter dated December 8, 2021, FHWA 
granted an extension of the MOU until April 29, 2022. Under the 
proposed renewal MOU, FHWA would assign to the State, through UDOT, 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 Agency Program (LAP) 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 LAP projects off the SHS that are funded by FHWA or require 
FHWA approvals, and that do not qualify for assignment of 
responsibilities pursuant to the MOU for environmental reviews and

[[Page 23308]]

decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326 
program.
    3. All Class III, or environmental assessment projects, both on the 
SHS and LAP 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 and meet the definition of a highway project 
found at 23 CFR 773.103. For these projects, UDOT would not assume the 
NEPA responsibilities of other Federal agencies. However, UDOT may use 
or adopt other Federal agencies' NEPA analyses consistent with 40 CFR 
1500-1508, and DOT and FHWA regulations, policies, and guidance.
    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 UDOT; projects that cross 
State boundaries; projects that cross or are adjacent to international 
boundaries; and any projects that may be designed and constructed by 
FHWA under a 23 U.S.C. 308 agreement between the FHWA Central Federal 
Lands Highway Division and UDOT.
    The assignment also would give UDOT the responsibility to conduct 
the following environmental review, consultation, and other related 
activities:

Air Quality

 Clean Air Act (CAA), 42 U.S.C. 7401-7671q, with the exception 
of any project level conformity determinations (42 U.S.C. 7506).

Noise

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

Wildlife

 Endangered Species Act of 1973, 16 U.S.C. 1531-1544
 Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
 Migratory Bird Treaty Act, 16 U.S.C. 703-712
 Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d

Hazardous Materials Management

 Comprehensive Environmental Response, Compensation, and 
Liability Act, 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act, 42 U.S.C. 9671-
9675
 Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k

Historic and Cultural Resources

 National Historic Preservation Act of 1966, as amended, 54 
U.S.C. 306101, et seq.
 Archeological and Historic Preservation Act of 1966, as 
amended 16 U.S.C. 470aa-479mm
 Title 54, Chapter 3125, Preservation of Historical and 
Archeological Data, 54 U.S.C. 312501-312508
 Native American Grave Protection and Repatriation Act, 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, 7 U.S.C. 4201-4209

Water Resources and Wetlands

 Clean Water Act, 33 U.S.C. 1251-1387 (Sections 401, 402 404, 
408, and Section 319)
 Safe Drinking Water Act, 42 U.S.C. 300f-300j-26
 Rivers and Harbors Act of 1899, 33 U.S.C. 403
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3921
 Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
 Flood Disaster Protection Act, 42 U.S.C. 4001-4130
 General Bridge Act of 1946, 33 U.S.C. 525-533
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777

Parklands

 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
 Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310

FHWA-Specific

 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
 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, as amended by E.O. 13751, 
Safeguarding the Nation from the Impacts of Invasive Species.
 E.O. 13985--Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government
 E.O. 13990--Protecting Public Health and the Environment and 
Restoring Science to Tackle the Climate Crisis
 E.O. 14008--Tackling the Climate Crisis at Home and Abroad
 Other E.O.'s not listed, but related to highway projects.
    The proposed renewal MOU would allow UDOT 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 E.O.s. The UDOT will 
continue to handle routine consultations with the Tribes and 
understands that a Tribe has the right to direct consultation with FHWA 
upon request. The UDOT also may assist FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. The UDOT 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.
    The MOU content reflects UDOT's desire to continue its 
participation in the Program. The FHWA and UDOT have agreed to modify 
some of the provisions in the MOU to, among other things: Clarify the 
categories of projects for which UDOT is assigned responsibility, 
designate a Senior Agency Official at UDOT consistent with 40 CFR 
1508.1(dd); remove projects for which FHWA retained responsibilities 
for environmental review following a NEPA decision; remove auditing 
requirements; revise monitoring requirements; update record retention 
requirements; provide for enhanced reporting to FHWA on issues 
including environmental justice analysis and associated mitigation,

[[Page 23309]]

where applicable; revise provisions related to data and information 
requests; and revise provisions related to FHWA-initiated withdrawal of 
assigned projects.
    A copy of the proposed renewal MOU and renewal package may be 
viewed on the DOT 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 UDOT's website at https://www.udot.utah.gov/connect/about-us/program-development-group/environmental-division/.
    The FHWA Utah Division, in consultation with FHWA Headquarters, 
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.

    (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 773; 40 CFR 
1507.3, 1508.4.

Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-08291 Filed 4-18-22; 8:45 am]
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