[Federal Register Volume 87, Number 75 (Tuesday, April 19, 2022)]
[Notices]
[Pages 23311-23313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08294]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2022-0007]


Renewal Package From the State of California 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 California Department of Transportation 
(Caltrans) 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 Caltrans outlining how the State will implement the 
Program with FHWA oversight. The public is invited to comment on 
Caltrans' 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: Shawn Oliver by email at: 
[email protected] or by telephone at (916) 498-5048. The FHWA 
California Division Office's normal business hours are 8:00 a.m. to 
4:30 p.m. (Pacific Time), Monday-Friday, except for Federal holidays. 
For the State of California: Chris Benz-Blumberg by email at 
[email protected] or by telephone at (916) 956-8660. State 
business hours are the same as above although State holidays may not 
completely coincide with Federal 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

[[Page 23312]]

FHWA is authorized to act on behalf of the Secretary with respect to 
these matters.
    Caltrans entered the Program on July 1, 2007, 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 April 11, 2007, FHWA published a notice of Caltrans' 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 Caltrans considered comments and 
proceeded to execute the MOU. Effective July 1, 2007, Caltrans assumed 
FHWA's responsibilities under NEPA, and the responsibilities for 
reviews under other Federal environmental requirements. Subsequently, 
Caltrans has applied to renew its participation in the Program. 
Caltrans entered into renewal MOUs with FHWA on October 1, 2012, and 
December 23, 2016 (2016 MOU).
    On June 1, 2021, after coordination with FHWA, Caltrans submitted a 
renewal package in accordance with the renewal regulations in 23 CFR 
773.115. On October 21, 2021, Caltrans requested an extension to the 
2016 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 
Caltrans, 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 Assistance projects off the 
SHS that are funded by FHWA or require FHWA approvals.
    2. All Class II, or categorically excluded (CE) projects, both on 
the SHS and Local Assistance 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 
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 Local Assistance 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, Caltrans would not assume 
the NEPA responsibilities of other Federal agencies. However, Caltrans 
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 Caltrans; 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 Caltrans.
    The assignment also would give Caltrans 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.

Noise

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

Wildlife

 Endangered Species Act of 1973, 16 U.S.C. 1531-1544
 Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
 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
 Magnuson-Stevens Fishery Conservation and Management Act of 
1976, as amended, 16 U.S.C. 1801-1891d

Historic and Cultural Resources

 National Historic Preservation Act of 1966, as amended, 54 
U.S.C. 306101, et seq.
 Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-470mm
 Archeological and Historic Preservation Act, 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, 
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 (SDWA), 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. 3901 and 3921
 Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4130

Parklands

 Section 4(f), 23 U.S.C. 138 and 49 U.S.C. 303
 Land and Water Conservation Fund Act, 54 U.S.C. 200302-200310

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

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

[[Page 23313]]

 E.O. 13112, 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 EOs not listed, but related to highway projects.

    The proposed renewal MOU would allow Caltrans 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 EOs. Caltrans will 
continue to handle routine consultations with the Tribes and 
understands that a Tribe has the right to direct consultation with FHWA 
upon request. Caltrans also may assist FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. Caltrans 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 Caltrans' desire to continue its 
participation in the Program. The FHWA and Caltrans have agreed to 
modify some of the provisions in the MOU to, among other things: 
clarify the categories of projects for which Caltrans is assigned 
responsibility, designate a Senior Agency Official at Caltrans 
consistent with 40 CFR 1508.1(dd); remove projects for which FHWA 
retained responsibilities for environmental review following a NEPA 
decision; update record retention requirements; provide for enhanced 
reporting to FHWA on issues including environmental justice analysis 
and associated mitigation, where applicable; revise provisions related 
to data and information requests; and revise provisions related to 
FHWA-initiated withdrawal of assigned projects.
    Prior MOUs in this Program had 5-year terms. Changes to 23 U.S.C. 
327(c)(5) under the Bipartisan Infrastructure Law (Infrastructure 
Investment and Jobs Act, Pub. L. 117-58), enacted on November 15, 2021, 
require that MOUs have a term of 10 years for a State that has assumed 
the responsibility for environmental review under the Program for 10 
years or longer. Caltrans has participated in this program for 15 
years. Therefore, this proposed renewal MOU will have a term of 10 
years.
    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 Caltrans' website at: https://dot.ca.gov/programs/environmental-analysis/nepa-assignment.
    The FHWA California 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. 2022-08294 Filed 4-18-22; 8:45 am]
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