[Federal Register Volume 89, Number 70 (Wednesday, April 10, 2024)]
[Notices]
[Pages 25310-25312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07568]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2024-0019]


Renewal Package From the State of Arizona to the Surface 
Transportation Project Delivery Program and Proposed Memorandum of 
Understanding (MOU) Assigning Federal Highway Administration's 
Environmental Review Responsibilities to the State

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

ACTION: Notice of proposed MOU, request for comments.

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SUMMARY: This notice announces that FHWA has received and reviewed a 
renewal package from the Arizona Department of Transportation (ADOT) 
requesting renewed participation in the Surface Transportation Project 
Delivery Program (Program). This Program allows 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 ADOT outlining how 
the State will implement the Program with FHWA oversight. The public is 
invited to comment on ADOT's renewal package, which includes the draft 
renewal MOU that describes the proposed assignments and assumptions of 
environmental review, consultation, and other activities.

DATES: Please submit comments by May 10, 2024.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number FHWA-2024-0019, by any of the 
methods described below. To ensure that you do not duplicate your 
submissions, please submit them by only one of the means below. 
Electronic comments are preferred because Federal offices experience 
intermittent mail delays from security screening.
     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 Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590.
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue 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: Ms. Rebecca Yedlin, Environmental Program Manager, 
Federal Highway Administration, 4000 North Central Avenue, Suite 1500, 
Phoenix, AZ 85012; by email at [email protected] or by telephone

[[Page 25311]]

at 602-382-8979. The FHWA Arizona Division office's normal business 
hours are 8:00 a.m. to 4:30 p.m. (Arizona Time), Monday-Friday, except 
for Federal Holidays.
    For the State of Arizona: Mr. Steve Olmsted, NEPA Assignment 
Manager, Arizona Department of Transportation, 205 S 17th Avenue, Mail 
Drop EM02, Phoenix, AZ 85007; by email at [email protected] or by 
telephone at 602-712-6421. The Arizona Department of Transportation's 
normal business hours are 8:00 a.m. to 4:30 p.m. (Arizona Time), 
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: www.FederalRegister.gov and the U.S. Government Publishing 
Office's database at: www.GovInfo.gov. An electronic version of the 
proposed renewal MOU may be downloaded by accessing the DOT DMS 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 ADOT entered the Program on April 16, 2019, 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 (23 CFR part 773).
    On June 29, 2018, prior to submittal of its application to FHWA, 
ADOT published in the Federal Register and solicited public comment on 
its draft application to participate in the Program. After considering 
and addressing public comments, ADOT submitted its application to FHWA 
on November 16, 2018. The application served as the basis for 
developing the MOU identifying the responsibilities and obligations 
ADOT would assume. The FHWA published a notice of the draft MOU in the 
Federal Register on February 11, 2019, soliciting the views of the 
public and Federal Agencies on FHWA's preliminary decision to approve 
the application. Following the comment period, FHWA and ADOT considered 
comments and proceeded to execute the MOU (2019 MOU). Effective April 
16, 2019, ADOT assumed FHWA's responsibilities under NEPA, and the 
responsibilities for reviews under other Federal environmental 
requirements.
    On October 19, 2023, after coordination with FHWA, ADOT submitted a 
renewal package in accordance with the renewal regulations in 23 CFR 
773.115. The ADOT's completed renewal package was submitted on March 5, 
2024. In order to complete the public involvement process and finalize 
the renewal MOU, FHWA has indicated ADOT may retain temporarily its 
assigned and assumed responsibilities under a MOU after the expiration 
of the MOU in accordance with 23 CFR 773.115(h).
    Under the proposed renewal MOU, FHWA would assign to the State, 
through ADOT, and ADOT assumes, subject to the terms and conditions set 
forth in 23 U.S.C. 327 and this MOU, all the DOT Secretary's 
responsibilities for compliance with the NEPA of 1969, 42 U.S.C. 4321, 
et seq., with respect to the highway projects specified under subpart 
3.3. This includes statutory provisions, regulations, policies, and 
guidance related to the implementation of NEPA for Federal-aid highway 
projects, 23 U.S.C. 139, 40 CFR parts 1500-1508, DOT Order 5610.1C, and 
23 CFR part 771, as applicable. Excluded from assignment are:
     Any Federal Lands Highway projects authorized under 23 
U.S.C. 202, 203, 204, and Section 1123 of the Fixing America's Surface 
Transportation Act, unless such projects will be designed and 
constructed by ADOT.
     Any project that crosses or is adjacent to international 
boundaries.
     Any highway project that crosses State boundaries.
     South Mountain Freeway Environmental Impact Statement 
until the notices of limitation of claims issued by FHWA pursuant to 23 
U.S.C. 139(l) have expired. The ADOT agrees to be responsible for any 
re-evaluations needed under 23 CFR 771.129 or other environmental 
reviews needed for the South Mountain Freeway Project thereafter.
     Interstate 11 (I-11) Corridor Tier 1 EIS, Nogales to 
Wickenburg until resolution of the complaint filed against FHWA 
(Coalition for Sonoran Desert Protection et al v. Federal Highway 
Administration et al., Case No. 4:22-cv-00193-JCH), any re-evaluations 
or other actions not ordered by the court, and any subsequent appeals.
     I-11, I-10 to US 93 Tier 2 EIS in Maricopa County until 
the notice of limitation of claims issued by FHWA pursuant to 23 U.S.C. 
139(l) for the Record of Decision has expired.
     Projects advanced by direct recipients of Federal 
assistance other than ADOT, including but not limited to competitive 
grant programs and Transportation Infrastructure Finance and Innovation 
Act (TIFIA) Credit Program.
    The assignment does not alter the scope and terms of Section 326 
MOU signed on January 3, 2018, renewed on January 4, 2021, and 
subsequently on December 20, 2023, between ADOT and FHWA. As 
applicable, ADOT will conduct all environmental reviews authorized 
under the terms of that MOU.
    The assignment also would give ADOT the responsibility to conduct 
the following environmental review, consultation, and other related 
activities:

Air Quality
     Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of 
project level conformity determinations
Executive Orders (E.O.) Relating to Highway Projects
     E.O. 11593, Protection and Enhancement of the Cultural 
Environment
     E.O. 11988, Floodplain Management (except approving design 
standards 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. 13007, Indian Sacred Sites
     E.O. 13112, Invasive Species, as amended by E.O. 13751, 
Safeguarding the Nation from the Impacts of Invasive Species
     E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments
     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 Executive Orders not listed, but related to highway 
projects
FHWA-Specific

[[Page 25312]]

     Efficient Project Reviews for Environmental 
Decisionmaking, 23 U.S.C. 139
     Environmental Impact and Related Procedures, 23 CFR part 
771
     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. 
6901-6992k
     Superfund Amendments and Reauthorization Act (SARA), 42 
U.S.C. 9671-9675
    Historic and Cultural Resources
     Archeological Resources Protection Act of 1979, 16 U.S.C. 
470(aa)-(mm)
     Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-3013; 18 U.S.C.1170
     Preservation of Historical and Archeological Data, 54 
U.S.C. 312501-312508
     Section 106 of the National Historic Preservation Act of 
1966, as amended, 54 U.S.C. 306108
Noise
     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. 
200302-200310
     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
     Section 319, 33 U.S.C. 1329
     Section 401, 33 U.S.C. 1341
     Section 402, 33 U.S.C. 1342
     Section 404, 33 U.S.C. 1344
     Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
     Flood Disaster Protection Act, 42 U.S.C. 4001-4130
     Mitigation of Impacts to Wetlands and Natural Habitat, 23 
CFR part 777
     Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 
401, 403, and 408
     Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-26
     Wetlands Mitigation, 23 U.S.C. 119(g)
     Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Wildlife
     Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f
     Bald and Golden Eagle Protection Act, as amended, 16 
U.S.C. 668-668c
     Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
     Magnuson-Stevens Fishery Conservation and Management Act 
of 1976, as amended, 16 U.S.C. 1801-1891d
     Marine Mammal Protection Act, 16 U.S.C. 1361-1423h
     Migratory Bird Treaty Act, 16 U.S.C. 703-712
     Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1536.

    The proposed renewal MOU would allow ADOT 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 ADOT 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 ADOT also may assist FHWA with formal consultations, 
with consent of a Tribe, but FHWA remains responsible for the 
consultation. The ADOT also will not assume FHWA's responsibilities for 
conformity determinations required under 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 MOU content reflects ADOT's desire to continue its 
participation in the Program. The FHWA and ADOT have agreed to modify 
some of the provisions in the MOU to, among other things: clarify the 
categories of projects excluded from assignment; designate a Senior 
Agency Official at ADOT consistent with 40 CFR 1508.1(dd); 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, 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 DMS 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 ADOT's website at https://azdot.gov/business/envirnonmental-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 
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 771.101-139; 
23 CFR 773.115; 40 CFR 1507.3; and 49 CFR 1.85.

Shailen P. Bhatt,
Administrator, Federal Highway Administration.
[FR Doc. 2024-07568 Filed 4-9-24; 8:45 am]
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