[Federal Register Volume 89, Number 140 (Monday, July 22, 2024)]
[Notices]
[Pages 59181-59182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16024]



[[Page 59181]]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2024-0049]


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

AGENCY: Federal Highway Administration (FHWA).

ACTION: Notice of proposed second renewal of MOU; request for comments.

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SUMMARY: The FHWA and the State of Nebraska, acting by and through its 
Department of Transportation (State), propose renewing the MOU 
providing participation of the State in the Categorical Exclusion 
Assignment program. This program allows FHWA to assign its authority 
and responsibility for determining whether certain designated 
activities within the geographic boundaries of the State, as specified 
in the proposed MOU, are categorically excluded from preparation of an 
environmental assessment or an environmental impact statement under the 
National Environmental Policy Act.

DATES: Comments must be received on or before August 21, 2024.

ADDRESSES: You may submit comments, identified by Docket Number FHWA-
2024-0049, by any of the methods described below. To ensure that you do 
not duplicate your 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.
     Mail: U.S. Department of Transportation, Docket 
Operations, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 
20590-0001.
     Hand Delivery or Courier: U.S. Department of 
Transportation, Docket Operations, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9:00 a.m. 
and 5:00 p.m. ET, except Federal holidays.
    Instructions: You must include the agency name and docket number 
FHWA-2024-0049 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: Luke Pitts; by email at 
[email protected] or by telephone at 402-742-8466. The Nebraska 
Division Office's normal business hours are 8 a.m. to 5 p.m. (Central 
Standard Time), Monday through Friday, except Federal holidays. For the 
State of Nebraska: Kyle Keller: by email at [email protected] or 
by telephone at 402-479-4795. The Nebraska Department of 
Transportation's business hours are 8 a.m. to 5 p.m. (Central Standard 
Time), Monday through Friday, except State and Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document, a complete copy of the proposed second renewal MOU, 
background documents, and comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov. The 
website is available 24 hours each day, 365 days each year. An 
electronic copy of this document may also be downloaded by accessing 
the Office of the Federal Register's website at www.federalregister.gov 
and the Government Publishing Office's website at www.govinfo.gov. This 
document is also available on the Nebraska Department of Transportation 
(NDOT) website at https://dot.nebraska.gov/projects/environment/nepa-assignment/.

Background

    Section 326 of title 23, United States Code (U.S.C.), creates a 
program that allows the Secretary of the U.S. Department of 
Transportation (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 
Federal highway projects. The FHWA is authorized to act on behalf of 
the Secretary with respect to these matters.
    The FHWA would execute the second renewal of Nebraska's 
participation in this program through an MOU. Statewide decision making 
responsibility would be assigned for all activities identified in the 
MOU within the categories listed in 23 CFR 771.117(c) and those listed 
as examples in 23 CFR 771.111(d), and any activities added through FHWA 
rulemaking to those listed in 23 CFR 771.117(c) or example activities 
listed in 23 CFR 771.117(d) after the date of the execution of this 
MOU. 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:

 Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Including 
determinations for project-level conformity if required for the 
project, except as specified in Stipulation II.B.2 of the MOU
 Noise Control Act of 1972, 42 U.S.C. 4901-4918
 Compliance with the noise regulations in 23 CFR part 772 
(except approval of the State noise policy in accordance with 23 CFR 
772.7)
 Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and 1536
 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 Treaty Act, as amended, 16 U.S.C. 668-
668c
 Section 106 of the National Historic Preservation Act of 1966, 
as amended, 54 U.S.C. 306108
 Archeological Resources Protection Act of 1979, 16 U.S.C. 
470aa-mm
 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
 Section 4(f) of the Department of Transportation Act of 1966, 
23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774, except as specified 
in Stipulation II.B.2 of the MOU
 American Indian Religious Freedom Act, 42 U.S.C. 1996
 Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
 Clean Water Act, 33 U.S.C. 1251-1377, Sections 401, 404, and 
319
 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, 3931
 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(3)
 FHWA wetland and natural habitat mitigation regulations, 23 
CFR part 777
 Flood Disaster Protection Act, 42 U.S.C. 4001-4128
 Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
 Land and Water Conservation Fund (LWCF), Public Law 88-578, 78 
Stat. 897 (known as Section 6(f))

[[Page 59182]]

 Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act of 1986 (SARA), 
42 U.S.C. 9671-9675
 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k
 Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 
319
 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. 11593, Protection and Enhancement of Cultural Resources
 E.O. 13007, Indian Sacred Sites
 E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments
 E.O. 13122 and E.O. 13751, Invasive Species
 E.O. 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government
 Planning and Environmental Linkages, 23 U.S.C. 168, except for 
those FHWA responsibilities associated with 23 U.S.C. 134 and 135
 Programmatic Mitigation Plans, 23 U.S.C. 169, except for those 
FHWA responsibilities associated with 23 U.S.C. 134 and 135.

    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 may also assist FHWA with formal consultations, with 
consent of a Tribe, but FHWA remains responsible for the consultation.
    This assignment includes transfer to the State of Nebraska the 
obligation to fulfill the assigned environmental responsibilities on 
any proposed projects meeting the criteria in Stipulation 1(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.
    The FHWA will consider the comments submitted on the proposed 
second renewal MOU when making its decision on whether to execute this 
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.

Richard Wayne Fedora,
Nebraska Division Administrator, Federal Highway Administration.
[FR Doc. 2024-16024 Filed 7-19-24; 8:45 am]
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