2015-18958. Proposed Memorandum of Understanding Revision (MOU) Assigning Certain Federal Environmental Responsibilities to the State of Alaska, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

AGENCY:

Federal Highway Administration (FHWA).

ACTION:

Notice of proposed MOU, request for comments.

SUMMARY:

The FHWA and the State of Alaska, acting by and through its Department of Transportation (State), propose a renewal of the State's participation in the 23 U.S.C. 326 program. This program allows FHWA to assign to States its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed Memorandum of Understanding (MOU), are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act. An amended MOU would renew the State's participation in the program. The MOU will be amended by incorporating the following changes: Projects that include Federal Aid Highway Program funds and other Federal funds would now be assignable; Federal Lands Highway Program (FLHP) projects funded under 23 U.S.C. 204 and designed and constructed by the State would now be assignable; and projects involving Section 7 Endangered Species Act (ESA) formal consultation would now be assignable.

DATES:

Comments must be received on or before September 2, 2015.

ADDRESSES:

You may submit comments, identified by DOT Document Management System (DMS) Docket Number [FHWA-2015-0018], by any of the methods described below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays from security screening.

Web site: http://www.regulations.gov. Follow the instructions for submitting comments on the DOT electronic docket site.

Facsimile (Fax): 1-202-493-2251.

Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590.

Hand Delivery: 1200 New Jersey Ave. SE., Washington, DC 20590 between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

For access to the docket to view a complete copy of the proposed MOU, or to read background documents or comments received, go to http://www.regulations.gov at any time or to 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For FHWA: Tim Haugh; by email at [e-mail] or by telephone at 907-586-7430. The FHWA Alaska Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Alaska Time), Monday-Friday, except for Federal Holidays. For State: Taylor Horne; by email at [e-mail]; by telephone at 907-465-6957. The Alaska Department of Transportation's normal business hours are 8 a.m. to 5 p.m. (Alaska 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: http://www.archives.gov/​ and the Government Printing Office's database: http://www.fdsys.gov.

An electronic version of the proposed MOU may be downloaded by accessing the DOT DMS docket, as described above, at http://www.regulations.gov.

Background

Section 326 of Title 23 U.S. Code, creates a program that allows the Secretary of the DOT (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 these actions. The FHWA is authorized to act on behalf of the Secretary with respect to these matters.

Through an amended MOU, FHWA would renew Alaska's participation in this program for a second time. The original MOU became effective on September 22, 2009, for an initial term of three (3) years and the first renewal followed on September 20, 2012. The proposed MOU revision is set to supersede the renewed MOU prior to its expiration date on September 20, 2015. Stipulation I(B) of the MOU describes the types of actions for which the State would assume project-level responsibility for determining whether the criteria for a CE are met. Statewide decision-making responsibility would be assigned for all activities within the categories listed in 23 CFR 771.117(c) and those listed as examples in 23 CFR 771.117(d).

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:

1. Clean Air Act (CAA), 42 U.S.C. 7401-7671q (determinations of project-level conformity if required for the project).

2. Compliance with the noise regulations in 23 CFR 772.

3. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531- 1544, and Section 1536.

4. Marine Mammal Protection Act, 16 U.S.C. 1361.

5. Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g.

6. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.

7. Migratory Bird Treaty Act, 16 U.S.C. 703-712.

8. Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801 et seq.

9. Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306101 et seq.

10. Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; and 23 CFR part 774.

11. Archeological and Historic Preservation Act of 1966, as amended, 54 U.S.C. 3201

12. American Indian Religious Freedom Act, 42 U.S.C. 1996.

13. Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.

14. Clean Water Act, 33 U.S.C. 1251- 1377 (Section 404, Section 401, Section 319).

15. Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.

16. Coastal Zone Management Act, 16 U.S.C. 1451-1465.

17. Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.

18. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406.

19. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.

20. Emergency Wetlands Resources Act, 16 U.S.C. 3921-3931.

21. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(11).

22. Flood Disaster Protection Act, 42 U.S.C. 4001-4128.

23. Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604 (known as section 6(f)).

24. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675.

25. Superfund Amendments and Reauthorization Act of 1986 (SARA).

26. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901- 6992k.

27. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C.

28. Executive Orders Relating to Highway Projects (E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; 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. 13112, Invasive Species).

The MOU allows the State to act in the place of the 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 also may assist the FHWA with formal consultations, with consent of a tribe, but the FHWA remains responsible for the consultation. This assignment includes transfer to the State of Alaska the obligation to fulfill the assigned environmental responsibilities on any proposed projects meeting the criteria in Stipulation I(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.

In addition to proposing a renewal of the State's participation in the program, the proposed MOU would have three changes from the previous version. The MOU will be amended by allowing assignment of projects that include Federal Aid Highway Program funds and other Federal funds. These types of projects were not available for assignment in the previous versions. The MOU would also be amended to allow assignment of Federal Lands Highway Program (FLHP) projects funded under 23 U.S.C. 204 and designed and constructed by ADOT&PF. For example, projects receiving Federal Land Access Program funds would be available for assignment as long as the State is the entity designing and constructing the project. Finally, the MOU would be amended by allowing the State to engage in formal consultation under Section 7 Endangered Species Act (ESA). This responsibility was retained by FHWA in previous versions of the MOU.

The FHWA will consider the comments submitted on the proposed MOU when making its decision on whether to execute this renewal 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.

Issued on: July 27, 2015.

Sandra A. Garcia-Aline,

Division Administrator, Juneau, Alaska.