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Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

American Government Special Collections Reference Desk

American Government

Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

Michael T. Leary
Federal Highway Administration
July 29, 2013


[Federal Register Volume 78, Number 145 (Monday, July 29, 2013)]
[Notices]
[Pages 45599-45600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18115]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA--2013-0040]


Proposed Memorandum of Understanding (MOU) Assigning 
Environmental Responsibilities to the State of Texas for Categorical 
Exclusions

AGENCY: Federal Highway Administration (FHWA), Texas Division Office, 
DOT.

ACTION: Notice of proposed MOU and request for comments.

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SUMMARY: This notice announces that the FHWA and the Texas Department 
of Transportation (State) have developed a proposed MOU, pursuant to 23 
U.S.C. 326, under which the FHWA would assign to the State the FHWA's 
responsibility for determining whether a project is categorically 
excluded from preparation of an environmental assessment or an 
environmental impact statement under the National Environmental Policy 
Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), and for carrying out 
certain other responsibilities for conducting environmental reviews, 
consultations, and related activities for Federal-aid highway projects. 
The public is invited to comment on any aspect of the proposed MOU, 
including the proposed designations of categorical exclusions and scope 
of environmental review, consultation and other activities to be 
assigned.

DATES: Please submit comments by August 28, 2013.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number FHWA-2013-0040, by any of the 
methods described below. Electronic or facsimile comments are preferred 
because Federal offices experience intermittent mail delays from 
security screening.
    1. Web site: http://www.regulations.gov. Follow the instructions 
for submitting comments on the DOT electronic docket site.
    2. Facsimile (Fax): 1-202-493-2251.
    3. Mail: Docket Management Facility; U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590.
    4. Hand Delivery: 1200 New Jersey Ave. SE., Washington, DC 20590 
between 9 a.m. and 5 p.m. Eastern Time, 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. Eastern Time, Monday 
through Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT:
Michael T. Leary, Director of Planning and Program Development, Federal 
Highway Administration Texas Division, 300 E. 8 St., Room 826, Austin, 
TX 78701, 7:00 a.m.--4:30 p.m. (CST), (512) 536-5940, 
michael.leary@dot.gov.
Carlos H. Swonke, P.G., Director Environmental Affairs Division, Texas 
Department of Transportation, 125 E. 11th St., Austin, TX 78701, 8:00 
a.m.--5: p.m. (CST), (512) 416-2734, carlos.swonke@txdot.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice may be downloaded using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at http://www.archives.gov and the Government Printing 
Office's Web site at http://www.access.gpo.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, United States Code (23 U.S.C. 326), allows 
the Secretary of the DOT (Secretary), to assign, and a State to assume, 
responsibility for determining whether certain designated activities 
are included within classes of action that are categorically excluded 
from requirements for environmental assessments or environmental impact 
statements pursuant to regulations promulgated by the Council on 
Environmental Quality under part 1500 of title 40, Code of Federal 
Regulations (CFR) (as in effect on October 1, 2003). The FHWA is 
authorized to act on behalf of the Secretary with respect to these 
matters.
    Under the proposed MOU, the FHWA would assign to the State the 
responsibility for making decisions on the following types of 
categorical exclusions:
    1. Activities listed in 23 CFR 771.117(c);
    2. Activities listed in 23 CFR 771.117(d).
    The assignment also would give the State the responsibility to 
conduct the following environmental review, consultation, and other 
related activities:

1. Air Quality

     Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Any 
determinations that do not involve conformity.

2. Noise

     Compliance with the noise regulations in 23 CFR 772.

3. Wildlife

     Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 
1531-1544, and Section 1536
     Marine Mammal Protection Act, 16 U.S.C. 1361
     Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g
     Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
     Migratory Bird Treaty Act, 16 U.S.C. 703-712
     Magnuson-Stevens Fishery Conservation and Management Act 
of

[[Page 45600]]

1976, as amended, 16 U.S.C. 1801 et seq., with Essential Fish Habitat 
requirements at 1855(b)(1)(B)

4. Historic and Cultural Resources

 Section 106 of the National Historic Preservation Act of 1966, 
as amended, 16 U.S.C. 470(f) et seq.
 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
 Archeological Resources Protection Act of 1977, 16 U.S.C. 
470(aa)-11
 Archeological and Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 469-469(c)
 Native American Grave Protection and Repatriation Act 
(NAGPRA), 25 U.S.C. 3001-30131

5. Social and Economic Impacts

 American Indian Religious Freedom Act, 42 U.S.C. 19961
 Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209

6. Water Resources and Wetlands

 Clean Water Act, 33 U.S.C. 1251-1377
- Section 404, Section 401, Section 319
 Coastal Barrier Resources Act, 16 U.S.C. 3501-3510
 Coastal Zone Management Act, 16 U.S.C. 1451-1465
 Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6
 Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 
401-406
 Section 9 of the Rivers and Harbors Act of 1899,(General 
Bridge Act) Navigability Determinations and Lighting Exemption Waivers
 Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
 Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
 TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 
(b)(11)
 Flood Disaster Protection Act, 42 U.S.C. 4001-4128

7. Parklands

 Section 4(f) of the Department of Transportation Act of 1966, 
49 U.S.C. 303
 Land and Water Conservation Fund (LWCF) Act, 16 U.S.C. 4601-4

8. Hazardous Materials

 Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), 42 U.S.C. 9601-9675
 Superfund Amendments and Reauthorization Act of 1986 (SARA)
 Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-
6992k

9. 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. 13112, Invasive Species

    The MOU would allow 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 listed laws and executive 
orders. The State will continue to handle routine consultations with 
the tribes and understands that a tribe has the right to direct 
consultation with the FHWA upon request. The State also may assist the 
FHWA with formal consultations, with consent of a tribe, but the FHWA 
remains responsible for the consultation.
    A copy of the proposed MOU may be viewed on the DOT DMS Docket, as 
described above, or may be obtained by contacting the FHWA or the State 
at the addresses provided above. A copy also may be viewed on the 
State's Web site at www.txdot.gov.
    The FHWA Texas Division, in consultation with FHWA Headquarters, 
will consider the comments submitted when making its decision on the 
proposed MOU revision. Any final MOU approved by FHWA may include 
changes based on comments and consultations relating to the proposed 
MOU. Once the FHWA makes a decision on the proposed MOU, the FHWA will 
place in the DOT DMS Docket a statement describing the outcome of the 
decision-making process and a copy of any final MOU. Copies of those 
documents also may be obtained by contacting the FHWA or the State at 
the addresses provided above, or by viewing the documents at the 
State's Web site at www.txdot.gov.
(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 24, 2013.
Michael T. Leary,
Director of Planning and Program Development, FHWA, Austin, Texas.
[FR Doc. 2013-18115 Filed 7-26-13; 8:45 am]
BILLING CODE 4910-22-P

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