Proposed 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)

Joseph A. Werning
Federal Highway Administration
16 July 2018

[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Notices]
[Pages 32948-32949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15099]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2018-0033]


Proposed 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), DOT.

ACTION: Notice of proposed 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 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 Memorandum of Understanding 
(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 15, 2018.

ADDRESSES: You may submit comments, identified by DOT Document 
Management System (DMS) Docket Number FHWA-2018-0033, 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 or facsimile comments are preferred because Federal offices 
experience intermittent mail delays from security screening.
    Federal eRulemaking Portal: Go to website: 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 Avenue 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 Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Eastern Time, 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 http://www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: For FHWA: Melissa Maiefski; by email 
at Melissa.Maiefski@dot.gov or by telephone at 402-742-8473. The 
Nebraska Division Office's normal business hours are 8 a.m. to 5:00 
p.m. (Central Standard Time), Monday through Friday, except Federal 
holidays. For the State of Nebraska: Brandie Neemann: By email at 
Brandie.Neemann@nebraska.gov 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

    Internet users may reach the Office of the Federal Register's home 
page at: http://www.archives.gov/ and the Government Publishing 
Office's database at: 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 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 Nebraska's participation in this program 
through an MOU. 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 771.111(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
 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.

[[Page 32949]]

138 and 49 U.S.C. 303; 23 CFR part 774
 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
 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
 Land and Water Conservation Fund (LWCF), Public Law 88-578, 78 
Stat. 897 (known as Section 6(f))
 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
 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 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.

Joseph A. Werning,
Division Administrator, Federal Highway Administration.
[FR Doc. 2018-15099 Filed 7-13-18; 8:45 am]
 BILLING CODE 4910-22-P