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.govinfo.gov/​. An electronic version of the proposed 2022 renewal 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 renewed California's participation in this program for a fourth time on April 18, 2019. The original MOU became effective on June 7, 2007, for an initial term of 3 years. The first renewal followed on June 7, 2010, the second renewal followed on June 7, 2013. The third renewal followed on May 31, 2016, and was amended on December 30, 2016. The fourth renewal has an expiration date of April 18, 2022.

Prior MOUs in this program had 3-year terms. Changes to 23 U.S.C. 326(c)(3) under the Bipartisan Infrastructure Law (Infrastructure Investment and Jobs Act, Pub. L. 117-58), enacted on November 15, 2021, require that MOUs have a term of 5 years for a State that has assumed the responsibility for CEs under the program for 10 years or longer. Caltrans has participated in this program for 14 years. Therefore, this proposed renewal MOU will have a term of 5 years.

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 in23 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

Marine Mammal Protection Act,16 U.S.C. 1361-1423h

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

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 1976, as amended,16 U.S.C. 1801-1891d

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

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

Coastal Zone Management Act,16 U.S.C. 1451-1466

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))

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. 13122, Invasive Species

Planning and Environment 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. ( printed page 14319) The State may also assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation.

The FHWA will consider the comments submitted on the proposed fifth 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.

87 FR 14317