SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this notice may be downloaded from the Federal Register 's home page at www.archives.gov. An electronic version of the application materials and proposed MOU may be downloaded by accessing the DOT docket, as described above, at www.regulations.gov/​.

Background

Section 327 of Title 23, United States Code (U.S.C.), allows the Secretary of the DOT to assign, and a State to assume, the responsibilities under the NEPA (42 U.S.C. 4321 et seq.) and all or part of the responsibilities for environmental review, consultation, or other actions required under certain Federal environmental laws with respect to one or more Federal-aid highway projects within the State. The FHWA is authorized to act on behalf of the Secretary with respect to these matters.

The UDOT entered the Program on January 17, 2017, after submitting its application to FHWA, obtaining FHWA's approval, and entering into a MOU in accordance with 23 U.S.C. 327 and FHWA's application regulations for the Program (the original 23 CFR part 773).

On November 16, 2016, FHWA published a notice of UDOT's draft MOU in the Federal Register to solicit the view of the public and Federal agencies on FHWA's preliminary decision to approve the application. Following the comment period, FHWA and UDOT considered comments and proceeded to execute the MOU (2017 MOU). Effective January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA, and the responsibilities for reviews under other Federal environmental requirements.

On July 21, 2021, after coordination with FHWA, UDOT submitted a renewal package in accordance with the renewal regulations in 23 CFR 773.115. On November 18, 2021, UDOT requested an extension to the 2017 MOU in order to allow further discussion between the parties on the new language for the renewal MOU. In a letter dated December 8, 2021, FHWA granted an extension of the MOU until April 29, 2022. Under the proposed renewal MOU, FHWA would assign to the State, through UDOT, the responsibility for making decisions on the following types of highway projects:

1. All Class I, or environmental impact statement projects, both on the State highway system (SHS) and Local Agency Program (LAP) projects off the SHS that are funded by FHWA or require FHWA approvals.

2. All Class II, or categorically excluded projects, both on the SHS and LAP projects off the SHS that are funded by FHWA or require FHWA approvals, and that do not qualify for assignment of responsibilities pursuant to the MOU for environmental reviews and ( printed page 23308) decisions for actions qualifying for CEs pursuant to the 23 U.S.C. 326 program.

3. All Class III, or environmental assessment projects, both on the SHS and LAP projects off the SHS that are funded by FHWA or require FHWA approvals.

4. Projects funded by other Federal agencies, or projects without any Federal funding, of any Class that also include funding by FHWA or require FHWA approvals and meet the definition of a highway project found at 23 CFR 773.103. For these projects, UDOT would not assume the NEPA responsibilities of other Federal agencies. However, UDOT may use or adopt other Federal agencies' NEPA analyses consistent with 40 CFR 1500-1508, and DOT and FHWA regulations, policies, and guidance.

Excluded from assignment are highway projects authorized under 23 U.S.C. 202 and 203; highway projects under 23 U.S.C. 204, unless the project will be designed and constructed by UDOT; projects that cross State boundaries; projects that cross or are adjacent to international boundaries; and any projects that may be designed and constructed by FHWA under a 23 U.S.C. 308 agreement between the FHWA Central Federal Lands Highway Division and UDOT.

The assignment also would give UDOT the responsibility to conduct the following environmental review, consultation, and other related activities:

Air Quality

• Clean Air Act (CAA),42 U.S.C. 7401-7671q, with the exception of any project level conformity determinations (42 U.S.C. 7506).

Noise

• Noise Control Act of 1972,42 U.S.C. 4901-4918
• Compliance with the noise regulations in23 CFR part 772

Wildlife

• Endangered Species Act of 1973,16 U.S.C. 1531-1544
• 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 Protection Act,16 U.S.C. 668-668d

Hazardous Materials Management

• Comprehensive Environmental Response, Compensation, and Liability Act,42 U.S.C. 9601-9675
• Superfund Amendments and Reauthorization Act,42 U.S.C. 9671-9675
• Resource Conservation and Recovery Act,42 U.S.C. 6901-6992k

Historic and Cultural Resources

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

Archeological and Historic Preservation Act of 1966, as amended16 U.S.C. 470aa-479mm

Title 54, Chapter 3125, Preservation of Historical and Archeological Data,54 U.S.C. 312501-312508

Native American Grave Protection and Repatriation Act,25 U.S.C. 3001-3013; 18 U.S.C. 1170

Social and Economic Impacts

• American Indian Religious Freedom Act,42 U.S.C. 1996
• Farmland Protection Policy Act,7 U.S.C. 4201-4209

Water Resources and Wetlands

• Clean Water Act,33 U.S.C. 1251-1387 (Sections 401, 402 404, 408, and Section 319)
• Safe Drinking Water Act,42 U.S.C. 300f-300j-26
• 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
• Wetlands Mitigation,23 U.S.C. 119(g) and 133(b)(14)
• Flood Disaster Protection Act,42 U.S.C. 4001-4130
• General Bridge Act of 1946,33 U.S.C. 525-533
• FHWA wetland and natural habitat mitigation regulations,23 CFR part 777

Parklands

• 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
• Land and Water Conservation Fund Act,54 U.S.C. 200302-200310

FHWA-Specific

• Planning and Environment Linkages,23 U.S.C. 168, with the exception of those FHWA responsibilities associated with 23 U.S.C. 134 and 135
• Programmatic Mitigation Plans,23 U.S.C. 169, with the exception of those FHWA responsibilities associated with 23 U.S.C. 134 and 135

Executive Orders (E.O.) Relating to Highway Projects

• 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. 13112, Invasive Species, as amended by E.O. 13751, Safeguarding the Nation from the Impacts of Invasive Species.
• E.O. 13985—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
• E.O. 13990—Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis
• E.O. 14008—Tackling the Climate Crisis at Home and Abroad
• Other E.O.'s not listed, but related to highway projects.

The proposed renewal MOU would allow UDOT to continue to act in the place of FHWA in carrying out the environmental review-related 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 E.O.s. The UDOT will continue to handle routine consultations with the Tribes and understands that a Tribe has the right to direct consultation with FHWA upon request. The UDOT also may assist FHWA with formal consultations, with consent of a Tribe, but FHWA remains responsible for the consultation. The UDOT also will not assume FHWA's responsibilities for conformity determinations required under Section 176 of the CAA (42 U.S.C. 7506) or any responsibility under 23 U.S.C. 134 or 135, or under 49 U.S.C. 5303 or 5304.

The MOU content reflects UDOT's desire to continue its participation in the Program. The FHWA and UDOT have agreed to modify some of the provisions in the MOU to, among other things: Clarify the categories of projects for which UDOT is assigned responsibility, designate a Senior Agency Official at UDOT consistent with 40 CFR 1508.1(dd); remove projects for which FHWA retained responsibilities for environmental review following a NEPA decision; remove auditing requirements; revise monitoring requirements; update record retention requirements; provide for enhanced reporting to FHWA on issues including environmental justice analysis and associated mitigation, ( printed page 23309) where applicable; revise provisions related to data and information requests; and revise provisions related to FHWA-initiated withdrawal of assigned projects.

A copy of the proposed renewal MOU and renewal package may be viewed on the DOT Docket, as described above, or may be obtained by contacting FHWA or the State at the addresses provided above. A copy also may be viewed on UDOT's website at https://www.udot.utah.gov/​connect/​about-us/​program-development-group/​environmental-division/​.

The FHWA Utah Division, in consultation with FHWA Headquarters, will consider the comments submitted when making its decision on the proposed MOU revision. Any final renewal MOU approved by FHWA may include changes based on comments and consultations relating to the proposed renewal MOU and will be made publicly available.

(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)

Authority:23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 773; 40 CFR 1507.3, 1508.4.

87 FR 23307