SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

This document, a complete copy of the proposed MOU, background documents, and comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov. The website is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's website at www.federalregister.gov and the Government Publishing Office's website at www.govinfo.gov. This document is also available on the Maine Department of Transportation (MDOT) website at https://www.maine.gov/​mdot/​env/​NEPA/​assignment/​index.shtml.

Background

Section 326 of title 23, United States Code (U.S.C.), 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 Maine's participation in this program through an MOU. Statewide decisionmaking 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

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

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

E.O. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

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 Maine 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 ( printed page 66172) 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.

89 FR 66170