Application From the State of Ohio to the Surface Transportation Project Delivery Program and Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State

AGENCY:

Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).

ACTION:

Notice of proposed MOU and request for comments.

SUMMARY:

This notice announces that FHWA has received and reviewed an application from the Ohio Department of Transportation (ODOT) requesting participation in the Surface Transportation Project Delivery Program (Program). This Program allows FHWA to assign and States to assume, responsibilities under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.), and all or part of FHWA's responsibilities for environmental review, consultation, or other actions required under any Federal environmental law with respect to one or more Federal highway projects within the State. The FHWA has determined the application to be complete, and developed a draft MOU with ODOT outlining how the State will implement the program with FHWA oversight. The public is invited to comment on ODOT's request, including its application, and the proposed MOU, which includes the proposed assignments and assumptions of environmental review, consultation and other activities to be assigned.

DATES:

Please submit comments by November 16, 2015.

ADDRESSES:

To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:

• Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments.
• Facsimile (Fax): 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590 between 9:00 a.m. and 5:00 p.m. e.t., 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:

Jeff Blanton P.E., Director of Program Development, Federal Highway Administration Ohio Division, 200 N. High St., Room 326, Columbus, Ohio 43215, 8:00 a.m.-4:00 p.m. (ET), (614) 280-6824, jeffrey.blanton@dot.gov.

Timothy M. Hill, Administrator, Office of Environmental Services, Ohio Department of Transportation, 1980 West Broad Street, Mail Stop 4170, Columbus, Ohio 43223, 7:30 a.m.-4:30 p.m. (ET), (614) 466-7100, Tim.Hill@dot.ohio.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this notice may be downloaded from the Federal Register's home page at http://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 http://www.regulations.gov/.

Background

Section 327 of title 23, United States Code (23 U.S.C. 327), allows the Secretary of the DOT (Secretary), to assign, and a State to assume, responsibility for all or part of FHWA's responsibilities for environmental review, consultation, or other actions required under any Federal environmental law with respect to one or more Federal-aid highway projects within the State 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, FHWA would assign to the State, through ODOT, the responsibility for making decisions on the following types of highway projects:

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

2. All Class II, or categorically excluded (CE), projects, both on the SHS and local government projects off the SHS that are funded by FHWA or require FHWA approvals.

3. All Class III, or environmental assessment (EA) projects, both on the SHS and local government 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 includes funding by FHWA or require FHWA approvals. For these projects, ODOT would not assume the NEPA responsibilities of other Federal agencies.

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 ODOT, projects that cross State boundaries, and projects that cross or is adjacent to international boundaries.

The following projects are examples of projects that will not be assigned because they are projects that cross State borders:

• HAM-50/State Line Road Improvements, PID 93507
• HAM-IR 71/IR 75-0.00/0.22—Brent Spence Bridge, PID 75119
• SCI-US23-0.00, PID 98150
• JEF-Wellsburg Bridge, PID 79353

The assignment also would give the State 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

Noise

• Noise Control Act of 1972, 42 U.S.C. 4901-4918
• Airport Noise and Capacity Act of 1990, 49 U.S.C. 47251-47534
• Compliance with the noise regulations in 23 CFR 772

Wildlife

• Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544
• 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. 180l-1891d et seq., with Essential Fish Habitat requirements at 1855(b)(2)

Hazardous Materials Management

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

Historic and Cultural Resources

• Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306101 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 1979, 16 U.S.C. 470aa-470mm
• Title 54, Chapter 31—Preservation of Historical and Archeological Data, 54 U.S.C. 312501-312508
• Native American Grave Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-30131; 18 U.S.C. 1170

Social and Economic Impacts

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

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-26
• General Bridge Act of 1946, 33 U.S.C. 525-533
• Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
• Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
• Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
• Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(l4)
• FHWA wetland and natural habitat mitigation regulations, 23 CFR part 777
• Flood Disaster Protection Act, 42 U.S.C. 4001-4130

Parklands

• Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. 303
• Land and Water Conservation Fund (LWCF) Act, 54 U.S.C. 200302-200310

FHWA-Specific

• Planning and Environmental 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 Relating to Highway Projects

• E.O. 11990, Protection of Wetlands
• E.O. 11988, Floodplain Management
• E.O. 13690, Federal Flood Risk Management Standard (FFRMS)
• 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 ODOT 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 executive orders. The ODOT 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 ODOT also may assist FHWA with formal consultations, with consent of a tribe, but FHWA remains responsible for the consultation. The ODOT also will not assume FHWA's responsibilities for conformity determinations required under Section 176 of the Clean Air Act (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.

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 ODOT's Web site at http://www.dot.state.oh.us/NEPA-Assignment/Pages/default.aspx.

The FHWA Ohio 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 and will be made 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. 327; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 40 CFR 1507.3, 1508.4.