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Proposed Memorandum of Understanding (MOU) Assigning Certain Federal Environmental Responsibilities to the State of California, Including National Environmental Policy Act (NEPA) Authority for Certain Categorical Exclusions (CEs)

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Federal Highway Administration (FHWA), California Office, DOT.


Notice of proposed MOU, request for comments.


This notice announces that the FHWA and the State of California, acting by and through its Department of Transportation (State), propose to enter into a MOU pursuant to 23 U.S.C. 326. The MOU would transfer to the State the FHWA's authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed MOU, are Start Printed Page 18313categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). The MOU also would assign to the State the responsibility for carrying out certain other environmental review, consultation, and related activities for those CE Federal-aid Highway Program projects within the State. The public is invited to comment on any aspect of the proposed MOU, including the types of projects for which CE decision-making authority would be assigned to the State and the scope of the environmental review, consultation, and other activities that would be assigned.


Please submit comments by May 29, 2007.


You may submit comments, identified by DOT Document Management System (DMS) Docket Number [FHWA-2007-27804], by any of the methods described below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays from security screening.

1. Web site: Follow the instructions for submitting comments on the DOT electronic docket site.

2. Facsimile (Fax): 1-202-493-2251.

3. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.

Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC., between 9 a.m. and 5 p.m. e.t., 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 at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC., between 9 a.m. and 5 p.m. e.t., Monday through Friday, except for Federal holidays. After June 1, 2007, those wishing to inspect documents should confirm the current address for the Docket management facility because it is scheduled to relocate later this year.

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For FHWA: Maiser Khaled, Director, Project Development and Environment, Federal Highway Administration, California Division, 650 Capitol Mall, Suite 4-100, Sacramento, CA 95814; by e-mail at or by telephone at 916-498-5020. The FHWA California Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Pacific Time), Monday-Friday, except for Federal Holidays.

For State: Cindy Adams, NEPA Delegation Manager, California Department of Transportation, Division of Environmental Analysis, MS#27, P.O. Box 942874, Sacramento, CA, 94274-0001; by e-mail at; by telephone at (916) 653-5157. The California Department of Transportation's normal business hours are 8 a.m. to 5 p.m. (Pacific Time), Monday-Friday, except for State and Federal holidays.

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Electronic Access

An electronic copy of this notice may be downloaded using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at and the Government Printing Office's Web site at An electronic version of the proposed MOU may be downloaded by accessing the DOT DMS docket, as described above, at


Section 6004(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-059, 119 Stat. 1144), codified as Section 326 of amended Chapter 3 of title 23, United States Code (23 U.S.C. 326), allows the Secretary of the DOT (Secretary), to assign, and a State to assume, responsibility for determining whether certain designated activities are included within classes of action that are categorically excluded from requirements for environmental assessments or environmental impact statements 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.

The FHWA and the State propose to enter into a MOU that would have an initial term of three (3) years. Stipulation I (B) of the proposed MOU describes the types of actions for which the State would assume project-level responsibility for determining whether the criteria for a CE are met. Statewide decision-making responsibility would be assigned for all activities within the categories listed in 23 CFR 771.117(c), those listed as examples in 23 CFR 771.117(d), and the following additional categories of actions:

1. Construction, modification, or repair of storm water treatment devices (e.g., detention basins, bio-swales, media filters, and infiltration basins), protection measures such as slope stabilization and other erosion control measures.

2. Replacement, modification, or repair of culverts or other drainage facilities.

3. Projects undertaken to assure the creation, maintenance, restoration, enhancement, or protection of habitat for fish, plants, or wildlife (e.g., revegetation of disturbed areas with native plant species; stream or river bank revegetation; construction of new, or maintenance of existing fish passage conveyances or structures; restoration or creation of wetlands).

4. Routine repair of facilities due to storm damage, including permanent repair to return the facility to operational condition that meets current standards of design and public health and safety without expanding capacity (e.g., slide repairs, construction or repair of retaining walls).

5. Routine seismic retrofit of facilities to meet current seismic standards and public health and safety standards without expansion of capacity.

6. Air space leases subject to Subpart D, Part 710, Title 23, Code of Federal Regulations.

7. Drilling of test bores/soil sampling.

The proposed MOU also 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:

1. Clean Air Act (CAA), 42 U.S.C. 7401-7671q (determinations of project-level conformity if required for the project).

2. Compliance with the noise regulations in 23 CFR part 772.

3. Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544, and Section 1536.

4. Marine Mammal Protection Act, 16 U.S.C. 1361.

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

6. Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.

7. Migratory Bird Treaty Act, 16 U.S.C. 703-712.

8. Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801 et seq.

9. Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(f) et seq. Start Printed Page 18314

10. Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303.

11. Archeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469(c).

12. American Indian Religious Freedom Act, 42 U.S.C. 1996.

13. Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209.

14. Clean Water Act, 33 U.S.C. 1251-1377 (Section 404, Section 401, Section 319).

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

16. Coastal Zone Management Act, 16 U.S.C. 1451-1465.

17. Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6.

18. Rivers and Harbors Act of 1899, 33 U.S.C. 401-406.

19. Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.

20. Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931.

21. TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11).

22. Flood Disaster Protection Act, 42 U.S.C. 4001-4128.

23. Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4 (known as Section 6(f)).

24. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675.

25. Superfund Amendments and Reauthorization Act of 1986 (SARA).

26. Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k.

27. Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319.

28. Executive Orders Relating to Highway Projects (E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; 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. 13112, Invasive Species).

The MOU would allow the State to act in the place of the 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 consultations with federally-recognized Indian tribes, which is required under some of the listed laws and executive orders. The State will continue to handle routine consultations with the tribes and understands that a tribe has the right to direct consultation with the FHWA upon request. The State also may assist the FHWA with formal consultations, with the consent of a tribe, but the FHWA remains responsible for the consultation.

The scope of the proposed assignment and terms and conditions of the assignment are contained in the proposed MOU. A copy of the proposed MOU, together with State documentation supporting the assignment of decision-making authority under 23 CFR 771.117(d) for the seven categories of activities listed above, 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 at​hq/​env/​nepa_​pilot/​imndex.htm.

The FHWA California Division, in consultation with FHWA Headquarters, will consider the comments submitted when making its decision on the proposed MOU. Once the FHWA makes a decision on the proposed MOU and on the categories of actions to which the assignment will apply, the FHWA will place in the DOT DMS Docket a statement describing the outcome of the decision-making process and a copy of any final MOU, including final descriptions of the CE authority assigned to the State. The FHWA also will publish in the Federal Register a notice of the FHWA decision and the availability of any final MOU. Copies of the final documents also may be obtained by contacting the FHWA or the State at the addresses provided above, or by viewing the documents at​hq/​env/​nepa_​pilot/​imndex.htm.

(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.)

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Authority: 23 U.S.C. 326; 42 U.S.C. 4331, 4332; 23 CFR 771.117; 40 CFR 1507.3, 1508.4.

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Issued on: April 3, 2007.

Gene K. Fong,

California Division Administrator Sacramento.

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[FR Doc. E7-6787 Filed 4-10-07; 8:45 am]