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Proposed Memorandum of Understanding Revision (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 Division, 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 a time extension with minor changes to the MOU pursuant to 23 U.S.C. 326. The MOU would extend the duration of use by three years, transferring 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 categorically 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). Aside from editorial changes to the MOU, the following minor changes would also be incorporated: (1) The State would be required to submit a list of CE determinations annually as opposed to quarterly; (2) the Federal Register notice of availability period would be modified from 45 days to 30 days, where applicable; (3) upon termination of the MOU, reversion of Federal responsibility back to FHWA would become effective in 60 days as opposed to 30 days; (4) FHWA would provide the State 24 hour notice, where practicable, prior to attending meetings whereby another Federal agency has requested FHWA's participation; (5) removal of E.O. 13175, Consultation and Coordination with Indian Tribal Governments from the list of assigned responsibilities.


Please submit comments by May 14, 2010.


You may submit comments, identified by DOT Document Management System (DMS) Docket Number [FHWA-2010-0035], 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, 1200 New Jersey Ave., SE., Washington, DC 20590.

Hand Delivery: 1200 New Jersey Ave., SE., Washington, DC 20590 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 1200 New Jersey Ave, SE, Washington, DC 20590, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except for Federal holidays.

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For FHWA: Aimee Kratovil, Federal Highway Administration, California Division, 650 Capitol Mall, Suite 4-100, Sacramento, CA 95814; by e-mail at or by telephone at 916-498-5866. 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 had previously entered into an MOU on June 6, 2007, for an initial term of three (3) years. The proposed MOU revision is set to supersede the original MOU prior to its expiration date on June 6, 2010. Stipulation I (B) of the 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 Start Printed Page 19461conveyances 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 scope of the assignment and terms and conditions of the assignment are contained in the MOU. A copy of the 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 revision. Once the FHWA makes a decision on the proposed MOU revision, 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. 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 8, 2010.

Karen Bobo,

Director, Local Programs, Federal Highway Administration, Sacramento, California.

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[FR Doc. 2010-8481 Filed 4-13-10; 8:45 am]