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Proposed Memorandum of Understanding (MOU) Assigning Environmental Responsibilities to the State of Texas for Categorical Exclusions

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Information about this document as published in the Federal Register.

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Federal Highway Administration (FHWA), Texas Division Office, DOT.


Notice of proposed MOU and request for comments.


This notice announces that the FHWA and the Texas Department of Transportation (State) have developed a proposed MOU, pursuant to 23 U.S.C. 326, under which the FHWA would assign to the State the FHWA's responsibility for determining whether a project is 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), and for carrying out certain other responsibilities for conducting environmental reviews, consultations, and related activities for Federal-aid highway projects. The public is invited to comment on any aspect of the proposed MOU, including the proposed designations of categorical exclusions and scope of environmental review, consultation and other activities to be assigned.


Please submit comments by August 28, 2013.


You may submit comments, identified by DOT Document Management System (DMS) Docket Number FHWA-2013-0040, 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.

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

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Michael T. Leary, Director of Planning and Program Development, Federal Highway Administration Texas Division, 300 E. 8 St., Room 826, Austin, TX 78701, 7:00 a.m.—4:30 p.m. (CST), (512) 536-5940,

Carlos H. Swonke, P.G., Director Environmental Affairs Division, Texas Department of Transportation, 125 E. 11th St., Austin, TX 78701, 8:00 a.m.—5: p.m. (CST), (512) 416-2734,

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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 326 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.

Under the proposed MOU, the FHWA would assign to the State the responsibility for making decisions on the following types of categorical exclusions:

1. Activities listed in 23 CFR 771.117(c);

2. Activities listed in 23 CFR 771.117(d).

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

1. Air Quality

  • Clean Air Act (CAA), 42 U.S.C. 7401-7671q. Any determinations that do not involve conformity.

2. Noise

  • Compliance with the noise regulations in 23 CFR 772.

3. Wildlife

  • Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544, and Section 1536
  • Marine Mammal Protection Act, 16 U.S.C. 1361
  • Anadromous Fish Conservation Act, 16 U.S.C. 757a-757g
  • 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 Start Printed Page 456001976, as amended, 16 U.S.C. 1801 et seq., with Essential Fish Habitat requirements at 1855(b)(1)(B)

4. Historic and Cultural Resources

  • Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(f) 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 1977, 16 U.S.C. 470(aa)-11
  • Archeological and Historic Preservation Act of 1966, as amended, 16 U.S.C. 469-469(c)
  • Native American Grave Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-30131

5. Social and Economic Impacts

6. Water Resources and Wetlands

− 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-6
  • Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 401-406
  • Section 9 of the Rivers and Harbors Act of 1899,(General Bridge Act) Navigability Determinations and Lighting Exemption Waivers
  • Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
  • Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931
  • TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133 (b)(11)
  • Flood Disaster Protection Act, 42 U.S.C. 4001-4128

7. Parklands

  • Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. 303
  • Land and Water Conservation Fund (LWCF) Act, 16 U.S.C. 4601-4

8. Hazardous Materials

  • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675
  • Superfund Amendments and Reauthorization Act of 1986 (SARA)
  • Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k

9. 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. 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 consultation 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 consent of a tribe, but the FHWA remains responsible for the consultation.

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 the State's Web site at

The FHWA Texas 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. Once the FHWA makes a decision on the proposed MOU, 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. Copies of those documents also may be obtained by contacting the FHWA or the State at the addresses provided above, or by viewing the documents at the State's Web site at

(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: July 24, 2013.

Michael T. Leary,

Director of Planning and Program Development, FHWA, Austin, Texas.

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[FR Doc. 2013-18115 Filed 7-26-13; 8:45 am]