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

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Federal Highway Administration (FHWA), DOT.


Notice of proposed MOU; request for comments.


The FHWA and the State of Arizona, acting by and through its Department of Transportation (State), propose participation of the State in the Categorical Exclusion Assignment program. This Program allows FHWA to assign to States its authority and responsibility for determining whether certain designated activities within the geographic boundaries of the State, as specified in the proposed Memorandum of Understanding (MOU), are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act.


Comments must be received on or before November 24, 2017.


You may submit comments, identified by DOT Document Management System (DMS) Docket Number [FHWA-2017-0044], by any of the methods described below. To ensure that you do not duplicate your Start Printed Page 49259submissions, please submit them by only one of the means below. Electronic or facsimile comments are preferred because Federal offices experience intermittent mail delays from security screening.

Federal eRulemaking Portal: Go to Web site:​. Follow the instructions for submitting comments on the DOT electronic docket site.

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

Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590.

Hand Delivery: 1200 New Jersey Avenue 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.

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, including any personal information provided.

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For FHWA: Alan Hansen; by email at or by telephone at 602-382-8964. The FHWA Arizona's Division Office's normal business hours are 8 a.m. to 4:30 p.m. (Arizona Time), Monday-Friday, except for Federal Holidays. For State of Arizona: Joanie Cady; by email at; by telephone at (602) 712-8633. The Arizona Department of Transportation's business hours are 8 a.m. to 5 p.m. (Arizona Time), Monday-Friday, except for State and Federal holidays.

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Electronic Access

Internet users may reach the Office of the Federal Register's home page at:​ and the Government Publishing Office's database:​. 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 U.S. Code, creates a program that allows the Secretary of the DOT (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.

FHWA would execute Arizona's participation in this program through an MOU. Statewide decision-making responsibility would be assigned for all activities within the categories listed in 23 CFR 771.117(c) and those listed as examples in 23 CFR 771.117(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 (determinations of project-level conformity if required for the project);
  • Noise Control Act of 1972, 42 U.S.C. 4901-4918;
  • Compliance with the noise regulations in 23 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;
  • 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, et seq.;
  • Section 4(f) of the U.S. Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303; 23 CFR part 774;
  • Preservation of Historical and Archeological Data, 54 U.S.C. 312501-312508;
  • Native American Grave Protection and Repatriation Act, 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;
  • Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j-6;
  • 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. 3921-3931;
  • Flood Disaster Protection Act, 42 U.S.C. 4001-4128;
  • FHWA wetland and natural habitat mitigation regulations at 23 CFR part 777;
  • 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. 13112, Invasive Species;
  • 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 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 above-listed laws and executive orders. The State also may assist the FHWA with formal consultations, with consent of a tribe, Start Printed Page 49260but the FHWA remains responsible for the consultation.

This assignment includes transfer to the State of Arizona the obligation to fulfill the assigned environmental responsibilities on any proposed projects meeting the criteria in Stipulation I(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 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.)

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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: October 18, 2017.

Karla S. Petty,

Division Administrator.

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[FR Doc. 2017-23011 Filed 10-23-17; 8:45 am]