[Federal Register Volume 72, Number 28 (Monday, February 12, 2007)]
[Rules and Regulations]
[Pages 6464-6472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2375]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 773

[FHWA Docket No. FHWA-05-22707]
RIN 2125-AF13


Surface Transportation Project Delivery Pilot Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established 
a pilot program to allow the Secretary of Transportation to assign, and 
the State to assume, the Secretary's responsibilities under the 
National Environmental Policy Act (NEPA) for one or more highway 
projects. The Secretary may permit not more than five States (including 
the States of Alaska, California, Ohio, Oklahoma, and Texas) to 
participate in the program. Upon assigning NEPA responsibilities, the 
Secretary may further assign to the State all or part of the 
Secretary's responsibilities for environmental review, consultation or 
other action required under any Federal environmental law pertaining to 
the review of a specific project. In order to be selected for the pilot 
program a State must submit an application to the Secretary. Section 
6005 requires the Secretary to promulgate rules that establish 
requirements relating to information required to be contained in an 
application by a State to participate in the pilot program. This final 
rule establishes these application requirements.

DATES: Effective March 14, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project 
Development and Environmental Review, HEPE, 202-366-2034 or Mr. Michael 
Harkins, Office of the Chief Counsel, 202-366-4928, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Internet users may access this document, the notice of proposed 
rulemaking (NPRM), and all comments received by the U.S. DOT by using 
the universal resource locator (URL) http://dms.dot.gov. It is 
available 24 hours each day, 365 days each year. Electronic submission 
and retrieval help and guidelines are available under the help section 
of the Web site.
    An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at: http://
www.archives.gov or the Government Printing Office's Web page at 
http://www.gpoaccess.gov/nara.

Background

    Section 6005 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144), 
codified at 23 U.S.C. 327, established a pilot program that allows the 
Secretary of Transportation (Secretary) to assign up to five States, 
including Alaska, California, Oklahoma, Ohio, and Texas, the 
responsibilities of the Secretary for implementation of the National 
Environmental Policy Act (NEPA)(42 U.S.C. 4321-4347) for one or more 
highway projects. Upon assumption of NEPA responsibilities, a State may 
also be assigned all or part of the Secretary's responsibilities for 
environmental review, consultation or other action required under any 
Federal environmental law pertaining to the review or approval of 
highway projects. Whenever a State assumes the Secretary's 
responsibilities under this program, the State becomes solely 
responsible and solely liable for carrying out, in lieu of the 
Secretary, the responsibilities it has assumed, including coordination 
and resolution of issues with Federal environmental resource and 
regulatory agencies and responding to litigation. The Secretary's NEPA 
and other environmental responsibilities pertaining to the review and 
approval of highway projects, as well as the administration and 
implementation of this pilot program, has been delegated to the FHWA 
pursuant to 49 CFR 1.48.
    In order to participate in this pilot program, a State must submit 
an application. Section 327(b)(2) of title 23, United States Code, 
requires the Secretary to promulgate regulations that establish 
requirements relating to the information that States must submit as 
part of their applications to participate in this pilot program. This 
final rule establishes these requirements.

[[Page 6465]]

Discussion of Comments Received to the Notice of Proposed Rulemaking 
(NPRM)

    The FHWA published its NPRM on April 5, 2006, at 71 FR 17040. In 
response to the NPRM, the FHWA received 10 comments. The commenters 
include two Federal agencies, three State departments of transportation 
(State DOT), one public interest group, two associations, and a 
consolidated group of comments from each of the State DOTs designated 
by the statute as pilot program participants (Designated Pilot States). 
One State DOT, the Alaska Department of Transportation and Public 
Facilities (ADOT&PF), submitted two comments. The FHWA considered each 
of these comments in adopting this final rule.
    The majority of the comments addressed several common issues. These 
issues are identified and addressed under the appropriate section 
below.

Section-by-Section Discussion of Changes

Section 773.103 Definitions

Federal Environmental Law
    There were several comments on the definition of ``Federal 
environmental law.'' First, the Designated Pilot States and the Texas 
Department of Transportation (TxDOT) commented that the regulation or 
the preamble should acknowledge that State DOTs already perform much of 
the work needed to comply with many environmental laws, and that the 
preamble should make clear that the key change under this pilot program 
is the transfer of specific decisionmaking and consulting 
responsibilities. The FHWA acknowledges that, pursuant to 23 CFR 
771.109(c)(1), the State DOTs may currently prepare the environmental 
impact statement (EIS) and other environmental documents with the 
FHWA's guidance, participation, and independent evaluation of such 
documents. The FHWA further acknowledges that this pilot program will 
involve the transfer of decisionmaking and consulting responsibilities. 
As provided at 23 U.S.C. 327(e), upon assuming responsibility under 
this pilot program, the State shall be solely responsible and solely 
liable for carrying out such responsibilities until the pilot program 
is terminated.
    Second, the Designated Pilot States commented that compliance with 
Executive Orders should be included in the regulation itself and not 
just in Appendix A. The FHWA agrees with this comment and has revised 
the definition of ``Federal environmental law'' to include Executive 
Orders. It is important to note, however, that Executive Orders are 
intended only to improve the internal management and administration of 
the Executive Branch of the Federal Government and do not create any 
legally enforceable rights. Nothing in this rulemaking is intended to 
change the legal force and effect of any Federal statute, regulation, 
or Executive Order cited herein. As provided at 23 U.S.C. 327(a)(2)(C), 
a State DOT's assumption of any responsibility under this pilot program 
is subject to the same procedural and substantive requirements that 
apply to the Secretary.
    Third, the American Road and Transportation Builders Association 
(ARTBA) commented that the State DOTs should be delegated the FHWA's 
responsibility for making transportation conformity determinations. 
However, 23 U.S.C. 327(a)(2)(B)(ii)(I) expressly prevents the FHWA from 
delegating these responsibilities. Thus, the FHWA declines to make this 
change.
    Lastly, the Environmental Protection Agency (EPA) commented that 
the rule should provide clarification on how all environmental 
regulations will be followed if all of the FHWA's environmental 
responsibilities are not assumed by a State DOT. The FHWA is aware of 
the procedural difficulties that may be caused by only a partial 
assumption of the FHWA's environmental responsibilities. Should a State 
DOT wish to exclude some of the FHWA's environmental responsibilities 
under the pilot program, and if satisfactory alternate procedures 
cannot be developed in the formal Memorandum of Understanding (MOU), 
then the FHWA may either choose to not assign the responsibilities to 
the State DOT or withdraw the affected projects from the pilot program. 
Under any scenario, the FHWA believes that this issue is more 
appropriate for the formal Memorandum of Understanding (MOU) between 
the FHWA and the State DOT rather than this rule. The FHWA is committed 
to ensuring full compliance with all environmental regulations.
Highway Project
    There were several comments on the definition of ``highway 
project.'' First, the Designated Pilot States, TxDOT, ADOT&PF, ARTBA, 
and EPA all commented on the proposed exclusion of undertakings that 
are planned as multi-modal. Designated Pilot States, TxDOT, ADOT&PF, 
and ARTBA each commented that this exclusion is overly broad. 
Designated Pilot States and TxDOT both commented that the exclusion 
would prevent the States from assuming highway projects that include 
common multi-modal elements such as express bus service, pedestrian and 
bicycle paths, and park-and-ride lots. Designated Pilot States and 
TxDOT both commented that excluding projects that are funded under 
chapter 53 of title 49, United States Code, or that require the 
approval of the Federal Transit Administration (FTA) is sufficient to 
prevent the program from applying to projects that do not fit within 
the common meaning of the term ``highway project.'' The ADOT&PF wants 
to ensure that the definition does not exclude projects on the Alaska 
Marine Highway System, which occasionally involve funds from both FHWA 
and FTA. The EPA was concerned that the exclusion of multi-modal 
projects would limit the range of reasonable alternatives that may be 
considered for a project.
    The FHWA agrees with each of the comments made by Designated Pilot 
States, TxDOT, ARTBA, and EPA and has revised the definition of 
``highway project'' to remove the exclusion of multi-modal projects. 
The intent behind the proposed exclusion of multi-modal projects from 
the definition of highway project was not to be overly restrictive in 
the types of projects that States may assume, but rather to ensure that 
only actual highway projects are assumed. Also, the FHWA included 
express language at the end of the definition to further clarify that a 
State may include and consider alternatives that are excluded from this 
definition in the range of reasonable alternatives for a highway 
project.
    However, with respect to the comment from ADOT&PF, the FHWA does 
not believe that it is appropriate to include projects that are funded 
under chapter 53 of title 49, United States Code. Projects funded under 
chapter 53 of title 49, United States Code, are transit projects that 
are administered and approved by the FTA. While no changes have been 
made concerning the source of funding under chapter 53 of title 49, 
United States Code, the FHWA notes that section 1108 of SAFETEA-LU 
provides flexibility to the States to transfer any funds made available 
for highway projects under chapter 53 of title 49, United States Code, 
to title 23, United States Code. Once transferred, these projects would 
no longer be excluded. Moreover, improvements to ferry boats and 
terminal facilities are eligible for assistance under title 23, United 
States Code. Thus, the FHWA believes it is appropriate for improvements 
to ferry terminal facilities

[[Page 6466]]

to be considered highway projects under the definition of this rule.
    Second, the Designated Pilot States, ARTBA, California Department 
of Transportation (Caltrans), EPA, and Save Our Springs Alliance (SOS) 
all commented on the proposed exclusion of projects for which a draft 
environmental impact statement (DEIS) has already been issued by FHWA. 
The EPA and SOS were supportive of this exclusion in order to minimize 
changes of authority in the middle of project development. The 
Designated Pilot States, ARTBA, and Caltrans were opposed to this 
exclusion. Designated Pilot States stated that, given the short term of 
the pilot program, which is only six years after the date of enactment 
of SAFETEA-LU (August 10, 2005), it may not be possible for the State 
DOTs to carry-out many projects requiring an EIS all the way through 
the NEPA process.
    After considering these comments, the FHWA has decided to remove 
this exclusion from the definition of ``highway project.'' The pilot 
program is only authorized for six years from the date of enactment of 
SAFETEA-LU. One year has already elapsed in developing these 
regulations and more time must still be spent in developing the 
application, giving public notice, considering the application, 
consulting with affected Federal agencies, and executing a memorandum 
of understanding. More time is also needed by States for obtaining 
legislative authority to consent to exclusive Federal court 
jurisdiction with respect to the responsibilities to be assumed. The 
FHWA's concern regarding the public frustration over changing the 
entity responsible for completing the EIS in the middle of a project 
will be minimized through the public notice requirement for the State 
DOTs' applications. To ensure that the public is given adequate notice 
of all projects for which a DEIS has already been issued, the FHWA has 
added a requirement at section 773.106(b)(1) to require each State DOT 
to specifically identify each project for which a DEIS has already been 
issued in its application. Additionally, the FHWA is also concerned 
about how to measure the State DOTs' success under the pilot program 
whenever a substantial amount of FHWA involvement has already occurred. 
Thus, in order to ensure that this pilot program allows for the 
greatest flexibility in the delegation of projects, the FHWA has 
eliminated this exclusion. While the FHWA does not believe that there 
is any specific threshold that is appropriate for this regulation, the 
decision about whether any project may be assumed is discretionary and 
will be made by the FHWA on a case-by-case basis.
    Third, the Designated Pilot States, Caltrans, and EPA all commented 
on the proposed exclusion of projects listed on Executive Order (E.O.) 
13274. The Designated Pilot States and Caltrans both urged the FHWA not 
to adopt an across-the-board rule excluding all E.O. 13274 projects, 
but to use discretion in determining which projects may be assumed on a 
case-by-case basis. The EPA asked the FHWA to clarify whether this 
exclusion applies only to E.O. 13274's priority list or to both the 
priority list and the transition list. After considering these 
comments, the FHWA has decided not to eliminate this exclusion. The 
projects designated under E.O. 13274 are high priority projects that 
have been designated by the Secretary as having national or regional 
significance. Moreover, the E.O. 13274 process itself involves high-
level involvement of DOT and other Federal departments and agencies, 
which must collaborate and work together to expedite the environmental 
review of these projects. As a result, these projects require direct 
DOT involvement to not only ensure that special attention is given to 
these projects throughout the Federal Government, but also because 
these interactions require policy-making authority. With respect to 
EPA's comment concerning the scope of this exclusion, it is the FHWA's 
intent to exclude projects on both the priority list and the transition 
list. However, we do not believe that an amendment to the regulations 
is necessary to clarify this point.
    Fourth, the Designated Pilot States and ADOT&PF commented on the 
proposed exclusion of Federal lands highway projects. The Designated 
Pilot States urge the FHWA to reassess this exclusion in light of 
ADOT&PF's comments on this issue and state that the exclusion, if any, 
should only apply to projects funded with funds under the Federal Lands 
Highway Program. The ADOT&PF states that this exclusion should be 
modified because it designs and constructs projects across Federal 
lands funded under the Federal Lands Highway Program. The FHWA agrees 
with these comments and has modified the exclusion to permit the State 
DOTs to assume environmental responsibilities for Federal lands 
projects that are funded under the Federal Lands Highway Program and 
both designed and constructed by the State.
    Fifth, the EPA commented on the FHWA's intent to allow States to 
assume reevaluations. The EPA is concerned about the effects of changes 
of authority in the mid-course of project development. The FHWA does 
not believe that the issue of mid-course changes of authority in 
project development is significant in the context of a reevaluation. 
Reevaluations are separate and independent determinations concerning 
whether a specific NEPA determination is still valid. Unlike the issue 
concerning a DEIS, the State DOT will conduct a reevaluation from the 
beginning of this process. Additionally, due to the limited duration of 
this pilot program, the State DOTs' assumption of reevaluations will 
provide some data on the State DOTs' ability to assume the FHWA's 
environmental responsibilities.
    Lastly, the EPA asked the FHWA to clarify whether a State can 
assume a Tier 2 project for which a Tier 1 determination has already 
been made. It is the FHWA's intent to allow States to assume Tier 2 
projects for which a Tier 1 determination has already been made. 
However, we do not believe that an amendment to the regulations is 
necessary for this clarification.

Section 773.105 Statements of Interest

    The American Association of State Highway and Transportation 
Officials (AASHTO) commented on the importance of ensuring that all 
five openings in the pilot program be filled. AASHTO suggested 
including a provision in the regulations that requires each designated 
pilot State (Alaska, California, Ohio, Oklahoma, and Texas) to submit a 
statement of interest within 60 days of the issuance of the final rule. 
The statement of interest would hold the designated pilot State's place 
in the program while that State develops its application. If the State 
declines to submit a statement of interest, then other States would 
have an opportunity to participate in the program. The FHWA agrees with 
this comment and has inserted a requirement at section 773.105 to 
require that each designated pilot State submit a statement of interest 
within 60 days after the effective date of these regulations. The FHWA 
has also inserted a requirement that each State actively work to 
develop and submit its application and meet all applicable program 
criteria, including the enactment of necessary State legal authority 
after a statement of interest is submitted. The FHWA further notes 
that, while SAFETEA-LU requires the FHWA to give priority to Alaska, 
California, Ohio, Oklahoma, and Texas, any State may submit an 
application to the FHWA at any time to participate in this pilot 
program. Should any of these five designated States decide not to

[[Page 6467]]

participate or fail to meet the eligibility criteria, the FHWA will 
consider another State's application.

Section 773.106 Application Requirements for Participation in the 
Program

    There were several comments on the proposed application 
requirements. First, Designated Pilot States and TxDOT commented on the 
manner in which classes of projects must be identified in the 
application. Designated Pilot States and TxDOT felt that there was an 
inconsistency between the proposed regulations and the preamble of the 
NPRM, which implied that the State DOTs must individually identify each 
project in its application. In drafting the preamble to the NPRM, the 
FHWA did not intend to adopt this narrow approach. Rather, the FHWA 
intended for a flexible approach to identifying the classes of 
projects. State DOTs applying to this pilot program may choose to 
either identify individual projects or identify a class of projects by 
using a qualitative description of the projects. With the exception of 
specifically identifying each project for which a DEIS has already been 
issued, as discussed above, there are no limits intended to be placed 
on how the States identify the projects other than a requirement to 
identify the projects in sufficient terms so as to enable the FHWA, 
other agencies, and the public to reasonably know what projects the 
State DOT is intending to assume.
    Second, TxDOT, ADOT&PF, Designated Pilot States, and SOS all 
commented on the requirement for the State DOT to include a 
philosophical/policy statement of the State DOT's goals and guiding 
principles in making environmental decisions. TxDOT commented that it 
is unclear what would constitute an appropriate philosophical/policy 
statement and how the statement would be evaluated by the FHWA in 
considering the application. ADOT&PF commented that the purpose of the 
philosophical/policy statement is unclear and it should be sufficient 
for the State DOTs to simply follow the policies and procedural 
requirements applicable to the FHWA. Designated Pilot States commented 
that the statement itself could be viewed as a regulatory requirement 
and that the State DOTs should simply be required to comply with the 
procedural and substantive requirements applicable to the FHWA. SOS 
commented that the philosophical/policy statement is meaningless unless 
it is made binding and enforceable.
    Since there appears to be substantial confusion over the purpose 
and utility of the philosophical/policy statement, the FHWA has 
eliminated this requirement. The purpose of the philosophical/policy 
statement was not to create a binding, enforceable standard against 
which the State DOTs' environmental decisions would be judged. Rather, 
the FHWA was looking for a statement of the State DOTs' commitment to 
good environmental stewardship, legal compliance, public involvement, 
and cooperation and consultation with Federal agencies, State and local 
officials, and Indian tribes. Even though this requirement has been 
eliminated, the FHWA notes that 23 U.S.C. 327(a)(2)(C) provides that 
the States participating in the pilot program are subject to the same 
procedural and substantive requirements as the FHWA under this pilot 
program, which includes the policies contained in 42 U.S.C. 4331 and 23 
CFR 771.105.
    Third, ADOT&PF commented that the purpose behind the requirement to 
identify existing environmental and managerial expertise is unclear and 
should be revised to only require the State DOTs to identify the staff, 
management, and procedures that will be used to administer the 
responsibilities the State DOT assumes. The FHWA agrees with this 
comment and has eliminated this requirement. Even without this 
requirement, the regulations require sufficient information be 
submitted concerning the State DOT's personnel to be used in 
administering the FHWA's environmental responsibilities. However, in 
order to ensure that the State DOT identifies the relevant management, 
the FHWA amended section 773.106(b)(4)(i) to require the State DOT to 
describe the management positions in addition to the staff positions.
    Fourth, ADOT&PF commented on the requirement for the State DOTs to 
describe how they will identify and address the projects that would 
normally require FHWA headquarters prior concurrence under 23 CFR 
771.125(c). Specifically, ADOT&PF commented that the final rule should 
waive the applicability of 23 CFR 771.125(c) to the State DOTs 
participating in this pilot program. The FHWA disagrees with this 
comment. While this requirement is an internal FHWA processing 
requirement, the FHWA feels that it is important for the State DOTs to 
develop processes that would centralize their decisionmaking processes 
for the types of projects listed at 23 CFR 771.125(c).
    Fifth, Designated Pilot States, TxDOT, and EPA all commented on the 
budget requirements that the State DOTs must submit as part of their 
applications. Designated Pilot States commented that it is virtually 
impossible to develop a meaningful litigation budget because these 
costs are highly unpredictable and that the State DOTs should simply be 
required to demonstrate that funding would be reasonably available. 
TxDOT commented that it was concerned about providing a budget for 
things that may or may not happen, such as litigation costs, and that 
the State DOT should be required only to demonstrate that funding is 
reasonably available. TxDOT further commented that it considered it to 
be sufficient to simply state in its application that TxDOT has a $2.6 
billion construction letting budget and a total agency disbursements of 
$7.5 billion. EPA commented that it would be very difficult for a State 
DOT to show that it has all the financing for a project in place before 
the project is undertaken. EPA stated that the State DOTs should be 
given the flexibility to provide satisfactory evidence that financing 
will be made available.
    The FHWA agrees with these comments and has revised section 
773.106(b)(5) to require the State DOTs to submit a summary of 
financial resources, as opposed to a budget, showing the anticipated 
financial resources that will be available to carry out the 
responsibilities and projects assumed under this pilot program. The 
FHWA recognizes that some costs may be difficult to ascertain and that 
the State DOTs' funding is contingent on its appropriations processes. 
Thus, a summary of financial resources that identifies anticipated 
financial resources and the expected allocation of those resources, as 
opposed to a budget, will be sufficient. However, while the FHWA does 
not intend to require a budget of future financial resource, the FHWA 
notes that the State DOTs must be able to show that they expect to be 
able to meet the extra needs identified in sections 773.106(b)(3) and 
(4). The FHWA does not believe that the broad, general assertion by 
TxDOT stating that the State DOT has a $2.6 billion construction 
letting budget and a total agency disbursements of $7.5 billion will be 
sufficient verification of financial resources. Instead, the State DOT 
must reasonably show how much financial resources are expected to be 
allocated to carrying out the environmental responsibilities it has 
assumed.
    Sixth, SOS commented on the certification required to be made by 
the State Attorney General or other State official legally empowered by 
State law. SOS commented that the certification should be only from the 
Attorney

[[Page 6468]]

General and not some other State official because it is unclear who 
might actually be legally empowered to make these certifications. The 
FHWA shares this concern. Only a State official that has authority to 
consent to Federal court jurisdiction and has the ability to make legal 
conclusions should make this certification. However, since each State 
has its own unique laws and departmental structures, the FHWA believes 
that it is appropriate to leave some flexibility in the regulation as 
to which official would actually make this certification. In most 
cases, the State's Attorney General would most likely be the 
appropriate State official. In other cases, the most appropriate State 
official could be the chief legal official of the State DOT. Whenever 
an official other than the State's Attorney General makes these 
required certifications, the State DOT must show the FHWA that the 
official is legally empowered under State law to make the 
certification.
    Seventh, Designated Pilot States and TxDOT commented on the public 
review and comment requirements. Designated Pilot States and TxDOT were 
concerned that section 773.106(b)(8) could be construed to require a 
State DOT to publish the entire application in every newspaper in the 
State. Designated Pilot States and TxDOT state that the size of the 
application will make this requirement impracticable and wasteful. In 
developing the NPRM, the FHWA did not intend to prescribe the manner in 
which the State DOTs publish their applications for public comment. 
Rather, the FHWA intended for the publication requirement to be 
determined in accordance with State law, as provided at 23 U.S.C. 
327(b)(3). Moreover, the FHWA believes that the intent of the 
publication requirement of 23 U.S.C. 327(b)(3) is simply to notify the 
public that the complete application is reasonably available for public 
review and inspection. Additionally, the access to the complete 
application provided to the public must enable them to timely review 
and comment on the application. Thus, the requirements of 23 U.S.C. 
327(b)(3) are met if it is sufficient under State law to provide notice 
and solicit public comment on a document by publishing a notice of the 
document's availability. The FHWA has added clarifying language in 
section 773.106(b)(8) to this effect.
    Lastly, ACHP and SOS both commented on the public review and 
comment requirements. ACHP commented that the State DOTs should be 
required to provide evidence that they have notified and provided an 
opportunity to comment to Indian tribes and State Historic Preservation 
Officers (SHPO). The FHWA agrees that the State DOTs should ensure that 
Indian tribes, SHPOs, and other stakeholders are provided notice and an 
opportunity to comment on their applications. Moreover, the State DOTs 
should be mindful that their applications will not only be reviewed by 
the FHWA, but also other affected Federal agencies, including the ACHP, 
before their applications are approved. Evidence of adequate public 
notice and a meaningful opportunity to submit comments will be 
considered in approving any application. However, the FHWA does not 
believe that an amendment to the regulations is necessary to ensure 
that any specific group or stakeholder receives notice and is provided 
an opportunity to comment.
    Also, SOS commented that they have little confidence in the 
requirement to seek public comment solely in accordance with the public 
notice law of the State, and that the regulations should be amended to 
require public outreach and education. However, 23 U.S.C. 327(b)(3) 
provides that the public notice requirement be determined under the 
appropriate public notice law of the State. Thus, the method of public 
notice and solicitation of comments is to be determined by the State 
DOTs following State law.

Section 773.108 Application Amendments

    The ACHP, similar to its comments on the public notice and comment 
process, commented that the State DOT should be required to notify 
affected Indian tribes and SHPOs of its intent to amend its 
application. As stated above in response to the ACHP's comments on the 
public notice and comment process, the FHWA agrees that the State DOTs 
should ensure that Indian tribes, SHPOs, and other stakeholders are 
provided notice and an opportunity to comment on amendments to their 
applications involving requests for additional projects or 
responsibilities. However, the FHWA does not believe that an amendment 
to the regulations is necessary to ensure that any specific group or 
stakeholder receives notice and is provided an opportunity to comment.
    Also, the FHWA amended section 773.108 to clarify that the State 
DOT does not need to provide notice and solicit public comments for 
amendment not involving requests to assume additional highway projects, 
classes of highway projects, or more environmental responsibilities.

Appendix A

    There were several comments on Appendix A. First, ADOT&PF, ACHP, 
Designated Pilot States, and TxDOT commented on the government-to-
government tribal consultation responsibilities. ADOT&PF commented that 
the FHWA should reevaluate its proposal in the NPRM to exclude 
government-to-government consultations with the Indian tribes. The ACHP 
commented that it agreed that government-to-government tribal 
consultation responsibilities should only be administered by the State 
DOT if the Tribe consents through a formally signed consultation 
agreement. The Designated Pilot States commented that they were 
concerned that each State DOT would be required to negotiate agreements 
with dozens or hundreds of separate Indian tribes simply to permit a 
State DOT to continue its current practice of handling consultation 
with tribes except in cases where a tribe requests direct FHWA 
involvement. TxDOT commented that it is appropriate for FHWA to be 
involved when a tribe requests FHWA involvement.
    While the statute does not specifically prohibit the FHWA from 
assigning its government-to-government consultation responsibilities, 
the FHWA does not believe that the agency can, or should try to, 
require a sovereign Indian tribe to consult with the State DOT without 
a clear Congressional mandate to do so. Additionally, the FHWA is aware 
that requiring the State DOT to negotiate individual agreements with 
every Indian tribe could be time consuming and very burdensome 
administratively. Since the FHWA is not assigning any government-to-
government consultation activities, there should be no change in the 
existing relationships between the State DOTs and the Indian tribes. 
Thus, the FHWA is deleting this requirement from Appendix A. However, 
the FHWA notes that some State DOTs currently have executed agreements 
with the Indian tribes within their borders to coordinate and resolve 
issues relating to highway projects as part of the FHWA's tribal 
consultation process. These agreements have generally worked well and 
the State DOTs are encouraged to follow this practice under this pilot 
program.
    Second, Designated Pilot States and TxDOT commented that the 
regulation should clarify that, with regard to the laws listed in 
Appendix A, the FHWA would be assigning only those responsibilities 
that are carried out as part of the NEPA analysis. TxDOT specifically 
commented that E.O. 13287 and E.O. 11514 should be deleted from 
Appendix A because they do not require any consideration in the NEPA 
process. The FHWA has decided to remove

[[Page 6469]]

E.O.'s 11514, 11593, 13007, 13175, and 13287, and 23 U.S.C. 319 to 
indicate that the FHWA would retain responsibility for implementation 
of these laws either because they apply only to properties owned and 
managed by the Federal Government, involve policy decisions, or do not 
otherwise appear to require the FHWA to undertake any environmental 
review, consultation, or other action pertaining to the review or 
approval of highway projects. Also, the FHWA has modified the reference 
to the Rivers and Harbors Act of 1899 in Appendix A to include only 
section 10 because the other sections of the Act do not appear to be 
inherently environmental.
    The FHWA notes that the mere inclusion of a law on the list in 
Appendix A does not mean that the law will be automatically assigned. 
The laws that are assigned will only be those laws approved by the FHWA 
and specifically reflected in the MOU between the FHWA and the State 
DOT. Moreover, the list in Appendix A is not meant to be an exhaustive 
list, but rather a list of laws the FHWA has predetermined to be 
inherently environmental. The FHWA further notes that the State DOTs 
participating in the pilot program must comply with the substantive 
requirements of all applicable laws regardless of these laws' inclusion 
or exclusion in an application or MOU.

Other

    The EPA commented that the rulemaking should clarify that the 
review and coordination responsibilities assumed by the State DOTs will 
not affect or diminish their obligations to other Federal agencies. The 
EPA also commented that the States should be required to acknowledge 
their commitment to cooperate with other Federal agencies. While we do 
not agree that it is necessary to add a regulation to this effect, we 
agree with the EPA's comment that the State DOTs must cooperate with 
other Federal agencies in administering the FHWA's responsibilities 
under this program. These obligations will be made part of the formal 
MOUs between the FHWA and the State DOTs. In developing their 
applications, the State DOTs should be mindful that the FHWA is 
required to consult with other Federal agencies before approving their 
applications. Demonstrating their commitment to cooperate with other 
Federal agencies in their applications may help expedite the approval 
of their applications.
    Finally, Designated Pilot States and TxDOT commented that the FHWA 
should use an acronym other than ``STD'' whenever referring to a State 
transportation department. The FHWA used the acronym ``STD'' since 23 
U.S.C. 101(a)(34) uses the words ``State transportation department'' in 
referring to the State department charged with the responsibility for 
highway construction. However, the FHWA agrees that the term ``State 
DOT'' in an acceptable replacement for the previously used acronym and 
accordingly, the FHWA has accepted this comment.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action would be a significant 
rulemaking action within the meaning of Executive Order 12866 and would 
be significant within the meaning of the U.S. Department of 
Transportation's regulatory policies and procedures. This rulemaking 
proposes application requirements for the Surface Transportation 
Project Delivery Program as mandated in section 6005 of the Safe, 
Accountable, Flexible, Efficient Transportation Act: A Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144; 23 U.S.C. 327).
    This action is considered significant because of the substantial 
public interest in environmental concerns associated with highway 
projects. The program to which this proposed application corresponds 
allows States to assume the Secretary of Transportation's 
responsibilities under the National Environmental Policy Act of 1969, 
and for environmental reviews, consultations, and compliance with other 
Federal environmental laws. This action involves important DOT policy 
in that it allows participating States to assume limited DOT 
responsibilities.
    These changes are not anticipated to adversely affect, in a 
material way, any sector of the economy. This rulemaking sets forth 
application requirements for the Surface Transportation Project 
Delivery Pilot Program, which will result in only minimal costs to 
program applicants. In addition, these changes do not create a serious 
inconsistency with any other agency's action or materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs. Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) we have evaluated the effects of this proposed action 
on small entities and have determined that this action would not have a 
significant economic impact on a substantial number of small entities.
    This rule addresses application requirements for States wishing to 
participate in the Surface Transportation Project Delivery Program. As 
such, it affects only States and States are not included in the 
definition of small entity set forth in 5 U.S.C. 601. Therefore, the 
Regulatory Flexibility Act does not apply, and the FHWA certifies that 
this action would not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$128.1 million or more in any one year (2 U.S.C. 1532). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will 
evaluate any regulatory action that might be proposed in subsequent 
stages of the proceeding to assess the effects on State, local, and 
tribal governments and the private sector. Additionally, the definition 
of ``Federal Mandate'' in the Unfunded Mandates Reform Act excludes 
financial assistance of the type in which State, local, or tribal 
governments have authority to adjust their participation in the program 
in accordance with changes made in the program by the Federal 
Government. The Federal-aid highway program permits this type of 
flexibility.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
FHWA has also determined that this action would not preempt any State 
law or State regulation or affect the States' ability to discharge 
traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on

[[Page 6470]]

Federal programs and activities apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. The FHWA has determined that this 
action does not contain collection of information requirements for the 
purposes of the PRA. The FHWA does not anticipate receiving 
applications from ten or more States because participation in the 
Surface Transportation Project Delivery Pilot Program has been limited 
to five, expressly named States in 23 U.S.C. 327.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that the establishment of the application requirements for 
participation in the Surface Transportation Project Delivery Pilot 
Program, as required by Congress in 23 U.S.C. 327(b)(2) and the 
subsequent delegation of responsibilities, would not have any effect on 
the quality of the environment. Section 327 expressly provides that a 
State's assumption of the Secretary's responsibilities under this 
program shall be ``subject to the same procedural and substantive 
requirements as would apply if that responsibility were carried out by 
the Secretary.'' 23 U.S.C. 327(a)(2)(C). In addition, this State 
assumption of responsibility does not preempt or interfere ``with any 
power, jurisdiction, responsibility, or authority of an agency, other 
than the Department of Transportation, under applicable law (including 
regulations) with respect to a project.'' 23 U.S.C. 327(a)(2)(E). 
Finally, the Secretary is authorized to terminate the participation of 
any State in this program if the Secretary determines ``that the State 
is not adequately carrying out the responsibilities assigned to the 
State.'' 23 U.S.C. 327(i)(2)(A).

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under Executive Order 12630, 
Governmental Actions and Interface with Constitutionally Protected 
Property Rights. The FHWA does not believe that this action would 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this action would not cause any environmental risk to 
health or safety that might disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that this action would not have 
substantial direct effects on one or more Indian tribes; would not 
impose substantial direct compliance costs on Indian tribal 
governments; and would not preempt tribal laws. The proposed rulemaking 
addresses application requirements for the Surface Transportation 
Project Delivery Program and would not impose any direct compliance 
requirements on Indian tribal governments. Therefore, a tribal summary 
impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001. We have determined that it is 
not a significant energy action under that order since it is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. Therefore, a Statement of Energy Effects is not 
required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 773

    Environmental protection, Highway project, Highways and roads.

    Issued on: February 6, 2007.
J. Richard Capka,
Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA adds a new part 773 to 
title 23, Code of Federal Regulations to read as follows:

PART 773--SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM

Sec.
773.101 Purpose.
773.102 Applicability.
773.103 Definitions.
773.104 Eligibility.
773.105 Statements of Interest.
773.106 Application requirements for participation in the program.
773.107 Application approval.
773.108 Application amendments.
Appendix A to Part 773: FHWA Environmental Responsibilities that may 
be Assigned Under Section 6005.

    Authority: 23 U.S.C. 315 and 327; 49 CFR 1.48.


Sec.  773.101  Purpose.

    The purpose of this part is to establish the requirements, as 
directed by 23 U.S.C. 327(b)(2), relating to the information which must 
be contained in an application by a State to participate in the program 
allowing the Secretary to assign, and a State Department of 
Transportation (State DOT) to assume, responsibilities for compliance 
with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) 
and other Federal environmental laws pertaining to the review or 
approval of a highway project(s).


Sec.  773.102  Applicability.

    This part applies to any State DOT eligible under the provisions of 
23 U.S.C. 327 that submits an application for participation in the 
program.


Sec.  773.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Classes of highway projects means either a defined group of highway 
projects or all highway projects to which Federal environmental laws 
apply.
    Federal environmental law means any Federal law or Executive Order 
(EO) under which the Secretary of the United States Department of 
Transportation has responsibilities for environmental review, 
consultation, or other action with respect to the review or approval of 
highway projects. A list of the Federal environmental laws for which a 
State

[[Page 6471]]

DOT may assume the responsibilities of the Secretary under this pilot 
program include, but are not limited to, the list of laws contained in 
Appendix A to this Part. But, under 23 U.S.C. 327(a)(2)(B), the 
Secretary's responsibility for conformity determinations required under 
section 176 of the Clean Air Act (42 U.S.C. 7506) and the 
responsibility imposed on the Secretary under 23 U.S.C. 134 and 135 are 
not included in the program. Also, Federal environmental law includes 
only laws that are inherently environmental and does not include 
responsibilities such as Interstate access approvals (23 U.S.C. 111).
    Highway project means any undertaking to construct (including 
initial construction, reconstruction, replacement, rehabilitation, 
restoration, or other improvements) a highway, bridge, or tunnel, or 
any portion thereof, including environmental mitigation activities, 
which is eligible for assistance under title 23 of the United States 
Code. A highway project may include an undertaking that involves a 
series of contracts or phases, such as a corridor, and also may include 
anything that may be constructed in connection with a highway, bridge, 
or tunnel. However, the term highway project does not include any of 
the priority projects designated under Executive Order 13274; does not 
include any Federal Lands Highway project unless such project is to be 
designed and constructed by the State DOT; and does not include 
projects that are funded under chapter 53 of title 49, United States 
Code. Nothing in this part is intended to limit the consideration of 
any alternative in conducting an environmental analysis under any 
Federal environmental law, even if the particular alternative would 
provide for a project that is excluded under this section and may 
consider and include that alternative within the range of alternatives 
for a highway project.
    Program means the ``Surface Transportation Project Delivery 
Program'' established under 23 U.S.C. 327, which allows up to five 
State DOTs to assume all or part of the responsibilities for 
environmental review, consultation, or other action required under any 
Federal environmental law pertaining to the review or approval of one 
or more highway projects.


Sec.  773.104  Eligibility.

    (a) Only a State DOT of a State is eligible to participate in the 
program.
    (b) The program is limited to a maximum five State DOTs, including 
the State DOTs of Alaska, California, Ohio, Oklahoma and Texas as the 
five participant States. Should any of these five State DOTs choose not 
to apply, have its participation terminated, or withdraw from the pilot 
program, another State DOT may be selected.


Sec.  773.105  Statements of Interest.

    (a) The State DOTs of Alaska, California, Ohio, Oklahoma and Texas 
are given priority for participation in the program.
    (b) Within sixty days of March 14, 2007, the State DOTs of Alaska, 
California, Ohio, Oklahoma and Texas shall submit a statement of 
interest to participate in the program. The statement of interest shall 
declare that the State DOT intends to submit an application to 
participate in the pilot program.
    (c) Should any of the State DOTs of Alaska, California, Ohio, 
Oklahoma and Texas fail to submit a statement of interest by May 14, 
2007 or decline participation in the pilot program, such State DOT 
shall no longer be given priority consideration for selection in the 
program and its application will be selected in competition with other 
State DOTs.
    (d) Should any of the State DOTs of Alaska, California, Ohio, 
Oklahoma and Texas submit a statement of interest declaring their 
intent to participate in the program, the State shall actively work to 
develop and submit its application and meet all applicable program 
criteria (including the enactment of necessary State legal authority).


Sec.  773.106  Application requirements for participation in the 
program.

    (a) Each State DOT wishing to participate in the program must 
submit an application to the FHWA.
    (b) Each application submitted to the FHWA must contain the 
following information:
    (1) The highway project(s) or classes of highway projects for which 
the State is requesting to assume FHWA's responsibilities under NEPA. 
The State DOT must specifically identify, in its application, each 
project for which a draft environmental impact statement has been 
issued prior to the submission of its application to the FHWA;
    (2) The specific responsibilities for the environmental review, 
consultation, or other action required under other Federal 
environmental laws, if any, pertaining to the review or approval of a 
highway project, or classes of highway projects, that the State DOT 
wishes to assume under this program. The State DOT must also indicate 
whether it proposes to phase-in the assumption of these 
responsibilities;
    (3) For each responsibility requested in paragraphs (b)(1) and 
(b)(2) of this section, the State DOT shall submit a description in the 
application detailing how it intends to carry out these 
responsibilities. The description shall include:
    (i) A summary of State procedures currently in place to guide the 
development of documents, analyses and consultations required to 
fulfill the environmental responsibilities requested. The actual 
procedures should be submitted with the application, or if available 
electronically, the Web link must be provided;
    (ii) Any changes that have been or will be made in the management 
of the environmental program to provide the additional staff and 
training necessary for quality control and assurance, appropriate 
levels of analysis, adequate expertise in areas where responsibilities 
have been requested, and expertise in management of the NEPA process;
    (iii) A discussion of how the State DOT will verify legal 
sufficiency for the environmental document it produces; and
    (iv) A discussion of how the State DOT will identify and address 
those projects that would normally require FHWA headquarters prior 
concurrence of the FEIS under 23 CFR 771.125(c).
    (4) A verification of the personnel necessary to carry out the 
authority that may be granted under the program. The verification shall 
contain the following information:
    (i) A description of the staff positions, including management, 
that will be dedicated to providing the additional functions needed to 
accept the delegated responsibilities;
    (ii) A description of any changes to the State DOT's organizational 
structure that are deemed necessary to provide for efficient 
administration of the responsibilities assumed; and
    (iii) A discussion of personnel needs that may be met by the State 
DOTs use of outside consultants, including legal counsel provided by 
the State Attorney General or private counsel;
    (5) A summary of financial resources showing the anticipated 
financial resources available to meet the activities and staffing needs 
identified in (b)(3) and (b)(4) of this part, and a commitment to make 
adequate financial resources available to meet these needs;
    (6) Certification and explanation by State's Attorney General, or 
other State official legally empowered by State law, that the State DOT 
can and will assume the responsibilities of the Secretary for the 
Federal environmental laws and

[[Page 6472]]

projects requested and that the State DOT will consent to exclusive 
Federal court jurisdiction with respect to the responsibilities being 
assumed. Such consent must be broad enough to include future changes in 
relevant Federal policies and procedures to which FHWA would be subject 
or such consent would be amended to include such future changes;
    (7) Certification by the State's Attorney General, or other State 
official legally empowered by State law, that the State has laws that 
are comparable to the Federal Freedom of Information Act (5 U.S.C. 
552), including laws that allow for any decision regarding the public 
availability of a document under those laws to be reviewed by a court 
of competent jurisdiction; and
    (8) Evidence that the required notice and solicitation of public 
comment by the State DOT relating to participation in the program has 
taken place. Requirements for notice and solicitation of public 
comments are as follows:
    (i) not later than 30 days prior to submitting its application, a 
State must give notice that the State intends to participate in the 
program and solicit public comment by publishing the complete 
application of the State in accordance with the appropriate public 
notice law of the State. If allowed under State law, publishing a 
notice of availability of the application rather than the application 
itself may satisfy the requirements of this subparagraph so long as the 
complete application is made reasonably available to the public for 
inspection and copying, and
    (ii) copies of all comments received shall be submitted with the 
application. The State should summarize the comments received, and note 
changes, if any, that were made in the application in response to 
public comments.
    (c) The application shall be signed by the Governor or the head of 
the State agency having primary jurisdiction over highway matters. The 
application must also identify a point of contact for questions 
regarding the application. Applications may be submitted in electronic 
format.


Sec.  773.107  Application approval.

    If a State DOT's application is approved, then the State DOT will 
be invited to enter into a written Memorandum of Understanding (MOU) 
with the FHWA, as provided in 23 U.S.C. 327. None of FHWA's 
responsibilities under NEPA or other environmental laws may be assumed 
by the State DOT prior to execution of the MOU.


Sec.  773.108  Application amendments.

    (a) After a State DOT submits its application to the FHWA, but 
prior to the execution of a MOU, the State DOT may amend its 
application at any time to request additional highway projects, classes 
of highway projects, or more environmental responsibilities. However, 
prior to making any such amendments, the State DOT must provide notice 
and solicit public comments with respect to the intended amendments. In 
submitting the amendment to the FHWA, the State DOT must provide copies 
of all comments received and note the changes, if any, that were made 
in response to the comments.
    (b) A State DOT may amend its application no earlier than one year 
after a MOU has been executed to request additional highway projects, 
classes of highway projects, or more environmental responsibilities. 
However, prior to making any such amendments, the State DOT must 
provide notice and solicit public comments with respect to the intended 
amendments. In submitting the amendment to the FHWA, the State DOT must 
provide copies of all comments received and note the changes, if any, 
that were made in response to the comments.

Appendix A to Part 773

FHWA Environmental Responsibilities that may be assigned under section 
6005

Federal Procedures

National Environmental Policy Act (NEPA), 42 U.S.C. 4321-43351.
FHWA Environmental Regulations at 23 CFR Part 771, 772 and 777
CEQ Regulations at 40 CFR 1500-1508
Clean Air Act, 42 U.S.C. 7401-7671(q). Any determinations that do 
not involve conformity.

Noise

Compliance with the noise regulations at 23 CFR part 772

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. 757(a)-757(g)
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667(d)
Migratory Bird Treaty Act, 16 U.S.C. 703-712
Magnuson-Stevenson Fishery Conservation and Management Act of 1976, 
as amended, 16 U.S.C. 1801 et seq.

Historic and Cultural Resources

Section 106 of the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470(f) et seq.
Archeological Resources Protection Act of 1977, 16 U.S.C. 470(aa)-11
Archeological and Historic Preservation Act, 16 U.S.C. 469-469(c)
Native American Grave Protection and Repatriation Act (NAGPRA), 25 
U.S.C. 3001-3013

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. 300(f)-300(j)(6)
Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403
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

Parklands

Section 4(f) of the Department of Transportation Act of 1966, 49 
U.S.C. 303
Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601-4604

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-
6992(k)

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
 [FR Doc. E7-2375 Filed 2-9-07; 8:45 am]
BILLING CODE 4910-22-P