Section 17.12.040. Adoption of federal NEPA requirements.

	(a)  For purposes of this chapter, the following sections of 23 C.F.R. Part 771 (Environmental impact and related procedures) and 23 C.F.R. Part 774 (Parks, recreation areas, wildlife and waterfowl refuges, and historic sites) are adopted by reference and are applicable to the duties assumed by the department under this chapter except as modified by (b) and (c) of this section:  
		(1) 23 C.F.R. 771.107 (Definitions for 23 C.F.R. Part 771), revised as of April 23, 2009;  
		(2) 23 C.F.R. 771.109 (Applicability and responsibilities), revised as of April 23, 2009;  
		(3) 23 C.F.R. 771.111 (Early coordination, public involvement and project development), revised as of April 23, 2009;  
		(4) 23 C.F.R. 771.113 (Timing of administration activities), revised as of April 23, 2009;  
		(5) 23 C.F.R. 771.115 (Classes of actions), revised as of April 23, 2009;   
		(6) 23 C.F.R. 771.117 (Categorical exclusions), revised as of April 23, 2009;   
		(7) 23 C.F.R. 771.119 (Environmental assessments), revised as of April 23, 2009;  
		(8) 23 C.F.R. 771.121 (Finding of no significant impact), revised as of April 23, 2009;  
		(9) 23 C.F.R. 771.123 (Draft environmental impact statements), revised as of April 23, 2009;  
		(10) 23 C.F.R. 771.125 (Final environmental impact statements), revised as of April 23, 2009;  
		(11) 23 C.F.R. 771.127 (Record of decision), revised as of April 23, 2009;   
		(12) 23 C.F.R. 771.129 (Re-evaluations), revised as of April 23, 2009;  
		(13) 23 C.F.R. 771.130 (Supplemental environmental impact statements), revised as of April 23, 2009;  
		(14) 23 C.F.R. Part 774 (Parks, recreation areas, wildlife and waterfowl refuges, and historic sites (49 U.S.C. 304(4)(f)), revised as of April 11, 2008.  
	(b)  The federal regulations that are adopted by reference in (a) of this section are revised as follows:  
		(1) the first sentence of 23 C.F.R. 771.107(b) is revised to read: "A highway project proposed for FHWA funding.";  
		(2) 23 C.F.R. 771.107(c) is revised by replacing "FHWA or FTA" with "administration";  
		(3) 23 C.F.R. 771.107(d) is not adopted;  
		(4) only the first sentence of 23 C.F.R. 771.109(b) is adopted by reference; the rest of that subsection is not adopted;  
		(5) 23 C.F.R. 771.109(c)(1) is revised to read: "If the applicant meets the requirements of 42 U.S.C. 4332(2)(D) (see. 102(2)(D) of the National Environmental Policy Act), the applicant shall prepare the environmental impact statement (EIS) and other environmental documents with the administration furnishing guidance, participating in the preparation, and independently evaluating the document.";  
		(6) 23 C.F.R. 771.109(c)(2), (3), (4), (5), and (6) are not adopted;  
		(7) 23 C.F.R. 771.109(d) is not adopted;  
		(8) 23 C.F.R. 771.111(c) is not adopted;  
		(9) 23 C.F.R. 771.111(h)(1) is revised to read: "Before approving plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, the administration will certify to the Secretary of Transportation that it has had public hearings, or has afforded the opportunity for those hearings, and has considered the economic and social effects of that location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Before approving plans for an Interstate System project, the administration will certify to the Secretary of Transportation that it has had public hearings at a convenient location, or has afforded the opportunity for those hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of the highway. That certification will be accompanied by a report that indicates the consideration given to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives that were raised during the hearing or that were otherwise considered. The administration will provide public involvement opportunities that are equivalent to those found in 40 C.F.R. Parts 1500 - 1508."  
		(10) 23 C.F.R. 771.111(h)(2)(iii) is revised by replacing "State highway agency" with "applicant," and by replacing "FHWA" with "administration";  
		(11) 23 C.F.R. 771.111(h)(2)(vi) is revised by replacing "FHWA" with "administration";  
		(12) 23 C.F.R. 771.111(h)(3) is revised by replacing "FHWA" with "administration," and by replacing "State highway agency" with "applicant";  
		(13) 23 C.F.R. 771.111(h)(4), (i), and (j) are not adopted;  
		(14) in the third sentence of 23 C.F.R. 771.113(a), the phrase "or rolling stock" is not adopted;  
		(15) 23 C.F.R. 771.113(b), (c), and (d) are not adopted;  
		(16) 23 C.F.R. 771.117(c)(17), (18), and (19) are not adopted;  
		(17) 23 C.F.R. 771.117(d)(8), (9), (10), and (11) are not adopted;  
		(18) 23 C.F.R. 771.117(e) is not adopted;  
		(19) 23 C.F.R. 771.121(c) is revised to read: "(c) If a federal agency has issued a finding of no significant impact (FONSI) on an action that includes an element proposed for federal funding, the administration will evaluate the federal agency's FONSI. If the administration determines that this element of the project and its environmental impacts have been adequately identified and assessed, and concurs in the decision to issue a FONSI, the administration will issue its own FONSI incorporating the federal agency's FONSI. If environmental issues have not been adequately identified and assessed, the administration will require appropriate environmental studies.";  
		(20) 23 C.F.R. 771.123(b) is revised to read: "(b) After publication of the Notice of Intent, the applicant, in cooperation with the administration, will begin a scoping process. The scoping process will be used to identify the range of alternatives and impacts and the significant issues to be addressed in the environmental impact statement (EIS) and to achieve the other objectives of 40 C.F.R. 1501.7. Scoping is normally achieved through public and agency involvement procedures required by 23 C.F.R. 771.111. If a scoping meeting is to be held, it will be announced in the administration's Notice of Intent and the applicant's notice in a newspaper of general circulation made under (a) of this section.";  
		(21) the first sentence of 23 C.F.R. 771.123(c) is revised to read: "The draft EIS shall be prepared by the applicant with appropriate guidance and participation by the administration;"  
		(22) 23 C.F.R. 771.123(d) is revised to read: "The applicant may select a consultant to assist in the preparation of an EIS in accordance with AS 36.30  (State Procurement Code).";  
		(23) the first sentence in 23 C.F.R. 771.123(f) is revised to read: "The applicant shall be responsible for printing the EIS.";  
		(24) 23 C.F.R. 771.123(h) is revised to read: "The public hearing requirements are as described in 23 C.F.R. 771.111(h). Whenever a public hearing is held, the draft EIS must be available at the public hearing and for a minimum of 15 days in advance of the public hearing. The availability of the draft EIS shall be mentioned, and public comments requested, in any public hearing notice and at any public hearing presentation. If a public hearing is not held, a notice shall be placed in a newspaper of general circulation similar to a public hearing notice advising where the draft EIS is available for review, how copies may be obtained, and where the comments should be sent.";   
		(25) 23 C.F.R. 771.123(j) is not adopted;   
		(26) The first sentence of 23 C.F.R. 771.125(a)(1) is revised to read: "After circulation of a draft environmental impact statement (EIS) and consideration of comments received, a final EIS shall be prepared by the applicant with appropriate guidance and participation by the administration.";  
		(27) 23 C.F.R. 771.125(d) and (e) are not adopted;  
		(28) 23 C.F.R. 771.125(g) is revised by replacing "in local newspapers" with "in a newspaper of general circulation";  
		(29) 23 C.F.R. 771.130(e) is not adopted;  
		(30) the lead-in language of 23 C.F.R. 774.15(e) is revised to read: "A constructive use occurs when";  
		(31) the lead-in language of 23 C.F.R. 774.15(f) is revised to read: "A constructive use does not occur when."  
	(c)  Unless the context in which a term is used clearly requires a different meaning, terms in the provisions adopted by reference in this section have the following meanings:  
		(1) "administration" means the commissioner of transportation and public facilities and other positions within the department that have been delegated authority by the commissioner to approve environmental documents;  
		(2) "applicant" means an organizational unit within the department that develops and manages federally funded highway projects;   
		(3) "department" means the Department of Transportation and Public Facilities;  
		(4) "headquarters" means the office of the commissioner within the department;  
		(5) "Secretary of Transportation" means the Secretary of the United States Department of Transportation.  

Authorities

44.42.030;44.42.300

Notes

Authority

AS 44.42.030 AS 44.42.300 Editor's note: The address for the Office of the Commissioner, Department of Transportation and Public Facilities is 3132 Channel Drive, P.O. Box 112500, Juneau, AK 99811-2500. ________________________

History

Eff. 8/23/2009, Register 191