California High-Speed Rail Authority-Construction Exemption-In Merced, Madera, and Fresno Counties, Cal.; California High-Speed Rail Authority-Construction Exemption-In Fresno, Kings, Tulare, and Kern Counties, Cal.; Decision, 79034-79060 [2022-28114]

Agencies

• Surface Transportation Board

[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Notices]
[Pages 79034-79060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28114]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 35724; Docket No. FD 35724 (Sub-No. 1)]


California High-Speed Rail Authority--Construction Exemption--In 
Merced, Madera, and Fresno Counties, Cal.; California High-Speed Rail 
Authority--Construction Exemption--In Fresno, Kings, Tulare, and Kern 
Counties, Cal.; Decision

    On September 17, 2021, the California High-Speed Rail Authority 
(Authority), a Class III non-operating rail carrier, filed a petition 
to reopen Docket No. FD 35724 (Merced Petition) and a petition to 
reopen Docket No. 35724 (Sub-No. 1) \1\ (Fresno Petition). In Docket 
No. FD 35724, the Board in 2013 granted the Authority an exemption 
under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 
10901 to construct approximately 65 miles of high-speed passenger rail 
line between Merced, Cal., and Fresno, Cal. (the Merced to Fresno 
Section),\2\ and in Docket No. FD 35724 (Sub-No. 1), the Board in 2014 
granted the Authority an exemption to construct approximately 114 miles 
of high-speed passenger rail line between Fresno and Bakersfield, Cal. 
(the Fresno to Bakersfield Section).\3\
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    \1\ These proceedings are not consolidated. A single decision is 
being issued for administrative convenience.
    \2\ Cal. High-Speed Rail Auth.--Constr. Exemption--in Merced, 
Madera, & Fresno Cntys., Cal. (June 2013 Decision), FD 35724 (STB 
served June 13, 2013).
    \3\ Cal. High-Speed Rail Auth.--Constr. Exemption--in Fresno, 
Kings, Tulare, & Kern Cntys., Cal. (Aug. 2014 Decision), FD 35724 
(Sub-No. 1) (STB served Aug. 12, 2014).
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    In its September 2021 petitions to reopen those dockets, the 
Authority sought the Board's approval for an

[[Page 79035]]

addition to the Merced to Fresno Section and a modification to the 
Fresno to Bakersfield Section, neither of which were previously 
considered by the Board. In a decision served on February 11, 2022 
(February 2022 Decision), the Board found that the Authority provided 
new evidence and demonstrated changed circumstances that warranted 
reopening the two proceedings. The Board granted the petitions to 
reopen and solicited comments on the transportation merits of the 
proposed additions and modifications to the sections. No comments on 
the transportation merits were filed.
    The Authority, as the current lead agency under National 
Environmental Policy Act (NEPA), 42 U.S.C. 4321 to 4370m-11, and the 
National Historic Preservation Act (NHPA), 54 U.S.C. 300101-307108, and 
the Federal Railroad Administration (FRA), as the previous lead agency 
under NEPA and NHPA, conducted environmental and historic reviews of 
the proposed modifications. The Board, through its Office of 
Environmental Analysis (OEA), participated as a cooperating agency. The 
environmental and historic reviews considered the environmental and 
historic impacts the proposed route modifications would have, potential 
alternatives, and whether different or additional conditions should be 
recommended to mitigate the impacts. OEA prepared an Environmental 
Memorandum in each of these proceedings summarizing the environmental 
and historic reviews and making final recommendations to the Board. 
OEA's Environmental Memoranda are appended to this decision.
    In this decision, the Board authorizes the Authority's proposed 
changes to these construction projects, subject to the final 
recommended mitigation measures set forth in OEA's environmental 
memoranda.

Background

    On March 27, 2013, and September 26, 2013, the Authority filed 
petitions seeking exemptions under 49 U.S.C. 10502 from the prior 
approval requirements of 49 U.S.C. 10901 to construct the Merced to 
Fresno Section and the Fresno to Bakersfield Section, respectively. 
Both sections are components of the California High-Speed Rail (HSR) 
System. The HSR System consists of eight rail line sections that, 
together, ultimately would comprise a high-speed rail line from San 
Francisco, Cal., to Anaheim, Cal. (Merced Pet. 2.) The Merced to Fresno 
Section and the Fresno to Bakersfield Section are the first and only 
two sections of the HSR System for which the Authority has sought 
construction authority from the Board. (See Fresno Pet. 2 n.4.) The 
Board authorized the construction of the Merced to Fresno Section in 
the June 2013 Decision and the construction of the Fresno to 
Bakersfield Section in the August 2014 Decision, subject to extensive 
environmental mitigation conditions to avoid or minimize the projects' 
potential environmental impacts. (See Merced Pet. 3; Fresno Pet. 3.)
    The Merced to Fresno Section. The Merced to Fresno Section connects 
the Downtown Merced Station to the Downtown Fresno Mariposa Avenue 
Station along a mostly north-south alignment and includes a wye to 
allow an east-west connection to the proposed San Jose to Merced 
section of the HSR System.\4\ (Merced Pet. 2.) FRA and the Authority 
conducted a joint environmental review pursuant to NEPA and the 
California Environmental Quality Act (CEQA), Cal. Pub. Res. Code 
section 21000-21189.3, and issued an Environmental Impact Report/
Environmental Impact Statement (EIR/EIS),\5\ after which FRA 
subsequently issued its Record of Decision (ROD) in 2012.\6\ However, 
finding that part of the alignment merited further study,\7\ FRA 
deferred final consideration of the Central Valley Wye (CVY), which 
would connect the north-south Merced to Fresno Section with the 
proposed east-west San Jose to Merced section. (Merced Pet. 2-3; see 
also ROD 19.)
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    \4\ The term ``wye'' refers to the Y-like formation that is 
created at the point where train tracks branch off the mainline to 
continue in different directions. The transition of mainline track 
to a wye requires splitting two tracks into four tracks that cross 
over one another before the wye legs can diverge in opposite 
directions to allow two-way travel. For the Merced to Fresno 
Section, the two tracks traveling east-west from the proposed San 
Jose to Merced Section must become four tracks--a set of two tracks 
branching toward Merced to the north and a set of two tracks 
branching toward Fresno to the south.
    \5\ The environmental documents were titled EIR/EIS to meet the 
obligations of both CEQA and NEPA, respectively. The Board is only 
required to comply with NEPA; accordingly, hereafter this decision 
will refer to the environmental documentation prepared in these 
cases as ``EISs.''
    \6\ The FRA's 2012 ROD is available on the Authority's website 
at hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/final_EIR_MerFres_FRA09182012.pdf.
    \7\ As noted in the Final EIS, the selection of the alignment 
for the wye connection impacted the environmental analysis for both 
the Merced to Fresno Section and the San Jose to Merced section. 
FRA, Final Merced to Fresno Section Project EIR/EIS 2-3, April 20, 
2012, railroads.dot.gov/environmental-reviews/california-hsr-merced-fresno/merced-fresno-final-eireis. The alignment of the latter 
section, which would impact the ultimate location of the wye 
connection, was being studied and analyzed at the time of the June 
2013 Decision. See id. Since then, the Authority has identified a 
preferred alternative for the San Jose to Merced section, for which 
it published a Draft EIS on April 24, 2020. The public comment 
period on that Draft EIS closed on June 23, 2020. See California 
High-Speed Rail Authority, Project Section Environmental Documents--
San Jose to Merced, hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/san-jose-to-merced-project-section-draft-environmental-impact-report-environmental-impact-statement/.
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    As the lead Federal agency, FRA initiated the consultation process 
under Section 106 of NHPA (54 U.S.C. 306108) for the Merced to Fresno 
Section prior to OEA's involvement. June 2013 Decision, FD 35724, slip 
op. at 27. During that process, FRA consulted with the California State 
Historic Preservation Officer (SHPO), the Advisory Council on Historic 
Preservation (ACHP), and other interested parties. Id. The parties 
executed a Programmatic Agreement (PA) setting out a general process 
for Section 106 compliance for the proposed entire 800-mile system on 
June 11, 2011.\8\ Id. The Section 106 consultation process, as well as 
evaluations conducted during the NEPA review, identified properties 
that are included in, or eligible for inclusion in, the National 
Register of Historic Places (National Register) that would be adversely 
affected by construction and operation of the Merced to Fresno Section. 
Id. FRA, the SHPO, and the Authority \9\ then executed a Memorandum of 
Understanding (MOA) \10\ that outlines additional surveys, historic 
property treatment, mitigation measures, and other efforts. Id. 
Subsequently, the parties executed a First Amendment to the MOA in 2013 
to add OEA, for the Board, as a party. Id.
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    \8\ With the PA set to expire on July 21, 2021, the Signatories 
to the PA executed the First Amendment to the PA on July 21, 2021. 
In addition to extending the duration of the document, the amendment 
added OEA, for the Board, as an Invited Signatory to the agreement 
and designated the Authority as lead federal agency to Section 106 
consultation and implementation.
    \9\ ACHP chose not to participate.
    \10\ Due to access restrictions, surveys for archaeological 
properties were incomplete and, therefore, additional National 
Register-eligible properties could have been present. The 
regulations implementing Section 106 allow for the development of an 
MOA when the effects of an undertaking cannot be fully determined 
prior to approval of an undertaking. June 2013 Decision, FD 35724, 
slip op. at 27. When there would be an adverse effect, the MOA can 
also establish responsibilities for the treatment of historic 
properties, implementation of mitigation measures, and ongoing 
consultation efforts. Id.
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    OEA conducted an independent analysis of the Final EIS prepared by 
FRA and the Authority and, following this review, recommended that the 
Board adopt the Final EIS for the

[[Page 79036]]

Merced to Fresno Section, which included the decision to defer 
consideration of the alignment of the CVY.\11\ (Merced Pet. 3.) OEA 
also recommended that the Board find that OEA's participation in the 
MOA would satisfy the Board's obligations under Section 106. In the 
June 2013 Decision, the Board agreed with OEA's recommendations, 
adopted FRA and the Authority's Final EIS (subject to environmental 
conditions, including environmental conditions developed by OEA), found 
that the MOA would satisfy the Board's obligations under Section 106, 
and granted the Authority's petition for exemption. Both FRA's 2012 ROD 
and the Board's June 2013 Decision approved portions of the north-south 
alignment and the Downtown Merced and Downtown Fresno Mariposa Station 
locations, but they intentionally did not address the area known as the 
``wye connection,'' which includes the location of the north-south 
track in that area. (See ROD 22.)
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    \11\ When the Authority petitioned the Board for authority to 
construct the Merced to Fresno Section in March 2013, the 
environmental review under NEPA for that section had already been 
completed by the Authority and FRA. Consequently, the Board did not 
participate in the environmental review as a cooperating agency. 
However, as described further in this decision, the Board (through 
OEA) acted as a cooperating agency for the CVY Final Supplemental 
EIS.
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    The Authority states that, since the June 2013 Decision, it has 
conducted significant additional analysis on the alignment of the wye 
connection to the proposed San-Jose-to-Merced section.\12\ (Merced Pet. 
4.) Of 17 possible alignments, the Authority and FRA selected four 
options for additional analysis. (Id. & n.10.) Based on that analysis 
and input from interested parties, the SR 152 (North) to Road 11 Wye 
Alternative was selected as the preferred alternative for the CVY. 
(Id.) The CVY Final Supplemental EIS was issued by the Authority on 
August 7, 2020, and the Authority issued its Supplemental ROD on the 
CVY in September 2020, subject to environmental mitigation measures. 
(Id.) The additional analysis, according to the Authority, allowed it 
to refine alternative alignments for the CVY that ``minimized impacts 
on farmland and communities and balanced environmental impacts with 
concerns for travel time and construction costs.'' (Id. at 6.) The 
Board (through OEA) participated as a cooperating agency for the CVY 
Final Supplemental EIS.
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    \12\ Pursuant to 23 U.S.C. 327, under a NEPA Assignment 
Memorandum of Understanding between FRA and the State of California, 
effective July 23, 2019, the Authority became the lead agency for 
compliance with NEPA and other federal laws for the HSR System, 
including the issuance of EISs and RODs under NEPA. Accordingly, the 
supplemental environmental reviews for both HSR sections were 
conducted by the Authority, not FRA.
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    Citing these developments that followed the June 2013 Decision as 
new evidence and changed circumstances, the Authority requested that 
the Board reopen the proceeding in Docket No. FD 35724 to consider the 
CVY. The Authority also requested that the Board review and adopt the 
supplemental environmental and historic review completed by the 
Authority and FRA, pursuant to 40 CFR 1506.3. (Merced Pet. 6.) In the 
February 2022 Decision reopening Docket No. FD 35724, the Board stated 
that it would review the supplemental environmental and historic review 
and decide whether to adopt the Final Supplemental EIS. The Board also 
solicited comments on the transportation merits of the CVY. No comments 
on the transportation merits were received.
    The Fresno to Bakersfield Section. The Authority and FRA conducted 
a joint environmental review for the Fresno to Bakersfield Section, 
with the Board, through OEA, acting as a cooperating agency. (Fresno 
Pet. 2.) In 2014, a Final EIS was issued, and FRA issued its ROD. (Id.)
    As lead agency at the time, FRA initiated section-specific NHPA 
review for the Fresno to Bakersfield section. August 2014 Decision, FD 
35724 (Sub-No. 1), slip op. at 20. The Section 106 consultation 
process, as well as evaluations conducted during the NEPA review, 
identified properties that are included, or eligible for inclusion, in 
the National Register that would be adversely affected by construction 
and operation of the Preferred Build Alternative. FRA, the Authority, 
the Board (through OEA), the U.S. Army Corps of Engineers, the SHPO, 
and ACHP executed an MOA on May 14, 2014, that outlines additional 
surveys, historic property treatment, mitigation measures, and other 
efforts that will take place prior to construction of the Fresno to 
Bakersfield Section. Id.
    OEA recommended that the Board adopt the Final EIS, with several 
additional environmental mitigation measures. (Id. at 2-3.) OEA also 
recommended that the Board find that OEA's participation in the MOA 
process would satisfy the Board's obligations under Section 106. In the 
August 2014 Decision, the Board accepted OEA's recommendations, adopted 
the Final EIS and OEA's recommended mitigation measures, found that the 
MOA would satisfy the Board's obligations under Section 106, and 
authorized construction of the Fresno to Bakersfield Section.
    In June 2014, the City of Bakersfield (the City) filed a lawsuit 
against the Authority, claiming, among other things, that ``the 
Preferred Alternative identified in the Fresno to Bakersfield Section 
Final EIS would severely affect the City's ability to utilize existing 
city assets, including its corporation yard, senior housing, and 
parking facilities at Rabobank Arena, Theatre and Convention Center; 
would render unusable one of the city's premier health care facilities; 
and would affect the Bakersfield Commons project, a retail/commercial/
residential development.'' (Fresno Pet. 3-4 (quoting the description of 
the lawsuit in Suppl. ROD Section 1.3.2 at 1-9.)) After the Board 
issued its August 2014 Decision, the Authority and the City entered 
into a settlement agreement, dated December 19, 2014. (Fresno Pet. 4.) 
According to the Authority, as part of the settlement agreement, the 
Authority agreed ``to develop and study alternative routes that would 
address the City's concerns as well as the design needs of the 
Authority.'' (Id.)
    The Authority states that, following the settlement agreement, it 
worked with the City and other stakeholders to develop the alternative 
(the Locally Generated Alternative, or LGA) that is now the subject of 
its exemption request. (Id.) The LGA consists of a 23.13-mile 
alternative alignment between the cities of Shafter, Cal., and 
Bakersfield, Cal., and a new location of the Bakersfield Station at F 
Street. (Id.) The Authority, as lead NEPA agency, conducted an 
environmental review of the modification (with the Board, through OEA, 
participating as cooperating agency) and issued a combined Final 
Supplemental EIS and Supplemental ROD on October 31, 2019. (Id. at 5.) 
The Authority represents that the proposed modifications would not 
disturb the remainder of the Fresno to Bakersfield Section authorized 
in the August 2014 Decision. (Fresno Pet. 4.)
    The Authority sought to reopen Docket No. FD 35724 (Sub-No. 1), the 
Fresno to Bakersfield Section proceeding, to allow the Board to 
consider the LGA. In addition, the Authority requests that the Board 
review and adopt the environmental and historic review of the LGA 
completed by the Authority, pursuant to 40 CFR 1506.3. (Fresno Pet. 6.) 
In the February 2022 Decision reopening the proceeding, the Board 
stated that it would review the supplemental environmental and historic 
review and decide whether to adopt the Final Supplemental EIS. The 
Board also solicited comments on the

[[Page 79037]]

transportation merits of the LGA, but none were filed.

Discussion and Conclusions

Rail Transportation Analysis

    The construction of new railroad lines requires prior Board 
authorization, through either a full application and certificate under 
49 U.S.C. 10901 or, as requested here, an exemption under 49 U.S.C. 
10502 from the prior approval requirements of section 10901. Section 
10901(c) directs the Board to grant authority for a rail line 
construction proposal unless it finds the proposal ``inconsistent with 
the public convenience and necessity.'' See Alaska R.R.--Constr. & 
Operation Exemption--a Rail Line Extension to Port MacKenzie, Alaska, 
FD 35095, slip op. at 5 (STB served Nov. 21, 2011), aff'd sub nom. 
Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 2013). Thus, there is a 
statutory presumption that rail construction projects are in the public 
interest and should be approved unless shown otherwise. N. Plains Res. 
Council v. STB, 668 F.3d 1067, 1091-92 (9th Cir. 2011); Mid States 
Coal. for Progress v. STB, 345 F.3d 520, 552 (8th Cir. 2003).
    Under section 10502(a), the Board must exempt a proposed rail line 
construction from the prior approval requirements of section 10901 when 
it finds that (1) those procedures are not necessary to carry out the 
rail transportation policy of 49 U.S.C. 10101, and (2) either (a) the 
proposal is of limited scope or (b) the full application procedures are 
not needed to protect shippers from an abuse of market power.
    In the June 2013 Decision and the August 2014 Decision, the Board 
found that the Authority met the standards of 49 U.S.C. 10502 for 
exemptions from the prior approval requirements of 49 U.S.C. 10901 for 
the construction of the proposed Merced to Fresno Section and the 
proposed Fresno to Bakersfield Section, respectively. In both 
decisions, the Board concluded that the requested exemptions would 
reduce the need for Federal regulation (49 U.S.C. 10101(2)), ensure the 
development of a sound rail transportation system with effective 
competition to meet the needs of the shipping public (49 U.S.C. 
10101(4)), foster sound economic conditions in transportation (49 
U.S.C. 10101(5)), reduce regulatory barriers to entry (49 U.S.C. 
10101(7)), and encourage and promote energy conservation (49 U.S.C. 
10101(14)). See June 2013 Decision, FD 35724, slip op. at 22-23; Aug. 
2014 Decision, FD 35724 (Sub-No. 1), slip op. at 12-13. The Board also 
found that although parties argued that certain other aspects of the 
rail transportation policy would be affected, no evidence was provided 
supporting the claims. See June 2013 Decision, FD 35724, slip op. at 
23; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 14. The Board 
found that potential health and safety impacts (49 U.S.C. 10101(8)) 
were fully analyzed during the environmental review processes and that 
the extensive environmental mitigation that would be imposed on the 
projects would eliminate or minimize potential impacts on public health 
and safety to the extent practicable. See June 2013 Decision, FD 35724, 
slip op. at 24; Aug. 2014 Decision, FD 35724 (Sub-No. 1), slip op. at 
14. Finally, the Board found that regulation of the proposed 
construction projects was not necessary to protect shippers or the 
traveling public from the abuse of market power. See June 2013 
Decision, FD 35242, slip op. at 24-25; Aug. 2014 Decision, FD 35724 
(Sub-No. 1), slip op. at 14-15. The Authority sought, and the Board 
granted authority to reopen to reconsider the exemptions, based on a 
finding of substantially changed circumstances. However, no party has 
challenged the Board's 2013 or 2014 conclusions on the transportation 
merits of the proposals, and there is nothing in the record since 2013 
and 2014 that would call those conclusions into question. The Board 
therefore reaffirms the 2013 and 2014 conclusions here with regard to 
the transportation merits of the Merced to Fresno and Fresno to 
Bakersfield Sections, as modified, and now turns to consideration of 
the environmental and historic aspects of the proposed modifications to 
the project.

Environmental and Historic Analysis

    NEPA requires Federal agencies to examine the environmental effects 
of proposed major Federal actions and to inform the public concerning 
those effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 
U.S. 87, 97 (1983). Under NEPA and related environmental laws, the 
Board must consider significant potential beneficial and adverse 
environmental impacts in deciding whether to authorize railroad 
construction as proposed, deny the proposal, or grant it with 
conditions (including environmental mitigation conditions). Tex. Ry. 
Exch.--Constr. & Operation Exemption--Galveston Cnty., Tex., FD 36186 
et al., slip op. at 5 (STB served Jan. 17, 2020). While NEPA prescribes 
the process that must be followed, it does not mandate a particular 
result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 
(1989). Once the environmental effects, if any, of a proposed action 
have been adequately identified and evaluated, an agency may conclude 
that other values outweigh those environmental effects. Id.
    Section 106 of NHPA requires Federal agencies to ``take into 
account the effect of'' their licensing decisions (in this case, 
whether to grant the Authority's request for an exemption, also called 
the ``undertaking'' under NHPA) on properties included in, or eligible 
for inclusion in, the National Register, and prior to the approval of 
an undertaking, to afford the ACHP a reasonable opportunity to comment. 
See 54 U.S.C. 306108. Consultation with the SHPO is also required. See 
36 CFR 800.2(a)(4) & (c)(1), 800.3(c)(3). If the undertaking would have 
an adverse effect on historic properties, the agency (here, the 
Authority, as lead agency) must continue to consult to possibly 
mitigate the adverse effect. See 36 CFR 800.6(a).
    The Environmental and Historic Review Process--CVY. As explained in 
more detail in OEA's Environmental Memorandum to the Board for the CVY 
(CVY Memorandum) (Appendix A), the Authority, as the lead agency under 
NEPA, conducted an environmental review of the CVY (with the Board, 
through OEA, participating as a cooperating agency). Of 17 possible CVY 
alignments, four build alternatives were selected for additional 
environmental review. The Authority issued a Draft Supplemental EIS in 
September 2019 for a 45-day public comment period, and a Final 
Supplemental EIS on August 7, 2020.\13\ Based on this environmental 
review process, on September 16, 2020, the Authority issued its 
Supplemental ROD, in which the Authority selected the State Route 152 
(North) to Road 11 Wye alignment as its preferred and environmentally 
preferable alternative for the CVY. (Suppl. ROD 31-32.) The remaining 
portions of the Merced to Fresno Section that were authorized by the 
Board in the June 2013 Decision, north of the CVY from Ranch Road to 
the Merced Station and south of the CVY from Avenue 19 to the Fresno 
Station, are unaffected by the Supplemental ROD. The Authority's 
Supplemental ROD also imposes extensive mitigation conditions through 
its Mitigation & Monitoring Enforcement Plan (MMEP) for the CVY, which 
supplements the mitigation required by the 2012 MMEP for the Merced to 
Fresno Section. (Suppl. ROD 29; id. at App. D.)
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    \13\ The Draft and Final Supplemental EISs for the CVY are 
available on the Authority's website at hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/merced-to-fresno-central-valley-wye/.

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[[Page 79038]]

    As for the Section 106 process, since the June 2013 Decision, a 
Second Amendment to the MOA was executed in 2017 to improve the 
process. However, because the CVY was contemplated as part of the 
Merced to Fresno section at the time the MOA was executed for the 
Merced to Fresno Section, there was no need to amend the MOA further to 
address the CVY. Indeed, the SHPO approved the Authority's assessment 
of adverse effects to historic resources from the CVY in 2018 in Merced 
to Fresno Section: Central Valley Wye Final Supplemental Section 106 
Findings of Effect Report. (Suppl. ROD 40.)
    In its Environmental Memorandum, OEA concludes that (1) OEA's 
substantive comments and suggestions were incorporated into the Draft 
and Final Supplemental EISs for the CVY; (2) the EISs adequately assess 
the potential environmental impacts associated with the CVY and meet 
the standards of the Council on Environmental Quality's (CEQ's) NEPA 
regulations and the Board's own environmental regulations at 49 CFR 
part 1105; and (3) the State Route 152 (North) to Road 11 Wye alignment 
represents the preferred and environmentally preferable alternative for 
the CVY. See App. A, CVY Env't Mem. section 6.1-6.3. OEA further 
concludes that execution of the MOA and the First and Second Amendments 
to the MOA, their filing with ACHP, and subsequent implementation of 
their terms satisfy the requirements of Section 106 (36 CFR 800.6(c)) 
for the Merced to Fresno Section, including the CVY. OEA does not 
recommend any additional mitigation but recommends that the Board adopt 
and impose conditions requiring compliance with the MMEP, the 
mitigation plan developed by the Authority, and the mitigation 
contained in the Section 106 MOA, as amended.
    Accordingly, OEA recommends that, in order to satisfy its NEPA and 
Section 106 obligations, the Board adopt the Draft and Final 
Supplemental EISs in any decision granting the Authority's request to 
construct the CVY and impose the mitigation developed by the Authority, 
through its MMEP and the MOA, as amended.
    The Board's Analysis of Environmental and Historic Issues--CVY. The 
Board adopts the analysis and conclusions in OEA's Environmental 
Memorandum on the CVY, the Draft and Final Supplemental EISs, and the 
final recommended mitigation measures. As explained in detail in OEA's 
memorandum, while the Draft and Final Supplemental EISs show that there 
would be certain unavoidable impacts from the CVY modification 
(including residential and business relocations, impacts to agriculture 
lands, and impacts to aesthetic and visual resources), the Authority 
adopted an approximately 126-page MMEP in its Supplemental ROD that 
specifies means to avoid, minimize, or mitigate likely environmental 
harm caused by construction and operation of the proposed CVY 
modification.\14\ The Authority's Supplemental ROD obligates it to 
comply with all the mitigation measures in the MMEP. The Board is 
satisfied that OEA, together with the Authority and other parties, have 
taken the requisite hard look at the potential environmental impacts 
associated with the CVY and properly determined that the recommended 
environmental mitigation for the CVY will adequately address the 
potential impacts of the proposal.
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    \14\ The MMEP is attached to the Supplemental ROD as Appendix D 
and is available on the Authority's website at hsr.ca.gov/wp-content/uploads/docs/programs/merced-fresno-eir/A-10_CVY_ROD_APP_D_MMEP.pdf.
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    The Board also adopts OEA's conclusion that execution of the MOA 
and the First and Second Amendments to the MOA, their filing with ACHP, 
and subsequent implementation of their terms satisfy the requirements 
of Section 106 for the Merced to Fresno Section, including the CVY.
    The Environmental and Historic Review Process--LGA. As detailed in 
OEA's Environmental Memorandum to the Board for the LGA (LGA 
Memorandum) (Appendix B), the Authority, as the current lead agency 
under NEPA, and FRA, as the previous lead agency under NEPA, conducted 
an environmental review of the LGA (with the Board, through OEA, 
participating as a cooperating agency). FRA issued a Draft Supplemental 
EIS in November 2017 for a 60-day public comment period and held a 
public hearing on December 19, 2017, to receive oral testimony and 
comments. The Authority issued a combined Final Supplemental EIS and 
Supplemental ROD on October 31, 2019.\15\ The Draft Supplemental EIS 
and Final Supplemental EIS assess the potential environmental impacts 
of the LGA and compare those impacts to those of the previously 
approved component of the Fresno to Bakersfield Section that the LGA 
would replace.
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    \15\ The Authority's Supplemental ROD is available on its 
website at hsr.ca.gov/programs/environmental-planning/project-section-environmental-documents-tier-2/fresno-to-bakersfield-locally-generated-alternative/.
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    As to the Section 106 process, the parties expanded the process to 
include the LGA in a First Amendment to the MOA that the parties 
executed on January 4, 2017.
    In the Supplemental ROD, the Authority approved the LGA, including 
the F Street Station in Bakersfield, as its preferred and 
environmentally preferable alternative for this portion of the Fresno 
to Bakersfield Section. (Suppl. ROD 6-1.) The remaining portion of the 
Fresno to Bakersfield Section that was authorized by the Board in the 
August 2014 Decision is unchanged and unaffected by the Supplemental 
ROD. The Authority's Supplemental ROD also imposes extensive mitigation 
conditions through its MMEP for the LGA. (Suppl. ROD 5-1; id. at App. 
C.)
    In its Environmental Memorandum for the LGA, OEA concludes that (1) 
OEA's substantive comments and suggestions were incorporated into the 
Draft and Final Supplemental EISs; (2) the EISs adequately assess the 
potential environmental impacts associated with the LGA modification 
and meet the standards of CEQ's NEPA regulations and the Board's own 
environmental regulations at 49 CFR part 1105; and (3) the LGA 
represents the preferred and environmentally preferable alternative for 
the 23-mile portion of the Fresno to Bakersfield Section. See App. B, 
LGA Env't Mem. section 6.1. OEA also concludes that execution of the 
MOA and First Amendment to the MOA, their filing with ACHP, and 
subsequent implementation of their terms satisfy the requirements of 
Section 106 for the Fresno to Bakersfield Section, including the LGA. 
OEA does not recommend any additional mitigation but recommends that 
the Board adopt and impose conditions requiring compliance with the 
MMEP, the mitigation plan developed by the Authority, as amended, and 
the mitigation contained in the Section 106 MOA, as amended. OEA 
further recommends that the Board remove a mitigation measure, which 
prohibits pile driving near Mercy Hospital, imposed in the August 2014 
Decision because the measure pertains specifically to the component of 
the Fresno to Bakersfield Section that the LGA would replace.
    Accordingly, OEA recommends that, in order to satisfy its NEPA and 
Section 106 obligations, the Board adopt the Draft and Final 
Supplemental EISs in any decision granting the Authority's request to 
construct the LGA modification and impose the mitigation developed by 
the Authority, through its

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MMEP,\16\ as amended \17\ and the MOA, as amended. See App. B, LGA 
Env't Mem. section 6.1, 6.3.
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    \16\ The Board imposed the mitigation in the MMEP in the August 
2014 Decision.
    \17\ The MMEP, as amended, is attached to the Supplemental ROD 
as Appendix C, and is available on the Authority's website at 
hsr.ca.gov/wp-content/uploads/docs/programs/fresno-baker-eir/FBLGA_ROD_Attachment_C_MMEP.pdf.
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    The Board's Analysis of Environmental and Historic Issues--LGA. The 
Board adopts the analysis and conclusions in the LGA Environmental 
Memorandum and the Draft and Final Supplemental EISs including the 
final recommended mitigation measures.\18\ As explained in detail in 
the LGA Environmental Memorandum, while the Draft and Final 
Supplemental EISs show that there would be certain unavoidable impacts 
from the LGA modification (including road closures, residential and 
business relocations, noise impacts, and impacts to agriculture lands, 
aesthetic and visual resources, community cohesion, and environmental 
justice populations), the Authority adopted an approximately 180-page 
MMEP, as amended, in its Supplemental ROD that specifies extensive 
means to avoid, minimize, or mitigate likely environmental harm caused 
by construction of the proposed LGA modification.\19\ See App. B, LGA 
Env't Mem. section 4.0, 6.2, 6.3. As a result, the LGA represents the 
environmentally preferable modification to the Fresno to Bakersfield 
Section. The Authority's Supplemental ROD obligates it to comply with 
all the mitigation measures in the amended MMEP. The Board is satisfied 
that OEA, together with the Authority and other parties, have taken the 
requisite hard look at the potential environmental impacts associated 
with the LGA and properly determined that the final recommended 
environmental mitigation will appropriately address the potential 
impacts of the proposal.
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    \18\ The final recommended mitigation measures include removal 
of the condition related to pile driving near Mercy Hospital. The 
Board adds two new measures to assure compliance with the 
Authority's final environmental and Section 106 mitigation.
    \19\ As the LGA Environmental Memorandum explains, the LGA would 
have substantial impacts on minority and low-income populations even 
after mitigation measures are taken. See App. B, LGA Env't Mem. sec. 
4.0 (citing Draft Suppl. EIS). Such mitigation measures include 
installing sound barriers; acquiring property easements; locating 
suitable replacement properties and facilities; adding landscaping 
to screen structures, light, glare, and blocked views. (Suppl. ROD 
Section 6-8.) Continued environmental justice outreach in adversely 
affected neighborhoods could also provide resident feedback that may 
be used to further mitigate some of these impacts. (See Suppl. ROD, 
Attachment C, MMEP, Table 1 at 1-49, SO-MM#6.) Input from these 
communities would be used to refine the LGA during ongoing 
engineering design efforts. (Id.)
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    The Board adopts OEA's conclusion that execution of the MOA and 
First Amendment to the MOA, their filing with ACHP, and subsequent 
implementation of their terms, satisfy the requirements of Section 106 
for the Fresno to Bakersfield Section, including the LGA.
    This action, as conditioned, will not significantly impact the 
quality of the human environment or the conservation of energy 
resources.
    It is ordered:
    1. In Docket No. FD 35724, under 49 U.S.C. 10502, the Board exempts 
construction of the Authority's proposed route addition to the Merced 
to Fresno Section from the prior approval requirements of 49 U.S.C. 
10901.
    2. In Docket No. FD 35724 (Sub-No. 1), under 49 U.S.C. 10502, the 
Board exempts construction of the Authority's proposed route 
modifications to the Fresno to Bakersfield Section from the prior 
approval requirements of 49 U.S.C. 10901.
    3. In Docket No. FD 35724, the Board adopts the environmental 
mitigation measures set forth in OEA's Environmental Memorandum 
regarding the CVY (Appendix A) and imposes them as conditions to the 
exemption granted here.
    4. In Docket No. FD 35724 (Sub-No. 1), the Board adopts the 
environmental mitigation measures set forth in OEA's Environmental 
Memorandum regarding the LGA (Appendix B) and imposes them as 
conditions to the exemption granted here.
    5. Notice will be published in the Federal Register on December 23, 
2022.
    6. Petitions for reconsideration must be filed by January 9, 2023.
    7. This decision is effective on its service date.

    Decided: December 19, 2022.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.
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[FR Doc. 2022-28114 Filed 12-22-22; 8:45 am]
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