Record of Decision and National Interest Determination

April 27, 2017

   

DEPARTMENT OF STATE

RECORD OF DECISION AND NATIONAL INTEREST DETERMINATION

State of Texas Application for Presidential Permit

Contents

1.0 Summary

2.0 Scope of the Proposed Project

3.0 Legal Authority

4.0 Issues Considered in the Final Environmental Assessment and Finding of No Significant Impact

5.0 Agency and Tribal Involvement and Public Comment

6.0 Basis for Decision

7.0 National Interest Determination

 

1.0 Summary

In September 2016, the State of Texas, through the Texas Department of Transportation (TXDOT), applied to the Department of State (Department) for a Presidential permit to authorize the construction, operation, and maintenance of a two-lane second bridge structure (the “proposed Project”) at the Presidio-Ojinaga International Bridge (the “Bridge”) on the U.S.-Mexico border at Presidio, Texas and Ojinaga, Chihuahua, Mexico. Deputy Secretary of State Charles Robinson issued a Presidential permit to Presidio County on July 2, 1976 to construct, operate, and maintain the Bridge. After Presidio County failed to construct the Bridge, the Department issued an amended Presidential permit to the State of Texas on May 4, 1982 to construct, operate, and maintain the Bridge (hereinafter referred to as the “1982 Permit”). The Bridge was constructed in 1985.

Executive Order 11423 of April 16, 1968, as amended (“E.O. 11423”), delegates to the Secretary of State the President’s authority to receive applications for permits for the construction, connection, operation, or maintenance of certain facilities at the borders of the United States and to issue or deny such Presidential permits upon a national interest determination. The determination is Presidential action, made through the exercise of presidentially delegated authorities, and therefore the requirements of the National Environmental Policy Act of 1969 (NEPA), the National Historic Preservation Act of 1966 (NHPA), the Endangered Species Act of 1973 (ESA), the Administrative Procedure Act (APA), and other similar laws and regulations that do not apply to presidential actions are also inapplicable here. Nevertheless, the Department’s review of the Presidential permit application from the State of Texas has, as a matter of policy, been conducted in a manner consistent with NEPA. Pursuant to E.O. 11423, the Department sought comments on the application from five specified U.S. government agencies (i.e., the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Transportation, and the Secretary of Homeland Security, and from the public. In addition, the Department solicited, as a discretionary matter, the views of three other U.S. agencies: the Environmental Protection Agency (EPA), the General Services Administration (GSA), and the U.S. Section of the International Boundary and Water Commission (IBWC). 81 Fed. Reg. 66320 (Sept. 27, 2016).

The Department considered the 2016 Final Environmental Assessment (EA) prepared by the U.S. Department of Transportation Federal Highway Administration (FHWA) and TXDOT, El Paso District, and determined the EA’s analysis of the relevant environmental and socio-economic issues posed by the proposed action to be adequate for the Department’s purposes to inform the national interest determination for the proposed Project. Accordingly, consistent with NEPA, the Department adopted the EA on October 27, 2016, and concurred with the findings.

Acting on behalf of the President under delegated authorities in accordance with E.O. 11423, and following an evaluation of the proposed Project, the Acting Assistant Secretary for Oceans and International Environmental and Scientific Affairs has determined that the issuance of a new Presidential permit to the State of Texas to construct the proposed Project at the Presidio-Ojinaga International Bridge on the U.S.-Mexico border at Presidio, Texas and Ojinaga, Chihuahua, Mexico would serve the national interest. Accordingly, the request for a Presidential permit is approved.

2.0 Scope of Proposed Project

The State of Texas, through TXDOT, proposes to construct a two-lane second bridge structure immediately upstream of the Bridge. The proposed Project, which would be similar in length and width to the Bridge, would accommodate two 12-foot-wide southbound travel lanes and a 10-foot-wide pedestrian walkway in the southbound direction. The Bridge and roadway would be reconfigured to carry northbound traffic into the United States on two lanes as well as northbound pedestrians on the existing walkway.

3.0 Legal Authority

The President of the United States has authority to require permits for transboundary infrastructure projects based upon his Constitutional powers. In E.O. 11423, acting pursuant to the Constitution and laws of the United States, including Section 301 of Title 3 of the United States Code, the President delegated to the Secretary of State the authority to receive applications and make determinations regarding approval or denial of Presidential permits for certain types of border facilities, including bridges, to the extent that congressional authorization is not required, based on the Secretary’s finding as to whether issuance of a permit would serve the national interest. Because the proposed Project involves building a new two-lane bridge that crosses the international border, the authority to make a determination for issuance of a Presidential permit for the border facilities is within the scope of authority delegated to the Secretary of State by the President. Once the Secretary makes a proposed determination on behalf of the President pursuant to E.O. 11423, any of the Cabinet-level officials of the five agencies named by the President in the Executive Order may indicate disagreement with it and request that the Secretary refer the application to the President. If none of the Cabinet-level officials chooses to refer the application to the President, the Secretary’s determination on behalf of the President stands and the Presidential permit is issued or denied consistent with that determination.

The functions assigned to the Secretary have been delegated within the Department of State to the Deputy Secretary of State, the Under Secretary of State for Political Affairs, and the Under Secretary of State for Economic Growth, Energy, and the Environment (Department of State Delegations of Authority and 118-2) and then further delegated to the Acting Assistant Secretary for Oceans and International Environmental and Scientific Affairs pursuant to Delegation 415 of January 18, 2017.

As noted above, when reviewing an application for a Presidential permit, the Secretary or his delegate is required by E.O. 11423 to determine if issuance of the permit would serve the national interest. The determination is made pursuant to the President’s constitutional authority. No statute establishes criteria for this determination. The President or his delegate may take into account factors he or she deems germane to the national interest. With regard to the proposed Project, the Acting Assistant Secretary of State for Oceans and International and Scientific Affairs has considered a range of factors, including but not limited to foreign policy, economic, environmental, and cultural impacts, as well as compliance with applicable law and policy. The determination is Presidential action, made through the exercise of Presidentially delegated authorities, and therefore the requirements of NEPA, the ESA, the NHPA, the APA, and other similar laws and regulations that do not apply to Presidential actions are also inapplicable here. Nevertheless, as a matter of policy and in order to inform the Acting Assistant Secretary’s determination regarding the national interest, the Department has reviewed the potential impacts of the action on the environment and cultural resources in a manner consistent, where appropriate, with these statutes. The purpose of preparing an environmental assessment and undertaking the other statutory processes noted above was to produce a comprehensive review to inform decision makers and the relevant executive branch agencies about the potential environmental impacts of the proposed Project.

4.0 Issues Considered in the Final Environmental Assessment and Finding of No Significant Impact

As noted in Section 1.0, FHWA and TXDOT prepared an EA to determine whether the proposed Project could have a significant impact on the quality of the environment. Based on the EA’s findings, the FHWA concluded the proposed Project “would result in no significant adverse impacts at a level that would warrant an Environmental Impact Statement.” Consistent with Department and Council on Environmental Quality regulations (22 C.F.R. 161.9(c) and 40 C.F.R. 1506.3(a)), the Department determined that the EA was adequate for adoption and documented that decision and its review process in a sufficiency review dated October 27, 2016.

5.0 Agency and Tribal Involvement and Public Comment

E.O. 11423 authorizes the Secretary to request the views of five specified U.S. government agencies (i.e., the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Transportation, and the Secretary of Homeland Security) with regard to the permit application and, accordingly, the Department requested the views of those five agencies. E.O. 11423 further authorizes the Secretary to consult with such other federal, state, and local officials as he or she deems appropriate and, accordingly, the Department solicited, as a discretionary matter, the views of three additional U.S. agencies: EPA, GSA, and IBWC. Two agencies (the Department of Homeland Security and GSA) provided comments regarding the proposed Project, but neither was unfavorable.[1] In addition to soliciting the views of federal agencies, TXDOT has been in regular contact with Mexican federal and state officials throughout the development of the proposed Project. The Department and the Government of Mexico have also been in communication about the proposed Project.

On September 27, 2016, a Notification of Receipt of the State of Texas’s application for a Presidential permit was published in the Federal Register. 81 Fed. Reg. 66320 (September 27, 2016 http://www.federalregister.gov/documents/2016/09/27/2016-23287/notice-of-receipt-of-application-for-an-amended-presidential-permit-for-the-presidio-ojinaga). The notification solicited public comment on the application for a 30-day period. No public comments were received. No comments were received from Indian tribes.

6.0 Basis for Decision

Acting on behalf of the President of the United States under delegated authority, the Acting Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs has determined that it serves the national interest to issue a Presidential permit to the State of Texas to construct, operate, and maintain the Presidio-Ojinaga International Bridge, including the proposed Project. In accordance with E.O. 11423, the Department has considered the application from the State of Texas, prepared by TXDOT, and submitted to the Department in September 2016, and all input received over the course of the Department’s review. The determination to issue a Presidential permit for the proposed Project is based on consideration of a broad range of factors, including the following assessments. The Department finds that the existing bridge is insufficient to meet northbound and southbound traffic flows given the daily disruption from large cargo crossings. As outlined in the Presidential permit application for the proposed Project, southbound traffic is currently stopped daily for oversized trucks carrying manufactured homes from Ojinaga to cross to a finishing facility in Presidio. Approximately one to four homes cross the bridge per day, closing southbound traffic and causing congestion. In addition, the Department finds that the proposed Project would provide more efficient capacity for traffic at this border crossing, facilitating cross-border trade and commerce. Construction of a second bridge structure, for example, would improve traffic flows, increase pedestrian safety, and help officials address potential security and safety risks associated with bridge closures in any emergency situation. Further, the Department finds the proposed Project would advance the U.S. foreign policy interest in its bilateral relationship with Mexico. This determination follows careful consideration of the Final EA prepared by FHWA and TXDOT and adoption of it for Department purposes to inform the national interest determination for the proposed Project.

7.0 National Interest Determination

Pursuant to the authority vested in me under E.O. 11423, and Department of State Delegation of Authority No. 118-2 of January 26, 2006 and Delegation of Authority 415 of January 18, 2017, and subject to satisfaction of the requirements of Sections 1(d) and (f) of E.O. 11423, I hereby determine that issuance of a Presidential permit to the State of Texas to construct, operate, and maintain the Presidio-Ojinaga International Bridge, including the proposed Project, would serve the national interest.

The Presidential permit issued to the State of Texas shall include authorizations to construct, operate, and maintain a two-lane second bridge structure at the Presidio-Ojinaga International Bridge on the U.S.-Mexico border at Presidio, Texas and Ojinaga, Chihuahua, Mexico as described in the Presidential permit application dated September 2016. No actions shall be taken by the State of Texas pursuant to this authorization prior to its acquisition of all other necessary federal, state, and local permits and approvals from agencies of competent jurisdiction.

This determination shall become final 15 days after the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Transportation, and the Secretary of Homeland Security have been notified of this determination, unless the matter must be referred to the President for consideration and final decision pursuant to section 1(f) of E.O. 11423.

4/27/17
Date

[signed]
Judith G. Garber
Acting Assistant Secretary for Oceans and International Environmental and Scientific Affairs


[1] DHS provided comments related to the potential funding of the proposed Project. GSA provided comments related to the environmental review, a process that had already been concluded by the Department in October 2016.