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Last Updated: Friday, September 15, 2017 7:54 AM

TITLE 23 USC 327: NEPA ASSIGNMENT

Pursuant to Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users act (SAFETEA-LU), Caltrans was the only state in the nation to participate in the “Surface Transportation Project Delivery Pilot Program” (Pilot Program) beginning July 1, 2007 and ending September 30, 2012.

With enactment of Section 1313 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), 23 USC 327 was amended to establish the permanent Surface Transportation Project Delivery Program (NEPA Assignment Program), and to require amendment of 23 CFR 773 regarding requests for renewed participation in the Program. For more information on MAP-21, visit the FHWA MAP-21 website.

Under NEPA Assignment, Caltrans simplified and expedited the environmental process for transportation projects while ensuring the same level of protection for environmental resources. The requirements of the program are rigorous:

  • Annual monitoring;
  • State legislative reporting and review (during the first 9 years of the program);
  • Implementation of expanded staff training;
  • Scrupulous quality assurance/quality control processes; and
  • Development and use of a robust filing system

This effort has improved environmental document efficiency, consistency and accountability. Caltrans is responsible for complying with all applicable federal environmental laws and with FHWA environmental regulations, policies, and guidance, and is legally responsible and liable for the environmental decisions made on related projects. The NEPA Assignment Program does not change federal environmental protection standards.

Caltrans tracks median NEPA environmental processing time and compares these to median processing time frames before NEPA Assignment, which indicates significant time savings; as presented in the chart below..

 

Median Time Savings for Caltrans Environmental Documents and Section 7 Formal Consultation Process Completed
under NEPA Assignment

Document Processing Milestones1 Pre-NEPA Assignment Median Duration in Months NEPA Assignment Program Median Duration in Months Median Time Savings Realized in Months
Begin Environmental Studies to Finding of No Significant Impact Approval 54.1 41.6 12.5
Notice of Intent to Final Environmental Impact Statement Approval 193.9 69.9 124.0
Submittal of FESA Section 7 documentation to USFWS/NMFS to the Biological Opinion 11.0 5.9 5.1

1For Environmental Documents prepared by Caltrans, consultants and local agencies from July 1, 2007 through March 31, 2017.


The United States Department of Transportation, acting through the FHWA, took into consideration Caltrans’ original application and performance in the Pilot Program and approved Caltrans’ participation in the MAP-21 Surface Transportation Project Delivery Program through the NEPA Assignment Memorandum of Understanding (MOU), which was effective October 1, 2012. That MOU incorporated by reference, Caltrans’ May 21, 2007 Pilot Program Application, terms and conditions of the Pilot Program MOU and its amendments. Then, on April 1, 2016, that MOU was approved by FHWA for extension to December 31, 2016. Before the expiration date, on December 23, 2016, FHWA renewed the Caltrans 23 USC 327 NEPA Assignment MOU (327 MOU) for a term of 5 years.

California was the only state in the nation to be assigned these historic responsibilities under the Pilot Program. Under the permanent NEPA Assignment Program, pursuant to MAP-21 and the FAST Act, Caltrans has assumed FHWA responsibilities under NEPA and other federal environmental laws in the same manner as under the Pilot Program with these minor changes:

  • Caltrans may use federal funds for attorneys’ fees attributable to program activities;
  • Caltrans will perform under revised auditing and monitoring requirements:
    • FHWA will complete two monitoring reviews during the term of the MOU (audits are no longer required);
    • Caltrans will provide FHWA with self-assessment reviews once a year;
    • Caltrans will provide FHWA with approval and decision reports once every year.
  • The program is renewable for a term of not more than five years, and
  • Under certain conditions, States may terminate their participation in the program.

Under NEPA Assignment, the Division of Environmental Analysis revised its environmental policies and procedures and updated the Caltrans Standard Environmental Reference (SER), including Chapter 38, NEPA Assignment. The information in the SER is policy and must be followed by all Caltrans Districts/Regions as well as agencies and consultants preparing Environmental Documents for approval through Caltrans.

Caltrans continues to take NEPA Assignment responsibilities seriously and to execute them responsibly and successfully. Where needed improvement is identified, corrections are made quickly and effectively. Where excellent practices are identified, they are shared around the state to expand the successful implementation of NEPA Assignment.

Memorandum of Understanding

The December 23, 2016 327 NEPA Assignment Memorandum of Understanding(MOU), which authorizes Caltrans' NEPA Assignment Program, made no substantive changes to authority or requirements included in previous MOUs or the 2007 Application, which remain in force.

Caltrans assumed FHWA's responsibilities under NEPA as well as FHWA's consultation and coordination responsibilities under other Federal environmental laws for most highway projects in California. The MOU excludes projects that qualify for categorical exclusion under the CE Assignment MOU, certain categories of projects as defined by regulation, and specific individual projects.

Refer to "What’s New" on the NEPA Assignment page for information on the temporary suspension of Caltrans authority under the MOU, which has now been lifted. Caltrans resumed participation in the NEPA Assignment Program after Governor Brown signed into law AB 28 and once the FHWA acknowledged certifications by Caltrans that California consents to the jurisdiction of federal courts.

Final Rule

MAP-21 required that the Surface Transportation Project Delivery Program requirements be defined through federal rulemaking.

Waiver of Sovereign Immunity

Under the NEPA Assignment Program, California assumed sole responsibility and liability for its NEPA actions and decisions and is subject to Federal court jurisdiction. To do this, California waived its 11th amendment right to sovereign immunity against actions brought by its citizens in federal court for the narrow purposes of the NEPA Assignment program. The waiver was enacted as part of AB 1039 in the spring of 2006 and became effective in November 2006 when the transportation bond (Proposition 1B) was passed by the voters. In the summer of 2008, the waiver was extended until January 1, 2012 through AB 2650. In the fall of 2011, the waiver was extended again until January 1, 2017 through AB 892, and again most recently through AB 28, which extends the waiver of immunity until January 1, 2020."

Interagency Consultations

The NEPA Assignment Program allows Caltrans to assume most federal environmental interagency consultations and compliance-related actions. Caltrans currently collaborates actively with federal resource agencies to develop mitigation strategies and assumed FHWA's formal consultation role with these resource agencies. The MOU includes provisions and processes for resolving any interagency disagreements that might arise during future formal consultations. FHWA retains formal government-to-government consultations with federally-recognized Indian tribes.

Program Monitoring

Caltrans updated its policies and procedures to ensure that its NEPA determinations are consistent with applicable law and with the MOU. This includes an expanded quality control program, revised environmental document review procedures, and an updated Standard Environmental Reference (SER). Chapter 38 is devoted solely to NEPA Assignment. Caltrans reports to FHWA once every year on approvals and decisions under the NEPA Assignment program and undertakes regular self-assessments of procedures and performance, which are reported annually to FHWA.

NEPA Assignment Program Duration

The 23 USC 327 NEPA Assignment MOU terminates on December 23, 2021.

Related Documents

The following documents were updated or released as a result of the NEPA Assignment Program