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Last Updated: Monday, February 2, 2015 7:18 AM
TITLE 23 USC 327: NEPA ASSIGNMENT
President Obama signed the Moving Ahead for Progress in the 21st Century Act (MAP-21) (P.L. 112-141) into law on July 6, 2012, with an effective date of October 1, 2012. MAP-21 creates a streamlined and performance-based surface transportation program, promotes accelerating project delivery and encourages innovation. Section 1313 of MAP-21 amends 23 U.S.C. 327, to establish a permanent Surface Transportation Project Delivery Program and allow any State to participate and for a State to renew its participation in the program. For more information on MAP-21, visit the FHWA MAP-21 website or the U.S. DOT MAP-21 website.
Previous to passage of MAP-21, Caltrans was the only state in the nation to participate in the “Surface Transportation Project Delivery Pilot Program” (Pilot Program), pursuant to Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users act (SAFETEA-LU) beginning July 1, 2007 and ending September 30, 2012.
During the five- year tenure of the Pilot Program, Caltrans simplified and expedited the environmental process for transportation projects while ensuring the same level of protection for environmental resources and completing NEPA approvals on nearly 400 projects. The requirements of the program were rigorous:
- FHWA audits twice a year and then annually,
- State legislative reporting and review,
- Implementation of expanded staff training,
- Scrupulous quality assurance/quality control processes
- Development and use of a robust filing system
The effort improved environmental document efficiency, consistency and accountability. Caltrans was responsible for complying with all applicable federal environmental laws and with FHWA environmental regulations, policies, and guidance, and was legally responsible and liable for the environmental decisions made on related projects. The Pilot Program did not change federal environmental protection standards.
Caltrans tracked median NEPA environmental processing time frames over the Pilot Program's duration and compared these to median processing time frames from before, which indicated significant time savings; as presented in the chart below.
Median Time Savings for Caltrans Environmental Documents and Coordination 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 Environmental Assessment or
Finding Of No Significant Impact Approval
|Notice of Intent to
Final Environmental Impact Statement Approval
|Begin USFWS Coordination to Completion of Section 7||11.0||5.9||5.1|
1For Environmental Documents prepared by Caltrans, consultants and local agencies from July 1, 2007 through December 31, 2014.
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), effective October 1, 2012. The MOU incorporates, by reference, Caltrans’ May 21, 2007 Pilot Program Application, terms and conditions of the Pilot Program MOU and its amendments. The MOU terminates 18 months from the effective date of FHWA regulations developed to clarify amendments to 23 USC 327 or on January 1, 2017.
California is the only state in the nation to complete the Pilot Program and be assigned these historic responsibilities. Under the NEPA Assignment MOU, pursuant to MAP-21, Caltrans will assume 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 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 six months;
- 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 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.
We continue to take our responsibilities under the NEPA Assignment MOU 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 our success.
Memorandum of Understanding
The NEPA Assignment MOU, which authorizes Caltrans' NEPA Assignment Program incorporates, by reference, Caltrans' May 21, 2007 Pilot Program Application, terms and conditions of the Pilot Program MOU and its amendments.
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 and certain categories of projects as defined by regulation and specific individual projects.
MAP21 required that the Surface Transportation Project Delivery Program requirements be defined through federal rulemaking. The Final Rule is anticipated in spring 2014.
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.
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.
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 six months 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 NEPA Assignment MOU terminates 18 months from the effective date of FHWA Final Rule developed to clarify amendments to 23 USC 327 or on January 1, 2017.
The following documents were updated or released as a result of the NEPA Assignment Program
- NEPA Assignment Memorandum of Understanding
- NEPA Pilot Program Memorandum of Understanding
- NEPA Delegation Pilot Program MOU Amendment 1 (August 10, 2011)
- Pilot Program Final Application
- Overview of Key Pilot Program Provisions(July 1, 2007 – August 10, 2011)
- Overview of Key Pilot Program Provisions (August 10, 2011- August 10, 2012)
- Projects Excluded from the NEPA Assignment
- Standard Environmental Reference (SER)
- Assignment of Responsibilities under the Surface Transportation Project Delivery Pilot Program
- Review Procedures for Environmental Impact Statements (EIS) and Environmental Assessments (EA) under the NEPA Delegation Pilot Program
- Environmental Document Quality Control Program under the NEPA Pilot Program
- Quality Control Forms, Checklists, and Annotated Outlines
- Final Rule