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Last Updated: Tuesday, January 3, 2017 1:38 PM

Nepa Assignment

On January 1, 2017, California Streets and Highways Code Section 820.1 terminated and Caltrans stopped performing federal responsibilities for environmental decisions and approvals under the National Environmental Policy Act (NEPA) for highway projects in California, funded by the Federal Highway Administration (FHWA).

Since 2007, Caltrans has performed these duties under the program known as NEPA Assignment, pursuant to two Memoranda of Understanding (MOU) signed by the Federal Highway Administration (FHWA). The 23 USC 326 MOU allows Caltrans to approve 326 Categorical Exclusions (CEs); the 23 USC 327 MOU allows Caltrans to approve Environmental Assessments (EA) and Environmental Impact Statements (EIS), and Categorical Exclusions that cannot be approved as 326 CEs.

As a condition of each MOU, the FHWA requires California to consent to the jurisdiction of federal courts for actions taken by Caltrans under NEPA Assignment. To accomplish this, the Legislature added Section 820.1 to the Streets and Highways Code, waiving California’s immunity under the Eleventh Amendment to the U.S. Constitution. The Legislature included a sunset clause to delete Section 820.1 on January 1, 2017.

On December 5, 2016, the Legislature convened the 2017-2018 Regular Session, and Assembly Bill (AB) 28 (Frazier) was introduced. AB 28 would add back Section 820.1 to the Streets and Highways Code, with provisions to waive immunity and consent to the jurisdiction of federal courts, but with no sunset clause. The Legislature will consider AB 28 when they reconvene in January. In the meantime, on January 1, Caltrans’ NEPA Assignment authority will be suspended for up to 90 days. If by that time, the waiver of immunity is back in place, the suspension will lift automatically and Caltrans will again perform NEPA Assignment responsibilities. During the suspension period, the FHWA will handle federal NEPA responsibilities.

For further information from Caltrans, please contact: Tammy Massengale at tammy.massengale@dot.ca.gov or (916) 653-5157.

23 USC 327

December 23, 2016 23 USC 327 NEPA Assignment MOU

On December 23, 2016, FHWA renewed the Caltrans 23 USC NEPA Assignment MOU (327 MOU) for a term of 5 years. The FHWA published the 327 MOU in the Federal Register for a 30-day public comment period that ended on November 16, 2016. This renewal allows Caltrans to continue performing federal environmental responsibilities for highway projects under the National Environmental Policy Act (NEPA) and other federal laws. The FHWA has reviewed all comments submitted and will respond to each.

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23 USC 326

Signed Amendment to 23 USC 326 NEPA Assignment MOU

After renewing the 23 USC 326 CE MOU on May 31, 2016, for a three-year term, the FHWA proposed an amendment (signed and linked above), which clarifies provisions related to legal communications between Caltrans and the FHWA and to any expiration of California’s waiver of immunity. The FWHA published the proposed amendment in the Federal Register for public comment. The FHWA has reviewed all comments submitted and will respond to each comment. The amendment was signed on December 30, 2016 by Caltrans and FHWA.

Programmatic Categorical Exclusion (PCE) Agreement

Anticipating the expiration of the required waiver of sovereign immunity described above and the resulting suspension of Caltrans authority, the FHWA and Caltrans have entered into a Programmatic CE (PCE) Agreement that will allow Caltrans to approve some 326 CEs. The effective date of the PCE is January 1, 2017. The PCE, which is linked above, will be canceled when the waiver is back in place and the suspension lifts. Please note, not all project types that were approved under the 326 MOU will be approved by Caltrans under the PCE, since the approvals are based on a project’s environmental impacts, which must be considered on a case by case basis.

The new CE/PCE form and PCE Checklist can be found on the SER Forms and Templates page.

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