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Last Updated: Friday, April 5, 2013 1:00 PM
23 USC 326 CATEGORICAL EXCLUSION Assignment
Comments are being accepted from the public until May 8, 2013 on the "Draft Renewed Memorandum of Understanding between Federal Highway Administration, California Division and the California Department of Transportation State Assumption of Responsibility for Categorical Exclusions, Pursuant to 23 USC 326".
Please provide comments to:
NEPA Program Manager
California Department of Transportation
Division of Environmental Analysis
Mail Station 27, P.O. Box 942874
Sacramento, CA 94274-0001
[posted on 4/5/2013]
Under Section 6004 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Caltrans assumed FHWA's responsibilities for determining if a transportation project qualifies for a Categorical Exclusion (CE) – a type of NEPA action that does not involve significant environmental impacts. For these categorically excluded projects, Caltrans also assumed FHWA's responsibilities for coordination and consultation under other federal environmental laws such as the Endangered Species Act, Clean Water Act, and National Historic Preservation Act.
Caltrans' assumption of FHWA's CE responsibilities under 23 USC 326 will streamline the federal environmental review process for categorically excluded transportation projects by eliminating FHWA's project-by-project review and approval. Caltrans applies federal environmental requirements in the same manner as FHWA, maintaining FHWA's rigorous environmental standards.
23 USC 326 CE Assignment MOU renewal
On June 7, 2010, Caltrans and FHWA renewed the 23 USC 326 Assignment Memorandum of Understanding (MOU) under which FHWA continues to assign FHWA’s Federal authority and responsibility for determining whether certain projects are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act (NEPA). The MOU renewal also continues to assign to Caltrans FHWA’s responsibility for conducting environmental review, consultation, and other related activities under federal environmental laws. The new 23 USC 326 Assignment MOU was signed on June 7, 2010 and expires on June 7, 2013. Click here to view the MOU.
Assembly Bill 892
On October 6, 2011, Governor Jerry Brown signed Assembly Bill 892, extending Caltrans' waiver of sovereign immunity. The waiver provides for Caltrans' continued participation in both the 23 USC 327 NEPA Assignment Program and 23 USC 326 Categorical Exclusion (CE) Assignment Program until January 1, 2017.
The following documents were released as a result of the CE MOU under Section 6004 of SAFETEA - LU:
- Section 6004 Memorandum of Understanding (June 7, 2010 - June 7, 2013)
- Section 6004 Memorandum of Understanding (June 7, 2007 - June 7, 2010)
- Section 6004 MOU Renewal Notable Changes (effective June 7, 2010)
- Overview of 6004 MOU Provisions (June 7, 2007 - June 7, 2013)
- Overview of 6004 MOU Provisions (June 7, 2007 - June 7, 2010)
- Categorical Exclusion Checklist
- Background Paper
Memorandum of Understanding
On June 7, 2010, Caltrans renewed a formal Memorandum of Understanding (MOU) with FHWA to continue to assume responsibility for categorically excluded transportation projects. The MOU outlines specific terms that describe Caltrans’ roles and responsibilities under the assignment program. FHWA will monitor Caltrans’ compliance with the 23 USC 326 MOU. Caltrans will carry out regular quality control activities to ensure that its CE determinations are made in accordance with applicable law and with the MOU.
The draft MOU underwent a 30-day public review period that closed on May 14, 2010.
What are Categorical Exclusions?
Categorical Exclusions (CEs) are a category of NEPA actions that do not have a significant individual or cumulative effect on the environment. If a project is determined to be categorically excluded, preparation of a NEPA document (an environmental impact statement or an environmental assessment) is not required. Categorically excluded projects must still comply with the permitting and consultation requirements of other federal environmental regulations, which may require the development of avoidance, minimization, or mitigation strategies, if any are necessary.
FHWA defines its CEs in regulations at 23 CFR 771.117, where they are divided into two groups based on a transportation project potential for environmental effects:
- The first group, listed in 23 CRF 771.117(c) (called the "c" list), consists of actions that almost never cause significant environmental impacts, for instance, minor construction activities such as bicycle lanes or landscaping. These actions are automatically classified as CEs, except where "unusual circumstances" occur. Unusual circumstances can occur, for example, if a project is controversial on environmental grounds or if it is determined that a project involves significant environmental effects. If significant environmental effects are involved, an environmental document must be prepared.
- The second group, listed in 23 CFR 771.117(d) (the "d" list), are examples of actions that normally do not result in significant environmental effects, but for which studies must be prepared to document that a specific project will not result in a significant environmental effect.
For more information on CEs, see Chapter 30
Scope of CE Responsibility
Under 23 USC 326, Caltrans assumed responsibility for approving CEs on the "c" list and those CEs listed as examples on the "d" list. In addition, states could propose additional actions that qualify as CEs under the "d" list, provided that documentation is presented to FHWA justifying these additions. Caltrans added seven additional actions as categorical exclusions. Caltrans developed the proposed additions based on reviewing the types of activities that FHWA and Caltrans have historically approved as CEs in California. Appendix A of the 23 USC 326 CE Assignment MOU lists the additional CE actions. For projects that are not on the "c" or "d" list or the Appendix A list, but for which a CE classification is appropriate, Caltrans assumed responsibility under the Section 6005 Surface Transportation Project Delivery Pilot Program.
Caltrans prepared a background paper to support designating seven additional actions as CEs.
Waiver of Sovereign Immunity
Under the 23 USC 326 CE Assignment and the 23 USC 327 NEPA Assignment programs, 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 pilot 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.