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Last Updated: Wednesday, June 4, 2008 4:07 PM

SECTION 6005: Nepa Delegation Pilot Program

Effective July 1, 2007, Caltrans assumed all of FHWA’s responsibilities under the National Environmental Policy Act for projects on California’s State Highway System and for federal-aid local streets and roads projects under FHWA’s Surface Transportation Project Delivery Pilot Program, pursuant to 23 CFR 773. Caltrans also assumed all of FHWA’s responsibilities for environmental coordination and consultation under other federal environmental laws pertaining to the review or approval of projects under the Pilot Program. This assignment includes certain projects for which FHWA has issued a draft environmental impact statement, as described in the Memorandum of Understanding (MOU). The assignment excludes certain categories of projects as defined by regulation and specific individual projects, as listed in the MOU. This assumption of responsibilities will not remove or change any federal environmental laws, regulations, or policies.

Under the Pilot Program, Caltrans is required to comply with all applicable federal environmental laws and with FHWA environmental regulations, policies, and guidance. The program will not change federal environmental protection standards. Caltrans’ participation in the program shows California’s continued leadership in transportation delivery and in environmental protection. Implementation of the Pilot Program is expected to simplify and expedite the federal environmental review process for transportation projects, while ensuring the same level of protection for environmental resources.

Related Documents

The following documents were released as a result of the NEPA Delegation Pilot Program MOU under section 6005.

• NEPA Pilot Program Memorandum of Understanding
• Overview of Key 6005 Provisions
• 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
• Forms and Templates
• Final Application
• Final Rule

Memorandum of Understanding

Under the NEPA Delegation Pilot Program MOU, Caltrans has 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 Section 6004 MOU and certain categories of projects as defined by regulation and specific individual projects. The Pilot Program MOU between FHWA and Caltrans became effective on July 1, 2007 and outlines Caltrans’ new responsibilities.

Final Application

In response to the final rule, Caltrans submitted its final Pilot Program application (7.26 MB PDF) to FHWA on May 21, 2007. In the application, Caltrans requested to assume FHWA’s NEPA responsibilities for projects on the State highway system, as well as for local roadway projects that will be funded in part with FHWA funds. Caltrans, however, requested in the application that FHWA retain responsibility for a few specific large projects in the final phases of the environmental review process to maintain continuity of review. Caltrans considered all comments received during the draft application public review period in finalizing its application. The comments and Caltrans’ responses are included in the final application.

Final Rule

SAFETEA-LU required that the Pilot Program application requirements be defined through federal rulemaking. The final rule was issued on February 12, 2007. Caltrans completed its draft application based on these requirements.

Waiver of Sovereign Immunity

Under the Pilot 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 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.

Interagency Consultations

The SAFETEA-LU Pilot 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. Caltrans has been meeting with its federal resource agency partners to begin developing this new relationship. The MOU includes provisions and processes for resolving any interagency disagreements that might arise during future formal consultations. FHWA will independently discuss with federal resource agencies their views of Caltrans’ application to assume formal consultation responsibilities.

FHWA will retain formal government-to-government consultations with federally-recognized Indian tribes.

Program Monitoring

Caltrans has 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, a new SER chapter, is devoted solely to NEPA Delegation. Caltrans is required to report to FHWA quarterly on approvals and decisions under the Pilot Program and to undertake self-assessments of procedures and performance every six months. FHWA will audit Caltrans' performance under the Pilot Program twice a year for the first two years of the Pilot Program, and once a year thereafter to ensure that Caltrans is meeting federal requirements.

• 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

Pilot Program Duration

Under SAFETEA-LU, the Pilot Program lasts until August 2011. The California waiver of sovereign immunity sunsets on January 1, 2009, which could limit the Pilot Program’s duration. The State legislature may extend the waiver if Caltrans performs well in the initial period of the program. If the Pilot Program is successful, the United States Congress may extend it beyond 2011.