Chapter 30 - Categorical Exclusions

On June 7, 2007, the California Department of Transportation (Department) and the Federal Highway Administration (FHWA) entered into a Memorandum of Understanding (MOU) pursuant to Section 6004 of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act:  A Legacy for Users (SAFETEA-LU).

The Section 6004 MOU assigns to the Department authority and responsibility for CE determination under the 23 CFR 771.117 (c) list and 23 CFR 771.117(d) list, plus those activites specifically listed in Appendix A – Assigned Categories of Activities of the MOU.  Appendix A, Assigned Categories are:

1. Construction, modification, or repair of stormwater treatment devices ) e.g. detention basins, bioswales, media filters, infiltration basins), protection measures such as slope stabilization, and other erosion control measures.
2. Replacement, modification, or repair of culverts or other drainage facilities.
3. Projects undertaken to assure the creation, maintenance, restoration, enhancement, or protection of habitat for fish, plants, or wildlife (e.g., revegetation of disturbed areas with native plants species; stream or river bank revegetation; construction of new, or maintenance of existing fish passage conveyances or structures; restoration or creation of wetlands).
4. Routine repair of facilities due to storm damage, including permanent repair to return the facility to operational condition that meets currents standards of design and public health and safety without expanding capacity (e.g. slide repairs, construction or repair of retaining walls).
5. Routine seismic retrofit of facilities to meet current seismic standards and public health and safety standards without expansion of capacity.
6. Air space leases that are subject to Subpart D, Part 710, Title 23, Code of Federal Regulations.
7. Drilling of test bores/soil sampling to provide information for preliminary design and for environmental analyses and permitting purposes

The project must fall within a category specifically listed in order to qualify for a 6004 CE under the 23 CFR 771.117 (c) list and 23 CFR 771.117(d) list. If the project qualifies for a CE determination under Section 6004, the Department will assume not only responsibility for preparing and approving the CE but will also be responsible under applicable federal laws for environmental review, consultation and other related actions. The one exception to this is for government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m).   For a complete list of FHWA’s responsibilities assigned to the Department, please see Appendix B of the MOU. If the proposed project does not qualify for a Section 6004 CE, then determine whether it meets the requirements to be categorically excluded under the NEPA Pilot Program (Section 6005) MOU.

For projects that are not on the ‘c’ or ‘d’ list or the Appendix A list, but for which a CE classification is appropriate under 23 CFR 771.117 ‘a’ and ‘b’, Caltrans will assume CE responsibility under Section 6005 of SAFETEA-LU, “Surface Transportation Project Delivery Pilot Program,” which we refer to as the Pilot Program or NEPA Delegation. The Department has also assumed the USDOT Secretary’s responsibilities for environmental review, interagency consultation, and other regulatory compliance-related action pertaining to the review or approval of Section 6005 CEs. See Section 3.2 of the Section 6005 MOU for the full list of responsibilities assumed.

The Categorical Exemption/Categorical Exclusion form has been revised to document the applicable MOU under which CE determination has been made.

An accurate and complete project description is important in establishing that the proposed action is consistent with the requirements of 23 CFR 771.117 and the Section 6004 or Section 6005 MOU.  The project description should fully describe the action to be undertaken, including the project limits (logical termini/independent utility), construction activities such as shoulder backing, culverts, staging areas and facilities, disposal and borrow sites required, any right-of-way acquisition, utility relocations, and construction activities that may require temporary facilities such as roads, detours, or ramp closures.   Any state or federal permit or consultation requirements should be noted.

Sometimes technical studies may be needed to determine whether the project meets the conditions for a Section 6004 or Section 6005 CE.  Any environmental studies and state or federal permit or consultation requirements should be identified and initiated early in the process. Technical studies may be as simple as documentation of a field review or consist of a detailed report requiring weeks or months to complete. When technical studies are prepared for local assistance projects, the Department's district environmental staff reviews the reports for completeness and sufficiency. Under both the Section 6004 and Section 6005 MOU, technical studies prepared pursuant to other federal agency permit/consultation requirements, including, but not limited to endangered species consultation (U.S. Fish and Wildlife Service), waters of the U.S. permitting (U.S. Army Corps of Engineers), Section 4(f) consultation (Department of Interior), and/or historic properties consultation (State Historic Preservation Office) are prepared and approved in the district.  Use the CE checklist to document the project's eligibility for a categorical exclusion.

Under the Section 6004 MOU, the Department has been assigned authority and responsibility for making the project's regional air quality conformity determination, as well as any needed project-level (Hot Spot) conformity determination. Under the Section 6005 MOU, the Department has not been assigned air quality conformity determinations; for Section 6005 CEs, coordination with FHWA is needed to obtain the air quality conformity determination. FHWA's air quality conformity determination must be made by FHWA before the Section 6005 CE can be signed and approved by the Department. See Chapter 38, Air Quality for additional details on coordinating with FHWA to obtain the conformity determination.

Under Section 6004, the Department will fulfill all of FHWA’s current roles and responsibilities for CEs assigned under the 6004 MOU.  If the project qualifies for a CE determination under Section 6004, the Department will assume not only responsibility for preparing and approving the CE but will also be responsible under applicable federal laws for environmental review, consultation and other related actions. The one exception to this is for government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m).   For a complete list of FHWA’s responsibilities assigned to the Department, please see Appendix B of the MOU.  The Department is required to follow FHWA’s formal guidance and policies, relating to environmental review matters, which are posted on the USDOT and FHWA website and contained in the FHWA Environmental Guidebook. For interagency agreements solely between the Department and FHWA the assignment of FHWA responsibilities has automatically been delegated. If the interagency agreement involves signatories other than the FHWA and the Department, then the FHWA and the Department will work to obtain any necessary consents or amendments. See Chapter 38, Interagency Agreements for additional details. The Department is also assigned responsibility for preparing and approving any needed reevaluation of the 6004 CE.

In no case will the Department categorically exclude a project that is found to have significant impacts on the environment, either individually or cumulatively, but otherwise meets the definition of a CE.  When significant impacts are known or suspected an Environmental Assessment (EA) or Environmental Impact Statement (EIS), as appropriate, will be prepared.

For State highway system (SHS) projects, the CE decision for all of the assigned categories will be approved by the Department’s District Environmental Office Chief or Senior Environmental Planner supervising the staff that performed the work, and by the Department’s Project Manager. The Department’s Senior Environmental Planner and the Department’s project manager will sign the CE/CE form.  Signature authority for the CE/CE form cannot be delegated below the Senior Environmental Planner classification.

This same process will also be undertaken for Local Assistance projects. The Department, rather than FHWA, will review and sign the Local Assistance PES form to concur in the class of action and necessary field studies. For Local Assistance projects, the local agency and/or its consultants will conduct the field studies and prepare the technical memoranda/studies for review and approval by the Department. The District Local Assistant Engineer (DLAE) and the District Senior Environmental Planner will sign the Local Assistance CE once necessary field studies and coordination with resource agencies are complete.  Again, signature authority for the CE/CE form cannot be delegated below the Senior Environmental Planner classification.

The Department must maintain electronic and paper project records and general administrative records pertaining to its Section 6004 MOU and Section 6005 responsibilities.  The records must be available for inspection by the FHWA at any time. The Department must provide the FHWA with copies of any documents the FHWA may request. The Department must retain those records, including all letters and comments received from governmental agencies, the public, and others about the performance of activities delegated under this MOU, for a period of no less than three (3) years after completion of project construction. This 3-year retention provision does not relieve the Department of its project or program recordkeeping responsibilities under 49 CFR 18.42 or any other applicable laws, regulations, or policies. The project record will include, at minimum, the CE, all supporting documentation and the CE checklist.