California Department of Transportation

This site is produced by the Caltrans Division of Environmental Analysis (DEA) and Division of Local Assistance (DLA).

Adobe Acrobat Reader is required to view and print PDF files. Adobe Acrobat is required to edit online forms and save them to your computer.

acrobat reader

logo

Caltrans > SER > Chapter 37 - Preparing Joint NEPA/CEQA Documentation

Last Updated: Wednesday, January 2, 2013 1:27 PM

Chapter 37 - Preparing Joint NEPA/CEQA Documentation

WHAT DOES THIS TOPIC INCLUDE?

This Chapter provides direction on the preparation of documentation designed to meet the requirements of both the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). Combined documentation is the most efficient means to comply with state and federal requirements. One document is prepared and circulated for public review. The Department shall use combined documents for all projects with federal involvement.  Federal involvement includes:  1) Federal-aid or federal funding, or 2) federal land (such as interstates), or 3) federal approval action or permit.   If there is no federal involvement, then a CEQA-only environmental document is prepared (see Chapters 34, 35 and 36). 

If local agencies anticipate that federal-aid or federal funding or a federal/approval action or permit will be needed for their project, they should prepare a joint CEQA/NEPA document.  Often local agencies prepare a CEQA document first and then, at a later date, a NEPA document; this often causes frustration and project delay as compliance with federal requirements often requires additional studies and coordination.  While most of the issues may be addressed in a similar manner under both CEQA and NEPA, there are some differences that must be noted. 

LAWS, REGULATIONS AND GUIDANCE

Federal

State

Policy Memos

KEY CONCERNS WHEN PREPARING JOINT NEPA/CEQA DOCUMENTS

Significance Determinations and Discussions

One of the primary differences between NEPA and CEQA is the way significance is determined and later discussed in environmental documents.  Under NEPA, significance is used to determine whether an EIS, or some lower level of documentation, will be required.  NEPA requires that an EIS is prepared when the proposed federal action (project) as a whole has the potential to “significantly affect the quality of the human environment.”   The determination of significance is based on context and intensity (for additional information on context and intensity, please see FHWA website exit).  Some impacts determined to be significant under CEQA may not be of sufficient magnitude to be determined significant under NEPA.  Under NEPA, once a decision to do an EIS is made, it is the magnitude of the impact that is evaluated and no judgment of its significance is deemed important for the text. NEPA does not require that a determination of significant impacts be stated in the environmental documents. 

CEQA, on the other hand, does require the Department to identify each “significant effect on the environment” resulting from the project and ways to mitigate each significant effect.  A significant effect on any environmental resource triggers the preparation of an EIR.  Each and every significant effect on the environment must be disclosed in the EIR and mitigated, if feasible. In addition, the CEQA Guidelines list a number of mandatory findings of significance, which also require the preparation of an EIR.  There are no types of actions under NEPA that parallel the findings of mandatory significance in CEQA.

Joint Document Types

Commonly, parallels are drawn between document types for CEQA and NEPA as follows:

Table 1

Comparison of NEPA and CEQA Document Types

NEPA Document Type NEPA Decision Document CEQA Document Type CEQA Decision Document
Categorical Exclusion Categorical Exclusion Categorical Exemption Categorical Exemption
Environmental Assessment (EA) Finding of No Significant Impact (FONSI) Initial Study (IS) Negative Declaration (ND) or Mitigated Negative Declaration (MND)
Environmental Impact Statement (EIS) Record of Decision (ROD) Environmental Impact Report (EIR) Notice of Determination (NOD)
Reevaluation Reevaluation Addendum Addendum
Supplemental   Supplemental or Subsequent  

Does this mean that whenever an EIR is prepared for a proposed project under CEQA that an EIS must be prepared for that project under NEPA?  The short answer is no.  As stated above, some impacts determined to be significant under CEQA may not lead to a determination of significance under NEPA.  Because NEPA is concerned with the significance of the project as a whole, it is quite often the case that a “lower level” document is prepared for NEPA.  For example, one of the most commonly seen joint document types is an Environmental Impact Report/Environmental Assessment (EIR/EA).

Handling Significance in Joint Environmental Documents

Because the determination of significance is different under NEPA and CEQA, writers of joint NEPA/CEQA documents need to pay particular attention to the handling of significance in their documents.  In general, the Federal Highway Administration (FHWA) and the Department as assigned advocate having a separate chapter or appendix dealing with CEQA significance determinations and other CEQA-only issues. Please see the annotated outlines for joint documents for further discussion on this issue. If CEQA significance is discussed elsewhere in the text of the environmental document, a statement or parenthetical reference must be added making it clear the reference to “significance” is being made pursuant to CEQA. 

There are, however, some instances when it is proper to use “significant” or “significance” in a federal analysis.  Table 2 below summarizes these instances.

TABLE 2

Significance in Federal/Joint Environmental Documents

Subject Area How to Use Significant/Significance
Section 4(f) of the U.S. Department of Transportation Act   Consideration under Section 4(f) is not required when the federal, state or local officials having jurisdiction over a park, recreation area or refuge determine that the entire site is not significant [see 23 CFR 774.11 (c)].  When discussing whether this is the case for the proposed project, the use of the term “significant” is appropriate in a joint document.
It is also appropriate to use “significant” when discussing historic sites.  Section 4(f) protects significant historic sites, which are historic sites on or eligible for listing on the National Register of Historic Places [see 23 CFR 774.11 (e)].
Section 106 of the National Historic Preservation Act   Under discussions of impacts to cultural resources under this Act, it is also appropriate to use the term “significant.”  This Act provides for a National Register of Historic Places to include districts, sites, buildings, structures and objects significant in American history, architecture, archaeology and culture. These items may bear national, state or local significance (see Chapter 28).
Executive Order on Floodplain Management (EO 11988)   Under this Executive Order, a determination must be made whether the proposed project will result in a “significant” encroachment into a floodplain [see 23 CFR 650.105(q)].  If there is a significant encroachment, then practicable alternatives must be evaluated and discussed in the environmental document.

Alternatives Analysis and Discussion

Under NEPA, the general rule is that all alternatives must be analyzed and discussed to the same level of detail; this is different from CEQA, which requires only enough information about the alternatives to allow for meaningful comparison. The exception to the NEPA rule is that 23 USC 139 does allow the preferred alternative to be developed to a higher level of detail when all the requirements specified in the FHWA Section 6002 Final Guidance exit are met. When preparing a joint document, the alternatives analysis must meet the NEPA standard.

In addition to NEPA, other federal laws, regulations and executive orders require specific discussions regarding alternatives; these include Section 4(f) of the U.S. Department of Transportation Act (See Chapter 20) (no prudent and feasible alternative that avoid the use of protected resource), Executive Order 11990 on Wetland Protection (no practicable alternative which would avoid wetland), Executive Order 11988 on Floodplain Management (no practicable alternative which would avoid encroachment), and Clean Water Act Section 404(b)(1) Guidelines exit(least environmentally damaging practicable alternative).  The required alternative discussions for these laws, regulations and orders may be included in the alternatives chapter or discussed in the appropriate resource sections of the document.

For more information on development of alternatives in joint NEPA/CEQA documents, please see the Alternatives Analysis Frequently Asked Questions.

Noise Analysis and Discussion

As discussed in Chapter 12, noise analysis for federal or joint documents differs from that required for state-only documents. The noise section of joint document will address noise first as a NEPA/23 CFR 772 issue and then separately as a CEQA issue. When writing the 23 CFR 772 noise section in a joint environmental document, make sure that the report/document follows and clearly states the results of each step of the noise analysis—receptor type, existing noise level, the noise abatement criteria, the predicted noise level with project, whether there is an impact, what abatement is being considered (if needed) and whether the proposed noise abatement is reasonable and feasible.   This information should be summarized in a table for inclusion in the document.

Most local jurisdictions use community noise equivalent level (CNEL) for noise analysis.  It is important for local agencies to note that the Department’s Traffic Noise Analysis Protocol, May 2011 calls for the use of hourly A-weighted noise level, dBA Leq (h).  The noise report and the environmental document for a federal or federal-aid project must be dBA Leq (h).  

Also, do not use the term “mitigation” when discussing noise issues.  Therefore, when preparing joint documents it is important to use “abate or abatement” or “attenuate or attenuation” when referring to measures to reduce noise levels.

For detailed information on noise analysis, please see the Department’s Traffic Noise Analysis Protocol  and the Technical Noise Supplement . Note a new noise protocol was released for projects for which a noise study will be completed after July 13, 2011; for additional information, please see Chapter 12 of the SER.

Air Quality and Conformity Statement

For federal or joint projects, the air quality analysis and technical report must comply with the federal Clean Air Act exit and the environmental document must contain a regional air conformity statement and a project level conformity statement, if applicable.  The wording of the regional air quality conformity statement must follow approved boilerplate. Please see the air quality section of the annotated outlines posted on the forms and templates page of the SER for the precise wording. For project level conformity, the environmental document should summarize the results of particulate matter (PM) and carbon monoxide (CO) analyses. For additional information regarding air quality, please see Chapter 11 of the SER.

For information on how to handle air quality conformity under NEPA Assignment (23 USC 327) and Categorical Exclusion (23 USC 326 CE Assignment), please see SER, Volume 1, Chapter 38.

Visual Analysis and Discussion

The FHWA Visual Impact Assessment for Highway Projects provides guidance on how to conduct a visual assessment for federal or federal-aid highway projects.  The process outlined in the guidance is somewhat different than the typical CEQA-only visual analysis.  The basic steps in the process are:

  1. Define the project setting and viewshed.
  2. Identify key views for visual assessment.
  3. Analyze existing visual resources and viewer response.
  4. Assess the visual impacts of project alternatives.
  5. Define the project setting and viewshed.
  6. Propose methods to mitigate adverse visual impacts.

Detailed information about each step in the process can be found in Visual Impact Assessment for Highway Projects.  The visual boilerplate document can be used as a template for writing visual impact assessments.

It is important that the steps and results of the FHWA visual impact assessment are appropriately summarized in the joint environmental document.  Visual simulations, which show the before and after condition, should be included in the environmental document as well. 

The Department also requires environmental documents to address the incorporation of context-sensitive solution in the proposed project.  For information on context-sensitive solutions, please see FHWA context-sensitive website. exit

Cultural Resources Analysis and Discussion

Joint documents and cultural resource reports must comply with Section 106 of the National Historic Preservation Act of 1966 (Section 106).  While the general intent and analysis required by CEQA and Section 106 are similar, the processing of cultural resource surveys and reports differs between the two.  One of the main differences is that surveys and reports prepared pursuant to Section 106 must be sent to the State Office of Historic Preservation for concurrence.  This is important to keep in mind when developing the project schedule. 

In addition to CEQA requirements, the joint environmental document must discuss the status of the Section 106 process.  Before an EA or a Draft EIS can be circulated to the public, a determination regarding the eligibility for listing on the National Register of Historic Places must be made for cultural resources within the project area.   There must also be a determination of effect for each eligible cultural resource within the project area.   Before issuance of a Finding of No Significant Impact (FONSI) or circulation of a Final EIS, the Section 106 process must be completed.  For findings of No Historic Properties Affected or No Adverse Effect, the Section 106 Programmatic Agreement may be used to streamline the coordination process.  For projects with a Finding of Adverse Effect, a copy of the executed memorandum of agreement with the SHPO to resolve those effects must be included.

Detailed discussion of Section 106 analysis and the Section 106 process can be found in Chapter 28 of the SER and SER Volume 2.

Endangered Species Issues and Discussion

For state only projects, the applicable section of the Endangered Species Act is Section 10; for federal and federal-aid projects the proposed project and documentation must comply with Section 7 of the Endangered Species Act.  Please note that completion of the Section 10 process does not satisfy the requirement to go through the Section 7 process.   The formal Section 7 process includes:

  1. Establishing area of potential environmental impact and potential for impacts to endangered species.
  2. Determining if a request for species list from U.S. Fish and Wildlife Service (USFWS) is required.
  3. Requesting a species list from USFWS, if needed.
  4. Performing Biological Assessment (BA) or Biological Evaluation (BE) and write up results.
  5. Obtaining Department's concurrence on results.
  6. The Department to conference or consult with USFWS/NOAA-Fisheries. (Note: Consultation must be complete before final document can be approved.)
  7. USFWS/NOAA-Fisheries issues a Biological Opinion.

For a concise discussion of the formal and informal Section 7 consultation processes, please see April 24, 2002 memo from FHWA regarding Conducting Endangered Species Act Consultations with the Services.

A joint environmental document must document and discuss the steps of the Section 7 consultation process.  Section 7 consultation must be completed prior to circulation of the final EIS or prior to the issuance of a FONSI; in all cases, the process must be complete prior to project approval.  A current species list (not older than 180 days) must be included in the environmental document.

More detailed information on Section 7 of the Endangered Species Act can be found in SER, Volume 3.  For information regarding the handling of natural resource documentation and consultation under the NEPA Assignment (23 USC 327) and CE Assignment (23 USC 326), see the natural resources section of Chapter 38, Volume 1, SER.

Section 4(f) Evaluation

Federal transportation or Federal-aid transportation projects are subject to Section 4(f) of the U.S. Department of Transportation Act.  This law states that the Secretary of Transportation shall not approve any project:

“...requiring the use of any publicly owned land from a public park, recreation area, wildlife and waterfowl refuge of national, State or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State or local officials having jurisdiction over the park, area, refuge, or site) unless (1) there is no prudent and feasible alternative to the using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from such use.”

If the proposed project will require the use of one of the resources stated above, then the joint document must include discussion of those Section 4(f) resources.  This can be done in the framework of an Individual Section 4(f) Evaluation, a Programmatic Section 4(f) Evaluation or a de minimis impact finding. An Individual Section 4(f) evaluation requires review by the HQ District Environmental Coordinator as well as legal sufficiency review. Please note that a programmatic Section 4(f) Evaluation will require the same level of analysis as a non-programmatic Section 4(f) Evaluation; the key difference is that a programmatic Section 4(f) can be prepared, reviewed and approved at the Department district/region level and does not require HQ or legal sufficiency review.  Under specified conditions, transportation programs or projects may be found to have a “de minimis” impact on resources protected by Section 4(f) of the Department of Transportation Act (i.e., public parks, recreation areas, wildlife and waterfowl refuges, and historic sites). No further evaluation of these resources will be necessary under Section 4(f).  For historic sites, a de minimis finding may be made in either of two conditions: the project will have no adverse effect on the historic site under Section 106 of the National Historic Preservation Act; or there will be no historic properties affected. Mitigation and enhancements may be used to offset impacts.  De minimis impacts on publicly owned parks, recreation areas, and wildlife and waterfowl refuges are defined as those that do not adversely affect the activities, features, and attributes of the 4(f) resource. When making this determination, it is important to distinguish the activities, features, and attributes of a Section 4(f) resource that are important to protect from those that can be used without adverse effects, for example, playground equipment versus parking facilities. The de minimis finding considers avoidance, minimization, mitigation or enhancement measures. Please see Chapter 20 in Volume 1 of the SER for more detailed information.

NEPA/404 Coordination and Discussion

In 2006, the Department entered into a Memorandum of Understanding with FHWA, U.S. Environmental Protection Agency (U.S. EPA), U.S. Fish and Wildlife Service (USFWS), the Army Corps of Engineers (USACE), and NOAA Fisheries to merge the NEPA and Clean Water Act Section 404 processes. Projects that have five or more acres of permanent impacts to waters of the United States and require the preparation of an EIS are subject to the NEPA/404 Integration MOU (April 2006). If all the MOU signatories agree, the integration process may be applied to project that do not meet the threshold. For NEPA/404 Integration projects, a set of procedures is initiated, preferably prior to scoping, and these procedures are integrated with preparation of the EIS.

As early as possible, the transportation agencies [FHWA (only if the project is not assigned to the Department), the Department and, if applicable, the local agency], must notify the "responding agencies" [U.S.EPA, USACE, and the appropriate resource agency (USFWS and/or NOAA Fisheries)] that the project meets the threshold for the NEPA/404 integration process and request the designation of mid-level and senior-level representatives should the issue resolution process prove necessary. The integration process includes on-going coordination and meetings at three checkpoints. The checkpoints are 1) purpose and need, 2) identification of the range of alternatives to be studied in the Draft EIS, and 3) the preliminary least environmentally damaging practicable alternative (LEDPA) and Conceptual Mitigation Plan. The MOU outlines the roles and responsibilities of the signatory agencies and sets forth an issue resolution process. The transportation agencies have the authority to determine the project's purpose and need and the range of alternatives for the NEPA document; however, because the USACE is the lead federal agency for the issuance of Clean Water Act Section 404 permits, the USACE must concur in the preliminary LEDPA. The transportation lead agency (FHWA or the Department as assigned) may not issue the final EIS until the USACE concurs in the LEDPA.

Weaving the requirements of the NEPA/404 process into the project development process, including the writing and processing of joint documents, can be challenging.  A diagram showing how the project development process and the NEPA/404 process could be combined for an EIR/EIS project has been developed (see page 1, see page 2).

Federal Executive Orders

When preparing a joint document, the document and technical studies must meet all the necessary federal requirements; this includes, not only NEPA and other federal laws and regulations, but executive orders as well.  Sometimes document and report writers forget to address these orders.  As a quick check, remember to consider the following executive orders in the relevant reports and the environmental document:

Title VI Statement

Joint documents must also include a statement regarding Title VI of the Civil Rights Act of 1964 as an appendix to the document.  The Title VI statement addresses the Department’s not to discriminate based on race, color, religion, age, national origins, and handicap.

REQUIRED CONTENT AND PROCESSING OF JOINT DOCUMENTS

The required content of environmental documents varies based on the document type and the applicable laws (NEPA, CEQA or both).  In the simplest terms, a joint document must have all the required elements for the CEQA document type and NEPA document type.  In an effort to simplify the preparation of joint documents the Department has developed, or is in the process of developing, standard formats for joint documents. The forms and template page of the SER contains forms and/or annotated outlines for the following joint determination/document types: CEs, IS/EA, EIR/EA and EIR/EIS. 

Table 3

Required Contents by Environmental Document Type

Content IS* EA* EIR* EIS*
Title Sheet X X X X
Draft Negative Declaration or Draft Mitigated Negative Declaration (if not preparing EIR) X      
Summary     X X
Table of Contents     X or index X
Purpose and Need   X X X
Project Description X X X X
Areas of Known Controversy       X
Permits and Approvals Needed X X X X
Alternatives Discussion   X X X
No Build/No Action   X X X
Discuss More Than 1 Build Alternative     X X
Identify Environmentally Superior Alternative     X  
Environmental Setting/Affected Environment X X X X
Environmental Effects/Impacts** X X X X
Short Term Uses of Environment and Long Term Productivity       X
Irreversible and Irretrievable Commitment of Resources     X X
Consistency with Plans X   X  
Growth Inducing Effects X X X X
Cumulative Effects X X X X
Mitigation Measures X X X X
List of Preparers X     X
Distribution List       X
Comments and Coordination (including concurrence letters, etc. from resource agencies)   X   X
Section 4(f) Evaluation (if using protected resources)   X   X
Index     X or table of contents X

* ”X” denotes required content.

**All possible environmental impacts are not listed here.  A list of potential impacts can be found in the joint document formats.  The discussion of impacts must include direct, indirect, temporary and permanent impacts.

Categorical Exemption/Categorical Exclusion (CE/CE)

A joint categorical exemption/categorical exclusion (CE/CE) uses that same standard format that the Department uses for state-only projects.  The form includes both a CEQA determination and a NEPA determination.  For a joint CE/CE, both determinations must be completed. 

Detailed information about Categorical Exclusions can be found in Chapter 30 and information regarding Categorical Exemptions can be found in Chapter 34.  

Initial Study/Environmental Assessment (IS/EA)

Preparing an IS/EA

An annotated outline for a joint Initial Study/Environmental Assessment (IS/EA) is posted on the SER.  All Department projects are required to follow this format and all local agencies are advised to follow the format for local assistance projects. Note: At very least, local agencies must use the NEPA-only environmental assessment annotated outline. It is strongly recommended, however, that local agencies use the joint annotated outlines.

The joint document must have all the elements required for an IS under CEQA and an EA under NEPA. The IS/EA annotated outline contains all the required elements of CEQA and NEPA.  Chapters 31 and 35 discuss the requirements of preparing an Environmental Assessment and an Initial Study, respectively. 

Processing an IS/EA

Table 4 below provides a side-by-side comparison of the IS/ND process under CEQA and the EA/FONSI process under NEPA.  The process flowchart following Table 4 shows how the two processes are combined when preparing a joint IS/EA.

Table 4

Comparison of IS/ND Process and EA/FONSI Process

IS/ND EA/FONSI
Prepare “draft” IS Prepare “draft” EA
QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

Legal Review (optional)

 QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

NEPA QC Review

Legal Review (optional)
  For routine EA, Deputy District Director or designee approves EA for circulation.

For complex EA, submit EA to HQ District Environmental Coordinator for approval to circulate.
Revise as Necessary Revise and Resubmit as Necessary
Circulate Sign and Circulate EA (see Chapter 38 for signature authorities)
Notice of Availability and Notice of Intent to Adopt Negative Declaration or Notice of Intent to Adopt Mitigated Negative Declaration Notice of Availability (NOA) and Notice of Public Hearing or Opportunity for Public Hearing (local newspapers)

Note:  Documents must be distributed no later than the time the document is noticed in the local newspaper.
30 Day Comment Period 30 Day Comment Period

Note: Comment period starts when document is distributed.
  Opportunity for Public Hearing / Hold Public Hearing

Note:  EA must be in public circulation for 15 days prior to the hearing.
Revise IS and Respond to Comments Revise EA and Respond to Comments
If applicable, obtain CA Department of Fish and Wildlife 2080.1 Consistency Determination or Incidental Take Permit Finalize as applicable compliance with all federal laws, regulations and executive orders, including but not limited to:

Wetlands Only Practicable Alternative Finding

Section 106 Process

Section 7 Consultation

Section 4(f) Evaluation

Compliance with all Executive Orders

Air Conformity Statement
QA/QC Review (see above) QA/QC Review (see above)
 

For routine EA, Deputy District Director or designee approves FONSI for circulation.

For complex EA, submit EA to HQ District Environmental Coordinator for review prior to approval of FONSI.

  Revise and Resubmit as Necessary
Prepare and sign Title Sheet and ND or MND Department authority signs FONSI
Circulate “final” IS with ND or MND Circulate “final” EA with FONSI
Prepare and File Notice of Determination (NOD) Send NOA (Notice of Availability) of FONSI to State Clearinghouse
  Optional: The Department coordinates with FHWA to publish notice in Federal Register to start 150-day SOL pursuant to 23 USC 139 (Note: Still the case under NEPA Assignment, 23 USC 327)

*The QA/QC review should include all members of the Project Development Team.

Quality Assurance/Quality Control (QA/QC) Review of “Draft” IS/EA

The CEQ NEPA guidance encourages conciseness in EA documents (Forty Most Asked Questions Concerning CEQ’s NEPA Regulations exit).  An EA need only address those issues that the Department has determined have a potential for significant impact.  Technical information and studies developed to analyze impacts are summarized in the document and/or incorporated by reference.  Technical studies that support the EA are a part of the environmental compliance record and are public documents. 

The Department has developed annotated outlines for joint CEQA/NEPA documents including joint IS/EAs and joint EIR/EAs and a NEPA-only EA annotated outline. The outlines are available on the SER Forms and Templates webpage. The format contained in these outlines is mandatory for Department projects and for Local Assistance projects, use of the NEPA-only annotated outlines at minimum is mandated.  Local agencies are strongly encouraged to use the joint NEPA/CEQA outlines whenever possible. Use of the annotated outlines ensures a document that meets FHWA and Department standards, facilitates project review, and electronic publishing.

Detailed technical information and/or technical reports should be treated as appendices to the EA, but should be bound as separate documents and referenced in the EA.  The appendices should include only analytical information that substantiates analysis that is important to the document (e.g., a biological assessment for threatened or endangered species).  Separate Technical Reports need not be circulated during public review, however, they are public documents and must be available for public review at specified locations (see Circulation and Public Review below). 

Section 4(f) Evaluation

If the EA includes a Section 4(f) evaluation, or if such an evaluation has been prepared separately, it must be circulated to the appropriate agencies.  Requirements for coordination of Section 4(f) documents is provided in 23 CFR 774 exit.  Guidance on Section 4(f) is provided in Chapter 20.

INTERNAL REVIEW AND ADMINISTRATIVE APPROVAL PROCESSING

The Department's environmental quality control program has been revised in response to the Department's new role under NEPA Assignment (23 USC 327). Under NEPA Assignment, EAs have been divided into two categories: complex EAs and routine EAs. Complex EAs are defined as those EAs that have complex issues or impacts in that they may include multiple location alternatives, debate related to purpose and need, strong public controversy, issues related to logical termini or independent utility, individual Section 4(f) determinations, complex Endangered Species Act issues, numerous cumulative impacts or high mitigation costs.  Routine EAs are prepared, reviewed and approved entirely within the district/region. Complex EAs undergo a more stringent review process identical in virtually every way to the EIS review. The decision regarding whether the action call for a complex EA or a routine EA is made in consultation with the Department as outlined above and as found in SER, Volume 1, Chapter 38, Determination of Class of Action. Obtaining the concurrence of the HQ District Environmental Coordinator can be done via an e-mail stating the project description, proposed class of action, and rationale.

The most important revision to the quality control program is the addition of a NEPA Quality Control Review. The purpose of this new review component is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. For additional information regarding, the quality control program, please see the policy memo on Environmental Document Quality Control Program under NEPA Assignment. See SER, Volume 1, Chapter 38, Quality Control Program for full details.

The Complex EA review and approval procedures to comply with NEPA Assignment (23 USC 327) requirements must be followed before the document can be signed and approved. Please see Chapter 38 for detailed information regarding signature authority for EAs. For routine EAs, the quality control program must be followed and the Internal Quality Control Certification completed before the document can be signed and approved.

Circulation Requirements for “Draft” IS/EA

When approval to circulate has been obtained and confirmed by the signed original title sheet, the district will circulate the “draft” IS/EA with an unsigned proposed ND or MND that has a "draft" watermark. Before the "draft" IS/EA can be circulated, the Draft Project Report (or equivalent design report) must be approved. This is to ensure that the project concept in the draft environmental document are consistent with the draft design report. Circulating the document requires that it be mailed to numerous individuals, organizations and agencies, including: 

  1. Responsible agencies.
  2. Trustee agencies with resources affected by the project.
  3. Any other state, federal, and local agencies which have jurisdiction by law with respect to the project or which exercise authority over resources which may be affected by the project.
  4. Any city or county that borders on a city or county within which the project is located.
  5. For a project of statewide, regional, or areawide significance, the transportation planning agencies and public agencies which have transportation facilities within their jurisdictions which could be affected by the project. "Transportation facilities" includes: major local arterials and public transit within five miles of the project site, and freeways, highways and rail transit service within 10 miles of the project site.

As a good planning practice, the “draft” IS/EA should also be circulated to:

  1. Any person who has special expertise with respect to any environmental impact involved.
  2. Any member of the public who has filed a written request for notice with the lead agency or the clerk of the governing body.
  3. Any person identified to be concerned with the environmental effects of the project.

The draft IS/EA should also be sent to local, state and federal elected officials, interested environmental organizations, transit agency, neighborhood groups, community non-profit agencies and to the local chamber of commerce. 

As an aid in compiling the distribution list for the IS/EA, reference should be made to the distribution list created for an EIR/EIS.

As a courtesy, provide a copy of the draft environmental document to the Headquarters NEPA Assignment Office referenced in the distribution list. Note: The distribution list is for an EIR/EIS but is a good starting point for an IS/EA distribution list.

To make copies of the document available to the general public, copies of  “draft” IS/EA and technical reports must be provided to readily accessible locations, such as schools, community centers or libraries, serving the area involved. Copies must also be available in District/Region office.

It is appropriate to charge for duplicating costs when members of the public request multiple copies of the document or when requests come from members of the public residing outside the project area.  The same criteria can be used for technical reports.

Submittal of “Draft” IS/EA to the State Clearinghouse

The Department must send the document to the State Clearinghouse (SCH) for distribution to state agencies for review.   However, in addition to this, the district may also mail a copy of the document directly to the local offices of state agencies. 

At least 15 copies of the “draft” IS/EA must be submitted to State Clearinghouse together with one copy of the Notice of Completion (NOC).  If more than 15 agencies are checked on the reviewing agencies list on the Notice of Completion, then additional copies of the “draft” IS/EA must be included for those agencies.

The NOC and at least 15 copies of the “draft” IS/EA are sent to:

State Clearinghouse

P.O. Box 3044

Sacramento, CA  95812-3044

When a “draft” IS/EA is submitted to State Clearinghouse for distribution, the State Clearinghouse will assign a SCH number to the document.  All future correspondence with the State Clearinghouse should reference this number.   The draft IS/EA is then reviewed briefly by the State Clearinghouse to determine its scope and to identify the state agencies that should review it. The State Clearinghouse then assigns review dates, attaches a distribution list to the NOC form, and distributes the documents to selected agencies. Reviewing agencies are selected for their expertise in a particular subject matter or geographical areas, or their responsibility for particular types of projects.

State agency review period for environmental documents (EIRs, NDs, or MNDs) begins on the date that the State Clearinghouse distributes the environmental document (ED) to state agencies. For documents received before 12:00 p.m. (noon), documents are usually circulated that same day. Documents received in the afternoon typically are distributed by the next working day. The standard review period for a "draft" IS/EA submitted to State Clearinghouse is 30 calendar days. Day 1 of the review period is the date the document is distributed by State Clearinghouse. The review period ends at 5 p.m. on the 30th calendar day thereafter. On the day following the close of the review period (i.e., the 31st day), the State Clearinghouse will prepare and mail a closing letter to the Department. Attached to the closing letter will be copies of any comments received from reviewing state agencies. Please see the State Clearinghouse Handbook (June 2012) exit for additional information.

Electronic Submittal

Public Resources Code 21082.1(c)(4) requires that a state lead agency, such as the Department, submit an electronic format of the document as well as hard copies of the document.  Acceptable formats include word files and pdf files and should be submitted on a CD along with the hard copies of the document and the NOC.

California Transportation Commission (CTC) Submittal Process

For projects requiring action by the California Transportation Commission (CTC) - i.e., approval of funds and/or new public road connection and/or route adoption - a submittal package must be sent to the Division of Environmental Analysis for forwarding to the CTC. Click here for the CTC submittal instructions.

Notice of Availability and Notice of Intent to Adopt a Negative Declaration (ND) or Mitigated Declaration (MND)/Notice of Public Hearing or Opportunity for a Public Hearing

To comply with CEQA and the CEQA Guidelines, the Department must provide a notice of intent to adopt a negative declaration or mitigated negative declaration to the public, responsible agencies, trustee agencies, and the county clerk of each county within which the proposed project is located, sufficiently prior to adoption by the lead agency of the negative declaration or mitigated negative declaration to allow the public and agencies the 30 day review period.  The Department must mail a notice of intent to adopt a negative declaration or mitigated negative declaration to the last known name and address of all organizations and individuals who have previously requested such notice in writing and must also give notice of intent to adopt a negative declaration or mitigated negative declaration by at least one of the following procedures to allow the public the 30 day review period:

  1. Publication at least one time in a newspaper of general circulation in the area affected by the proposed project.  If more than one area is affected, the notice must be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.
  2. Posting of notice on and off site in the area where the project is to be located.
  3. Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.
  4. Assembly Bill 209exit, Statutes of 2011, expanded Public Resources Code Section 21092(b)(1) to include a description of how the ND or MND shall be provided in electronic format.

As a matter of Department policy, the Notice of Intent to Adopt an ND or MND must be published in the local paper.  The Notice of Intent to Adopt an ND or MND should be combined with the FHWA requirement of a Notice of Availability for the EA.  The Notice of Availability/Notice of Intent to Adopt an ND or MND should contain information about the public hearing or opportunity for a public hearing.  If a public hearing is to be held, the FHWA regulations require that the EA be in public circulation for 15 days prior to the hearing.  Ch. 11 and Appendix HH of Project Development Procedures Manual (PDPM) contains detailed information regarding when a public hearing is required and what information should be contained in the public notice.

Opportunity for Public Hearing or Public Hearing

Public hearings are encouraged, but not required as an element of the IS/EA process.   However, the Project Development Procedures Manual (PDPM) requires a public hearing for any projects that:

  1. Require significant right of way
  2. Require substantial changes to the layout, or to the function of connecting roadways, or facility being improved,
  3. Have a significant adverse impact on abutting real property, or
  4. Have a significant environmental, economic, social, or other effect.

A "Notice of Opportunity" for a public hearing may be used to satisfy the requirement for a hearing if the project is non-controversial and a hearing request is unlikely. This can be determined by analysis of comments received from the public or local agencies or through prior contacts and information meetings.

Chapter 11, Article 7 of the PDPM includes a discussion of how to plan, prepare and conduct a public hearing.

Notice of the public hearing must be published in English in a newspaper having general circulation in the vicinity of the proposed project, as well as in any foreign language and community newspapers with a substantial circulation in the area.  Each notice must be published in a prominent location in the newspaper other than in the legal notices section and be published twice before the public hearing. 

Review and Approval for “Final” IS/EA (ND/FONSI)

For the purpose of this guidance, a “final” IS/EA refers to the document as revised after the comment period.  The Negative Declaration (ND) or Mitigated Negative Declaration (MND) and the Finding of No Significant Impact (FONSI) are the decision documents.

Revisions to “Draft” IS/EA

After public circulation, revisions to the body of the “draft” IS/EA will be made only when substantive comments bring to light new information not covered or when it is necessary to correct the text.  Additions and other modifications to the text shall be marked with a vertical line on the outside margin for review purposes without strikeout and underline.  A log of the comments and the responses to them is prepared to facilitate the review. The State Clearinghouse number shall be added to the upper right corner of the ND or MND. The ND or MND will be signed and placed in the front of the document (after the title sheet).

  • Environmental Commitments/Mitigation Measures.  Each “final” IS/EA must include, as an added separate section, a summary of all mitigation measures, prescribed environmentally sensitive areas (ESA), and any other conditions for which there is a commitment in previous sections of the document. 
  • Public Participation.  A brief summary of the review process including public information meeting(s) and/or public hearing (if held) shall be added to the IS/EA.  This summary, as well as copies of the comments and responses on the “draft” IS/EA, are added to the Comments and Coordination section of the document.  A copy of the State Clearinghouse letter noting the results of the state review is also included in this section.
  • Wetlands or Floodplain. If the proposed project is a federal action and is located in wetlands and/or encroaches on a floodplain, a Wetlands Only Practicable Alternative Finding exit and/or a Floodplain Only Practicable Alternative Finding exitmust be added to the “final” IS/EA.
  • Section 106.  If the proposed project is a federal action and involves cultural resources, the revised IS/EA shall include discussion as to the final disposition of Section 106 matters. For findings of No Historic Properties Affected or No Adverse Effect, the Section 106 Programmatic Agreement may be used to streamline the coordination process.   For projects with a Finding of Adverse Effect, a copy of the executed memorandum of agreement prepared to resolve those effects must be included.
  • See the appropriate annotated outline for additional guidance.

QA/QC Review of “Final” IS/EA

The “final” IS/EA with the Negative Declaration or Mitigated Negative Declaration must follow the same 5-step QA/QC review process outlined in the “QA/QC Review of ‘Draft’ IS/EA” section above. Following the 5 step QA/QC review, the district will need to revise the “final” IS/EA as necessary to resolve any conflicting comments or other issues. 

For the “final” IS/EA, both the title sheet and the Negative Declaration (ND) or Mitigated Negative Declaration (MND) are signed and incorporated into the document after the title sheet.   The “final” IS/EA becomes part of the Project Report.  Once the Project Report is assembled it is submitted to the District Director (or designee) for signature.

Submittal of “Final” IS/EA for Approval and Finding of No Significant Impact (FONSI)

The review and approval of a routine EA is done at the district/region level; the Internal Quality Control Certification must be completed before the FONSI is signed and approved. For complex EAs, a review by the Headquarters District Environmental Coordinator is needed before the FONSI can be signed and approved by the district/region. The FONSI cannot be completed until after the public review period for the EA; the public review period is 30 days. Please see SER, Volume 1, Chapter 38 for details regarding the review process for complex EAs as well as signature authorities under NEPA Assignment (23 USC 327).

Circulation Requirements for ND/FONSI

The “final” IS/EA with a signed ND or MND and a signed FONSI is referred to as an ND/FONSI and completes the process for an IS/EA.  Neither CEQA nor NEPA require public circulation of the ND/FONSI or MND/FONSI.  FHWA regulation, 23 CFR 771.121(b), does however require that a notice of availability of the FONSI be sent to the affected units of federal, state and local government and that the document be made available to the public upon request. It is encouraged, however, for agencies, organizations and individuals that commented on the “draft” IS/EA to be supplied with a copy of the ND/FONSI or MND/FONSI and be informed of the disposition of their comments. 

As a courtesy, provide a copy of the environmental document to the Headquarters NEPA Assignment Office; see the reference in the distribution list for address.

Submittal of NOD and NOA to the State Clearinghouse

While there is no requirement to publicly circulate the ND/FONSI or MND/FONSI, the district must send a “Notice of Availability - FONSI (NOA-FONSI) to the State Clearinghouse (NEPA requirement) as well as a Notice of Determination (CEQA requirement).  The Notice of Determination (NOD) must be filed by a public agency within 5 days after it approves or determines to carry out a project that is subject to the requirements of CEQA.  For Department projects, the signing of the Project Report (or equivalent) constitutes project approval.

When filing the NOD with the State Clearinghouse, the district must submit proof of payment of an environmental filing fee to the State Department of Fish and Wildlife if the document identified any potential impacts on fish or wildlife resources (see Fish and Game Code Section 711.4 exit).   The filing fee for a Negative Declaration is $2,156.25 (make the check payable to the Department of Fish and Wildlife) and should be sent to the State Clearinghouse along with the NOD.   If the project will have no effect on fish and wildlife, the district can seek to have the fee waived by contacting the Department of Fish and Wildlife region in which the project is located, and getting the Department of Fish and Wildlife's determination and documentation that the project is exempt from the fee. For more information, see the State Clearinghouse's notice, 2013 Increase: CEQA Document Filing Fees.  

The State Clearinghouse cannot post a NOD without the required Fish and Wildlife (CDFW) filing fee or documentation of CDFW's determination that the project is exempt from the filing fee.  Filing the NOD starts a 30-calendar-day statute of limitations on court challenges to the project approval under CEQA. 

The NOD, the NOA-FONSI, the payment of Fish and Wildlife filing fee (or certificate of fee exemption) and a copy of the final document (for informational purposes) are sent to:

State Clearinghouse

P.O. Box 3044

Sacramento, CA  95812-3044

Electronic Submittal

Public Resources Code 21082.1(c)(4) requires that a state lead agency, such as the Department, submit an electronic format of the document as well as hard copies of the document.  Acceptable formats include word files and pdf files and should be submitted on a CD. For additional information, access the State Clearinghouse website. Exit Caltrans Icon

California Transportation Commission (CTC) Submittal Process

For projects requiring action by the California Transportation Commission (CTC) - i.e., approval of funds and/or new public road connection and/or route adoption - a submittal package must be sent to the Division of Environmental Analysis for forwarding to the CTC. Click here for the CTC submittal instructions.

Environmental Impact Report/Environmental Assessment (EIR/EA)

An annotated outline has been prepared for an Environmental Impact Report/Environmental Assessment (EIR/EA).  All Department projects are required to follow this format and all local agencies are advised to follow the format for local assistance projects. Note: At very least, local agencies must use the NEPA-only environmental assessment annotated outline. It is strongly recommended, however, that local agencies use the joint annotated outlines.

The processing of an EIR/EA must follow the EIR process for CEQA and the EA process for NEPA.  Please see Chapter 36 for detailed information regarding an EIR and Chapter 31 for detailed information regarding an EA.

Table 5

EIR/NOD and EA/FONSI Combined Processes

EIR/NOD EA/FONSI
Notice of Preparation (NOP)  
Send Responsible Agency Letters  
Prepare “draft” EIR Prepare “draft” EA
QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

Legal Review (optional)

 QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

NEPA QC Review

Legal Review (optional)

 

For routine EA, Deputy District Director or designee approves EA for circulation.

For complex EA, submit EA to HQ District Environmental Coordinator for approval to circulate.

Revise as Necessary Revise and Resubmit as Necessary
Circulate Draft EIR (see Draft EIR/EIS list to aid in circulation). Circulate EA (see Chapter 38 for signature authorities)
Publish Notice of Availability/Notice of Public Hearing.

Notice of Availability (NOA) and Notice of Public Hearing or Opportunity for Public Hearing (local newspapers).

Note:  Documents must be distributed no later than the time the document is noticed in the local newspaper.

45 Day Comment Period

30 Day Comment Period.

Note: Comment period starts when document is distributed.

Hold Public Hearing

Opportunity for Public Hearing / Hold Public Hearing

Note:  EA must be in public circulation for 15 days prior to the hearing.

Revise EIR and Respond to Comments--Prepare Final EIR Revise EA and Respond to Comments
If applicable, obtain CA Department of Fish and Wildlife 2080.1 Consistency Determination or Incidental Take Permit Finalize as applicable compliance with all federal laws, regulations and executive orders, including but not limited to:

Wetlands Only Practicable Alternative Finding

Section 106 Process

Section 7 Consultation

Section 4(f) Evaluation

Compliance with all Executive Orders

Air Conformity Statement

QA/QC Review (see above) QA/QC Review (see above)
 

For routine EA, Deputy District Director or designee approves FONSI for circulation.

For complex EA, submit EA to HQ District Environmental Coordinator for review prior to approval of FONSI.

Revise as necessary Revise and Resubmit as Necessary
Prepare and sign Title Sheet Department authority signs FONSI
Circulate Final EIR

Note:  There is no review period for a Final EIR.		 Circulate “final” EA with FONSI
Publish Notice of Availability Send NOA (Notice of Availability) of FONSI to State Clearinghouse
Prepare Certification, Findings, Statement of Overriding Considerations (if applicable)  
Prepare and sign Notice of Determination  
File Notice of Determination with the State Clearinghouse Optional: The Department coordinates with FHWA to publish notice in Federal Register to start 150-day SOL pursuant to 23 USC 139 (Note: FHWA is still the entity that must publish the notice under NEPA Assignment.)

Environmental Impact Report/Environmental Impact Statement (EIR/EIS)

Preparing an EIR/EIS

An annotated outline for an Environmental Impact Report/Environmental Impact Statement has been developed and is posted on the SER.  All Department projects are now required to follow this format. Local assistance projects are advised to follow the format as well.  Note: At the very least, local agencies must use the NEPA-only Environmental Impact Statement annotated outline.

The joint document must contain all the elements required of an EIR under CEQA and an EIS under NEPA.  Chapters 32 and 36 discuss the requirements of preparing an Environmental Impact Statement and Environmental Impact Report, respectively. 

EIR/EIS Process

new 23 USC 139 EFFICIENT ENVIRONMENTAL REVIEW PROCESS

SAFETEA-LU stands for the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A legacy for Users and is the transportation funding act that was signed on August 10, 2005. SAFETEA-LU included a number of changes aimed at streamlining the environmental review process. MAP-21 stands for the Moving Ahead for Progress in the 21st Century Act (P.L. 112-141) and was signed into law by President Obama on July 6th, 2012. MAP-21 authorizes the federal surface transportation programs for highways, highway safety, and transit and provides funding funding of over $105 billion for federal fiscal years (FY) 2013 and 2014. It covers a variety of transportation related issues including financing, state and metropolitan transportation planning, congestion relief, improved safety, expedited project delivery, consolidation of federal programs, goods movement, and transportation related research and studies.

MAP-21 makes further amendments to the environmental review process added by SAFETEA-LU and codified at 23 USC 139.

  • Environmental review process. The environmental review process mandated by 23 USC 139 applies to EIS documents for which a Notice of Intent (NOI) was issued after August 10, 2005.  In summary, 23 USC 139 requires the following (please see the SAFETEA-LU page):
    • The project sponsor must send a project initiation letter to the Department, Environmental Management Office Chief, prior to the start of NEPA. There are several options for doing this; the NOI itself can serve this function.
    • Under NEPA Assignment (23 USC 327) the Department serves two roles: the federal lead agency for a transportation project, and the direct recipient of federal-aid funds joint lead agency.   Local agencies can serve as a joint lead agency at the discretion of the Department.
    • The lead agencies must invite all federal, state, tribal, regional and local government agencies that may have an interest in the project to be participating agencies.
    • Lead agencies must develop a coordination plan for public and agency participation and comment during the environmental review process.
      Note: If a schedule is developed as part of the coordination plan, then participating agency concurrence is required.
    • Participating agencies and the public must be given an opportunity for involvement in the development of the purpose and need and the range of alternatives. Lead agencies must collaborate with participating agencies on the appropriate methodologies to be used and the level of detail of alternatives analysis. Note:  This is not requiring concurrence.
    • FHWA may issue a 150-day statute of limitations (SOL) on claims against USDOT and other federal agencies for certain environmental and other approval actions. The 150-day SOL starts from the date that notice is published in the Federal Register by FHWA.  A SOL notice can be used for a highway project regardless of the category of documentation used under NEPA. It is expected that notices will be published for most EIS projects and many EA projects, but not for projects that are CEs. Note: Even under NEPA Assignment (23 USC 327) FHWA is still the entity who must publish the notice in the Federal Register.

LEAD AGENCY UNDER 23 USC 139

Under the provisions of 23 USC 139, USDOT (FHWA or FTA for most Department projects) must serve as the federal lead agency, and the Department as the direct recipient of federal-aid highway funds must be a joint lead agency. Under 23 USC 327 and pursuant to the NEPA Assignment MOU, the Department will serve in both roles (please see SER Volume 1, Chapter 38, NEPA Assignment). In addition to the required lead agencies, other federal, state, or local governmental entities may act as joint lead agencies, at the discretion of the Department. See the FHWA/FTA SAFETEA-LU Environmental Review Process Final Guidance discussion on Lead Agencies exit for more information.

Combined CEQA/NEPA/23 USC 139

Table 6 below provides a side-by-side comparison of the Environmental Impact Report/Notice of Determination (EIR/NOD) process under CEQA and the Environmental Impact Statement/Record of Decision (EIS/ROD) process under NEPA.  The process flowchart following Table 6 shows how the two processes are combined when preparing a joint EIR/EIS.

Table 6

Comparison of EIR/NOD Process and EIS/ROD, 23 USC 139 Process

EIR/NOD   EIS/ROD
   

23 USC 139: Project Initiation Letter

Note: The NOI can serve this function as long as it contains the required elements. For streamlining reasons, this is the recommended approach.

Notice of Preparation (NOP)   Notice of Intent (NOI)— District/Region prepares NOI and Requests FHWA Publication of NOI in Federal Register. See Notice of Intent – EIS Sample
Send Responsible Agency Letters   District/Region sends Cooperating Agency and Participating Agency Letters
    23 USC 139: Develop Coordination Plan
Prepare Draft EIR   Prepare Draft EIS
    23 USC 139: Provide participating agencies and public opportunity for involvement in purpose and need and range of alternatives
    23 USC 139: Collaborate with participating agencies on methodologies to be used and level of detail for alternatives analysis
    23 USC 139: Make available to participating agencies as early as practicable information regarding environmental resources in project area and location of alternatives
QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

Legal Review (optional)

   QA/QC Review*

Technical Specialist Review

Internal Peer Review

Supervisor Review

Technical Editor Review

NEPA QC Review

Legal Review (required)

    Review by HQ District Environmental Coordinator (see Chapter 38 for details)
    Revise and Resubmit as Necessary
Sign and Approve EIR   Sign and Approve EIS (see Chapter 38 for signature authority)
Circulate Draft EIR  

Circulate Draft EIS

Note:  Documents must be distributed no later than the time the document is filed with EPA for publication of the Notice of Availability in the Federal Register.

Publish Notice of Availability/Notice of Public Hearing   Publish Notice of Availability/Notice of Public Hearing (local newspapers and Federal Register)
45 Day Comment Period  

45 Day Comment Period

Note: Comment period starts when Federal Register notice is published, not when document is mailed.  Without careful timing of the notice publication, this may act to extend the comment period.

Hold Public Hearing  

Hold Public Hearing

Note:  Document must have been in review for at least 15 days before hearing.

Revise EIR and Respond to Comments

   Revise EIS and Respond to Comments
    23 USC 139 (optional): Prepare justification, get lead agency(ies) approval, and develop preferred alternative to higher level of detail to assist in compliance with environmental laws and development of mitigation measures.
If applicable, obtain CA Department of Fish and Wildlife 2080.1 Consistency Determination or Incidental Take Permit   Finalize as applicable compliance with all federal laws, regulations and executive orders, including but not limited to:

Wetlands Only Practicable Alternative Finding

Section 106 Process

Section 7 Consultation

NEPA/404 Concurrence through Final ED Stage

Section 4(f) Evaluation

Compliance with all Executive Orders

Air Conformity Statement

QA/QC Review (see above)   QA/QC Review (see above)
    Review by HQ District Environmental Coordinator (see Chapter 38 for details)
    Revise and Resubmit as Necessary
Sign and Approve EIR   Sign and Approve EIS (see Chapter 38 for signature authority)
Circulate Final EIR  

Circulate Final EIS

Note:  EIS must be distributed no later than the time the document is filed with EPA for publication of the Notice of Availability in Federal Register.

Publish Notice of Availability

  

Publish Notice of Availability (local newspapers and Federal Register)

Note:  There is no review period for a Final EIR. The certification, findings, statement of overriding consideration and NOD can all be completed and filed before the ROD.

 

30 Day Review Period

Note: Waiting period starts when Federal Register NOA is published.

Prepare Certification, Findings, Statement of Overriding Considerations (if applicable)   Prepare Record of Decision (ROD)
Prepare and sign Notice of Determination   Submit to HQ Environmental Coordinator and Revise as Necessary
File Notice of Determination with the State Clearinghouse   The Department signs ROD (see Chapter 38 for signature authority)
    23 USC 139 (optional but strongly recommended): FHWA publishes notice in Federal Register to start 150-day SOL pursuant to 23 USC 139 (Note: FHWA is still the entity that must publish the SOL notice in the Federal Register.)

**The QA/QC review should include all members of the Project Development Team.

Review and Approval for a Draft EIR/EIS

The Department has an environmental quality control program under the NEPA Assignment. An important aspect of the quality control program is NEPA Quality Control Review. The purpose of this review component is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. For additional information regarding, the quality control program, please see the policy memo on Environmental Document Quality Control Program under NEPA Assignment. See SER, Volume 1, Chapter 38, Quality Control Program for full details.

The EIS review and approval procedures have been revised to comply with the requirements of the NEPA Assignment (23 USC 327) .

Circulation Requirements for a Draft EIR/EIS.

When approval to circulate has been obtained from the HQ Environmental Coordinator and confirmed by the signed original title sheet and the Draft Project Report has also been signed and approved, the district will circulate the Draft EIR/EIS. Distribution must be made no later that the time the document is filed with the EPA for publication in the Federal Register.

Circulating the document requires that it be mailed to numerous individuals, organizations and agencies, including:

  1. Responsible agencies,
  2. Trustee agencies with resources affected by the project,
  3. Any other state, federal, and local agencies which have jurisdiction by law with respect to the project or which exercise authority over resources which may be affected by the project (cooperating agencies),
  4. Any non-federal agency that may have an interest in the transportation project (participating agencies)
  5. Any city or county that borders on a city or county within which the project is located,
  6. For a project of statewide, regional, or areawide significance, the transportation planning agencies and public agencies which have transportation facilities within their jurisdictions which could be affected by the project. "Transportation facilities" includes: major local arterials and public transit within five miles of the project site, and freeways, highways and rail transit service within 10 miles of the project site.

As a good planning practice, the Draft EIR/EIS should also be circulated to:

  1. Any person who has special expertise with respect to any environmental impact involved,
  2. Any member of the public who has filed a written request for notice with the lead agency or the clerk of the governing body.
  3. Any person identified to be concerned with the environmental effects of the project.

The Draft EIR/EIS must also be sent to local, state and federal elected officials, interested environmental organizations, transit agency, neighborhood groups, community non-profit agencies and to the local chamber of commerce.  Furnish a copy of the document with a Notice of Availability to the county clerk of the county in which the project is located.  It should have a statement and address where the document can be viewed or obtained by the public.

As an aid in compiling the distribution list reference should be made to the distribution list created for an EIR/EIS.

To make copies of document available to the general public, copies of Draft EIR/EIS and technical reports must be provided to readily accessible locations, such as schools, community centers or libraries, serving the area involved. Copies must also be available in District/Region office.

It is appropriate to charge for duplicating costs when members of the public request multiple copies of the document or when requests come from members of the public residing outside the project area.  The same criteria can be used for technical reports.

Submittal of Draft EIR/EIS to the State Clearinghouse

The submittal requirements for a Draft EIR/EIS are the same as for a Draft EIR.  Chapter 36 contains a detailed discussion regarding the State Clearinghouse submittal.

California Transportation Commission (CTC) Submittal Process

For projects requiring action by the California Transportation Commission (CTC) - i.e., approval of funds and/or new public road connection and/or route adoption - a submittal package must be sent to the Division of Environmental Analysis for forwarding to the CTC. Click here for the CTC submittal instructions.

Notice of Availability of Draft EIR/EIS

The Department must provide a public notice of the availability (NOA) of the Draft EIR/EIS at the same time it sends the notice of completion and Draft EIR to the State Clearinghouse. The notice must be published in a local newspaper of general circulation.  The notice of the availability of a Draft EIR/EIS must also be mailed to the last known name and address of all organizations and individuals who have previously requested such notice in writing. 

The notice of availability must contain the following:

  1. A brief description of the proposed project and its location,
  2. The starting and ending dates for the Draft EIR/EIS review period (Note:  Must be at least 45 calendar days),
  3. The date, time, and place of any scheduled public meetings or hearings to be held by the lead agency on the proposed project when known at the time of notice,
  4. A list of the significant environmental effects anticipated as a result of the project, to the extent which such effects are known at the time of the notice,
  5. The address where copies of the EIR and all documents referenced in the EIR will be available for public review. This location must be readily accessible to the public during normal working hours.
  6. A description of how the EIR shall be provided in electronic format. (Added by AB 209, Statutes of 2011, which expanded Public Resources Code Section 21092(b)(1) to include this requirement.)
  7. The presence of the site on any of the lists of sites enumerated in the Cortese List (Section 65962.5 of the Government Code) including, but not limited to, lists of hazardous waste facilities, land designated as hazardous waste property, hazardous waste disposal sites and others, and the information in the Hazardous Waste and Substances Statement.

Detailed information regarding the preparation and publishing of the Notice of Availability is contained in Chapter 11, Article 2 and Appendix HH of the Project Development Procedures Manual.

In addition to the Notice of Availability for the DEIR/EIS that must be published in a local newspaper of local circulation. The Department under NEPA Assignment must also submit the DEIR/EIS to EPA for publication of the approved Notice of Availability in the Federal Register. The Department must also provide copies of the DEIS to the Department of the Interior. For further information on both of these requirements, please see SER, Chapter 32, Environmental Impact Statements.

Public Hearing or Opportunity for a Public Hearing 

While public hearings are not mandated for EIRs, they are for EIS level projects.   The Project Development Procedures Manual (PDPM) requires a public hearing for any projects that:

  1. Require significant right of way
  2. Require substantial changes to the layout, or to the function of connecting roadways or facility being improved,
  3. Have a significant adverse impact on abutting real property, or
  4. Have a significant environmental, economic, social, or other effect.

A "Notice of Opportunity" for a public hearing may be used to satisfy the requirement for a hearing if the project is non-controversial and a hearing request is unlikely. This can be determined by analysis of comments received from the public or local agencies or through prior contacts and information meetings.

Chapter 11, Article 7 of the PDPM includes a discussion of how to plan, prepare and conduct a public hearing.

Notice of the public hearing must be published in English in a newspaper having a general circulation in the vicinity of the proposed project, as well as in any foreign language and community newspapers with a substantial circulation in the area.  Each notice must be published in a prominent location in the newspaper other than in the legal notices section and be published twice before the public hearing.  Chapter 11, Article 2 and Appendix HH of the PDPM provide detailed information on the format and publication of public notices. 

Combined Notice of Availability of Draft EIR/EIS and Notice of Public Hearing or Opportunity for a Public Hearing

In practice, the Notice of Availability of the Draft EIR/EIS and Notice of Public Hearing or Notice of Opportunity for Public Hearing are often combined into one notice.  This avoids duplication of effort and expense.

Chapter 11, Article 2 and Appendix HH of the Project Development Procedures Manual provide detailed information on the format and publication of these notices.

Review and Approval for Final EIR/EIS

Revising the Draft EIR/EIS and Responding to Comments

While not required, it is good practice to send a letter to those who commented on the Draft EIR/EIS acknowledging receipt of their comments. The official response to their comment, however, will come in the Final EIR/EIS.  FHWA comments are not to be included in the comment section.  Any comments from the Department of Transportation, Washington, DC, however, are to be included.

All comments received on the Draft EIR/EIS (except those from FHWA) shall be available to the public for review at the District Office.  Copies may be made available in accordance with public information procedures.   Responses must be written for all substantive environmental comments and the comments and responses must be included in the Final EIR/EIS.

The Final EIR/EIS must consist of the following:

  1. The Draft EIR/EIS or a revision of the draft.
  2. Comments and recommendations received on the Draft EIR/EIS either verbatim or in summary.
  3. A list of persons, organizations, and public agencies commenting on the draft EIR.
  4. Responses to significant environmental points raised in the review and consultation process.

Revisions to the body of the Draft EIR/EIS are generally made only when substantive comments bring to light new information not covered or when it is necessary to correct the text.  Additions and other modifications to the text shall be marked with a vertical line on the outside margin for review purposes. 

The following sections of a Final EIR/EIS are generally updated from those in the Draft EIR/EIS:

  1. Cover Sheet (to reflect Final EIR)
  2. Summary(to incorporate changes to alternative analysis and results of coordination as appropriate)
  3. Alternatives Analysis (to identify the preferred alternative and rationale for doing so)
  4. Avoidance, minimization and compensation measures (to reflect final proposals)
  5. Comments and Coordination (to summarize public hearing process, incorporate comments and responses, and update coordination with resource agencies)
  6. Wetlands or Floodplain  (to include a Wetlands Only Practicable Alternative Finding Exit Caltrans Icon, results of NEPA/404 coordination and/or a Floodplain Exit Caltrans Icon Only Practicable Alternative Finding Exit Caltrans Icon
  7. Cultural Resources (to include documentation of compliance with the Sect. 106 PA, SHPO concurrence and/or the executed MOA)
  8. Endangered Species (to include results of the Section 7 consultation process)
  9. Section 4(f) Evaluation (to include results of Section 4(f) process)
  10. Air Conformity Statement to update RTP and RTIP dates, etc.)
QA/QC and HQ Review of the Final EIR/EIS

The Department has an environmental quality control program under NEPA Assignment. An important aspect of the quality control program is the NEPA Quality Control Review. The purpose of this new review component is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. The text below summarizes each of the quality control reviews that must take place. For additional information regarding, the quality control program, please see the policy memo on Environmental Document Quality Control Program under NEPA Assignment. See SER, Volume 1, Chapter 38, Quality Control Program for full details.

The EIS review and approval procedures have also been revised to comply with NEPA Assignment (23 USC 327) requirements.

Circulation of the Final EIR/EIS and Project Approval (Notice of Determination and Record of Decision [ROD])

All approved Final EIR/EISs must be distributed to all federal, state and local agencies and private organizations, and members of the public who provided substantive comments on the Draft EIR/EIS or who requested a copy of the final document.  For reference, a distribution list for a Final EIS is available; distribution also usually includes all recipients of the Draft EIS as well. For projects under NEPA Assignment, the Department must transmit the DEIS to EPA. EPA will prepare a Notice of Availability for publication in the Federal Register. The Department must also provide copies of the FEIR/EIS to the Department of the Interior. For further information on both of these requirements, please see SER, Volume 1, Chapter 32, Environmental Impact Statements.

Distribution of the FEIR/EIS must be made no later than the time the document is filed with EPA for publication of the Notice of Availability in the Federal Register.  A review period of at least 30-days must be allowed for the public NOA before the Record of Decision is approved.

CEQA requires several additional documents to be prepared as part of approving the Final EIR and the project.  Chapter 36 contains a detailed discussion of the preparation and processing of these documents, including the certification, findings and statement of overriding considerations. Once these documents are prepared and the project is approved a Notice of Determination must prepared and filed with the State Clearinghouse.  Please see Chapter 36 for additional information.

California Transportation Commission (CTC) submittal process

For projects requiring action by the California Transportation Commission (CTC) - i.e., approval of funds and/or new public road connection and/or route adoption - a submittal package must be sent to the Division of Environmental Analysis for forwarding to the CTC. Click here for the CTC submittal instructions.

 

(Last content update:12/18/2012, MS)