NEPA Assignment

NEPA Assignment streamlines the federal environmental review and approval process by eliminating FHWA's project-specific review and approval. In reviewing and approving projects under NEPA, Caltrans is responsible for complying with all applicable federal environmental laws and with FHWA NEPA regulations, policies, and guidance, and is legally responsible and liable for the environmental decisions made on projects under NEPA Assignment. NEPA Assignment does not change federal environmental protection standards. NEPA Assignment has resulted in documents being approved in less time; improved the efficiency in which Caltrans prepares, reviews, and approves environmental documents; improved the quality of documents; and provides for greater accountability through monitoring.

Since 2007, Caltrans has performed federal responsibilities for environmental decisions and approvals under NEPA for highway projects in California that are funded by FHWA. These responsibilities have been assigned to Caltrans by FHWA pursuant to two Memoranda of Understanding (MOU) signed by FHWA. The 23 USC 326 MOU allows Caltrans to approve 326 Categorical Exclusions (CEs); the 23 USC 327 MOU allows Caltrans to approve Environmental Assessments (EA) and Environmental Impact Statements (EIS), and Categorical Exclusions that cannot be approved as 326 CEs.

Please refer to the Standard Environmental Reference (SER) for the most current guidance.

Waiver of Sovereign Immunity

Under NEPA Assignment, California assumes sole responsibility and liability for its NEPA actions and decisions and is subject to federal court jurisdiction. California waived its 11th amendment right to sovereign immunity against actions brought by its citizens in federal court for the narrow purposes of NEPA Assignment. The waiver has been enacted through a series of State legislative bills that added Section 820.1 to the Streets and Highways Code.

Overview

23 USC 327

23 USC 327 Memorandum of Understanding (PDF) (December 30, 2016)

On December 23, 2016, FHWA renewed the Caltrans 23 USC 327 NEPA Assignment MOU (327 MOU) for a term of 5 years. This renewal allows Caltrans to continue performing federal environmental responsibilities for highway projects under NEPA and other federal laws.

23 USC 326

23 USC 326 Memorandum of Understanding (PDF) (April 18, 2019)

FHWA renewed the Caltrans 23 USC 326 CE MOU on April 18, 2019 for a three-year term. The 326 MOU was posted for comments in the Federal Register on February 11, 2019. The comment period closed on March 13, 2019. A total of 7 comments were submitted on the MOU, which didn’t introduce substantive changes to the MOU.