23 USC 326 Categorical Exclusion Assignment
Under Section 6004 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Caltrans assumed FHWA's responsibilities for determining if a transportation project qualifies for a Categorical Exclusion (CE) – a type of NEPA action that does not involve significant environmental impacts.
Like the 23 USC 327 Project Delivery Program, Caltrans' assumption of FHWA's CE responsibilities streamlines the federal environmental review and approval process for categorically excluded transportation projects by eliminating one layer review and approval – FHWA’s project-specific reviews. Caltrans applies federal environmental requirements in the same manner as FHWA, maintaining FHWA's rigorous environmental standards. As with the Project Delivery Program, under CE Assignment, Caltrans is legally responsible and liable for its environmental decisions.
What are Categorical Exclusions?
Categorical Exclusions (CEs) are a category of NEPA actions that do not have a significant individual or cumulative effect on the environment. If a project is determined to be categorically excluded, preparation of a NEPA document (an environmental impact statement or an environmental assessment) is not required. CE projects must still comply with the permitting and consultation requirements of other federal environmental regulations, which may require the development of avoidance, minimization, or mitigation strategies, if needed.
Types of projects (or actions), that can be categorically excluded are defined by FHWA in regulations at 23 CFR 771.117, where they are divided into two groups based on the potential for those types of transportation projects to have environmental effects:
- The first group, listed in 23 CRF 771.117(c) (called the "c" list), consists of actions that almost never cause significant environmental impacts. One example of “c” list projects are minor construction activities such as bicycle lanes or landscaping. These actions are automatically classified as CEs except where "unusual circumstances" occur. Unusual circumstances can occur, for example, if a project is controversial on environmental grounds or if it is determined that a project involves significant environmental effects. If significant environmental effects are involved, an environmental document must be prepared.
- The second group, listed in 23 CFR 771.117(d) (the "d" list), are examples of actions that normally do not result in significant environmental effects, but for which studies must be prepared to document that a specific project will not result in a significant environmental effect.
For more information on CEs, see Chapter 30 of the Standard Environmental Reference (SER).
Scope of CE Responsibility
Under 23 USC 326, Caltrans assumed responsibility for approving CEs on the "c" and “d” lists. In addition, states assuming CE assignment responsibilities were able to propose additional actions that could qualify as CEs. To obtain approval for these additional actions, documentation was presented to FHWA justifying these additional types of actions. Caltrans added seven additional actions as categorical exclusions. Caltrans developed the proposed additions based on reviewing the types of activities that FHWA and Caltrans have historically approved as CEs in California. Appendix A of the 23 USC 326 CE Assignment MOU lists the additional CE actions. For projects that are not on the "c" or "d" list or the “Appendix A” list, but for which a CE classification is appropriate under 23 USC 327, Caltrans has been assigned responsibility for making those determinations pursuant to a separate, 23 USC 327 MOU.
Caltrans prepared a background paper (PDF) to support designating the seven additional actions as "Appendix A" CEs.
23 USC 326 CE Assignment MOU Renewals
FHWA and Caltrans entered into a CE Assignment MOU, dated June 7, 2007 (renewed on June 7, 2010; June 7, 2013; May 31, 2016 [amended on December 30, 2016]; April 18, 2019; and April 18, 2022) that assigned, to Caltrans, FHWA responsibilities for determining whether certain projects are categorically excluded from the requirement to prepare Environmental Assessments or Environmental Impact Statements. All responsibilities concerning Categorical Exclusion determinations that are not assigned by FHWA and assumed by Caltrans under the CE Assignment MOU are assigned by FHWA and assumed by Caltrans under the 327 MOU. The CE Assignment MOU is renewable every five years, effective with the April 18, 2022 approved MOU and expires on April 18, 2027.
CE Assignment Monitoring
FHWA and Caltrans work collaboratively in monitoring Caltrans performance under 23 USC 326 MOU including verification of Caltrans’ compliance with the requirements of the MOU. Reviews occur between the 19th and 31st month of the MOU. FHWA produces the monitoring report.
Similar to the Project Delivery Program, under CE Assignment, Caltrans assumed responsibility for most federal environmental interagency consultations and related compliance actions. Caltrans has assumed responsibilities for the federal environmental laws listed in Appendix B of the 23 USC 326 MOU.
However, unlike the Project Delivery Program, FHWA's air quality conformity responsibilities under the Federal Clean Air Act (42 USC 7506(c) have been assigned to Caltrans. More information on the air quality conformity process.
Like the Project Delivery Program, the USDOT Secretary's responsibilities for government-to-government consultation with Indian tribes as defined in 36 Code of Federal Regulations (CFR) 800.16(m) was not assigned to Caltrans under the 23 USC 326 MOU. More information on the Section 106 consultation process.
The following documents were released as a result of the CE MOU under the 23 USC 326 MOU:
- 23 USC 326 Memorandum of Understanding (PDF) (April 18, 2022)
- 23 USC 326 Memorandum of Understanding - 2019 (PDF) (April 18, 2019)
- Amendment to the 23 USC 326 Memorandum of Understanding (PDF) (December 30, 2016)
- 23 USC 326 Memorandum of Understanding - 2016 (PDF) (May 31, 2016)
- Categorical Exclusion Checklist
- Background Paper: Documentation in Support of Proposed Appendix A - Assigned Categories of Activities (PDF)