Assignment under the 23 USC 327 MOU
Pursuant to Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users act (SAFETEA-LU), up to 5 states were allowed to apply for participation in the “Surface Transportation Project Delivery Pilot Program” (Pilot Program). Caltrans was the only state in the nation to participate in the Pilot Program which began July 1, 2007 and ended September 30, 2012. Under the Pilot Program, FHWA assigned and Caltrans assumed all of the USDOT Secretary’s responsibilities under NEPA.
Pursuant to the Moving Ahead for Progress in the 21st Century Act (MAP-21) Section 1313, 23 USC 327 was amended to make the Pilot Program permanent as the Surface Transportation Project Delivery Program. Section 1313 required amendments to regulations at 23 CFR 773 to establish requirements for all 50 states to apply to participate in the permanent Project Delivery Program. The amendments also included provisions for states to renew participation in the Program. As the only state currently participating in the Pilot Program, California adhered to these provisions and submitted a 327 MOU renewal request in June 2015.
On October 1, 2012, FHWA signed an MOU with Caltrans for Caltrans’ participation in the permanent Project Delivery Program. This MOU “bridged” Caltrans’ participation in the Pilot Program with Caltrans’ participation in the permanent Project Delivery Program.
Under the permanent Project Delivery Program, Caltrans assumed FHWA responsibilities under NEPA and other federal environmental laws in the same manner as under the Pilot Program with these minor changes:
- Caltrans may use federal funds for attorneys’ fees attributable to program activities;
- Caltrans will perform under revised monitoring requirements:
- FHWA will no longer conduct audits of Caltrans performance; however, FHWA will conduct two monitoring reviews during the five-year term of the MOU;
- Caltrans will provide FHWA with self-monitoring reviews annually;
- Caltrans will provide FHWA with approval and decision reports annually.
- The MOU is renewable for a term of not more than five years, and
- The MOU specifies the conditions under which Caltrans may terminate their participation in the program.
On May 27, 2022, FHWA renewed the Caltrans 23 USC 327 NEPA Assignment MOU (327 MOU) for a term of ten years in accordance with 23 USC 327(c)(7). The 327 MOU makes no changes to Caltrans authority under the Pilot Program. The FHWA confirmed that no substantive changes in Caltrans’ responsibilities under NEPA were proposed in Caltrans’ April 2020 renewal request. The following changes from previous MOUs include:
- MOU term has increased from 5 years to 10 years
- Two monitoring reviews will still be conducted. However, FHWA will also conduct an audit of Caltrans’ performance under the MOU during the 10-year term.
Under NEPA Assignment, the Division of Environmental Analysis revised its environmental policies and procedures and updated the Caltrans Standard Environmental Reference (SER), including Chapter 38, which is devoted solely to NEPA Assignment. Chapter 38 contains Caltrans policies and procedures under NEPA Assignment and must be followed by all Caltrans Districts/Regions, and by all agencies and consultants preparing environmental documents for approval by Caltrans.
Caltrans tracks median NEPA environmental processing timeframes since initiation of the Pilot Program and compares these to median processing time frames before the Pilot Program. This analysis indicates significant time savings, as presented in the chart below.
|Document Processing Milestones||Median Duration in Months Prior to Initiation of the Pilot Program||Median Duration in Months After to Initiation of the Pilot Program||Median Time Savings Realized in Months|
|Begin Environmental Studies to Environmental Assessment or Finding of No Significant Impact Approval||54.1||38.8||15.3|
|Notice of Intent to Final Environmental Impact Statement Approval||193.9||69.9||124.0|
|Submittal of FESA Section 7 documentation to USFWS/NMFS to the Biological Opinion||11.0||6.0||5.0|
Note: For environmental documents prepared by Caltrans, consultants and local agencies from July 1, 2007 through September 30, 2023
The requirements of the Project Delivery Program include:
- Annual monitoring by Caltrans;
- Expanded staff training;
- Scrupulous quality assurance/quality control processes for the review of NEPA documents;
- Development and use of a robust project environmental filing system; and
- State legislative reporting on environmental approval and project delivery time savings (required during the Pilot Program and first four years of the Project Delivery Program).
Under the Project Delivery Program, Caltrans assumed responsibility for most federal environmental interagency consultations and related compliance actions. Caltrans has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the 327 MOU. Caltrans is responsible for complying with the requirements of all applicable environmental laws and regulations regardless of whether the regulation is included in Section 3.2 list.
Under the Project Delivery Program, FHWA's air quality conformity responsibilities under the Federal Clean Air Act (42 USC 7506(c) have not been assigned to Caltrans. More information on the air quality conformity process.
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 327 MOU. FHWA remains responsible for all government-to-government consultation including initiation of tribal consultation. More information on the Section 106 consultation process.
The following documents were updated or released as a result of the NEPA Assignment Program:
- 23 USC 327 NEPA Assignment Memorandum of Understanding (PDF) (May 27, 2022)
- 23 USC 327 Memorandum of Understanding Extension Approval Letter from FHWA (PDF) (April 1, 2016)
- 23 USC 327 "Bridging" Memorandum of Understanding (PDF) (September 25, 2012)
- Pilot Program Final Application (May 2007) (PDF)
- "Assignment of Responsibilities under the Surface Transportation Project Delivery Program" Memo (April 24, 2018)
- "Review Procedures for Environmental Documents under the NEPA Assignment Program" Memo (April 24, 2018)
- "Environmental Document Quality Control Program under NEPA Assignment" Memo (April 24, 2018)
- Quality Control Forms, Checklists, and Annotated Outlines