Chapter 30 - Categorical Exclusions
- What Does This Topic Include?
- NEPA Categorical Exclusion Decision Tree
- Laws, Regulations, and Guidance
- Definition of a Categorical Exclusion
- Classes of Actions Qualifying for Categorical Exclusions
- 23 USC 326 vs. 23 USC 327 Categorical Exclusion (CE)
- Exceptions to Categorical Exclusions--Unusual Circumstances
- Eligibility, Preparation and Processing of 23 USC 326 CEs and 23 USC 327 CEs
This chapter discusses the criteria that a proposed action must meet to be categorically excluded from the National Environmental Policy Act (NEPA) and the preparation and processing of the Categorical Exclusion (CE) documentation for Department and Local Assistance projects.See also Chapter 1- Federal Requirements
- 23 CFR 771.117
- 40 CFR 1508.4
- CE/CE form
- FHWA Memorandum: Additional Flexibilities in Categorical Exclusions, May 22, 2017
Categorical exclusions (CEs) are categories of actions that have been determined not to have a significant effect on the human environment either individually or cumulatively. In its regulations for the implementation of NEPA, the Council on Environmental Quality (CEQ) directed all federal agencies to adopt procedures which include identifying actions that are categorically excluded, i.e., normally do not require the preparation of either an environmental impact statement or an environmental assessment. Pursuant to CEQ's regulations, the Federal Highway Administration (FHWA) has defined categories of actions that do not involve significant environmental impacts. These actions are defined in 23 CFR 771.117.
Under 23 CFR 771.117, CEs are divided into two groups based on the action's potential for impacts. The first group consists of categories of actions that experience has shown almost never cause significant environmental impacts. These categories involve minor construction activities and activities that do not lead to construction. They are listed in subsection (c) of 23 CFR 771.117. These actions are automatically classified as CEs, except where unusual circumstances occur. The determination that the action is excluded must be documented by the completion of the CE/CE form.
The second group of CEs consists of actions that normally do not involve significant impacts, but may, depending upon circumstances, have the potential to cause significant environmental impacts. Subsection (d) of 23 CFR 771.117 lists examples of actions generally found appropriate for CE classification. Because of the potential for significant impacts, these actions require some documentation in order to determine if the CE classification is proper. This second group of actions is not limited to the specific activities listed in subsection (d) and can include additional actions of a similar type or scope of work.
Remember a categorical exclusion from NEPA does not exclude a project from the other federal or state environmental requirements for permits or consultation, except as provided in the other agreements such as the Section 106 Programmatic Agreement. Formal consultation with federal resource or regulatory agencies is carried out by FHWA or the Department as assigned. All environmental consultation requirements, including consultation pursuant to Section 7 of Federal Endangered Species Act and Section 106 of the National Historic Preservation Act, must be met before FHWA or the Department as assigned will make an exclusion determination.
There are two general means of categorically excluding a project under NEPA: 1) 23 USC 326 categorical exclusions, and 2) 23 USC 327 categorical exclusions. To aid in determining which type of categorical exclusion to use, to help document the CE determination, and to document compliance with other federal requirements, the Categorical Exclusion checklist must be used. The Categorical Exemption/Categorical Exclusion (CE/CE) form must be used to document the CE determination and address the provisions of the CE Assignment and the NEPA Assignment MOUs.
23 USC 326 CE
The California Department of Transportation (Department) and the Federal Highway Administration (FHWA) renewed the Memorandum of Understanding (CE Assignment MOU) pursuant to 23 USC 326.
The 23 USC 326 CE Assignment MOU assigns to the Department authority and responsibility for CE determination under the 23 CFR 771.117 (c) list and 23 CFR 771.117(d) list, plus those activities specifically listed in Appendix A – Assigned Categories of Activities of the CE Assignment MOU. Appendix A – Assigned Categories are:
- Construction, modification, or repair of stormwater treatment devices (e.g. detention basins, bioswales, media filters, infiltration basins), protection measures such as slope stabilization, and other erosion control measures.
- Replacement, modification, or repair of culverts or other drainage facilities.
- Projects undertaken to assure the creation, maintenance, restoration, enhancement, or protection of habitat for fish, plants, or wildlife (e.g., revegetation of disturbed areas with native plants species; stream or river bank revegetation; construction of new, or maintenance of existing fish passage conveyances or structures; restoration or creation of wetlands).
- Routine repair of facilities due to storm damage, including permanent repair to return the facility to operational condition that meets currents standards of design and public health and safety without expanding capacity (e.g. slide repairs, construction or repair of retaining walls).
- Routine seismic retrofit of facilities to meet current seismic standards and public health and safety standards without expansion of capacity.
- Air space leases that are subject to Subpart D, Part 710, Title 23, Code of Federal Regulations.
- Drilling of test bores/soil sampling to provide information for preliminary design and for environmental analyses and permitting purposes.
The project must fall within a category specifically listed in order to qualify for a 23 USC 326 CE under the 23 CFR 771.117 (c) list, 23 CFR 771.117(d) list, plus those activities listed in Appendix A - Assigned Categories of Activities of the CE Assignment MOU. If the project qualifies for a CE determination under 23 USC 326, the Department will assume not only responsibility for preparing and approving the CE but will also be responsible under applicable federal laws for environmental review, consultation and other related actions. The one exception to this is for government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m). For a complete list of FHWA’s responsibilities assigned to the Department, please see Appendix B of the CE Assignment MOU. If the proposed project does not qualify for a 23 USC 326 CE, then determine whether it meets the requirements to be categorically excluded under the NEPA Assignment MOU.
23 USC 327 CE
For projects that are not on the ‘c’ or ‘d’ list or the Appendix A list, but for which a CE classification is appropriate under 23 CFR 771.117 ‘a’ and ‘b’, the Department will assume CE responsibility under NEPA Assignment (23 USC 327). The Department has also assumed the USDOT Secretary’s responsibilities for environmental review, interagency consultation, and other regulatory compliance-related action pertaining to the review or approval of NEPA Assignment (23 USC 327) CEs. See Section 3.2 of the Pilot Program MOU for the full list of responsibilities assumed.
FHWA regulation 23 CFR 771.117(b) provides that any action which normally would be classified as a CE but could involve unusual circumstances require the Department to conduct appropriate environmental studies to determine whether a categorical exclusion is proper. Unusual circumstances include actions that involve:
- Significant environmental impacts;
- Substantial controversy on environmental grounds;
- Significant impact to properties protected under 4(f) of the USDOT Act or section 106 National Historic Preservation Act;
- Inconsistencies with any Federal, State or local law relating to environmental impacts.
The type and scope of the studies necessary to determine the appropriateness of a CE will vary with the facts and circumstances of each situation. If the studies conclude that a CE is not appropriate, either an environmental assessment or environmental impact statement will need to be prepared. See SER, Vol 1, Chapters 31 and 32 respectively.
An accurate and complete project description is important in establishing that the proposed action is consistent with the requirements of 23 CFR 771.117 and the CE Assignment (23 USC 326) MOU or NEPA Assignment (23 USC 327) MOU. The project description should fully describe the action to be undertaken, including the purpose and need, location, project limits (logical termini/independent utility), construction activities such as shoulder backing, culverts, staging areas and facilities, disposal and borrow sites required, any right-of-way requirements (such as acquisition), utility relocations, and construction activities that may require temporary facilities such as roads, detours, or ramp closures. Any state or federal permit or consultation requirements should be noted.
Consideration must be given to compliance with NEPA requirements related to connected actions and segmentation (i.e. the project must have independent utility, connect logical termini when applicable, and not restrict further consideration of alternatives for other reasonably foreseeable transportation improvements) (FHWA Final Rule, “Background,” Federal Register Vol. 79, No. 8, January 13, 2014).
Sometimes technical studies may be needed to determine whether the project meets the conditions for a 23 USC 326 or 23 USC 327 CE. Any environmental studies and state or federal permit or consultation requirements should be identified and initiated early in the process. Technical studies may be as simple as documentation of a field review or consist of a detailed report requiring weeks or months to complete. When technical studies are prepared for local assistance projects, the Department's district environmental staff reviews the reports for completeness and sufficiency. Under both the 23 USC 326 and 23 USC 327 MOUs, technical studies prepared pursuant to other federal agency permit/consultation requirements, including, but not limited to endangered species consultation (U.S. Fish and Wildlife Service/NOAA Fisheries), waters of the U.S. permitting (U.S. Army Corps of Engineers), Section 4(f) consultation (Department of Interior), and/or historic properties consultation (State Historic Preservation Officer) are prepared and approved in the district/region. The Categorical Exclusion Checklist is used to document compliance with laws and regulations when making a NEPA CE determination. The checklist must be completed for each project and included in the project environmental file. The checklist includes:
- All designated CE actions;
- The CE "unusual circumstances" from 23 CFR 771.117(b);
- Other federal environmental laws, regulations, and Executive Orders that were considered in reaching the CE determination.
Under the 23 USC 326 CE Assignment MOU, the Department has been assigned authority and responsibility for making the project's regional air quality conformity determination, as well as any needed project-level (Hot Spot) conformity determination. The air quality conformity findings checklist must also be completed to summarize and document the conformity analysis and determination for CEs. This checklist is to be completed for each project and included in the project environmental file.
Under the 23 USC 327 NEPA Assignment MOU, the Department has not been assigned air quality conformity determinations; for 23 USC 327 CEs, coordination with FHWA is needed to obtain the air quality conformity determination. FHWA's air quality conformity determination must be made by FHWA before the 23 USC 327 CE can be signed and approved by the Department. See the Air Quality Section of Chapter 38, NEPA Assignment for additional details on coordinating with FHWA to obtain the conformity determination.
Under 23 USC 326, the Department will fulfill all of FHWA’s current roles and responsibilities for CEs assigned under the 23 USC 326 CE Assignment MOU. If the project qualifies for a CE determination under 23 USC 326, the Department will assume not only responsibility for preparing and approving the CE but will also be responsible under applicable federal laws for environmental review, consultation and other related actions. The one exception to this is for government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m). For a complete list of FHWA’s responsibilities assigned to the Department, please see Appendix B of the CE Assignment MOU. The Department is required to follow FHWA’s formal guidance and policies, relating to environmental review matters, which are posted on the USDOT and FHWA website and contained in the FHWA Environmental Guidebook . For interagency agreements solely between the Department and FHWA, the assumption of FHWA responsibilities has automatically been assigned. If the interagency agreement involves signatories other than the FHWA and the Department, then the FHWA and the Department will work to obtain any necessary consents or amendments. See Chapter 38, Interagency Agreements for additional details. The Department is also assigned responsibility for preparing and approving any needed reevaluation of the 23 USC 326 CE.
In no case will the Department categorically exclude a project that is found to have significant impacts on the environment, either individually or cumulatively, but otherwise meets the definition of a CE. When significant impacts are known or suspected an Environmental Assessment (EA) or Environmental Impact Statement (EIS), as appropriate, will be prepared.
The CE/CE form is used to document the NEPA CE determination and address the provisions of the CE Assignment and the NEPA Assignment MOUs.
For State Highway System (SHS) projects, the CE decision for all of the assigned categories will be approved by the Department’s District Environmental Office Chief or Senior Environmental Planner supervising the staff that performed the work, and by the Department’s Project Manager. The Department’s Senior Environmental Planner and the Department’s Project Manager will sign the CE/CE form. Signature authority for the CE/CE form cannot be delegated below the Senior Environmental Planner classification.
This same process will also be undertaken for Local Assistance projects. The Department, rather than FHWA, will review and sign the Local Assistance PES form to concur in the class of action and necessary field studies. For Local Assistance projects, the local agency and/or its consultants will conduct the field studies and prepare the technical memoranda/studies for review and approval by the Department. The District Local Assistant Engineer (DLAE) and the District Senior Environmental Planner will sign the Local Assistance CE once necessary field studies and coordination with resource agencies are complete. Again, signature authority for the CE/CE form cannot be delegated below the Senior Environmental Planner classification.
The Department must maintain electronic and paper project records and general administrative records pertaining to its CE Assignment and NEPA Assignment responsibilities. The records must be available for inspection by the FHWA at any time. The Department must provide the FHWA with copies of any documents the FHWA may request. The Department must retain those records, including all letters and comments received from governmental agencies, the public, and others about the performance of activities assigned under this MOU, for a period of no less than three (3) years after completion of project construction. This 3-year retention provision does not relieve the Department of its project or program record keeping responsibilities under 49 CFR 18.42 or any other applicable laws, regulations, or policies. The project record will include, at minimum, the CE, all supporting documentation and the CE checklist.