Chapter 38 - NEPA Assignment

What does this topic include?

This chapter discusses the policy and procedures for compliance with the National Environmental Policy Act (NEPA) and other federal environmental laws, regulations, and executive orders for projects assigned to Caltrans under:

  1. Title 23 United States Code Section 327 (23 USC 327, hereinafter 23 USC 327) allows the United States Department of Transportation (USDOT) Secretary, acting through Federal Highway Administration (FHWA), to permanently assign the responsibilities for NEPA and other federal environmental laws to Caltrans through a memorandum of understanding (MOU), which became effective October 1, 2012 - and was replaced by a December 23, 2016 MOU that is renewable every five years (327 MOU).
  2. Title 23 USC Section 326 (23 USC 326, hereinafter 23 USC 326) allows the USDOT Secretary, acting through FHWA, to assign responsibilities for Categorical Exclusion determinations to Caltrans through a MOU, which became effective June 7, 2007, and is renewed every three years (CE Assignment MOU).
  3. The term "NEPA Assignment" refers to Caltrans responsibilities under both the 327 and CE Assignment MOUs.

Lead Agency Decision Tree for FHWA or Caltrans (as Assigned) Actions

View the Agency Decision Tree (PDF)

Background 

Title 23 USC 327

327 MOU Extended

On December 8, 2021 FHWA extended the current 327 MOU Assignment program through April 29, 2022. Caltrans and FHWA are working to execute the new MOU prior to that deadline in order to continue Caltrans’ assigned and assumed responsibilities under the MOU.

California participated in the "Surface Transportation Project Delivery Pilot Program" (Pilot Program) pursuant to 23 USC 327, for more than five years, beginning July 1, 2007 and ending September 30, 2012. Under the 2007 Pilot Program MOU, FHWA assigned, and Caltrans assumed, all of the USDOT Secretary's responsibilities under NEPA. The Moving Ahead for Progress in the 21st Century Act (MAP-21) amended 23 USC 327 to establish a permanent Surface Transportation Project Delivery Program. As a result, on October 1, 2012, Caltrans entered into a MOU with FHWA that bridged the Pilot Program MOU with establishment of the permanent program. Under the permanent program, the 327 MOUs  are renewed every 5 years. The most recent MOU under the permanent program is dated December 23, 2016.

The 327 MOUs, under the permanent program, do not change Caltrans’ authority as specified in the Caltrans May 21, 2007 Pilot Program Application, the Pilot Program MOU, and subsequent MOUs or amendments. In summary, Caltrans continues to assume FHWA responsibilities under NEPA and other federal environmental laws in the same manner as was assigned under the Pilot Program, with minor changes. FHWA assigned and Caltrans assumed all of the USDOT Secretary's responsibilities under NEPA. This assignment includes projects on the State Highway System and Local Assistance Projects off of the State Highway System within the State of California, except for certain Categorical Exclusions that FHWA assigned to Caltrans under the CE Assignment MOU, projects excluded by definition, and specific project exclusions. The 327 MOU identifies FHWA's and Caltrans' roles and responsibilities, describes requirements, and officially extends Caltrans' implementation of the Pilot Program application. The permanent program revised the Pilot Program in minor ways, as listed below:

  • Caltrans may use federal funds for attorneys' fees attributable to program activities;
  • Caltrans will perform under revised monitoring requirements;
    • FHWA audits are no longer required; however, FHWA will conduct two monitoring reviews during the 5-year term of the MOU;
    • Caltrans will provide FHWA with self-monitoring reviews once a year;
    • Caltrans will provide FHWA with approval and decision reports once a year;
  • The program is renewable for a term of not more than five years; and
  • Under certain conditions, states may terminate their participation in the program.

Title 23 USC 326 CE Assignment

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]; and April 18, 2019) 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 three years.

Assignment of Federal Laws Other Than NEPA

For both the 23 USC 327 and 23 USC 326 assignments, Caltrans also assumed the USDOT Secretary's responsibilities for environmental review, interagency consultation, and regulatory compliance for the review and/or approval of projects. Caltrans has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the 327 MOU (see also Appendix B of the CE Assignment MOU). Caltrans is responsible for complying with the requirements of all applicable environmental laws and regulations regardless of inclusion on the list of FHWA responsibilities assigned.

Under the 327 MOU, FHWA's air quality conformity responsibilities under the Federal Clean Air Act (42 USC 7506(c)) may not be assigned to Caltrans (327 MOU 3.2.4). However, air quality conformity determinations for CEs under the CE Assignment MOU have been assigned to Caltrans (CE Assignment MOU, Appendix B).

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), may not be assumed by Caltrans under either the 327 MOU (3.2.3) or the CE Assignment MOU (II.B.1). FHWA remains responsible for all government-to-government consultation including initiation of tribal consultation. However, a notice from Caltrans to an Indian tribe advising the tribe of a proposed activity is not considered "government-to-government consultation." If FHWA determines, based on the consultation process, that Caltrans has adequately resolved any project-specific tribal issues or concerns, then the FHWA's role in the environmental process shall be limited to carrying out the government-to-government consultation process.

Assigned and Excluded Highway Projects

As referenced in the 327 MOU, Caltrans' assumption of responsibilities applies to the following classes of actions (The MOU may also identify specific projects that are excluded from assumption.) (327 MOU 3.3.1):

  • All Class I, or environmental impact statement (EIS) projects, both on the State Highway System and Local Assistance Projects off the State Highway System;     
  • All Class II, or Categorically Excluded, projects that do not qualify for assignment of responsibilities pursuant to the CE Assignment MOU, both on the State Highway System and Local Assistance projects off the State Highway System;
  • All Class III, or environmental assessment (EA) projects, both on the State Highway System and Local Assistance projects off the State Highway System. 

Projects meeting the following criteria are excluded from NEPA Assignment:

  • Transit projects funded, in whole or in part, by the Federal Transit Administration (FTA) under Chapter 53 of Title 49 of the United States Code.
  • Projects funded by the Federal Lands Highway Program unless Caltrans designs and constructs the project; and
  • Projects involving international border crossings and projects that cross state boundaries.

Responsibilities and Requirements

Caltrans is solely liable and solely responsible for carrying out all of the USDOT Secretary's responsibilities it has assumed under NEPA Assignment, subject to the limitations of the Eleventh Amendment waiver of sovereign immunity. FHWA and USDOT have no responsibility or liability for the performance of the responsibilities assumed by Caltrans, including any decision or approval made by Caltrans while participating in NEPA Assignment (327 MOU 4.3.1 and CE Assignment MOU IV.F.

Caltrans has committed to maintaining adequate organizational and staff capability, including competent and qualified consultants where necessary or desirable, to effectively carry out the responsibilities it has assumed under NEPA Assignment. This includes, without limitation (327 MOU 4.2.2; CE Assignment MOU IV.C.1):

  • Using appropriate environmental technical and managerial expertise;
  • Devoting adequate staff resources; and
  • Demonstrating, in a consistent manner, the capacity to perform Caltrans' assumed responsibilities under the MOUs and applicable federal laws.

In assuming the USDOT Secretary's responsibilities under NEPA Assignment, Caltrans is subject to the same procedural and substantive requirements that apply to the USDOT Secretary in carrying out these responsibilities. Such procedural and substantive requirements include federal laws, federal regulations, Executive Orders, policy and guidance and interagency agreements such as programmatic agreements, memoranda of understanding, memoranda of agreement, and other similar documents that relate to the environmental review process (327 MOU 5.1.1; CE Assignment MOU II.C and IV.A).

Official USDOT and FHWA formal guidance and policies relating to environmental review matters are posted on FHWA's website or sent to Caltrans electronically or in hard copy (327 MOU 5.1.2 and 326 MOU IV. A.2).

FHWA will use its best efforts to ensure that any new or revised FHWA policies and guidance that are final and applicable to Caltrans' performance under NEPA Assignment are communicated to Caltrans within 10 days of issuance. Delivery may be accomplished by e-mail, mail, Web posting, or publication in the Federal Register. If communicated to Caltrans by e-mail or mail, such material may be sent either to the party specified in the MOUs to receive notices, or to the Chief of Caltrans' Division of Environmental Analysis (327 MOU 5.1.3; CE Assignment MOU IV.A.3).

For purposes of carrying out the responsibilities assumed under NEPA Assignment, Caltrans is deemed to be acting as the FHWA with respect to the environmental review, consultation, and other related actions required under those responsibilities (327 MOU 5.3.1; CE Assignment MOU II.A).

Caltrans will make all reasonable and good faith efforts to work with affected parties and attempt to resolve any and all conflicts during the consultation and environmental review process (327 MOU 6.3.1; CE Assignment MOU II.D).

Involvement with FHWA

FHWA will not provide any project-level assistance to Caltrans in carrying out any of the responsibilities it has assumed under NEPA Assignment. Project-level assistance includes any advice, consultation, or document review with respect to the discharge of such responsibility for a particular highway project. However, project-level assistance does not include process or program level assistance, discussions concerning issues addressed in prior projects, interpretations of any applicable law contained in Titles 23 or 49 of the United States Code, interpretations of any FHWA or USDOT regulation, or interpretations of FHWA or USDOT policies or guidance (327 MOU 8.1.1; CE Assignment MOU XI.A).

FHWA may assist Caltrans in evaluating its environmental program and developing or modifying any of its processes or procedures to carry out the responsibilities it has assumed under NEPA Assignment, including, but not limited to, those processes and procedures concerning Caltrans' consultation, coordination, and communication with other federal agencies (327 MOU 8.1.4).

Federal Court Jurisdiction

In order for Caltrans to assume sole responsibility and liability for its NEPA actions and decisions, and be subject to federal court jurisdiction, California was required to waive its 11th amendment right to sovereign immunity from citizens' suits brought in federal court, for the narrow purposes of NEPA Assignment. From the initiation of the NEPA Assignment Program through the end of 2019, the enabling state legislation for this waiver had been subject to a series of sunset clauses that stipulated a limited timeframe for the waiver. However, on July 31, 2019, as enacted through Senate Assembly Bill 252, Section 820.1 of the California Streets and Highways Code was amended to provide California with a permanent waiver of sovereign immunity effective January 1, 2020.

The State of California and Caltrans consent to and accept the exclusive jurisdiction of the federal courts over any matter arising out of or relating to NEPA Assignment including without limitation, any action for compliance, discharge, and/or enforcement of any of the responsibilities assigned by FHWA and assumed by Caltrans to the same extent that FHWA would be subject to federal court jurisdiction concerning any such responsibility. This consent to federal court jurisdiction remains valid after termination of NEPA Assignment or after re-assumption of the USDOT Secretary's responsibilities by the FHWA, for any decision or approval made by Caltrans pursuant to an assumption of responsibility during Caltrans' participation in NEPA Assignment (327 MOU 4.3.1; CE Assignment MOU V.B).

Litigation

Caltrans is required to defend, at its own expense, all claims brought in connection with the performance or non-performance of any responsibility assumed and discharged under NEPA Assignment, including claims concerning Caltrans' performance or nonperformance of such responsibilities while participating in NEPA Assignment. In the event of litigation, Caltrans will provide qualified and competent legal counsel, including outside counsel if necessary (327 MOU 6.2.2; CE Assignment MOU IV.G.2). Other requirements in the event of litigation are presented in Section 6.2 of the 327 MOU and in Section IV of the CE Assignment MOU.

Integrated Quality Control/Quality Assurance Review Procedures

The purpose of Caltrans’ quality control/quality assurance process is to ensure that all Caltrans’ environmental documents comply with the Council of Environmental Quality’s (CEQ’s) and FHWA’s NEPA regulations; FHWA policies and guidance; and applicable federal environmental laws, executive orders, and regulations. Caltrans implements an integrated process that begins during the K Phase (Project Initiation Document) and culminates in the quality control review of all State Highway System and Local Assistance environmental documents. Under the integrated review process, three early coordination and review steps are implemented prior to preparation of the environmental document. These steps are then followed by the key component of the quality control/quality assurance process, District/Region review and as applicable, Headquarters Environmental and Legal review, of the environmental documentation. The six steps of the integrated process are summarized below: 

1. Project Initiation: Collaboration and review of pre-project (K Phase) documentation such as Project Initiation Document (PID), Preliminary Environmental Analysis Report (PEAR) or Preliminary Environmental Study (PES);

2. Preliminary Environmental Activities: Review and approval of project scope and alternatives, purpose and need, scope of environmental studies, type of environmental documentation, and schedule at “Begin environmental;”

3. Technical Studies: Review of resource-specific technical studies that are prepared to support the environmental document;

4-6. Environmental Documentation Quality Control/Quality Assurance Review Process: Review of environmental documentation.

The three early coordination and review steps help facilitate a more efficient quality control review of the environmental document and are necessary to achieve the required environmental documentation review timelines. Early collaboration also helps to ensure adequate resourcing and to avoid unexpected issues or unanticipated studies during the environmental compliance process. Without the prior completion of Steps 1-3, the review timeframes set forth for the review of technical studies and environmental documentation are not guaranteed. 

A key component of Steps 4-6 is the review of all NEPA and joint CEQA/NEPA documents to ensure that they follow the applicable annotated outline posted on the Forms and Templates page. Annotated outlines support consistency, help facilitate project review, and ensure that environmental documents follow Caltrans, state, and federal standards. Occasionally, permission may be given to deviate from the annotated outline by request from the District Environmental Deputy to the Environmental Management Office Chief.

An Environmental Document Review Checklist is also available to the District/Region as an optional tool for use in preparing environmental documents. Its completion is not required and as such, the Checklist, when used, does not have to be filed in the project’s environmental folder as part of the Uniform Filing System. Use of the Checklist is encouraged for newer environmental planners who are learning the required content of environmental documents.

Step-by-Step Procedures

All EISs, complex EAs, routine EAs, and Categorical Exclusions are required to undergo Steps 1, 2 and 3. Implementation of Steps 4, 5, and 6 depends on the type of NEPA approval, as summarized below:

  • Environmental Impact Statements and Individual Section 4(f) Evaluations: EISs are reviewed concurrently by the Headquarters Environmental interdisciplinary team, led by the Headquarters Environmental Coordinator and the District/Region, prior to public circulation or final approval of the environmental document. All EISs are then reviewed by the appropriate Legal Office, which must complete a Legal review for the Draft EIS and determine legal sufficiency for the Final EIS before the EIS may be signed. Once the quality control reviews have been completed, the Headquarters Environmental Coordinator recommends to the District Director or designee that the document is ready for signature. This may occur in person or through e-mail, memo, or completion of the Internal Quality Certification Form or District Quality Control Checklist Form. See Step 4 for a description of the internal certification form. See Signature Authorities section below for more information on environmental document signature protocols.

The review requirements for an Individual Section 4(f) Evaluation are the same as those for an EIS.

  • Complex EAs: Complex EAs are defined as those EAs that have complex issues or impacts such as 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. The District Environmental Deputy or designee, with concurrence from the Headquarters Environmental Coordinator, determines which documents will be processed as complex EAs due to their complex technical issues or controversial nature. For Local Assistance projects, the District Local Assistance Engineer (DLAE) and a Senior Environmental Planner determine which EAs are complex EAs with the concurrence of the Headquarters Environmental Coordinator.

As part of the Class of Action determination for complex EAs, the District/Region and Headquarters Environmental Coordinator determine the specific technical studies and associated environmental document topical sections that the Headquarters Environmental Coordinator will review. The Headquarters Environmental Coordinator has final decision-making authority in identifying these technical studies/environmental document sections. 

Although Legal reviews of complex EAs are not required, it is encouraged. At the request of the District/Region and as time permits, Legal reviews of complex EAs are conducted.

Similar to EISs, once the quality control reviews have been completed, the Headquarters Environmental Coordinator recommends to the District Director or designee that the document is ready for signature.

  • Routine Environmental Assessments: Routine EAs undergo the same District/Region reviews as complex EAs and EISs, but Headquarters and Legal review are not required. Once the quality control review has been completed for routine EAs and Findings of No Significant Impact (FONSI), the Senior Environmental Planner recommends to the District Director or designee that the document is ready for signature. This may occur in person or through e-mail, memo, or completion of the District Quality Control Checklist Form.
  • Categorical Exclusions: For categorically-excluded projects, the District/Region prepares, reviews, and approves the Categorical Exemption/Categorical Exclusion Determination form under Step 4. Steps 5 and 6 do not apply to Categorical Exclusions.

The integrated review process is presented in the Integrated Quality Control/Quality Assurance Review Procedures flowchart (PDF) | ADA compliant version (PDF) and described, step by step, below. 

 

Step 1: Project Initiation

Step 1 involves early collaboration and review by the various functional divisions of the District/Region during the project initiation phase of a project. PIDs, including environmental supporting documentation such as the PEAR and PES form, are prepared; reviewed; revised, as needed, until agreement is reached; and finalized. Since a project PID describes key issues and constraints regarding the environmental scope, schedule, and estimated cost of a project, early buy-in on these topics is critical to provide a sound basis for the commitment of project funding and preparation of technical studies and environmental documentation. The PID also identifies the level of environmental document. Therefore, in addition to the preparation and review of the PEAR or PES, District/Region environmental review of both Caltrans- and consultant-prepared draft PIDs are needed. If an EIS, Individual Section 4(f) Evaluation, or complex EA is being prepared, then collaboration with the Headquarters Environmental Coordinator is required in order to obtain the Class of Action Concurrence. Coordination with Legal is also encouraged during Step 1 if the project will eventually require Legal review and/or if the terms of the cooperative agreement are complex and non-standard. Environmental review of any needed cooperative agreement between Caltrans and a local agency or other non-state agency is recommended as a best practice.

As noted above, as part of the Class of Action determination for complex EAs, the Headquarters Environmental Coordinator approves the specific technical studies and associated environmental document topical sections that the Headquarters Division of Environmental Analysis (DEA) will review.

Review period: As determined by District/Region, Headquarters Environmental Coordinator, and Legal, as applicable.

Step 2: Preliminary Environmental Activities

The purpose of early coordination for “begin environmental” documentation is to establish project team concurrence on a well-defined purpose and need statement, project alternatives, and an environmental scope that is tied to a reasonable schedule and cost estimate, which will form the basis for preparation of technical studies and environmental documentation. For both Caltrans- and consultant-prepared environmental documents, the District/Region reviews the purpose and need statement, proposed alternatives, preliminary scope, study methodologies, schedule, and cost, and revises these items, as needed, until agreement is reached. If an EIS, Individual Section 4(f) Evaluation, or complex EA is being prepared, then the Headquarters Environmental Coordinator and Legal (if an EIS) must also be invited to participate in Step 2.

Review period: 22 business days for initial review of “Begin Environmental” information. 10 business days for revisions and review of each iteration of revised “Begin Environmental” information.

Step 3: District/Region Review of Technical Studies (Concurrent Headquarters Environmental Review, if Required)

The Environmental Planner, overseeing preparation of the environmental document, and the Environmental Planner’s Senior review Caltrans- and consultant-prepared technical studies for the following:

  • Accurate purpose and need and project description/alternatives information;
  • Consistency between technical studies in the project description components;
  • Consistency between technical studies in the alternatives analyzed and their nomenclature;
  • Consistency between technical studies in the analysis and characterization of impacts;
  • Consistency between technical studies in the methods used to analyze impacts and in the scenarios analyzed, as applicable;
  • Consistency between technical studies in the description of avoidance, minimization, and/or mitigation measures, as applicable;
  • Accuracy of information and analysis;
  • Documentation of compliance with other federal laws and regulations;
  • Consistency with the SER.

If Headquarters Environmental Coordinator review of the environmental document is required (EISs, Individual Section 4(f) Evaluations, and those environmental document sections of complex EAs to be reviewed by DEA), then the Headquarters’ interdisciplinary team, led by the Headquarters Environmental Coordinator, must also review the technical studies concurrently with the District/Region. In order to meet the established timeframes for review, it is imperative that the District/Region transmits each technical study to Headquarters, within one day of receipt of each completed technical study or, if it can be arranged, a better practice is that each technical study be distributed to Headquarters and the District/Region simultaneously, as each one is completed. Whatever the means, the following must be submitted to Headquarters (Contact the Headquarters Environmental Coordinator to determine if hard and/or electronic copies are to be sent/emailed.):

  • Transmittal Memo signed by the District/Region Senior Environmental Planner requesting review
  • 1 copy of each technical study (For complex EAs, 1 copy of each technical study reviewed by DEA)

The Headquarters Environmental Coordinator transmits comments to the District/Region upon completion of the reviews, and the Headquarters Environmental Coordinator and the District/Region work together to discuss, collate, and as needed, reconcile any conflicting comments before the combined comments are sent back to the preparer(s). One set of combined comments is forwarded to the environmental document preparer who distributes the comments to the technical study authors, as appropriate.

After discussion and agreement with the technical study authors on needed revisions, the technical study authors revise the technical studies to address comments until the studies are deemed to be complete and final.

Review period: 22 business days for initial District/Region/Headquarters Environmental Coordinator review of technical study(ies). 10 business days for revisions and review of each iteration of revised technical study(ies).

Step 4: External Readiness and District/Region Review of Environmental Documentation (Concurrent Headquarters Environmental Review, if Required)

During Step 4, the District/Region must conduct the following quality control reviews of each Caltrans- or consultant-prepared environmental document for which Caltrans is the NEPA lead agency: technical specialist, technical editor, NEPA quality control reviewer, and Environmental Branch Chief. Headquarters Environmental Coordinator review is also required for EISs, Individual Section 4(f) Evaluations, and those sections of complex EAs to be reviewed by DEA. The role of each of these reviewers and their qualifications are described in the next section, Roles of the Environmental Document Quality Control Reviewers.

Two forms are used to certify that each draft and final environmental document meets professional standards and federal and State requirements and is consistent with the SER and environmental document annotated outlines: the External Readiness Certification Form and the Internal Quality Certification Form. The reviewers sign these forms to certify that the environmental document meets professional standards and federal and State requirements in the reviewer’s area of expertise.

For consultant/local agency-prepared documents, the consultant and local agency review the environmental document and sign the External Readiness Certification Form when it is determined that the administrative version of the draft or final environmental document is complete and ready for Caltrans’ review. If the District/Region finds that a consultant/local agency-prepared environmental document is not complete, the local agency will be notified that the document is incomplete and will not be reviewed until it is complete.

Two external signatures are required on the external readiness form to indicate that the environmental document is ready for submittal to the District/Region for review. The environmental consultant certifies that the environmental document is complete and meets FHWA and all applicable federal and state environmental requirements; that all public participation has been completed; and that all consultation and coordination required through the current stage of the project development process have been completed and documented. The local agency representative certifies that the document is complete and that the local agency understands that an incomplete or substantially non-compliant document is subject to being returned without being reviewed. The local agency transmits the signed form, once for each environmental document, with the first iteration of the administrative version of the document to the District/Region.

The District/Region, as well as the Headquarters Environmental Coordinator, as applicable, complete and sign the Internal Quality Certification Form at the conclusion of Caltrans’ internal review process for environmental documents. For consultant/local agency-prepared documents, this form serves to document Caltrans’ independent review of the environmental document. The internal certification form is signed, once, at the end of the review process for each draft and final environmental document.

If the document is a routine EA, the District/Region staff signs the Internal Quality Certification Form which completes the process. The Environmental Branch Chief is the last to sign the form. The other reviews may occur in any order that is determined to be most appropriate by the District/Region.

If the document is a complex EA, EIS, or Individual Section 4(f) Evaluation, Headquarters Environmental Coordinator review is required. For review of stand-alone Individual Section 4(f) Evaluations that are not included within the environmental documents, check "Draft" and "Stand-Alone Individual Section 4(f)" under “Document Type” on the Internal Quality Certification form (leave the NEPA document type unchecked) and enter “N/A” in the Technical Specialist and Technical Edit Reviewer certifications, or manually write "N/A" across these sections.

The Headquarters Environmental Coordinator leads an interdisciplinary team of Headquarters resource specialists to review the EIS and those sections of the complex EA to be reviewed by DEA, concurrently with the District/Region’s review. As with the technical studies, the Headquarters Environmental Coordinator transmits comments to the District/Region upon completion of the review, and the Headquarters Environmental Coordinator and the District/Region work together to discuss, collate and, as needed, reconcile any conflicting comments so that one set of combined comments is forwarded to the environmental document preparer. Comments received from all reviewers form the basis of revisions to the administrative version of the environmental document. Revisions are completed once the reviewers and Headquarters Environmental Coordinator (if applicable) are in agreement that the environmental document is complete.

If the document is a complex EA and the District/Region has opted to not have Legal review the document, then the District/Region staff and the Headquarters Environmental Coordinator sign the Internal Quality Certification Form, completing the process. If the document is an EIS or Individual Section 4(f) Evaluation or if the District/Region has opted to have a complex EA reviewed by Legal, then the District/Region and the Headquarters Environmental Coordinator indicate their readiness to approve the document for public circulation and the document is then transmitted to Legal for their review. Only after review and approval to circulate an EIS or Individual Section 4(f) Evaluation from Legal would the Environmental Branch Chief and the Headquarters Environmental Coordinator then sign the Internal Quality Certification Form.

In order to meet the established timeframes for review, it is imperative that the District/Region transmits the following to Headquarters within one day of receipt of the completed environmental document/Individual Section 4(f) Evaluation, or if it can be arranged, a better practice is have the items sent to Headquarters and the District/Region simultaneously. Whatever the means, the following must be submitted to Headquarters (Contact the Headquarters Environmental Coordinator to determine if hard and/or electronic copies are to be sent/emailed.):

  • Transmittal Memo signed by the District/Region Senior Environmental Planner requesting review
  • 3 copies of the administrative environmental document or Individual Section 4(f) Evaluation
  • 1 copy of each technical study (For complex EAs, 1 copy of each technical study reviewed by DEA)
  • Completed and signed External Readiness Certification Form, if applicable

For Local Assistance projects, the environmental document is also routed to the District DLAE prior to the quality control review. The DLAE also receives a copy of all review comments.

For Local Assistance projects and locally-sponsored projects, both the external and internal certification forms must be retained in Caltrans’ project environmental file.

For additional information regarding the quality control review process, please see the policy memo under NEPA Process Improvement Team on the Policy Memo page.

Review period: 22 business days for initial District/Region/DEA review of environmental documentation. 10 business days for revisions and review of each iteration of revised environmental documentation.

Step 5: Legal Review of Environmental Documentation (EISs and Individual Section 4(f) Evaluations)

The Legal Office reviews all EISs and Individual Section 4(f) Evaluations. To initiate formal Legal Office review, the District/Region submits the following to Legal (Contact the Legal Office to determine if hard and/or electronic copies are to be sent/emailed.):

  • Transmittal Memo signed by the District/Region Senior Environmental Planner requesting Legal review in the case of a Draft EIS or draft Individual Section 4(f) Evaluation, or legal sufficiency review, in the case of a Final EIS or Final Individual Section 4(f) Evaluation
  • 1 copy of the administrative environmental document or Individual Section 4(f) Evaluation
  • 1 copy of each technical study
  • Completed and signed External Readiness Certification and Internal Quality Certification Forms, as applicable

Legal reviews commence the first business day after receipt of the completed package during regular business hours.

Legal provides its Legal review or legal sufficiency comments to the District/Region with a copy to the Headquarters Environmental Coordinator. For environmental documents on Local Assistance projects, the Legal Office also provides its comments to the DLAE.

After the District/Region has addressed Legal’s comments, the District/Region submits the revised document to Legal and the Headquarters Environmental Coordinator, together with a comments/responses matrix. Revisions are complete once the Headquarters Environmental Coordinator and Legal determine that Legal comments have been adequately addressed. The Headquarters Environmental Coordinator works with the District/Region to resolve issues identified in Legal’s comments and to ensure the document has been revised accordingly. A meeting or workshop may be convened by the Headquarters Environmental Coordinator or the DLAE to facilitate this process.

For those documents that require Legal review or legal sufficiency, the Headquarters Environmental Coordinator cannot sign the Internal Quality Certification Form until Legal has concurred that the document is ready for signature and circulation. No approval action may be taken until both the Headquarters Environmental Coordinator’s quality control and Legal reviews or legal sufficiency are satisfied.

In the event that Legal has no comments on the environmental document or Individual Section 4(f) Evaluation, the Headquarters Environmental Coordinator recommends to the District/Region that the environmental document or evaluation is ready for signature. For Final EISs or Final Individual Section 4(f) Evaluations, where legal sufficiency is involved, Legal provides a legal sufficiency finding.

Review period: Goal of 22 business days for initial legal review of environmental documentation. Goal of 10 business days for revisions and review of each iteration of revised environmental documentation.

Step 6: Sign and Circulate

Completion of the Internal Quality Certification Form by all applicable reviewers constitutes approval to advance the document to signature and circulation. Following the recommendation of the Headquarters Environmental Coordinator that the environmental document is ready for signature and after the Headquarters Environmental Coordinator has signed the Internal Quality Certification Form, the District/Region signs the environmental document and/or FONSI, as applicable, consistent with the Signature Authorities section below, and public circulation begins.

The Record of Decision (ROD) is reviewed and accepted by the Headquarters Environmental Coordinator before it is approved by the District/Region. While Legal review of the ROD is not required by regulation, it is strongly recommended that the ROD be reviewed by Legal. The ROD may not be published sooner than 30 days after the notice of Final EIS is published in the Federal Register.

For combined Final EIS/RODs, the Headquarters Environmental Coordinator and Legal review and accept the Final EIS and the ROD.

Roles of the Environmental Document Quality Control Reviewers

This section describes each of the quality control reviews that must be implemented during Step 4 of the integrated review procedures.  

Technical Specialist Review

The purpose of the technical specialist review is to ensure the accuracy of specific resource studies and technical information summarized in the environmental document. A technical specialist review is to be completed for each resource topic for which a stand-alone technical study was prepared to support the environmental document. The review is to be conducted for those sections in each chapter that contain substantive information about the individual resource or technical area under consideration (e.g., Summary; Affected Environment, Environmental Consequences, and Avoidance, Minimization and/or Mitigation Measures; Cumulative Impacts), and the reviewer is to provide comments as necessary, to ensure the following:

  • Accuracy of the information in the environmental document;
  • Consistency between the technical study and the information as summarized in the environmental document;
  • All avoidance, minimization, and/or mitigation measures are appropriately characterized and are feasible to implement; and
  • All anticipated permit and/or approval actions are accurately identified within the environmental document.

Where there is no coordination involved with an external agency, no comment received on the issue, and no other reason to update the technical specialty information between the draft and final environmental documents, no technical specialist review of that issue is required for the final environmental document. In these cases, completion of the Internal Quality Certification Form is still required. However, on the form, note “Not applicable” or other similar notation for the specific resource/technical specialty area that has not changed.

Reviewer Qualifications: The technical specialist who prepared the technical study or another staff member with equivalent knowledge of the subject. In addition to the environmental functional unit reviews, technical specialist reviews are also conducted by Project Managers, Design Managers, Landscape Architecture, Construction, Maintenance, and Traffic, as appropriate. 

Technical Editor Review

The intent of the technical editing review is to ensure that the document achieves high editorial standards, is consistent with environmental document annotated outlines, and is ready to be released to the public. The technical editor reviews the entire document and undertakes the following:

  • Makes corrections to the text as necessary to assure correct spelling, grammar, punctuation, syntax, and consistent use of terminology;
  • Ensures that typescript, subject headings, headers, footers, and other formatting conventions are being employed in a consistent manner;
  • Ensures that the graphics, tables, and figures are consistent with the text and that important textual references have been included; and
  • Ensures that the document is written clearly and in a consistent voice and that textual information is provided in a concise manner that is easily understandable to the public.

Caltrans' technical editor review is not required for any environmental documents prepared by a local agency or its consultant. The local agency and its consultant are responsible for technical editing of the environmental documents they prepare.

Reviewer Qualifications: A staff member with demonstrated experience in the preparation and/or editing of professional documents of any type, or a professional editor retained through a consultant contract.

NEPA Quality Control Review

The purpose of the NEPA quality control review is to ensure that the project complies with the CEQ's NEPA regulations and FHWA regulations, policies, and standards for the implementation of NEPA, and all other applicable federal environmental laws. The NEPA quality control reviewer provides comments as necessary, to ensure the following:

  • Adequacy of the project's purpose and need statement, logical termini, independent utility, and project description;
  • Completeness of the alternatives analysis, including information supporting the range of alternatives selected for study in the document;
  • All proposed avoidance, minimization, and/or mitigation measures are properly identified, characterized, and are reasonable and practicable to implement;
  • Evidence of coordination with federal, state, and local agencies necessary to comply with federal regulatory requirements;
  • Compliance with FHWA Environmental Impact and Related Procedures (23 CFR 771) and FHWA environmental policies and applicable guidance; and
  • Compliance with other federal laws and regulations, such as Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, Section 404 of the Clean Water Act, Executive Order 11990-Protection of Wetlands, Executive Order 11988-Floodplain Management, and Section 4(f) of the U.S. Department of Transportation Act.  A list of those federal laws for which Caltrans is assuming the responsibilities of the FHWA can be found in the 327 MOU. 

Reviewer Qualifications: The NEPA quality control reviewer must have the following qualifications: (1) at least two years of experience leading the development of, or performing consultant oversight for, transportation project environmental documents in California; (2) demonstrated experience in preparing complex environmental documents or supervisory experience in a unit that reviews EISs or EAs; and (3) certificate of completion from the Caltrans NEPA Compliance Training.

Environmental Branch Chief Review

The supervisor of the primary author of the environmental document or Environmental Planner responsible for oversight of the environmental document conducts the Environmental Branch Chief review. The Environmental Branch Chief shall ensure that all quality control standards are being met for the project, and that the document is technically accurate and consistent with the SER, the annotated outlines, and other applicable guidance. The Environmental Branch Chief review shall provide comments to ensure:

  • The adequacy of the purpose and need statement, logical termini, independent utility, and project description;
  • All project alternatives are adequately described to support anticipated project impacts and proposed avoidance, minimization, and/or mitigation measures;
  • All applicable state and federal laws, regulations, and guidance documents have been adhered to relative to resource issues addressed in the environmental document; and
  • All resource discussions derived from technical studies and memoranda are accurately summarized in the environmental document.

The Environmental Branch Chief must ensure that appropriate staff members have completed all required quality control reviews. The Environmental Branch Chief is the last signature for environmental documents not requiring Headquarters Environmental Coordinator review.

Reviewer Qualifications: This review is to be conducted by the Environmental Branch Chief, a Senior Environmental Planner (or an individual that supervises environmental staff in the preparation of NEPA documents) overseeing the environmental assessment unit of the environmental planner who prepared or was responsible for oversight of the subject environmental document.

Headquarters Environmental Review

The Headquarters Environmental Coordinator reviews EISs, Individual Section 4(f) Evaluations, and those sections of complex EAs identified as needing DEA review. The HQ DEA reviews concurrently with the District/Region. The Headquarters Environmental Coordinator is also responsible for engaging other Headquarters technical specialists in the reviews as appropriate. The Headquarters Environmental Coordinator provides a high-level review for all of the issues that the NEPA quality control reviewer and the Environmental Branch Chief review for.

Reviewer Qualifications: This review is conducted by the Headquarter Environmental Coordinator for the district in which the project is located. For complex EAs, EISs, and Individual Section 4(f) Evaluations, the Headquarters Environmental Coordinator certifies after the Environmental Branch Chief. For those document types that also require legal review, the Headquarters Environmental Coordinator certifies only after Legal has reviewed and agreed that the environmental document is ready for circulation.

Signature Authorities

Complex EA or FONSI: Both the Senior Environmental Planner and the Headquarters Environmental Coordinator recommend to the District Director that the title page or FONSI is ready for signature. The District Director signs the document or may designate signature authority to (1) the Deputy District Director for Environmental Planning or (2) the Environmental Office Chief (Supervising Environmental Planner) managing the environmental unit that prepared the document.

EIS/Record of Decision (ROD): The Deputy District Director and the Headquarters Environmental Coordinator jointly recommend to the District Director that the EIS title page and/or the ROD is ready for signature. The District Director signs the EIS or ROD. This signature may be delegated to the Deputy District Director for Environmental for Draft EISs, but may not be delegated for Final EISs and/or RODs. Any delegation of signature must be in writing.

The District/Region recommendation that the document is ready for signature may occur in person, or through e-mail, memo, or completion of the District Quality Control Checklist Form.  The Headquarters Environmental Coordinator's recommendation may occur through e-mail or memo.

See the Signature Authorities (PDF) for a listing by each document/determination type.

Quality Control Plan

The District/Region may elect to prepare a quality control plan to implement the Quality Control Program Review process.

Internal Conflict Resolution

Under NEPA Assignment, Caltrans has implemented a formal process to be used in rare instances, when necessary to resolve internal conflicts regarding technical or procedural matters related to the environmental review process. An internal standing committee comprised of the following staff will implement this process:

  • At least one Supervising Environmental Planner or above from a District/Region not involved in the project;
  • Headquarters Environmental Coordinator not involved in the project;
  • Chief of the DEA Environmental Management Office, the NEPA Assignment Manager, or if the issue involves special expertise, other appropriate DEA Office Chief; and
  • A representative from Caltrans' Legal Office, to participate as a non-voting advisor to the Committee.

The committee will review issue identification briefing materials or hear presentations of issues and promptly recommend a course of action to the District/Region. If the dispute cannot be resolved through the committee, the issue will go to the Chief of DEA for a final decision. View the diagram of the resolution process (PDF).

Prior Concurrence

For selected projects, "prior concurrence" pursuant to 23 CFR 771.125(c) will be obtained before proceeding with key approvals under NEPA. This approval from Caltrans' Chief of DEA, advised by the Deputy Chief Counsel for Environmental, will ensure that the project and document in question are acceptable from a policy and program perspective. Prior concurrence may apply to Caltrans approvals of Draft and Final EISs; on rare occasions prior concurrence may apply to FONSIs. Projects that require prior concurrence will be decided on a case-by-case basis, based on input from the Districts and the Headquarters Environmental Coordinators, and may include projects that meet one or more of the following criteria:

  • Impacts of unusual magnitude;
  • High level of controversy;
  • Major unresolved issues;
  • Emerging or national policy issues; and/or
  • Issues for which the Districts or Headquarters seek policy assistance.

For projects that have underlying issues related to emerging or national policies such as climate change, mobile source air toxics, and constructive use under Section 4(f) of the U.S. Department of Transportation Act, Caltrans will coordinate with FHWA on the underlying policy issues.

Prior concurrence will apply to projects as determined by the Chief of DEA. Projects may also be recommended for prior concurrence by the Districts/Regions.

Categorical Exclusions

The responsibility for making Categorical Exclusion (CE) determinations has been assigned to Caltrans through the CE Assignment MOU and the 327 MOU.

Title 23 USC 326 allows any state to enter into an MOU with FHWA to assume responsibility for determining whether a proposed project qualifies as a CE specifically designated by the USDOT Secretary. States may also assume federal environmental consultation and coordination responsibilities for those projects. The assigned responsibility for CE determinations is limited to those actions specifically included in the CE Assignment MOU between Caltrans and FHWA: actions on the 23 CFR 771.117 "c" list, actions listed as examples on the 23 CFR 771.117 "d" list, and the additional actions listed in Appendix A of the CE Assignment MOU. Caltrans prepared a background paper (PDF) to support designating the seven additional actions as CEs in Appendix A. The one action that best represents the project and its underlying purpose and need should be selected as the CE category.

The 327 MOU, in addition to assigning Caltrans the authority to approve environmental documents, also assigns Caltrans the authority to approve those categorically excluded activities not covered under the CE Assignment MOU.

Steps 1-4 of the Integrated Quality Control/Quality Assurance Review Procedures also apply to the review and approval of CEs.

Categorical Exemption/Exclusion Form (CE/CE)

The Categorical Exemption/Exclusion Form (CE/CE) must be used to document compliance with laws and regulations when making a CE determination.

If the project is being approved under 23 USC 326, the form requires that the applicable CE activity be identified by number. Based on FHWA's NEPA regulations at 23 CFR 771.117 and Appendix A of the CE Assignment MOU, the planner will identify the applicable activity number from one of the following: (1) the "c" list, (2) the "d" list, or (3) Appendix A of the CE Assignment MOU. Once identified, the applicable activity number will be entered on the CE/CE form. It is anticipated that most projects qualifying for a CE will be approved under CE Assignment provisions.

For those projects not covered under the specified activities of the CE Assignment, the project can be approved under the 327 MOU.

The Categorical Exclusion Checklist may be used as a tool to document compliance with laws and regulations when making a NEPA CE determination. If utilized, the checklist should be included in the project environmental file. The checklist includes:

  • All designated CE actions including specific thresholds that must be met in order to use certain CE actions;
  • The CE "unusual circumstances" from 23 CFR 771.117(b); and
  • Other federal environmental laws, regulations, and Executive Orders that were considered in reaching the CE 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.

Signature Authority

The CE/CE form is used to document the NEPA CE determination and address the provisions of the CE Assignment and 327 MOUs.

The CE/CE form will be approved and signed by both the District Environmental Office Chief or Senior Environmental Planner, and the Project Manager or DLAE, as appropriate. The Senior Environmental Planner signature cannot be delegated below the Senior level.

For more information on Categorical Exclusions, please see the SER, Vol. 1, Chapter 30.

Section 4(f)

The 327 and CE Assignment MOUs assign approval of Section 4(f) Evaluations and determinations to Caltrans, including coordination with those agencies that have jurisdiction over a Section 4(f) resource that may be affected by a project action.

The United States Department of the Interior's Office of Environmental Policy and Compliance was notified of Caltrans' Section 4(f) responsibilities under both the 327 and CE Assignment MOUs.

Under NEPA Assignment, the Deputy District Director for Environmental is authorized to approve individual Section 4(f) Evaluations. In most instances, an individual Section 4(f) Evaluation will be included with the EIS or EA and will be reviewed as part of the larger environmental document.

A stand-alone Individual Section 4(f) Evaluation and individual Section 4(f) Evaluation that is included with a routine EA must be submitted to the appropriate Headquarters Environmental Coordinator and Legal Office for review. No individual Section 4(f) Evaluation may be approved until it has been reviewed and accepted by the Headquarters Environmental Coordinator and Legal review completed (for a draft evaluation) or legal sufficiency determined (for a final evaluation) by the appropriate Legal Office. The submittal requirements for an individual Section 4(f) Evaluation are the same as those for an EIS. Caltrans shall coordinate with the FHWA prior to determining that any action constitutes a constructive use of land from a publicly owned park, public recreation area, wildlife refuge, waterfowl refuge, or historic site (327 MOU 8.1.5).

On the first page of each stand-alone Section 4(f) Evaluation, Caltrans must insert the following language in a way that is conspicuous to the reader (327 MOU 3.2.6):

For 327 MOU projects:

The environmental review, consultation, and any other action required in accordance with applicable Federal laws for this project is being, or has been, carried out by Caltrans under its assumption of responsibility pursuant to 23 U.S.C. 327 and the Memorandum of Understanding dated December 23, 2016 and executed by FHWA and Caltrans.

For CE Assignment MOU projects:

The State has determined that this project has no significant impacts on the environment as defined by NEPA, and that there are no unusual circumstances as described in 23 CFR 771.117(b). As such, the project is categorically excluded from the requirements to prepare an EA or EIS under the National Environmental Policy Act. The State has been assigned, and hereby certifies that it has carried out the responsibility to make this determination pursuant to Chapter 3 of Title 23, United States Code, Section 326 and a Memorandum of Understanding dated April 18, 2019, executed between the FHWA and the State.

The District/Region Senior Environmental Planner is authorized to approve programmatic Section 4(f) Evaluations and de minimis findings. The District/Region is strongly encouraged to request the input of their Headquarters Environmental Coordinator in completing these evaluations.

Chapter 20 of the Standard Environmental Reference provides detailed information regarding processing Section 4(f) Evaluations and the use of individual evaluations, programmatic evaluations, and de minimis findings.

Environmental Document Protocols

Class of Action Determination

The class of action, or the environmental document type for EIS (Class I), or EA (Class III) as defined by 23 CFR 771.115, will be determined by the Deputy District Director for Environmental or designee with concurrence from the Headquarters Environmental Coordinator. For Local Assistance projects, the class of action determination for EIS or EA will be made by the DLAE and a District Senior Environmental Planner or Branch Chief with the concurrence of the Headquarters Environmental Coordinator. Obtaining the concurrence of the Headquarters Environmental Coordinator may be done through an e-mail which includes the project description, proposed class of action, and rationale. The Headquarters Environmental Coordinator's e-mail response will provide concurrence.

CE (Class II) determinations will be made by the District/Region Senior Environmental Planner or Branch Chief. The CE class of action determination is recorded on the CE/CE form itself.

For projects on the State Highway System, the class of action determination will be documented in the Preliminary Environmental Analysis Report (PEAR) if one is prepared for the project. For Local Assistance projects, the determination will be documented in the Preliminary Environmental Study (PES) form.

If the class of action changes after the initial determination and concurrence, any subsequent change in class of action determination must be made by the Deputy District Director for Environmental or designee, with written concurrence from the Headquarters Environmental Coordinator. This applies to EIS (Class I), or EA (Class III) determinations that are changed to CE (Class II) determinations, CE determinations that are changed to an EA or EIS determination, an EIS determination changed to an EA determination or an EA determination upgraded to an EIS, and any change from a "routine" to "complex" EA or vice versa.

Assignment Language for Environmental Documents and Select Technical Studies

The following statement must appear on the cover of each of the following documents prepared under NEPA Assignment: Draft and Final EAs, FONSIs, Draft and Final EISs, Records of Decision, Section 4(f) Evaluations, Section 7 Federal Endangered Species Act biological assessments, and Section 106 National Historic Preservation Act Historic Property Survey Reports (HPSRs). On HPSRs, the statement must appear in section 1, "Undertaking Description and Location, Project Description," of the form:

The environmental review, consultation, and any other actions required by applicable Federal environmental laws for this project are being, or have been, carried out by Caltrans pursuant to 23 U.S.C. 327 and the Memorandum of Understanding dated December 23, 2016, and executed by FHWA and Caltrans.

See the cover sheet of the applicable annotated outline on the SER Forms and Templates for placement of this statement.

Environmental Impact Statement Submittal to U.S. EPA

Following the CEQ’s NEPA regulations at 40 CFR 1506.9, Caltrans is required to submit all EISs, together with comments and responses, to the U.S. Environmental Protection Agency (U.S. EPA) in Washington, D.C. U.S. EPA will prepare a Notice of Availability for publication in the Federal Register. All submissions to U.S. EPA must be made electronically via U.S. EPA's "e-NEPA system." Each District has designated staff with access to the e-NEPA system for document submittals. Please contact your Headquarters Environmental Coordinator for more information. In addition to the e-NEPA submission, two hard copies of the DEIS must be sent to the appropriate U.S. EPA Regional Office.

See SER Forms and Templates for a sample distribution list for a DEIS and a FEIS.

Federal Register Notices

Caltrans does not have the authority to submit documents to the Federal Register, such as the Notice of Intent under 23 CFR 771.123(a) and Notice of Final Agency Action under 23 USC 139(l). Caltrans must transmit these documents to FHWA's California Division Office, and the FHWA will handle publication in the Federal Register on behalf of Caltrans. FHWA is required to submit these documents to the Federal Register within 5 calendar days of receipt. To the extent that the operating procedures of the Government Printing Office and the Federal Register permit, Caltrans will take over these procedures from the FHWA California Division Office. (327 MOU 8.4.1).

FHWA's California Division Office has prepared the Instructions for Submitting Notice of Statute of Limitations (SOL) to the Federal Register, November 15, 2018.

However, for 23 USC 327 projects only, Caltrans does have the authority to submit Environmental Impact Statements directly to U.S. EPA. Caltrans must transmit the Draft, Final, or Supplemental EIS to U.S. EPA. U.S. EPA will prepare the Notice of Availability for publication in the Federal Register.

Reevaluations, Revalidations, and Supplemental Environmental Impact Statements

Under NEPA Assignment, Caltrans prepares and approves revalidation forms and undertakes reevaluations of EISs, FONSIs, and CEs. The procedures for these are discussed in Chapter 33 - Reevaluations.

Supplemental EISs are prepared and approved by Caltrans. They are subject to the Integrated Quality Control/Quality Assurance Review Procedures described in this chapter.

Review and Approval for Specified Technical Studies

Air Quality

Procedural Aspects of Project-Level Conformity under the 23 USC 327 MOU

Project-Level Conformity in General

"Conformity" in an air quality context is the federal Clean Air Act requirement that all federal actions conform to the letter and spirit of the State Implementation Plan (SIP). The SIP is the State's plan for attaining and maintaining attainment of the National Ambient Air Quality Standards (NAAQS).

The SIP contains many components pertaining to control of emissions from stationary, area, and mobile sources. Air Pollution Control Districts (APCDs) and Air Quality Management Districts (AQMDs), which exist throughout the State, do most of the air quality planning and SIP development, and directly control stationary and some area sources through permitting activities and local rules. The California Air Resources Board (CARB) controls mobile and other sources of statewide significance, and is also responsible for assembling and submitting the SIP and any SIP amendments to the U.S. EPA for approval.

Conformity requirements come from Section 176(c) of the Clean Air Act, which is codified at 42 USC 7506(c). Specific criteria and procedures for carrying out the conformity process are found at 40 CFR 93 Subpart A (highways and transit) and Subpart B (general federal actions). Individual sections of 40 CFR 93 can also be browsed in a table of contents format. Essentially all projects that are funded or approved by the FHWA must follow the procedures and criteria specified in Subpart A. This "Transportation Conformity Rule" specifies that projects which are not fully exempt from conformity requirements must have a project-level conformity analysis that covers whether or not the project comes from a conforming metropolitan or regional transportation plan (MTP/RTP) and transportation improvement program (TIP), or has an equivalent regional analysis in nonattainment or maintenance areas that do not have a Metropolitan Planning Organization (MPO), and includes hot-spot analysis and related commitments where applicable. Hot-spot analysis is required in nonattainment and maintenance areas for carbon monoxide (CO), respirable particulate matter (PM10), and fine particulate matter (PM2.5).

See the Project-Level Conformity Process Flowchart (PDF) which depicts the project-level conformity analysis process in general.

NEPA in Relation to the Conformity Process

The FHWA is responsible for making a project-level conformity determination at the time of final NEPA action for highway and transit projects. Language is usually included in the final environmental document or CE determining that the requirements of 42 USC 7506(c) are met. This determination is made in consultation with U.S. EPA, as outlined in an MOU between the USDOT and U.S. EPA in 2000.

Conformity must be reexamined at each point where a federal approval occurs after the final NEPA action, including approval to start final design work, purchase right of way, and approval of plans, specifications, and estimates (PS&E) for construction. In addition, where multiple construction phases with independent funding decisions are used, conformity must be reexamined each time an additional phase is approved. If a project's Design Concept and Scope (see definition at 40 CFR 93.101) changes substantially after final NEPA action, a new conformity determination may be required. Also, if the project area becomes subject to conformity requirements due to nonattainment designation for a new air quality standard after final NEPA action, a new conformity determination is required before the next federal finding or other approval.

The final NEPA action starts three-year clocks for project progress. For the conformity determination to remain valid, no more than three years may elapse between each of the "major steps": NEPA action, start of final design, acquisition of a substantial amount of right of way, and completion of design (PS&E or Ready to List). See 40CFR 93.104(d). If the specified milestones are not met within the three-year time frame, the project-level conformity determination expires and a new conformity determination must be made before the next federal approval occurs. Conformity should be addressed in NEPA re-validations to document compliance with this requirement.

Effect on the Conformity Process

For projects covered under the CE Assignment MOU, the conformity determination is made by Caltrans with the NEPA approval. Many projects covered by CE Assignment are likely to be either fully exempt, or exempt from regional analysis requirements, for conformity purposes.

The 327 MOU includes projects that do not qualify for CE Assignment and require environmental documents leading to a FONSI or ROD. Air quality conformity determinations were expressly excluded from the 327 MOU. Therefore, projects under the 327 MOU need a conformity determination from FHWA prior to Caltrans' NEPA approval. If Caltrans determines that a project is exempt from conformity, there will be no FHWA involvement in regard to air quality conformity.

Procedures for Conformity Determinations for Projects Assigned Under 23 USC 326 CE Assignment

Conformity Analysis

Projects that are approved under the CE Assignment MOU must include evidence in the project file that one of the three following situations applies:

  1. Conformity does not apply to the project area. This would be true if the area is listed as "attainment"/"unclassifiable" for all NAAQS. If the area is nonattainment/maintenance for any of the current NAAQS, conformity does apply. As of April 2016, conformity does not apply in all of District 1; however, conformity does apply in some parts of District 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. A map (PDF) (390KB) and table (PDF) have been developed to show areas that are subject to conformity. The official source of area designation information is the U.S. EPA's "Green Book" and the area designation regulations at 40 CFR 81.305 California. If conformity does not apply to the project area, no further conformity analysis is needed once that is documented.
  2. The project is exempt from all conformity analysis requirements. This would be true if the project fits one of the categories listed in "Table 2" of the conformity regulations at 40 CFR 93.126, or is a signal synchronization project using only existing signals covered by 40 CFR 93.128. In areas subject to conformity requirements, these projects need no project-level analysis or conformity determination. If the project area is "attainment/unclassifiable" for ALL of CO, PM10, and PM2.5, projects listed in "Table 3" of the conformity rule at 40 CFR 93.127 will also fall into this group because they do not require regional conformity analysis. If a project is fully exempt from conformity requirements, no further conformity analysis is needed once that is documented. Interagency consultation concurrence may be required by common practice or FHWA policy when certain exemptions are used.
  3. The project is subject to project-level conformity analysis requirements, and meets the criteria for a conformity determination. This is true if all relevant conformity analyses and procedures have been completed, including interagency consultation if a particulate matter hot-spot analysis (including finding that the project is not a Project of Air Quality Concern (POAQC) for PM10 or PM2.5) is needed, and the project is found to meet all hot-spot and regional (if applicable) conformity criteria. Documentation of completed hot-spot analysis (or Not-POAQC determination), regional analysis if required, and consultation (if required) is needed before Caltrans can complete the final NEPA action for a project processed under the CE Assignment MOU.

Because all projects eligible for CE Assignment are processed using a CE, public involvement outside of the interagency consultation process in situation #3 is not needed unless adopted public involvement procedures for the region (MPO) or the project proponent require it.

Remember that air quality analysis is not limited to conformity information. See the SER, Vol. 1, Chapter 11 of the SER for additional information regarding air quality.

Conformity Determination Documentation

The Air Quality Conformity Findings Checklist summarizes and documents the conformity analysis and determination for projects. The checklist must be completed for all projects on and off the SHS for which a NEPA environmental document or determination will be prepared. This checklist is completed and signed by the District/Region air quality specialist, indicating that the analysis is complete and documented in the project file. If the project is exempt from conformity analysis (Steps 1 and 2 only), then the Environmental Planner/Generalist may sign the checklist.

For projects processed pursuant to the CE Assignment MOU (except for 771.117[c][22] or 771.117[c][23] for which an Air Quality Conformity Analysis (AQCA) is required), the Senior Environmental Planner's signature on the Categorical Exclusion (CE) formally documents the conformity determination for the project. If hot-spot or other analysis is done to back up checklist entries, such as use of the CO Protocol to determine whether modeling is needed, that analysis must be retained in the project file. 

Procedures for Conformity Determinations Assigned Under 23 USC 327 MOU

Conformity Analysis

Projects that are approved under the 327 MOU must include evidence in the project file that one of the three following situations applies:

  1. Conformity does not apply to the project area. This would be true if the area is listed as "attainment/unclassifiable" for all NAAQS. If the area is nonattainment/maintenance for any of the current NAAQS, conformity does apply. As of April 2016, conformity does not apply in all of District 1; however, conformity does apply in parts of District 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. A map (PDF) (390KB) and table (PDF) have been developed to show areas that are subject to conformity. The official source of area designation information is the U.S. EPA's "Green Book" and the area designation regulations at 40 CFR 81.305 California. If conformity does not apply to the project area, no further conformity analysis is needed once that is documented.
  2. The project is exempt from all conformity analysis requirements. This would be true if the project fits one of the categories listed in "Table 2" of the conformity regulations at 40 CFR 93.126, or is a signal synchronization project using only existing signals covered by 40 CFR 93.128. In areas subject to conformity requirements, these projects need no project-level analysis or conformity determination. If the project area is "attainment/unclassifiable" for ALL of CO, PM10, and PM2.5, projects listed in "Table 3" of the conformity rule at 40 CFR 93.127 will also fall into this group because they do not require regional conformity analysis. If a project is fully exempt from conformity requirements, no further conformity analysis is needed once that is documented. Interagency consultation concurrence may be required by common practice or FHWA policy when certain exemptions are used.
  3. The project is subject to project-level conformity analysis requirements, and meets the criteria for a conformity determination. This is true if all relevant conformity procedures have been completed, including interagency consultation if a particulate matter hot-spot analysis (including finding that the project is not a Project of Air Quality Concern (POAQC) for PM10 or PM2.5) is needed, and the project is found to meet all hot-spot and regional (if applicable) conformity criteria. Documentation of completed hot-spot analysis (or Not-POAQC determination) and consultation (if required) is needed before Caltrans can complete the final NEPA action for a project processed under the 327 MOU.

At least one viable alternative, for conformity analysis done at the draft environmental document stage, should match the project description (design concept and scope) in the conforming MTP/RTP and Transportation Improvement Program (TIP) in an area subject to conformity requirements with a Metropolitan Planning Organization (MPO). If the preferred alternative matches one of the alternatives evaluated at the draft environmental document stage, and matches the MTP/RTP and TIP, no additional interagency consultation or public notice will be needed when the AQCA is prepared and a conformity determination is requested from FHWA. Normally, the conformity determination should be requested and received before circulation of the final environmental document; the conformity determination must be received before final NEPA action (ROD, FONSI, CE).

If the preferred alternative differs substantially from the alternative(s) examined in the conformity analysis used for draft environmental document circulation, it may be necessary to again carry out interagency consultation to confirm PM10 and PM 2.5 hot-spot analysis findings. Unless otherwise required by applicable public involvement procedures, it should not usually be necessary to re-do public circulation.

Under NEPA Assignment, public involvement is required regarding the project-level conformity analysis for projects with an environmental document. This will normally be done as part of the environmental document public circulation process. The public notice for the environmental document is to reference the conformity analysis, and the analysis is to be summarized in the environmental document. The Air Quality Conformity Public Notice Language (PNL) has been developed and is posted on the SER Forms and Templates page. Response to public comments addressing the conformity analysis must be documented in the conformity analysis that is submitted to FHWA.

Conformity Determination

When the preferred alternative is identified, the conformity analysis must be finalized and a conformity determination requested from FHWA by Caltrans. The FHWA conformity determination must be received before final NEPA action is completed. For projects processed pursuant to the 327 MOU, Caltrans will document the AQCA and submit it to FHWA who will make the formal conformity determination. The air quality conformity analysis and request for air quality conformity determination must be submitted by Caltrans to FHWA. The AQCA annotated outline is available on the SER Forms and Templates page.  The FHWA conformity determination must be received before NEPA can be completed. FHWA's June 21, 2007 letter (PDF) (98KB) and "Transportation Conformity and NEPA Assumption Questions and Answers" (PDF) (23KB) describe FHWA's expectations for the 23 USC 327 project-level air quality conformity determination process. The FHWA conformity determination shall be included in the environmental document. For Local Assistance projects, the local agency prepares the AQCA and submits it to Caltrans. Caltrans is responsible for submitting the AQCA and request for air quality conformity determination to FHWA. FHWA will make the conformity determination.

The conformity determination request to FHWA will normally include:

  • Cover letter (see sample letter)
  • Project-Level Conformity Analysis including:
    • Regional conformity analysis unless exempt from regional analysis per "Table 3" at 40 CFR 93.127 – the project is listed in a conforming RTP and TIP, or a project-level regional analysis has been done in an Isolated Rural non-attainment area (40 CFR 93.109); and
    • Hot-spot analysis for CO, PM10, and/or PM2.5 as applicable, or a statement that the project area is not subject to conformity requirements for CO, PM10, and PM 2.5 (40 CFR 93.116 and 93.123). Hot-spot analysis must follow the current guidance from U.S. EPA or (for CO) the CO Protocol.
  • For PM10 or PM2.5 hot-spot analysis:
    • Finding with evidence of concurrence by regional interagency consultation whether or not the project is a Project of Air Quality Concern (POAQC); and
    • If the project is a POAQC, evidence of concurrence by regional interagency consultation of the procedure, use of latest planning assumptions, and findings.
  • Written commitment to implement project-level control measures from the SIP or the NEPA document (40 CFR 93.117 and 93.125). List measures being committed to and sources of measures.
  • For non-CE projects, evidence that public involvement and circulation procedures were followed, including a summary of public comments and responses or statement that none were submitted.

Timing

The request for conformity determination should be submitted to FHWA as soon as possible after the preferred alternative is identified. For CEs processed under the 327 MOU, the request should be sent as soon as the conformity information can be gathered. Based on past experience with PM2.5 hot-spot conformity determinations, FHWA processing time may be 30 days or more, although well-documented projects should take less time. A written FHWA conformity determination, usually in the form of a letter, must be received before final NEPA action is taken by Caltrans. See the FHWA guidance regarding conformity and final environmental documents.

Conformity analysis only addresses federal air quality standards for which the project area is in nonattainment or attainment-maintenance status. Other air quality studies may be needed for CEQA and NEPA analysis purposes. See Vol. 1, Chapter 11 of the SER for additional information regarding air quality analysis.

Natural Resources

Under the 327 and CE Assignment MOUs, Caltrans will ensure that all natural resource documents (Natural Environment Study (NES), Natural Environment Study Minimal Impact (NES[MI]), Biological Assessment (BA), Biological Evaluation (BE), Essential Fish Habitat (EFH), and Habitat Mitigation and Monitoring Plan (HMMP)):

  • Have been prepared by a qualified expert/staff;
  • Are in accordance with applicable regulations;
  • Received a consistent objective review; and
  • Have been approved by a responsible manager representing Caltrans.

All BA, BE, NES, and NES(MI) documents prepared for projects both on and off the State Highway System will be prepared by, or reviewed by, a biologist with professional standing as an Associate Environmental Planner (Natural Sciences [NS]) or Senior Environmental Planner with experience as an Associate Environmental Planner (NS). The professional biologist's signature verifies that:

  • The document was prepared according to generally-accepted professional standards;
  • The data and professional conclusions meet professional standards, state policy and directives, and relevant state and federal regulatory law and regulation;
  • The appropriate peer or specialist review is complete;
  • All review issues have been considered and addressed; and
  • The file documentation is complete.

All consultant-prepared documents will have a separate signature page for biological professional signatures, as described above, prior to submission to Caltrans for review.

At management's discretion, Environmental Planner (NS) staff documented to have sufficient knowledge, skills and experience to independently conduct work of average difficulty, may sign non-complex NES(MI) reports with minimal impacts and/or mitigation commitments.

All BA, BE, NES, NES(MI), and HMMP documents, as well as correspondence used during EFH consultation prepared for State Highway System projects or the Federal-aid program, must be reviewed and approved by a management representative at the Senior Environmental Planner level or higher. Only a Caltrans management representative may sign ESA or EFH transmittals or consultation initiation letters. The management representative signature will verify that:

  • The document has been accepted by the project sponsor; and
  • The project description and any commitments in the document have been accepted by the project sponsor.

If prepared for an entity other than Caltrans, the separate signature page will also have the management representative's signature prior to submission to Caltrans for review.

The United States Fish and Wildlife Service and the National Marine Fisheries Service have been notified of Caltrans' federal natural resources responsibilities under both the 327 and CE Assignment MOUs.

Refer to Transmittal of Documents to Federal Resource Agencies for information on transmittal requirements.

Cultural Resources

When carrying out the requirements of Section 106 of the National Historic Preservation Act (Section 106), as amended, under NEPA Assignment, Caltrans shall comply with the 2014 First Amended Programmatic Agreement among the Federal Highway Administration, the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, and the California Department of Transportation Regarding Compliance with Section 106 of the National Historic Preservation Act, as it Pertains to the Administration of the Federal-aid Highway Program in California (PA). All actions that involve the identification, evaluation, analysis, recording, treatment, monitoring, or disposition of historic properties, or that involve the reporting or documentation of such actions in the form of reports, forms, or other records, shall be carried out by or under the direct supervision of a person or persons who meet the Secretary of Interior's Professional Qualifications Standards (published at 48 FR 44738-44739). Caltrans shall ensure that all documentation required under 36 CFR 800.11 is reviewed and approved by a staff member who meets the Professional Qualifications Standards (327 MOU 4.2.3; CE Assignment MOU IV.C.2: PA Attachment 1).

The State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP) have been notified of Caltrans' federal cultural resources responsibilities under both the CE Assignment and 327 MOUs.

Working with Section 106 and the Programmatic Agreement for Section 106

The SHPO and the ACHP have recognized the authority of Caltrans to act as the federal agency for compliance with Section 106 and the Section 106 PA, in accordance with the terms of the 327 and CE Assignment MOUs, excepting FHWA's government-to-government responsibilities to tribes.

The 2014 Section 106 PA incorporates Caltrans’ legal authority under NEPA Assignment. FHWA remains the agency officially responsible for Section 106 compliance on those projects not covered in the 327 and CE Assignment MOUs; however the PA delegates substantial authority to Caltrans even on those projects not covered in the MOUs.

The 2014 Section 106 PA delegates the majority of FHWA's Section 106 duties to Caltrans. Under the original Section 106 PA and prior to NEPA Assignment, FHWA received concurrent copies of documents transmitted by Caltrans to the SHPO, and remained responsible for reviewing and approving proposed No Adverse Effect and Adverse Effect findings, consulting with the SHPO on those findings, consulting with the SHPO to resolve adverse effects, and resolving disputes. The 2014 PA clarifies Caltrans’ Cultural Studies Office's (CSO) roles and responsibilities as FHWA under NEPA Assignment and with the exception of FHWA's government-to-government consultation with Native American tribes, CSO assumes these functions in place of FHWA for the purposes of Section 106 compliance.

Caltrans’ document review and distribution requirements under the Section 106 PA are outlined below. For those projects not covered by the MOUs, CSO copies FHWA only on No Adverse Effect or Adverse Effect documents.

  • Screened Undertaking memo: If the projects is determined screenable, the Screened Undertaking memo remains in the project file and no SHPO or CSO notification is required.
  • Historic Property Survey Report (HPSR):
    • Finding of No Historic Properties Affected: If the HPSR is submitted to the SHPO for an eligibility consensus determination, CSO receives a copy of the SHPO notification. If there is no need for an eligibility determination, then the HPSR remains in the project file and no SHPO notification or CSO copy is required.
    • Finding of No Adverse Effect with Standard Conditions: District submits finding to CSO. CSO has 15 days to notify District if CSO objects to the finding. The finding is not sent to SHPO.
    • Finding of No Adverse Effect without Standard Conditions: District submits finding to CSO. CSO reviews and approves the finding. Once approved, CSO submits the report to the SHPO for 30 day review, with copy of transmittal letter to District.
    • Finding of Adverse Effect, archaeological properties eligible under Criterion D only: Districts submits finding to CSO concurrent with submittal to the SHPO
    • Finding of Adverse Effect - other than the above: District submits finding of effect to CSO. CSO reviews and approves the finding. Once approved, CSO submits the report to the SHPO for 30 day review, with copy of the transmittal letter to the District
  • Memorandum of Agreement and attachments: CSO reviews and approves the MOA. Once approved, CSO, with assistance from the District, consults with the SHPO on the terms of the MOA.

CSO makes review of documents a high priority, and will respond to a District with comments within 15 days. In addition, CSO acts as FHWA in cases of dispute resolution in accordance with Section 106 PA stipulations VIII.C.6.b and XX.A, as follows:

  • If CSO determines that a disagreement regarding eligibility determinations cannot be resolved through consultation, CSO refers the dispute to the Keeper of the National Register.
  • If CSO determines that a disagreement about effect findings or objections about the way the Section 106 PA is being carried out cannot be resolved through consultation, CSO seeks input from the ACHP. CSO ultimately decides how the dispute will be resolved, however.

Floodplains

Caltrans is responsible for floodplains studies and floodplains findings under NEPA Assignment. For State Highway System projects, Caltrans’ Project Engineer will sign the Summary Floodplain Encroachment Report. Caltrans is also responsible for the preparation of the Floodplain Evaluation Report. For Local Assistance projects, the Summary Floodplain Encroachment Report and Floodplain Evaluation Report is to be filled out and signed by the local agency project engineer, and concurred by Caltrans’ DLAE. If a significant floodplain encroachment is identified as a result of floodplains studies, FHWA will need to approve the encroachment and concur in the Only Practicable Alternative Finding. See Chapter 17 of the SER for additional information regarding floodplains.

Noise

Under NEPA Assignment, FHWA's noise regulations at 23 CFR 772 are included on the list of laws for which responsibility has been assumed by Caltrans. For projects assumed under NEPA Assignment, all noise analyses and findings have been assumed by Caltrans. See Chapter 12 of the SER for additional information regarding noise.

Consultation and Coordination with Federal Agencies

For projects assumed under NEPA Assignment, Caltrans has also assumed all of FHWA's responsibilities for environmental review, consultation, and coordination under all federal environmental laws. The list of laws assumed is presented in Section 3.2 of the 327 MOU and Appendix B of the CE Assignment MOU. Caltrans is responsible for complying with the requirements of any applicable environmental law regardless of inclusion in the list of laws assumed.

For purposes of carrying out the responsibilities assumed under NEPA Assignment, Caltrans is deemed to be acting as the FHWA with respect to the environmental review, consultation, and other action required under those responsibilities.

Caltrans has committed to seek early and appropriate coordination with all appropriate federal, state, and local agencies in carrying out any of the responsibilities for assumed projects. In carrying out the responsibilities assumed, Caltrans has committed to make all reasonable and good faith efforts to identify and resolve conflicts with all appropriate federal, state, and local agencies during the consultation and review process (327 MOU 7.1; CE MOU II.D).

FHWA and Caltrans have notified all relevant federal agencies about pertinent changes in consultation procedures as a result of Caltrans’ assumption of FHWA's federal responsibilities under NEPA Assignment.

FHWA will not intervene, broker, act as intermediary, or be otherwise involved in any issue involving Caltrans’ consultation or coordination with another federal agency with respect to Caltrans’ discharge of any of the responsibilities it has assumed under NEPA Assignment for any particular highway project. However, FHWA may attend meetings between Caltrans and other federal agencies and submit comments to Caltrans and the other federal agency in the following extraordinary circumstances (327 MOU 8.1.2; CE MOU XI.B):

  • The FHWA reasonably believes that Caltrans is not in compliance with the MOU;
  • The FHWA determines that an issue between Caltrans and the other federal agency concerns emerging national policy issues under development by the USDOT; and/or
  • Upon request by either Caltrans or the other federal agency and agreement by the FHWA.

The FHWA will notify both Caltrans and the relevant federal agency prior to attending any meetings between Caltrans and such other federal agency.

Transmittal of Documents to Federal Resource Agencies

Environmental technical studies, requests for initiation of consultation, and consultation documents will be transmitted directly to the appropriate federal resource agency under NEPA Assignment.

All technical studies and consultation documents must be signed by staff with appropriate qualifications (see pertinent section of the SER to determine qualifications requirement) that are at least an Associate Environmental Planner in their area of expertise. See prior section on Review and Approval for Specified Technical Studies for additional details.

When sending consultation documents directly to a federal resource agency on a project for which Caltrans assumed responsibilities under CE Assignment, the following language should be included in the transmittal letter:

  • "Caltrans is (transmitting/initiating [describe product or action]) as a Federal agency, following the provisions of the Memorandum of Understanding (MOU) between the Federal Highway Administration, California Division and the California Department of Transportation, concerning the State Assumption of Responsibility for Categorical Exclusions. The MOU was signed pursuant to Title 23 USC 326, which allows the Secretary of Transportation to assign, and the State of California to assume, responsibility for most NEPA Categorical Exclusion determinations. For those projects, the State may also be assigned FHWA's responsibilities for environmental consultation and coordination under other Federal environmental laws. By statute, the State is deemed to be a Federal agency for these assigned responsibilities. As this project is covered by the MOU, FHWA has assigned and Caltrans has assumed FHWA responsibility for environmental review, consultation, and coordination on this project. Please direct all future correspondence on this project to Caltrans."

When sending consultation documents directly to a federal resource agency on a project for which Caltrans assumed responsibilities under NEPA Assignment, the following language should be included in the transmittal letter:

  • "Caltrans is (transmitting/initiating describe product or action]) as the NEPA lead agency under the provisions of the Memorandum of Understanding (MOU) between the Federal Highway Administration and the California Department of Transportation Concerning the State of California's Participation in the Surface Transportation Project Delivery NEPA Assignment Program. The MOU was signed pursuant to Title 23 USC 327, which allows the Secretary of Transportation to assign, and the State of California to assume, responsibility for FHWA's responsibilities under other Federal environmental laws. As this project is covered by the 327 MOU, FHWA has assigned and Caltrans has assumed FHWA responsibility for environmental review, consultation, and coordination on this project. Please direct all future correspondence on this project to Caltrans."

Conflict Resolution with External Agencies

Under NEPA Assignment, Caltrans has assumed FHWA's role in resolving conflicts with external agencies. In this role, Caltrans will continue to be diligent in resource agency engagement, particularly with cooperating agencies and those agencies designated as participating agencies, following the requirements and the spirit of 23 USC 139. Where issues arise that create conflict between agencies, Caltrans is committed to forthright conflict resolution.

Caltrans’ long history of working cooperatively with its federal and state partners and with tribal governments is evidenced by the numerous MOUs and MOAs developed over the years to delegate certain responsibilities to Caltrans or to improve coordination between Caltrans and federal and state resource agencies. The MOUs highlighted below specify procedures for resolving conflicts with external agencies. Caltrans will use these procedures for resolving conflicts under NEPA Assignment as appropriate.

Where the issue needing resolution does not involve one of the regulatory processes described above, Caltrans will implement the Issue Identification and Resolution Process under 23 USC 139 when appropriate and assume the FHWA role, or work with the agencies involved to efficiently and effectively resolve the conflict.

Interagency Agreements under the 23 USC 327 MOU

Interagency agreements continue in their existing form with the substitution through assignment of Caltrans for FHWA. Interagency agreements continued under NEPA Assignment include:

Programmatic biological opinions are not included in the list above since they are approvals, not interagency agreements.

Working with Indian Tribes under NEPA Assignment

Because of the status of federally-recognized Indian tribes as sovereign nations, the USDOT Secretary's responsibilities for government-to-government consultation with Indian tribes as defined in 36 CFR 800.16(m) cannot be assumed by Caltrans under NEPA Assignment. FHWA remains responsible for all government-to-government consultation, including initiation of tribal consultation. A notice from Caltrans to an Indian tribe advising the tribe of a proposed activity is not considered "government-to-government consultation" within the meaning of the 327 and CE Assignment MOUs. If a project-related concern or issue is raised in government-to-government consultation with an Indian tribe and is related to NEPA or another federal environmental law for which Caltrans has assumed responsibilities under these MOUs, and either the Indian tribe or FHWA determines that the issue or concern will not be satisfactorily resolved by Caltrans, then FHWA will reassume all or part of the responsibilities for the project (327 MOU 3.2.3; CE Assignment MOU II.B.1).

Monitoring and Oversight

23 USC 327 Monitoring and Process Reviews

Under the 327 MOU, Caltrans has expanded the ways in which it internally evaluates its performance by implementing a formal process review program for environmental compliance. The MOU refers to this as "monitoring." Under this program, Caltrans is required to regularly perform monitoring reviews of its quality control and quality assurance process to determine whether its process is working as intended. The monitoring includes consideration of the effectiveness of its environmental procedures under the 327 MOU and staff adherence to these procedures. Caltrans uses this monitoring review program to assess the success of assignment under the 327 MOU by identifying areas that are working well, identifying any areas needing improvements in the process, and taking any corrective actions necessary to address the areas needing improvement (327 MOU 8.2.7). The monitoring reviews are conducted using a variety of tools, such as interviews with Caltrans staff and resource agencies, distribution of questionnaires, review of project files, and data tracking tools. Annually, Caltrans is required to submit a summary of its monitoring review to the FHWA California Division Office (327 MOU 8.2.7).

Additionally, FHWA Headquarters Office expects to complete two monitoring reviews during the term of the 327 MOU. In order to minimize the impact of the monitoring reviews on Caltrans’ day-to-day project delivery workload, FHWA and Caltrans will coordinate when scheduling joint monitoring reviews.

Performance Measures to Assess Conformance with 23 USC 327 Commitments

To evaluate the success of assignment under the 327 MOU, FHWA and Caltrans mutually established a set of performance measures against which Caltrans is evaluated in administering the responsibilities it assumed. Caltrans collects and maintains all necessary and appropriate data related to meeting the performance measures and monitors progress toward meeting the performance measures. Caltrans reports the results to the FHWA annually. The performance measures are identified in the current 327 MOU Section 10.2.

CE Assignment Monitoring

FHWA and Caltrans work collaboratively in monitoring Caltrans performance under the CE Assignment MOU including verification of Caltrans’ compliance with the requirements of the MOU and documentation of Caltrans’ levels of achievement of the performance areas identified in the MOU. Reviews occur between the 19th and 31st month of the MOU. FHWA produces the monitoring report (CE Assignment MOU IV.E.).

Data Management and Administrative Practices

Environmental Milestone Tracking

Every 12 months from the effective date of the 327 MOU, Caltrans provides a report to the FHWA California Division listing all approvals and decisions Caltrans has made with respect to the responsibilities assumed under NEPA Assignment (327 MOU 8.2.5; CE Assignment MOU IV.E.1). The following approvals and decisions are reported to FHWA:

  • CE approvals under the 327 and CE Assignment MOUs;
  • Environmental Assessments;
  • Findings of No Significant Impact (FONSI);
  • Notices of Intent;
  • Draft Environmental Impact Statements;
  • Final Environmental Impact Statements;
  • Records of Decision (ROD);
  • Section 4(f) Evaluations/determinations (draft and final programmatic and individual Section 4(f) Evaluations; final de minimis impact findings);
  • Section 106 Memoranda of Agreement (MOA);
  • Section 7 biological opinions and letters of concurrence; and
  • Revalidations where the original environmental document is in need of updating or is no longer valid.

In addition, Caltrans is required to measure its environmental document approval timeframes in conformance with a 327 MOU performance measure.

In order to efficiently and consistently capture data for reporting on environmental milestones, Caltrans requires that environmental milestones for all projects on the State Highway System be captured on the Standard Tracking and Exchange Vehicle for Environmental (STEVE). Among other purposes, this environmental database is used to systematically track the NEPA processing timeframes for all State Highway System projects under NEPA Assignment. It is also used to evaluate whether the streamlining objectives of NEPA Assignment are being achieved. This information is incorporated into required monitoring reports related to NEPA Assignment.

Fields in the environmental database related to NEPA Assignment are to be completed by environmental staff as designated by each District/Region for all State Highway System projects (including locally-sponsored projects), including CEs, EAs, EISs, supplemental environmental documents, and re-evaluations.

Each District/Region is responsible for keeping STEVE up-to-date. It is essential that information be entered into STEVE on an ongoing basis so that information requests can be responded to within five business days. Minimally, dates must be entered by the fifth business day of each month. Each District/Region has also identified a single point of contact for STEVE NEPA Assignment information. That individual will coordinate response to information requests and questions.

Local Assistance Milestone Tracking

Environmental milestones on Local Assistance projects are captured in a central data repository called LP2000. LP2000 allows staff to access real-time project information for any Local Assistance project and systematically track the NEPA processing timeframes for all Local Assistance projects under NEPA Assignment. Each District/Region is responsible for keeping the environmental fields in LP2000 up-to-date. It is essential that information be entered into LP2000 on an ongoing basis, as soon as the action occurs, so that information requests can be responded to within five business days.

Project Files and Document Retention

Caltrans is required to maintain project environmental and general administrative files pertaining to its NEPA Assignment responsibilities as identified in the 327 MOU Sections 8.3.1 and 8.3.2 and the CE Assignment MOU Section IV.E.3. The Final Caltrans Environmental Records Retention Policy must be implemented for all NEPA Assignment 23 USC 326 and 23 USC 327 projects.

Caltrans recommends that e-mails that support project decision-making, reflect deliberation, and demonstrate a "hard look" under NEPA also be retained as part of the project environmental file. Environmental document comments from legal and other legal confidential communications should be retained in a confidential file separate from the formal project environmental record, as these items represent attorney-client privilege.  

Instructions for Using the Uniform Environmental File System

To support statewide consistency in file content and organization, a Uniform File System has been developed for mandatory use statewide.

This Uniform Environmental File System must be used to file environmental analysis related materials for all State Highway System projects (including locally-sponsored projects) and Local Assistance projects, including CEs, EAs, and EISs. See Important File Contents (PDF) for a list of key environmental file contents. Complete and organized project records are needed for the NEPA and CEQA administrative records and to comply with performance requirements under NEPA Assignment.

Establishing and maintaining these files is essential under NEPA Assignment, as FHWA may request Caltrans' project records at any time.

This Uniform File System for environmental analysis materials is based on the Uniform File System found in the PDPM. In most respects, environmental project files will correspond with project files maintained by the Project Engineer.

The Uniform Environmental File System includes a directory of file tabs. Bolded file tabs highlight basic environmental analysis materials that are typically established for EA and EIS projects. Since project requirements vary, not all file tabs may be needed for all projects. Tabs used for the project environmental file will depend on the materials generated as a result of project environmental issues, studies, correspondence, consultation, etc. Based on the materials generated for the project, the Environmental Planner will determine which tabs to use. The Environmental Planner may also create additional sub-files or tabs, as appropriate, for projects with complex or unique environmental issues. The tab contents listed in the directory of file tabs are intended to be illustrative rather than exhaustive.

The Environmental Planner determines where to file materials when a file location is not specified in the directory of file tabs. The Environmental Planner also determines what non-environmental information to include in the environmental file.

For CE projects, the following files are commonly established:

  • 212: PID/PEAR/PES;
  • 230s: As appropriate for technical reports and coordination/correspondence and other material related to project environmental issue(s);
  • 232: Final Environmental Document (CE/CE Determination form and CE Checklist [if applicable]);
  • 270: Permits;
  • 275: Environmental Commitments/Mitigation Plan; and
  • 530: Plans, Specifications, and Estimates (Environmental Certification form).

In general, the filing system has been developed so that material related to a specific technical issue (such as air quality, noise, and biology) is filed in the 230s with the appropriate technical issue. This includes compliance documents and formal correspondence (such as Section 7 letters of concurrence and biological opinions), as well as material generated after public review of the draft environmental document. The exception to this rule is that signed permits go in 270 (Permits). Miscellaneous communications related to the draft and final documents should be filed under 231.08 and 232.08, respectively. Miscellaneous communications not related to a specific technical area or other file category are typically filed under 300 (External Communications) or 400 (Internal Communications), as appropriate.

File tab specifications and a file tab template are also provided.

Charging Practices

During the early years of the NEPA Assignment Program, the State Legislature required that costs related to implementation of the 23 USC 327 MOU be tracked, and therefore, a special charging code for NEPA Assignment Program tasks was established.  This charging code is no longer used, and charging practices under the 23 USC 326 and 23 USC 327 MOUs are the same as prior to NEPA Assignment. Caltrans continues to assess NEPA Assignment Program costs to ensure that the Program is resulting in efficiencies statewide.

The Local Assistance Program uses the following charging codes:

  • 0000020128: NEPA QC Review
  • 0000020127: NEPA Assignment Internal Training and Presentations
  • 0000020123: NEPA Assignment External Training and Presentations
  • 0000020132: Environmental Quarterly Reporting (23 USC 326)
  • 0000020129: Environmental Monitoring Reviews (23 USC 326)
  • 0000020134: Environmental Quarterly Reporting (23 USC 327)
  • 0000020131: Environmental Audits & Monitoring Reviews (23 USC 327)

Useful Links

 

(Last content update: 10/26/2021, JH)