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Last Updated: Thursday, September 14, 2017 4:56 PM

Nepa Assignment

Effective March 30, 2017, Caltrans is authorized to resume participation in the Surface Transportation Project Delivery Program.

On March 29, 2017, Governor Brown signed into law Assembly Bill (AB) 28, which adds back Section 820.1 to the Streets and Highways Code, with provisions to waive immunity and consent to the jurisdiction of federal courts for actions taken by Caltrans in performing federal environmental responsibilities under the National Environmental Policy Act (NEPA).

On March 30, 2017, the FHWA acknowledged Caltrans adequately certified AB 28 was signed into law and the waiver of immunity is in place. As a result, Caltrans is authorized to participate in the NEPA Assignment Program.

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

As a condition of each MOU, the FHWA requires California to consent to the jurisdiction of federal courts for actions taken by Caltrans under NEPA Assignment. To accomplish this, the Legislature added Section 820.1 to the Streets and Highways Code, waiving California’s immunity under the Eleventh Amendment to the U.S. Constitution. This was done first in 2006, then subsequently re-enacted in 2008 and 2011. The Legislature included a sunset clause to delete Section 820.1 on January 1, 2017.

Because re-enacting legislation was not passed during the 2015-2016 legislative session, California Streets and Highways Code Section 820.1 was repealed on January 1, 2017, and Caltrans’ authority under NEPA Assignment was suspended for a period of up to 90 days. During the suspension period, federal responsibilities under NEPA reverted to the FHWA. Caltrans was allowed to approve some CEs for projects meeting the criteria specified in a Programmatic Categorical Exclusion (PCE), which was signed by the FHWA. The PCE is no longer effective now that Caltrans is again authorized to approve CEs under the 23 USC 326 MOU.

Please refer to the SER for the most current guidance, templates and forms to use under NEPA Assignment.

For further information from Caltrans, please contact: Tammy Massengale at tammy.massengale@dot.ca.gov or (916) 653-5157.

23 USC 327

December 23, 2016 23 USC 327 NEPA Assignment MOU

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

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23 USC 326

Anticipating the January 1, 2017 expiration of the required waiver of sovereign immunity and the resulting suspension of Caltrans authority, the FHWA and Caltrans entered into a Programmatic CE (PCE) Agreement that allowed Caltrans to approve some 326 CEs during the suspension period. The effective date of the PCE was January 1, 2017. With approval of AB 28 and the waiver of immunity back in place, Caltrans is again authorized to approve CEs pursuant to the 23 USC 326 CE MOU and the PCE is no longer effective.

Please refer to the SER Forms and Templates page to obtain the appropriate forms and checklists for projects under the 326 program.

After renewing the 23 USC 326 CE MOU on May 31, 2016, for a three-year term, the FHWA proposed an amendment (signed and linked above), which clarifies provisions related to legal communications between Caltrans and the FHWA and to any expiration of California’s waiver of immunity. The FWHA published the proposed amendment in the Federal Register for public comment. The FHWA has reviewed all comments submitted and will respond to each comment. The amendment was signed on December 30, 2016 by Caltrans and FHWA.

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