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Last Updated: Friday, September 15, 2017 7:53 AM

23 USC 326 Categorical Exclusion Assignment

 

Under Section 6004 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), pursuant to the 23 USC 326 MOU, Caltrans assumed FHWA's responsibilities for determining if a transportation project qualifies for a Categorical Exclusion (CE) – a type of NEPA action that does not involve significant environmental impacts. For these categorically excluded projects, Caltrans also assumed FHWA's responsibilities for coordination and consultation under other federal environmental laws such as the Endangered Species Act, Clean Water Act, and National Historic Preservation Act.

Caltrans' assumption of FHWA's CE responsibilities under 23 USC 326 streamlines the federal environmental review process for categorically excluded transportation projects by eliminating FHWA's project-by-project review and approval. Caltrans applies federal environmental requirements in the same manner as FHWA, maintaining FHWA's rigorous environmental standards.

23 USC 326 CE Assignment MOU Renewal

CE Assignment is subject to an MOU that is renewable every three years. The original MOU was signed June 7, 2007 and was subsequently renewed on June 7, 2010, June 7, 2013 and May 31, 2016 and amended on December 30, 2016. Under the current, amended MOU, FHWA continues to assign to Caltrans the federal authority and responsibility for determining whether certain projects are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act (NEPA). The 326 MOU also assigns to Caltrans FHWA’s responsibilities for conducting environmental review, consultation, and other related activities under federal environmental laws other than NEPA. The current 23 USC 326 Assignment MOU (signed on May 31, 2016) expires on May 31, 2019. Click here to view the MOU.

Waiver of Sovereign Immunity

On March 29, 2017, Governor Brown signed into law AB 28, reinstating California’s waiver of sovereign immunity under Streets and Highways Code Section 820.1. The waiver provides for Caltrans’ continued participation in both the 23 USC 327 NEPA Assignment Program and 23 USC 326 Categorical Exclusion (CE) Assignment Program until January 1, 2020, on which date Section 820.1 will be repealed.

Related Documents

The following documents were released as a result of the CE MOU under Section 6004 of SAFETEA - LU:

Memorandum of Understanding

On May 31, 2016, the FHWA renewed the 23 USC 326 Memorandum of Understanding (326 MOU) pursuant to which Caltrans is assigned the federal responsibility for determining which FHWA-funded transportation projects can be categorically excluded. The 326 MOU outlines specific terms that describe Caltrans’ roles and responsibilities under the assignment program. The FHWA will monitor Caltrans’ compliance with the 23 USC 326 MOU. Caltrans will carry out regular quality control activities to ensure that its CE determinations are made in accordance with applicable law and with the 326 MOU, which expires May 31, 2019.

What are Categorical Exclusions?

Categorical Exclusions (CEs) are a category of NEPA actions that do not have a significant individual or cumulative effect on the environment. If a project is determined to be categorically excluded, preparation of a NEPA document (an environmental impact statement or an environmental assessment) is not required. Categorically excluded projects must still comply with the permitting and consultation requirements of other federal environmental regulations, which may require the development of avoidance, minimization, or mitigation strategies, if any are necessary.

Types of projects (or actions), that can be categorically excluded are defined by FHWA in regulations at 23 CFR 771.117, where they are divided into two groups based on the potential for those types of transportation projects to have environmental effects:

  • The first group, listed in 23 CRF 771.117(c) (called the "c" list), consists of actions that almost never cause significant environmental impacts, for instance, minor construction activities such as bicycle lanes or landscaping. These actions are automatically classified as CEs, except where "unusual circumstances" occur. Unusual circumstances can occur, for example, if a project is controversial on environmental grounds or if it is determined that a project involves significant environmental effects. If significant environmental effects are involved, an environmental document must be prepared.
  • The second group, listed in 23 CFR 771.117(d) (the "d" list), are examples of actions that normally do not result in significant environmental effects, but for which studies must be prepared to document that a specific project will not result in a significant environmental effect.

For more information on CEs, see Chapter 30 of the Standard Environmental Reference (SER).

Scope of CE Responsibility

Under 23 USC 326, Caltrans assumed responsibility for approving CEs on the "c" list and those CEs listed as examples on the "d" list. In addition, states could propose additional actions that qualify as CEs that states may approve, provided that documentation is presented to FHWA justifying these additional types of actions. Caltrans added seven additional actions as categorical exclusions. Caltrans developed the proposed additions based on reviewing the types of activities that FHWA and Caltrans have historically approved as CEs in California. Appendix A of the 23 USC 326 CE Assignment MOU lists the additional CE actions. For projects that are not on the "c" or "d" list or the Appendix A list, but for which a CE classification is appropriate under 23 USC 327, Caltrans has been assigned responsibility for making those determinations pursuant to a separate, 23 USC 327 MOU.

Caltrans prepared a background paper to support designating the seven additional actions as "Appendix A" CEs.