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Last Updated: Wednesday, July 30, 2014 10:58 AM

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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 the Department under:

  1. NEPA ASSIGNMENT: 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 assign the responsibilities for NEPA and other federal environmental laws to the Department through a memorandum of understanding (NEPA Assignment MOU), which became effective October 1, 2012.
  2. CE ASSIGNMENT: Title 23 USC Section 326 (23 USC 326, hereinafter 23 USC 327) allows the USDOT Secretary, acting through FHWA, to assign responsibilities for Categorical Exclusion determinations to the Department through a memorandum of understanding (CE Assignment MOU) , which became effective June 7, 2007, and is renewed every three years.

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

Click image below to view larger or printable version.

image of NEPA Lead Decision Tree (22KB)

BACKGROUND

Title 23 USC 327 NEPA Assignment

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. With the Pilot Program, FHWA assigned, and the Department 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 revised and permanent Surface Transportation Project Delivery Program. As a result, the Department entered into a memorandum of understanding pursuant to 23 USC 327 (NEPA Assignment MOU) with FHWA. The NEPA Assignment MOU became effective October 1, 2012 and terminates eighteen months from the effective date of FHWA regulations developed to clarify amendments to 23 USC 327 or on January 1, 2017. The NEPA Assignment MOU incorporates by reference Caltrans" May 21, 2007 Pilot Program Application, the terms and conditions of the Pilot Program MOU and its amendments—as such, many of the references in this Chapter continue to cite the "Pilot Program MOU." In summary, the Department 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. Under NEPA Assignment, FHWA assigned and the Department 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 the Department under the 23 USC 326 CE Assignment MOU, projects excluded by definition, and specific project exclusions. The NEPA Assignment MOU identifies FHWA's and the Department's roles and responsibilities, describes NEPA Assignment requirements, and officially extends the Department's use of the 23 USC 327 NEPA Pilot Program application, with the minor changes listed below:

  • Caltrans may use federal funds for attorneys" fees attributable to program activities;
  • Caltrans will perform under revised auditing and monitoring requirements;
    • FHWA audits are no longer required;
    • Caltrans will provide FHWA with self-assessment reviews once a year;
    • Caltrans will provide FHWA with approval and decision reports once every six months;
  • 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 the Department entered into a 23 USC 326 CE Assignment MOU (CE Assignment MOU) dated June 7, 2007 (renewed on June 7, 2010, and June 7, 2013), that assigned to the Department 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 the Department under the CE Assignment MOU are assigned by FHWA and assumed by the Department under the NEPA Assignment MOU. The CE Assignment MOU is renewable every three years.

ASSIGNMENT OF FEDERAL LAWS OTHER THAN NEPA

For both the 23 USC 327 NEPA and 23 USC 326 CE Assignments, the Department also assumed the USDOT Secretary"s responsibilities for environmental review, interagency consultation, and regulatory compliance for the review and/or approval of projects. The Department has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the Pilot Program MOU (see also Appendix B of the CE Assignment MOU). The Department 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 NEPA Assignment, FHWA"s air quality conformity responsibilities under the Federal Clean Air Act (42 USC 7506(c) may not be assigned to the Department. However, air quality conformity determinations for CEs under CE Assignment have been assigned to the Department (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 the Department under either the Pilot Program 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 the Department 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 the Department 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 Pilot Program MOU, the Department"s assumption of responsibilities applies to (Pilot Program 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, with the exception of the following projects:

    • District 1: Eureka/Arcata Corridor Improvement
    • District 3: Interstate 5/Cosumnes River Boulevard Interchange
    • District 3: Placer Parkway Corridor Preservation
    • District 4: Doyle Drive
    • District 4: Marin-Sonoma Narrows
    • District 5: Santa Cruz Auxiliary Lanes Soquel to Morrisey
    • District 7: I-5 Widening - Orange County Line to Route 605
    • District 8: Big Bear Lake Bridge Replacement
    • District 12: Southern Orange County Transportation Infrastructure Improvement Program (SOCTIIP)
    • District 12: Orange County Gateway
  • 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, with the exception of the following projects:

    • District 4: Caldecott Improvement Project on State Route 24
    • District 4: Ala-880 Southbound HOV Lane Extension - Hegenberger to Marina Boulevard
    • District 4: SM-101, Widen and Add Auxiliary Lanes from March Road to Embarcadero
    • District 5: Highway 1 Congestion Management Study - Santa Cruz HOV Lanes
    • District 6: Fre-99 Island Park 6-lane
    • District 6: Mad-99 Avenue 12 Interchange Reconstruction
    • District 8: Needles Highway Safety Realignment Project
    • District 9: Iny-395 Olancha to Cartago 4 Lane
    • District 10: SJ-99 South Stockton Widen Freeway from 4 to 6 Lanes
    • District 10: SJ-99 Manteca 6-Lane
    • District 10: SJ-205 Auxiliary Lanes in Tracy

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;
    • High priority projects under Executive Order 13274 in California, specifically, the District 11 I-5 North Coast Corridor project in San Diego County and the District 8 Mid County Parkway Community and Environmental Transportation Acceptability Process (CETAP) project in Riverside County;
    • Projects funded by the Federal Lands Highway Program unless the Department designs and constructs the project; and
    • Projects involving international border crossings and projects that cross state boundaries.
      • District 11: Otay Mesa East Port of Entry
      • District 8: State Route 62 Colorado Bridge Replacement

RESPONSIBILITIES AND REQUIREMENTS

The Department is solely liable and solely responsible for carrying out all of the USDOT Secretary"s responsibilities it has assumed under NEPA Assignment and CE 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 the Department, including any decision or approval made by the Department while participating in NEPA Assignment or CE Assignment (CE Assignment IV.G).

  • The Department 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:
    • Using appropriate environmental technical and managerial expertise;
    • Devoting adequate staff resources; and
    • Demonstrating, in a consistent manner, the capacity to perform the Department"s assumed responsibilities under the MOUs and applicable federal laws (Pilot Program MOU 4.2.2).
  • In assuming the USDOT Secretary"s responsibilities under NEPA Assignment, the Department 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 issued by the President of the United States, USDOT Orders, FHWA Orders, official guidance and policy issued by the USDOT or FHWA, and any applicable federal court decisions, and interagency agreements such as programmatic agreements, memoranda of understanding, memoranda of agreement, and other similar documents that relate to the environmental review process (Pilot Program MOU 5.1.1).
  • Official USDOT and FHWA formal guidance and policies relating to environmental review matters are posted on the FHWA"s website at http://www.fhwa.dot.gov/hep/legreg.htm, contained in the FHWA Environmental Guidebook (http://environment.fhwa.dot.gov/guidebook/index.asp), published in the Federal Register, or sent to the Department electronically or in hard copy (Pilot Program MOU 5.1.2).
  • FHWA will use its best efforts to ensure that any new or revised FHWA policies and guidance that are final and applicable to the Department"s performance under NEPA Assignment and CE Assignment are communicated to the Department within 10 days of issuance. Delivery may be accomplished by e-mail, mail, or publication in the Federal Register. If communicated to the Department by e-mail or mail, such material may be sent either to the party specified in the MOU to receive notices, or to the Chief of the Department's Division of Environmental Analysis (Pilot Program MOU 5.1.3).

For purposes of carrying out the responsibilities assumed under NEPA Assignment, the Department is deemed to be acting as the FHWA with respect to the environmental review, consultation, and other action required under those responsibilities (Pilot Program MOU 5.3.1).

In discharging any of the USDOT Secretary"s responsibilities under NEPA Assignment, the Department will make all reasonable and good faith efforts to work with affected parties and attempt to resolve any and all conflicts during the environmental review process and prior to the initiation of litigation by any such party (Pilot Program MOU 6.3.1).

INVOLVEMENT WITH FHWA

Except as specifically provided otherwise in the NEPA Assignment MOU, FHWA will not provide any project-level assistance to the Department 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 (Pilot program MOU 8.1.1).

FHWA may assist the Department 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 the Department"s consultation, coordination, and communication with other federal agencies (Pilot Program MOU 8.1.4).

FEDERAL COURT JURISDICTION

In order for the Department to assume sole responsibility and liability for its NEPA actions and decisions 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. The waiver was enacted as part of Assembly Bill (AB) 1039 in the spring of 2006 and became effective in November 2006 when the voters passed the transportation bond (Proposition 1B). In the summer of 2008 the waiver was extended until January 1, 2012 by AB 2650. In the fall of 2011, the waiver was extended again until January 1, 2017 by AB 892.

The State of California and the Department have consented to and accepted 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 the FHWA and assumed by the Department to the same extent that the 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 the Department pursuant to an assumption of responsibility during the Department's participation in NEPA Assignment (Pilot Program MOU 4.3.1; CE Assignment MOU V.B).

LITIGATION

The Department 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 or CE Assignment, including claims concerning the Department"s performance or nonperformance of such responsibilities while participating in NEPA Assignment. In the event of litigation, the Department will provide qualified and competent legal counsel, including outside counsel if necessary (Pilot Program MOU 6.2.1; CE Assignment IV.H.1). Other requirements in the event of litigation are presented in Section 6.2 of the Pilot Program MOU and in Section IV of the CE Assignment MOU.

ENVIRONMENTAL DOCUMENT REVIEW PROCESS

All NEPA and joint CEQA/NEPA documents must follow the applicable annotated outline. Annotated outlines support consistency, help facilitate project review, and ensure that environmental documents follow Department, 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. Annotated outlines are available for NEPA-only documents and for joint CEQA/NEPA documents on the Forms and Templates page.

Each District/Region must ensure that the quality control procedures are completed as described below for each environmental document prior to its approval. All quality control procedures and forms must be completed for both draft environmental documents and final environmental documents before they are approved. The District/Region must also ensure the Environmental Document Review Checklist is completed before the quality control process is finished. For routine Environmental Assessments and FONSIs, once the quality control review has been completed, the Senior Environmental Planner will recommend 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. See Signature Authorities - PDF (12KB) for more information on environmental document signature protocols.

Environmental documents prepared for projects on local streets and roads must be routed to the District Local Assistance Engineer (DLAE) prior to quality control review and the DLAE shall receive a copy of all review comments.

QUALITY CONTROL PROGRAM

The purpose of the NEPA Quality Control Review is to ensure that the environmental document complies with FHWA policies and guidance and the requirements of all applicable federal laws, executive orders, and regulations. The text below summarizes each of the quality control reviews that must take place. Note that the Environmental Branch Chief's quality control review must always occur last, but the other reviews may occur in any order that is determined to be most appropriate by the District/Region. For additional information regarding the quality control program, please see the policy memo on Environmental Document Quality Control Program under NEPA Assignment.

Resource/Technical Specialist Review

The purpose of the Resource Technical Specialist Review is to ensure the accuracy of specific resource studies and technical information summarized in the environmental document. A Resource/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 have been accurately identified within the environmental document.

Where there is no correlation/coordination involved with an external agency, no comment received on the issue and no other reason to update the resource/technical specialty information between the draft and final environmental document, no resource/technical specialist review of that issue is required for the final environmental document.

Reviewer Qualifications: The Resource/Technical specialist who prepared the technical study or another staff member with equivalent knowledge of the subject area is to conduct the review of the given subject area. Technical/Resource Specialist Review includes reviews, as appropriate, by Project Managers, Design Managers, Landscape Architecture, Construction, Maintenance, and Traffic in addition to the environmental functional unit reviews.

Internal Peer Review

The internal peer review is intended to provide a "fresh set of eyes," by having a qualified environmental staff member who, to guarantee independence and objectivity, has not participated in or supervised the development of the environmental document, prepared a technical study for the project, or performed technical specialist review of the environmental document. The peer review is a comprehensive, rigorous, and critical review of the document, conducted by an individual knowledgeable about regulations, guidelines, and standards and will provide comments as necessary, to ensure:

  • The environmental document complies with the appropriate annotated outline;
  • The text "tells the story" in a logical manner that is consistent in voice, with clarity and concise prose readily comprehensible to the lay reader; and
  • Graphics and tables included in the document support the text and are visually clear and understandable.

In those instances when a document is prepared by a Region or brokered to another District or Region, the Peer Reviewer for the document should be from the district in which the proposed project is located.

No Caltrans peer review is required for an environmental document prepared by a local agency or its consultant, a Peer Reviewer signature is not required. Any Caltrans review of a local agency-prepared document is an independent review, meeting the intent of the peer review.

Reviewer Qualifications: The internal peer review is to be conducted by a Department staff member with knowledge and experience equivalent to that needed for original work, at the Associate Environmental Planner level or higher.

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 will review the entire document and undertake the following:

  • Make corrections to the text as necessary to assure correct spelling, grammar, punctuation, syntax, and consistent use of terminology;
  • Ensure that typescript, subject headings, headers, footers, and other formatting conventions are being employed in a consistent manner;
  • Ensure that the graphics, tables, and figures are consistent with the text and that important textual references have been included; and
  • Ensure 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.

No Caltrans Technical Editor review is 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 Council on Environmental Quality (CEQ) NEPA regulations and FHWA regulations, policies, and standards for the implementation of NEPA and all other applicable federal environmental laws. The NEPA quality control review will provide 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 mitigation measures are properly identified, characterized, and are reasonable and practicable to implement;
  • Evidence of coordination with any 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.

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, and (3) certificate of completion in the Department's NEPA Compliance Training.

Environmental Branch Chief Review

The supervisor of the primary author or Environmental Planner responsible for oversight of the environmental document conducts the Environmental Branch Chief Review. The Environmental Branch Chief is to ensure that all Quality Control Program standards are being met for the project, that the document is technically accurate and consistent with the Standard Environmental Reference (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 all required quality control reviews have been completed. The Environmental Branch Chief quality control review occurs last and is the final signature on the Quality Control Certification form.

Reviewer Qualifications: This review is to be conducted by the Environmental Branch Chief - the Senior Environmental Planner overseeing the environmental branch of the Environmental Planner who prepared or was responsible for oversight of the subject environmental document.

Quality Control Plan

The District/Region may elect to prepare a quality control plan to implement the Quality Control Program Review process. The "Environmental Document Quality Control Program under NEPA Assignment" policy memo, signed by Jay Norvell, October 1, 2012, shall control to the extent there is any conflict between this policy and any District/Region prepared quality control plan.

Quality Control Certification Forms

All environmental document reviewers must sign a Quality Control Certification form at the conclusion of their review of the draft environmental document and final environmental document. The form is signed once the environmental document meets standards and requirements in the reviewer's area of expertise. The External Quality Control Certification must be used by local agencies and consultants, and the Internal Quality Control Certification must be used to document the completion of the Department's environmental document quality control reviews. Quality Control Certification forms must be completed before environmental document approval. Note that environmental documents for all projects, when the Department is NEPA lead agency, require an Internal Quality Control Certification form, regardless of whether they are prepared by the Department, a local agency, or a consultant. For Local Assistance projects and locally-sponsored projects, the form serves to document the Department's independent review of the environmental document. The Department will not conduct its independent review of the environmental document until the External Quality Control Certification has been completed by the local agency, the local agency's consultant, or Caltrans' consultant. For Local Assistance projects and locally-sponsored projects, both the External and Internal Quality Control Certifications must be retained in the project file. For additional information, please see the policy memo regarding the Environmental Document Quality Control Program under NEPA Assignment.

Environmental Impact Statement, Complex Environmental Assessment, and Individual Section 4(f) Evaluation Review Procedures

A five-step review process is required for all Environmental Impact Statements (EIS) and complex Environmental Assessments (EA) prepared under NEPA Assignment. The submittal requirements for an individual Section 4(f) evaluation are the same as those for an EIS. Complex EAs are defined as those EAs that have complex issues or impacts in that they may include 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 Division of Environmental Analysis (DEA) Environmental Coordinator, will determine 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 will determine which EAs are complex EAs with the concurrence of the Headquarters Environmental Coordinator.

The District/Region must ensure that the quality control procedures described above for each environmental document are completed. The District/Region must also ensure the Environmental Document Review Checklist is completed before the quality control process is finished.

All EISs and complex EAs will be reviewed by a DEA interdisciplinary team led by the Headquarters Environmental Coordinator prior to District/Region approval of the environmental document for public circulation or final approval. All EISs will be 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. Legal review of complex EAs is not required, but it is encouraged. The Legal Office will review complex and routine EAs, as time is available, at the request of the District/Region. Routine EAs may be signed in the District/Region at the completion of the District QC Review.

Below are the procedures to be followed for review of all EISs and complex EAs (referred to in this section of Chapter 38 as environmental document) both on and off the State Highway System, for which the Department has been assigned responsibility under NEPA Assignment. EISs and complex EAs prepared for projects on local streets and roads must be routed to the DLAE prior to the quality control review and the DLAE must receive a copy of all review comments. Please see the EIS/Complex EA Review Procedures flowchart - PDF (103KB) for a visual summary of the process.

Step 1: District Quality Control Review

The District/Region will conduct a quality control review of each administrative environmental document in accordance with the requirements specified in the policy memo entitled Environmental Document Quality Control Program under NEPA Assignment. The five reviews that constitute District/Region quality control are:

  1. Resource Specialist Review
  2. Peer Review
  3. Technical Editor Review
  4. NEPA Quality Control Review
  5. Environmental Branch Chief Review

The administrative environmental document will be revised as necessary, based on the District/Region quality control review. Comments received from all five levels of review will form the basis of revisions to the administrative environmental document. By signing the appropriate quality control certification form, each reviewer certifies that the document meets standards and requirements within the reviewer's area of expertise. The preparer of the environmental document or individual section 4(f) evaluation will also complete and sign the Environmental Document Review Checklist. The items on the checklist are to be cross-referenced with the corresponding page numbers found in the administrative environmental document. For environmental documents off the State Highway System, the local agency is responsible for providing cross-referenced page numbers on the checklist.

Once the Senior Environmental Planner supervising the Environmental Planner that prepared or oversaw preparation of the document determines that the administrative environmental document is complete and adequate, he/she will sign the Internal Quality Control Certification.

Review period is determined by District/Region.

Step 2: Division of Environmental Analysis and Legal Reviews

One week in advance of submitting the EIS, Complex EA, or individual Section 4(f) evaluation for review, the District/Region will notify the appropriate Headquarters Environmental Coordinator or Office of Local Assistance Reviewer. If the document is an EIS, the Legal Office will also be notified. Legal review of complex EAs is not required, but is encouraged.

To initiate DEA review, the District/Region will submit the following:

  1. Transmittal Memo signed by the District/Region Senior Environmental Planner requesting review
  2. 5 hard copies of the administrative environmental document
  3. 5 electronic copies of the administrative environmental document
  4. 1 hard copy of each technical study
  5. 1 electronic copy of each technical study
  6. 1 copy of the completed Environmental Document Review Checklist
  7. Completed and signed Internal and External Quality Control Certification Sheets, as applicable

Division of Environmental Analysis reviews will commence the first business day after receipt of the complete package during regular business hours.

To initiate formal Legal Division review of an EIS or individual Section 4(f) evaluation, the District/Region will submit the following:

  1. Transmittal Memo signed by the District/Region Senior Environmental Planner requesting legal review in the case of a Draft EIS, or legal sufficiency review, in the case of a Final EIS
  2. 1 hard copy of the administrative environmental document
  3. 1 electronic copy of the administrative environmental document
  4. 1 electronic copy of each technical study
  5. 1 copy of the completed Environmental Document Review Checklist
  6. Completed and signed Internal and External Quality Control Certification Sheets, as applicable.

Legal Division reviews will commence the first business day after receipt of the complete package during regular business hours.

During Step 2, DEA will perform a quality assurance review of the environmental document. The Legal Office will conduct a legal review of the Draft EIS, or a legal sufficiency review of the Final EIS.

The Headquarters Environmental Coordinator will perform a preliminary review to determine if the administrative environmental document is substantively complete and ready for interdisciplinary quality assurance review. In making this determination, the Headquarters Environmental Coordinator will confirm that the administrative environmental document follows the annotated outline and includes the following:

  1. Correct title page
  2. All chapters and necessary resource topics are present and complete
  3. All appendices are present and complete
  4. All required correspondence relative to procedural and regulatory requirements
  5. Complete, clear, legible, and logical exhibits and figures

If the Headquarters Environmental Coordinator finds that the administrative environmental document is not complete, DEA will not review the document, and the Legal Office will be instructed to suspend review until the Headquarters Environmental Coordinator determines that the project documentation is complete.

The Headquarters Environmental Coordinator will lead an interdisciplinary team of Headquarters resource specialists to review the document. Resource specialists will review pertinent portions of the document for accuracy and to ensure that regulatory requirements are appropriately addressed. The project technical studies will be used in support of the review. The Headquarters Environmental Coordinator will review the entire environmental document and perform a NEPA Quality Assurance review.

Concurrently, and independent of DEA, the Legal Office will perform its required review.

Once the interdisciplinary team has completed its review, the Headquarters Environmental Coordinator will consolidate the comments to assist the District/Region in making necessary revisions to the administrative environmental document. The Legal Office will provide its legal review or legal sufficiency comments to the District/Region with a copy to DEA; comments from the Legal Office are independent from the DEA comments. The Headquarters Environmental Coordinator and Legal Office will coordinate to reach a common understanding on comments before they are submitted to the District/Region.

In the event that the Headquarters Environmental Coordinator and the Legal Office have no comments on the administrative environmental document, the Headquarters Environmental Coordinator will recommend to the District/Region that the environmental document is ready for signature. For a Final EIS, where legal sufficiency is involved, the Legal Office will provide a legal sufficiency finding.

The review period is 22 business days. Following that 22 business day period, the Headquarters Environmental Coordinator will transmit comments on the environmental document to the District/Region and DLAE if applicable, with a copy to the responsible Legal Office. Legal will transmit its legal review comments or legal sufficiency review comments to the District/Region and DLAE if applicable, with a copy to the Headquarters Environmental Coordinator.

Step 3: District/Region Final Revision and Review Process Summary

During Step 3, the District/Region will revise the administrative environmental document in response to all comments that were received from DEA and, when applicable, from the Legal Office. The District/Region is encouraged to communicate with the Headquarters Environmental Coordinator if further clarification is needed regarding comments. The Headquarters Environmental Coordinator will work with the District/Region to resolve issues identified in the comments and to ensure the document has been revised accordingly. A meeting or workshop may be convened by the Headquarters Environmental Coordinator or the District/Region/DLAE to facilitate this process.

Once the environmental document has been revised in response to comments, the Senior Environmental Planner will then review the revised environmental document and the revised Internal Quality Control Certification to ensure that all comments have been appropriately addressed.

The review period is determined by the District/Region.

Step 4: HQ Pre-Approval Review

The District/Region will submit the following materials to Headquarters DEA:

  1. Transmittal Memo signed by the District/Region Senior Environmental Planner stating that the document has been revised pursuant to Headquarters Environmental Coordinator comments and requesting pre-approval review
  2. 1 copy of the revised environmental document
  3. 1 copy of revised environmental document with track changes (not read-only), showing additions and deletions
  4. 1 copy of comments with a response key
  5. 1 copy of the completed Environmental Document Review Checklist, as revised
  6. 1 copy of the revised signed Internal and External Quality Review Certification Sheets, as applicable

The Legal Office will receive the following:

  1. Transmittal Memo signed by the District/Region Senior Environmental Planner stating that the document has been revised pursuant to the legal review or legal sufficiency review and requesting pre-approval review or legal sufficiency finding
  2. 1 copy of the revised environmental document
  3. 1 copy of revised environmental document with track changes (not read-only), showing additions and deletions
  4. 1 copy of comments with a response key
  5. 1 copy of the completed Environmental Document Review Checklist, as revised
  6. 1 copy of the revised signed Internal and External Quality Review Certification Sheets, as applicable

The Headquarters Environmental Coordinator and the Legal Office, as appropriate, will review the revised environmental document to ensure that all comments have been adequately addressed and that the environmental document is ready for signature. Both the Headquarters Environmental Coordinator and the Legal Office must concur that its comments have been addressed. At this point, the Headquarters Environmental Coordinator will take one of the following actions:

  1. Find that minor changes are needed and coordinate directly with the document preparer to make the changes;
  2. Determine that substantive issues remain and inform the District/Region in writing of the deficiencies and instruct them to resubmit the document upon subsequent revision; and
  3. Conclude that the environmental document is adequate and ready for circulation.

For the Final EIS, the Legal Office will make a legal sufficiency finding, if appropriate, or advise the District/Region that additional revision is necessary. No approval action may be taken until both Headquarters Environmental Coordinator quality assurance and legal review or legal sufficiency are satisfied.

The review period is 10 business days.

Following the 10 business day period, in the event that substantive changes are required to the document, the Headquarters Environmental Coordinator will prepare a memorandum for the District/Region detailing the deficiencies requiring correction.

Upon completion of Headquarters DEA review and completing legal review or achieving legal sufficiency, the Headquarters Environmental Coordinator will recommend in writing to the District/Region that the environmental document is ready for signature. The environmental document may not be signed until the ready-for-signature recommendation is received by the District/Region.

Step 5: District Approval of the Draft or Final Document or Record of Decision for Public Circulation/Notification

Before public circulation of the DEIS and FEIS, the District/Region must complete the steps below.

For DEIS:

  • Legal Office concurs that its comments have been addressed and that the DEIS may be signed.
  • Headquarters Environmental Coordinator recommends in writing that the DEIS is ready for signature.

For FEIS:

  • Legal Office provides Legal sufficiency determination.
  • Headquarters Environmental Coordinator recommends in writing that the FEIS is ready for signature.

Following the recommendation of the Headquarters Environmental Coordinator that the environmental document is ready for signature, the District/Region will sign the environmental document, consistent with the signature authorities below, and begin public circulation.

The Record of Decision (ROD) shall be 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 FEIS is published in the Federal Register.

Signature Authorities

Complex EA or Finding of No Significant Impact (FONSI) for Complex EA: Both the Senior Environmental Planner and the Headquarters Environmental Coordinator will 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 the: (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 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 DEISs, but may not be delegated for the FEIS or ROD. 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 protocol section for a listing by each document/determination type.

INTERNAL CONFLICT RESOLUTION

Under NEPA Assignment, the Department 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;
  • DEA 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 the Department's Legal Division, 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. Click here for a diagram of the resolution process.

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 the Department's 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, the Department 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 23 USC 326 CE Assignment MOU and the 23 USC 327 NEPA Assignment 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 USC 326 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 23 USC 326 CE Assignment MOU. Caltrans prepared a background paper (34KB) 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 23 USC 327 NEPA Assignment MOU, in addition to assigning the Department the authority to approve environmental documents, also assigns the Department the authority to approve those categorically excluded activities not covered under the CE Assignment MOU.

Categorical Exemption/Exclusion Form (CE/CE)

The Categorical Exemption/Exclusion Form (CE/CE) must be used to document the CE determination and address the provisions of the CE Assignment and the NEPA Assignment MOUs.

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 NEPA Assignment MOU.

The Categorical Exclusion Checklist is used to aid in making these determinations. The checklist must be completed for each project and included in the project environmental file. The checklist includes:

  • All designated CE actions;
  • The CE "unusual circumstances" from 23 CFR 771.117(b); 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

Prior to CE approval, the Department will carry out a review of the proposed CE determination and consider the environmental analysis and project environmental file including the CE Checklist. The review process shall include, at a minimum, review of the documentation and proposed determination by a competent Peer Reviewer who is not a preparer of the CE documentation. Based on his/her review, the Senior Environmental Planner or designee determines if the CE/CE form is ready for signature. The CE determination, for all of the assigned categories, will be approved by the Department's District Environmental Office Chief or Senior Environmental Planner. The Senior Environmental Planner and the Project Manager or DLAE, as appropriate, both sign the CE/CE form. The Senior Environmental Planner signature cannot be delegated.

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

SECTION 4(f)

NEPA Assignment and CE Assignment assign approval of Section 4(f) evaluations and determinations to the Department, 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 CE Assignment and NEPA Assignment. Letters of Notification can be found at the SER MOUs/MOAs page.

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 Environmental Impact Statement (EIS) or Environmental Assessment (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. The Department 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 (Pilot Program MOU 8.1.5).

On the first page of each stand-alone Section 4(f) evaluation, the Department must insert the following language in a way that is conspicuous to the reader (Pilot Program MOU 3.2.5):

For NEPA Assignment 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."

For CE Assignment 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. 326."

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 District Local Assistance Engineer 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 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 Categorical Exclusion Checklist and on the CE determination 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.

Signature Protocols

Under NEPA Assignment, all environmental document approvals occur at the District/Region. In certain instances, the Headquarters Environmental Coordinator must recommend that the document is ready for signature before the document may be approved. Legal review is also required for Draft EISs and individual Section 4(f) evaluations and legal sufficiency is required for all Final EISs and individual Section 4(f) evaluations before they may be approved by the District/Region.

For each document/determination type for projects under NEPA Assignment, click on signature authorities (12KB).

The District Director may sign the Draft EIS or delegate this signature to the Deputy District Director for Environmental, at the District's discretion. This delegation must be in writing. The District Director signs the Final EIS and Record of Decision. These signatures may not be delegated.

If specifically designated, District Directors may delegate signature authority for Environmental Assessments and FONSIs to the Deputy District Director for Environmental or to the Environmental Office Chief (the Supervising Environmental Planner who is managing the environmental unit preparing or overseeing the EA/FONSI).

Assignment Language for Environmental Documents

The following statement must appear on the cover of each Environmental Assessment, Finding of No Significant Impact, Environmental Impact Statement, Record of Decision, and Section 4(f) evaluation prepared under NEPA Assignment:

"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."

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 Council on Environmental Quality's NEPA regulations at 40 CFR 1506.9, the Department 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 HQ 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

The Department 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 days of receipt. Upon request by the FHWA, Caltrans will reimburse FHWA for the expenses associated with publishing documents in the Federal Register (MOU 8.4.1).

However, for NEPA Assignment projects only, the Department does have the authority to submit Environmental Impact Statements directly to U.S. EPA. The Department 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, the Department will prepare and approve reevaluations of EISs and revalidations of FONSIs and CEs. The procedures for these are discussed in Chapter 33 - Reevaluations.

Supplemental EISs will be prepared and approved by the Department. They are subject to the Quality Control process and EIS Review procedures described in this chapter.

REVIEW AND APPROVAL FOR SPECIFIED TECHNICAL STUDIES

AIR QUALITY

Procedural Aspects of Project-Level Conformity under 23 USC 327 NEPA Assignment

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 Subparts A (highways and transit) and 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 or FTA 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 (170KB) which depicts the project-level conformity analysis process in general.

NEPA in Relation to the Conformity Process

The FHWA and FTA are 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 final design, acquire a substantial amount of right of way, and complete design (PS&E or Ready to List). See 40 CFR 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.

NEPA Assignment and CE Assignment Effect on the Conformity Process

For projects covered under CE Assignment, the conformity determination is made by the Department 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.

NEPA Assignment includes projects that do not qualify for CE Assignment and projects requiring environmental documents leading to a FONSI or ROD. Air quality conformity determinations were expressly excluded from NEPA Assignment. Therefore, projects under NEPA Assignment pursuant to 23 USC 327 need a conformity determination from FHWA prior to the Department's NEPA approval. If the Department 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 23 USC 326 CE Assignment 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 "attainment/"unclassifiable" (not attainment-maintenance) for all NAAQS, i.e., it has never been nonattainment for any of the current NAAQS. As of January 2014, this was true in all of District 1, most of District 2, and parts of Districts 3, 4, 5, 8, 9, and 10. A map-PDF (390KB) and table 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 23 USC 326 CE Assignment.

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.

An air quality conformity findings checklist has been developed to summarize and document the conformity analysis and determination for projects. This checklist is to be completed for all projects under CE Assignment.

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 project-level air quality conformity determination is documented by completing the air quality conformity findings checklist and marking the appropriate conformity finding. The checklist is completed and signed by the District/Region project-level conformity coordinator, indicating that analysis is complete and documented in the project file. If the project is exempt from conformity analysis, environmental staff may sign the checklist. The Senior Environmental Planner's signature on the Categorical Exclusion processed under CE Assignment 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.

For Local Assistance projects, the checklist must be used to document the project-level air quality conformity determination.

Procedures for 23 USC 327 NEPA Assignment Conformity Determinations

Conformity Analysis

Projects that are approved under NEPA Assignment 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 "attainment/unclassifiable" (not attainment-maintenance) for all NAAQS, i.e., it has never been nonattainment for any of the current NAAQS. As of September 2012, this was true in all of all of District 1, most of District 2, and parts of Districts 3, 4, 5, 8, 9 and 10. A map - PDF (390KB) and table 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 23 USC 327 NEPA Assignment.

At least one viable alternative, for conformity analysis done at the draft environmental document (DED) 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 DED stage, and matches the MTP/RTP and TIP, no additional interagency consultation or public notice will be needed when the Air Quality Conformity Analysis (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 DED 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.

The Department will document the air quality conformity analysis and submit it to FHWA who will make the formal conformity determination. The air quality conformity findings checklist will be completed as part of that documentation. The air quality conformity analysis and request for air quality conformity determination must be submitted by the Department to FHWA. An annotated outline has been developed for the AQCA report.

For Local Assistance projects, the local agency prepares the AQCA and submits it to the Department. The Department is responsible for submitting the AQCA and request for air quality conformity determination to FHWA. FHWA will make the conformity determination.

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. 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 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 in 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.

An annotated outline has been developed for the air quality conformity analysis submittal to FHWA.

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 NEPA Assignment, 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 the Department. 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 NEPA Assignment and CE assignment, the Department will ensure that all natural resource documents (Natural Environment Study (NES), Natural Environment Study Minor 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 the Department.

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 (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 the Department 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. Under NEPA Assignment, only a Department 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 the Department, the separate signature page will also have the management representative's signature prior to submission to the Department for review.

The United States Fish and Wildlife Service and the National Marine Fisheries Service have been notified of the Department's federal natural resources responsibilities under both the CE Assignment and NEPA Assignment. Letters of Notification can be found at the SER MOUs/MOAs page.

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 and CE Assignment, the Department 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). The Department 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 (Pilot Program MOU 4.2.3; CE Assignment MOU IV.D.2: PA Attachment 1).

The State Historic Preservation Officer and the Advisory Council on Historic Preservation (ACHP) have been notified of the Department's federal cultural resources responsibilities under both 23 USC 326 CE Assignment and 23 USC 327 NEPA Assignment. Letters of Notification can be found at the SER MOUs/MOAs page.

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

Working with Section 106 and the Programmatic Agreement for Section 106

The State Historic Preservation Officer (SHPO) and the ACHP have recognized the authority of the Department to act as the federal agency for compliance with Section 106 and the Section 106 PA, in accordance with the terms of the Memoranda of Understanding (MOU) that assign this authority to the State pursuant to 23 USC 326 and 327, excepting FHWA's government-to-government responsibilities to tribes.

The 2014 Section 106 PA incorporates the Department's legal authority under NEPA Assignment. FHWA remains the agency officially responsible for Section 106 compliance on those projects not covered in the MOUs, however the PA delegates substantial authority to Caltrans even on those projects not covered in the MOU.

The 2014 Section 106 PA delegates the majority of FHWA's Section 106 duties to the Department. Under the original Section 106 PA and prior to NEPA Assignment, FHWA received concurrent copies of documents transmitted by the Department 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 the Department"s 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.

The Department"s document review and distribution requirements under the Section 106 PA are outlined below. For those projects not covered in the MOUs, CSO copies to FHWA only No Adverse Effects or Adverse Effects documents.

  • Historic Property Survey Report (HPSR): If the HPSR is submitted to the SHPO for an eligibility consensus determination, CSO receives concurrent copy of the HPSR for notification only;
  • Finding of No Historic Properties Affected: CSO receives copy of the SHPO notification (usually concurrent with HPSR);
  • Finding of No Adverse Effect with Standard Conditions: District submits to CSO for 15 day review; no copy to SHPO (usually concurrent with HPSR);
  • Finding of No Adverse Effect without Standard Conditions: CSO reviews and approves the finding of effect. 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: CSO receives copy of the finding of effect concurrent with submittal to the SHPO;
  • Finding of Adverse Effect - other than the above: CSO reviews and approves the finding of effect report. 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 Memorandum of Agreement (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

The Department is responsible for floodplains studies and floodplains findings under NEPA Assignment and CE Assignment. For State Highway System projects, the Department Project Engineer will sign the Summary Floodplain Encroachment Report. The Department 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 the Department 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

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

CONSULTATION AND COORDINATION WITH FEDERAL AGENCIES

For projects assumed under NEPA Assignment and CE Assignment, the Department 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 Pilot Program MOU and Appendix B of the CE Assignment MOU. The Department 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 and CE Assignment, the Department is deemed to be acting as the FHWA with respect to the environmental review, consultation, and other action required under those responsibilities.

The Department 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, the Department 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 (Pilot Program MOU 7.1).

FHWA and Caltrans have notified all relevant federal agencies about pertinent changes in consultation procedures as a result of the Department's assumption of FHWA"s federal responsibilities under NEPA Assignment. Letters of Notification can be found at the SER MOUs/MOAs page.

FHWA will not intervene, broker, act as intermediary, or be otherwise involved in any issue involving the Department's consultation or coordination with another federal agency with respect to the Department's discharge of any of the responsibilities it has assumed under NEPA Assignment for any particular highway project. However, FHWA may attend meetings between the Department and other federal agencies and submit comments to the Department and the other federal agency in the following extraordinary circumstances:

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

The FHWA will notify both the Department and the relevant federal agency prior to attending any meetings between the Department 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 and CE 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 Technical Studies for additional details.

When sending consultation documents directly to a federal resource agency on a project for which the Department assumed responsibilities under CE Assignment, please include the following language 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 State Assumption of Responsibility for Categorical Exclusions, which became effective on June 7, 2007, and was renewed on June 7, 2010, and again on June 7, 2013. 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 the Department 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 23 USC 327 NEPA Assignment, which became effective on October 1, 2012. 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 NEPA Assignment 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, the Department has assumed FHWA"s role in resolving conflicts with external agencies. In this role, the Department 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, the Department is committed to forthright conflict resolution.

The Department's 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 the Department or to improve coordination between the Department and federal and state resource agencies. The MOUs highlighted below specify procedures for resolving conflicts with external agencies. The Department will use these procedures for resolving conflicts under NEPA Assignment and CE Assignment as appropriate.

Where the issue needing resolution does not involve one of the regulatory processes described above, the Department 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 23 USC 327 NEPA ASSIGNMENT

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 the Department under NEPA Assignment. FHWA remains responsible for all government-to-government consultation, including initiation of tribal consultation. A notice from the Department to an Indian tribe advising the tribe of a proposed activity is not considered "government-to-government consultation" within the meaning of the NEPA Assignment MOU. 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 the Department has assumed responsibilities under this MOU, and either the Indian tribe or FHWA determines that the issue or concern will not be satisfactorily resolved by the Department, then FHWA will reassume all or part of the responsibilities for the project (Pilot Program MOU 3.2.3; CE Assignment MOU II.B.1).

MONITORING AND OVERSIGHT

SELF ASSESSMENT AND PROCESS REVIEWS

Under NEPA Assignment, the Department 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 "self-assessment." Under this program, the Department is required to regularly perform self-assessments of its quality control and quality assurance process to determine whether its process is working as intended. The self assessment includes consideration of the effectiveness of its environmental procedures under NEPA Assignment and staff adherence to these procedures. The Department uses this self-assessment program to assess the success of NEPA Assignment 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 (Pilot Program MOU 8.2.5). The self assessments are conducted using a variety of monitoring tools, such as interviews with Department staff and resource agencies, distribution of questionnaires, review of project files, and data tracking tools.

Forty-five days after completion of a self assessment exercise, the Department will submit a summary of its self-assessment to the FHWA California Division Office. The summary is to include a description of the scope of the self-assessment conducted and the areas reviewed, a description of the self assessment process, a list of the areas identified as needing improvement, any corrective actions that have been or will be implemented, a statement from the Chief, Division of Environmental Analysis concerning whether the processes are ensuring that the responsibilities the Department assumed are being carried out in accordance with the NEPA Assignment MOU and all applicable federal laws and policies, and a summary of the Department"s progress toward achieving the performance measures. Self-assessments are to be completed no less than annually. The self assessment summary may be used to ensure compliance with the Department"s quality control and quality assurance process (Pilot Program MOU 8.2.6).

PERFORMANCE MEASURES TO ASSESS 23 USC 327 NEPA ASSIGNMENT

To evaluate the success of NEPA Assignment, FHWA and the Department mutually established a set of performance measures against which the Department is evaluated in administering the responsibilities it assumed. The Department collects and maintains all necessary and appropriate data related to meeting the performance measures and monitor its progress toward meeting the performance measures. The Department describes its progress toward meeting the performance measures during process reviews and in its self-assessment summaries, which are sent to FHWA. Pilot Program MOU Section 10.2 identifies the performance measures. The Department maintains a performance measure matrix that identifies performance measure indicators and metrics.

DATA MANAGEMENT AND ADMINISTRATIVE PRACTICES

ENVIRONMENTAL MILESTONE TRACKING

Every six months from the effective date of the NEPA Assignment MOU, the Department is required to provide a report to the FHWA California Division listing any approvals and decisions the Department has made with respect to the responsibilities assumed under NEPA Assignment (Pilot Program MOU 8.2.7; CE Assignment MOU IV.F.1). The following approvals and decisions are reported to FHWA every six months:

  • 23 USC 327 NEPA Assignment CE approvals;
  • 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 evaluations and final determinations are reported for programmatic and individual Section 4(f) situations; final de minimis impact findings are reported);
  • Section 106 Memoranda of Agreement (MOA);
  • Section 7 biological opinions and letters of concurrence; and
  • Re-validations where the original environmental document is in need of updating or is no longer valid.

In addition, the Department is required to measure its environmental document timeframes, both as a performance measure under the NEPA Assignment MOU and as a report to the California Legislature under Assembly Bill (AB) 1039, AB 2650, and AB 892 codified at Section 820.1 of the State of California Streets and Highways Code .

In order to efficiently and consistently capture data for reporting on environmental milestones, the Department 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, STEVE 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, including the Department's performance reports pursuant to 23 USC 326 CE Assignment and the Department's report to the State Legislature related to its waiver of sovereign immunity, as required by AB 1039, AB 2650, and AB 892.

STEVE fields 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 CE, EA, EIS, 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. Click for detailed instructions on tracking local assistance environmental milestones using LP 2000.

PROJECT FILES AND DOCUMENT RETENTION

The Department is required to maintain project files and general administrative files pertaining to its NEPA Assignment responsibilities. Within five days notice, the files are required to be reasonably available for inspection by the FHWA at the location of the files. These files shall include, but are not limited to, all letters and comments received from governmental agencies, the public, and others relative to the Department's NEPA Assignment responsibilities (Pilot Program MOU 8.2.4). See Important Environmental File Contents for a list of key environmental file contents. E-mails that support project decision-making, reflect deliberation, and demonstrate a "hard look" under NEPA are to be retained as part of the project 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.

The Department is required to retain all project files and general administrative files pertaining to NEPA Assignment for a period of at least three years after the termination of participation in NEPA Assignment (Pilot Program MOU 8.3.1; CE Assignment MOU IV.F.3). The required file retention period for some documents is longer. Specified document retention periods and their final storage location are identified below.

The document retention and storage requirements for NEPA Assignment are in addition to the Department's standard requirements for file retention. It will be necessary in some cases to send duplicate project records to FHWA for storage at the Federal Records Center, as described below.

The Department will ensure that the following retention periods are maintained for each specified type of record (Pilot Program MOU 8.3.2):

  • Environment Correspondence Files: Environment correspondence files include correspondence between the FHWA and the Department relative to the interpretation, administration, and execution of environmental aspects of the Federal-aid highway program. The Department is required to maintain environmental correspondence files for a period of three years after the resolution of the particular issue for which the file is created. After three years, the Department must transmit environmental correspondence files to the FHWA to be stored at the Federal Records Center. When environmental correspondence files are eight years old, the FHWA will transfer the files to the National Archives for permanent storage.
  • Environmental Impact Statements and/or Section 4(f) Statements - FHWA: Files containing reviews and approval of EISs and Section 4(f) statements for which the Department, in assuming the FHWA"s responsibilities, is the lead agency shall be maintained by the Department for a period of eight years after approval of the final statement. After eight years, the Department shall transmit its EIS and/or section 4(f) files to the FHWA to be stored at the Federal Records Center. After a period of thirteen years from the date of approval of the final statement, EIS and/or section 4(f) files will be destroyed.
  • Environmental Impact Statements - Other Agencies: Files containing reviews and comments furnished by the Department to other federal agencies following reviews of an EIS for which another federal agency is the lead agency shall be maintained by the Department for a period of five years. After five years, the Department may destroy these files when no longer needed.
  • Fish and Wildlife Coordination: Files containing correspondence with the fish and wildlife resource agencies early in project development may be destroyed by the Department when no longer needed.
  • Noise Barriers: Files containing correspondence, publications, presentations, installation reports for wall barriers, and design of different types of wall barriers by private industry must be maintained by the Department for a period of three years after the end of the federal fiscal year in which the particular file is closed.

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 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. These requirements relate to the Department's performance reports required under CE Assignment, and the Department's Assembly Bill 2650 report to the State Legislature required as part of the Department waiver of sovereign immunity. Establishing and maintaining these files is essential under NEPA Assignment, as FHWA may request the Department's 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);
  • 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

Assembly Bill (AB) 1039 and AB 2650 require the Department to report to the California Legislature on the costs of NEPA Assignment. NEPA Assignment costs are the costs of new staff work requirements for 23 USC 327 - work that would not be done if NEPA Assignment did not exist, plus the costs of defending any legal challenges under NEPA Assignment New work being performed because of NEPA Assignment consists of:

  • District/Region NEPA Quality Control Review;
  • Informal NEPA Assignment training;
  • Planning for and participating in FHWA audits;
  • Participating in the Department's NEPA Assignment self assessments; and
  • New environmental milestone tracking, which is required for reporting to FHWA and the Legislature. This includes activities such as providing data or responding to requests for quality control or data collection for NEPA Assignment reports or other NEPA Assignment milestone reporting.

For this new work on 23 USC 327 capital projects only, employees are to use the Special Designation 6DELE along with the standard project EA, and the appropriate WBS code, for NEPA Assignment activity.

There are no changes in charging practices for CE projects under the CE Assignment MOU.

The Local Assistance program as a whole does not track staff time using individual project EAs with WBS codes. The EA 965106 and series of subjobs shown below have been created for all Local Assistance staff conducting the activities related to NEPA Assignment and CE Assignment:

  • 3NPQC - NEPA Quality Control Review;
  • 3REP5 - All environmental milestone and activity reporting required for NEPA Assignment projects;
  • 3NPR5 - All environmental staff work developing and participating in audits, self-assessments, or other program reviews required for 23 USC 327 NEPA Assignment;
  • 3REP4 - All environmental milestone and activity reporting required for 23 USC 326 CE Assignment projects;
  • 3NPR4 - All environmental staff work developing or participating in process reviews required for 23 USC 326 NEPA Assignment;
  • 3NINT - Informal trainings and presentations specific to NEPA Assignment provided to internal staff; and
  • 3NEXT - Trainings and presentations specific to NEPA Assignment provided to external agencies and consultants.

Click here to download a desktop version of charging practices (35KB) information.

Useful Links

a. NEPA Assignment Website

b. SER Forms & Templates

c. SER Policy Memos

(Last content update: 06/09/14, JH)