NEPA Assignment streamlines the federal environmental review and approval process by eliminating FHWA's project-specific review and approval. In reviewing and approving projects under NEPA, Caltrans is responsible for complying with all applicable federal environmental laws and with FHWA NEPA regulations, policies, and guidance, and is legally responsible and liable for the environmental decisions made on projects under NEPA Assignment. NEPA Assignment does not change federal environmental protection standards. NEPA Assignment has resulted in documents being approved in less time; improved the efficiency in which Caltrans prepares, reviews, and approves environmental documents; improved the quality of documents; and provides for greater accountability through monitoring.
Since 2007, Caltrans has performed federal responsibilities for environmental decisions and approvals under NEPA for highway projects in California that are funded by FHWA. These responsibilities have been assigned to Caltrans by FHWA pursuant to two Memoranda of Understanding (MOU) signed by FHWA. The 23 USC 326 MOU allows Caltrans to approve 326 Categorical Exclusions (CEs); the 23 USC 327 MOU allows Caltrans to approve Environmental Assessments (EA) and Environmental Impact Statements (EIS), and Categorical Exclusions that cannot be approved as 326 CEs.
Effective March 30, 2017, FHWA lifted the suspension on NEPA Assignment and authorized Caltrans to resume participation in NEPA Assignment under the 23 USC 326 and 23 USC 327 MOUs. Caltrans’ participation in the NEPA Assignment Program was suspended on January 1, 2017 when Section 820.1 of the California Streets and Highways Code was repealed and California’s waiver of sovereign immunity expired. The waiver of immunity was reinstated on March 29, 2017, when California Governor Brown signed into law AB 28, which added back Section 820.1 to the Streets and Highways Code. Under Section 820.1, California consents to the jurisdiction of federal courts for actions and decisions made by Caltrans under the 23 USC 326 and 23 USC 327 MOUs.
Please refer to the SER for the most current guidance.
Waiver of Sovereign Immunity
Under NEPA Assignment, California assumes sole responsibility and liability for its NEPA actions and decisions and is subject to federal court jurisdiction. California waived its 11th amendment right to sovereign immunity against actions brought by its citizens in federal court for the narrow purposes of NEPA Assignment. The waiver has been enacted through a series of State legislative bills that added Section 820.1 to the Streets and Highways Code. More information on these bills and the waiver is contained here.
23 USC 327
23 USC 327 Memorandum of Understanding (December 30, 2016)
On December 23, 2016, FHWA renewed the Caltrans 23 USC 327 NEPA Assignment MOU (327 MOU) for a term of 5 years. This renewal allows Caltrans to continue performing federal environmental responsibilities for highway projects under NEPA and other federal laws.
23 USC 326
23 USC 326 Memorandum of Understanding (December 30, 2016)
23 USC 326 Memorandum of Understanding (May 31, 2016)
Anticipating the January 1, 2017 expiration of the required waiver of sovereign immunity and the resulting suspension of Caltrans CE Assignment authority, FHWA and Caltrans entered into a Programmatic CE (PCE) Agreement that allowed Caltrans to approve some 326 CEs during the suspension period. The effective date of the PCE was January 1, 2017. With approval of AB 28 and the waiver of sovereign immunity back in place, Caltrans is again authorized to approve CEs pursuant to the 23 USC 326 MOU and the PCE is no longer effective.
Please refer to the SER for the most current guidance, templates and forms to use under CE Assignment.
After renewing the 23 USC 326 CE MOU on May 31, 2016, for a three-year term, FHWA proposed an amendment to the MOU (linked above), which clarifies provisions related to legal communications between Caltrans and FHWA and to any expiration of California’s waiver of immunity. The FWHA published the proposed amendment in the Federal Register for public comment. No comments related to this MOU were received during the public comment period that ended May 11, 2016. The amendment was signed on December 30, 2016 by Caltrans and FHWA.