Chapter 38 NEPA Delegation

For both programs, the Department has also assumed the U.S. DOT 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 Section 6004 CE MOU). The Department is responsible for complying with the requirements of all applicable environmental laws and regulations regardless of its inclusion on the list of FHWA responsibilities assigned.

FHWA’s air quality conformity responsibilities may not be assigned to the Department under the Pilot Program MOU [3.2.4]. Air quality conformity determinations for CEs assigned to the Department under the Section 6004 CE MOU have been assigned to the Department [Section 6004 CE MOU, Appendix B].

The USDOT Secretary’s responsibilities for government-to-government consultation with Indian tribes as defined in 36 C.F.R. 800.16(m) may not be assumed by the Department under either the Pilot Program MOU [3.2.3].or the Section 6004 CE 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.

Under the Pilot Program, the Department’s assumption of responsibilities applies to [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 Section 6004 CE MOU, both on the State Highway System and Local Assistance projects off the State Highway System, with the exception of the following project:
  
  
  • District 4: BART Seismic Retrofit of the Aerials Structures and Stations Along the Fremont, Concord, Richmond, and Daly City Line
• 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 the NEPA Pilot Program assignment [MOU 3.3.2]:

• Transit projects funded, in whole or in part, by the Federal Transit Administration 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

The Department is solely liable and solely responsible for carrying out all of the USDOT Secretary’s responsibilities it has assumed under the Pilot Program and Section 6004 CE MOU, 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 the Pilot Program [MOU 6.1.1; Section 6004 CE MOU 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 the Pilot Program. 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 [MOU 4.2.2].
• In assuming the USDOT Secretary’s responsibilities under the Pilot Program, 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 [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 [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 the Pilot Program and Section 6004 CE MOU 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 [MOU 5.1.3]

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

In discharging any of the USDOT Secretary’s responsibilities under the Pilot Program, 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 [MOU 6.3.1].

Except as specifically provided otherwise in the Pilot Program MOU, FHWA will not provide any project-level assistance to the Department in carrying out any of the responsibilities it has assumed under the Pilot Program. 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 [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 the Pilot Program, including, but not limited to, those processes and procedures concerning the Department’s consultation, coordination, and communication with other Federal agencies [MOU 8.1.4].

In order for the Department to assume sole responsibility and liability for its NEPA actions and decisions and be subject to Federal court jurisdiction, California was required to waive its 11th amendment right to sovereign immunity from citizens' suits brought in Federal court, for the narrow purposes of the Pilot Program and CE assignment. The waiver was enacted as part of AB 1039 in the spring of 2006 and became effective in November 2006 when the voters passed the transportation bond (Proposition 1B).

The State of California and the Department have consented to and accepted the exclusive jurisdiction of the Federal courts for any matter arising out of or relating to the Pilot Program and the Section 6004 CE MOU, 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 the Pilot Program or Section 6004 CE MOU, or reassumption 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 the Pilot Program. [MOU 4.3.1; Section 6004 CE MOU V.B]

The Department will defend, at its own expense, all claims brought in connection with the performance or non-performance of any responsibility assumed and discharged under Pilot Program or the Section 6004 CE MOU, including claims concerning the Department’s performance or nonperformance of such responsibilities while participating in the Pilot Program. In the event of litigation, the Department will provide qualified and competent legal counsel, including outside counsel if necessary [MOU 6.2.1; Section 6004 CE MOU 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 Section 6004 CE MOU.

The Department revised its environmental quality control program in response to its new role under the Pilot Program. The most important revision to the quality control program is the addition of a NEPA Quality Control Review. The purpose of this new review component 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 the NEPA Pilot Program.

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 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
• All anticipated permit and/or approval actions have been accurately identified within the 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.

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;
• 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.

When completing the Internal Quality Control Certification form 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.

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;
• Ensure that the document is written clearly and in a consistent voice, that textual information is provided in a concise manner that is easily understandable to the public.

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.

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;
• 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 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.

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;
• 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.

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.

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

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 reviewers 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. Note that environmental documents for all projects 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-prepared 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 the NEPA Pilot Program.

A five-step review process is required for all Environmental Impact Statements (EIS) and complex Environmental Assessments (EA) prepared under the Pilot Program. Complex EAs are defined as those EAs that 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 complete the quality control procedures described above for each environmental document. The District/Region must also complete the Environmental Document Review Checklist before completion of the quality control process.

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. The Legal Office will review 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 the Pilot Program. 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 for a visual summary of the process.

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 the NEPA Pilot Program. 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 is adequate within his or her area of expertise. The preparer of the environmental document will also complete the Environmental Document Review 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 and 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.

Review period is determined by District/Region.

One week in advance of submitting the EIS or Complex EA 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.

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.

To initiate Legal Division review, 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.

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 30 days. Following that 30 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.

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.

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
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
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;
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 days.

Following the 10 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.

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.

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 assessment 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 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 Enviromental Coordinator's recommendation may occur through e-mail or memo.

See Signature Authorities for the signature protocol for each document/determination type.

Under the Pilot Program, 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 Delegation 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.

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

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

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

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

The responsibility for making Categorical Exclusion (CE) determinations has been assigned to Caltrans through the Section 6004 CE MOU and the Pilot Program MOU.

Section 6004 of SAFETEA-LU, "State Assumptions of Responsibilities for Categorical Exclusions", 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 U.S. Department of Transportation Secretary. States may also assume Federal environmental consultation and coordination responsibilities for those projects. The assigned responsibility for CE determinations under Section 6004 is limited to those actions specifically listed or referenced in the the Section 6004 CE MOU between Caltrans and FHWA, executed on June 7, 2007: those actions on the 23 CFR 771.117 "c" list, those actions listed as examples on the 23 CFR 771.117 "d" list, and the additional actions listed in Appendix A of the MOU. Caltrans prepared a background paper to support designating the seven additional actions as CEs in Appendix A.

The Pilot Program MOU, in addition to assigning Caltrans the authority to approve environmental documents, also assigns Caltrans the authority to approve those categorically excluded activities not covered under the Section 6004 CE MOU.

Because the Department has been assigned authority to make CE determinations, the Programmatic Categorical Exclusion (PCE) is now suspended.

The Categorical Exemption/Categorical Exclusion form has been revised to address the provisions of the Section 6004 CE MOU and the Pilot Program MOU. The new form identifies the applicable MOU under which CE determination has been made.

If the project is being approved under Section 6004, 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 Section 6004 CE MOU, the planner will identify the applicable activity number from one of the following: (1) the ‘c’ list, (2) the examples from the ‘d’ list, or (3) Appendix A of the MOU. Once identified, the applicable activity number will be entered on the CE/CE form. It is anticipated that most projects will be approved under Section 6004 provisions.

For those projects not covered under the specified activities of the Section 6004 CE MOU, the project can be approved under the Pilot Program MOU.

A Categorical Exclusion Checklist has been developed to aid in making these determinations. The checklist is to 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);
• Other Federal environmental laws, regulations, and Executive Orders that need to be considered in reaching the CE determination;
• Anticipated permits for the project.
• An Air quality CE conformity analysis checklist has been developed 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.

The Senior Environmental Planner or her/his designee determines if the CE/CE form is ready for signature. 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.

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.

Under the Pilot Program, 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 the Pilot Program, click on signature authorities.

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 assessment unit preparing or overseeing the EA/FONSI).

The following statement must appear on the cover page of each environmental assessment, finding of no significant impact, environmental impact statement, record of decision, and Section 4(f) evaluation prepared under the Pilot Program:

"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.

Following the Council on Environmental Quality's NEPA regulations at 40 CFR 1506.9, Caltrans is required to submit all EISs, together with comments and responses, to the U.S. Environmental Protection Agency (EPA), attention Office of Federal Activities in Washington, D.C. At least two copies must also be sent to the EPA Region 9 office in San Francisco.

For a draft EIS, see SER Chapter 37 for the distribution list for further information on this submittal requirement. For a final EIS, see the FEIS distribution list in Chapter 37.

Caltrans does not have the authority to submit documents to the Federal Register, such as the Notice of Intent under 23 C.F.R. 771.123(a) and Notice of Final Agency Action under 23 U.S.C. 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].

"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 or ARB) 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. Environmental Protection Agency (EPA) for approval.

Conformity requirements come from Section 176(c) of the Clean Air Act, which is codified at 42 United States Code (USC) 7506(c). Specific criteria and procedures for carrying out the conformity process are in the Code of Federal Regulations (CFR) at 40 CFR 93 Subparts A (highways and transit) and B (general Federal actions). Essentially all projects that are funded or approved by the Federal Highway Administration (FHWA) or Federal Transit Administration (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 it comes from a conforming regional transportation plan and transportation improvement program, 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 conformity process flowchart of the project-level conformity analysis process in general.

The FHWA and FTA are responsible for making a project-level conformity determination at the time that final NEPA action occurs for highway and transit projects. Language is usually inserted into or attached to the ROD, FONSI, or CE determining that the requirements of 42 USC 7506(c) are met. This determination is made in consultation with EPA, as outlined in an MOU between the U.S. Department of Transportation (DOT) and 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 approve 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 (CE, FONSI, or ROD) starts three-year clocks for project progress. No more than three years can elapse between each of the "major steps" of: NEPA action, start final design, acquire a substantial amount of right of way, and complete design (PS&E or RTL). See 40 CFR 93.104(d). If the specified milestones are not met, 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-evaluations to document compliance with this requirement.

Under NEPA Delegation, FHWA has assigned its NEPA responsibilities to Caltrans for highway projects. There are two forms of assignment: Section 6004, which covers most Categorical Exclusion determinations, and Section 6005, the broader Pilot Program. Projects covered under Section 6004 are processed using certain NEPA CEs only, and the conformity determination is made along with NEPA approval by Caltrans. Projects covered under Section 6005 include some that use a NEPA CE, and all that use a higher level document leading to a FONSI or ROD. Air quality conformity determinations were expressly excluded from the Pilot Program assignment by statute. Therefore, Section 6005 projects continue to need a conformity determination from FHWA, although all other NEPA related actions are assigned to Caltrans. Since all Section 6004 projects will qualify for a NEPA CE, it is likely that many will be either fully exempt, or exempt from regional analysis requirements, for conformity purposes.

A flowchart has been developed to depict the air quality conformity process.

Projects that are approved under the Section 6004 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 August 2007, this was true in all of Districts 1, 2, and 5, and parts of Districts 3, 4, 8, 9, and 10. A map 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.
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 49 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.
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 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.

Because all Section 6004 eligible projects projects are processed using a NEPA CE, public involvement regarding conformity determination in situation #3 is not needed unless adopted public involvement procedures for the region (MPO) or the project proponent require it.

A CE conformity analysis checklist has been developed to summarize and document the conformity analysis and determination for CEs.

The project-level air quality conformity determination is documented by completing the conformity analysis checklist and marking the appropriate conformity finding. The checklist is completed and signed by the District/Region project-level conformity coordinator or other expert, indicating that analysis is complete and documented in the project file. The Senior Environmental Planner's signature on the 6004 Categorical Exclusion formally documents the conformity determination for the project.

For Local Assistance projects, the checklist may be used. Or, if a letter or memo documenting the conformity determination is preferred by the agency, the local agency conformity documentation sample letter language provided may be used.

As with Section 6004 projects, projects that are approved under the Section 6005 or Pilot Program 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" for all NAAQS, i.e. it has never been Nonattainment for any of the current NAAQS. As of August 2007, this was true in all of Districts 1, 2, and 5, and parts of Districts 3, 4, 8, 9 and 10. See the map and table of 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.
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.
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.

If the preferred alternative differs substantially from the alternative(s) examined in the conformity analysis used for Draft NEPA document public circulation, it may be necessary to again carry out interagency consultation to confirm PM10 and PM2.5 hot spot analysis findings. Unless otherwise required by applicable public involvement procedures, it should not usually be necessary to re-do public circulation.

Public involvement is required regarding the project-level conformity analysis for Section 6005 projects requiring an EA or EIS. This will normally be done as part of the NEPA document public circulation process. Language should be used in public notices that references the conformity analysis, and the analysis should be made available to the public along with the NEPA document. Response to public comments addressing the conformity analysis must be documented in the conformity analysis that is submitted to FHWA to support the conformity determination.

Caltrans will document the air quality conformity analysis and submit it to FHWA for the formal conformity determination. An annotated outline has been developed for the air quality conformity analysis. A conformity review checklist has also been developed that may be used by air quality specialists or environmental assessment staff when reviewing environmental documents.

When the preferred alternative is identified, the conformity analysis must be finalized and a conformity determination requested from FHWA. The FHWA conformity determination must be received before final NEPA action is completed. FHWA's June 21, 2007 letter, FHWA Conformity Analysis Documentation Checklist and Transportation Conformity and NEPA Assumption Questions and Answers describe FHWA's expectations for the Section 6005 project-level air quality conformity determinaton 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 nonattainment area (40 CFR 93.109).
  • 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).
• 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).
  • 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).
• 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.

The request for conformity determination should be submitted to FHWA, as soon as possible after the preferred alternative is identified. For Section 6005 CEs, the request should be sent as soon as the conformity information can be gathered. Based on past experience with PM2.5 hot spot conformity determinations, FHWA processing time may be 30 days or more, although well-documented projects should take less time. A written FHWA conformity determination, usually in the form of a letter, must be received before final NEPA action is taken by Caltrans (signing of ROD, FONSI, or CE). See the FHWA guidance regarding conformity and final NEPA documents.

See Chapter 11 of the SER for additional information regarding air quality.

See Procedural Aspects of Project-Level Conformity Under NEPA Delegation for a stand-alone pdf version of this air quality section. Please note that most of the web content linked in the on-line version was copied into the appendices during November-December 2007. If the latest information is critical, the web links in the on-line version of Chapter 38 should be used.

Under the Pilot Program and the Section 6004 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
• Have been approved by a responsible manager representing the Department.

All new 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;
• 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 new 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 the Pilot Program, 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.
• 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 Caltrans' Federal natural resources responsibilities under both the Section 6004 CE assignment and Pilot Program as follows:

• USFWS 6004 Notification
• USFWS 6005 Notification
• NMFS 6004 Notification
• NMFS 6005 Notification

When carrying out the requirements of Section 106 of the National Historic Preservation Act (Section 106), as amended, under the Pilot Program and the Section 6004 CE MOU, the Department shall comply with 36 C.F.R. 800.2(a)(1). 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 C.F.R. 800.11 is reviewed and approved by a staff member or consultant who meets the Professional Qualifications Standards [MOU 4.2.3; Section 6004 CE MOU IV.D.2].

The State Historic Preservation Office and the Advisory Council on Historic Preservation (ACHP) have been notified of Caltrans' Federal cultural resources responsibilities under both the Section 6004 CE assignment and Pilot Program as follows:

• SHPO 6004 Notification
• SHPO 6005 Notification
• ACHP 6004 Notification
• ACHP 6005 Notification

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

The State Historic Preservation Officer (SHPO) and the ACHP have recognized the authority of Caltrans to act as the Federal agency for compliance with Section 106 and the January 1, 2004 Section 106 Programmatic Agreement (Section 106 PA), in accordance with the terms of the Memoranda of Understanding (MOU) that assign this authority to the State pursuant to Sections 6004 and 6005 of SAFETEA-LU, excepting FHWA's government-to-government responsibilities to tribes.

The Section 106 PA remains in effect, but has been addended to recognize Caltrans' legal authority under the Pilot Program. The addenda apply only to those projects covered by the Section 6004 CE MOU and the Pilot Program MOU. FHWA remains the agency officially responsible for Section 106 compliance on those projects not covered in the MOUs.

The Section 106 PA delegated the majority of FHWA's Section 106 duties to Caltrans. Under the Section 106 PA, FHWA received concurrent copies of documents transmitted by