Programmatic Categorical Exclusion Agreements

Since 1989, FHWA Division Offices and State Departments of Transportation (DOTs) have entered into programmatic agreements that establish procedures for expeditious and efficient approval of Categorical Exclusions (CE), most of which are listed under 23 CFR Part 771.117(d) (commonly known as d-list CEs). Section 1318(d) of MAP-21 enshrined this practice into law and FHWA, through rulemaking, codified it in 23 CFR 771.117(g). Now the FAST Act, Section 1315(b) has clarified that PCE agreements allow State DOTs to approve as CEs, actions not listed in regulation so long as they meet the criteria of a CE. The FHWA Division Office, by agreement with the State DOT, does not require individual project-by-project and approval for the projects which meet the conditions stipulated in the agreements and the State DOT may make a CE approval on FHWA’s behalf. These agreements also establish expectations and responsibilities for the FHWA and State DOT parties involved and can usefully identify processing and documentation expectations for all CE actions, quality control and quality assurance, and FHWA oversight.

On February 4, 2015, the FHWA issued a memorandum recognizing the authority in MAP-21 Section 1318 and 23 CFR 771.117(g). Existing agreements remain valid until revised to conform with the new agreement requirements in the regulation. Revisions to all agreements should be completed before November 6, 2019, five years after the effective date of the regulation. The previous memorandum dated October 28, 2015, indicated we are no longer requesting that each revised agreement be forwarded for HEPE and HCC review, so long as the revised agreement closely follows the guidance and template agreement. The October 2015 memo continues to be effective; however, coordination with these offices will be necessary if the SDOT and Division Office plan to include CE designations not listed in the regulation. On May 31, 2016, FHWA issued a memorandum identifying the change in PCE agreements prompted by the FAST Act and information on its implementation.

Additional regulation and guidance on Programmatic CE Agreements can be found in the Legislation, Regulation, and Guidance section.

MAP-21 Sec. SEC. 1318. PROGRAMMATIC AGREEMENTS AND ADDITIONAL CATEGORICAL EXCLUSIONS

(d) Programmatic Agreements.--

(1) In general.--The Secretary shall seek opportunities to enter into programmatic agreements with the States that establish efficient administrative procedures for carrying out environmental and other required project reviews.

(2) Inclusions.--Programmatic agreements authorized under paragraph (1) may include agreements that allow a State to determine on behalf of the Federal Highway Administration whether a project is categorically excluded from the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(3) Determinations.--An agreement described in paragraph (2) may include determinations by the Secretary of the types of projects categorically excluded (consistent with section 1508.4 of title 40, Code of Federal Regulations) in the State in addition to the types listed in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regulations (as in effect on the date of enactment of this Act).

FAST Act. Sec. SEC. 1315. PROGRAMMATIC AGREEMENT TEMPLATE.

(a) In General.--Section 1318 of MAP-21 (23 U.S.C. 109 note; Public Law 112-141) is amended by adding at the end the following:

"(e) Programmatic Agreement Template.--

"(1) In general.--The Secretary shall develop a template programmatic agreement described in subsection (d) that provides for efficient and adequate procedures for evaluating Federal actions described in section 771.117(c) of title 23, Code of Federal Regulations (as in effect on the date of enactment of this subsection).

"(2) Use of template.--The Secretary--

"(A) on receipt of a request from a State, shall use the template programmatic agreement developed under paragraph (1) in carrying out this section; and

"(B) on consent of the applicable State, may modify the template as necessary to address the unique needs and characteristics of the State.

"(3) Outcome measurements.--The Secretary shall establish a method to verify that actions described in section 771.117(c) of title 23, Code of Federal Regulations (as in effect on the date of enactment of this subsection), are evaluated and documented in a consistent manner by the State that uses the template programmatic agreement under this subsection.''

(b) <<NOTE: 23 USC 109 note.>> Categorical Exclusion Determinations.--Not later than 30 days after the date of enactment of this Act, the Secretary shall revise section 771.117(g) of title 23, Code of Federal Regulations, to allow a programmatic agreement under this section to include responsibility for making categorical exclusion determinations--

(1) for actions described in subsections (c) and (d) of section 771.117 of title 23, Code of Federal Regulations; and

(2) that meet the criteria for a categorical exclusion under section 1508.4 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act), and are identified in the programmatic agreement.

23 CFR 771.117(g) FHWA may enter into programmatic agreements with a State to allow a State DOT to make a NEPA CE certification or determination and approval on FHWA's behalf, for CEs specifically listed in paragraphs (c) and (d) of this section and that meet the criteria for a CE under 40 CFR 1508.4, and are identified in the programmatic agreement. Such agreements must be subject to the following conditions:

(1) The agreement must set forth the State DOT's responsibilities for making CE determinations, documenting the determinations, and achieving acceptable quality control and quality assurance;

(2) The agreement may not have a term of more than five years, but may be renewed;

(3) The agreement must provide for FHWA's monitoring of the State DOT's compliance with the terms of the agreement and for the State DOT's execution of any needed corrective action. FHWA must take into account the State DOT's performance when considering renewal of the programmatic CE agreement; and

(4) The agreement must include stipulations for amendment, termination, and public availability of the agreement once it has been executed.

[52 FR 32660, Aug. 28, 1987; 53 FR 11066, Apr. 5, 1988, as amended at 70 FR 24469, May 9, 2005; 74 FR 12529, Mar. 24, 2009; 78 FR 8983, Feb. 7, 2013; 78 FR 11602, Feb. 19, 2013; 79 FR 2118, Jan. 13, 2014; 79 FR 60115, Oct. 6, 2014; 81 FR 34274, May 31, 2016]

On March 30, 1989, FHWA issued “FHWA Memorandum - Categorical Exclusion (CE) Documentation and Approval” that described how FHWA Division Offices and State DOT staff could make CE approvals more efficient and faster. The memo presents a framework for drafting a programmatic agreement that specifies expectations for CE documentation and approval. The original strategy to make d-list CE reviews and approvals more efficient was to identify 6 conditions that, if met, the State DOT could process and approve CEs to move on to the next step of the project development without requiring Division Office review. That strategy, with some modifications, continues today.

FHWA encourages the parties to review the model PCE Agreement and consider incorporating those provisions that are necessary to update existing PCE Agreements. FHWA recognizes that each State has unique experience in the process that developed the existing PCE Agreement and that the updated Agreement, while including mandatory provisions, may not need to be identical to the model agreement. However, this model agreement is compliant with all the requirements of the regulation.

FAST Act §1315 - Model Programmatic Categorical Exclusion Agreement

FHWA makes currently executed PCE Agreements available for public review here. Specific agreements for a State also may be found on the State DOT website.