Since 1989, Federal Highway Administration (FHWA) and State DOTs have employed programmatic agreements that establish procedures for expeditious and efficient approval of CEs. President Obama signed Moving Ahead for Progress in the 21st Century Act (MAP-21) into law on July 6, 2012. Section 1318(d) of MAP-21 puts forward a permanent program that allows State DOTs to assume CE approval authority on the behalf of FHWA.
On October 6, 2014, FHWA and the Federal Transit Administration (FTA) published a Final Rule1 in the Federal Register that amends the NEPA regulations for FHWA and FTA, 23 CFR Part 771,2 to authorize the establishment of programmatic agreements between FHWA and State DOTs to allow State DOTs to make a CE approval on FHWA’s behalf. Codified in 23 CFR Part 771.117(g), the Final Rule requires the revision of all existing programmatic CE agreements between FHWA Division Offices and State DOTs. Existing agreements remain valid until revised to align with new agreement requirements set forth in the regulation. In accordance with the regulation, State DOTs should establish new or revised existing programmatic agreements before November 6, 2019. While FHWA has issued guidance on the content, structure, and approach of the programmatic agreements between FHWA and State DOTs,3 FHWA also provides some flexibility to State DOTs.
State DOTs are required to establish programmatic agreements with FHWA for the administration of CEs under NEPA by 2019. As of August 2015, five State DOTs have executed 23 CFR Part 771.117(g) compliant programmatic agreements with FHWA on the delegation of CE approval, including Arizona DOT, Nebraska Department of Roads, Ohio DOT, Oregon DOT, and Washington State DOT.4The content, structure, and approach of existing programmatic agreements between FHWA Division Offices and State DOTs vary widely, as FHWA affords State DOTs the flexibility to adopt programmatic agreements best suited to each state’s individual circumstances. In undertaking the required re-establishment of new programmatic agreements with FHWA, in accordance with 23 CFR Part 771.117(g), State DOTs have a need to understand how CEs are currently administered in various states and how various State DOT programmatic agreements are structured.
The purpose of this research is to produce a report characterizing the state of Categorical Exclusion (CE) programmatic agreements (PA) between FHWA and State DOTs, including PAs that are already compliant with 23 CFR Part 771.117(g), as modified in accordance with the Moving Ahead for Progress in the 21st Century (MAP-21) Act.