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.

General Information

General Information

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.

Regulation

Regulation

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: 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; The agreement may not have a term of more than five years, but may be renewed; 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 The agreement must include stipulations for amendment, termination, and public availability of the agreement once it has been executed.

Guidance

Guidance

This guidance is intended to assist individuals in developing a new or updating an existing PCE Agreement. It was developed in February, 2015 along with a model or template PCE Agreement (see below) that can be used together, if desired, to satisfy the regulatory requirements. Please contact the FHWA Office of Project Development and Environmental Review with questions on this guidance or how to develop a new or update an existing PCE Agreement. FAST Act §1315 - A Practitioner's Guide to FHWA Programmatic Agreements for Categorical Exclusion (2016)

Model Agreement

Model Agreement

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

Executed Agreements

Executed Agreements

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. Arizona DOT PCE Agreement Connecticut DOT PCE Agreement Nebraska Department of Roads PCE Agreement New Mexico DOT PCE Agreement Ohio DOT PCE Agreement Oregon DOT PCE Agreement Washington State DOT PCE Agreement

For questions or feedback on this subject, please contact Owen Lindauer at 202-366-2655 or Damaris Santiago at 202-366-2034. For general questions or web problems, please send feedback to the web administrator.