Environmental Review Toolkit
Accelerating Project Delivery

PROGRAMMATIC CATEGORICAL EXCLUSION AGREEMENT
BETWEEN
THE FEDERAL HIGHWAY ADMINISTRATION
AND
THE ARIZONA DEPARTMENT OF TRANSPORTATION

Regarding the Determination and Approval of Categorical Exclusion Actions for Federal-Aid Highway Projects

WHEREAS, the Arizona Department of Transportation (ADOT) requires Federal approval for certain actions related to the Federal-Aid Highway Program including changes in access on the Interstate Highway System and design exceptions on the National Highway System (NHS); and proposes to construct highway projects, including all Local Public Agency projects (Certified Acceptance (CA) and non-CA), and desires to apply Federal-Aid funding for those projects. In doing so, the Federal Highway Administration, Arizona Division (FHWA), must comply with the National Environmental Policy Act (NEPA); and

WHEREAS, FHWA is responsible for making all NEPA decisions in Arizona; and

WHEREAS, FHWA may establish procedures to expeditiously and efficiently process actions that are categorically excluded from the requirements to prepare either an Environmental Impact Statement (EIS) or an Environmental Assessment (EA), including the use of programmatic agreements with ADOT; and

WHEREAS, in excess of 90 percent of the highway projects proposed by ADOT for Federal-Aid funding typically qualify as a Categorical Exclusion (CE) and ADOT seeks to assist in reducing the paperwork and processing time for certain Federal actions that do not have significant impacts on the human and natural environment pursuant to 23 Code of Federal Regulations (CFR) 771.117; and

WHEREAS, pursuant to Section 1318(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21), and 23 CFR 771.117(g), FHWA may enter into a programmatic agreement with ADOT to allow ADOT to determine whether a project qualifies for a CE on FHWA’s behalf, for CEs specifically listed in paragraphs (c) and (d) of 23 CFR 771.117; and

WHEREAS, ADOT wishes to determine that certain projects subject to FHWA approval do not have significant impacts on the human and natural environment and in doing so will reduce the paperwork and processing time for FHWA NEPA approvals in accordance with this Programmatic Agreement (Agreement) and applicable law.

NOW THEREFORE, the FHWA and ADOT, collectively referred herein as the “Parties,” enter into this Agreement for processing actions that may be classified as a CE under NEPA, which are not part of a larger undertaking, and are subject to the following terms and conditions:

I. PARTIES
  1. The Parties to this Agreement are the FHWA and ADOT.
II. PURPOSE
  1. The purpose of this Agreement is to authorize ADOT to determine on behalf of FHWA whether a project qualifies for a CE specifically listed in 23 CFR 771.117(c) or (d). This Agreement also authorizes ADOT to certify to FHWA that an action not specifically listed in 23 CFR 771.117 (c) or (d), but meeting the CE criteria in 40 CFR 1508.4 and 23 CFR 771.117(a), qualifies for a CE as long as there are no unusual circumstances present that would require the preparation of either an EA or an EIS.
  2. This Agreement does not delegate any other FHWA responsibility under NEPA or other Federal laws.
  3. This Agreement supersedes the 2012 Update to the 2010 Operating Agreement.
III. AUTHORITIES
  1. This Agreement is entered into pursuant to the following authorities:
    1. National Environmental Policy Act, 42 U.S.C. 4321 – 4370
    2. Moving Ahead for Progress in the 21st Century Act, P.L. 112-141, 126 Stat. 405, Sec. 1318(d)
    3. 40 CFR parts 1500 – 1508
    4. Department of Transportation Order 5610.1C
    5. 23 CFR 771.117
IV. ADOT CE APPROVAL ON FHWA's BEHALF
  1. Projects processed and approved as CEs by ADOT must be actions that meet the definitions in 40 CFR 1508.4 and 23 CFR 771.117(a) for "categorical exclusions", are not excluded from processing under this Agreement by its terms, and are actions that do not individually or cumulatively have a significant impact on the human or natural environment, and require neither an EA nor an EIS; and are:
    1. Actions listed in 23 CFR 771.117(c)
    2. Actions consistent with the examples found in 23 CFR 771.117(d)
    3. Any activities added through FHWA rulemaking to those listed in 23 CFR 771.117(c) or example activities listed in 23 CFR 771.117(d) after the date of the execution of this Agreement
  2. When a proposed action qualifies as a CE under 23 CFR 771.117, ADOT agrees to certify to FHWA that the action meets the requirements of this Agreement
  3. As part of its processing of a project, ADOT agrees to evaluate whether the action meets 23 CFR 771.117(a) and is one that does not involve unusual circumstances defined under 23 CFR 771.117(b), that might require the preparation of an EA or EIS. For each project processed under this Agreement, ADOT agrees to consider and evaluate whether usual circumstances defined under 23 CFR 771.117(b) exists and if environmental studies will be needed to determine whether a CE determination is proper. This consideration of unusual circumstances includes whether the action might result in:
    1. Significant environmental impacts
    2. Substantial controversy on environmental grounds
    3. Significant impact on properties protected by Section 4(f) of the U.S. Department of Transportation (USDOT) Act of 1966 or section 106 of the National Historic Preservation Act (NHPA)
    4. Inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action.
  4. ADOT agrees to confirm with FHWA in writing (by email) if a project involves unusual circumstances.
V. CONDITIONS THAT REQUIRE FHWA CE APPROVAL
  1. Any action that does not satisfy the criteria for an ADOT Approved CE described in Sections II and IV will require FHWA to make a CE approval.
  2. Actions listed in 23 CFR 771.117(c) and (d) require FHWA CE approval if they involve:
    1. An acquisition of permanent easement of tribal or Federal lands.
    2. An acquisition of more than a minor amount of right-of-way (ROW).
      1. Acquisition is considered more than minor if it will:
        1. affect the functionality of the primary structure(s) on the property
        2. affect the use of the property, or
        3. involve more than a quarter of the property
      2. Typical examples of minor amounts of ROW acquisition include: low cost strip acquisitions and corner acquisitions.
      3. ADOT agrees to confirm with FHWA in writing (by email) on what constitutes a minor amount of ROW.
    3. An acquisition that involves any residential or non-residential displacements.
    4. An action that requires a bridge permit from the U.S. Coast Guard.
    5. An action requiring an Individual Permit under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.
    6. An action that results in a finding of “Adverse Effect” on historic properties protected by Section 106 of the NHPA by FHWA.
    7. An action that involves use of a resource protected under Section 4(f) of the USDOT Act except for actions resulting in de minimis impacts.
    8. An action that leads to a finding of “may affect, likely to adversely affect” threatened or endangered species or critical habitat under the Endangered Species Act.
    9. An action with construction of temporary access, or the closure of an existing road, bridge, or ramp, that would result in major traffic disruptions.
    10. An action with a change in access control on a controlled access highway.
    11. An action that involves a floodplain encroachment for other than; functionally dependent uses (e.g. bridges, wetlands) or actions that facilitate open space use (e.g. recreational trails, bicycle and pedestrian paths).
    12. An action with construction activities in, across, or adjacent to a river component designated or proposed for inclusion in the National System of Wild and Scenic Rivers.
VI. STATE PERFORMANCE REQUIREMENTS
  1. ADOT agrees to:
    1. Prepare one of the following applicable NEPA decision documents:
      1. ADOT Approved CE – Actions identified in 23 CFR 771.117(c) or (d) that do not involve any of the conditions specified in Section V.B. may be processed and approved by ADOT and will be documented in a CE Checklist. A CE Checklist documents the conditions specified in Sections IV.C. and V.B. FHWA is not required to review or approve these CEs, however, ADOT will send a copy of the approved CE to FHWA.
      2. FHWA Approved CE – Actions identified in 23 CFR 771.117(c) or (d) but involves one of the conditions specified in Section V. B. and actions not specifically listed as examples under 23 CFR 771.117(d) but meet the conditions for a CE designation, may be designated as CEs upon FHWA review and approval. ADOT is responsible for submitting documentation that demonstrates that the criterion for a CE is satisfied. ADOT is responsible for utilizing a CE Checklist to document projects from the (c)-list or (d)-list. ADOT will document project actions consistent with but not specifically listed under (d) with an Individual CE. An Individual CE equates to the long-form CE Checklist.
    2. Process projects funded under the Recreational Trails Program under a separate FHWA, ADOT, and Arizona State Parks Agreement.
    3. Include the following statement in all ADOT Approved CEs, and ADOT’s certification for those actions that must be approved by FHWA:
      1. ADOT Approved CE – “This project meets the definition for a Categorical Exclusion under 23 CFR 771.117(a), does not involve unusual circumstances as defined under 23 CFR 771.117 (b), does not require preparation of an Environmental Impact Statement or Environmental Assessment, qualifies for a Categorical Exclusion under 23 CFR 771.117(c) or (d), and does not exceed the threshold criteria listed in the FHWA/ADOT Programmatic CE Agreement.”
      2. FHWA Approved CE – Actions identified in 23 CFR 771.117(c) or (d) but involves one of the conditions specified in Section V. B. and actions not specifically listed as examples under 23 CFR 771.117(d) but meet the conditions for a CE designation, may be designated as CEs upon FHWA review and approval. ADOT is responsible for submitting documentation that demonstrates that the criterion for a CE is satisfied. ADOT is responsible for utilizing a CE Checklist to document projects from the (c)-list or (d)-list. ADOT will document project actions consistent with but not specifically listed under (d) with an Individual CE. An Individual CE equates to the long-form CE Checklist.
    4. Record in the project file:
      1. CE Checklist or Individual CE will include the following:
        1. A description of the project including the location and project limits (vicinity map), a brief purpose statement, and the scope of work; Federal-Aid project number and ADOT project TRACS number. A vicinity map, other than what is provided with the Federal Authorization for PE funding, is not necessary for a procurement, a non-construction project, or a limited construction project such as striping local streets. For those projects, a description of the project location will be included in the Location and Limits section of the CE Checklist.
        2. The regulatory reference for the applicable CE [23 CFR 771.117(c) or 23 CFR 771.117(d)].
        3. The date ADOT initiates its coordination of the CE project.
        4. The CE approval date.
        5. The certification statement in VI.A.
        6. Name of the ADOT Environmental Planner.
      2. Resource agency and tribal coordination
      3. Environmental commitments: ADOT Environmental Planning Group (EPG) will verify environmental commitments in the Plans, Specifications and Estimates. Environmental commitments will be tracked through construction by the ADOT Construction Group.
      4. The outcome of any environmental studies conducted to consider unusual circumstances (23 CFR 771.117(b)) and to determine if the CE classification is proper.
      5. Any document used in decision making
      6. Any forms or other documents that summarize the consideration of project impacts and unusual circumstances
      7. Any project scoping, stakeholder correspondence, consultation, public meeting or involvement documentation. Public involvement will be in conformance with the ADOT EPG Guidelines for Scoping Projects with Categorical Exclusions and the ADOT Public Involvement Plan. The level of public involvement will be commensurate with the proposed action.
    5. Accommodate reviews and approvals into the project schedule. For FHWA CE reviews and approvals, FHWA will consider the following timelines:
      1. CEs will be reviewed and approved or returned for revision within two weeks.
      2. CE re-evaluations requests will be reviewed and approved or returned for revision within one week.
    6. Not delegate CE approvals to any non-ADOT employee or ADOT employee who is not an Environmental Planner.
    7. Following the CE decision, ADOT is responsible for documenting re-evaluations pursuant to 23 CFR 771.129 and in accordance with this agreement. ADOT is responsible for consulting with FHWA on re-evaluations of FHWA Approved CEs. As part of re-evaluation processing:
      1. ADOT is responsible for completing a re-evaluation if after the CE approval there is a change in the project scope, location, or termini where new impacts, not previously considered, may occur.
      2. ADOT is responsible for completing a written re-evaluation when three or more years have passed since the date the project was approved.
      3. ADOT is responsible for consulting with FHWA prior to changing mitigation measures for a FHWA Approved CE. If changes are approved, they are to be documented in an updated CE Checklist.
      4. ADOT is responsible for addressing re-evaluations or technical analysis updates with an updated CE Checklist that documents the changes and any additional analysis completed.ADOT EPG is responsible for consulting with FHWA regarding projects previously approved by FHWA.
      5. For minor changes such as a documentation error or the deferment of a scope of work item that does not require environmental analysis, complete informal consultation in writing (by e-mail) with FHWA to document via a “note to file.”
  2. ADOT may not transfer or assign any of the responsibilities administratively delegated to ADOT under this Agreement. ADOT may utilize contractors and others to assist ADOT in carrying out its responsibilities subject to the limitation in Section VI.A.6.
  3. ADOT is responsible for maintaining adequate organizational and staff capability and expertise to carry out the provisions of this Agreement effectively. This includes, without limitation:
    1. Using appropriate technical and managerial expertise to perform the functions set forth under this Agreement.
    2. Devoting adequate financial and staff resources to carry out the determinations and approvals of CEs under this Agreement.
  4. At a minimum, all ADOT individuals:
    1. Who prepare CE determinations must have completed the web-based National Highway Institute (NHI) course FHWA-NHI-142052, “Introduction to NEPA and Transportation Decision-making” and shall have their work reviewed by staff having additional experience.
    2. Who oversee the preparation of or review CE documentation must have completed the equivalent of the NHI course FHWA-NHI-142005, “Introduction to NEPA and Transportation Decision-making” and have two years of relevant DOT experience addressing NEPA compliance for transportation projects. The Environmental Planning Group Manager, or designee, will be the approval authority for ADOT.
    3. All individuals participating in the process of determining and approving of CEs under this Agreement must be familiar with and follow the appropriate subsections of 23 CFR Parts 771, 772, and 774; and the NEPA process.
  5. State Quality Control:
    1. ADOT agrees to carry out quality control activities for all projects to ensure that its CE determinations are made in accordance with applicable laws and this Agreement. The EPG Quality Assurance/Quality Control (QA/QC) Plan outlines the specific review criteria for documentation. Any updates to the QA/QC Plan will be submitted to FHWA for review.
    2. At a minimum, ADOT agrees to annually monitor its processes relating to project CE determinations, environmental analysis, project file documentation, and checking for errors and omissions. ADOT agrees to take corrective actions as needed. ADOT agrees to document its quality control activities and any corrective actions taken. ADOT agrees to inform FHWA of any corrective actions taken on a program level or changes to its QA/QC Plan.
    3. ADOT will bring training to the state or develop in-house training that is required to meet the capability requirements of this Agreement or address any necessary corrective actions.
    4. ADOT will develop and maintain guidance for the preparation of CE Checklists and Individual CEs. EPG shall maintain the latest versions of this Agreement, Public Involvement Plan and the QA/QC Plan, CE Checklist, and Individual CE on the EPG website. Any changes to the guidance or format of these documents may occur only by agreement of both parties.
  6. Documentation and recordkeeping for CE determinations of individual projects:
    1. ADOT is responsible for maintaining electronic project records pertaining to ADOT administration of its process for CE determinations for individual projects. ADOT agrees to provide FHWA with copies of any project records upon request. ADOT agrees to retain those records, including all letters and comments received from governmental agencies, the public, and others for a period of no less than three years after the final voucher. This three-year retention provision does not displace or relieve ADOT of its project or program recordkeeping responsibilities under 2 CFR 200.333 or any other applicable laws, regulations, or policies.
    2. ADOT agrees to ensure that project records are available to the public consistent with requirements applicable to Federal agencies under 5 U.S.C. § 552 (the Freedom of Information Act [FOIA], as amended in 2002), NEPA, and consistent with applicable FHWA regulation, policy, and guidance.

VII. FHWA AGREEMENT RESPONSIBILITIES AND OVERSIGHT ACTIVITIES

  1. FHWA will provide a timely response or confirmation to emails from ADOT regarding CE actions that may involve unusual circumstances which are outlined in Section IV.C.
  2. FHWA will provide input and review CEs and CE re-evaluations within the timeframes specified in Section VI.A.5. FHWA will base its approval of CE actions on the project documentation and certifications prepared by ADOT under this Agreement.
  3. FHWA will review and provide comments to any updates to the ADOT EPG QA/QC Plan.
  4. FHWA will review any corrective actions taken by ADOT in regards to its processes relating to project CE determinations, environmental analysis, and project file documentation.
  5. FHWA will complete a process review of the CE determination program at its discretion.
  6. Nothing in this Agreement shall prevent FHWA from undertaking other monitoring or oversight actions, including audits, with respect to ADOT's performance under this Agreement. Performance considerations include, without limitation, the quality and consistency of ADOT CE approvals, CE submissions to FHWA for approval, adequacy and capability of ADOT staff, and the effectiveness of ADOT’s administration of its internal CE approvals. FHWA, at its sole discretion, may require ADOT to perform other quality assurance activities, including other types of monitoring, as may be reasonably required to ensure compliance with applicable Federal laws and regulations.

VIII. TERM, RENEWAL, AND TERMINATION

  1. This Agreement shall have a term of five years, beginning on the date of the last signature. ADOT shall maintain an executed copy of this Agreement and make it available to the public.
  2. This Agreement is renewable for additional terms of five years each if ADOT requests renewal and the FHWA determines that ADOT has satisfactorily carried out the provisions of this Agreement. In considering any renewal of this Agreement, the FHWA will evaluate the effectiveness of the Agreement on the environmental review process.
  3. At least six months prior to the end of each five year term, ADOT and the FHWA shall meet to discuss the results under the Agreement and consider amendments to this Agreement. This meeting may be combined with a meeting to discuss performance under the oversight provisions in Section V of this Agreement. With written concurrence from both parties, the terms of this agreement may be continued an additional six months until such time as this Agreement is renewed or an amendment or new agreement can be developed.
  4. Either party may terminate this Agreement at any time by giving at least a 30-day written notice to the other party.

IX. AMENDMENTS AND ADMINISTRATIVE MODIFICATIONS

  1. Either party to this Agreement may request that it be amended or administratively modified to reflect non-substantive changes, whereupon the parties shall consult to consider such an amendment.
  2. If the parties agree to amend this Agreement, then the FHWA and ADOT may execute an amendment with new signatures and dates of the signatures. The term of the Agreement shall remain unchanged unless otherwise expressly stated in the amended Agreement.

SIGNATURES

Execution of this Agreement and implementation of its terms by both parties provides evidence that both parties have reviewed this Agreement and agree to the terms and conditions for its implementation. This Agreement will become effective on the date of last signature below.


signatures of  Karla S. Petty, Arizona Division Administrator, Federal Highway Administration; and Dallas Hammit, PE, Deputy Director for Transportation and State Engineer, Arizona Department of Transportation

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