A Practitioner’s Guide to FHWA Programmatic Agreements for
Programmatic Agreements between FHWA and State Departments of Transportation (SDOTs) that allow SDOTs to process categorical
exclusions (CEs) have been effective in producing time savings in the project delivery process. These agreements provide
benefits such as: (1) specifying roles and responsibilities of those involved; (2) standardizing coordination and compliance
procedures; (3) facilitating the development of greater trust relationships; and (4) allowing staff and resources to be
focused and effective. The CE decision is a determination whether or not a proposed project fits in the category of actions
not requiring the preparation of an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) based on a
designation of the CE in regulation or based on FHWA from experience combined with a finding that no unusual circumstances
exist that would require the preparation of an EA or EIS. This NEPA determination is also the basis for an approval for
the project to proceed to the next step in the project development process.
MAP-21 Section 1318(d)(2) created express authority for FHWA to enter into programmatic agreements with SDOTs to allow them
to make CE approvals on FHWA’s behalf. FHWA issued a final rule establishing standard requirements applicable to PCE
agreements in 23 CFR 771.117(g) on October 6, 2014. The final rule is accessible at:
The regulations establish some basic requirements for all PCE agreements. PCE agreements must:
- Set forth the SDOT’s responsibilities for making CE determinations on FHWA’s behalf (an SDOT decision) or, alternatively,
CE certifications (an SDOT recommendation to FHWA for the NEPA approval);
- Set forth the SDOT’s responsibilities for documenting the determinations made;
- Set forth the SDOT’s responsibilities for achieving acceptable quality control and quality assurance;
- Provide for FHWA’s monitoring of the SDOT’s compliance with the terms of the agreement;
- Provide for the SDOT’s execution of any needed corrective action;
- Include stipulations for amendment and termination of the agreement; and
- Include stipulations for public availability of the agreement once it has been executed.
In addition, PCE agreements must not have a term of more than five years, but may be renewed.
FHWA has developed a model PCE agreement to assist practitioners in drafting PCE agreements that meet these requirements.
B. Approaches for PCE Agreements
The regulations recognize two types of approaches for processing CEs under these agreements: (1) allowing an SDOT to decide
whether an action qualifies for a CE on behalf of FHWA and proceed without individual FHWA review and approval, and (2)
allowing an SDOT to certify to FHWA that an action meets the criteria for a CE determination, but not to proceed until there
is a FHWA approval.
Regardless of the type of approach selected, the Division Office must review and approve documented CEs for actions not
specifically listed on the (d)-list.
- SDOT CE Approvals on behalf of FHWA
The regulation establishes a SDOT’s authority to determine whether a project qualifies for a CE on behalf of FHWA.
The SDOT is responsible for evaluating the project’s potential impacts, and preparing and approving any necessary
CE documentation, including the SDOT’s CE decision. FHWA does not have a review or approval role under this method;
however, FHWA retains general responsibilities for program oversight including specific responsibilities specified in the
This decision-making authority is limited to the CE actions specifically listed in 23 CFR 771.117 (c) and (d). Many FHWA
Division Offices limit the set of CE actions that may be reviewed and approved by the SDOT to only actions that do not have
If an existing PCE agreement permitted the State to approve actions as CEs that are not listed in the (c) or (d) lists,
either FHWA would need to establish those actions as new CEs, or exclude such actions from SDOT approval on FHWA’s
behalf. The process to establish a new CE entails gathering substantiation, based on the State’s experience or other
information, to show that such types of actions typically do not have significant environmental impacts. FHWA then consults
with the Office of the Secretary of Transportation (OST) and the President’s Council on Environmental Quality (CEQ)
for the new CE(s). This normally involves an informal consultation with those offices, informed by any public comments received
through the required notice-and-comment process, and a formal approval by OST and CEQ. Once this designation of new CE process
is complete, those CE actions can be included among the actions that a SDOT may review and make CE approvals on FHWA’s
behalf. The new CEs would be identified in the appendix to the PCE agreement.
- SDOT Prepares CE Document/Documentation for FHWA Approval (“Certifications”)
The regulation also allows for a PCE agreement that permits the SDOT to evaluate CE projects, prepare CE documentation,
and set forth expectations for expeditious FHWA CE approvals. This approach can be used for any CE action that the SDOT
is not allowed to review and approve on FHWA’s behalf. The approach is also available for a project determined to
qualify as a CE not specifically included on the (c) or (d) list. FHWA is responsible for review and approval of the recommended
CE determination before authorizing any post-NEPA project work, but does so in a predictable and expeditious manner.
In this type of approach FHWA may agree to review and approve batched certifications submitted by the SDOT as well as individual
certifications within an agreed upon span of time. FHWA may also agree that if the SDOT does not receive a response within
the specified time frame, the SDOT may assume FHWA approval of the submittal. The time allotted should be sufficient for
review and approval [for example not less than 5 business days]. The submittal should provide sufficient information about
the project(s) and be received by an FHWA individual who can complete the review and approval. The Division Office staff
are responsible for defining these parameters in the agreement.
- Agreements with both approaches
SDOTs and Division Offices have the option to develop a PCE agreement that allows the SDOT to make NEPA approval actions
for some CE actions listed in 23 CFR 771.117 (c) and (d); and to submit CE certification with documentation for those actions
that must be approved by FHWA because the project is an action not listed in regulation or the project has certain impacts.
The agreement needs to describe how the SDOT makes CE approvals for CE actions listed in regulation and the SDOT certification
process, including how FHWA would provide for predictable and expeditious CE approvals. FHWA’s model PCE agreement
follows this approach.
C. Considerations Before Developing the Agreement
There are a number of considerations that SDOTs and Division Offices should take into account in developing the PCE agreement.
The choices made should be informed and grounded in the particular experience the SDOT and Division Office have with their
prior agreements and the technical environmental expertise available to the SDOT. Within the parameters described in the
preceding sections of the guide, the Division Office and SDOT may tailor the PCE agreement in a way that best suits their
circumstances. Some options are discussed below.
- CE Grouping
Many existing PCE agreements have divided CEs into different groups based on expected levels of detail for documentation
as well as whether approvals could be made on FHWA’s behalf or not. The CEs are grouped according to the type of CE,
environmental context in which the action will take place, or project impacts. The grouped CEs take into account the organizational
and approval structure within the SDOT, reserving more complex CE approvals and certifications to officers at a higher level
within the organization. The model PCE agreement provides an example by establishing two groups using appendices to make
the differences easier to understand: Appendix A for (c)-list CEs and Appendix B for (d)-list CEs.
SDOTs and Division Offices should discuss what approach best suits their needs. They should ensure that adequate controls
and the necessary oversight are in place, but should avoid creating a complex tiered structure that would complicate the
agreement and its implementation.
- Environmental Resource Impact Thresholds
The Division Office has discretion on whether to establish impact thresholds in their agreements that would result in either
fewer or greater numbers of projects available for SDOT review and approval. They should consider: (1) the level of technical
expertise available to the SDOT, (2) the sensitivity of impacts to resources that are particular to the State, (3) the level
of coordination that may be needed with other Federal agencies, (4) the role the Division would like to retain for projects
with particular impacts, and (5) any regulatory restrictions that could affect the SDOT’s ability to take on some
of the consultation responsibilities without obtaining formal assignment.
PCE agreements establish expectations for the SDOT to utilize environmental resource impact thresholds in determining the
appropriate intensity of review and method of approval for a project. This is done because some project actions can occur
in sensitive environmental settings, or may need a higher level of scrutiny not requiring an environmental assessment or
environmental impact statement. As an example, some SDOTs have established specific thresholds for acquisition of properties
(more than 10 acres, more than 1 acre, or any acquisition) that, if surpassed, require FHWA approval. SDOTs and Division
Offices should discuss what areas or environmental considerations deserve a threshold for varying degrees of review and
At the same time, PCE agreements may be used to provide details or specific thresholds to address the constraints identified
in 23 CFR 771.117(e) to apply to CEs (c) (26) (modernization of highways), (c) (27) (highway safety or traffic operation
improvements), and (c) (28) (bridge rehabilitation and construction of grade separation). For example, the PCE agreements
may establish what threshold should be used for the terms “more than minor amount of right-of-way” (§771.117(e)
(1)), “major traffic disruption” (§771.117(e) (4)), and “changes in access control” (§
771.117(e) (5)) given the unique characteristics of the State’s environment.
PCE agreements should define documentation expectations for the CE actions processed under the agreements. The documentation
required for (c)-list CEs is less compared with (d)-list CEs. For example, PCE agreements may include an appendix with a
CE checklist to be used by SDOT staff for CE actions that do not typically trigger the need for exhaustive analyses.
The PCE agreement needs to describe documentation expectations for (c)-list CEs and (d)-list CEs or provide reference to
other FHWA-SDOT developed manuals or documents that outline these expectations. Such descriptions should include how the
SDOT records its CE approvals, and its CE submissions to FHWA for approval. It may discuss how the State maintains project
records (e.g., retention time, access to records, etc.). All CE project records, including those for (c)-list CEs need to:
(1) reflect the consideration of unusual circumstances, (2) indicate any conditions or constraints for use of a CE have
been met, and (3) show that any other environmental requirements have been satisfied.
Documentation for (d)-list CEs should include any environmental analyses and consultations that support that the CE determination
is appropriate. If a SDOT has developed forms or templates, examples may be attached to the agreement as appendices or references
provided to other FHWA-SDOT developed manuals or documents that outline these expectations.
- Certification process
If a State completes CE document submissions to FHWA, the agreement needs to describe the SDOT’s certification process
and the subsequent predictable and expeditious process for FHWA approval of SDOT certified projects or provide reference
to other FHWA-SDOT developed manuals or documents that outline these expectations. FHWA approval process needs to set forth
how CE projects submitted to FHWA for approval are reviewed and approved prior to project implementation. The agreement
may specify that the DOT submits certified projects to FHWA on a project-by-project basis, weekly, bi- weekly, monthly,
or semi-annual basis. Alternatively, FHWA may make the CE approval when it processes the next approval-action for the project.
D. PCE Agreement Content
There are areas that are critical in a PCE agreement. The description below describes which elements should be included
in a PCE agreement, and whether they are “required” or “optional.”
- Whereas clauses - The purpose of the “whereas” clauses is to provide a background and context
to the reader of the reasons and authorities for the agreement. The “whereas” clauses do not establish requirements
for the parties, but give a context that can facilitate the interpretation of the agreement. The inclusion of “whereas”
clauses in the PCE agreement is optional.
- Parties - PCE agreements must identify the parties to the agreement. The parties should be FHWA and the
State Department of Transportation. It would be very unusual for a State agency other than the SDOT to enter into a PCE
agreement with FHWA. The identification of the parties in the agreement is required.
- Purpose - This section summarizes the intent of the parties with the agreement. PCE agreements are
required to describe the purpose of the agreement.
- Authorities - This section lays out the legal authorities for the PCE agreement. The authorities are based
on NEPA and include the implementing procedures from CEQ, U.S. DOT, and FHWA. A description of the legal authorities is
- Responsibilities - The responsibilities section is the heart of the agreement because it establishes the
decision-making and other responsibilities of the parties and the review process for CE actions. In this section the parties
establish: (a) the review approach (certification, approval on behalf of FHWA, or a combination), (b) define any limitation
on the scope of actions that the SDOT may approve on FHWA’s behalf, (c) the decision-making structure (who has authority
to approve which types of CEs), (d) the method and reporting frequency for SDOT approvals and certifications, and (e) FHWA’s
responsibilities under the agreement (providing technical assistance and for overseeing the implementation of the agreement).
A clear statement of the responsibilities of both the SDOT and FHWA is required.
The list of environmental resource impact thresholds (that might limit the scope of projects the SDOT could approve on FHWA’s
behalf) provided in the model PCE agreement is an example based on FHWA’s past experience with PCE agreements. The
Division Office and SDOT should determine those that are applicable based on the State’s environmental setting and
context. The decision also should be based on the comfort level between the SDOT and the Division Office given the consultations
or coordination needed with other agencies, level of public controversy, and SDOT in-house environmental expertise. Establishing
thresholds is optional.
The model PCE agreement also illustrates the approach to certification that allows the SDOT to provide a list of certified
CEs and gives the FHWA Division Office a certain amount of time to object to the certifications. This approach is
optional, but if used must be consistent with the parameters discussed in the Certification Process section
- Documentation - The purpose of this section is to establish shared expectations for SDOT documentation
of CE reviews and decisions or certifications. PCE agreements may rely upon CE checklists for minor actions with few or
no impacts that do not warrant in-depth review and more detailed documentation for those CE actions that involve greater
impacts. A clear description of the documentation for all types of CE actions that will be processed under the agreement
- Approvals and Re-evaluations - This section describes the entities within the SDOT that have authority
to make CE approvals on behalf of FHWA. The model PCE agreement uses an approach followed by a number of SDOTs that provide
approval authority for certain CEs (for example, 23 CFR 771.117 c-list CEs) to qualified non-technical staff or regional
staff. Other actions that have project impacts (like 23 CFR 771.117 (d)-list CEs) must be reviewed and approved only by
environmental experts in SDOT or higher level officials. The approach followed by the model PCE agreement is optional.
This section also discusses how re-evaluations of CE approvals would be addressed. The language in the model PCE agreement
is rooted in 23 CFR 771.129. It complies with the requirement for re-evaluation of CE determinations. This element of the
PCE agreement is optional, and the regulation applies regardless whether the provision is included
in the agreement.
- QA/QC, Monitoring, and Performance - This section describes how and who conducts monitoring of the SDOT’s
commitments made in the agreement. The section describes expectations for SDOT corrective action. Provisions on monitoring
and the SDOT taking corrective action are required. The model PCE agreement provides general language.
SDOTs and Division Offices may establish more specific standards (such as process and timing).
- Amendments and Administrative Modifications - This section describes how the PCE agreement may be modified.
Provisions on modifications and amendments are required.
- Term, Renewal, and Termination - This section describes the 5-year term of the agreement, the process for
renewal, and termination of the agreement. These provisions are required.
FHWA has developed a model PCE agreement (separate attachment) that includes the required and optional PCE agreement contents
listed above. The model PCE agreement is a resource available for your consideration to facilitate drafting new PCE agreements
that are consistent with the new regulations. Although certain aspects of the model are mandatory, Division Offices are
not required to use the precise format or text of the model.