Programmatic Agreement between
the Federal Highway Administration, Massachusetts Division and
the Massachusetts Department of Transportation for Determinations
and Approvals of Categorical Exclusions under
the National Environmental Policy Act
I
Background
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370h (2014), and the Regulations
for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508) direct Federal agencies to
consider the environmental impacts of their proposed actions through preparation of an
Environmental Assessment or Environmental Impact Statement, unless a particular action is
categorically excluded. In 1990, the FHWA Massachusetts Division and the former Massachusetts Highway
Department developed a Programmatic Agreement that discussed the policy and procedures for the
processing of Categorical Exclusions (CEs) for Federal-Aid actions under the National Environmental Policy Act
(NEPA). The procedures in the 1990 Programmatic Agreement complied with FHWA regulations titled
Environmental Impact and Related Procedures, in 23 CFR 771. In 2005, the 1990 Programmatic Agreement was
superseded by the Programmatic Agreement for Approval of Categorical Exclusions between the
Federal Highway Administration and the Massachusetts Highway Department (the 2005 Programmatic
Agreement).
In 2012, the Moving Ahead for Progress in the 21st Century Act (MAP-21) required FHWA to amend
23 CFR 771.117 to designate additional types of actions as CEs. As a result, FHWA and MassDOT consulted
and agreed to amend the 2005 Programmatic Agreement to incorporate these changes. This
amended agreement supersedes the 2005 Programmatic Agreement.
FHWA and MassDOT follow the philosophy that the goal of the NEPA process is better decisions and not
bigger documents. This Programmatic Agreement should increase flexibility, streamline the
environmental process, and reduce paperwork.
FHWA has reviewed and agrees with the contents of MassDOT’s Categorical Exclusion Determination Project
Narrative and Checklist and its accompanying document titled Categorical Exclusion Determination Project
Narrative and Checklist Detailed Instructions. This Agreement incorporates both documents by reference.
This agreement is entered into pursuant to the following authorities:
A. National Environmental Policy Act, 42 U.S.C. 4321 - 4370
B.
Moving Ahead for Progress in the 21st Century Act, P.L. 112-141, 126 Stat. 405, Sec. 1318(d)
C. 40 CFR Parts 1500 - 1508
D. DOT Order 5610.1C
E.
23 CFR 771.117
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II
Purpose of Agreement
The primary purpose of this Agreement is to authorize MassDOT to determine, on behalf of FHWA, that
projects that satisfy certain conditions identified in this Agreement will not result in significant social,
economic, and environmental impacts, and are, therefore, categorically excluded as long as there are no
unusual circumstances present that would require the preparation of either an Environmental Assessment
(EA) or an Environmental Impact Statement (EIS). This Agreement authorizes MassDOT to determine whether
a project qualifies for any of the CEs listed in 23 CFR 771.117. It also authorizes MassDOT to certify to FHWA
that an action not specifically listed in 23 CFR 771.117, but meeting the CE criteria in 40 CFR 1508.4 and
23 CFR 771.117(a), qualifies for a CE.
III
General Definition of Categorical Exclusions
CEs are actions that meet the definition contained in 23 CFR 771.117(a), that is, they are actions which, either
individually or cumulatively, do not involve significant environmental impacts. They are actions which:
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Do not induce significant impacts to planned growth or land use for the area;
Do not require the relocation of significant numbers of people;
Do not have a significant impact on any natural, cultural, recreational, historic, or other resource;
Do not involve significant air, noise, or water quality impacts; or
Do not have significant impact on travel patterns.
For an action to qualify as a CE, it must comply with NEPA requirements (40 CFR Parts 1500-1508) relating to
segmentation and connected actions.
In addition, 23 CFR 771.117(b) states that any action which would normally be classified as a CE, but could
involve unusual circumstances, will require that MassDOT, in cooperation with the FHWA, conduct
appropriate environmental studies to determine if the CE classification is proper. Such unusual circumstances
include:
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IV
Significant environmental impacts;
Substantial controversy on environmental grounds;
Significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the
National Historic Preservation Act; or
Inconsistencies with any Federal or state law, requirement or administrative determination relating
to the environmental aspects of the action.
Processing of Categorical Exclusions
FHWA and MassDOT agree that the review of projects shall be administered according to the following
procedural provisions to satisfy FHWA’s NEPA responsibilities. The following sections provide information on
processing the two levels of CEs (Programmatic and Individual) to be used as part of this Agreement.
MassDOT may review Programmatic CE actions and approve them on behalf of FHWA. MassDOT agrees to
review Individual CE actions, certify that the action meets the CE criteria, and forward the certification to
FHWA for CE approval before proceeding with the action.
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A. Programmatic Categorical Exclusions
FHWA and MassDOT agree that for actions that satisfy the Programmatic CE Conditions set forth
below, MassDOT may make a CE determination on behalf of FHWA. These actions comply with
the definition of a CE in the CEQ regulations (40 CFR 1508.4) and 23 CFR 771.117, and normally
do not require any further NEPA approvals by the FHWA.
All Programmatic CE determinations made by MassDOT on behalf of FHWA must be supported
by documentation that indicates that all the required conditions specified in regulation or in this
PA have been satisfied. The Categorical Exclusion Determination Project Narrative and Checklist,
with supporting documentation, is acceptable documentation.
As early as possible in the design phase, but before design is finalized, the MassDOT project
manager will be responsible for ensuring that the CE Determination Project Narrative and
Checklist is completed and for obtaining the signature of MassDOT’s Director of Environmental
Services or his/her designee on the CE Determination Checklist.
List of Programmatic CEs
In accordance with 23 CFR 771.117(c), the following “C” List” actions meet the criteria for
programmatic CEs.
1.
Activities that do not involve or lead directly to construction, such as planning and research
activities; grants for training; engineering to define the elements of a proposed action or
alternatives so that social, economic, and environmental effects can be assessed; and
Federal-Aid system revisions that establish classes of highways on the Federal-Aid highway
system;
2.
Approval of utility installations along or across a transportation facility;
3.
Construction of bicycle and pedestrian lanes, paths, and facilities;
4.
Activities included in MassDOT’s “highway safety plan," under 23 U.S.C. 402;
5.
Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the
land transfer is in support of an action that is not otherwise subject to FHWA review under
NEPA;
6.
Installation of noise barriers or alterations to existing publicly owned buildings to provide
noise reduction;
7.
Landscaping;
8.
Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals,
and railroad warning devices where no substantial land acquisition or traffic disruption will
occur;
9.
The following actions for transportation facilities damaged by an incident resulting in an
emergency declared by the Governor of Massachusetts and concurred by the Secretary of
the United States Department of Transportation (the Secretary), or a disaster or emergency
declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121):
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a)
Emergency repairs under the FHWA Emergency Relief Program (23 U.S.C. 125); and
b) The repair, reconstruction, restoration, retrofitting, or replacement of any road,
highway, bridge, tunnel, or transit facility, including ancillary transportation facilities
(such as pedestrian/bicycle paths and bike lanes), that is in operation or under
construction when damaged and the action:
(i) Occurs within the existing right-of-way and in a manner that substantially
conforms to the preexisting design, function, and location as the original (which
may include upgrades to meet existing codes and standards as well as upgrades
warranted to address conditions that have changed since the original
construction); and
(ii) Is commenced within a two-year period beginning on the date of the declaration.
10. Acquisition of scenic easements;
11. Determination of payback under 23 U.S.C. 156 for property previously acquired with
Federal-Aid participation;
12. Improvements to existing rest areas and truck weigh stations;
13. Ridesharing activities;
14. Bus and rail car rehabilitation;
15. Alterations to facilities or vehicles in order to make them accessible for elderly and
handicapped persons;
16. Program administration, technical assistance activities, and operating assistance to transit
authorities to continue existing service or increase service to meet routine changes in
demand;
17. The purchase of vehicles whose use can be accommodated by existing facilities or by new
facilities which themselves are categorically excluded;
18. Track and rail bed maintenance and improvements when carried out within the existing
right-of-way;
19. Purchase and installation of operating or maintenance equipment to be located within the
transit facility and with no significant impacts off the site;
20. [Not Applicable]
21. Deployment of intelligent transportation systems;
22. Projects, as defined in 23 U.S.C. 101, that would take place entirely within the
existing operational right-of-way;
23. Federally-funded projects:
(a) That receive less than $5 million of Federal funds (as adjusted annually by the Secretary
to reflect any increases in the Consumer Price Index prepared by the Department of
Labor); or
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(b) With a total estimated cost of not more than $30 million (as adjusted annually by the
Secretary to reflect any increases in the Consumer Price Index prepared by the
Department of Labor) and Federal funds comprising less than 15 percent of the
total estimated project cost;
24. Localized geotechnical and other investigation to provide information for preliminary design
and for environmental analyses and permitting purposes, such as drilling test bores for soil
sampling; archaeological investigations for archaeology resources assessment or similar
survey; and wetland surveys;
25. Environmental restoration and pollution abatement actions to minimize or mitigate the
impacts of any existing transportation facility carried out to address water pollution or
environmental degradation. These actions include retrofitting and construction of
stormwater treatment systems to meet Federal and State requirements under Sections 401
and 402 of the Federal Water Pollution Control Act (33 USC 1341; 1342);
26. Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding
shoulders, or adding auxiliary lanes or parking lanes;
27. Highway safety or traffic operations improvement projects, including the installation of
ramp metering control devices and lighting;
28. Bridge rehabilitation, reconstruction, or replacement or the construction of grade separation
to replace existing at-grade railroad crossings;
29. Purchase, construction, replacement, or rehabilitation of ferry vessels (including
improvements to ferry vessel safety, navigation, and security systems) that would not require
a change in the function of the ferry terminals and can be accommodated by existing
facilities or by new facilities which themselves are within a CE; and
30. Rehabilitation or reconstruction of existing ferry facilities that occupy substantially the same
geographic footprint, do not result in a change in their functional use, and do not result in a
substantial increase in the existing facility's capacity. Example actions include work on
pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals.
In accordance with 23 CFR 771.117(d), the following “D” List” actions meet the criteria for CEs.
1.
[Reserved]
2.
[Reserved]
3.
[Reserved]
4.
Transportation corridor fringe parking facilities;
5.
Construction of new truck weigh stations or rest areas;
6.
Approvals for disposal of excess right-of-way or for joint or limited use of right-of-way,
where the proposed use does not have significant adverse impacts;
7.
Approvals for changes in access control;
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8.
Construction of new bus storage and maintenance facilities in areas used predominantly for
industrial or transportation purposes where such construction is not inconsistent with
existing zoning and located on or near a street with adequate capacity to handle anticipated
and support vehicle traffic;
9.
Rehabilitation or reconstruction of existing rail and bus buildings and ancillary facilities
where only minor amounts of additional land are required and there is not a substantial
increase in the number of users;
10. Construction of bus transfer facilities when located in a commercial area or other high
activity center in which there is adequate street capacity for projected bus traffic;
11. Construction of rail storage and maintenance facilities in areas used predominantly for
industrial or transportation purposes where such construction is not inconsistent with
existing zoning and where there is no significant noise impact on the surrounding
community;
12. Acquisition of a particular parcel or a limited number of parcels for hardship or protective
purposes where the acquisition will not limit the evaluation of alternatives, including shifts in
alignment for planned construction projects, which may be required in the NEPA process. No
project development on such land may proceed until the NEPA process has been completed.
Programmatic CE Conditions
1.
The action does not have any significant environmental impacts as described in
23 CFR 771.117(a);
2.
The action does not involve unusual circumstances as described in 23 CFR 771.117(b);
3.
The action does not involve the following:
a)
permanent acquisition of more than minor amounts of right-of-way or that would
result in non-residential or residential displacements;
b) substantial environmental impact from the intended future use of land involved in a
sale, transfer, or lease of state-owned property;
c)
a finding of adverse effect to historic properties concurred in by the State Historic
Preservation Officer;
d) a disproportionately high and adverse impact on minority or low-income populations;
e) a Type I action requiring a noise assessment;
f)
the use of properties protected by Section 4(f) of the Department of Transportation,
except for actions resulting in de minimis impacts;
g) the use of properties protected by Section 6(f) of the Land and Water Conservation
Act;
h) a U.S. Army Corps of Engineers Section 10 permit or Individual Section 404 permit;
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i)
a U.S. Coast Guard bridge permit;
j)
a finding from the U.S. Fish and Wildlife Service or the National Marine Fisheries
Service that the project is likely to adversely affect a Federally-listed threatened or
endangered species or critical habitat under the Endangered Species Act;
k)
a floodplain encroachment other than functionally dependent uses (e.g., bridges,
wetlands) or actions that facilitate open space use (e.g., recreational trails, bicycle and
pedestrian paths) ;
l)
construction activities in, across, or adjacent to a river component designated or
proposed for inclusion in the National System of Wild and Scenic Rivers;
m) any conversion of prime or unique farmland to nonagricultural use;
n) work affecting a known Superfund site;
o) any changes in access control; or
p) construction of temporary access or closure of existing road, bridge, or ramps unless
the following conditions are satisfied:
i)
provisions are made for access by local traffic and so posted;
ii)
through-traffic dependent business will not be adversely affected;
iii) the temporary access or road, bridge or ramp closure, to the extent possible, will
not interfere with any local special event or festival;
iv) the temporary access or road, bridge or ramp closure does not substantially
change the environmental consequences of the action; and
v)
there is no substantial controversy associated with the temporary access or road,
bridge or ramp closure;
B. Individual Categorical Exclusions
An action that does not qualify as a Programmatic CE may still qualify as an Individual CE, but
approval is needed from FHWA.
In this case, as early as possible in the design phase, the MassDOT project manager must
coordinate the completion of a CE Determination Checklist, with adequate supporting
information attached, that clearly establishes that the proposed action has little or no potential
for significant environmental impacts. The signature of MassDOT’s Director of Environmental
Services or his/her designee on the CE Determination Checklist is required. The MassDOT project
manager must then formally submit this documentation to FHWA for approval of the action as an
Individual CE.
In all cases, the MassDOT project manager is responsible for indicating to FHWA that the action
qualifies as a CE in routine early design submittals. This documentation will become a permanent
part of the project file and will be available for FHWA review upon request.
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Additional information concerning the completion of the CE Determination Checklist can be
found in the MassDOT Categorical Exclusion Determination Project Narrative and Checklist
Detailed Instructions.
V
Reevaluations
MassDOT is responsible for ensuring that the conditions of the project have not changed and that the
NEPA determination remains valid for the action. It may, therefore, become necessary for MassDOT to
reevaluate the CE classification for projects having CE determinations. A written reevaluation will be required
prior to further approvals being granted if, since the last CE determination:
 there have been substantial changes in the proposed action that are relevant to
environmental concerns; or
 there have been significant new circumstances or information relevant to environmental concerns
and bearing on the proposed actions or its impacts.
If the project has not commenced within three years from the project's CE determination and MassDOT has
not reexamined the environmental studies during that time, MassDOT shall reevaluate those studies and
conduct agency coordination, as appropriate. This may prompt reevaluation of the CE determination to
document any changes to the project as a result of agency coordination.
The signature authority for reevaluations will be the same as for the original CE document, unless the
reevaluation indicates a change in the level of document is needed.
VI
Project Files and Retention
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VII
MassDOT shall maintain electronic records and general administrative records pertaining to its
Programmatic Agreement responsibilities and the projects processed under the
Programmatic Agreement. The records shall be available for inspection by FHWA at any time
during normal business hours. MassDOT shall provide FHWA with copies of any documents
FHWA may request. MassDOT shall retain those records, including all letters and comments
received from governmental agencies, the public, and others about the performance of activities
assigned under this Agreement, for a period of no less than three years after completion of
project construction. This three-year retention provision does not relieve MassDOT of its project
or program recordkeeping responsibilities under 2 CFR 200.333 or any other applicable laws,
regulations, or policies.
MassDOT shall ensure that project records are available to the public consistent with
requirements applicable to Federal agencies under the Freedom of Information Act (FOIA), as
amended, and NEPA.
Performance Monitoring and Quality Assurance
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FHWA will monitor and evaluate MassDOT’s compliance with the terms of this Agreement
through a process review jointly conducted with MassDOT’s Environmental Services Section. The
results of such reviews will be used to determine whether the requirements of the Agreement are
being met and if modifications to the Agreement are necessary. Process reviews will be
conducted at least every three years or as requested by either agency.
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MassDOT shall cooperate with FHWA in all quality assurance and monitoring activities under this
Agreement. Monitoring by FHWA and MassDOT will consider MassDOT’s technical competency
and organizational capacity. It will also consider the consistency of MassDOT’s project
determinations; adequacy and capability of the resources applied by MassDOT; and the quality
and consistency of MassDOT’s administration of its responsibilities under this Agreement.
MassDOT agrees to annually submit to FHWA (electronically or hard copy) a report summarizing
MassDOT’s performance under this Agreement. The report will identify any areas where
improvement is needed and what measures MassDOT is taking to implement those
improvements. The report will include a description of actions taken as part of MassDOT’s quality
control efforts to ensure that its CE determinations are made in accordance with applicable laws
and this Agreement.
MassDOT shall submit quarterly to FHWA a list of the CE determinations that MassDOT approved
during the previous quarter according to the following schedule:
o First Quarter: October 1 - December 31
o Second Quarter: January 1 - March 31
o Third Quarter: April 1 - June 30
o Fourth Quarter: July 1 - September 30
VIII Provisions
The following provisions apply to this Agreement.
A. Initial Term
This Agreement shall have an initial term of five years, beginning on the date of the last signature.
B. Amendments and Administrative Modifications
1.
At any time, FHWA or MassDOT may request that this Agreement be amended or
administratively modified to reflect minor changes. Both parties shall consult to reach a consensus on
the proposed amendment. Where no consensus can be reached, the Agreement will not be
amended.
2.
If FHWA and MassDOT agree to amend this Agreement, they may execute an amendment with
new signatures and dates of signatures. The term of this Agreement shall remain unchanged unless
otherwise expressly stated in the amended Agreement. Any amendment that extends the term of this
Agreement shall be treated as a renewal, and the requirements of the Initial Term provision and of
the Renewal, Termination, and Expiration provision would be followed.
3.
In cases where new or revised environmental regulations affect this Agreement, FHWA will allow
MassDOT to conduct the work required by regulations, while both parties consult to amend this
agreement accordingly.
C. Renewal, Termination, and Expiration
1.
This Agreement is renewable for additional terms of five years each if MassDOT requests renewal and
FHWA determines that MassDOT has satisfactorily carried out the provisions of this Agreement. In
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considering any renewal of this Agreement, FHWA will evaluate the effectiveness of the Agreement
and its overall impact on the environmental review process. FHWA may decide not to renew the
Agreement if FHWA determines that the operation of the Agreement has substantial adverse effects
on the environmental review process. At least six months before the end of the initial term and of any
renewed term of this Agreement, MassDOT and FHWA shall meet to discuss the results of the
monitoring and consider any amendments to this Agreement. This meeting may be combined with a
meeting to discuss performance under the monitoring provisions of this Agreement. If the parties do
not renew this Agreement, then it shall expire at the end of the term in effect.
2.
FHWA or MassDOT may terminate this Agreement by providing ninety days written notice to the
other, provided that FHWA and MassDOT consult during the period before the termination to seek
agreement on amendments or other actions that would avoid termination.
3.
Expiration or termination of this Agreement shall mean that MassDOT is not able to make
CE approvals on FHWA’s behalf.
D. Public Availability
MassDOT has posted this Agreement on its Environmental Services MEPA/NEPA Unit Website. If
there are questions about the Agreement, please contact the MassDOT Environmental Services
Section at 617-973-7484.
Approval
This Agreement is hereby approved and becomes effective on the last date noted below.
Executed Version on File with MassDOT
_____________________________
_________________________
Thomas Tinlin
date
Administrator, Highway Division
Massachusetts Department of Transportation
Pamela Stephenson
Division Administrator
Federal Highway Administration
Massachusetts Division
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Glossary of Terms
Auxiliary Lane – An auxiliary lane is the portion of the roadway adjoining the traveled way for speed change,
turning, weaving, truck climbing, maneuvering of entering and leaving traffic, and other purposes
supplementary to through traffic movement. Auxiliary lanes are used to balance the traffic load and maintain
a more uniform level of service on the highway. They facilitate the positioning of drivers at exits and the
merging of drivers at entrances.
Bus Transfer Facility – An open area consisting of passenger shelters, boarding areas, kiosks and related
street improvements.
Emergency Repairs – Repairs, including temporary traffic operations undertaken during or immediately
following the disaster occurrence, for the purpose of: (1) minimizing the extent of damage, (2) protecting
remaining facilities, or (3) restoring essential traffic.
Existing Operational Right-of-Way – This refers to right-of-way that has been disturbed for an existing
transportation facility or is maintained for a transportation purpose. This area includes the features associated
with the physical footprint of the transportation facility (including the roadway, bridges, interchanges, culverts,
drainage, fixed guideways, or mitigation areas) and other areas maintained for transportation purposes such
as clear zone, traffic control signage, landscaping, any rest areas with direct access to a controlled access
highway, areas maintained for safety and security of a transportation facility, parking facilities with direct
access to an existing transportation facility, transit power substations, transit venting structures, and transit
maintenance facilities. Portions of the right-of-way that have not been disturbed or that are not maintained
for transportation purposes are not in the existing operational right-of-way.
Hardship Acquisition – Hardship acquisition is early acquisition of property by the applicant at the property
owner's request to alleviate particular hardship to the owner, in contrast to others, because of an inability to
sell his property. This is justified when the property owner can document on the basis of health, safety or
financial reasons that remaining in the property poses an undue hardship compared to others.
Intelligent Transportation System – Electronics, photonics, communications, or information processing
used singly or in combination, or as components of a fully integrated system, to improve the efficiency or
safety of a surface transportation system or to enhance security or passenger convenience. Examples include,
but are not limited to, traffic control and detector devices, lane management systems, electronic payment
equipment, automatic vehicle locaters, automated passenger counters, computer-aided dispatching systems,
radio communications systems, dynamic message signs, and security equipment including surveillance and
detection cameras on roadways and in transit facilities and on buses.
Project – Any undertaking eligible for assistance under Title 23, Highways of the United States Code.
Protective Acquisition – Protective Acquisition is done to prevent imminent development of a parcel which
may be needed for a proposed transportation corridor or site. Documentation must clearly demonstrate that
development of the land would preclude future transportation use and that such development is imminent.
Advance acquisition is not permitted for the sole purpose of reducing the cost of property for a proposed
project.
Transit Facility – Transit facilities include bus transfer stations, rail transit, and components of ferry terminals
and systems, such as docks, piers, platforms, pedestrian loading structures, and ticketing facilities.
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