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FHWA NEPA: 23 CFR 771 categorical exclusions, EAs and EISs

FHWA NEPA is the Federal Highway Administration's NEPA process under 23 CFR part 771, procedures it shares with FRA and FTA, finalized September 1, 2026[1]. Each action is a categorical exclusion (CE), listed for FHWA in 23 CFR 771.117, an environmental assessment (EA) or an environmental impact statement (EIS)[2][3].

By Ilya Volodarsky. 22 sources, last read on . This page explains the law; it is not legal advice.

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    Describe the project and ePlan drafts the CE determination with the project description, CE category and unusual-circumstances check; every fact it can't confirm is marked for you.

    ePlan vs. by hand

    How ePlan compares to drafting a CE Determination by hand

    The same document, two ways to a first draft.

    ComparedePlan.aiBy hand
    Starting pointePlan.aiA CE determination that follows your State's CE form or a precedent you upload, with your project facts filled in and gaps markedBy handYour office's last CE form, copied and edited by hand
    Precedent researchePlan.aiThe research agent searches agency project pages, the Federal Register and eCFR for your project and up to two analog projectsBy handSearching State DOT project pages for comparable CEs yourself
    Missing factsePlan.aiEvery fact ePlan can't confirm stays a highlighted [INSERT] placeholder until someone fills itBy handGaps surface in review, or not at all
    Cost to startePlan.aiScoping letters are free. EAs, EIRs and decision memos are on Max at $199 a monthBy handStaff or consultant hours for every draft

    ePlan.ai as of October 2026. “By hand” means a Word template, past documents and agency PDFs. Your team reviews, edits and signs every draft.

    FHWA categorical exclusions: the (c) and (d) lists in 23 CFR 771.117

    Most FHWA projects are CEs: in FHWA's 2012 survey, State DOTs averaged 343 CEs a year, and CEs were 90 to 99 percent of NEPA decisions at most State DOTs and transit agencies[9]. Final design, land purchase and construction wait for the classification[10].

    (c)-list modernization, safety and bridge CEs move to (d) if they need more than minor right-of-way or certain permits, or affect historic properties, Section 4(f) land or listed species. Unusual circumstances, such as significant impacts, controversy or effects on Section 106 properties, require more study[3]. (c)-list examples:

    • (c)(8): signs, markings, signals and railroad warning devices[3]
    • (c)(22): work entirely within the existing operational right-of-way[3]
    • (c)(28): bridge rehabilitation, reconstruction or replacement within the paragraph (e) limits[3]

    FTA categorical exclusions in 23 CFR 771.118

    FTA uses the same (c) and (d) model. Its (c) list includes utilities along transportation right-of-way, bike and pedestrian facilities, and same-footprint rebuilds such as platform extensions[5]. Each agency may use the other's list, or FRA's, when its terms are met[3][5].

    Programmatic agreements and NEPA assignment

    Under 771.117(g), a programmatic agreement lets a State DOT make CE determinations for FHWA for up to five years, renewable, with set documentation, quality control and monitoring[3]. FHWA posts its model and executed agreements[11].

    Under NEPA assignment the State acts as FHWA[1]: for CEs only under 23 U.S.C. 326, as in California, Utah and Alaska[7][12], or for everything under 327, with sole liability in federal court. Alaska, Arizona, California, Florida, Maine, Nebraska, Ohio, Texas and Utah hold 327 agreements[8][13].

    FHWA EAs and EISs: 23 CFR 771.119 and 771.123

    An EA covers an action that is not a CE and has no foreseeable significant effect, or an unknown one. After 30 days of public availability, a finding of no significant impact (FONSI) follows if warranted[14][15].

    A draft EIS gets 45 to 60 days of comment, and the final EIS and record of decision are combined where practicable[16][17]. Claims expire 150 days after a limitations notice[18]. FHWA's 26 final EISs of 2019 to 2024 took a median 4.5 years from notice of intent to final EIS, the slowest of agencies with 20 or more[19]; see the NEPA timeline.

    Outline

    FHWA CE determination outline: what to document

    Part 771 has no CE form; a programmatic agreement sets how a State DOT documents CEs[3]. Section 4(f) also binds FAA airport projects.

    1. Project description and termini

      Location, limits and work, with logical termini and independent utility[20].

    2. Lead agency and authority

      The federal funds or approval, and who acts: the Administration, or the State by agreement or assignment[3][8].

    3. CE category

      The 771.117 or 771.118 paragraph; for a (d)-list CE, proof that its conditions are met[3][5].

    4. Paragraph (e) constraints

      For modernization, safety and bridge CEs: right-of-way, permits, historic sites, Section 4(f), species, traffic and floodplains[3].

    5. Unusual circumstances and Section 4(f)

      Findings on impacts, controversy and Section 106 properties, and any park, refuge or historic site use[3][21].

    6. Mitigation and approval

      Commitments the sponsor must carry out, and the FHWA, FTA or State DOT signature[4][3][22].

    Sources

    Where each statement comes from

    Show all 22 sources
    1. [1]National Environmental Policy Act Regulations (FHWA, FRA and FTA final rule), 91 FR 56029. U.S. Department of Transportation, Federal Register, September 1, 2026. Read October 2, 2026.
    2. [2]23 CFR 771.115 - Classes of actions (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    3. [3]23 CFR 771.117 - FHWA categorical exclusions. Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    4. [4]23 CFR 771.109 - Applicability and responsibilities (FHWA, FRA and FTA environmental procedures). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    5. [5]23 CFR 771.118 - FTA categorical exclusions (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    6. [6]23 CFR 771.138 - Timelines, page limits, and certifications (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    7. [7]23 U.S.C. 326 - State assumption of responsibility for categorical exclusions. United States Code, 2024 edition (GovInfo). Read October 2, 2026.
    8. [8]23 U.S.C. 327 - Surface transportation project delivery program. United States Code, 2024 edition (GovInfo). Read October 2, 2026.
    9. [9]National Environmental Policy Act Categorical Exclusion Survey Review (MAP-21 section 1318), FHWA-HEP-13-003. U.S. Department of Transportation, Federal Highway Administration, November 27, 2012. Read October 3, 2026.
    10. [10]23 CFR 771.113 - Timing of Administration activities when NEPA applies (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    11. [11]Programmatic Categorical Exclusion Agreements. Federal Highway Administration, Environmental Review Toolkit. Read October 2, 2026.
    12. [12]National Environmental Policy Act (NEPA) Assignment. Federal Highway Administration, Environmental Review Toolkit. Read October 2, 2026.
    13. [13]Program Assignment (23 U.S.C. 327). Federal Highway Administration, Environmental Review Toolkit. Read October 2, 2026.
    14. [14]23 CFR 771.119 - Environmental assessments (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    15. [15]23 CFR 771.121 - Findings of no significant impact (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    16. [16]23 CFR 771.123 - Draft environmental impact statements (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    17. [17]23 CFR 771.124 - Final environmental impact statement/record of decision document (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    18. [18]23 CFR 771.139 - Limitations on actions (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    19. [19]EIS Timeline Data, 2010-2024 (spreadsheet behind CEQ's 2025 report). Council on Environmental Quality, January 13, 2025. Read October 3, 2026.
    20. [20]23 CFR 771.111 - Early coordination, public involvement, and project development (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    21. [21]23 CFR part 774 - Parks, recreation areas, wildlife and waterfowl refuges, and historic sites (Section 4(f)). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.
    22. [22]23 CFR 771.129 - Re-evaluations (FHWA, FRA and FTA). Electronic Code of Federal Regulations (eCFR), current. Read October 2, 2026.

    Written by

    Ilya Volodarsky

    Ilya Volodarsky founded ePlan.ai. He co-founded Segment and is co-founder and CEO of Wildfires.org.

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    • A (c)-list action needs no further approval once it fits and no unusual circumstances arise. A (d)-list action needs documented approval from FHWA, FTA or a State DOT under a programmatic agreement.

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