Surface Transportation Project Delivery Program; TxDOT Audit #3 Report |
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Gregory G. Nadeau
Federal Highway Administration
25 November 2016
[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Notices]
[Pages 85303-85311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28353]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2016-0025]
Surface Transportation Project Delivery Program; TxDOT Audit #3
Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice, request for comment.
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SUMMARY: The Surface Transportation Project Delivery Program allows a
State to assume FHWA's environmental responsibilities for review,
consultation, and compliance for Federal highway projects. When a State
assumes these Federal responsibilities, the State becomes solely
responsible and liable for carrying out the responsibilities it has
assumed, in lieu of FHWA. Prior to the Fixing America's Surface
Transportation (FAST) Act of 2015, the Program required semiannual
audits during each of the first 2 years of State participation to
ensure compliance by each State participating in the Program. This
notice announces and solicits comments on the third audit report for
the Texas Department of Transportation's (TxDOT) participation in
accordance to these pre-FAST Act requirements.
DATES: Comments must be received on or before December 27, 2016.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room
W12-140, Washington, DC 20590. You may also submit comments
electronically at www.regulations.gov. All comments should include the
docket number that appears in the heading of this document. All
comments received will be available for examination and copying at the
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-
[[Page 85304]]
addressed, stamped postcard or you may print the acknowledgment page
that appears after submitting comments electronically. Anyone is able
to search the electronic form of all comments in any one of our dockets
by the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, or labor
union). The DOT posts these comments, without edits, including any
personal information the commenter provides, to www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Dr. Owen Lindauer, Office of Project
Development and Environmental Review, (202) 366-2655,
owen.lindauer@dot.gov, or Mr. Alan Strasser, Office of the Chief
Counsel, (202) 366-1356, alan.strasser@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue
SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30
p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program (or NEPA
Assignment Program) allows a State to assume FHWA's environmental
responsibilities for review, consultation, and compliance for Federal
highway projects. This provision has been codified at 23 U.S.C. 327.
When a State assumes these Federal responsibilities, the State becomes
solely responsible and liable for carrying out the responsibilities it
has assumed, in lieu of FHWA. The TxDOT published its application for
assumption under the National Environmental Policy Act (NEPA)
Assignment Program on March 14, 2014, at Texas Register 39(11): 1992,
and made it available for public comment for 30 days. After considering
public comments, TxDOT submitted its application to FHWA on May 29,
2014. The application served as the basis for developing the Memorandum
of Understanding (MOU) that identifies the responsibilities and
obligations TxDOT would assume. The FHWA published a notice of the
draft of the MOU in the Federal Register on October 10, 2014, at 79 FR
61370 with a 30-day comment period to solicit the views of the public
and Federal agencies. After the close of the comment period, FHWA and
TxDOT considered comments and proceeded to execute the MOU. Since
December 16, 2014, TxDOT has assumed FHWA's responsibilities under NEPA
and the responsibilities for reviews under other Federal environmental
requirements.
Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary
to conduct semiannual audits during each of the first 2 years of State
participation, annual audits during years 3 and 4, and monitoring each
subsequent year of State participation to ensure compliance by each
State participating in the Program. The results of each audit were
required to be presented in the form of an audit report and be made
available for public comment. On December 4, 2015, the President signed
into law the FAST Act, Public Law 114-94, 129 Stat. 1312 (2015).
Section 1308 of the FAST Act amended the audit provisions by limiting
the number of audits to one audit each year during the first 4 years of
a State's participation. However, FHWA had already conducted the second
audit for TxDOT's participation. This notice announces the availability
of the report for the third audit for TxDOT conducted prior to the FAST
Act and solicits public comment on same.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85.
Issued on: November 17, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
Draft
Surface Transportation Project Delivery Program FHWA Audit #3 of the
Texas Department of Transportation, December 17, 2015 to June 16, 2016
Executive Summary
This report summarizes the findings of FHWA's third audit review
(Audit #3) to assess the performance by the Texas Department of
Transportation (TxDOT) regarding its assumption of responsibilities and
obligations, as assigned by Federal Highway Administration (FHWA),
under a memorandum of understanding (MOU) which took effect on December
16, 2014. From that date, TxDOT assumed FHWA National Environmental
Policy Act (NEPA) responsibilities assigned for the environmental
review and compliance, and for other environmental laws related to NEPA
for highway projects in Texas (NEPA Assignment Program). The status of
FHWA's observations from the second audit review (Audit #2), including
any TxDOT self-imposed corrective actions, is detailed at the end of
this report.
The FHWA Audit #3 team (team) was formed in February 2016 and met
regularly to prepare for the on-site portion of the audit. Prior to the
on-site visit, the team: (1) Performed reviews of project files in
TxDOT's Environmental Compliance Oversight System (ECOS), (2) examined
TxDOT's responses to FHWA's information requests, and (3) developed
interview questions. The on-site portion of this audit, comprised of
TxDOT and other agency interviews, was conducted on April 11-15, 2016.
The TxDOT continues to develop, revise, and implement procedures
and processes required to carry out the NEPA Assignment Program.
Overall, the team found continued evidence that TxDOT is committed to
establishing a successful program. This report summarizes the team's
assessment of the current status of several aspects of the NEPA
Assignment Program, including numerous successful practices and six
observations that represent opportunities for TxDOT to improve its
program. The team identified four non-compliance observations that
TxDOT will need to address as corrective actions, if not already
addressed, in FHWA's next review or audit.
The TxDOT has continued to make progress toward meeting the
responsibilities it has assumed in accordance with the MOU. Through
this report, FHWA is notifying TxDOT of several non-compliance
observations that require TxDOT to take corrective action. By taking
corrective action and considering changes based on the observations in
this report, TxDOT should continue to move the NEPA Assignment Program
forward successfully.
Background
The Surface Transportation Project Delivery Program allows a State
to assume FHWA's environmental responsibilities for review,
consultation, and compliance for highway projects. This Program is
codified at 23 U.S.C. 327. When a State assumes these Federal
responsibilities for NEPA project decisionmaking, the State becomes
solely responsible and liable for carrying out these obligations in
lieu of and without further approval by FHWA.
The State of Texas was assigned the responsibility for making NEPA
project approvals and the responsibility for making other related
environmental decisions for highway projects on December 16, 2014. In
enacting Texas Transportation Code, Sec. 201.6035, the
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State has waived its sovereign immunity under the 11th Amendment of the
U.S. Constitution and consents to defend any actions brought by its
citizens for NEPA decisions it has made in Federal court.
The FHWA responsibilities assigned to TxDOT are specified in the
MOU. These responsibilities include: Compliance with the Endangered
Species Act (ESA) Section 7 consultations with the U.S. Fish and
Wildlife Service (USFWS) and the National Oceanic and Atmospheric
Administration's National Marine Fisheries Service, and Section 106
consultations with the Texas Historical Commission (THC) regarding
impacts to historic properties. Other responsibilities may not be
assigned and remain with FHWA. They include: (1) Responsibility for
project-level conformity determinations under the Clean Air Act and (2)
the responsibility for government-to-government consultation with
federally-recognized Indian tribes. Based on 23 U.S.C. 327(a)(2)(D),
any responsibility not explicitly assigned in the MOU is retained by
FHWA.
The TxDOT's MOU specifies that FHWA is required to conduct six
audit reviews. These audits are part of FHWA's oversight responsibility
for the NEPA Assignment Program. The reviews are to assess a State's
compliance with the provisions of the MOU as well as all applicable
Federal laws and policies. They also are used to evaluate a State's
progress toward achieving its performance measures as specified in the
MOU; to evaluate the success of the NEPA Assignment Program; and to
inform the administration of the findings regarding the NEPA Assignment
Program. In December 2015, statutory changes in Section 1308 of the
Fixing America's Surface Transportation Act (FAST Act), reduced the
frequency of these audit reviews to one audit per year during the first
four years of state participation in the program.
Scope and Methodology
The overall scope of this audit review is defined both in statute
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as
an official and careful examination and verification of accounts and
records, especially of financial accounts, by an independent unbiased
body. With regard to accounts or financial records, audits may follow a
prescribed process or methodology, and be conducted by ``auditors'' who
have special training in those processes or methods. The FHWA considers
this review to meet the definition of an audit because it is an
unbiased, independent, official, and careful examination and
verification of records and information about TxDOT's assumption of
environmental responsibilities. Principal members of the team that
conducted this audit have completed special training in audit processes
and methods.
The diverse composition of the team, the process of developing the
review report, and publishing it in the Federal Register help maintain
an unbiased review and establish the audit as an official action taken
by FHWA. The team for Audit #3 included NEPA subject-matter experts
from the FHWA Texas Division Office, as well as FHWA offices in
Washington, DC, Atlanta, GA, and Tallahassee, FL. In addition to the
NEPA experts, the team included FHWA planners, engineers, and air
quality specialists from the Texas Division office.
Audits, as stated in the MOU (Parts 11.1.1 and 11.1.5), are the
primary mechanism used by FHWA to oversee TxDOT's compliance with the
MOU and ensure compliance with applicable Federal laws and policies,
evaluate TxDOT's progress toward achieving the performance measures
identified in the MOU (Part 10.2), and collect information needed for
the Secretary's annual report to Congress. These audits also must be
designed and conducted to evaluate TxDOT's technical competency and
organizational capacity, adequacy of the financial resources committed
by TxDOT to administer the responsibilities assumed, quality assurance/
quality control process, attainment of performance measures, compliance
with the MOU requirements, and compliance with applicable laws and
policies in administering the responsibilities assumed. The four
performance measures identified in the MOU are: (1) Compliance with
NEPA and other Federal environmental statutes and regulations, (2)
quality control and quality assurance for NEPA decisions, (3)
relationships with agencies and the general public, and (4) increased
efficiency, timeliness, and completion of the NEPA process.
The scope and focus of this audit included reviewing the processes
and procedures (i.e., toolkits) used by TxDOT to reach and document its
independent project decisions. The team conducted a careful examination
of highway project files in TxDOT's ECOS and verified information on
the TxDOT NEPA Assignment Program through inspection of other records
and through interviews of TxDOT and other staff. The team gathered
information that served as the basis for this audit from three primary
sources: (1) TxDOT's response to a pre-audit #3 information request,
(2) a review of both a judgmental and random sample of project files in
ECOS with approval dates subsequent to the execution of the MOU, and
(3) interviews with TxDOT, the USFWS, U.S. Environmental Protection
Agency (USEPA), and THC staff. The TxDOT provided information in
response to FHWA pre-audit questions and requests for documents. That
material covered the following six topics: Program management,
documentation and records management, quality assurance/quality
control, legal sufficiency review, performance measurement, and
training. The team subdivided into working groups that focused on
considering TxDOT's performance according to each of the six topics.
The intent of the review was to check that TxDOT has the proper
procedures in place to implement the responsibilities assumed through
the MOU, ensure that the staff is aware of those procedures, and that
staff implements the procedures appropriately to achieve compliance
with NEPA and other assigned responsibilities. The review did not
evaluate the substance of project-specific decisions or second guess
those decisions, as such decisions are the sole responsibility of
TxDOT. The team focused on whether the procedures TxDOT followed
complied with Federal statutes, regulation, policy, procedure, process,
guidance, and guidelines.
The team defined the timeframe for highway project environmental
approvals subject to this third audit to be between July 1, 2015, and
January 29, 2016. The third audit intended to: (1) Evaluate whether
TxDOT's NEPA decisionmaking and other actions comply with all the
responsibilities it assumed in the MOU, and (2) determine the current
status of observations in the Audit #2 report, as well as required
corrective actions (see summary at end of this report). The population
of environmental approvals included 1489 projects based on certified
lists of NEPA approvals reported monthly by TxDOT. The NEPA approvals
included 1423 categorical exclusion determinations (CEs), approvals to
circulate Environmental Assessments (EAs), findings of no significant
impacts (FONSI), re-evaluations of EAs, Section 4(f) decisions,
approvals of a draft environmental impact statement (EIS), and records
of decision (RODs). The team drew a sample with a 95 percent confidence
interval with a 10 percent margin of error. This sample included 93
randomly selected CE projects and
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all 66 approvals that were not CEs. The team reviewed 159 project files
in this review.
The interviews conducted by the team focused on TxDOT's leadership
and staff at the Environmental Affairs Division (ENV) Headquarters in
Austin and staff in ten of TxDOT's Districts. The team divided into
three groups to complete the face-to-face interviews of District staff
in El Paso and Odessa; Pharr and Yoakum; and San Angelo, Abilene, and
Brownwood. Staff from the Wichita Falls, Atlanta, and Lufkin Districts
completed interviews via remote tele-conference. The team continued to
use the same review form and interview questions for Districts as used
in Audits #1 and 2. With these last 10 interviews completed, staff from
all 25 TxDOT Districts were interviewed as part of FHWA's audits.
Overall Audit Opinion
The TxDOT continues to make progress in the implementation of its
program that assumes FHWA's NEPA project-level decision authority and
other environmental responsibilities. The team acknowledges TxDOT's
effort to refine, and when necessary, establish internal policies and
procedures. The team found ample evidence of TxDOT's continuing efforts
to train staff in clarifying the roles and responsibilities of TxDOT
staff, and in educating staff in an effort to assure compliance with
all of the assigned responsibilities.
The team identified several non-compliant observations in this
review that TxDOT will need to address through corrective actions.
These observations come from a review of TxDOT procedures, project file
documentation, and interview information. This report also identifies
several notable good practices that we recommend be expanded upon.
Non-Compliance Observations
Audit #3
Non-compliance observations are instances where the team found the
TxDOT was out of compliance or deficient with regard to a Federal
regulation, statute, guidance, policy, the terms of the MOU, or TxDOT's
procedures for compliance with the NEPA process. Such observations may
also include instances where TxDOT has failed to maintain technical
competency, adequate personnel, and/or financial resources to carry out
the assumed responsibilities. Other non-compliance observations could
suggest a persistent failure to adequately consult, coordinate, or take
into account the concerns of other Federal, State, tribal, or local
agencies with oversight, consultation, or coordination
responsibilities. The FHWA expects TxDOT to develop and implement
corrective actions to address all non-compliance observations. As part
of information gathered for this audit, TxDOT has informed the team
they are still implementing some recommendations made by FHWA on Audit
#2 to address non-compliance. The FHWA will conduct follow up reviews
of non-compliance observations.
The MOU (Part 3.1.1) states that ``[p]ursuant to 23 U.S.C.
327(a)(2)(A), on the Effective Date, FHWA assigns, and TxDOT assumes,
subject to the terms and conditions set forth in 23 U.S.C. 327 and this
MOU, all of the USDOT Secretary's responsibilities for compliance with
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq. with respect to the highway projects specified under subpart 3.3.
This includes statutory provisions, regulations, policies, and guidance
related to the implementation of NEPA for Federal highway projects such
as 23 U.S.C. 139, 40 CFR 1500-1508, DOT Order 5610.1C, and 23 CFR 771
as applicable.'' Also, the performance measure in MOU Part 10.2.1(A)
for compliance with NEPA and other Federal environmental statutes and
regulations commits TxDOT to maintaining documented compliance with
requirements of all applicable statutes and regulations, as well as
procedures and processes set forth in the MOU. The following four non-
compliance observations were found by the team based on review of TxDOT
ENV toolkit/handbook procedures, documentation in project files, and
other sources.
Audit #3 Non-Compliance Observation #1
Section 7 Consultation
The TxDOT has assumed the responsibilities for compliance with the
ESA of 1973 (16 U.S.C. 1531-1544) and developed a procedure, as part of
the TxDOT environmental toolkit, for staff to make ESA determinations.
Through project file reviews, the team found that TxDOT's toolkit
procedures do not comply with the ESA requirements and USFWS policy \1\
in circumstances where an endangered species or its habitat is present.
Pursuant to MOU part 3.1.1 (see above), TxDOT's procedures must also be
consistent with FHWA guidance and the USFWS & NMFS 1998 Endangered
Species Consultation Handbook. Specifically, when a species or its
habitat is present within a project's impact area and impact is
possible, the project file needs to show consultation with USFWS or
provide documentation explaining how the project impacts will have no
effect on either species or their habitat. The TxDOT needs to take
action to revise its ESA procedures when an endangered species or its
habitat is present to make those procedures consistent with Federal
policy and guidance. The team urges TxDOT staff to meet with USFWS
staff to discuss how the revised procedures would result in more a
consistent set of determinations.
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\1\ USFWS & NMFS 1998 Endangered Species Consultation Handbook,
Standard Operating Procedure for Accessing USFWS Ecological Services
for Technical Assistance and Section 7 Consultations; 300.01 SOP
Version 2, September 2015.
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In four of the five project files reviewed, where an endangered
species or its habitat was present, TxDOT's procedure allowed for a
professional biologist's judgment in making an ESA determination of
``no effect,'' without either supporting documentation or consultation
with USFWS. The team has informed TxDOT of this deficiency and TxDOT
has indicated it has reviewed similarly-made ESA determinations to
check for errors.
Audit #3 Non-Compliance Observation #2
Noise Policy
Non-compliance observation #2 results from 11 project files where
the template letter fails to inform about the non-eligibility for
Federal-aid participation in Type II traffic noise abatement projects
as required by 23 CFR 772.17(a)(3). Three of those same projects did
not follow TxDOT's noise wall policy previously approved by FHWA. The
FHWA complies with its noise regulations (23 CFR 772) by reviewing and
approving each State's noise guidance and then relying on the State to
follow those procedures. For Texas, its noise guidelines (Guidelines
for Analysis and Abatement of Roadway Traffic Noise, 2011) represents
the noise policy reviewed and approved by FHWA that serves as the basis
for compliance with 23 CFR 772. In 2016, TxDOT updated its noise
guidelines but did not submit that material to FHWA for review and
approval pursuant to 23 CFR 772.7(b). Therefore, TxDOT cannot use these
guidelines as a basis for compliance with 23 CFR 772. The team found
inconsistencies and incorrect information in the ECOS project file of
record such as: notification to locals with jurisdiction occurring
before a
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NEPA decision was made; the date of public knowledge improperly
occurring before the NEPA decision; and holding a noise workshop before
the public hearing. Two of the three projects followed the unapproved
2016 noise policy rather than the 2011 noise policy and were found to
be non-compliant with the 2011 policy. These non-compliant observations
result from TxDOT having two noise policies, one that has been FHWA
approved (2011) and another more recent version that has not been
approved. If TxDOT intends to update its 2011 noise policy, FHWA must
review and approve the new policy before TxDOT may apply it to
projects. Until then, TxDOT needs to take action to ensure compliance
with the 2011 policy.
Audit #3 Non-Compliance Observation #3
Public Involvement
Non-compliance observation #3 is based upon evidence in files for
four projects reviewed that TxDOT did not follow its public involvement
procedure and toolkit requirements.\2\ The FHWA's regulation at 23 CFR
771.111(h)(1) requires that each State have FHWA approved public
involvement procedures to implement the public involvement/public
hearing requirements in law and regulation. The review team found that
TxDOT inconsistently applied its public involvement procedures.
Although TxDOT has detailed public involvement procedures in place,
TxDOT staff sometimes fails to follow those procedures. In one project
file, TxDOT did not hold a public hearing for a project on new
alignment as required in the State's procedures.\3\ Another project
file lacked documentation of public involvement required by the TxDOT
procedures.\4\
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\2\ TxDOT's Environmental Handbook/Public Involvement; 760.01
GUI Version 2, August 2015.
\3\ See id., Part 5.1.
\4\ See id., Part 11.
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In addition, the team reviewed a project file showing that TxDOT
made a finding of no significant impact (FONSI) for an action described
in 23 CFR 771.115(a) without evidence of a required additional public
notification. The FHWA's regulation at 23 CFR 771.119(h) requires
public notification to occur 30 days prior to issuing a FONSI. The team
reviewed the TxDOT public involvement toolkit and found no mention of
the Federal requirement for public notification under these
circumstances. The TxDOT is currently modifying its public involvement
procedures and has requested that FHWA review and approve those
procedures pursuant to 23 CFR 771.111(h). The TxDOT needs to take
corrective action to comply with the regulatory requirements for public
involvement consistent with either its 2015 handbook or a revised
public involvement policy that has been reviewed and approved by FHWA.
Audit #3 Non-Compliance Observation #4
Section 4(f)
Non-compliance observation #4 results from the review of one
project file that lacked the required documentation for compliance with
Section 4(f) as specified in 23 CFR 774.7 and TxDOT's Environmental
Handbook/U.S. Department of Transportation Act: Section 4(f); 810.01
GUI Version 1 dated May 2015. The project file lacked the date and
identity of the individual who made a de minimis impact determination.
The TxDOT did not follow established Section 4(f) toolkit procedures.
The TxDOT should ensure that all required Section 4(f) documentation is
complete and included in a project's file.
Successful Practices and Other Observations
This section summarizes the team's observations about issues or
practices that TxDOT may consider as areas to improve. It also
summarizes practices that the team believes are successful, so that
TxDOT can consider continuing or expanding those programs in the
future. Further information on these observations and successful
practices is contained in the following subsections that address these
six topic areas: Program management; documentation and records
management; quality assurance/quality control; legal sufficiency;
performance management; and training.
Throughout the following subsections, the team lists nine remaining
observations that FHWA recommends TxDOT consider in order to make
improvements. The FHWA's suggested implementation methods of action
include: Corrective action, targeted training, revising procedures,
continued self-assessment, or some other means. The team acknowledges
that, by sharing the preliminary draft audit report with TxDOT, TxDOT
has begun the process of implementing actions to address these
observations to improve its program prior to the publication of this
report.
1. Program Management
Successful Practices and Observations
Over the course of interviewing all 25 Districts over the past 18
months, the team noted that District staff welcomed the opportunity to
be responsible for making CE approvals. Additionally, TxDOT District
staff members and management have said in interviews that they are more
diligent with their documentation because they know that these
approvals will be internally assessed and the District held accountable
by the TxDOT ENV Self-Assessment Branch (SAB). District staff indicated
in interviews that the SAB detailed reviews are highly valued because
they can learn from their mistakes and improve. Accountability, in
part, is driving an enhanced desire for TxDOT staff to correctly
document environmental compliance.
The team recognizes enhanced communication among individuals in the
project development process as a successful practice. Information
gained from interviews and materials provided by TxDOT demonstrate
improved communication amongst Districts and between Districts and ENV.
Staff interviewed in Rural Districts indicated that in the past they
received less attention from ENV than Metropolitan Districts. The team
noted that ``NEPA Chats'' (regular conference calls led by ENV,
providing a platform for Districts to discuss complex NEPA
implementation issues) have helped remove any perceived disparity.
Urban and Rural Districts feel more included and a part of the
conversation. The team noted that Rural District staff developed their
own networks to keep each other informed. District environmental and
planning staff told the team that they take initiative and break down
internal District silos between planning, design, construction, and
maintenance. This includes providing internal self-initiated training
across disciplines so everyone in the District Office is aware of TxDOT
procedures to ensure that staff follows NEPA-related processes and
either keeps projects on-schedule or ensures that there are no
surprises if projected schedules slip. Finally, the ENV Division
Director initiated a new approach to effective ENV-District staff
communication. The Director established an informal three-member
advisory board with rotating representatives from each of the
Metropolitan, Urban, and Rural Districts. This board meets with the
Director to identify and discuss issues and concerns that should be
addressed by ENV. This exchange and feedback loop should prove
informative, enable
[[Page 85308]]
the success of the NEPA Assignment Program, and allow for any needed
changes or adaptations based on District input.
The team noted that the Air Quality reviewers at TxDOT ENV work
extremely well with FHWA in processing this unassigned component of the
program. The ENV reviewers are empowered to perform their own QA/QC
review of District-produced material before it is sent to FHWA for
approval. Retaining and using highly skilled, technical expertise in-
house at ENV promotes an efficient and consistent interpretation of
Federal regulations and a successful procedure-driven process. This
ensures compliance from the outset and should be seen as a model to be
duplicated in other areas.
Audit #3 Observation #1
The team identified one project file that showed that the NEPA
review was incomplete despite the project appearing on a list of
projects certifying that all environmental requirements had been
completed pursuant to the MOU (See Part 8.2.6.). Projects that TxDOT
reports as certified may be processed to receive Federal-aid funding
from FHWA. Through follow up conversations with TxDOT, the team learned
that reporting this project was an error that has since been rectified.
The team urges TxDOT to include a quality control review step as part
of its process to ensure that only projects that have satisfied all
environmental requirements are certified and reported to FHWA.
2. Documentation and Records Management
The team relied on information in ECOS, TxDOT's official file of
record, to evaluate project documentation and records management
practices. Many TxDOT toolkit and handbook procedures mention the
requirement to store official documentation in ECOS. The ECOS is also a
tool for storage and management of information records, as well as for
disclosure within TxDOT District Offices, between Districts and ENV,
and between TxDOT and the public. The TxDOT staff noted that ECOS is
both adaptable and flexible. The TxDOT must maintain and update the
ECOS operating protocols (for consistency of use and document/data
location) and educate its users on updates in a timely manner.
Successful Practices and Observations
A number of best practices demonstrated by TxDOT were evident as a
result of the documentation and records management review.
The team learned through interviews that many TxDOT staff members
routinely use and are becoming increasingly comfortable with the (still
optional) scope development tool. Some staff indicated that they also
utilized the scope development tool to develop their own checklists to
ensure that all environmental requirements have been met prior to
making a NEPA approval.
The team noted from interviews of USFWS and ENV subject matter
staff that Biological Assessment (BA) and Biological Opinion (BO)
documentation is more detailed and provides for supportable
conclusions. Specifically, the team learned that information in the BA
was formatted so that it could be incorporated directly into a BO,
which results in faster completion of ESA compliance and thus reduced
review timeframes.
Audit #3 Observation #2
The team continued to find instances in which individual project
files contained inconsistent and, in some cases, contradictory
Environmental Permits Issues and Commitments (EPICs) information. The
TxDOT procedures allow for documentation to be uploaded into the
documentation tab as well as into an EPIC tab. The EPIC tab indicates
``No EPICs exist for this project'' as the default statement. The ENV
management stated that an updated procedure allows for this
discrepancy. The team urges TxDOT to develop a procedure where EPIC
information may be consistently documented and found in ECOS.
3. Quality Assurance/Quality Control (QA/QC)
Successful Practices and Observations
The team observed several successful practices currently in place
that align with TxDOT's QA/QC Control Procedures for Environmental
Documents.
The team found evidence that TxDOT's approach to Quality Assurance
by SAB is functioning well as a post-NEPA approval review. The team
once again heard positive feedback in District staff interviews
regarding the SAB, noting that the SAB's comments are very helpful and
timely. According to TxDOT's self-assessment report, the SAB group
reviewed 100 percent of all CE documents in January 2016 and reported
the results to all Districts via webinars to ensure that all District
personnel were up to date on proper procedures and a consistent message
regarding corrective actions were relayed to all District environmental
staff. The TxDOT also reports that there was a SAB effort to train
District staff in public involvement procedures and to provide
information on the new Section 106 programmatic agreement. During our
interviews, we also learned that close out meetings have been held for
EA projects to share lessons learned among District, ENV, and TxDOT
subject matter expert environmental staff. As a result of this team
effort, since Audit #1, we observed that Districts have welcomed the
opportunity to be responsible for CE decisions that are delegated to
their level. Additionally those Districts are more careful with their
documentation and reviews because they know that the TxDOT ENV SAB will
internally assess those decisions and hold them accountable.
4. Legal Sufficiency Review
Based on the interviews and review of documentation, the
requirements for legal sufficiency under the MOU are being adequately
fulfilled.
The level of legal expertise available for reviews appears to be
sufficient, based on information gained from interviews. Currently
there are three attorneys in TxDOT's General Counsel Division (GCD)
(previously referred to as Office of General Counsel, OGC) with two of
the attorneys having been hired in the last six months. One of the new
attorneys has environmental law experience (primarily in water quality
and water utilities issues) but no highway or NEPA experience. Both new
attorneys have attended four NEPA training courses that ENV provided
(via the FHWA Resource Center) and are scheduled to attend two more.
One of the new attorneys was very complimentary of the quality of the
training and its usefulness in guiding her reviews. The GCD also has
contracts with three outside law firms on an ``as needed'' basis and an
outside contract attorney who has provided legal assistance on
environmental issues for a number of years to ENV.
The GCD assistance continues to be guided by ENVs Project Delivery
Manual Sections 303.080 through 303.086. These sections provide
guidance on conducting legal sufficiency review of FHWA-funded projects
and publishing a Notice of Intent to prepare an EIS and a Notice of
Availability in the Federal Register.
In February 2016, TxDOT received a notice of intent to sue by a
Non-Governmental Organization for a Federal project for which they made
the environmental decision. The TxDOT notified the FHWA Office of the
Chief Counsel, as required by the MOU.
[[Page 85309]]
Based on a report provided by GCD, since April 2015, GCD had
reviewed or been involved in legal review for six project actions.
These included four 139(l) notices, an FEIS, and one NOI. The ENV
project managers make requests for review of a document to the lead
attorney, who then assigns that document for formal legal review. That
lead attorney then assigns the document to one of the attorneys based
on workload and complexity. Attorney comments are provided in the
standard comment response matrix back to ENV. All comments must be
satisfactorily addressed for GCD to complete its legal sufficiency
review. The GCD does not issue conditional legal sufficiency
determinations.
Successful Practice
Based on our discussions, GCD is very involved with the Districts
and ENV throughout the NEPA project development process and legal
issues. The team did note more open communication between all GCD, ENV,
and District staff. All of the attorneys are regular participants in
the monthly ENV NEPA Chats.
5. Performance Measurement
As TxDOT explained in its response to FHWA's pre-audit #3
information request, performance measurement (evaluating how well TxDOT
is managing the program and determining the value delivered for
customers and stakeholders) is a complex issue. The TxDOT devotes a
high level of effort developing the metrics to measure performance.
Despite the challenges of complexity and effort, TxDOT informed the
team that it uses performance measurements to identify potential risk,
review areas needing improvement, and recognize successful practices.
Successful Practices and Observations
The team acknowledges the utility of TxDOT's performance measures
for quality control and quality assurance in its CE determinations. As
explained in their self-assessment summary report and their response to
FHWA's pre-audit #3 information request, TxDOT conducted an extensive
analysis of whether project file errors were substantive or not
substantive. The team generally found substantive errors to be non-
compliant with respect to the validity of environmental decisions,
whereas non-substantive errors were flaws in information that
substantiated those decisions. The TxDOT's analysis of these errors
demonstrates that non-substantive errors largely affect TxDOT
efficiency in reporting and data analysis. The TxDOT's procedures
result in the identification and correction of substantive errors. This
careful consideration of performance regarding CE determination errors
and corrective actions demonstrates how measurement and application of
corrective actions improved overall performance. In addition, TxDOT is
applying this information to design specific ECOS upgrades to eliminate
several categories of errors.
The specific consideration of errors is just one example of what
the team learned from interviewing TxDOT's ENV Director and assessing
TxDOT leadership's review measures to monitor continuous improvement.
The TxDOT's leadership, consultants, and District staff all noted an
improvement and a higher consistency in the quality of environmental
decisions and environmental documentation for CE determinations. The
TxDOT identified issues that may require policy or program attention.
These issues are memorialized in the self-assessment report's root
cause analysis for substantive and non-substantive errors.
Audit #3 Observation #3
The team considered TxDOT's QA/QC target measure of 95 percent of
project files determined to be complete and accurate and TxDOT's
reported measure of 77.7 percent. While the target of any performance
measure should be at or close to 100 percent, FHWA acknowledges that
attaining this measure may be extremely difficult, especially given
that the project class is an EA or EIS. The TxDOT has analyzed the
range of errors and identified missing or incomplete information as a
persistent problem. Given TxDOT's efforts to date and careful
consideration of FHWA's observations on QA/QC, TxDOT may consider error
rates and/or different measure(s) that demonstrate continuous
improvement.
Audit #3 Observation #4
Timeliness measures reported by TxDOT in their recent self-
assessment summary report identify time frames for completion of EA and
EIS projects. Most of these projects were initiated prior to December
2014, when TxDOT was assigned FHWA's NEPA responsibilities. The average
time to complete a FONSI before and after assignment dropped from 1060
days to 686 days (eliminating an outlier project that took 2590 days).
While one expects projects initiated and completed under assignment to
finish faster than any previous average time frame, even TxDOT
recognizes that complex EAs require more time to reach a FONSI than
projects with fewer impacts or complexities. The TxDOT's summary report
contains too few data points to determine trends, and there is no
control to differentiate between ``complex'' and ``simple'' EAs. The
team urges TxDOT to consider a timeliness measure for CEs, recognizing
the issues of consistency within and among CE actions listed in 23 CFR
771.117(c) and 23 CFR 771.117(d). Meaningful timeliness measures should
accommodate the time TxDOT takes to initiate and complete environmental
reviews, given that some reviews will take less time and entail fewer
tasks or steps than others. The TxDOT could consider ways to
``control'' for project complexity, perhaps by stratifying their data
or by measuring the timeliness to complete certain tasks (such as
defining purpose and need, the range of alternatives, or the time to
prepare an Draft EIS, Final EIS, or ROD).
6. Training Program
The TxDOT has specifically designed an environmental professional
training program for its environmental professional staff and others.
This program was updated for 2016 and the team learned about it through
a four-page description and share point site information provided in
TxDOT's response to FHWA's pre-audit #3 information request. This
information was supplemented through interviews with TxDOT ENV staff
responsible for the training program. This program, FHWA was told, must
satisfy requirements in State law (Texas Administrative Code, or TAC,
title 43, part 1, chapter 2, subchapter A, rule Sec. 2.11) as well as
requirements specified in Part 12 of the MOU. Texas law requires that
TxDOT individuals be ``certified'' before they may make environmental
decisions and must maintain ``certification'' to continue to make
decisions. It follows then that TxDOT's training focus is TxDOT staff's
initial certification and continuing certification. The MOU training
requirements establish ongoing competency requirements for TxDOT's
staff.
Successful Practices and Observations
The team recognizes the following successful training practices and
observations. The team learned from an interview that TxDOT's new hire
``on-boarding'' process is extraordinarily responsive to delivering the
ENV 207 training course. This course, which provides a general overview
of environmental considerations in project development, also entails
practical ECOS training in how to create a project, use the optional
scope
[[Page 85310]]
development tool, how to assign a task, and how to complete a form.
Additionally, an interviewee told the team that training updates to the
ENV 207 course were continuous.
Another successful practice is to open up the full range of TxDOT's
training classes to enrollment by local government and consultant staff
(after TxDOT staff has been provided an initial opportunity to enroll).
And finally, TxDOT is archiving and providing easy access of recordings
from all NEPA Chats/informal training including, notes, and handouts
from those offerings/training.
Audit #3 Observation #5
The team learned through interviews that TxDOT oversight and
tracking of environmental competency training/competency assurance is
de-centralized. This means that individual TxDOT staff and supervisors
are responsible for maintaining environmental ``certification'' under
State law, as well as general competencies and capabilities to carry
out MOU responsibilities (see MOU Part 4.2.2). The team was unable to
assess the overall staff competency and exposure to training because
information was spread across all 25 TxDOT Districts. These audit
reviews require details demonstrating that TxDOT staff are capable,
competent, qualified, and certified (from the perspective of TAC and
the MOU) to perform these assigned responsibilities. Thus, TxDOT's
ability to monitor the certification and competency status of their
qualified staff is important. The TxDOT should consider at least an
annual assessment that compiles all the environmental competency
information from across all Districts and ENV.
Audit #3 Observation #6
The TxDOT acknowledged in its recent self-assessment summary report
that many of the errors it detects in project files (both substantive
and non-substantive) are tied to staff knowledge and use of the ECOS
program. In many ways, TxDOT has demonstrated that updating ECOS is the
most efficient way to head off errors and increase consistency in
TxDOT's environmental review process. The team learned from interviews
that the first wave of ECOS changes will coincide with new training. In
addition to the other recommendations made by FHWA, TxDOT should engage
its subject matter experts, the self-assessment team, as well as its
overall policy and program staff in crafting and delivering this
training to address the non-compliance observations noted above. In
addition, TxDOT should take any lessons learned from the corrective
actions taken as a result of this audit and incorporate them into
future training.
Status of Non-Compliance Observations and Other Observations From Audit
#2 (September 2015) and FHWA Responses to TxDOT's Audit #2 Comments
Audit #2 Non-Compliance Observations
1. CE determination prior to regulatory criteria being met--The
TxDOT indicated in its comment on the Federal Register notice of the
draft Audit #2 report that it (1) circulated a memo to its staff
regarding conditional clearances, (2) revised its standard operating
procedures to remove the discussion of conditional clearances, and (3)
completed informal training on this issue utilizing the NEPA Chats. The
TxDOT's comment included discussion on the timing of NEPA approvals,
but after FHWA discussed these comments with TxDOT, TxDOT chose to
withdraw comments regarding the timing of NEPA approvals.
2. NEPA Decision reporting--The TxDOT reported to FHWA that it
revised its method of monthly NEPA Approval certification reporting in
an effort to eliminate errors. The recurrence of a reporting error in
Audit #3 indicates that under current reporting procedures, it is still
possible for TxDOT to erroneously certify projects that are still being
processed as being complete. The FHWA relies upon TxDOT's independent
NEPA decision to advance federally funded projects. If FHWA advances a
project that has been improperly processed by TxDOT, this may
jeopardize Federal-aid reimbursement or eligibility of Federal funds on
that project.
3. Project file records and missing information--The TxDOT
acknowledged the concern for incomplete project files in its comments
on Audit #2. The TxDOT states that it has reviewed the projects under
this observation and has provided corrective actions in the form of (1)
individual communications with staff affected, and (2) through NEPA
Chats.
Audit #2 Observations
All observations are purely for TxDOT's consideration only and
should not be deemed non-compliance observations unless otherwise
noted.
1. Relationships between TxDOT and other Federal Agency staff--The
TxDOT indicated in its comments on Audit #2 that it has conducted
follow up meetings with U.S. Coast Guard staff. It also disagrees with
the characterization that TxDOT's relationship with the Texas SHPO is
``strained.'' The FHWA has continued to include interviews with outside
agency staff as part of this and future reviews/audits to seek
information about relationships and to convey information back to
TxDOT. The FHWA provides information for TxDOT to consider in
maintaining and/or improving its working relationship with both Federal
and State regulatory agencies. The FHWA interviews these agencies in
order to (1) provide feedback about those relationships that TxDOT may
not otherwise hear directly and (2) to review and assess TxDOT's
procedures. The FHWA is also able to observe program-level interactions
between TxDOT and other agencies and to convey observations back to
TxDOT for consideration purposes.
2. Legacy projects and TxDOT's ``no effect'' determinations for
ESA--The TxDOT stated in its comments on Audit #2 that it met with FHWA
staff on this matter and has assessed existing procedures, rules, and
policies related to ESA consultation and reviewed related training. The
team found a deficiency in the TxDOT procedure on making ESA
determinations as a result of Audit #3. Since the procedure for making
ESA determinations is non-compliant, TxDOT will need to implement a
corrective action, which will be considered as part of FHWA's next
review or audit.
3. Consistency in TxDOT's approach to defining 23 CFR 771.117(e)(4)
for major traffic disruption--This TxDOT response to the draft Audit #2
report downplays the need for an agreed upon standard or threshold on
how to apply the constraint in 23 CFR 771.117(e)(4) regarding traffic
disruption. The TxDOT indicated that the decision is made by
``professional judgement'' according to the criteria the CEQ has
identified for a determination of significant impact (i.e., context and
intensity). However, TxDOT's approach does not fulfill FHWA policy on
how to set the threshold for this constraint, stated in the preamble to
the notice of the final rule (79 FR 60110, Oct. 6, 2014). Thus, TxDOT
should, at the minimum, identify examples of instances of substantial
traffic disruption and instances that do not arise to the level of
substantial disruption.
4. Addressing errors and corrections to NEPA decisions in ECOS--
This TxDOT comment on Audit #2 acknowledges that a specific CE
determination was incorrect, attributable to a typographical error.
Thus, TxDOT completed a new CE determination for that project. As part
of the project file reviews for Audit #4,
[[Page 85311]]
FHWA proposes to engage with TxDOT to have a shared set of expectations
on the process or procedures that addresses various errors or omissions
in TxDOT's NEPA decisionmaking at a program-level, both before and
after TxDOT requests that FHWA approve Federal-aid. The integrity of
data in ECOS is paramount to retaining an official file of record for
Federal-aid projects. It is anticipated that ECOS upgrades will also
help to fully address this issue with an improved quality control
process improvement by TxDOT.
5. Inadequate project description or project scope--The TxDOT
stated in its comments on Audit #2 that discussions of adequate project
descriptions have been the subject of several NEPA Chats and will
continue to be discussed as long as this issue persists. The FHWA and
TxDOT collaborated to develop a shared set of expectations for project
development that was presented at the September 2015 TxDOT
Environmental Conference.
6. EPIC documentation and decisionmaking--The TxDOT indicated in
its comment on the Audit #2 report that TxDOT ECOS procedures allow
information to be loaded in two ways that can be confusing for
reviewers. The TxDOT acknowledged this issue and stated that it has
established an EPIC workgroup with the purpose of identifying a more
consistent method to record and track EPICs. The results of this
workgroup will be incorporated into a series of ECOS upgrades scheduled
over the next 2 years.
7. Multiple CE approval documents in ECOS--The TxDOT stated in its
comment on Audit #2 that the project file for this observation
contained a typographical error that made the initial CE determination
incorrect. The TxDOT then made a new CE determination. Having a shared
set of expectations (see number 4, above) between TxDOT and FHWA on how
to address errors and omissions should improve both the program and the
review process.
8. Multiple reevaluations of a NEPA approval--The TxDOT indicated
in its comment on Audit #2 that the multiple reevaluations resulted
from a design-build project, where changes may occur often. The TxDOT
prefers to respond to changes within a set time frame to keep the
project moving especially on design-build projects. Reevaluations must
look at the entire project. This situation will also be considered as
part of the shared set of FHWA-TxDOT expectations on how to handle
project changes.
9. ECOS upgrades schedule too slow--This TxDOT response to Audit #2
disagreed that the pace of ECOS upgrades might increase litigation
risk. Based on information from Audit #3 interviews, this observation
is tied to TxDOT's commitment of resources to assume responsibilities
under the MOU (Part 4.2). This was presented as a continued observation
from previous audits and is restated to draw TxDOT's attention to an
identified problem. This observation is not a statement of non-
compliance, although it could lead to a non-compliance observation in
the future. As ECOS is the official file of record, FHWA is concerned
that TxDOT has not improved ECOS quickly enough. The TxDOT should
consider making database updates more timely and related procedures
mandatory in relation to documentation storage within ECOS.
10. Difficulty locating information in project files--This TxDOT
comment on Audit #2 states that it formed a workgroup in the summer of
2015 for the purpose of developing statewide guidance regarding filing
and naming conventions in ECOS. The TxDOT Districts themselves had
issues locating documentation within their own ECOS project files
during site visits in Audit #2. The team continued to have difficulty
(and ENV management and staff also confirmed the same difficulty)
finding key project documentation for this audit, especially for large
and complex projects. The FHWA looks forward to reviewing the
recommendations of this workgroup and assessing any changes as part of
a future review or audit.
11. Evidence of recurring Non-Compliance Observations related to QA
and QC application to individual projects--This TxDOT comment on Audit
#2 commits to making project specific comments in SAB feedback reports
available for Audit #3. These reports were made available and the TxDOT
self-assessment report included an extensive analysis of QC outcomes
for CE project reviews. The QC is still an issue prior to NEPA
decisions being finalized for larger scale CEs as well as for EAs and
EISs.
12. Expectation for the timeframe necessary for a legal review--
This TxDOT comment on Audit #2 commits to revising the standard
operating procedure to establish an expected review time for the
TxDOT's Office of General Counsel (OGC) (now General Counsel Division--
GCD) to conduct a legal sufficiency review. As recommended during Audit
#2, OGC has issued a procedure establishing legal review times for FEIS
(30 days) and for NOI and 139(l) documents (3 days). If necessary, OGC
can request additional time for the review.
13. Measure for the TxDOT relationship with the public--The TxDOT
continued to report the number of complaints received year-to-year as
its performance measure for its relationship with the public. None were
received, and the measure reported was unchanged from the prior self-
assessment summary report. The team learned from interviews that it is
possible that the public may not distinguish between performance pre-
and post-assignment. The team was told that TxDOT is still getting
feedback from the public and agencies and plans to include the measures
into a continuous improvement process. The TxDOT also noted, in its
Federal Register comment on the draft Audit #2 report, that (1)
assessing change in communication with the general public is inherently
difficult, (2) NEPA assignment presents little external differentiation
to the general public, and (3) finding success in measuring this
variable has proven difficult.
14. Implement ways to train local government staff--The TxDOT's
Environmental Professional Training Program is described in a four-page
report provided to the team as part of TxDOT's pre-audit information
request response. That report identifies a series of workshops and
training events jointly held with Texas Historical Commission staff.
The team learned through interviews and the training program report
that TxDOT has established an ENV training SharePoint site that is
accessible to the public for local government staff to register for
training at no cost.
Next Steps
The FHWA provided a preliminary draft audit report to TxDOT for a
14-day review and comment period. The team has considered TxDOT
comments in developing this draft Audit #3 report. As the next step,
FHWA will publish a notice in the Federal Register to make it available
to the public for a 30-day comment period review [23 U.S.C. 327(g)]. No
later than 60 days after the close of the comment period, FHWA will
respond to all comments submitted in finalizing this draft audit report
[pursuant to 23 U.S.C. 327(g)(2)(B)]. Once finalized, the audit report
will be published in the Federal Register.
[FR Doc. 2016-28353 Filed 11-23-16; 8:45 am]
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