Surface Transportation Project Delivery Program; TxDOT Audit Report #3 |
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Walter C. Waidelich, Jr.
Federal Highway Administration
12 April 2017
[Federal Register Volume 82, Number 69 (Wednesday, April 12, 2017)]
[Notices]
[Pages 17719-17728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07345]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2016-0025]
Surface Transportation Project Delivery Program; TxDOT Audit
Report #3
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice.
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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-aid 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 finalizes the findings of the third audit report for the Texas
Department of Transportation's (TxDOT) participation in accordance to
these pre-FAST Act requirements.
FOR FURTHER INFORMATION CONTACT: Dr. Owen Lindauer, Office of Project
Development and Environmental Review, (202) 366-2655,
Owen.Lindauer@dot.gov, or Mr. Jomar Maldonado, Office of the Chief
Counsel, (202) 366-1373, Jomar.Maldonado@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-
aid highway projects (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 the NEPA-related Federal environmental laws.
Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary
to conduct
[[Page 17720]]
semiannual audits during each of the first 2 years of State
participation, and annual audits during 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 (Pub. L.
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. This third
audit represents the annual review of TxDOT's performance in the 2nd
year of the State's participation. A draft version of this report was
published in the Federal Register on November 26, 2016, at 81 FR 85303
and was available for public review and comment. The FHWA received two
responses; one was from TxDOT and the other was from the American Road
and Transportation Builders Association. Only the TxDOT response
contained substantive comments.
The first TxDOT comment stated that it disagreed with the draft
report's characterization of issues related to the degree or
consistency with which TxDOT has followed guidance, policies, and
internal TxDOT procedures as ``non-compliance'' observations, as these
issues do not involve any violation of a statute or rule. Further,
TxDOT stated that it would consider adherence to regulation and rule as
meeting the compliance standard while adherence to guidance or policy
is a second tier threshold that, while important, does not merit a non-
compliance characterization if/when it is not met. The TxDOT disagrees
with these types of issues being characterized as ``non-compliance''
along with alleged violations of statutes and rules. The FHWA responds
that TxDOT has applied an incorrect standard of review to this audit.
The MOU subpart 11.1.1 states that the standard is to review ``TxDOT's
discharge of the responsibilities it has assumed under this MOU.'' As
such, the review is not limited only to possible violations of statute
or rule. Further, TxDOT has subjected itself to following the guidance
and policy of FHWA and other Federal agencies pursuant to MOU subpart
5.1.1. The FHWA has made no change in the way that non-compliance
observations are characterized in finalizing the report.
Another TxDOT comment questions the basis of Non-Compliance
Observation #1 regarding compliance with Section 7 of the Endangered
Species Act (ESA). The TxDOT alleges that the audit team questioned the
TxDOT biologist's judgement regarding its decisions on four projects.
The TxDOT disagrees with FHWA's characterization that the report did
not evaluate or second guess those decisions. The FHWA responds that
the non-compliance observation was based on a number of actions
documented for specific projects that did not comply either with U.S.
Fish and Wildlife Service (USFWS) guidance, or that TxDOT toolkit
procedures did not comply with the ESA requirements and USFWS policy in
circumstances where an endangered species or its habitat is present.
The FHWA will revise the text in Non-Compliance Observation #1 for
further clarity.
The TxDOT commented that under Successful Practices and Other
Observations, the draft audit report states ``[t]hroughout the
following subsections, the team lists nine remaining observations that
FHWA recommends TxDOT consider in order to make improvements.'' The
TxDOT has only identified six numbered observations present in the
draft report. The FHWA appreciates TxDOT's identification of this
error, and the final report will reflect the six numbered observations.
The TxDOT's next comment is that the statement: ``The ECOS
[Environmental Compliance Oversight System] is a tool for storage and
management of information records, as well as for disclosure within
TxDOT District Offices, between Districts and ENV [TxDOT's
Environmental Affairs Division], and between TxDOT and the public,'' is
incorrect. The TxDOT indicated that ECOS was never envisioned to be a
tool for the public's use. The FHWA recognizes that while ECOS may be
the means by which TxDOT identifies and procures information requested
by the public, ECOS itself was not intended to be the tool available to
the public to allow the public, on their own, to access project
specific information. The sentence identified by TxDOT will be revised
to remove mention of the public.
The next TxDOT comment raises three issues about Non-Compliance
Observation #1: (1) That the report has not clearly identified which,
if any, ``ESA requirements'' are the basis for the observation; (2)
there is nothing in the ESA rules about determining if ``impact is
possible''; and (3) there is no requirement to ``provide documentation
explaining how the project impacts will have no effect,'' as neither
Section 7 itself nor USFWS's regulations require the preparation of any
level of documentation when a Federal agency determines that it is not
necessary to consult under Section 7. Regarding item (1), FHWA responds
that it has provided TxDOT with specific instances identified in the
file reviews where ESA requirements were not met, including use of
improper species lists and not defining a project's action area for
species. Regarding item (2), FHWA responds that Congress intended to
``give the benefit of the doubt to the species'' (H.R. Conf. Rep. 96-
697, 96 Cong., 1st sess. 1979). It follows that regarding Section 7
compliance, anytime impacts are possible, the agency may not ignore
that possibility. Finally, regarding item (3), FHWA's expectation for
documented compliance is established in the MOU [subpart 10.2.1(A)(i)].
The draft report points out that TxDOT's Section 7 compliance
procedures promote the utilization of professional judgment but allow
for a project record to logically contradict the compliance decision
based on that judgment. The Non-Compliance Observation #1 discussion
was revised to include: (1) Mention of critical habitat, and (2) the
justification for consideration of possible impacts to a species or
their habitat.
The next TxDOT comment clarifies that TxDOT follows only one noise
policy that was approved by FHWA in 2011. The comment states that
FHWA's observations are the result of incorrect actions by individual
project sponsors and are not the result of a new noise policy. The
TxDOT developed in 2016 an Environmental Handbook for Traffic Noise
that did not replace the approved 2011 Guidelines for Analysis and
Abatement of Highway Traffic Noise. The FHWA appreciates TxDOT's
identification of this error, and the final report will remove mention
of a second noise policy and focus the observation on incorrect actions
identified in project files.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 49 CFR 1.48.
Walter C. Waidelich, Jr.,
Acting Deputy Administrator, Federal Highway Administration.
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 the Federal Highway
Administration's (FHWA) third audit review (Audit #3) to assess the
[[Page 17721]]
performance by the Texas Department of Transportation (TxDOT) regarding
its assumption of responsibilities and obligations, as assigned by
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
project NEPA 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 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 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 (FAST) Act, reduced the
frequency of these audit reviews to one audit per year during the first
4 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,
[[Page 17722]]
(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 (CE), approvals to
circulate Environmental Assessments (EA), 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 (ROD). 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 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 10 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 U.S. Department of Transportation (DOT) 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.
[[Page 17723]]
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 effect
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, its
habitat or critical habitat may be 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 or critical
habitat may be present within a project's action area and an effect is
possible, the project file needs to show consultation with USFWS (for a
may affect determination) or include documentation explaining how the
project will have no effect on the species and its habitat or critical
habitat. The TxDOT needs to take action to revise its ESA guidance and
procedures when an endangered species or its habitat may be present to
make those procedures consistent with Federal policy and guidance. The
team acknowledges that TxDOT staff have met with FHWA and 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 its habitat or critical habitat was potentially present,
TxDOT's procedure allowed for ESA determinations of ``no effect'' to be
made based upon a biologist's professional judgment without supporting
analysis and documentation including a reasoned assessment of the best
available data. For some, the analysis and documentation included in
the project files supported a ``may affect'' determination and informal
consultation with USFWS. In fulfilling ESA section 7(a)(2)
responsibilities, Congress intended the ``benefit of the doubt'' be
given to the species (H.R. Conf. Rep. 96-697, 96 Cong., 1st sess.
1979). The team has informed TxDOT of this deficiency and TxDOT has
indicated it has reviewed similarly made ESA determinations to check
for errors. The TxDOT is collaborating with FHWA and the USFWS to
revise its' ESA handbook and standard operating procedures.
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
handbook according to the 2011 noise policy guidelines that we learned
from staff interviews lead to some confusion. The team found
inconsistencies and incorrect information in the ECOS project file of
record such as: notification to locals with jurisdiction occurring
before a NEPA decision was made; the date of public knowledge
improperly occurring before the NEPA decision; and holding a noise
workshop before the public hearing.
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 handbook 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
issued a 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 a second public notification
to occur 30 days prior to issuing a FONSI. The team reviewed the TxDOT
public involvement handbook and found no mention of the Federal
requirement for a second public notification under these circumstances.
The TxDOT modified its public involvement procedures and FHWA reviewed
and approved 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 the 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 six remaining
observations that FHWA recommends
[[Page 17724]]
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 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 Quality
Assurance/Quality Control (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. The ECOS is the means by
which TxDOT identifies and procures information required to be
disclosed to and requested by 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 (EPIC) 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.
1. 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.
[[Page 17725]]
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.
2. 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 6 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.
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 Notice of Intent
(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.
3. 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.
[[Page 17726]]
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).
4. 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 development tool, how to assign a task, and how to complete a
form. In addition, 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
[[Page 17727]]
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 judgment'' 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, 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
[[Page 17728]]
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 OGC now 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 THC 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.
Finalization of Report
The FHWA received two responses from the American Road &
Transportation Builders Association (ARTBA) and TxDOT during the 30-day
comment period for the draft report. The team has considered these
comments in finalizing this audit report. The ARTBA's comments were
supportive of the Surface Transportation Project Delivery Program and
did not relate specifically to Audit #3. The TxDOT's comments provided
information about non-compliance and general observations from the
draft report that should be revised. The response also describes
actions TxDOT has taken in response to the report's observations.
Several TxDOT comments have resulted in changes in this report. The
number of observations in the draft report was incorrectly referred to
in one instance as nine and has been corrected. The information storage
and management role of ECOS was clarified by deleting mention of public
use, but instead an internal tool TxDOT uses to disclose information to
the public. Because of TxDOT comments on the draft report's discussion
of ESA compliance, the discussion of Non-Compliance Observation #1 was
revised to include: Mention of critical habitat, and the justification
for consideration of possible effects to a species or their habitat.
The TxDOT's response also clarified that it updated its handbook
procedures for noise issues, but did not update the 2011 noise policy.
The discussion of Non-Compliance #2 has removed mention of a TxDOT 2016
noise policy.
Since the completion of this report, staff from TxDOT and FHWA have
established quarterly partnering sessions where observations and other
issues relating to NEPA assignment are being discussed, clarified, and
resolved.
[FR Doc. 2017-07345 Filed 4-11-17; 8:45 am]
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