Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report |
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Brandye L. Hendrickson
Federal Highway Administration
13 April 2018
[Federal Register Volume 83, Number 72 (Friday, April 13, 2018)]
[Notices]
[Pages 16170-16174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07751]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0008]
Surface Transportation Project Delivery Program; Utah Department
of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice; Request for comment.
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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21)
established the Surface Transportation Project Delivery Program that
allows a State to assume FHWA's environmental responsibilities for
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) 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. This program mandates annual audits during
each of the first 4 years of State participation to ensure compliance
with program requirements. This notice announces and solicits comments
on the first audit report for the Utah Department of Transportation
(UDOT).
DATES: Comments must be received on or before May 14, 2018.
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-
addressed, stamped postcard or you may print the acknowledgment page
[[Page 16171]]
that appears after submitting comments electronically. Anyone can
search the electronic form of all comments in any 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: Ms. Deirdre Remley, Office of Project
Development and Environmental Review, (202) 366-0524,
Deirdre.Remley@dot.gov, or Mr. Jomar Maldonado, Office of the Chief
Counsel, (202) 366-1373, Jomar.Maldanado@dot.gov, Federal Highway
Administration, U.S. 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, codified at 23
United States Code (U.S.C.) 327, commonly known as the NEPA Assignment
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 liable for carrying out the responsibilities it has assumed, in
lieu of the FHWA. The UDOT published its application for NEPA
assumption on October 9, 2015, and made it available for public comment
for 30 days. After considering public comments, UDOT submitted its
application to FHWA on December 1, 2015. The application served as the
basis for developing a memorandum of understanding (MOU) that
identifies the responsibilities and obligations that UDOT would assume.
The FHWA published a notice of the draft MOU in the Federal Register on
November 16, 2016, 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 UDOT considered comments and proceeded to execute the MOU.
Effective January 17, 2017, UDOT assumed FHWA's responsibilities under
NEPA, and the responsibilities for NEPA-related Federal environmental
laws described in the MOU.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits during each of the first 4 years of State
participation. After the fourth year, the Secretary shall monitor the
State's compliance with the written agreement. The results of each
audit must be made available for public comment. This notice announces
the availability of the first audit report for UDOT and solicits public
comment on same.
Authority: Section 1313 of Pub. L. 112-141; Section 6005 of Pub.
L. 109-59; 23 U.S.C. 327; 23 CFR 773.
Issued on: April 4, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
Draft FHWA Audit of the Utah Department of Transportation
January 17-June 9, 2017
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) first audit of the Utah Department of
Transportation's (UDOT) National Environmental Policy Act (NEPA) review
responsibilities and obligations that FHWA has assigned and UDOT has
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C.
327, UDOT and FHWA executed a memorandum of understanding (MOU) on
January 17, 2017, to memorialize UDOT's NEPA responsibilities and
liabilities for Federal-aid highway projects and certain other FHWA
approvals for transportation projects in Utah. Except for one project,
which FHWA retained, FHWA's only NEPA responsibilities in Utah are
oversight and review of how UDOT executes its NEPA Assignment Program
obligations. The section 327 MOU covers environmental review
responsibilities for projects that require the preparation of
environmental assessments (EAs), environmental impact statements (EIS),
and non-designated documented categorical exclusions (DCE). A separate
MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's environmental review
responsibilities for other categorical exclusions (CE), commonly known
as CE Program Assignment. This audit does not cover the CE Program
Assignment responsibilities and projects.
As part of its review responsibilities under 23 U.S.C. 327, FHWA
formed a team in April 2017 to plan and conduct an audit of NEPA
responsibilities UDOT assumed. Prior to the on-site visit, the Audit
Team reviewed UDOT's NEPA project files, UDOT's response to FHWA's pre-
audit information request (PAIR), and UDOT's self-assessment of its
NEPA Program. The Audit Team reviewed additional documents and
conducted interviews with UDOT staff in Utah on June 5-9, 2017.
The UDOT entered into NEPA Assignment Program after almost 9 years
of experience making FHWA NEPA CE determinations pursuant to 23 U.S.C.
326 (beginning August 2008). The UDOT's environmental review procedures
are compliant for CEs, and UDOT is implementing procedures and
processes for DCEs, EAs, and EISs as part of its new responsibilities
under the NEPA Assignment Program. Overall, the Audit Team found that
UDOT is successfully adding DCE, EA, and EIS project review
responsibilities to an already successful CE review program. The Audit
Team did not identify any non-compliance observations. This report
describes five observations as well as several successful practices the
Audit Team found. The Audit Team finds UDOT is carrying out the
responsibilities it has assumed and is in substantial compliance with
the provisions of the MOU.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for Federal-aid highway projects. Under 23 U.S.C. 327, a State that
assumes these Federal responsibilities becomes solely responsible and
solely liable for carrying them out. Effective January 17, 2017, UDOT
assumed FHWA's responsibilities under NEPA and other related
environmental laws. Examples of responsibilities UDOT has assumed in
addition to NEPA include section 7 consultation under the Endangered
Species Act and consultation under section 106 of the National Historic
Preservation Act.
Following this first audit, FHWA will conduct three more annual
audits to satisfy provisions of 23 U.S.C. 327(g) and Part 11 of the
MOU. Audits are the primary mechanism through which FHWA may oversee
UDOT's compliance with the MOU and the NEPA Assignment Program
requirements. This
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includes ensuring compliance with applicable Federal laws and policies,
evaluating UDOT's progress toward achieving the performance measures
identified in MOU Section 10.2, and collecting information needed for
the Secretary's annual report to Congress. The FHWA must present the
results of each audit in a report and make it available for public
comment in the Federal Register.
The Audit Team consisted of NEPA subject matter experts (SME) from
the FHWA Utah Division, as well as from FHWA offices in Sacramento,
California, Washington, District of Columbia, Atlanta, Georgia, and
Austin, Texas. These experts received training on how to evaluate
implementation of the NEPA Assignment Program. In addition, the FHWA
Utah Division designated an environmental specialist to serve as a NEPA
Assignment Program liaison to UDOT.
Scope and Methodology
The Audit Team conducted an examination of UDOT's NEPA project
files, UDOT responses to the PAIR, and UDOT self-assessment. The audit
also included interviews with staff and reviews of UDOT policies,
guidance, and manuals pertaining to NEPA responsibilities. All reviews
focused on objectives related to the six NEPA Assignment Program
elements: program management; documentation and records management;
quality assurance/quality control (QA/QC); legal sufficiency; training;
and performance measurement.
The focus of the audit was on UDOT's process and program
implementation. Therefore, while the Audit Team reviewed project files
to evaluate UDOT's NEPA process and procedures, the team did not
evaluate UDOT's project-specific decisions to determine if they were,
in FHWA's opinion, correct or not. The Audit Team reviewed 14 NEPA
Project files with DCEs, EAs, and EISs, representing all projects in
process or initiated after the MOU's effective date. The Audit Team
also interviewed environmental staff in all four UDOT regions as well
as their headquarters office.
The PAIR consisted of 24 questions about specific elements in the
MOU. The Audit Team used UDOT's response to the PAIR to develop
specific follow-up questions for the on-site interviews with UDOT
staff.
The Audit Team conducted 18 on-site and 3 phone interviews.
Interview participants included staff from each of UDOT's four regional
offices and UDOT headquarters. The Audit Team invited UDOT staff,
middle management, and executive management to participate to ensure
the interviews represented a diverse range of staff expertise,
experience, and program responsibility.
Throughout the document reviews and interviews, the Audit Team
verified information on the UDOT section 327 NEPA Assignment Program
including UDOT policies, guidance, manuals, and reports. This included
the NEPA QA/QC Guidance, the NEPA Assignment Training Plan, and the
NEPA Assignment Self-Assessment Report.
The Audit Team compared the procedures outlined in UDOT
environmental manuals and policies to the information obtained during
interviews and project file reviews to determine if there are
discrepancies between UDOT's performance and documented procedures. The
team documented observations under the six NEPA Assignment Program
topic areas. Below are the audit results.
Overall, UDOT has carried out the environmental responsibilities it
assumed through the MOU and the application for the NEPA Assignment
Program, and as such the Audit Team finds that UDOT is substantially
compliant with the provisions of the MOU.
Observations and Successful Practices
This section summarizes the Audit Team's observations of UDOT's
NEPA Assignment Program implementation, including successful practices
UDOT may want to continue or expand. Successful practices are positive
results that FHWA would like to commend UDOT on developing. These may
include ideas or concepts that UDOT has planned but not yet
implemented. Observations are items the Audit Team would like to draw
UDOT's attention to, which may benefit from revisions to improve
processes, procedures, or outcomes. The UDOT may have already taken
steps to address or improve upon the Audit Team's observations, but at
the time of the audit they appeared to be areas where UDOT could make
improvements. This report addresses all six MOU topic areas as separate
discussions. Under each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for UDOT to begin
implementing actions to improve their program. The FHWA will consider
the status of areas identified for potential improvement in this
audit's observations as part of the scope of Audit #2. The second Audit
Report will include a summary discussion that describes progress since
the last audit.
Program Management
The UDOT has made progress toward meeting the initial requirements
of the MOU for the NEPA Assignment Program under 23 U.S.C. 327,
including implementing the updated Manual of Instruction (MOI), a QA/QC
Plan, a Training Plan, and addressing the findings from a Self-
Assessment Report.
Successful Practices
The Audit Team found that UDOT understands its project-level
responsibility for DCEs, EAs, and EISs that FHWA assigned to UDOT
through the NEPA Assignment Program. The UDOT has established a vision
and direction for incorporating the NEPA Assignment Program into its
overall project development process. This was clear in the PAIR
responses and in interviews with staff in the regions and at UDOT's
central office, commonly known as ``the Complex.''
The UDOT reorganized environmental staff to align employee roles
with the new responsibilities under the NEPA Assignment Program. Staff
at the Complex are responsible for EAs and EISs. Regional environmental
staff coordinate their NEPA work through Program Managers at the
Complex. Environmental staff also share resources and use the subject
matter expertise of staff in other regional offices or at the Complex.
Some staff responsibilities have changed under the NEPA Assignment
Program, but positions have remained the same. Prior to assuming
responsibilities under the NEPA Assignment Program, regional staff
reported to the pre-construction department in their regional office.
Following assumption of the NEPA Assignment Program, Environmental
Managers in the regions report to Environmental Program Managers at the
Complex. In anticipation of assuming NEPA responsibilities, UDOT hired
an Environmental Performance Manager who is responsible for overseeing
UDOT's policies, manuals, guidance, and training under the NEPA
Assignment Program.
Observations
Observation #1: Communication of UDOT policy and procedures to staff
Most SMEs and regional environmental staff were not aware of the
latest policies and procedures regarding the NEPA Assignment Program.
During interviews, some staff at the regional offices and at the
Complex said they heard about changes at quarterly environmental
meetings. Some regional staff said they expect to hear about changes
from their Managers
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in the regional office, but they often feel they do not receive all
necessary information. Other regional staff said they receive updated
memoranda and other communications about the NEPA Assignment Program
through their Program Manager at the Complex. Some SMEs indicated they
were unaware of how their specialty fits into the overall NEPA process.
There does not seem to be a clear understanding among all staff about
the differences between UDOT's responsibilities under 23 U.S.C. 326 and
23 U.S.C. 327 and how this affects staff members' roles and
responsibilities in carrying out section 327.
Observation #2: Section 4(f) terms regarding determinations of use
During review of the NEPA Project files, the Audit Team found some
determinations labeled ``n/a,'' suggesting Section 4(f) was not
applicable when there was a historic site/historic property identified
in the Section 106 determination of eligibility/finding of effect (DOE/
FOE). In other examples, the files correctly indicate ``yes'' or ``no''
whether there is or is not a Section 4(f) use. When the DOE/FOE
identifies historic properties that are eligible for inclusion in the
National Register of Historic Places, UDOT would also need to evaluate
whether the action will constitute a use under Section 4(f), per FHWA
policy (see ``3.2 Assessing Use of Section 4(f) Properties'' in FHWA
``Section 4(f) Policy Paper,'' 2012). Therefore, the correct
determination should be ``yes'' or ``no'' instead of ``n/a''.
Documentation and Records Management
The Audit Team reviewed UDOT's NEPA Project documents for 14
projects under the NEPA Assignment Program. The UDOT maintains a
complete final record for DCEs, EAs, and EISs. There are
inconsistencies about how, when, and where staff maintain supporting
draft and deliberative documentation, and staff either do not have or
are not aware of protocols for recordkeeping.
Successful Practices
ProjectWise is a document database UDOT uses to maintain final
project records for DCEs, EAs, and EISs. Though it was not developed
specifically for producing and maintaining environmental documents,
ProjectWise is accessible to all staff and can store complete NEPA
documentation. During interviews, UDOT environmental staff demonstrated
they understood the minimum documentation that should be included in
the final ProjectWise record, and the Audit Team verified that the
minimum documentation is in NEPA Project file reviews.
In interviews, some UDOT staff shared that they document decisions
made verbally for the project record. This shows that some staff
understand the importance of having a written record of decision points
in the NEPA processes that may happen through phone conversations and
in-person meetings.
Environmental Managers at the Complex have taken steps to implement
consistent records management on EAs and EISs in ProjectWise by adding
stipulations to consultant contracts that require them to follow
records management protocols in their final project files.
Observations
Observation #3: UDOT recordkeeping and file management
Some environmental staff interviewed during the audit said they
store draft files, supporting information, and deliberative
documentation on personal drives, on local servers, and/or in hardcopy
filing cabinets. Thus, outside of ProjectWise, UDOT recordkeeping and
file management is inconsistent, which may indicate the lack of
specific protocols for managing supporting documents that inform NEPA
decisions and other environmental determinations. Such practices can
make document retrieval and review difficult because the location of
UDOT's file of record is unclear. This issue can also raise concerns
about document retention practices and the completeness of
administrative records for projects needing them.
Staff at the regional offices and at the Complex said ProjectWise
does not include organizational tools such as subfolders or adequate
search capabilities. ProjectWise was not created specifically for
environmental documentation. It is a document management system, and
although it allows for subfolders with environmental documents storage,
UDOT does not use this function nor does it have adequate functionality
for searching files or tracking project environmental process
milestones.
Quality Assurance/Quality Control
The UDOT is in the early stages of the section 327 program, and
because there is not yet sufficient data on project approvals, the team
was not able to fully evaluate the effectiveness of the QA/QC component
of the program. The Audit Team made the following observations.
Successful Practices
The UDOT has implemented some successful practices to ensure the
quality of its NEPA documents. The UDOT developed a QA/QC plan to help
environmental staff and consultants ensure documents are developed,
reviewed, and approved in accordance with QA/QC procedures. The UDOT's
use of DCE, EA, and EIS QA/QC checklists supports process
standardization. Though regional environmental staff do not manage EAs
or EISs under the NEPA Assignment Program, several staff said they were
aware there is a QA/QC checklist for reviewing these documents. They
were also aware that Managers at the Complex review and submit the
checklist and final document to UDOT's Deputy Director for final
approval.
Regional environmental staff can contact Program Managers at the
Complex to get procedural and technical assistance on topics or
documentation requirements outside of their technical expertise area.
Throughout the audit interviews, several staff said they felt
comfortable calling Managers at the Complex with questions.
Observations
Observation #4: QA/QC documentation
Although most environmental staff were aware of the QA/QC plan and
checklists, the Audit Team learned through interviews that there is
varied understanding about roles and procedures as they relate to
documenting QA/QC approvals. Managers demonstrated that they understand
the various roles and procedures for obtaining signature approval for
final documents, but regional staff had a varied understanding of these
procedures. Environmental staff outside of the Complex were also
uncertain of whether a new checklist was developed for DCEs, or if the
EA/EIS checklist is used for DCE QA/QC.
Legal Sufficiency
Successful Practices
Through interviews, the Audit Team learned of the following
successful practices: UDOT has extended the legal sufficiency process
it has in place for Section 326 CE assignment to accommodate the
section 327 NEPA Assignment Program by contracting with outside counsel
who have extensive experience in NEPA, other environmental laws, and
Federal environmental litigation. The UDOT Environmental Managers can
work directly with outside counsel without the need to go through the
Utah
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Attorney General's (AG) Office. An Assistant AG assigned to UDOT is
kept apprised of all communications between UDOT staff and outside
counsel. Outside counsel expects early legal involvement for all
controversial projects. The UDOT, an Assistant AG, and outside counsel
held an ``organizational meeting'' earlier this year and expect to hold
regular, quarterly meetings.
Training
The UDOT's Training Coordinator is in the early stages of
establishing a Training Management Program (``UDOT U'') for all UDOT
employees. This program will include the following components: (1) core
competencies for all UDOT employees; (2) training for all UDOT
employees through UDOT U; (3) a portal for tracking training completed
by UDOT employees; (4) SME identification and validation of training
needs; and (5) leadership input on priorities and budgets for all
disciplines. The UDOT could incorporate NEPA Assignment Program
training needs into UDOT U in the future, and the Training Coordinator
has plans to work with the environmental group on its specific needs.
Successful Practices
Through interviews and the PAIR response, the Audit Team learned
that UDOT delivered several discipline-based (e.g., Noise, Section 4f,
Section 7, Air Quality, and Legal Sufficiency) training courses to
staff and consultants. The Audit Team learned that UDOT has used the
annual conference to inform staff and consultants about the NEPA
Assignment Program and the responsibilities that UDOT has assumed.
Observations
Observation #5: UDOT's training plan coordination
The UDOT developed a NEPA Assignment Program Training Plan, as
required by the MOU, but through interviews the Audit Team found that
Environmental Managers developed the plan with minimal coordination
with the UDOT Training Coordinator, SMEs, or regional staff. In
interviews, the Audit Team learned that some SMEs did not get
opportunities to attend training on topics outside their subject area,
including NEPA. An understanding of NEPA compliance is important for
all environmental staff, including SMEs. Although ``UDOT U'' has
offered environmental training on specific topics such as stormwater
and permitting, the NEPA Assignment Program training plan is not
integrated into ``UDOT U.''
Performance Measures
The Environmental Performance Manager has begun collecting and
tracking performance data, such as the completeness of project records,
timeline for completion of environmental documents, and whether QA/QC
was performed for each document. The Environmental Performance Manager
indicated that the results of this audit will be used to help revise
manuals and procedures and that the self-assessment informed some
changes. For example, the MOI has been updated to clarify which
documents need to be updated and uploaded in projects files.
Successful Practices
The UDOT surveyed resource agency partners about how it is
implementing responsibilities under the NEPA Assignment Program.
Managers said they are striving to improve UDOT's relationships with
partner agencies despite having different missions and perspectives.
The environmental group will continue to survey its partners in the
future, and will modify the survey as needed to help improve UDOT's
environmental processes and relationships with resource agencies.
Next Steps
The FHWA provided this draft audit report to UDOT for a 14-day
review and comment period. The Audit Team considered UDOT comments in
developing this draft audit report. The FHWA will publish a notice in
the Federal Register for a 30-day comment period in accordance with 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 to finalize this
draft audit report pursuant to 23 U.S.C. 327(g)(B). The FHWA will
publish the final audit report in the Federal Register.
[FR Doc. 2018-07751 Filed 4-12-18; 8:45 am]
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