Surface Transportation Project Delivery Program; Florida DOT Audit #1 Report |
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Brandye L. Hendrickson
Federal Highway Administration
18 April 2018
[Federal Register Volume 83, Number 75 (Wednesday, April 18, 2018)]
[Notices]
[Pages 17216-17220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08100]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0004]
Surface Transportation Project Delivery Program; Florida DOT
Audit #1 Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (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. This program mandates annual audits during
each of the first 4 years of State participation to ensure compliance
with program requirements. This is the first audit of the Florida
Department of Transportation's (FDOT) performance of its
responsibilities under the Surface Transportation Project Delivery
Program (National Environmental Policy Act (NEPA) assignment program).
This notice announces and solicits comments on the first audit report
for the FDOT's participation in accordance to FAST Act requirements.
DATES: Comments must be received on or before May 18, 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
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: Ms. Marisel Lopez Cruz, Office of
Project Development and Environmental Review, (202) 493-0356,
marisel.lopez-cruz@dot.gov, or Mr. David Sett, Office of the Chief
Counsel, (404) 562-3676, david.sett@dot.gov, Federal Highway
Administration, Department of Transportation, 61 Forsyth Street 17T100,
Atlanta, GA 30303. 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 FDOT published in the Florida
Administrative Register its application for assumption under the NEPA
Assignment Program on April 15, 2016, and made it available for public
comment for 30 days. After considering public comments, FDOT submitted
its application to FHWA on May 31, 2016. The application served as the
basis for developing the memorandum of understanding (MOU) that
identifies the responsibilities and obligations FDOT would assume. The
FHWA published a notice of the draft MOU in the Federal Register on
November 1, 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 FDOT considered comments and proceeded to execute the MOU.
Effective December 14, 2016, FDOT assumed FHWA's responsibilities under
NEPA, and the responsibilities for reviews under other Federal
environmental requirements.
Section 327(g) of Title 23, United States Code, 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 FDOT 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; 23
CFR 773.
Issued on: April 11, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
DRAFT
Surface Transportation Project Delivery Program
FHWA Audit #1 of the Florida Department of Transportation
December 2016 to May 2017
Executive Summary
This is the first audit of the Florida Department of
Transportation's (FDOT's) performance of its responsibilities under the
Surface Transportation Project Delivery Program (National Environmental
Policy Act (NEPA) assignment program). Under the authority of 23 United
States Code
[[Page 17217]]
(U.S.C.) 327, FDOT and Federal Highway Administration (FHWA) executed a
memorandum of understanding (MOU) on December 14, 2016, whereby FHWA
assigned and FDOT assumed FHWA's NEPA responsibilities and liabilities
for Federal-aid highway projects and other related environmental
reviews for transportation projects in Florida.
The FHWA formed a team in January 2017 to conduct an audit of
FDOT's performance according to the terms of the MOU. The Audit Team
held internal meetings to prepare for an on-site visit to the Florida
Division and FDOT offices. Prior to the on-site visit, the Audit Team
reviewed FDOT's NEPA project files, FDOT's response to FHWA's pre-audit
information request (PAIR), and FDOT's Self-Assessment Summary Report
of its NEPA program. The Audit Team conducted interviews with FDOT and
resource agency staff and prepared preliminary audit results from
October 16 to 20, 2017. The Audit Team presented these preliminary
observations to FDOT Office of Environmental Management (OEM)
leadership on October 20, 2017.
Upon accepting the NEPA assignment responsibilities, FDOT updated
its procedures and processes as required by the MOU. Overall, the Audit
Team found that FDOT is committed to establishing a successful NEPA
program. This report describes several successful practices, three
observations, and one non-compliance observation. The FDOT has carried
out the responsibilities it has assumed in keeping with the intent of
the MOU and FDOT's Application. Addressing the observations in this
report will allow FDOT to continue to move the program toward success.
Background
The purpose of the audits performed under the authority of 23
U.S.C. 327 is to assess a State's compliance with the provisions of the
MOU as well as all applicable Federal statutes, regulations, policies,
and guidance. The FHWA's review and oversight obligation entails the
need to collect information to evaluate the success of the NEPA
Assignment Program; to evaluate a State's progress toward achieving its
performance measures as specified in the MOU; and to collect
information for the administration of the NEPA Assignment Program. This
report summarizes the results of the first audit in Florida. Following
this audit, FHWA will conduct three annual audits. The second audit
report will include a summary discussion that describes progress since
the last audit.
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 FDOT's assumption of
environmental responsibilities.
The Audit Team consisted of NEPA subject matter experts from the
FHWA offices in Juneau, Alaska, Denver, Colorado, Columbus, Ohio,
Washington, District of Columbia, Atlanta, Georgia, Austin, Texas, as
well as staff from the FHWA Florida Division. The diverse composition
of the team, as well as the process of developing the review report and
publishing it in the Federal Register, are intended to make this audit
an unbiased official action taken by FHWA.
The Audit Team conducted a careful examination of FDOT policies,
guidance, and manuals pertaining to NEPA responsibilities, as well as a
representative sample of FDOT's project files. Other documents, such as
the June 2017 Six-month status update report from FDOT, the August 2017
PAIR responses, and FDOT's September 2017 Self-Assessment Summary
Report, informed this review. The Audit Team interviewed FDOT staff and
resource agency staff. This review is organized around six NEPA
assignment program elements: Program management, documentation and
records management, quality assurance/quality control (QA/QC), legal
sufficiency, performance measurement, and training program. In
addition, the Audit Team considered three cross-cutting focus areas:
(1) Engineering Analysis within the NEPA process; (2) Archaeological
and Historical Resources; and (3) Protected Species and Habitat.
The Audit Team defined the timeframe for highway project
environmental approvals subject to this first audit to be between
December 2016 and May 2017, when 209 projects were approved. The team
drew both representative and judgmental samples totaling 77 projects
from data in FDOT's online file system, Statewide Environmental Project
Tracker (SWEPT). In the context of this report, Type 1 CE and Type 2 CE
are consistent with FDOT's Project Development and Environmental
Manual. The FHWA judgmentally selected all Type 2 categorical
exclusions (CEs) (3 projects), all reevaluations (12 projects), all
Environmental Assessments (EAs) with Findings of No Significant Impacts
(FONSIs) (3 projects), all Environmental Impact Statements (EISs) with
Records of Decision (RODs) (no projects fell into this category), and
all Type 1 CE projects completed under 23 CFR 771.117(d) CEs (9
projects). Fifty randomly selected project files came from the
remaining 182 Type 1 CEs completed under 23 CFR 771.117(c), applying a
90 percent confidence level and a 10 percent margin of error to the
sample. The Audit Team reviewed projects in all FDOT's seven districts.
The Audit Team submitted a PAIR to FDOT that contained 55 questions
covering all six NEPA assignment program elements. The FDOT responses
to the PAIR were used to develop specific follow-up questions for the
on-site interviews with FDOT staff.
The Audit Team conducted a total of 42 interviews. Interview
participants included staff from four of FDOT's seven district
offices--District 1 (Bartow), District 2 (Lake City), District 5
(Deland), and District 7 (Tampa)--and FDOT Central Office. The audit
team interviewed FDOT environmental staff, middle management, and
executive management, regional representatives from the U.S. Army Corps
of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), and the
State Historic Preservation Officer (SHPO) from the Florida Department
of State, Division of Historic Resources.
The Audit Team compared the procedures outlined in FDOT policies
and environmental manuals (including the published 2016 Project
Development & Environment (PD&E) Manual) to the information obtained
during interviews and project file reviews to determine if there are
discrepancies between FDOT's performance and documented procedures.
Individual observations were documented during interviews and reviews
and combined under the six NEPA Assignment Program elements. The audit
results are described below by program element.
Overall Audit Opinion
The Audit Team recognizes that FDOT is in the early stages of the
NEPA Assignment Program and FDOT's programs, policies, and procedures
may still be in the process of being incorporated into its program
statewide. The FDOT's efforts have been focused
[[Page 17218]]
on establishing and refining policies, procedures and guidance
documents; establishing the SWEPT tracking system for ``official
project files''; training staff; establishing a QA/QC Plan; and
conducting a self-assessment for monitoring compliance with the assumed
responsibilities. The FDOT has carried out the responsibilities it has
assumed consistent with the intent of the MOU and FDOT's Application.
By addressing the observations in this report, FDOT will continue to
move the program toward success.
Non-Compliance Observation
A non-compliance observation is an instance where the Audit Team
finds the State is not in compliance or is deficient with regard to a
Federal regulation, statute, guidance, policy, State procedure, or the
MOU. Non-compliance may also include instances where the State has
failed to secure or maintain adequate personnel and or financial
resources to carry out the responsibilities they have assumed. The FHWA
expects the State to develop and implement corrective actions to
address all non-compliance observations.
The Audit Team identified one non-compliance observation during
this first audit.
Observations and Successful Practices
Observations are items the Audit Team would like to draw FDOT's
attention to, which may improve processes, procedures, and/or outcomes.
The Audit Team identified four observations in this report. Successful
practices are practices that the Audit Team believes are successful,
and encourages FDOT to consider continuing or expanding those programs
in the future. The Audit Team identified several successful practices
in this report. All six MOU program elements are addressed here as
separate discussions.
The Audit Team acknowledges that sharing the draft audit report
with FDOT allows the Agency to begin implementing corrective actions to
improve the program. The FHWA will also consider the status of these
observations as part of the scope of Audit #2.
Program Management
Successful Practices
The Audit Team learned that FDOT has maintained its good working
relationship with the three resource agencies interviewed--USFWS,
USACE, SHPO. Each agency stated that FDOT coordinated any changes in
their program with the Agency to ensure satisfaction with their
regulatory requirements.
Observation 1: FDOT environmental commitment documentation and tracking
The Audit Team noted in interviews and project file reviews that
FDOT's environmental commitments were inconsistently documented,
tracked, and implemented. During the interviews, OEM and district staff
indicated a different understanding of how commitment compliance is
accomplished in FDOT and the function and use of the Project Commitment
Record (PCR) Form. District staff have developed different tools than
the PCR to track commitment compliance. Both the Self-Assessment
Summary Report and project file reviews indicated that commitments were
not being included verbatim into the Commitments Section of some NEPA
documents or reevaluations. The Audit Team noted that commitments are
not consistently transferred onto PCR forms for tracking through the
various phases of project development. The Audit Team encourages FDOT
to implement the commitment compliance recommendations identified in
their 2017 Self-Assessment Summary Report to address this observation.
Observation 2: FDOT Program level coordination to address MOU
requirements
During the audit interviews, FDOT stated they are implementing new
Federal or U.S. Department of Transportation (DOT) policy, including
executive orders, without FHWA consultation. This approach may
establish policy or guidance in advance of FHWA, which could increase
the risk of conflict with any subsequent DOT/FHWA issued policy or
guidance. If such a conflict should occur, FDOT would then need to
change their policies and procedures to meet the DOT/FHWA guidance.
According to MOU subpart 5.2.1 FDOT may not establish policy and
guidance on behalf of the DOT Secretary or FHWA for highway projects
covered in the MOU.
Quality Assurance/Quality Control
Successful Practices
The FDOT has implemented several successful practices to ensure the
quality of its NEPA documents. As an example of a successful QA/QC
practice, one district developed a checklist to provide better quality
control in making sure they were uploading the necessary information
into SWEPT for project review and coordination. As they received
comments from OEM, the district adjusted their checklist so that future
projects would also benefit from the OEM comments.
Observation 3: FDOT's approach to QA/QC could be broadened and made
more responsive
The FDOT's QA/QC tool was the self-assessment. The FDOT's self-
assessment considered five focus areas for compliance: commitments;
ponds; species and habitat; QA/QC; and Type 1 CE projects. Both FHWA
and FDOT reviewed the same 27 projects (exclusive of Type I CEs
completed under 23 CFR 771.117(c)) and identified a similar number of
projects with documentation issues for the focus areas in common
(commitments and species and habitat). However, the Audit Team
identified additional project documentation or compliance issues not
identified by FDOT. While the FHWA acknowledges that FDOT has employed
quality assurance as a corrective action to address missing information
for projects, FDOT's obligation under the MOU is that its QA/QC process
identify and address the full range of compliance obligations it has
assumed. Though concentrating on focus areas is appropriate for a Self-
Assessment Summary Report, FDOT's QA/QC overall process should be
broader in scope in order to identify and correct any deficiencies.
Legal Sufficiency
The Audit Team's review of FDOT's legal sufficiency program found
that FDOT has structured the legal sufficiency process for the NEPA
Assignment Program by having in house counsel as well as being able to
contract with outside counsel who have NEPA experience. Because FDOT is
in the early stages of implementation, no legal sufficiency
determinations have been made during the audit time frame.
Successful Practices
The FDOT Office of General Counsel (OGC) is fully engaged in the
NEPA process. Legal staff participate in monthly coordination meetings
and topic specific meetings with OEM and the districts. They also
review other documents as requested for legal input. There is close
collaboration throughout the process among OGC, OEM, the districts, and
districts' attorneys.
Based on the information provided, the FDOT OGC is adequately
staffed to provide management and oversight of the NEPA assignment
process. In addition, FDOT attorneys located in each of the seven
districts provide
[[Page 17219]]
supplemental support to the dedicated NEPA OGC staff as needed.
Training Program
Successful Practices
The Audit Team learned through interviews that employee training is
a corporate priority at FDOT. The FDOT's training is considered a
successful practice in four respects:
First, FDOT developed its own on-line NEPA Assignment training.
These succinct Web-based training videos address new NEPA assignment
processes, including performance measures, the FHWA audit process, QA/
QC, and the FDOT self-assessment process. Such training contributes to
a consistent understanding of and participation in these aspects of the
NEPA Assignment Program among all FDOT staff.
Second, FDOT provides employees ample training opportunities.
Employees are notified of those opportunities through training
coordinators and the Learning Curve system, which provides a library of
courses. The training helps FDOT employees understand new roles and
responsibilities and is available as needed. In preparation for NEPA
Assignment, OEM also provided several in-person sessions for the
districts. The training was recorded and is available on line.
Third, FDOT employees are required to have an Individual Training
Plan (ITP). The plan includes required subject matter courses and
courses that promote development of technical and leadership skills.
Finally, training is integrated into employee performance
evaluations and employees' ITPs are discussed with supervisors on an
annual basis, thereby emphasizing the importance of training and
promoting compliance with training requirements. Completion of training
is incorporated into the employees' and supervisors' performance
evaluations.
Performance Measures
The FDOT presented a discussion of their performance measures that
implement those listed in MOU Section 10.2 in the July 2017 revision of
their QA/QC Plan. In that discussion, FDOT developed several sub-
measures along with performance targets, responsible parties, relevant
processes, and desired outcomes identified (see Appendix A of the
Plan--http://www.fdot.gov/environment/sched/files/APPROVED-FDOT-OEM-QAQC-Plan_-Dec222017-revised2017-0712.pdf). This plan also identifies
FDOT's method of performance monitoring using SWEPT as well as how OEM
will, when needed, take corrective action to improve performance.
The FDOT Self-Assessment Summary Report contained the results of
FDOT's first report of its assessment of the NEPA Assignment Program
and FDOT procedures compliance. This assessment, for the period between
December 14, 2016, and April 30, 2017, entailed review of project files
as well as results from a survey of Agency satisfaction. The report
also included a discussion of FDOT's progress in attaining performance
results.
Successful Practices
The FDOT has demonstrated it has taken an active interest in
developing, monitoring, and implementing the performance measures as
required by the MOU. In reviewing Section 3 of the FDOT Self-Assessment
Summary Report, the Audit Team noted that FDOT is the first NEPA
assignment State to create a training module on performance measures.
This module, available to all FDOT staff, explains performance metrics,
how the measures are computed in SWEPT, performance monitoring, and how
the measures appear in FDOT's annual Self-Assessment Summary Report.
During the interviews, FDOT's leadership indicated that they wanted
performance measures to account for, objectively measure, and use
quantitative data to support FDOT performance. They also made it clear
that FDOT is measuring something worthwhile and plans to revisit the
performance metrics over time.
Documentation and Records Management
The SWEPT has been identified as FDOT's project file of record, in
which FDOT maintains approved reevaluations, CEs, EAs, and EISs. The
Electronic Review and Comments (ERC) system is an internal tool to
capture review and comments on the environmental documents. During the
audit interviews, FDOT staff indicated only final documents are
maintained in the SWEPT system. The Audit Team has full access to SWEPT
but has no access to ERC.
Successful Practices
The FHWA commends FDOT's use of the ERC system to document
internal review and comments on NEPA documents and to maintain a record
of the disposition of those comments.
The FDOT's statewide implementation of SWEPT as the
administrative file of record used for decision making and documenting
compliance with the NEPA process facilitated the Audit Teams review of
project files. The following features are particularly notable:
The date-stamping of data in SWEPT is used for performance
measurement tracking.
The SWEPT, with its Bates stamping ability, facilitates
administrative records and open records request compilations.
The June 2017 SWEPT update includes Type 1 CE ``smartforms''
which provide internal controls that increases certainty of NEPA
compliance.
Non-Compliance Observation 1: Some FDOT project files contain
insufficient documentation to support the environmental analysis or
decision
Both the MOU (subpart 10.2.1) and FDOT's PD&E Manual specify that
documentation is needed to support compliance. The Audit Team observed
that forty-seven (47) of the seventy-seven (77) project files reviewed
did not have sufficient documentation in SWEPT to support the
environmental analysis or NEPA decision. The FDOT Self-Assessment
reached similar conclusions, and identified nine (9) of thirty-six (36)
projects having insufficient documentation. The Audit Team could not
determine if the discrepancy indicated documentation had not been
uploaded into SWEPT or if the required process had not been completed.
The team provided a list of these projects along with a draft of this
report to FDOT for their review and comment. The FDOT provided their
comments on this report, but did not provide additional information to
clarify whether documentation was not uploaded or a required process
was not completed.
The FDOT has committed to comply with all applicable environmental
review requirements to highway projects it has assumed and to maintain
documentation of this compliance. The file review of projects, most,
but not all, of which were processed with a categorical exclusion,
identified the following deficiencies in supporting documentation: (1)
missing or outdated technical documents referenced in the NEPA
document; (2) using FDOT standard specifications for Endangered Species
Act compliance instead of conducting consultation when species are
known to be present, missing documentation of consultation, missing
impacts analysis, missing documentation which concludes with a finding,
and missing concurrence documentation from applicable agencies; (3)
missing documentation of
[[Page 17220]]
Section 106 consultation, (4) missing or incorrect documentation for
fiscal constraint (for several levels of documents including Type 1
CEs); (5) missing environmental commitments identified in technical
reports, and commitments not carried forward in reevaluations; (6)
missing Section 4(f) impacts/avoidance analysis; (7) missing
documentation to support floodplain effects finding; (8) missing
documentation to support the wetlands finding; 9) missing documentation
for Essential Fish Habitat consideration; (10) missing documentation of
community and other resources impacts when addressing ROW changes; and
(11) missing documentation of water quality considerations.
The FDOT has informed the Review Team that they have implemented
some corrective actions to address missing documentation. The FDOT
staff interviews revealed that the SWEPT system was updated to include
a control to not allow a project file review to be completed without
uploading all supporting documentation. The FDOT believes that this
system improvement will ensure that supporting documentation, that was
sometimes missing as SWEPT was initially implemented would now be
present prior to an approval point. The implementation of these
improvements was incorporated after the audit project file review time
frame.
Next Steps
The FHWA provided a draft of the audit report to FDOT for a 14-day
review and comment period, later extended to 21-days due to the
holidays occurring during the review period. The Audit Team considered
FDOT's comments in 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 address all comments submitted to
finalize this draft audit report pursuant to 23 U.S.C. 327(g)(B).
Subsequently, FHWA will publish the final audit report in the Federal
Register.
[FR Doc. 2018-08100 Filed 4-17-18; 8:45 am]
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