Surface Transportation Project Delivery Program; Florida DOT Audit #1 Report |
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Brandye L. Hendrickson
Federal Highway Administration
27 August 2018
[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Notices]
[Pages 43726-43730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18476]
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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.
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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 the responsibilities it has assumed, in lieu
of FHWA. This program mandates annual audits during each of the first 4
years to ensure the State's 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 finalizes the findings of the first
audit report for the FDOT's participation in accordance to FAST Act
requirements.
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, 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 end 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 finalizes
the finding of the first audit report for the FDOT participation in
accordance to FAST Act requirements. A draft version of this report was
published in the Federal Register on April 18, 2018, at 83 FR 17216,
and was available for public review and comments. The FHWA received
three responses to the Federal Register Notice during the public
comment period for this draft report. None of comments were
substantive; one from the American Road and Transportation Builders
Association voiced support of this program and another was anonymous
that was unrelated to this report. The remaining comments came from
FDOT. The Audit Team met with FDOT to discuss their comments throughout
the Audit report development. The FHWA considered FDOT's comments not
to be substantive but nonetheless revised the report language in
several instances. This notice includes a final version of the audit
report that addresses all comments submitted on the draft audit report.
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.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
FINAL
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 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. Through this report, FHWA is notifying
FDOT of one non-compliance observation that requires FDOT to take
corrective action. By addressing the observations in this
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report, FDOT will continue to assure a successful program.
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 6 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 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 assure a successful
program.
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 three observations in this report. Successful
practices are practices that the Audit Team believes are successful,
and
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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 and
tracked. During the interviews, OEM and district staff indicated
inconsistencies in 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, though it has not had occasion to do
so, FDOT stated they would implement new Federal statutory requirements
or U.S. Department of Transportation (DOT) regulations, without FHWA
consultation. This approach may establish FDOT policy or guidance in
advance of FHWA, which could 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. The FHWA met with FDOT to discuss its need
for informed decision making necessary for new Federal requirements.
The FDOT clarified that they intended to consult with FHWA in order to
gain information on emerging policy and guidance in order to make
informed decisions.
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 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 could be broadened and made
more responsive
The FDOT QA/QC Plan identified only the Self-Assessment as FDOT's
QA tool. The FDOT 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 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
overall process should be broader in scope in order to identify and
correct any deficiencies. The FHWA met with FDOT to discuss FDOT's
approach to QA. The FDOT clarified that they have other quality
assurance tools in addition to the Self- Assessment. The FHWA will
include a consideration of FDOT's quality assurance tools in its next
audit review.
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 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
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needed. In preparation for NEPA Assignment, OEM also provided several
in-person sessions for the districts. The training was recorded and is
available online.
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 47 of the 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 9 of 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 FHWA discussed
FDOT's comment on this non-compliance observation and the State
acknowledged an issue with project documentation. The FDOT indicated
that they would share the updated details regarding the 47 project
files and they were already implementing corrective actions to address
this issue.
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 CE, 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 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
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supporting documentation. The FDOT believes that this system
improvement will ensure that supporting documentation, which 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.
Finalizing this Report
The FHWA received three responses to the Federal Register Notice
during the public comment period for this draft report. None of
comments were substantive; one from the American Road and
Transportation Builders Association voiced support of this program and
another was anonymous that was unrelated to this report. The remaining
comments came from FDOT. The Audit Team met with FDOT to discuss their
comments throughout the Audit report development. The FHWA considered
FDOT's comments not to be substantive but nonetheless revised the
report language in several instances. This notice includes a final
version of the audit report that addresses all comments submitted on
the draft audit report.
[FR Doc. 2018-18476 Filed 8-24-18; 8:45 am]
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