Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report |
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Brandye L. Hendrickson
Federal Highway Administration
17 September 2018
[Federal Register Volume 83, Number 180 (Monday, September 17, 2018)]
[Notices]
[Pages 46992-46996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20097]
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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.
ACTION: Notice.
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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 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
notice finalizes the findings of the first audit report for the Utah
Department of Transportation (UDOT).
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.Maldonado@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 and all comments received 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, 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 end 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 finalizes
the findings of the first audit report for UDOT participation in the
NEPA Assignment program. The FHWA published a draft version of this
report in the Federal Register on April 13, 2018, at 83 FR 16170, and
made it available for public review and comment for 30 days in
accordance with 23 U.S.C. 327(g). The FHWA received two responses to
the Federal Register notice during the public comment period for the
draft report. Neither of the comments were substantive. One comment
from the American Road and Transportation Builders Association outlined
their general support for this program. The second comment was from an
anonymous individual and the comment was unrelated to the report. The
FHWA considered both comments and determined that neither comment
triggered changes in the content of the report. This notice includes
the final version of the audit report.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
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's) 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
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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 MOU covers environmental
review responsibilities for projects that require the preparation of
environmental assessments (EA), 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 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 the 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 in lieu of FHWA. 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 (16 U.S.C. 1531 et seq.) and consultation under
section 106 of the National Historic Preservation Act (54 U.S.C.
306108).
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 oversees
UDOT's compliance with the MOU and the NEPA Assignment Program
requirements. This 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, CA,
Washington, DC, Atlanta, GA, and Austin, TX. 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 the 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
[[Page 46994]]
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 SME 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 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
The UDOT uses a document database called ``ProjectWise'' 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,
[[Page 46995]]
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
At the time of the first audit UDOT was in the early stages of the
section 327 program, and because there was 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 understood
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 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 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.
Finalizing the Report
The FHWA published a draft version of this report in the Federal
Register on April 13, 2018, at 83 FR 16170, and made it available for
public review and comment for 30 days in accordance with 23 U.S.C.
327(g). The FHWA received two responses to the Federal Register notice
during the public comment period for the draft report. Neither of the
comments were substantive. One comment from the American Road and
Transportation Builders Association outlined their support for this
program. The second comment was from an anonymous individual and the
comment was unrelated to the report.
[[Page 46996]]
The FHWA considered both comments and determined that neither comment
triggered changes in the content of the report. This is FHWA's final
version of the audit report.
[FR Doc. 2018-20097 Filed 9-14-18; 8:45 am]
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