Surface Transportation Project Delivery Program; Alaska Department of Transportation Audit Report |
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Brandye L. Hendrickson
Federal Highway Administration
5 February 2019
[Federal Register Volume 84, Number 24 (Tuesday, February 5, 2019)]
[Notices]
[Pages 1814-1818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01061]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0040]
Surface Transportation Project Delivery Program; Alaska
Department of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
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 makes available the final report of the Alaska Department of
Transportation and Public Facilities (DOT&PF) first audit under the
program.
FOR FURTHER INFORMATION CONTACT: Mr. David T. Williams, Office of
Project Development and Environmental Review, (202) 366-4074,
David.Williams@dot.gov, or Mr. Jomar Maldonado, Office of the Chief
Counsel, (202) 366-1373, Jomar.Maldonado@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue
SE, Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
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 FHWA.
[[Page 1815]]
The DOT&PF published its application for NEPA assumption on May 1,
2016, and made it available for public comment for 30 days. After
considering public comments, DOT&PF submitted its application to FHWA
on July 12, 2016. The application served as the basis for developing a
Memorandum of Understanding (MOU) that identifies the responsibilities
and obligations that the DOT&PF would assume. The FHWA published a
notice of the draft MOU in the Federal Register on August 25, 2017,
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 DOT&PF
considered comments and proceeded to execute the MOU. Effective
November 13, 2017, DOT&PF 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 of
Transportation 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. The
FHWA published a notice in the Federal Register at 83 FR 45181 on
September 5, 2018, soliciting public comment for 30-days, pursuant to
23 U.S.C. 327(g). The FHWA received comments on the draft report from
the American Road & Transportation Builders Association (ARTBA). The
ARTBA's comments were supportive of the Surface Transportation Project
Delivery Program and did not relate specifically to audit 1. The team
has considered these comments in finalizing this audit report. This
notice makes available the final report of DOT&PF 's first audit under
the program.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Issued on: January 7, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
Final FHWA Audit of the Alaska Department of Transportation
April 16-20, 2018
The Audit Team finds Alaska Department of Transportation and
Public Facilities (DOT&PF) is carrying out the National
Environmental Policy Act (NEPA) Assignment Program responsibilities
(assumed November 2017) and is compliant with the provisions of the
NEPA Assignment Program Memorandum of Understanding (MOU). The
Alaska DOT&PF has established written internal policies and
procedures for the assumed Federal responsibilities. Following 5
months after execution of the MOU, the Audit Team identified one
non-compliance observation, seven general observations, and six
successful practices. Overall, DOT&PF has carried out the
environmental responsibilities it assumed through the MOU and the
application for the NEPA Assignment Program.
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) first audit of the Alaska DOT&PF NEPA review
responsibilities and obligations that FHWA has assigned and DOT&PF
has assumed pursuant to 23 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,
DOT&PF and FHWA signed a MOU on November 3, 2017, to memorialize
DOT&PF's NEPA responsibilities and liabilities for Federal-aid
highway projects and certain other FHWA approvals for transportation
projects in Alaska. Except for three projects that FHWA retained,
FHWA's only NEPA responsibilities in Alaska are oversight and review
of how DOT&PF 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 categorical exclusions
(CE).
As part of its review responsibilities under 23 U.S.C. 327, FHWA
formed a team in October 2017 to plan and conduct an audit of NEPA
responsibilities DOT&PF assumed. Prior to the on-site visit, the
Audit Team reviewed DOT&PF's NEPA project documentation, DOT&PF's
response to FHWA's pre-audit information request (PAIR), and
DOT&PF's self-assessment of its NEPA Program. The Audit Team
reviewed additional documents and conducted interviews with DOT&PF
staff in Alaska on April 16-20, 2018.
The DOT&PF entered into the NEPA Assignment Program after more
than 8 years of experience making FHWA NEPA CE determinations
pursuant to 23 U.S.C. 326 (beginning September 22, 2009). The
DOT&PF's environmental review procedures are compliant for CEs, and
DOT&PF is implementing procedures and processes for CEs, EAs, and
EISs as part of its new responsibilities under the NEPA Assignment
Program. Overall, the Audit Team found that DOT&PF is successfully
adding EA and EIS project review responsibilities to an already
successful CE review program. The Audit Team identified one non-
compliance observation, seven general observations, as well as
several successful practices. The Audit Team finds DOT&PF is
carrying out the responsibilities it has assumed and is in
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
November 13, 2017, DOT&PF assumed FHWA's responsibilities under NEPA
and other related environmental laws. Examples of responsibilities
DOT&PF has assumed in addition to NEPA include Section 7
consultation under the Endangered Species Act (ESA) and consultation
under Section 106 of the National Historic Preservation Act (NHPA).
Following this first audit, FHWA will conduct three more annual
audits to satisfy provisions of 23 U.S.C. 327(g) and Section 11 of
the MOU. Audits are the primary mechanism through which FHWA
oversees DOT&PF's compliance with the MOU and the NEPA Assignment
Program requirements. This includes ensuring compliance with
applicable Federal laws and policies, evaluating DOT&PF'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 from
FHWA Alaska Division, as well as from FHWA offices in Washington,
District of Columbia; Atlanta, Georgia; Sacramento, California; and
Lakewood, Colorado. These experts received training on how to
evaluate implementation of the NEPA Assignment Program. In addition,
FHWA Alaska Division designated their Environmental Program Manager
to serve as a NEPA Assignment Program liaison to DOT&PF.
Scope and Methodology
The Audit Team conducted an examination of DOT&PF's NEPA project
files, DOT&PF responses to the PAIR, and DOT&PF's self-assessment.
The audit also included interviews with staff and reviews of DOT&PF
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 DOT&PF's individual project
compliance and adherence to program practices and procedures.
Therefore, while the Audit Team reviewed project documentation to
evaluate DOT&PF's NEPA process and procedures, the team did not
evaluate DOT&PF's project-specific decisions to determine if they
were, in FHWA's opinion, correct or not. The Audit Team reviewed
NEPA documents from 41 projects including Programmatic CEs, CEs, EAs
and re-evaluations, a representative sample of all NEPA documents in
process or initiated after the MOU's effective date. The Audit Team
also interviewed environmental staff in all three DOT&PF regions as
well as their headquarters office.
The PAIR consisted of 66 questions about specific elements in
the MOU. The Audit Team appreciates the efforts of DOT&PF staff to
meet the review schedule in supplying
[[Page 1816]]
their response. These responses were used to develop specific
follow-up questions for the on-site interviews with DOT&PF staff.
The Audit Team conducted 22 on-site and 6 phone interviews.
Interviewees included staff from each of DOT&PF's three regional
offices and DOT&PF headquarters. The Audit Team invited DOT&PF
staff, middle management, and executive management to participate in
interviews 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 DOT&PF NEPA Assignment Program including
DOT&PF policies, guidance, manuals, and reports. This included the
NEPA QA/QC Plan, the NEPA Assignment Program Training Plan, and the
NEPA Assignment Self-Assessment Report.
The Audit Team utilized information obtained during interviews
and project file documentation reviews to consider the State's
implementation of the assignment program through DOT&PF
environmental manuals, procedures, and policy. This audit is a
compliance review of DOT&PF's adherence to their own documented
procedures in compliance with the terms of the MOU. The team
documented observations under the six NEPA Assignment Program topic
areas. Below are the audit results.
Overall Audit Opinion
The Audit Team acknowledges DOT&PF's effort to establish written
internal policies and procedures for the new responsibilities they
have assumed. This report identifies one non-compliant observation
that DOT&PF will need to address through corrective action. These
non-compliance observations come from a review of DOT&PF procedures,
project file documentation, and interview information. This report
also identifies several notable observations and successful
practices that we recommend be expanded. Overall, DOT&PF 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 DOT&PF is substantially compliant with the
provisions of the MOU.
Non-Compliance Observations
Non-compliance observations are instances where the team found
DOT&PF was out of compliance or deficient in proper implementation
of a Federal regulation, statute, guidance, policy, the terms of the
MOU, or DOT&PF's own procedures for compliance with the NEPA
process. Such observations may also include instances where DOT&PF
has failed to maintain technical competency, adequate personnel,
and/or financial resources to carry out the assumed
responsibilities. Other non-compliance observations could suggest a
persistent failure to adequately consult, coordinate, or consider
the concerns of other Federal, State, Tribal, or local agencies with
oversight, consultation, or coordination responsibilities. The FHWA
expects DOT&PF to develop and implement corrective actions to
address all non-compliance observations. The FHWA will conduct
follow up reviews of non-compliance observations in Audit #2 from
this review.
Observations and Successful Practices
This section summarizes the Audit Team's observations of
DOT&PF's NEPA Assignment Program implementation, including
successful practices DOT&PF may want to continue or expand.
Successful practices are positive results that FHWA would like to
commend DOT&PF on developing. These may include ideas or concepts
that DOT&PF has planned but not yet implemented. Observations are
items the Audit Team would like to draw DOT&PF's attention to, which
may benefit from revisions to improve processes, procedures, or
outcomes. The DOT&PF 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 DOT&PF 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 DOT&PF 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 review team acknowledges the DOT&PF's efforts to accommodate
their environmental program to the 23 U.S.C. 327 responsibilities
they have assumed. These efforts include updating their
Environmental Procedures Manual, developing and implementing an
expanded QA/QC Plan, establishing an Environmental Program Training
Plan, and implementing a self-assessment process identifying
deficiencies that were described and addressed in a report.
Successful Practices
The Audit Team found that DOT&PF has, overall, appropriately
implemented its project-level review and compliance responsibility
for CEs, EAs, and EISs. The DOT&PF has established a vision and
direction for incorporating the NEPA Assignment Program into its
overall project development process. This was clear in the DOT&PF's
responses to FHWA's PAIR and in interviews with staff in the regions
and at DOT&PF's headquarters office, commonly known as the Statewide
Environmental Office (SEO).
The DOT&PF increased environmental staff in the SEO to support
the new responsibilities under the NEPA Assignment Program. Staff at
SEO are responsible for the review of some projects classified as
CEs and all projects classified as EAs and EISs. Regional
environmental staff coordinate their NEPA work through Regional
Environmental Managers and NEPA Program Managers at SEO. Some staff
responsibilities have changed under the NEPA Assignment Program, but
positions have essentially remained unchanged. Following assumption
of NEPA responsibilities, DOT&PF hired a statewide NEPA Assignment
Program Manager who is responsible for overseeing DOT&PF's policies,
manuals, guidance, and training under the NEPA Assignment Program.
The Audit Team would also like to recognize DOT&PF efforts to
bring a lawyer into the early stages of project development to
ensure a legally defensible document.
Non-Compliance Observation #1: Opportunity of a public hearing
Section 7.2.1 of the MOU requires the DOT&PF to develop
procedures to implement the responsibilities assumed. This review
identified one example of deficient adherence to these State
procedures. This Audit Team identified one project file where DOT&PF
did not offer the opportunity for a public hearing for the release
of the Draft EA consistent with its own public involvement
procedures in the January 2005 Preconstruction Manual Section
520.4.1 or the February 2018 Environmental Procedures Manual Section
4.4.2. The Audit Team confirmed with SEO that although public
meetings were held, no opportunity for a public hearing was
provided.
Observation #1: Programmatic Section 106 compliance and Section
4(f) compliance
The DOT&PF's November 2017 Section 106 Programmatic Agreement
(PA) established an alternate procedure for Section 106 compliance
in Alaska which allows the use of a streamlined process. The Audit
Team identified a risk to DOT&PF in the application of their Section
106 PA to projects that require integrating the Section 106 process
results to comply with the requirements of Section 4(f).
a. The PA notes that the streamlined process is applicable to
projects with low potential to affect historic properties. The
DOT&PF staff characterized how they apply the streamlined Section
106 process to individual projects as ones that result in little or
no potential to affect historic properties. The DOT&PF project
documentation for the streamlined Section 106 compliance is a form
that does not identify either a project effect or the effect to a
specific historic property.
b. Because the use of the streamlined form does not identify a
Section 106 effect for any individual historic property, the DOT&PF
documentation cannot support any required Section 4(f) de minimis
impact determinations. (see 23 CFR 774.5(b)(1))
Observation #2: Lack of a process to implement planning consistency
at time of a NEPA decision
Section 3.3.1 of the MOU requires DOT&PF to, at the time they
make a NEPA approval (CE determination, finding of no significant
impact, or record of decision) check to ensure that the project's
design concept, scope, and funding is consistent with current
planning documents. Reviews of project documents provided no
evidence that DOT&PF staff had reviewed planning documents for
availability of funding. Through interviews it was clear that their
understanding of this requirement varied. Through reviews of DOT&PF
[[Page 1817]]
manuals, the Audit Team could not find a procedure for staff to
follow so that at the time staff makes a NEPA approval, they are
also checking (and documenting) that the project's design concept,
scope, and funding is consistent with planning documents.
Observation #3: Staff Capacity
Sections 4.2.1 and 4.2.2 discuss the State's commitment of
resources and adequate organizational and staff capability. Several
DOT&PF staff explained through interviews, that since the State's
entry into the full NEPA Assignment Program, their required review
and documentation efforts dramatically increased. We learned from
two region office staff that, because of the increased workload, the
region office did not have sufficient resources to manage the
workload associated with the NEPA Assignment Program. A related
concern was the challenge in retaining qualified staff, possibly
leading to a delay in project delivery. (MOU Section 4.2.1 and
4.2.2)
Observation #4: Government-to-Government Consultation
Section 3.2.3 of the MOU excludes assignment of the
responsibility for Government-to-Government consultation with
Tribes, to DOT&PF. The Audit Team learned through interviews, and a
check of DOT&PF's environmental manual, that the DOT&PF has no
written procedures on how its staff are to accommodate a Tribal
request for Government-to-Government consultation with FHWA. Through
interviews it was apparent that DOT&PF's staff has an inconsistent
understanding of how to handle this scenario. Staff indicated they
would like written guidance that addresses the process that includes
FHWA's role. (MOU Section 3.2.3)
Documentation and Records Management
The NEPA Assignment Program became effective on November 13,
2017. From that effective date through February 28, 2018, the DOT&PF
made 56 project decisions. By employing both judgmental and random
sampling methods, the Audit Team reviewed NEPA project documentation
for 41 of these decisions.
Successful Practices
The Audit Team recognizes several efforts to improve consistency
of filing project documentation learned through project
documentation reviews and interviews. These include: the use of a
standardized electronic folder structure developed by Central
Region; a spreadsheet template used in Central Region to manage
tasks and standardize filing of project documents; and Southcoast
Region utilizing a document specialist to ensure that project files
are complete.
The Audit Team would also like to commend DOT&PF's use of the
optional 23 CFR 771.117(e) form for CE projects classified as
(c)(26), (c)(27), or (c)(28) because it clearly and efficiently
demonstrates that the conditions required for the project to be
processed as a ``c-list'' CE have been met. We urge DOT&PF
management to consider making this form a required part of CE
documentation.
Observation #5: Section 106 Compliance
Section 5.1.1 of the MOU requires the State to follow Federal
laws, regulations, policy, and procedures to implement the
responsibilities assumed, and Section 4.2.3 specifically calls out
requirements pertaining to historic properties. This review
identified two examples of deficient adherence to these Federal
Section 106 compliance procedures. The regulations that implement
Section 106 of the NHPA require the Agency Official to consider the
impacts of their undertaking on historic properties and to afford
the State Historic Preservation Officer (SHPO) an opportunity to
comment. Through project file reviews, the Audit Team identified one
instance where the Section 106 review did not consider the full
extent of the project's undertaking. This was a project where an
off-ramp bypass lane was added to the project but was not considered
as part of Section 106 compliance. Note that this error was also
discovered by DOT&PF during their self-assessment and corrective
action has been completed. In the second instance, the review of
project file documentation revealed that DOT&PF incorrectly made a
decision that Section 106 compliance requirements to make an effect
determination did not apply.
Quality Assurance/Quality Control
The Audit Team recognizes that the DOT&PF is in the early stages
of the NEPA Assignment Program. However, the Audit Team made the
following observations related to QA/QC.
Successful Practices
The MOU requires the DOT&PF to conduct an annual self-assessment
of its QA/QC process and performance. The Audit Team found the
DOT&PF's self-assessment report to be well-written and comprehensive
with in-depth analyses. This documents their commitment to
implementing a compliant NEPA Assignment Program.
The Audit Team would like to recognize the SEO's use of the QA/
QC database for tracking QA/QC reviews. This allows them to quantify
the review results to better identify trends or areas of concern
that should be addressed.
The Audit Team learned through interviews that the Section 106
professionally qualified individuals in SEO review the information
the regions submit to the SHPO. The SEO staff said that the records
were adequate overall, but occasional follow up with individual
regions was necessary to increase the clarity and address possible
omissions. This SEO feedback should result in increased consistency
and clarity in Section 106 documentation subject to interagency
review.
Observation #6: QC staff roles and responsibilities
The DOT&PF's QA/QC plan identifies a Project Development Team
who would review documents to ensure consistency, conciseness, and
overall quality, but it does not discuss specific responsibilities
of individual members for the QA/QC process. In addition, staff did
not consistently articulate the QA/QC responsibilities of the
Project Development Team members. The Audit Team would like to draw
the DOT&PF's attention to what appears to be an inconsistent
awareness of the use of Project Development Teams and the roles and
responsibilities of team members for QC.
Training Program
Per MOU Section 12 Training, the DOT&PF committed to
implementing training necessary to meet its environmental
obligations assumed under the NEPA Assignment Program. As required
in the MOU the DOT&PF also committed to assessing its need for
training, developing a training plan, and updating the training plan
on an annual basis in consultation with FHWA and other Federal
Agencies as deemed appropriate.
The DOT&PF developed the 2018 Environmental Program Training
Plan to fulfill the requirements of Section 12 of the MOU. The 2018
Environmental Program Training Plan is a comprehensive document that
addresses a number of issues related to training including:
a variety of in-person and virtual training methods
that could be used by DOT&PF;
the timing of, and approach to, updating the 2018
Environmental Program Training Plan;
the development of an individual training plan (ITP)
that outlines both mandatory and non-mandatory training;
the training and experience the employees must acquire
to be considered for promotion; and
maintaining a record of trainings that were taken by
employees in the last 3 years and their anticipated training
requests for the upcoming year.
Successful Practices
Tracking environmental training is required by the DOT&PF's 2018
Environmental Program Training Plan. One Preliminary Design and
Environmental Group Chief shared a spreadsheet developed to track
all the training taken by his staff, including environmental
courses. The Audit Team believes this tool will help ensure
employees received required training to advance the NEPA Assignment
Program.
Observations:
Observation #7: Training Program
MOU Sections 12.2, 4.2.2 and 4.2.3 require the DOT&PF to retain
staff and the organizational capacity to implement their program and
to implement training. Training often is an important tool for
attaining and maintaining staff and organizational capacity. The
Audit Team asked DOT&PF staff to share their perceptions about the
training requirements in the plan; the adequacy of the training
budget; and how training relates to their job responsibilities,
performance, and employee development and promotion. The Audit Team
urges the DOT&PF to consider ways to accommodate training needs and
consider various approaches to deliver necessary training in a
timely manner:
a) Regarding training requirements, some interviewees said that
the DOT&PF's training plan requirements were unrealistic because
[[Page 1818]]
either: 1) staff was too busy working on projects to have the time
to complete the training courses identified in the plan; or 2) given
the turnover rates in their office and the frequency of training
offered, employees were unlikely to get all required training during
their tenure. The Audit Team considers the plan to be realistic and
urges the DOT&PF to consider ways to address these challenges.
b) Regarding the training budget, interview responses revealed
no consensus. The DOT&PF management indicated a strong desire to
have a robust NEPA Program and some interviewees responded that they
felt that the training budget was adequate. However, responses from
other interviewees indicated that the training budget was
inadequate, especially as it relates to travel. The Audit Team was
unable to resolve whether the budget was inadequate and will
consider this issue again in the next audit.
c) The 2018 Environmental Program Training Plan links training
to employee development and promotion. Interviews revealed: (1)
inconsistent preparation and use of an ITP as is required for
employees; (2) perceptions that training requirements for flexing
from an Analyst 1 to Analyst 2 position are clearly spelled out, but
not for advancement beyond an Analyst 2 position; (3) concerns that
training opportunities are too limited or not available; and (4)
some employees have not had a performance review in several years.
Based on this input, the Audit Team suggests that the DOT&PF focus
on additional ways to improve implementation of their Training Plan.
d) Regarding training needs, DOT&PF staff indicated a need for
Section 4(f) training, according to interviews in all three regions
and SEO. Multiple interviewees also identified a need for training
in noise and floodplains. Training needs cited at a lesser frequency
included ESA, cumulative effects, Section 408, EA/EIS, QA/QC,
Planning and Environmental Linkages, stream enhancement, NEPA,
conflict resolution and mediation. Given that the DOT&PF is now
implementing additional environmental review responsibilities based
on the MOU, and staff recognize the need to be prepared to embrace
those responsibilities, the Audit Team urges the DOT&PF to address
these training needs expeditiously, and be sensitive to ongoing
training needs.
Performance Measures
The DOT&PF has demonstrated it has taken an active interest in
developing, monitoring, and implementing the performance measures
required by the MOU. The March 21, 2018, DOT&PF NEPA Assignment
Self-Assessment Summary Report contained the results of the DOT&PF's
first report of its assessment of NEPA Assignment and DOT&PF
procedures compliance. The DOT&PF's March 1, 2017, response to
FHWA's PAIR included answers to questions posed on performance
measures. Because of the information provided in these two
documents, combined with the fact that a relatively brief period of
time has transpired since the MOU became effective, the Audit Team
has not identified any observations or successful practices here.
However, the following discussion describes the current status of
the DOT&PF's performance measures.
The DOT&PF's performance measure to assess change in
communication among the DOT&PF, Federal and State resource agencies,
and the public resulting from assumption of responsibilities under
this MOU was based on the experience of a single EA project,
according to DOT&PF's self-assessment summary report. Through
interviews, the Audit Team learned that the DOT&PF believes the
resource agencies will observe little change in communication and
consultation because DOT&PF had been operating under a 23 U.S.C. 326
MOU since September 2009.
The DOT&PF's self-assessment summary report suggests some early
efficiencies have been observed, but the consensus from interviews
was that it is too early to determine if substantial increased
efficiencies and timeliness will result from the program. Some
individuals indicated that over time the program should result in
increased efficiencies and timeliness.
Through interviews, the Audit Team learned that data for
performance measures are being collected and presented quarterly to
DOT&PF management for use in decisionmaking. Also, that DOT&PF
believes the existing performance measures are comprehensive and
adequate. The DOT&PF leadership said that performances measures will
be evaluated annually to determine if adjustment is needed.
Legal Sufficiency
Interviews with both staff and management attorneys emphasized
the legal sufficiency review process emulated FHWA's ``early legal
involvement'' concept, i.e., bringing a lawyer onto the reviewing
team at an early stage in project development. We learned that
DOT&PF staff do not need to go through management to talk to an
attorney, but may call or email at any time (and, with regard to
EAs, have done so under NEPA Assignment). Management noted specific
review steps are to take place at the both draft and final stages
for assigned EISs and Individual Section 4(f) Evaluations.
At this time, the Alaska Department of Law (DOL) expressed no
intention of expanding the number of staff attorneys assigned to
document review; however, it has a contingency plan should workload
increase significantly in future. Specifically, should DOT&PF be
sued over an assigned project, DOL tentatively intends to contract
with outside counsel (per 23 U.S.C. 327(a)(2)(G)) to handle the
litigation rather than make a single staff attorney divide his time
between document review and defending the case. The Transportation
Section attorney would act as support counsel to the litigators in a
manner similar to the way FHWA counsel provide litigation support to
the U.S. Department of Justice when it defends FHWA's environmental
decisions in court. (MOU Section 6.1.1)
[FR Doc. 2019-01061 Filed 2-4-19; 8:45 am]
BILLING CODE 4910-22-P