Surface Transportation Project Delivery Program; TxDOT Audit #5 Report |
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Brandye L. Hendrickson
Federal Highway Administration
6 February 2019
[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Notices]
[Pages 2298-2304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01250]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0044]
Surface Transportation Project Delivery Program; TxDOT Audit #5
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. Prior to the Fixing America's Surface
Transportation (FAST) Act, the Program required semiannual audits
during each of the first 2 years of State participation to ensure
compliance by each State participating in the Program. This notice
announces and solicits comments on the fifth and last audit report for
the Texas Department of Transportation's (TxDOT) participation in
accordance to these pre-FAST Act requirements.
DATES: Comments must be received on or before March 8, 2019.
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: Dr. Owen Lindauer, Office of Project
Development and Environmental Review, (202) 366-2655,
owen.lindauer@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 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.
Since December 16, 2014, TxDOT has assumed FHWA's responsibilities
under NEPA and the responsibilities for reviews under other Federal
environmental requirements under this authority.
Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary
to conduct semiannual audits during each of the first 2 years of State
participation, annual audits during years 3 and 4, and monitoring each
subsequent year of State participation to ensure compliance by each
State participating in the Program. The results of each audit were
required to be presented in the form of an audit report and be made
available for public comment. On December 4, 2015, the President signed
into law the FAST Act, Public Law 114-94, 129 Stat. 1312 (2015).
Section 1308 of the FAST Act amended the audit provisions by limiting
the number of audits to one audit each year during the first 4 years of
a State's participation. This notice announces the availability of the
report for the fifth and final audit for TxDOT conducted prior to the
FAST Act 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.
Issued on: January 8, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
DRAFT
Surface Transportation Project Delivery Program, FHWA Audit #5 of the
Texas Department of Transportation, August 1, 2017 to August 1, 2018
Executive Summary
This is a report of Federal Highway Administration's (FHWA's) fifth
audit (Audit #5) of the Texas Department of Transportation (TxDOT)
responsibilities assigned under a memorandum of understanding (MOU)
effective December 16, 2014. From that date, TxDOT assumed FHWA's
National Environmental Policy Act (NEPA) responsibilities assigned for
the environmental review and compliance and for other environmental
review laws and requirements for highway projects in Texas (NEPA
Assignment Program). The report concludes with a status update for
FHWA's observations from the fourth audit review (Audit #4).
The FHWA Audit #5 team (team) was formed in October 2017 and met
regularly to prepare for the on-site portion of the audit. Prior to the
on-site visit, the team: (1) Performed reviews of project files in
TxDOT's Environmental Compliance Oversight System (ECOS), (2) examined
TxDOT's responses to FHWA's pre-audit information requests (PAIR), and
(3) developed interview questions. The on-site portion of this audit,
comprised of TxDOT interviews, was conducted on May 21-25, 2018.
The TxDOT continues to develop, revise, and implement procedures
and processes required to carry out the NEPA Assignment Program.
Overall, the team found continued evidence that TxDOT is committed to
establishing a successful program. This report summarizes the team's
assessment of the status of several aspects of the NEPA Assignment
Program, including a variety of successful practices and five
observations that represent opportunities for TxDOT to improve its
program. The team identified two categories of non-compliance
[[Page 2299]]
observations that TxDOT will need to address as corrective actions.
The TxDOT has continued to make progress toward meeting the
responsibilities it has assumed in accordance with the MOU. The team
finds TxDOT to be in substantial compliance with the terms of the MOU,
and FHWA looks forward to working with TxDOT to renew the MOU.
Background
The Surface Transportation Project Delivery Program allows a State
to assume FHWA's environmental responsibilities for review,
consultation, and compliance for highway projects. This Program is
codified at 23 U.S.C. 327. When a State assumes these Federal
responsibilities for NEPA project decisionmaking, the State becomes
solely responsible and liable for carrying out these obligations in
lieu of and without further NEPA related approval by FHWA.
The State of Texas was assigned the responsibility for making
project NEPA approvals and the responsibility for making other related
environmental decisions for highway projects on December 16, 2014.
The FHWA responsibilities assigned to TxDOT are specified in the
MOU. These responsibilities include: Compliance with the Endangered
Species Act (ESA) Section 7 consultations with the U.S. Fish and
Wildlife Service (USFWS) and the National Oceanic and Atmospheric
Administration's National Marine Fisheries Service, and Section 106
consultations with the Texas Historical Commission regarding impacts to
historic properties. Some responsibilities may not be assigned and
remain with FHWA. They include: (1) Responsibility for project-level
conformity determinations under the Clean Air Act and (2) the
responsibility for Government-to-Government consultation with
federally-recognized Indian Tribes.
These audits are part of FHWA's oversight responsibility for the
NEPA Assignment Program. The reviews are to assess a State's compliance
with the provisions of the MOU as well as all applicable Federal laws
and policies. They also are used to evaluate a State's progress toward
achieving its performance measures as specified in the MOU; to evaluate
the success of the NEPA Assignment Program; and to inform the
administration of the findings regarding the NEPA Assignment Program.
In December 2015, statutory changes in Section 1308 of the Fixing
America's Surface Transportation Act (FAST Act), reduced the frequency
of these audit reviews to one audit per year during the first 4 years
of State participation in the program. This audit is the last of the
required audits.
Scope and Methodology
The team for Audit #5 included NEPA subject-matter experts from
FHWA Texas Division Office, as well as FHWA offices in Washington,
District of Columbia, Atlanta, Georgia, and Phoenix, Arizona. In
addition to the NEPA experts, the team included FHWA planners,
engineers, and air quality specialists from the Texas Division office.
The diverse composition of the team, the process of developing the
review report, and publishing it in the Federal Register help maintain
an unbiased review and establish the audit as an official action taken
by FHWA.
The scope and focus of this audit included reviewing the processes
and procedures (i.e., toolkits and handbooks) used by TxDOT to reach
and document its independent project decisions. The team conducted a
careful examination of highway project files in TxDOT's database called
Environmental Compliance Oversight System (ECOS) and verified
information on the TxDOT NEPA Assignment Program through inspection of
other records and through interviews with TxDOT and other staff. The
team gathered information that served as the basis for this audit from
three primary sources: (1) TxDOT's response to a pre-Audit #5
information request (PAIR #5), (2) a review of a judgmental sample of
project files in ECOS with approval dates after the execution of the
MOU, and (3) interviews with TxDOT staff. In addition, TxDOT provided
information in response to FHWA pre-audit questions and requests for
documents and provided a written clarification to FHWA thereafter. That
material covered the following six topics: program management,
documentation and records management, quality assurance/quality
control, legal sufficiency review, performance measurement, and
training.
This review will also serve to assess the State's performance in
carrying out the selected and identified procedures established for
NEPA Assignment including compliance with transportation planning
procedures in regard to funding eligibility requirements for placing
TxDOT projects on the Statewide Transportation Improvement Program
(STIP) and for Metropolitian Planning Organizations placing projects in
the Metropolitan Transportation Plan (MTP)/Transportation Improvement
Program (TIP) (MOU stipulation 3.3.1). Interviews with TxDOT's Finance
Division (Letting Management Office) and Transportation Planning and
Programming Division personnel were included in Audit #5.
The intent of the review was to check that TxDOT overall has the
procedures in place to implement the responsibilities assumed through
the MOU, ensure that the staff is aware of those procedures, and that
staff implements the procedures to achieve compliance with NEPA and
other assigned responsibilities. The review did not evaluate project-
specific decisions, as such decisions are the sole responsibility of
TxDOT. The team focused on whether the procedures TxDOT followed
complied with all Federal statutes, regulation, policy, procedure,
process, guidance, and guidelines. In some cases, procedures within
TxDOT cross multiple divisions (and 25 districts) and require close
coordination amongst all parties internal to TxDOT to ensure compliance
under the MOU.
The fifth audit intends to: (1) Evaluate whether TxDOT's NEPA
process and procedures (both Federal and State) used for project
decisionmaking and other actions comply with all the responsibilities
it assumed in the MOU and (2) determine the status of observations in
the Audit #4 report, as well as required corrective actions (see
summary at end of this report). The NEPA approvals included categorical
exclusion (CE) ``d-list'' approvals, findings of no significant impacts
(FONSI), re-evaluations of environmental assessments (EAs), Section
4(f) decisions, approvals of a draft environmental impact statement
(DEIS), re-evaluations of EISs, and records of decision.
The team defined the timeframe for highway project environmental
approvals subject to this fifth audit to be between February 1, 2017,
to January 31, 2018. The population of project approvals selected for
review derived from 12 TxDOT-certified lists of NEPA approvals reported
monthly. The project file review effort was divided into approvals made
during Round 1 (Feb 1, 2017--July 31, 2017) and Round 2 (Aug 1, 2017--
Jan 31, 2018). Round 1 of our ECOS Review initially consisted of 14
project FONSIs, 12 EA re-evaluations (Re-Evals), 3 EIS Re-Evals, 16 CE
determinations of actions not listed in regulation (Open-ended d-list
CEs), 1 final EA, and 1 c-28 CE (for a rail project) for a total of 47
projects. Round 2 of our ECOS Review consisted of 4 FONSIs, 6 EA Re-
Evals, 2 EIS Re-Evals, 17 Open-ended d-list CE, and 1 final EA. The
FHWA's Compliance Assessment Program (CAP) conducts a
[[Page 2300]]
review of project files independent of this audit. Two projects from
CAP were considered in this review bringing the total to 32 projects
that were initially reviewed. The total number of projects that were
initially reviewed for the Audit #5 ECOS Review totaled 79 projects.
The interviews conducted by the team focused on TxDOT's leadership
and staff at the Environmental Affairs Division (ENV) Headquarters in
Austin and staff in six of TxDOT's Districts. The team conducted face-
to-face interviews of TxDOT District staff in the San Angelo, Abilene,
Wichita Falls, Fort Worth, Houston, and Lufkin Districts. The TxDOT
staff from the Transportation Planning and Programming (TPP) Division
and the Finance Division (FIN) were also interviewed. The team used the
same ECOS project document review form to document findings related to
projects. The team updated interview questions for districts and ENV,
TPP, and FIN with new focus areas to gather relevant data to draw
conclusions herein.
Overall Audit Opinion
The TxDOT continues to make progress in the implementation of its
program that assumes FHWA's NEPA project-level decision authority and
other environmental responsibilities. The team acknowledges TxDOT's
effort to refine, and when necessary, establish additional written
internal policies and procedures. The team found evidence of TxDOT's
continuing efforts to train staff, clarify the roles and
responsibilities of TxDOT staff, and in educate staff in an effort to
assure compliance with all of the assigned responsibilities.
The team identified non-compliant observations in this audit that
TxDOT will need to address through corrective actions. These non-
compliance observations come from a review of TxDOT procedures, project
file documentation, and interview information. This report also
identifies several observations and successful practices that we
recommend be expanded upon. The team finds TxDOT to be in substantial
compliance with the terms of the MOU, and FHWA looks forward to working
with TxDOT to renew the MOU.
Non-Compliance Observations
Non-compliance observations are instances where the team found
TxDOT was out of compliance or deficient in proper implementation of a
Federal regulation, statute, guidance, policy, the terms of the MOU, or
TxDOT's own procedures for compliance with the NEPA process. Such
observations may also include instances where TxDOT 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 TxDOT to develop and
implement corrective actions to address all non-compliance
observations.
The MOU (Part 3.1.1) states that ``[p]ursuant to 23 U.S.C.
327(a)(2)(A), on the Effective Date, FHWA assigns, and TxDOT assumes,
subject to the terms and conditions set forth in 23 U.S.C. 327 and this
MOU, all of the DOT Secretary's responsibilities for compliance with
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq. with respect to the highway projects specified under subpart 3.3.
This includes statutory provisions, regulations, policies, and guidance
related to the implementation of NEPA for Federal highway projects such
as 23 U.S.C. 139, 40 CFR 1500-1508, DOT Order 5610.1C, and 23 CFR 771
as applicable.'' Also, the performance measure in MOU Part 10.2.1(A)
for compliance with NEPA and other Federal environmental statutes and
regulations commits TxDOT to maintaining documented compliance with
requirements of all applicable statutes and regulations, as well as
provisions in the MOU. The following non-compliance observations are
presented as two categories of non-compliance observations: (1) With
procedures specified in Federal laws, regulations, policy, or guidance
and (2) with the State's environmental review procedures.
Non-Compliance Observation #1: Section 5.1.1 of the MOU requires
the State to follow Federal laws, regulations, policy, and procedures
to implement the responsibilities assumed. The follow is a list of the
procedures and the instance where the team found the TxDOT to be non-
compliant.
(a) Logical Termini and Independent Utility
The TxDOT approved a project to add capacity with project limits
based on county lines. Using county lines to establish project limits
is inconsistent with FHWA policies and guidance on establishing a
project's logical termini because its sets an arbitrary boundary. (23
CFR 771.111(f); The Development of Logical Project Termini, FHWA
guidance (November 5, 1993)).
(b) Plan Consistency Prior to NEPA Approval
Section 3.3.1 of the MOU requires that prior to approving any CE
determination, FONSI, final EIS, or final EIS/ROD, TxDOT will ensure
and document that the project is consistent with the current TIP,
Regional Transportation Plan (RTP), or MTP. The team identified three
projects where TxDOT made NEPA approval without meeting the MOU
consistency requirement. This recurring deficiency was also identified
for a project file in Audit #4.
(c) Public Involvement
The FHWA's regulation at 23 CFR 771.119(h) requires a second public
notification to occur 30 days prior to issuing a FONSI for an action
described in 23 CFR 771.115(a). The team reviewed a project file where
TxDOT approved a FONSI for an action described in 23 CFR 771.115(a)
(new controlled access freeway) without evidence of a required
additional public notification. The TxDOT acknowledges this requirement
in their updated public involvement handbook. This recurring deficiency
was also identified in Audits #3 and 4.
(d) Section 4(f) De Minimis
The TxDOT determined Section 4(f) is required for a project without
completing the required Section 4(f) de minimis determination (MOU
3.2.1 and 23 CFR 774).
(e) Certification of NEPA Compliance Missing at Project Construction
Authorization
In two instances TxDOT requested, and received, construction
authorization for a Federal-aid project without ensuring the completion
of NEPA. (Section 8.7.1 of MOU). Section 8.7.1 of the MOU requires
TxDOT to certify to FHWA, for Federal-aid funded projects, that TxDOT
has fully carried out all responsibilities assumed under the MOU prior
to the execution of any Federal-aid project agreement for physical
construction. The TxDOT is aware of these instances and had implemented
corrective action to address this issue by the time Audit #5 was in
process.
Non-Compliance Observation #2: Section 7.2.1 of the MOU requires
the State to develop State procedures to implement the responsibilities
assumed. This review identified the following examples of deficient
adherence to these State procedures.
[[Page 2301]]
(a) Noise Policy
One project did not follow the TxDOT Noise guidelines (Guidelines
for Analysis and Abatement of Roadway Traffic Noise, 2011) by not
addressing critical noise comments made by ENV prior to project
approval. The TxDOT noise guidelines identifies procedures for
compliance with 23 CFR part 772.
(b) Required TxDOT ENV Class of Action Pre-Approval Process
A TxDOT district approved a project that was not on the ``c'' or
``d'' list and the district did not receive the required pre-approval
from ENV to process the project as an open-ended d-list CE.
Successful Practices and Other Observations
This section summarizes the TxDOTs practices that the team believes
are successful as well as observations about issues that TxDOT may
consider as areas to improve. Further information on these successful
practices and observations is contained in the following subsections
that address these six topic areas: Program management; documentation
and records management; quality assurance/quality control; legal
sufficiency; performance management; and training.
Throughout the following subsections, the team lists observations
that FHWA recommends TxDOT consider in order to make improvements. The
FHWA's suggested implementation methods of action include: Corrective
action, targeted training, revising procedures, continued self-
assessment, improved QA/QC, or some other means. The team acknowledges
that, by sharing the preliminary draft audit report with TxDOT, TxDOT
has begun the process of implementing actions to address these
observations to improve its program prior to the publication of this
report.
1. Program Management
Successful Practices and Observations
The team applauds TxDOT-ENV willingness to continue to engage in
quarterly partnering meetings with FHWA that started in 2016. The
exchange of information between FHWA and TxDOT has enhanced FHWA's
understanding of TxDOT's program and has led to cooperation that has
resulted in improved TxDOT processes and procedures. This will assist
in making monitoring a success as well. District staff interviewed
described the positive interaction that occurs among the District
Transportation and Planning Director and the Environmental Coordinator
(EC) with district designers and engineers to discuss projects being
developed and discuss issues and revise schedules if needed.
Observation #1: Planning Consistency at the Time of NEPA Approval
Section 3.3.1 of the MOU requires that prior to approving any CE
determination, FONSI, Final EIS, or final EIS/ROD, TxDOT will ensure
and document that the project is consistent with the current TIP, RTP,
or MTP. The TxDOT's use of Develop Authority (DA) in some project files
as a basis for planning consistency satisfies this requirement so long
as TxDOT has provided FHWA with a DA financial plan. The team urges
TxDOT to provide FHWA with the financial documentation to support the
use of DA.
Observation #2: TxDOT Inter-Division Coordination
The team learned through interviews that staff from divisions other
than ENV (Transportation Planning and Programming, Finance, Right-of-
way, and Rail) who support environmental reviews and decisions were
unaware of their part they played in NEPA reviews. We urge TxDOT ENV to
discuss needs and procedures for delivering compliant NEPA approval for
Federal-aid projects with these other divisions. The TxDOT is aware of
this issue and has implemented procedures to address it.
2. Documentation and Records Management
The team relied on information in ECOS, TxDOT's official file of
record, to evaluate project documentation and records management
practices. Many TxDOT toolkit and handbook procedures mention the
requirement to store official documentation in ECOS. The ECOS is also a
tool for storage and management of information records, as well as for
disclosure within TxDOT District Offices. The ECOS is how TxDOT
identifies and procures information required to be disclosed to and
requested by the public. The ECOS is being upgraded and there are more
phased upgrades planned over time. The most recent work includes
Expedited C-List (22), an automated process to add a Control Section
Job number to an existing environmentally cleared project, and
automated business rules to prevent incorrect project associations in
ECOS.
Successful Practices and Observations
The team learned that ECOS continues to improve in download speed
and compatibility. The team learned from interviews that ECOS continues
to improve reliability, download speeds, and has fewer technical
problems. The phased ECOS updates continue to roll out.
Overall ECOS has provided a consistent repository for better
documentation and is enhanced by staff use of a new naming convention
per discipline. The EA checklist is working well in conjunction with
the CORE Team concept.
3. Quality Assurance/Quality Control (QA/QC)
Successful Practices and Observations
The team observed continued successful practices from previous
audits in QA/QC. These successful practices include the use of NEPA
Chats, increased Subject Matter Expert (SME) interactions with district
staff after review of files, and the CORE Team concept (items described
in previous audit reports). The TxDOT District Office environmental
staff continues to do peer reviews of environmental decisions to double
check the quality and accuracy of documentation.
The team learned through interviews that approved open-ended d-list
projects were reviewed by Program Review Section (PR) as part of a
thorough review of NEPA class of action. District staff said in
interviews that they feel they can reach out to ENV staff and PR to ask
questions to assist in the preparation of compliant and quality
documents.
The ENV SME's, we were told in interviews, are reaching out to the
district staff with corrections and resolution of issues in documents,
which is viewed as an improved way to relate and resolve issues found
in file reviews. These communications often result in improvements in
guidance/checklists as well as a noted decrease in corrective actions
from PR reviews. Interviewees told us that ECOS continues to improve
and is perceived to be easier to use and that updates have resulted in
fewer substantive errors. The team considers that self-assessments
conducted by ENV for Section 4(f) and Public Involvement resulted in
positive changes and improvements in quality documents by using
established checklists and certifications and the CORE Team concept.
Observation#3: TxDOT Monthly Lists of NEPA Approvals
The review team identified a few projects listed on the monthly
list incorrectly, projects missing from the list, and projects added on
after
[[Page 2302]]
submittal to FHWA. The TxDOT is aware of this problem and is taking
steps to address it.
Observation#4: QC for Re-Evaluations
The team noted in project file reviews that re-evaluation
recordkeeping was inconsistent, especially for consultation re-
evaluations. Because re-evaluations are not reviewed by TxDOT's PR, the
team would urge TxDOT to subject at least a sample of re-evaluations to
quality assurance review.
4. Legal Sufficiency Review
The team did not identify any observations and only presents a
summary of TxDOT's approach to legal review. The General Counsel
Division (GCD) currently has five lawyers on staff (lead attorney and
four staff) plus outside counsel. After the lead attorney, the staff
has between 6-months and two and half years of experience with GCD.
Reviews are done primarily by the lead attorney and two staff with the
other two assisting on an as needed basis such as the development of
the administrative record and quick turnaround required for a DEIS.
Additional assistance is provided by an outside law firm and a
consultant attorney who has delivered environmental legal assistance to
ENV for several years. The GCD assistance continues to be guided by
ENVs Project Delivery Manual Sections 303.080 through 303.086. These
sections provide guidance on conducting legal sufficiency review of
FHWA-funded projects and those documents that are to be published in
the Federal Register such as the Notice of Intent to prepare an EIS,
Statute of Limitation (139(l)), and Notice of Availability of EIS.
During the last year GCD had a very large effort to address the
MOPAC lawsuit particularly in developing the administrative record.
They used their staff along with the Attorney General, consultant staff
and outside staff. Another significant effort was a lawsuit on an EA/
FONSI that required a very quick turnaround by the entire staff to a
request for a preliminary injunction. The TxDOT was served notice of
the lawsuit on March 27 and notified FHWA Chief Counsel, the U.S.
Department of Justice, and the FHWA Texas Division Office on the same
day as required by the MOU.
The FHWA Office of Chief Counsel provided legal sufficiency
training to GCD in August 2017. The TxDOT would like to have the same
training provided on a periodic basis. Recent staff training included a
legal sufficiency course provided by FHWA Office of Chief Counsel, ENV
self-developed courses, the TRB Summer Seminar in July 2017 in Salt
Lake City, and Advanced Administrative Law Seminars held in Austin.
Based on interviews noted above and information provided in the
PAIR, TxDOT's current process is legally sufficient and the team
considers that the requirements for legal sufficiency under the MOU
continue to be fulfilled.
5. Performance Measurement
Successful Practices and Observations: The TxDOT continues to
successfully monitor its metrics to measure performance. The TxDOT's
summary of its performance measures was described in their self-
assessment summary report. Completion of checklists for project quality
control continue to be an important measure of overall quality control.
The TxDOT draws a sample from the population of completed CE project
files to assess their completeness and accuracy. A separate study
focused on documentation from 21 EAs. The TxDOT lists the missing or
deficient information from project files that serves as a basis for
taking corrective actions. What results is continuous improvements
based on corrective actions taken. Developments in ECOS have largely
eliminated substantive error resulting from flawed Categorical
Exclusion Determination Forms (CEDFs). In previous self-assessments,
these CEDF errors were a common source of non-compliance.
The effectiveness of TxDOT's assumption of NEPA responsibilities on
timeliness of EA decisionmaking was a focus of the TxDOT self-
assessment summary report. Their thoughtful analysis states that start-
to-finish comparisons of EAs prior to and after NEPA assignment suggest
improvements in timeliness. Median and average EA project completion
terms for pre-assignment projects suffer from long-duration project
outliers that are absent from the set of assigned EA projects. Average
time frames for EA completion post assignment were identified and were
determined to be statistically valid. While timeliness for EA
decisionmaking has been documented for the 4 years of NEPA assignment,
it is also true that this trend fits neatly into a national trend of
falling median time frames once long-duration outliers have been
eliminated.
Observation#5: Audit #4 Corrective Actions
The team noted through the self-assessment summary report that as
part of the measure of implemented corrective actions, because of the
delay in finalizing the Audit #4 report, TxDOT had not yet identified
or implemented corrective actions for that audit result. We urge TxDOT
to consider developing and implementing reasonable corrective actions
whenever TxDOT becomes aware of deficiencies in their program. Since
the completion of the interviews for this audit review TxDOT has
implemented corrective actions (see Status of Non-compliance
observations below).
6. Training Program
Successful Practices and Observations: Looking back over the last 4
years, TxDOT's training program has shown trends of: (a) Increased
reliance on developing and delivering training by TxDOT staff compared
with FHWA Resource Center staff or others, (b) increased organization
and efficiency in available training as well as training tracking, and
(c) greater clarity in basic and continuing training requirements
(linked to the Texas Administrative Code).
Through an interview, the team learned that a new hands-on training
workshop in biology consisting of a class room lecture and a field
component to identify species (mussels, birds) has been delivered in
west Texas (Junction) that engaged USFWS staff. So well received were
these workshops that spin off workshops have occurred in east Texas and
coastal Texas.
The TxDOT informed the team through an interview that through an
annual survey to TxDOT staff and resource agencies, it learns of needs
for new training. As a result, TxDOT has developed or is developing the
following courses: (a) A basic NEPA training class that for local
government staff and consultants that follows a 1.5-day general
training class that targets local government staff, and (b) a NEPA
class that bridges the NEPA 101 class and environmental SME classes
training for non-environmental professionals.
The team learned through an interview that there is an interest
from at least one transportation and planning director in a class in
risk management on environmental decisionmaking. Now that TxDOT staff
have experience in the range of NEPA decision making challenges, the
team urges that TxDOT's training plan consider NEPA decision making
training. Since the completion of the interviews for this audit review
TxDOT has begun developing new training for non-environmental
professionals to introduce them to environmental review topics.
[[Page 2303]]
Status of Non-Compliance Observations and Other Observations From Audit
#4 (September 2018)
Audit #4 Non-Compliance Observation #1:
(a) Project Scope Analyzed for Impacts Differed From the Scope Approved
The TxDOT developed an update for their Scope Development Tool over
the past 16 months and recently implemented those changes. For specific
issues such as this one, TxDOT PR conducts a debrief among the project
core team members and the Deputy Division Director.
(b) Plan Consistency Prior to NEPA Approval
The TxDOT continues to follow their NEPA approval procedures that
include procedures to determine planning consistency. The TxDOT was
asked to provide the documented financial plan for the use of ``Develop
Authority'' to ensure that this approach complies with planning
consistency. The TxDOT has provided a draft of this documentation. This
is a recurrence from Audit #3.
(c) Public Involvement
The FHWA's regulation at 23 CFR 771.119(h) requires a second public
notification to occur 30 days prior to issuing a FONSI for an action
that normally would require the preparation of an EIS. The TxDOT
acknowledges this requirement and has updated their public involvement
handbook. This is a recurrence from Audit #3.
(d) Timing of NEPA Approval
One project file lacked documentation for Section 106 compliance
prior to TxDOT making a NEPA approval. The regulation at 23 CFR 771.133
requires compliance with all applicable requirements or reasonable
assurance that all requirements will be met at the time of NEPA
approval. The TxDOT PR conducted a debrief among the project core team
members and the Deputy Division Director. The TxDOT is preparing
changes to ECOS to address this issue.
Audit #4 Non-Compliance Observation #2:
(a) Reporting of Approvals Made by TxDOT
The MOU section 8.7.1 requires the State to certify on a list the
approvals it makes pursuant to the terms of the MOU and Federal review
requirements so FHWA knows which projects completed NEPA and are
eligible for Federal-aid funding. The FHWA identified a project whose
approval was made pursuant to State law and therefore should not have
been on the certified list of projects eligible for Federal-aid
funding. The TxDOT continually works to assure that only Federal
projects are present on the monthly approval list. At the time the
monthly report is prepared, only projects with NEPA approvals are
present on the list. The TxDOT suggests that instances where a
project's funding changes after the certified list is prepared could
account for discrepancies between being federally funded and State
funded at the time FHWA reviews the list.
(b) Noise Workshop Timing
One project did not follow TxDOT noise guidelines. The TxDOT is in
the process of updating their Noise Policy and Guidelines and is
seeking FHWA approval for those changes. This specific issue has been
highlighted and discussed at the Environmental Coordinators Conference
in September 2018.
(c) Endangered Species Act Section 7
Training efforts by TxDOT are ongoing. The TxDOT is aware of the
concern for Section 7 compliance.
(d) Indirect & Cumulative Impacts
The TxDOT hosted a FHWA Resource Center training in February of
2018 regarding this topic and a more common-sense approach to
performing the required analyses.
(e) Federal Approval Request for a State Funded Project
The review team reviewed a project file where TxDOT followed State
environmental
laws and then requested Federal-aid to purchase right-of-way. The
TxDOT has removed Federal funds from the Right of Way portion of this
project as corrective action.
Audit #4 Observations
1. Noise procedure clarification: The TxDOT ENV is currently in the
process of proposing an update to their Noise Policy for FHWA approval
in 2018 and will update their accompanying Noise Guidelines as well.
2. Section 7 of the Endangered Species Act:
The TxDOT continues to train staff on its revised ESA handbook and
standard operating procedures. In certain districts with sensitive
habitats (e.g., karst) or the possibility of a species present (e.g., a
salamander), ENV managers plan to review a project's information in
addition to the district's and/or ENV biologists. This enhanced review
process is currently limited only to two districts and could be
expanded to include instances where such bias may occur.
3. Project description and logical termini: A project contained a
description of the proposed project as the project's purpose. Another
proposed added capacity project's description indicated a longer
terminus compared to a schematic. The TxDOT is aware of these instances
and discussed these matters with the parties involved.
4. Record keeping integrity: There were several project files where
the team identified instances of missing information or information was
not consistently linked or uploaded. The ECOS is being upgraded
currently with phase three, and there are two more phased upgrades
planned over time.
5. Effectiveness and change in QA/QC: The TxDOT has reorganized its
Self Assessment Branch and is now called Program Review Section (PR).
Their approach to QA feedback to TxDOT staff relies on SMEs to
communicate results of QA reviews.
6. Performance measure awareness and effectiveness: The team noted
through interviews of TxDOT District Office staff that many were
unaware of TxDOT performance measures and their results to encourage
continuous improvement. The TxDOT provided status on this observation
in their response to for this audit that included one NEPA chat, and
meetings with districts who participated in the May 2017 audit. The
TxDOT district staff now have access to the 2016 and 2017 Self-
Assessment reports via SharePoint.
7. Additional outreach on improvements: This observation relates to
informal training to implement TxDOT procedures changes in its
handbook. As part of information collected for Audit #5, TxDOT
indicated that they include handbook changes on endangered species
procedures were a topic briefed at a June 2017 NEPA Chat.
8. FAST Act training: At the time of Audit #4, TxDOT had neither
developed nor delivered training to its staff concerning new
requirements for the FAST Act for environmental review. Since that time
TxDOT indicated a FAST Act briefing was provided by FHWA Headquarters
staff at TxDOT's annual Environmental Conference in September 2017. The
TxDOT also posted a guidance document entitled ``Avoiding Migratory
Birds and Handling Potential Violations'' in the Natural Resource
Management toolkit in January 2017 that provides high level guidance on
FAST Act provisions related to swallow species on at-risk bridges. The
TxDOT's natural resources management (NRM) section reviewed
[[Page 2304]]
this guidance with districts at one of the bimonthly district/NRM
coordination meetings.
Next Steps
The team has worked with TxDOT in developing this draft report. As
the next step, FHWA will publish a notice in the Federal Register to
make the draft audit report available to the public for a 30-day review
comment period [23 U.S.C. 327(g)]. No later than 60 days after the
close of the comment period, FHWA will consider all comments submitted
in finalizing this draft audit report. Once finalized, the final audit
report will be published in the Federal Register.
[FR Doc. 2019-01250 Filed 2-5-19; 8:45 am]
BILLING CODE 4910-22-P