Surface Transportation Project Delivery Program; Florida DOT Audit #2 Report |
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Nicole R. Nason
Federal Highway Administration
29 November 2019
[Federal Register Volume 84, Number 230 (Friday, November 29, 2019)]
[Notices]
[Pages 65891-65895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25976]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2019-0012]
Surface Transportation Project Delivery Program; Florida DOT
Audit #2 Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: The Surface Transportation Project Delivery Program allows a
State to assume FHWA's environmental responsibilities for review,
consultation, and compliance for Federal highway projects. When a State
assumes these Federal responsibilities, the State becomes solely
responsible and liable for the responsibilities it has assumed, in lieu
of FHWA. This program mandates annual audits during each of the first 4
years to ensure the State's compliance with program requirements. This
notice makes available the final report of the Florida Department of
Transportation's (FDOT) second audit under the program.
FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of
Project Development and Environmental Review, (407) 867-6402,
marisel.lopez-cruz@dot.gov, Federal Highway Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590, or Mr. David Sett, Office of the Chief Counsel, (404) 562-3676,
david.sett@dot.gov, Federal Highway Administration, U.S. Department of
Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours
are from 8:00 a.m. to 4:30 p.m., E.T., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a
State to assume FHWA's responsibilities for environmental 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 it has assumed, in lieu of FHWA.
Effective December 14, 2016, FDOT assumed FHWA's responsibilities for
environmental review and the responsibilities for reviews under other
Federal environmental requirements.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits to ensure compliance with the memorandum of
understanding during each of the first 4 years of State participation
and, after the fourth year, monitor compliance. The results of each
audit must be made available for public comment. This notice finalizes
the findings of the second audit report on FDOT participation in the
program. A draft version of this report was published in the Federal
Register on August 22, 2019, at 84 FR 43863, and was available for
public review and comments. The FHWA received one response to the
Federal Register Notice during the public comment period for this draft
report, which voiced the American Road and Transportation Builders
Association's support for this program.
[[Page 65892]]
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85; 23
CFR 773.
Issued on: November 21, 2019.
Nicole R. Nason,
Administrator, Federal Highway Administration.
FINAL
Surface Transportation Project Delivery Program
FHWA Audit #2 of the Florida Department of Transportation
May 2017 to April 2018
Executive Summary
This is the second audit of the Florida Department of
Transportation's (FDOT) assumption of National Environmental Policy Act
(NEPA) responsibilities under the Surface Transportation Project
Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the
Federal Highway Administration (FHWA) executed a memorandum of
understanding (MOU) on December 14, 2016, whereby FHWA assigned, and
FDOT assumed, FHWA's NEPA responsibilities and liabilities for Federal-
aid highway projects and other related environmental reviews for
transportation projects in Florida.
The FHWA formed a team in January 2018 to conduct an audit of
FDOT's performance according to the terms of the MOU. The team held
internal meetings to prepare for an on-site visit to the Florida
Division and FDOT offices. Prior to the on-site visit, the team
reviewed FDOT's NEPA project files, FDOT's response to FHWA's pre-audit
information request (PAIR), and FDOT's NEPA Assignment Self-Assessment
Summary Report. The team conducted interviews with FDOT and resource
Agency staff and prepared preliminary audit results from September 24-
28, 2018. The team presented these preliminary observations to FDOT
Office of Environmental Management (OEM) leadership on September 28,
2018.
The FDOT continues to develop, revise, and implement procedures and
processes required to carry out the NEPA Assignment Program. Overall,
the team found that FDOT is committed to delivering a successful NEPA
Program. This report describes numerous successful practices, two
observations, and one non-compliance observation. The FDOT has carried
out the responsibilities it has assumed in keeping with the intent of
the MOU and FDOT's application. Through this report, FHWA is notifying
FDOT of the one non-compliance observation that requires FDOT to take
corrective action. By addressing the observations in this report, FDOT
will continue to assure a successful program. The report concludes with
the status of FHWA's non-compliance observation from the first audit
review (Audit #1), including any FDOT self-imposed corrective actions.
Background
The purpose of the audits performed under the authority of 23
U.S.C. 327 is to assess a State's compliance with the provisions of the
MOU as well as all applicable Federal statutes, regulations, policies,
and guidance. The FHWA's review and oversight obligation entails the
need to collect information to evaluate the success of the NEPA
Assignment Program; to evaluate a State's progress toward achieving its
performance measures as specified in the MOU; and to collect
information for the administration of the NEPA Assignment Program. This
report summarizes the results of the second audit in Florida. Following
this audit, FHWA will conduct two annual audits. This second audit
report includes a summary discussion that describes progress since the
last audit.
Scope and Methodology
The overall scope of this audit review is defined both in statute
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as
an official and careful examination and verification of accounts and
records, especially of financial accounts, by an independent unbiased
body. With regard to accounts or financial records, audits may follow a
prescribed process or methodology and be conducted by ``auditors'' who
have special training in those processes or methods. The FHWA considers
this review to meet the definition of an audit because it is an
unbiased, independent, official, and careful examination and
verification of records and information about FDOT's assumption of
environmental responsibilities.
The team consisted of NEPA subject matter experts from FHWA offices
in Arizona, Nebraska, Ohio, Texas, Georgia, and the District of
Columbia, as well as staff from FHWA's Florida Division. The diverse
composition of the team, as well as the process of developing the
review report and publishing it in the Federal Register, are intended
to make this audit an unbiased official action taken by FHWA.
The team conducted a careful examination of FDOT policies,
guidance, and manuals pertaining to NEPA responsibilities, as well as a
representative sample of FDOT's project files. Other documents, such as
the August 2018 PAIR responses, and FDOT's August 2018 Self-Assessment
Summary Report, informed this review. The team interviewed FDOT staff
and resource agency staff. This review is organized around six NEPA
Assignment Program elements: Program management; documentation and
records management; quality assurance/quality control (QA/QC); legal
sufficiency; performance measurement; and training program. In
addition, the team considered two cross-cutting focus areas: (1)
Consistency between the NEPA documents and planning documents; and (2)
Section 4(f) implementation and documentation.
The team defined the timeframe for highway project environmental
approvals subject to this second audit to be between May 2017 and April
2018, when 898 projects were approved. The team drew both
representative and judgmental samples totaling 105 projects from data
in FDOT's online file system, Statewide Environmental Project Tracker
(SWEPT). In the context of this report, descriptions of Type 1
Categorical Exclusions (CE) and Type 2 CEs are consistent with FDOT's
Project Development and Environment Manual. The FHWA judgmentally
selected all Type 2 CEs (11 projects), all Environmental Assessments
(EA) with Findings of No Significant Impacts (1 project), and all
Environmental Impact Statements (EIS) with Records of Decision (no
projects fell into this category). The FHWA determined the sample size
applying a 90 percent confidence level, a 10 percent margin of error to
the Type 1 CEs, and then separately to the reevaluations. For the Type
1 CEs (64 projects), FHWA applied a judgmental distribution of the
sample based on the percentage of each type of Type 1 CE in the sample
universe. For the re-evaluations (29 projects), FHWA applied a
judgmental distribution of the sample based on the percentage of each
class of action in the sample universe. The FHWA also ensured each
district office was reasonably represented for both Type 1 CEs and re-
evaluations. The team reviewed projects in all of FDOT's seven
districts.
The team submitted a PAIR to FDOT that contained 35 questions
covering all 6 NEPA Assignment Program elements. The FDOT responses to
the PAIR were used to develop specific follow-up questions for the on-
site interviews with FDOT staff.
The team conducted a total of 31 interviews. Interview participants
included staff from three of FDOT's seven district offices that were
not interviewed in the first audit, District 3
[[Page 65893]]
(Chipley), District 4 (Ft. Lauderdale), and District 6 (Miami), and
FDOT Central Office. The team interviewed FDOT environmental staff,
middle management and executive management, regional representatives
from the National Oceanic and Atmospheric Administration (NOAA)--
National Marine Fisheries Service (NMFS), the U.S. Coast Guard (USCG),
the U.S. Fish and Wildlife Service (USFWS), and the State Historic
Preservation Officer (SHPO) from the Florida Department of State,
Division of Historic Resources.
The team compared FDOT policies and procedures (including the
published 2017 Project Development & Environment (PD&E) Manual) to the
information obtained during interviews and project file reviews to
determine if FDOT's performance of its MOU responsibilities are in
accordance with FDOT policies and procedures and Federal requirements.
Individual observations were documented during interviews and reviews
and combined under the six NEPA Assignment Program elements. The audit
results are described below by program element.
Overall Audit Opinion
The team recognizes that FDOT's efforts have been focused on
implementing the requirements of the MOU by: Processing and approving
projects; refining policies, procedures, and guidance documents;
refining the SWEPT tracking system for ``official project files'';
training staff; implementing a QA/QC Plan; and conducting a self-
assessment for monitoring compliance with the assumed responsibilities.
The team found evidence of FDOT's continuing efforts to train staff in
clarifying the roles and responsibilities of FDOT staff, and in
educating staff in an effort to assure compliance with all of the
assigned responsibilities.
During the second audit, the team identified numerous successful
practices, two observations, and one non-compliance observation that
FDOT will need to address through corrective actions. These results
came from a review of FDOT procedures, project file documentation, and
interviews with FDOT and resource agencies.
The FDOT has carried out the responsibilities it has assumed
consistent with the intent of the MOU and FDOT's application. By
addressing the observations in this report, FDOT will continue to
assure a successful program.
Successful Practices and Observations
Successful practices are practices that the team believes are
positive, and encourages FDOT to consider continuing or expanding those
programs in the future. The team identified numerous successful
practices in this report. Observations are items the team would like to
draw FDOT's attention to, which may improve processes, procedures, and/
or outcomes. The team identified two observations in this report.
A non-compliance observation is an instance where the team finds
the State is not in compliance or is deficient with regard to a Federal
regulation, statute, guidance, policy, State procedure, or the MOU.
Non-compliance may also include instances where the State has failed to
secure or maintain adequate personnel and/or financial resources to
carry out the responsibilities they have assumed. The FHWA expects the
State to develop and implement corrective actions to address all non-
compliance observations. The team identified one non-compliance
observation during this second audit.
The team acknowledges that sharing initial results during the site
visit closeout and sharing the draft audit report with FDOT provides
them the opportunity to begin implementing corrective actions to
improve the program. The FHWA will also consider actions taken by FDOT
to address these observations as part of the scope of Audit #3.
The Audit Report addresses all six MOU program elements as separate
discussions.
Program Management
Successful Practices
The team learned that FDOT has maintained its good working
relationship with the two new resource agency staff interviewed--USCG
and NOAA-NMFS. They stated that FDOT coordinated any changes in their
program with the Agency to ensure satisfaction with their regulatory
requirements and were very pleased with the coordination by FDOT at the
district and OEM level. The USCG stated that the Florida Efficient
Transportation Decision Making System facilitates their early
involvement and coordination. The FHWA applauds this practice.
During interviews, FHWA learned of good internal communication
between OEM and the districts regarding SWEPT assistance. This includes
the assistance provided by OEM with the SWEPT hotline and one district
uses a successful single SWEPT point of contact for internal
consistency purposes. In addition, OEM continues to promote training on
environmental and NEPA Assignment topics, and annual PD&E Manual
updates on all topics, as needed.
The FDOT/OEM uses a spreadsheet for internal purposes to track
policy updates and procedures received from FHWA and the actions they
took to address. This practice reflects transparency and awareness by
FDOT on changes to keep current with FHWA requirements under the MOU.
The team learned through interviews, in some instances, that the
District Director and/or Environmental Manager review NEPA documents as
an additional level of QA/QC on projects of interest. This practice
shows local ownership and pride in districts wanting to do the best job
they can do under NEPA Assignment, beyond what OEM may require.
Observation #1: FDOT's identification and documentation of
commitments may result in mitigation required by Federal regulation.
There are several program elements that lead to this observation.
The provisions on ``Commitment'' in the FDOT PD&E Manual (e.g., Section
22.1.1) do not fully implement FHWA requirements to include in the
environmental document all mitigation measures stated as commitments
(23 CFR 771.105(a) and 771.109(b)). The identification of project
impacts and the documentation of commitments must demonstrate that FDOT
has reasonably considered the significance of a project's impacts
within a NEPA approval appropriate to the project's class of action.
The team also found some of the NEPA documents reviewed make a
general commitment regarding intent to obtain a permit, but do not
address the project impacts associated with the permit or the
commitments to avoid, mitigate, or minimize the impacts. Citing the
need for a permit does not fully meet the requirement to document
commitments to address project impacts at the time of a NEPA approval.
In addition, some FDOT project files referenced standard specifications
in lieu of identifying project specific commitments to address project
impacts in the NEPA document, which does not align with FHWA policy.
The FHWA Audit interviews and project file review confirm these
findings (8 projects).
Observation #2: Endangered Species Act (ESA) finding was
unsupported on certain projects.
The team identified 18 project files with a ``no effect'' ESA
finding based solely on a description of the project's
[[Page 65894]]
scope. The FHWA policy and guidance (February 2002 FHWA Management of
the Endangered Species Act (ESA) Environmental Analysis and
Consultation Process guidance memorandum (https://www.environment.fhwa.dot.gov/legislation/other_legislation/natural/laws_esaguide.aspx)) states that the ESA evaluation of impacts is
dependent on the scope of the project, as well as ecological importance
and distribution of the affected species, and intensity of potential
impacts of the project.
The team identified four project files with a ``no effect'' ESA
finding which referenced a Programmatic Biological Opinion between
USFWS and other entities, to which FDOT is not a signatory, including
some that provide species-specific consultation ``keys'' to support a
``no effect'' finding. The team learned from an interview with USFWS
staff that FDOT should not specifically reference such ``keys'' as part
of its informal and/or formal Section 7 ESA processes unless and until
FDOT becomes a party to those programmatic agreements. Also, the team
found that FDOT used ``keys'' as support for project impact decisions
for species which do not have ``keys.'' Finally, FDOT's PD&E Manual
does not include a procedure providing for use of the ``keys'' and does
not address how the ``keys'' should be applied when making ESA
findings.
Since receiving the draft audit report, FDOT reported to FHWA that
it has coordinated with USFWS in order to address this observation,
developed training and updated its guidance addressing this
observation.
Quality Assurance/Quality Control
Successful Practices
From the PAIR and during the interviews, FDOT staff provided
evidence of many new QA/QC tools using directions, forms, and
procedures that will improve documentation and record keeping and may
address many of the projects contained within the non-compliance
observation of the 2017 Audit and FDOT's 2017 Self-Assessment. These
new tools are likely to reduce the risk of future non-compliant
projects through enhanced QA/QC. Examples of these QA/QC improved tools
include a Consultant QC Plan, a Natural Resource Evaluation template,
and a Section 106 Memorandum of Agreement for Adverse Impacts.
The FDOT has continued to update its PD&E Manual to ensure that it
encompasses all new applicable laws, regulations, and guidance. The
FDOT has a dedicated person responsible for coordinating an annual PD&E
Manual update. The FDOT has an intense vetting process for the PD&E
Manual update. The draft changes are shared with subject matter experts
and then undergo peer, district, and management reviews. Resource
agencies may also review changes as needed. The update will include new
direction to document preparers that specifies when additional project
documentation is needed. Many of these additions stem from the 2017
Audit findings and FDOTs 2017 Self-Assessment. The PD&E Manual update
process is likely to eliminate many of the documentation issues found
by FHWA in the 2017 and 2018 audits.
Legal Sufficiency
The team's review of FDOT's legal sufficiency program found that
FDOT has structured the legal sufficiency process for the NEPA
Assignment Program by having in-house counsel, as well as outside
counsel with NEPA experience, available. The team appreciates that FDOT
has chosen to house its Special Counsel for Environmental Affairs and
two staff attorneys under the direct supervision of the FDOT Deputy
General Counsel.
While no legal sufficiency determinations have been made by FDOT
during the audit time frame, FDOT's Office of General Counsel (OGC)
participates in monthly coordination meetings and topic-specific
meetings with OEM and the districts. The OGC also reviews other
documents when requested for legal input. There is close collaboration
throughout the process amongst and between OGC, OEM, and the district
attorneys.
Training Program
Through interviews with the OEM leadership the team learned that
rather than preparing an annual training plan, OEM has a training
program that is constantly being assessed, revised, and updated as an
on-line program. The program includes training on a wide variety of
subjects, and training is delivered both face-to-face and virtually.
The FDOT staff said that training is a common topic of discussion of
leadership as well as staff, including frequently asking about needed
training.
Successful Practices
The team learned through interviews FDOT closely tracks training
rosters and registrations that evidence a broad number of training
events to a high number of people. Over the past 12-14 months, FDOT
trained over 2,000 people through 36 courses.
The team learned that OEM is always looking at the training program
to find ways to augment it. For example, FDOT is now working with the
SHPO staff to develop topic-specific Webinars on how information for
the SHPO is to be organized and projects documented. The FDOT also has
worked with NOAA-NMFS on their concerns in developing training. These
trainings, along with a new short Web-based training module on
producing environmental documents, are waiting to be uploaded to the
OEM website.
The OEM leadership indicated in an interview that they have a
number of staff that are new to FDOT, and, in general, have less than 5
years of experience. These new staff members were mentored by seasoned
staff to serve as a resource to help understand FDOT's procedures and
the key issues in NEPA. By monitoring the performance measures on
compliance, OEM leadership indicated the mentoring is a successful
practice.
Performance Measures
The FDOT Self-Assessment Summary Report contained the results of
FDOT's second report of its assessment of the NEPA Assignment Program
and FDOT procedures compliance. This assessment, for the period between
May 1, 2017, and April 30, 2018, entailed review of project files as
well as results from a survey of Agency satisfaction. The report also
included a discussion of FDOT's progress in meeting the performance
measures. During the report period, there were no qualifying projects
for Legal Sufficiency, NEPA Issue Resolution, and NEPA Approval Time
Savings measures.
Successful Practices
The FDOT has 14 performance metrics to monitor and assess
accomplishment of the 4 performance measures in the MOU, Section
10.2.1. The FDOT is actively monitoring these performance measures.
Data for the performance metrics are generated and reported quarterly
and annually in SWEPT. If FDOT identifies indicators that could affect
its performance measures, it can promptly take actions to address the
issues.
The OEM leadership stated in interviews that the FDOT timeliness
measure is used both as a way to streamline the review process and to
understand it better. For example, OEM leadership told the team that
FDOT has changed some of the time reporting measures for environmental
review staff. Project review duration includes a need for every project
to go through the electronic review comments (ERC)
[[Page 65895]]
process first and then a formal review and approval period in SWEPT.
When in SWEPT, there is a review process with a number of days
assigned. The FDOT realized for certain projects, ones that have minor
impacts, no ERC review was necessary which further streamlined the
project review process. The OEM leadership also stated in an interview
that the 30-day review period is being constantly monitored in order to
ensure if a modification to procedure is needed, it can be made. The
OEM leadership also stated that during the first two rating periods no
modification to the review period has been needed.
Documentation and Records Management
The FDOT continues to use SWEPT as the NEPA file of record for
federally funded projects. The FDOT has implemented several process
improvements within SWEPT. Communication during the second audit cycle
allowed staff to clarify many project level observations within the
Audit process. The FDOT and FHWA have committed to continue
communications to resolve issues identified within the audit process.
Non-Compliance Observation #1: Some FDOT project files contain
insufficient documentation to support the environmental analysis or
decision.
Both the MOU (subpart 10.2.1) and FDOT's PD&E Manual specify that
documentation is needed to support compliance. The SWEPT has been
identified as FDOT's project file of record, in which FDOT maintains
approved reevaluations, CEs, EAs, and EISs. The team reviewed 105
projects for the 2018 Audit #2 that constituted a statistically valid
sample. As part of the initial project file review, the team observed
that 54 of the 105 project files reviewed lacked documentation in SWEPT
to support the environmental analysis or the basis for an FDOT
decision. In some cases, there were multiple observations for one
project.
For example, one project file did not contain documentation of
coordination with FHWA or USCG for the required (23 CFR 650.805 and 23
CFR 650.807) navigability assessment in order to support a permit
determination. Additional examples, where the team observed
documentation deficiencies included commitments, planning consistency,
and mitigation. The team also observed that some commitments to address
project impacts through mitigation, avoidance, and minimization were
not documented at the time of NEPA approval. When the environmental
document lacks commitments for important project impacts, the project
record does not reflect a complete consideration of the significance of
a project's impacts. Another consequence is that some commitments are
added after the NEPA decision, are not tracked, or get dropped, which
is not in accordance with Federal regulations. (23 CFR 771.105(a), 23
CFR 771.105(d), and 23 CFR 771.109(d)). Finally, project files were
observed that did not include the Project Commitment Record for
documenting commitments as required by the 2017 PD&E Manual.
The team's comments on these projects were shared with FDOT for its
consideration and the team received responses from FDOT. The FHWA and
FDOT have productively worked together to successfully resolve
insufficient documentation for 23 projects and uploaded existing
documentation in SWEPT for 18 projects. The FDOT indicated that it has
implemented or committed to implementing process improvements to
address the deficiencies. The FDOT is expected to continue
implementation of corrective actions that would address these issues.
Update from 2017 Audit #1 Non-Compliance Observation #1: Some FDOT
project files contain insufficient documentation to support the
environmental analysis or decision.
The FHWA reported a non-compliance observation related to some FDOT
project files that lacked documentation to support the environmental
analysis or decision as part of Audit #1. This non-compliance
observation is based on a review that resulted in observations on 47
projects, several of which had deficient documentation for more than
one issue. The FDOT and FHWA have met over the past year and have
productively worked together to resolve documentation issues from the
previous audit. The FHWA shared comments on these projects with FDOT
and they provided written responses. Based on these responses, FHWA and
FDOT were able to successfully address many documentation issues
through resolving a project observation (22 projects), FDOT uploading
missing documentation in SWEPT (5 projects), or FDOT implementing or
committed to implementing process improvements to address procedural
deficiencies (39 projects). For example, FDOT updated its electronic
Type 1 CE form in SWEPT to require certain supporting documentation be
uploaded, which was confirmed through the Audit #2 FDOT staff
interviews and project file reviews. The FDOT also included a direct
link to the State Transportation Improvement Plan or Transportation
Improvement Plan to ensure adequate documentation of planning
consistency for all classes of action. The FDOT has made considerable
strides to document planning consistency at NEPA approval. However,
documentation of consistency with the metropolitan long-range
transportation plans was missing for several projects and for a variety
of classes of action. In addition, the 2018 FDOT Self-Assessment
Summary states that FDOT initiated and completed a number of SWEPT
system and programmatic enhancements to address the missing
documentation noted during Audit #1. The FDOT is expected to continue
implementation of corrective actions that would address these issues.
Finalizing This Report
The FHWA received one response to the Federal Register Notice
during the public comment period for this draft report, which voiced
the American Road and Transportation Builders Association's support for
this program and did not relate specifically to Audit #2. This report
is a finalized version of the draft report without substantive changes.
[FR Doc. 2019-25976 Filed 11-27-19; 8:45 am]
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