Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report |
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Nicole R. Nason
Federal Highway Administration
13 November 2019
[Federal Register Volume 84, Number 219 (Wednesday, November 13, 2019)]
[Notices]
[Pages 61680-61682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24655]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2019-0009]
Surface Transportation Project Delivery Program; Utah 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 carrying out the responsibilities it has
assumed, in lieu of FHWA. This program mandates annual audits during
each of the first 4 years of State participation to ensure compliance
with program requirements. This notice finalizes the findings of the
second audit report for the Utah Department of Transportation (UDOT).
FOR FURTHER INFORMATION CONTACT: Ms. Deirdre Remley, Office of Project
Development and Environmental Review, (202) 366-0524,
Deirdre.Remley@dot.gov, 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 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 it has assumed, in lieu of FHWA.
The UDOT published its application for NEPA assumption on October 9,
2015, and made it available for public comment for 30 days. After
considering public comments, UDOT submitted its application to FHWA on
December 1, 2015. The application served as the basis for developing a
memorandum of understanding (MOU) that identified the responsibilities
and obligations that UDOT would assume. The FHWA published a notice of
the draft MOU in the Federal Register on November 16, 2016, with a 30-
day comment period to solicit the views of the public and Federal
agencies. After the close of the comment period, FHWA and UDOT
considered comments and proceeded to execute the MOU. Effective January
17, 2017, UDOT assumed FHWA's responsibilities under NEPA, and the
responsibilities for NEPA-related Federal environmental laws described
in the MOU.
Section 327(g) of title 23, U.S.C., requires the Secretary to
conduct annual audits to ensure compliance with the MOU during each of
the first 4 years of State participation and, after the fourth year,
monitor compliance. The FHWA must make the results of each audit
available for public comment. This notice finalizes the findings of the
second audit report for UDOT participation in the NEPA Assignment
program. The FHWA published a draft version of this report in the
Federal Register on April 16, 2019, at 84 FR 15663, and made it
available for public review and comment for 30 days in accordance with
23 U.S.C. 327(g). The FHWA did not receive any responses to the Federal
Register notice during the public comment period for the draft report.
This final version of the audit report incorporates the results of the
draft report unchanged.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Nicole R. Nason,
Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
FHWA Audit of the Utah Department of Transportation
June 10, 2017-June 30, 2018
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) second audit of the Utah Department of
Transportation's (UDOT) National Environmental Policy Act (NEPA) review
responsibilities and obligations that FHWA has assigned and UDOT has
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C.
327, UDOT and FHWA executed a memorandum of understanding (MOU) on
January 17, 2017, to memorialize UDOT's NEPA responsibilities and
liabilities for Federal-aid highway projects and certain other FHWA
approvals for transportation projects in Utah. The FHWA's only NEPA
responsibilities in Utah are oversight and review of how UDOT executes
its NEPA Assignment Program obligations. The section 327 MOU covers
environmental review responsibilities for projects that require the
preparation of environmental assessments (EA), environmental impact
statements (EIS), and non-designated documented categorical exclusions
(DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's
environmental review responsibilities for other categorical exclusions
(CE), commonly known as CE Program Assignment. This audit does not
cover the CE Program Assignment responsibilities and projects.
As part of its review responsibilities under 23 U.S.C. 327, FHWA
formed a team (the ``Audit Team'') in July 2018 to plan and conduct an
audit of NEPA responsibilities UDOT assumed. Prior to the on-site
visit, the Audit Team reviewed UDOT's NEPA project files, UDOT's
response to FHWA's pre-audit information request (PAIR), UDOT's self-
assessment of its NEPA Program, UDOT's NEPA Quality Assurance/Quality
Control (QA/QC) Guidance, its NEPA Assignment Training Plan, and
[[Page 61681]]
its NEPA Assignment Self-Assessment Report. The Audit Team conducted an
on-site review during the week of October 15 to October 18, 2018. The
Audit Team conducted interviews with seven members of UDOT central
office staff, three staff members of UDOT's legal counsel, and two
staff members from the Utah State Historic Preservation Office as part
of this on-site review.
Overall, the Audit Team found that UDOT is successfully adding DCE,
EA, and EIS project review responsibilities to an already successful CE
review program. The UDOT has made efforts to respond to FHWA findings
of the first audit, including improving document management, internal
communication, and use of terms related to Section 4(f). In the first
audit, FHWA Audit Team made the observation that there was inconsistent
understanding of QA/QC procedures among UDOT staff. In the second
audit, FHWA Audit Team identified an observation related to four
instances of UDOT's lack of adherence to its QA/QC procedures. In
addition, although UDOT has improved its document management, the
second audit found that UDOT continues to lack procedures for retaining
draft and deliberative materials for project records.
The Audit Team identified two observations as well as several
successful practices. The Audit Team finds UDOT is carrying out the
responsibilities it has assumed and is in substantial compliance with
the provisions of the MOU.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for Federal-aid highway projects and certain FHWA approvals. Under 23
U.S.C. 327, a State that assumes these Federal responsibilities becomes
solely responsible and solely liable for carrying them out. Effective
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA and
other related environmental laws. Examples of responsibilities UDOT has
assumed in addition to NEPA include section 7 consultation under the
Endangered Species Act and consultation under section 106 of the
National Historic Preservation Act.
Following this second audit, FHWA will conduct two more annual
audits to satisfy provisions of 23 U.S.C. 327(g) and Part 11 of the
MOU. Audits are the primary mechanism through which FHWA may oversee
UDOT's compliance with the MOU and the NEPA Assignment Program
requirements. This includes ensuring compliance with applicable Federal
laws and policies, evaluating UDOT's progress toward achieving the
performance measures identified in MOU Section 10.2, and collecting
information needed for the Secretary's annual report to Congress. The
FHWA must present the results of each audit in a report and make it
available for public comment in the Federal Register.
The Audit Team consisted of NEPA subject matter experts from FHWA
Utah Division, as well as additional FHWA Division staff from
California, the District of Columbia, Georgia, and Alaska. These
experts received training on how to evaluate implementation of the NEPA
Assignment Program.
Scope and Methodology
The Audit Team conducted an examination of UDOT's NEPA project
files, UDOT responses to the PAIR, and UDOT self-assessment. The audit
also included interviews with staff and reviews of UDOT policies,
guidance, and manuals pertaining to NEPA responsibilities. All reviews
focused on objectives related to the six NEPA Assignment Program
elements: Program management; documentation and records management; QA/
QC; legal sufficiency; training; and performance measurement.
The focus of the audit was on UDOT's process and program
implementation. Therefore, while the Audit Team reviewed project files
to evaluate UDOT's NEPA process and procedures, the Audit Team did not
evaluate UDOT's project-specific decisions to determine if they were,
in FHWA's opinion, correct or not. The Audit Team reviewed 23 NEPA
Project files with DCEs, EAs, and EISs, representing all projects with
decision points or other actionable items between June 10, 2017, and
June 30, 2018. The Audit Team also interviewed environmental staff in
UDOT's headquarters office.
The PAIR consisted of 29 questions about specific elements in the
MOU. The Audit Team used UDOT's response to the PAIR to develop
specific follow-up questions for the on-site interviews with UDOT
staff.
The Audit Team conducted seven in-person interviews with UDOT
environmental staff, one in-person interview with two staff members of
the UDOT State Historic Preservation Office, two phone interviews with
UDOT's outside legal counsel, and one interview with legal counsel from
the Utah Attorney General's office. The Audit Team invited UDOT staff,
middle management, and executive management to participate to ensure
the interviews represented a diverse range of staff expertise,
experience, and program responsibility.
Throughout the document reviews and interviews, the Audit Team
verified information on the UDOT NEPA Assignment Program including UDOT
policies, guidance, manuals, and reports. This included the NEPA QA/QC
Guidance, the NEPA Assignment Training Plan, and the NEPA Assignment
Self-Assessment Report.
The Audit Team compared the procedures outlined in UDOT
environmental manuals and policies to the information obtained during
interviews and project file reviews to determine if there were
discrepancies between UDOT's performance and documented procedures. The
Audit Team documented observations under the six NEPA Assignment
Program topic areas. Below are the audit results.
Overall, UDOT has carried out the environmental responsibilities it
assumed through the MOU and the application for the NEPA Assignment
Program, and as such the Audit Team finds UDOT is substantially
compliant with the provisions of the MOU.
Observations and Successful Practices
This section summarizes the Audit Team's observations of UDOT's
NEPA Assignment Program implementation, including successful practices
UDOT may want to continue or expand. Successful practices are positive
results FHWA would like to commend UDOT for developing. These may
include ideas or concepts that UDOT has planned but not yet
implemented. Observations are items the Audit Team would like to draw
UDOT's attention to, which may benefit from revisions to improve
processes, procedures, or outcomes. The UDOT may have already taken
steps to address or improve upon the Audit Team's observations, but at
the time of the audit they appeared to be areas where UDOT could make
improvements. This report addresses all six MOU topic areas as separate
discussions. Under each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for UDOT to implement
actions to improve its 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 #3. The third audit report will include a
summary discussion that describes progress since the last audit.
[[Page 61682]]
Program Management
Successful Practices
The UDOT and FHWA Division office meet on a quarterly basis to keep
staff updated on current topics related to UDOT implementing the NEPA
Assignment Program. During FHWA/UDOT quarterly meetings, the agencies
work to ensure project delivery schedules of non-assigned Federal
actions, such as Federal land transfers and Interstate access change
requests as they relate to projects assigned to UDOT under the MOU.
This meeting is also used to address program-level NEPA Assignment
questions, such as clarifying starting dates of EAs for performance
tracking.
Documentation and Records Management
Successful Practices
ProjectWise is a document database UDOT uses to maintain final
project records for DCEs, EAs, and EISs. Though it was not developed
specifically for producing and maintaining environmental documents,
ProjectWise is accessible to all staff and can store final
environmental documents and technical reports. Since the last audit,
UDOT has started using organizational tools such as subfolders in
ProjectWise to better organize final environmental documents. Once the
environmental review process is complete for a project and the
consultant has submitted final project files, UDOT uses project record
checklists to confirm completeness of ProjectWise files.
Observation #1: Incomplete Retention of Environmental Project Records
The project reviews and interviews determined UDOT retains final
environmental documents such as EAs, Draft EISs, Final EISs, Findings
of No Significant Impact, and Records of Decision, and certain
technical reports in ProjectWise. There is, however, no procedure for
retaining other types of supporting materials that inform NEPA
decisions and other environmental determinations. Other records, such
as meeting summaries documenting coordination with resource agencies
and stakeholders or telephone memos documenting conversations used to
gather substantive information related to environmental decisions, were
generally absent from the ProjectWise files reviewed. Some
environmental staff said they store these types of documents on
personal drives, local servers, or as hardcopy in filing cabinets. This
dispersal and inconsistency of recordkeeping could result in document
loss and difficulty of retrieval, hampering the ability to demonstrate
support for Agency decisions, including compilation of administrative
records in legal challenges.
Quality Assurance/Quality Control
Observation #2: Inconsistent Application of UDOT's QA/QC Procedures
Section 8.2.4 of the MOU requires UDOT to develop a QA/QC process.
Project file reviews revealed that one of the two Draft EISs that UDOT
approved for circulation during the audit period occurred prior to
completion of the required QA/QC process. This approval was not in
accordance with either the QA/QC Plan or the UDOT Manual of
Instruction, which require the Environmental Document QC Form, signed
by the Environmental Program Manager and the Director of Environment,
be provided to the UDOT Signatory Official with the request for
approval of the Draft EIS.
Project file reviews and interviews with UDOT staff revealed an
inconsistent approach to conducting and documenting the QA/QC process
for DCEs. The Audit Team reviewed project files for four DCEs. This
review revealed three different approaches to conducting the required
QA/QC for these projects. Two of these QA/QC reviews used one form, the
third used a different form, and the fourth project had neither a form
nor other documentation in ProjectWise. These inconsistencies in
practice suggest that UDOT's QA/QC procedures may not be effective. The
UDOT may also be unnecessarily increasing its risks when staff ignore
stipulated quality control reviews prior to making NEPA decisions.
Legal Sufficiency
Successful Practices
During the audit period, outside counsel issued two findings of
legal sufficiency per the requirements of 23 CFR 771.125(b) and 23 CFR
774.7(d), copies of which were provided to the Audit Team. Through
interviews, the Audit Team learned UDOT has continued using the legal
sufficiency process it put in place for both Section 326 CE and section
327 NEPA Assignment, which is contracting with outside counsel who have
extensive experience in NEPA, other environmental laws, and Federal
environmental litigation. The UDOT Environmental Managers work directly
with outside counsel. Nevertheless, an Assistant AG assigned to UDOT is
kept apprised of all communications between UDOT staff and outside
counsel and reviews all bills submitted by outside counsel. Outside
counsel have been included as part of the ``project team'' from the
start of projects, and some have reviewed draft notices of intent for
EISs. In addition, the UDOT, an Assistant AG, and outside counsel hold
quarterly meetings at which UDOT staff apprise counsel of upcoming
project reviews and anticipated review deadlines.
Training
Successful Practices
The UDOT has created a training plan that is customized to each
employee's needs and disciplines to provide more focused training
opportunities by specialty. The UDOT provides training on general
environmental topics such as NEPA, and provides opportunities for
subject matter experts to take training related to their disciplines.
Performance Measures
Successful Practices
The UDOT's self-assessment documented the performance management
details of the NEPA Assignment program in Utah, which demonstrates
UDOT's procedures under NEPA assignment have resulted in a 50 percent
reduction in the time to complete DCEs, EAs, and EISs. The average time
to complete environmental documents is 5 months for DCEs, 18 months for
EAs, and 37 months for an EIS. Although these data are based on a
limited number of completed UDOT NEPA reviews since January 2017 (nine
DCEs, two EAs, and one EIS), UDOT's initial timeliness results are
promising. The UDOT will continue to monitor its progress towards
improving timeliness of environmental reviews as part of its
performance under the NEPA Assignment Program.
Finalizing the Report
The FHWA published a draft version of this report in the Federal
Register on April 16, 2019, at 84 FR 15663, and made it available for
public review and comment for 30 days in accordance with 23 U.S.C.
327(g). The FHWA did not receive any responses to the Federal Register
notice during the public comment period for the draft report. This
version of the audit report incorporates the results of the draft
report unchanged.
[FR Doc. 2019-24655 Filed 11-12-19; 8:45 am]
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