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Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report Publication: Federal Register Agency: Federal Highway Administration Byline: Shailen P. Bhatt Date: 13 September 2023 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Notices]
[Pages 62870-62873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19705]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2021-0010]
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 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. The 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 fourth and
final audit report for the Utah Department of Transportation (UDOT).
FOR FURTHER INFORMATION CONTACT: Mr. David Cohen, Office of Project
Development and Environmental Review, (202) 366-8531,
David.Cohen@dot.gov, or Ms. Diane Mobley, Office of the Chief Counsel,
(202) 366-1366, Diane.Mobley@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, codified at 23
United States Code (U.S.C.) 327, commonly known as the NEPA Assignment
Program, allows a State to assume FHWA's environmental responsibilities
for review, consultation, and compliance for Federal highway projects.
When a State assumes these Federal responsibilities, the State becomes
solely liable for carrying out the responsibilities in lieu of FHWA.
The UDOT published its application for NEPA assumption on October 9,
2015, and made it available for public comment for 30 days. After
considering public comments, UDOT submitted its application to FHWA on
December 1, 2015. The application served as the basis for developing a
memorandum of understanding (MOU) that identifies the responsibilities
and obligations that UDOT would assume. The FHWA published a notice of
the draft MOU in the Federal Register on November 16, 2016 (81 FR
80710), with a 30-day comment period to solicit the views of the public
and Federal agencies. After the end of the comment period, FHWA and
UDOT considered comments and proceeded to execute the MOU. Effective
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA, and
the responsibilities for other Federal environmental laws described in
the MOU. On May 26, 2022, FHWA and UDOT renewed the MOU for another 5-
year term.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits during each of the first 4 years of State
participation. After the fourth year, the Secretary shall monitor the
State's compliance with the written agreement. The FHWA must make the
results of each audit available for public comment. This notice
finalizes the findings of the fourth audit report for UDOT
participation in the NEPA Assignment Program. The FHWA published a
draft version of this report in the Federal Register on June 23, 2022
(87 FR 37547), and made it available for public review and comment for
30 days in accordance with 23 U.S.C. 327(g). The FHWA received three
responses to the Federal Register notice during the public comment
period for the draft report, and FHWA responds to these comments in the
final report, pursuant to 23 U.S.C. 327(g)(2). The FHWA also determined
that the comments required no changes to the draft audit report. This
notice finalizes the fourth and final NEPA Assignment audit report in
Utah.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program, FHWA Audit of the Utah
Department of Transportation--Final Report, July 1, 2019-June 30, 2020
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) fourth and final audit of the Utah Department
of Transportation's (UDOT) National Environmental Policy Act (NEPA)
review responsibilities and obligations that FHWA assigned and UDOT
assumed pursuant to 23 United State 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. Pursuant to 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 obligations for
Federal-aid highway projects and certain other FHWA actions in Utah.
The FHWA and UDOT recently renewed the MOU on May 26, 2022, for another
5-year term. 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. The scope of this audit did not include the
CE Program Assignment responsibilities and projects.
As part of FHWA's review responsibilities under 23 U.S.C. 327, FHWA
formed a team (the ``Audit Team'') in August 2020 to plan and conduct
an audit of NEPA responsibilities UDOT assumed. Due to COVID-19-related
travel restrictions, the Audit Team conducted a virtual audit during
the period from November 9, 2020, to December 2, 2020. Prior to the
virtual audit, the Audit Team reviewed UDOT's NEPA project files,
UDOT's response to FHWA's pre-audit information request (PAIR), UDOT's
NEPA Assignment Self-Assessment Report, UDOT's NEPA Quality Assurance/
Quality Control (QA/QC)
[[Page 62871]]
Guidance, and UDOT's NEPA Assignment Training Plan. The Audit Team
conducted videoconference interviews with four members of UDOT central
office staff, six of UDOT's legal counsel (one current Assistant
Attorney General assigned to UDOT, one former Assistant Attorney
General assigned to UDOT, and four outside counsel), three staff
members from the U.S Environmental Protection Agency, and two staff
members from the U.S. Fish and Wildlife Service (FWS) as part of the
virtual audit.
Overall, the Audit Team found that UDOT continues to successfully
carry out its DCE, EA, and EIS project review responsibilities. The
UDOT has also made efforts to respond to the FHWA findings from the
third audit, including improving document management and QA/QC
procedures. In the third audit, the Audit Team found that UDOT issued
an environmental document without a final legal sufficiency finding,
and had observed that there were ways UDOT could improve their
training.
In this fourth and final audit, the Audit Team identified four
observations and two successful practices. The Audit Team finds UDOT is
carrying out the responsibilities it has assumed, and they are in
substantial compliance with the provisions of the MOU. This report also
concludes with the status of FHWA's non-compliance observation from the
third audit review, including any UDOT self-imposed corrective actions.
After the fourth year of UDOT's participation in the program, FHWA will
continue to monitor UDOT's compliance with the terms of this MOU, in
accordance with 23 U.S.C. 327(h).
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 other FHWA actions. 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 Federal 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.
Audits are the primary mechanism through which FHWA oversees UDOT's
compliance with the MOU and the NEPA Assignment Program requirements.
This includes ensuring compliance with the 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. Through this fourth and final
audit, FHWA will satisfy provisions of 23 U.S.C. 327(g) and Part 11 of
the MOU. This report summarizes the results of the fourth and final
audit in Utah, and it includes a summary discussion that describes
progress since the last audit.
Scope and Methodology
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 UDOT assumes,
subject to the terms and conditions set forth in 23 U.S.C. 327 and this
MOU, all of the U.S. Department of Transportation Secretary's
responsibilities for compliance with the NEPA, 42 U.S.C. 4321 et seq.
with respect to the highway projects specified under subpart 3.3. This
assignment includes statutory provisions, regulations, policies, and
guidance related to the implementation of NEPA for highway projects
such as 23 U.S.C. 139, 40 CFR parts 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 UDOT to maintaining documented
compliance with requirements of all applicable statutes and regulations
as well as the provisions in the MOU.
The Audit Team consisted of NEPA subject matter experts from the
FHWA Utah Division, FHWA Resource Center, the Volpe Center, FHWA
Headquarters, and FHWA Office of the Chief Counsel. These experts
received training on how to evaluate implementation of the NEPA
Assignment Program.
The Audit Team conducted an examination of UDOT's NEPA project
files, UDOT's responses to the PAIR, and UDOT's 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. In
particular, the Audit Team reviewed UDOT's process and procedures for
conducting environmental reevaluations.
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, appropriate or not. The Audit Team reviewed 20 NEPA
Project files with DCEs, EAs, EISs, and reevaluations, representing all
projects with decision points or other actionable items between July 1,
2019, and June 30, 2020. The Audit Team also interviewed environmental
staff in UDOT's headquarters office.
The PAIR consisted of 25 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 UDOT staff. The Audit Team
conducted four interviews with UDOT environmental staff, one virtual
interview with staff from the U.S. Environmental Protection Agency
(EPA), one interview with staff from the FWS, two interviews with
UDOT's outside legal counsel, and one interview with legal counsel from
the Utah Attorney General's Office. All interviews were conducted as
videoconferences.
Throughout the document reviews and interviews, the Audit Team
verified information regarding 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 and arrived at the following audit opinion.
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
[[Page 62872]]
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 that 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. Within each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for UDOT to implement
actions to improve their NEPA Assignment Program. The FHWA and UDOT
will continue to work together to monitor UDOT's compliance with the
terms of this MOU, as required by 23 U.S.C. 327(h).
Program Management
Successful Practice #1
The Audit Team identified one of UDOT's project websites which
included detailed information about the proposed noise impact analyses,
traffic noise abatement measures, and the proposed relocation of the
existing noise barriers as a successful practice. The noise impact and
abatement information presented to the public was comprehensive and
easy to understand.
Observation #1
Section 5.1.4 of UDOT's NEPA Assignment MOU outlines an interagency
planning and coordination protocol to make sure that all programmatic
agreements reflect UDOT's new roles and responsibilities under NEPA
Assignment. The Audit Team observed that UDOT's Section 106
programmatic agreements with four Tribal governments predate NEPA
Assignment, and they do not reflect UDOT's assigned roles and
responsibilities. We recommend that UDOT reach out to these Tribal
governments and implement the interagency planning and coordination
provisions of Section 5.1.4, which may include amending the
programmatic agreements or obtaining a ``written consent.'' The
recommended path forward would enable UDOT to clarify its assigned
roles and responsibilities during Section 106 consultations. The
overall consistency across all five of the Section 106 programmatic
agreements is important to clarify the organizational roles and
responsibilities between UDOT and FHWA for both Section 106 and
Government-to-Government consultations, resulting in more predictable
lines of communication, more productive and meaningful interagency
dialogue with the Tribes, and a positive reinforcement of FHWA's
retained Tribal trust responsibilities.
Observation #2
In the course of reviewing the most recent Manual of Instruction
(MOI), the Audit Team identified several areas that do not address the
most recent requirements and guidelines associated with the Fixing
America's Surface Transportation Act; FHWA's 2019 Reevaluation Q&A
Guidance; Moving Ahead for Progress in the 21st Century Act Section
1319 interim guidance relating to the appropriate use of the combined
Final Environment Impact Statement/Record of Decision documents; FHWA's
2011 Environmental Justice and NEPA guidance for identifying,
disclosing and mitigating impacts to environmental justice communities;
or FHWA's October 2018 memorandum addressing activities that may be
completed prior to issuance of a Notice of Intent to prepare an EIS.
During interviews, UDOT informed us that they make regular updates to
the MOI, as needed. However, these examples illustrate that the MOI
would benefit from a regularly scheduled, comprehensive review to
ensure that it reflects current national policy and guidance.
Documentation and Records Management
Successful Practice #1
During this audit period, the Audit Team reviewed reevaluations for
two EIS projects that appeared to use the same format. While it is not
explicitly required by the MOI, UDOT did appear to use a standard
procedure for these reevaluations. For example, both included a Summary
of Re-evaluation Analysis Table that functions like an environmental
checklist. This table creates a standard process for looking at changes
in both the magnitude of project impacts, as well as project scope
modifications.
Observation #1
The team reviewed multiple reevaluations for the West Davis
Corridor Project. Each individual reevaluation addressed the changes on
that portion of the larger project. The FHWA suggests UDOT also add
language that summarizes the changes across all the reevaluations, such
as providing a listing of all the related reevaluations and a statement
correlating them, to clearly demonstrate and document that UDOT has
considered impacts across the entirety of the project.
Quality Assurance/Quality Control
The UDOT has made improvements to its QA/QC procedures. These
improvements are discussed in the Legal Sufficiency section of this
report.
Legal Sufficiency
During the audit period outside counsel issued three 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. These
include legal sufficiency reviews of one EIS and two Section 4(f)
evaluations. The UDOT has continued using the legal sufficiency process
it put in place for both Section 326 CE and Section 327 NEPA
Assignment; that is, contracting with outside counsel who have
extensive experience in NEPA, other environmental laws, and Federal
environmental litigation. Since the signing of the initial FHWA-UDOT
MOU for the NEPA Assignment Program in January 2017, no lawsuits have
been filed against NEPA-assigned projects in the State of Utah.
Training
The UDOT has continued to develop an annual training plan, in
compliance with Section 12.2 of the MOU.
Performance Measures
The UDOT has continued to assess its performance as required under
the terms of the MOU. The UDOT's annual self-assessment report
indicates that they are meeting their performance targets. The process
of, and results from, the State's self-assessment have been an
important factor in the improvement of UDOT's NEPA Program. Observation
#1 Section 10.2.1.C.i of the MOU requires UDOT to assess change in and
ensure effective communication among UDOT, Federal, and State resource
agencies resulting from assumption of responsibilities under the MOU.
In interviews, resource agency staff at the EPA and the FWS stated that
overall they have a good working relationship with UDOT staff. Some FWS
staff indicated that they could utilize additional information on the
differences between the 23 U.S.C. 326 (CE Assignment) program and the
23 U.S.C. 327 (NEPA Assignment) program. The Audit Team also learned
that neither FWS nor EPA had responded to
[[Page 62873]]
UDOT's annual resource agency survey. These are examples of where
UDOT's program may benefit from more consistent, program-level
discussions with resource agencies to ensure that all parties
understand their respective roles and responsibilities, as well as the
provisions of the 326 and 327 programs. Stronger managerial-level
communications with the resource agencies may increase their
understanding of the importance of the survey and improve the response
rate.
No Non-Compliance Observations in Audit #4
Non-compliance observations are instances where the team found UDOT
was out of compliance or deficient in proper implementation of a
Federal regulation, statute, guidance, policy, the terms of the MOU, or
UDOT's own procedures for compliance with the NEPA process. Such
observations may also include instances where UDOT has failed to
maintain technical competency, adequate personnel, and/or financial
resources to carry out the assumed responsibilities. Other
noncompliance 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 UDOT to develop and
implement corrective actions to address all non-compliance
observations. The Audit Team did not identify any non-compliance
observations during this audit.
Follow-up on the Prior Non-Compliance Observations From Audit #3
The FHWA had reported a noncompliance observation relating to UDOT
not complying with the State's environmental review procedures as a
part of Audit #3. 2019 Audit #3--Issuing a Document Without Final Legal
Sufficiency Finding As noted earlier, in response to the 2019 audit
finding that legal sufficiency review documentation was not provided
prior to approval of a project FEIS, UDOT and outside counsel
implemented a more formalized system by instituting a Legal Sufficiency
Review Form to be completed by UDOT's outside counsel. The form would
ensure a record that the legal sufficiency review occurred. The Audit
Team confirmed that UDOT developed and implemented the form for the
legal sufficiency reviews during this audit period.
Response to Public Comments on the Draft Report and the Final Report
The FHWA received and responded to three comments on the draft
audit report, pursuant to 23 U.S.C. 327(g)(2). The American Road &
Transportation Builders Association (ARTBA) commented that they are in
general support of UDOT's implementation of the NEPA Assignment Program
to accelerate Federal-aid highway program and project delivery in Utah.
The FHWA appreciates ARTBA's input. A private citizen commented that he
is not supportive of UDOT's implementation of the NEPA Assignment
Program, due to his experience with the Northern Corridor Highway
Project in the Bureau of Land Management's (BLM) Red Cliffs National
Conservation Area. The Audit Team, in conjunction with the FHWA Utah
Division Office, independently reviewed and confirmed that the Federal
action associated with this concern was the BLM's Federal land
management decision, including BLM's NEPA approval for that Federal
land management decision. It was not a NEPA approval by UDOT under the
NEPA Assignment Program. Finally, an anonymous commenter raised
concerns about UDOT's traffic noise abatement procedures as they apply
to local public agencies. Based on FHWA's traffic noise abatement
regulations in 23 CFR 772.7(b), UDOT has developed noise policies in
conformance with 23 CFR part 772, and FHWA Utah Division Office
approved them. The UDOT is required to apply these policies uniformly
and consistently statewide, including the uniform and consistent
application to the NEPA reviews of the Federal-aid highway projects
administered by the local public agencies in Utah.
After reviewing the public comments, and looking into the concerns
raised in the comments, FHWA determined that there is no need to revise
the draft audit report. The FHWA may also consider the public comments
in scoping the future NEPA Assignment monitoring reviews in Utah.
Therefore, FHWA is finalizing UDOT's fourth and final NEPA
Assignment audit report with this Federal Register notice.
[FR Doc. 2023-19705 Filed 9-12-23; 8:45 am]
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