Surface Transportation Project Delivery Pilot Program; Caltrans Audit Report |
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Topics: Federal Highway Administration
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Victor M. Mendez
January 28, 2011
[Federal Register: January 28, 2011 (Volume 76, Number 19)]
[Notices]
[Page 5237-5243]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja11-113]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2010-0151]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final report.
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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established
the Surface Transportation Project Delivery Pilot Program, codified at
23 U.S.C. 327. To ensure compliance by each State participating in the
Pilot Program, 23 U.S.C. 327(g) mandates semiannual audits during each
of the first 2 years of State participation. This final report presents
the findings from the fifth FHWA audit of the California Department of
Transportation (Caltrans) under the pilot program.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, (202) 366-2034,
Ruth.Rentch@dot.gov, or Mr. Michael Harkins, Office of the Chief
Counsel, (202) 366-4928, Michael.Harkins@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Office hours are from 8 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 Office
of the Federal Register's home page at http://www.archives.gov and the
Government Printing Office's Web site at http://www.access.gpo.gov.
Background
Section 6005 of SAFETEA-LU (codified at 23 U.S.C. 327) established
a pilot program to allow up to five States to assume the Secretary of
Transportation's responsibilities for environmental review,
consultation, or other actions under any Federal environmental law
pertaining to the review or approval of highway projects. In order to
be selected for the pilot program, a State must submit an application
to the Secretary.
On June 29, 2007, Caltrans and FHWA entered into a Memorandum of
Understanding (MOU) that established the assignments to and assumptions
of responsibility to Caltrans. Under the MOU, Caltrans assumed the
majority of FHWA's responsibilities under the National Environmental
Policy Act, as well as the FHWA's responsibilities under other Federal
environmental laws for most highway projects in California.
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) requires the Secretary to conduct semiannual
audits during each of the first 2 years of State participation; and
annual audits during each subsequent year of State participation. The
results of each audit must be presented in the form of an audit report
and be made available for public comment. The FHWA solicited comments
on the fifth audit report in a Federal Register Notice published on
December 3, 2010, at 75 FR 75532. The FHWA received no comments. This
notice provides the final draft of the fifth FHWA audit report for
Caltrans under the pilot program.
Authority: Section 6005 of Pub. L. 109-59; 23 U.S.C. 315 and
327; 49 CFR 1.48.
Issued on: January 20, 2011.
Victor M. Mendez,
Administrator.
Surface Transportation Project Delivery Pilot Program
Federal Highway Administration Audit of California Department of
Transportation
July 26-30, 2010
Overall Audit Opinion
Based on the information reviewed, it is the Federal Highway
Administration (FHWA) audit team's opinion that as of July 30, 2010,
the California Department of Transportation (Caltrans) continued to
make progress toward meeting all responsibilities assumed under the
Surface Transportation Project Delivery Pilot Program (Pilot
Program), as specified in the Memorandum of Understanding (MOU) \1\
with FHWA and in Caltrans' Application for Assumption (Application).
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\1\ Caltrans MOU between FHWA and Caltrans available at: http://
environment.fhwa.dot.gov/strmlng/safe_cdot_pilot.asp.
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The FHWA commends Caltrans for its implementation of corrective
actions in response to previous FHWA audit report findings. The FHWA
also observed that Caltrans continued to identify and implement on a
statewide Pilot Program basis best practices in use at individual
Caltrans Districts (Districts).
With the completion of FHWA's fifth audit, Caltrans has now
operated under the Pilot Program for 3 years. In compliance with the
time specifications for the required audits, FHWA completed four
semiannual audits in the first 2 years of State participation and
has begun the annual audit cycle, beginning with this audit, which
was completed July 30, 2010. Collectively, the FHWA audits have
included on-site audits to 9 of the 12 Districts and to the Caltrans
Regional Offices supporting the remaining 3 Districts. The audit
team continues to identify significant differences across the
Districts in terms of implementing Pilot Program policies,
procedures, and responsibilities. Examples of such differences
include: Resource availability and allocation; methods of
implementation; methods of process evaluation and improvement; and
levels of progress in meeting all assumed responsibilities. It is
the audit team's opinion that the highly decentralized nature of
operations across Districts continues to be a major contributing
factor to the variations observed in the Pilot Program. As a result
of this organizational structure, clear, consistent, and ongoing
oversight by Caltrans Headquarters (HQ) over Districts'
implementation and operation of the Pilot Program responsibilities
is necessary. A robust oversight program will help foster the
exchange of information and the sharing of best practices and
resources between Districts and will put the entire organization in
a better position to more fully implement all assumed
responsibilities and to meet all Pilot Program commitments.
Due to the multiyear timeframes associated with more complex and
controversial projects, the full lifecycle of the environmental
review aspect of project
[[Page 5238]]
development (proceeding from initiation of environmental studies and
concluding with the issuance of a Record of Decision or equivalent
decision document) has yet to be realized within the Pilot Program
to date. Caltrans continues to gain experience in understanding the
resource requirements and processes necessary to administer its
Program. It is the audit team's opinion that Caltrans needs to
maintain this continuous process improvement to refine its
approaches and use of resources to meet all Pilot Program
commitments, especially given the increasing resource demands
associated with managing ever-more complex and controversial
projects under the Pilot Program.
Caltrans staff and management continue to request feedback from
the FHWA audit team regarding program successes, best practices, and
areas in need of improvement. By addressing all findings in this
report, Caltrans will continue to move toward full compliance with
all assumed responsibilities and Pilot Program commitments.
As of the conclusion of the fifth FHWA audit, Caltrans has
participated in the Pilot Program for 3 years. It is FHWA's opinion
that Caltrans has continued to improve its processes and procedures
and has benefited from participation in the Pilot Program. However,
it also is FHWA's opinion that while Caltrans participation in the
Pilot Program has been successful thus far, it is still functioning
in a development context and has yet to reach full maturity. Ongoing
repeat findings and program areas still in the process of being
developed or improved contributed to this opinion.
Requirement for Transition Plan
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) Section 6005(a) established the
Pilot Program, codified at 23 U.S.C. 327. Under the provisions of 23
U.S.C. 327(i)(1), as enacted in SAFETEA-LU, ``the program shall
terminate on the date that is 6 years after the date of enactment of
this section'' which will be August 10, 2011. Additionally, the MOU
between FHWA and Caltrans contains a provision designed to implement
23 U.S.C. 327(i), as enacted by SAFETEA-LU. Specifically, the
provision provides that Caltrans and FHWA must jointly ``develop a
plan to transition the responsibilities that Caltrans has assumed
back to the FHWA so as to minimize disruption to the project,
minimize confusion to the public, minimize burdens to other affected
Federal, State, and local agencies, and, ensure, to the maximum
extent possible, Caltrans will be able to complete by August 10,
2011, all anticipated environmental approvals.'' The MOU further
provides that the transition plan must be completed and approved by
both Caltrans and FHWA no later than March 10, 2011. In the section
2203(c) of the Surface Transportation Extension Act of 2010, Part
II, Public Law 111-322, Congress modified 23 U.S.C. 327(i)(1) by
extending the program termination date to 7 years after the date of
enactment of SAFETEA-LU. As a result of this amendment, the program
termination date is now August 10, 2012. The MOU will need to be
amended to take this new termination date into account by delaying
actions on the development of the transition plan by one year.
Effective Practices
The FHWA audit team observed the following effective practices
during the fifth audit:
1. Caltrans HQ has sought out, shared, and implemented (or is
implementing) best practices in use at the District level to use on
a statewide basis. Examples include:
(a) Use of a standard form to document Class of Action
determination;
(b) Use of the File Maker Pro environmental database system to
track projects and milestones; and
(c) Creation of a Section 4(f) point of contact in each District
to serve as a technical resource for District staff.
2. Use of monthly newsletters and e-mails from HQ environmental
coordinators to inform District environmental staff of key issues,
timely topics, and changes in practices.
3. The Sacramento Legal Office permanently assumed
responsibility for all environmental law issues in two Districts
where staff turnover resulted in limited expertise to support legal
sufficiency reviews. As the number of legal sufficiency reviews
performed under the Pilot Program has not been significant,
concentrating reviews amongst a key group of attorneys should assist
with a consistent level of review of environmental documents and the
development of expertise under the Pilot Program.
4. Development of an on-line training course on Section 4(f)
determinations that is nearing completion.
5. Expansion of the scope of the Caltrans self-assessment
process to include review of Pilot Program areas identified as
potential weaknesses by HQ Environmental Coordinators.
6. A variety of approaches are being used by individual
Districts to capture, track, and ensure that environmental
commitments identified in environmental documents are being met.
Identified District specific approaches used to accomplish this
include:
(a) Training environmental staff in environmental commitments
tracking;
(b) Dedicating resources to track commitments, ensuring that the
commitments are circulated at key stages of the project cycle, and
checking that the commitments have been met at the completion of a
project;
(c) Using dedicated formats to capture, describe, and ensure
that environmental commitments are transferred and incorporated into
contract documents;
(d) Requiring environmental awareness training for construction
personnel prior to the start of construction; and
(e) Training appropriate staff on incorporation of environmental
commitments into plan, specification, and estimate packages.
Background
The Pilot Program allows the Secretary of Transportation
(Secretary) to assign, and the State to assume, the Secretary's
responsibilities under the National Environmental Policy Act (NEPA)
for one or more highway projects. Upon assigning NEPA
responsibilities, the Secretary may further assign to the State all
or part of the Secretary's responsibilities for environmental
review, consultation, or other action required under any Federal
environmental law pertaining to the review of a specific highway
project. When a State assumes the Secretary's responsibilities under
this program, the State becomes solely responsible and is liable for
carrying out the responsibilities it has assumed, in lieu of the
FHWA.
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) mandates that FHWA, on behalf of the
Secretary, conduct semiannual audits during each of the first 2
years of State participation; and annual audits during each
subsequent year of State participation. The focus of the FHWA audit
process is four-fold: (1) To assess a Pilot State's compliance with
the required MOU and applicable Federal laws and policies; (2) to
collect information needed to evaluate the success of the Pilot
Program; (3) to evaluate Pilot State progress in meeting its
performance measures; and (4) to collect information for use in the
Secretary's annual Report to Congress on the administration of the
Pilot Program. Additionally, 23 U.S.C. 327(g) requires FHWA to
present the results of each audit in the form of an audit report
published in the Federal Register. This audit report must be made
available for public comment, and FHWA must respond to public
comments received no later than 60 days after the date on which the
period for public comment closes.
Caltrans published its draft Application to participate in the
Pilot Program on March 14, 2007, and made it available for public
comment for 30 days. After considering public comments, Caltrans
submitted its Application to FHWA on May 21, 2007, and FHWA, after
soliciting the views of Federal agencies, reviewed and approved the
Application. Then on June 29, 2007, Caltrans and FHWA entered into
an MOU that established the assignments to and assumptions of
responsibility to Caltrans, which became effective July 1, 2007.
Under the MOU, Caltrans assumed the majority of FHWA's
responsibilities under NEPA, as well as FHWA's responsibilities
under other Federal environmental laws for most highway projects in
California.
Scope of the Audit
This is the fifth FHWA audit of Caltrans participation in the
Pilot Program. The on-site portion of the audit was conducted in
California from July 26 through July 30, 2010. As required in
SAFETEA-LU, each FHWA audit must assess compliance with the roles
and responsibilities assumed by the Pilot State in the MOU. The
audit also includes recommendations to assist Caltrans in successful
participation in the Pilot Program.
The audit primarily focused on assessing compliance with assumed
responsibilities. Key Pilot Program areas evaluated during this
audit included:
Section 4(f) process determination and documentation;
[[Page 5239]]
The reevaluation process;
The impact of furloughs and loss of staff;
Project files;
Resource agency consultation and coordination;
Training;
Quarterly reports;
Quality Assurance Quality Control (QA/QC) process; and
NEPA process documentation.
Prior to the on-site audit, FHWA completed telephone interviews
with Federal resource agency staff at the U.S. Army Corps of
Engineers (USACE), the National Park Service, the National Oceanic
and Atmospheric Administration, the Advisory Council on Historic
Preservation, and the Environmental Protection Agency. The on-site
audit included visits to the Caltrans Offices in District 3/North
Region (Marysville), District 4 (Oakland), District 5 (San Luis
Obispo), District 7 (Los Angeles), District 8 (San Bernardino), and
District 12 (Irvine). Additionally, FHWA auditors visited the
Sacramento offices of the USACE and U.S. Fish and Wildlife Service
(FWS) to interview staff.
This report documents findings within the scope of the audit as
of the completion date of the on-site audit on July 30, 2010.
Audit Process and Implementation
The intent of each FHWA audit completed under the Pilot Program
is to ensure that each Pilot State complies with the commitments in
its MOU with FHWA. The FHWA does not evaluate specific project-
related decisions made by the State because these decisions are the
sole responsibility of the Pilot State. However, the FHWA audit
scope does include the review of the processes and procedures
(including documentation) used by the Pilot State to reach project
decisions in compliance with MOU Section 3.2.
In addition, Caltrans committed in its Application (incorporated
by reference in MOU Section 1.1.2) to implement specific processes
to strengthen its environmental procedures in order to assume the
responsibilities assigned by FHWA under the Pilot Program. The FHWA
audits review how Caltrans is meeting each commitment and assesses
Pilot Program performance in the core areas specified in the Scope
of the Audit section of this report.
The Caltrans' Pilot Program commitments address:
Organization and Procedures under the Pilot Program.
Expanded QC Procedures.
Independent Environmental Decisionmaking.
Determining the NEPA Class of Action.
Consultation and Coordination with Resource Agencies.
Issue Identification and Conflict Resolution
Procedures.
Record Keeping and Retention.
Expanded Internal Monitoring and Process Reviews.
Performance Measures to Assess the Pilot Program.
Training to Implement the Pilot Program.
Legal Sufficiency Review.
The FHWA team for the fifth audit included representatives from
the following offices or agencies:
FHWA Office of Project Development and Environmental
Review.
FHWA Office of the Chief Counsel.
FHWA Alaska Division Office.
FHWA Resource Center Environmental Team.
Volpe National Transportation Systems Center.
FWS.
During the onsite audit, FHWA interviewed more than 70 staff
from 6 District offices and the USACE and FWS. The audit team also
reviewed project files and records for over 80 projects managed by
Caltrans under the Pilot Program.
The FHWA acknowledges that Caltrans identified specific issues
during its fifth self-assessment performed under the Pilot Program
(required by MOU section 8.2.6), and is working on corrective
actions to address the identified issues. Some issues described in
the Caltrans self-assessment may overlap with FHWA findings
identified in this audit report.
In accordance with MOU Section 11.4.1, FHWA provided Caltrans
with a 30-day comment period to review this draft audit report. The
FHWA reviewed comments received from Caltrans and revised sections
of the draft report, where appropriate, prior to publishing it in
the Federal Register for public comment.
Limitations of the Audit
The conclusions presented in this report are opinions based upon
interviews of selected persons knowledgeable about past and current
activities related to the execution of the Pilot Program at
Caltrans, and a review of selected documents over a limited time
period. The FHWA audit team's ability to conduct each audit and make
determinations of Caltrans' compliance with assumed responsibilities
and commitments under the Pilot Program has been further limited by
the following:
Select Districts visited by FHWA audit team. The FHWA
audit team has not visited each District during the audit process.
Each audit (including this audit) has consisted of visits to
Districts with significant activity under the Pilot.
Caltrans staff availability during audits. Some
Caltrans staff selected to be interviewed by the audit team were out
of the office and unavailable to participate in the onsite audit.
This limited the extent of information gathering.
Incomplete project files. Project files and associated
project documentation have, when reviewed by the audit team, not
always been complete. This is especially true for projects where the
project or related studies were initiated prior to commencement of
the Pilot Program. A full assessment of compliance with Pilot
Program policies and procedures is not possible unless all required
documents are available for review.
Limited scope of Pilot Program project development
activity. Caltrans has not operated under the Pilot Program for a
sufficient period of time to manage the full lifecycle of most
Environmental Impact Statements (EIS) and other complex projects.
Therefore, FHWA is not yet able to fully determine how Caltrans will
comply with its responsibilities assumed under the Pilot Program for
these project situations.
Insufficient data to determine time savings reported by
Caltrans in the completion of environmental documents. Due to the
short period of time that the Pilot Program has been in place, a
sufficient number of projects of varying complexities have not been
completed to adequately support a determination on the potential
time savings resulting from participation in the Pilot Program.
Distinction between the two Categorical Exclusion (CE)
assumption processes--Section 6004 and Section 6005. Since the
assumption by Caltrans of the SAFETEA-LU Section 6004 CE process is
not a part of these audits, it is not possible to validate the
correctness of determinations placing individual CEs under the aegis
of each assumed responsibility.
Continued errors in the quarterly reports. The
quarterly reports prepared by Caltrans listing all environmental
approvals and decisions made under the Pilot Program continue to
contain omissions and errors. As a result, it is difficult for FHWA
to exercise full oversight on Pilot Program projects unless a
complete accounting of all NEPA documents produced under the Pilot
is available and taken into account during the FHWA audit.
Status of Findings Since Last Audit (July 2009)
As part of the fifth audit, FHWA evaluated the corrective
actions implemented by Caltrans in response to the ``Deficient'' and
``Needs Improvement'' findings in the fourth FHWA audit report.
1. Quarterly Reports--The quarterly reports Caltrans provided to
FHWA under MOU Section 8.2.7 continued to include inaccuracies
related to environmental document approvals and decisions made under
the Pilot Program. The FHWA does acknowledge that Caltrans is in the
process of implementing the File Maker Pro environmental database
system on a statewide basis to assist in the developing of a
comprehensive database of environmental projects and milestones to
improve the accuracy of the information reported in the quarterly
reports.
2. QA/QC Certification Process--Project file reviews completed
during the fifth audit continued to identify incorrect and
incomplete QC certification forms. Caltrans continues to address
inadequacies in this process through staff specific training when
inconsistencies are identified, most notably during the self-
assessment process.
3. QA/QC Assurance--Under the Pilot Program, NEPA documentation
must clearly identify that FHWA has no role in the environmental
review and decisionmaking process for assigned projects. However,
environmental document reviews continued to identify instances when
FHWA was referenced as being involved in the decisionmaking process.
``Needs Improvement'' audit findings status:
1. Inadequate Guidance in the Standard Environmental Reference
(SER)--Caltrans updated the SER to address FHWA's
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concerns regarding several instances where guidance provided was
unclear, misleading, or incomplete. However, additional instances
were observed during the fifth audit regarding unclear, misleading,
or incomplete information in the SER.
2. Procedural and Substantive Requirements--The identified areas
of confusion regarding implementation of the Endangered Species Act
(ESA) Section 7 process have been addressed and the process of
consulting with the FWS under ESA Section 7 has been improved.
3. Section 4(f) Issues:
(a) Documentation--Project file reviews and interviews with
Caltrans staff confirmed continuing inconsistencies in the
documentation required to meet the Section 4(f) provisions.
(b) Circulation of a Draft Section 4(f) Evaluation--Project file
reviews and interviews with Caltrans staff identified confusion
regarding the requirement to circulate Section 4(f) Evaluations to
the Department of the Interior for review.
(c) Section 4(f) Implementation--Project file reviews and
interviews with Caltrans staff identified several inconsistencies
with the implementation and general understanding required in
carrying out Section 4(f) provisions.
Caltrans is continuing to address each issue. For example,
Caltrans requested and received two FHWA-led Section 4(f) trainings,
each 2 days in length, with specific requests to address areas that
FHWA has identified as problematic during the Pilot Program audit.
Caltrans is also completing an on-line Section 4(f) training that
will be posted on the ``Training on Demand'' Web site.
4. Legal Division Staff--Significant variability existed in the
Federal environmental law experience of the attorneys in the four
Caltrans legal offices. Most notably, the retirement of a highly
experienced attorney near the end of 2008 resulted in two of
Caltrans' legal offices serving some of Caltrans' largest and
busiest Districts with no attorneys on staff with substantial
experience in Federal environmental law. Since October 2009, the
Sacramento Legal Division assumed permanent responsibility for all
environmental law issues in the legal office affected by the
retirement of the experienced attorney in 2008.
5. Training--In the past, inconsistencies in training were
identified in the areas of Section 4(f) and Section 7 processes.
There were also observed inconsistencies in the use of tools to
identify training needs and to track employees' training histories,
as well as no method for employees to track completion of any online
training available on the Caltrans Web site. A method to record the
completion of on-line trainings by Caltrans staff is now available
with implementation of its use underway.
6. Maintenance of Project and General Administrative Files--
Caltrans has instituted specific procedures for maintaining project
files in accordance with the Uniform Filing System (UFS) and has
provided training on these procedures. Inconsistencies in the
application of these procedures, reported in previous audit
findings, were also identified in this audit.
Findings Definitions
The FHWA audit team carefully examined Pilot Program areas to
assess compliance in accordance with established criteria in the MOU
and Application. The time period covered by this audit report is
from the start of the Caltrans Pilot Program (July 1, 2007) through
completion of the fifth onsite audit (July 30, 2010) with the focus
of the audit on the most recent 12 month period. This report
presents audit findings in three areas:
Compliant--Audit verified that a process, procedure or
other component of the Pilot Program meets a stated commitment in
the Application and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in
the Application and/or MOU is not fully implemented to achieve the
stated commitment or the process or procedure implemented is not
functioning at a level necessary to ensure the stated commitment is
satisfied. Action is recommended to ensure success.
Deficient--Audit was unable to verify if a process,
procedure or other component of the Pilot Program met the stated
commitment in the Application and/or MOU. Action is required to
improve the process, procedure or other component prior to the next
audit;
or
Audit determined that a process, procedure or other component of
the Pilot Program did not meet the stated commitment in the
Application and/or MOU. Corrective action is required prior to the
next audit.
or
Audit determined that for a past Needs Improvement finding, the
rate of corrective action has not proceeded in a timely manner; is
not on the path to timely resolution of the finding.
Summary of Findings--July 2010
Compliant
Caltrans was found to be compliant in meeting the requirements
of the MOU for the key Pilot Program areas within the scope and the
limitations of the audit, with the exceptions noted in the Deficient
and Needs Improvement findings in this audit report set forth below.
Caltrans continues to provide FHWA with all required oversight
reports, per MOU Section 8.2 (e.g., Quarterly Reports listing
project approvals and decisions made under the authority of the
Pilot Program and the Self-assessment Summary Reports) and has fully
cooperated with FHWA during the audit process. Even with the loss of
staff, furloughs, and budget constraints Caltrans continues to be
compliant in their commitment of resources needed to carry out the
responsibilities assumed under the Pilot Program.
Needs Improvement
(N1) Maintenance of Project and General Administrative Files--
MOU Section 8.2.4 requires that Caltrans maintains project and
general administrative files pertaining to its discharge of the
responsibilities assumed under the Pilot Program. Caltrans has
instituted specific procedures for maintaining project files in
accordance with the UFS and has provided training on these
procedures. Inconsistencies in the application of these procedures,
which have been reported in previous audit findings, were also
identified throughout the Districts visited in this audit. Examples
of inconsistencies observed in 10 of the approximately 80 project
files reviewed during the audit included:
(a) Instances where required documentation was missing in
project files but was produced by Caltrans staff at the request of
the auditors. Examples of such missing documents included a letter
documenting the State Historic Preservation Officer's concurrence on
effect determination; correspondence between Caltrans and FWS
regarding a Biological Opinion for a project; and project level
conformity determinations by FHWA; and
(b) Missing, out of order, or incomplete UFS tabs.
(N2) Performance Measure--``Monitor relationships with agencies
and the general public''--MOU Section 10.2.1.C requires Caltrans to
``assess change in communication among Caltrans, Federal and State
resource agencies, and the public.'' Caltrans conducted the first
annual resource agency survey in 2009 and a second survey in
February 2010. The Second Annual Resource Agency Survey Report was
delivered in May 2010. Each report lists an average rating for each
survey question and a comparison is made from the previous report
average ratings. The Survey Report does not report each agency's
rankings separately, which would produce a more accurate assessment
of Caltrans' individual relationship with Federal and State
agencies. It is FHWA's recommendation that the specific agencies'
rating information be shared with FHWA so that agency specific
relationship issues could be identified and corrective actions could
be discussed.
(N3) Coordination with Resource Agencies--Through interviews
with resource agency staff, the audit team learned the following:
(a) Under MOU Section 7.1.1, Caltrans ``agrees to seek early and
appropriate coordination with all appropriate Federal, State, and
local agencies in carrying out any of the responsibilities and
highway projects assumed under Part 3 of this MOU.'' Based on
information obtained during audit interviews with representatives
from a USACE District office, the audit team learned that Caltrans
is not conducting pre-application coordination with this office nor
engaging in appropriate coordination on NEPA reviews which is
limiting the agencies' flexibility to develop project alternatives
and mitigation options.
(b) MOU Section 7.1.2, Caltrans ``agrees to make all reasonable
and good faith efforts to identify and resolve conflicts with all
appropriate Federal, State, and local agencies during the
consultation and review process in carrying out any of the
responsibilities assumed under Part 3 of this MOU.'' Interviews with
representatives from a Caltrans District Office, a USACE District
Office, and a FWS Field Office, determined that longstanding
conflicts (i.e., insufficient
[[Page 5241]]
information provided, lack of compliance with environmental
commitments and disagreements on regulatory timeframes, action areas
and compensative mitigation requirements) are not being addressed
and ``good faith'' efforts to resolve conflicts between these
Federal agencies and a few Districts are lacking. These agencies
reported that due to these conflicts, efforts to carry out
responsibilities under applicable Federal laws are not being
implemented to the fullest extent.
(N4) Procedural and Substantive Requirements--MOU Section 5.1.4
states that Caltrans will work with all other appropriate Federal
agencies concerning the laws, guidance, and policies that such other
Federal agencies are responsible for administering. Project file
reviews and staff interviews identified the following
inconsistencies:
(a) The Section 7 consultation was incomplete and the Section 7
finding was not included in the NEPA documentation of a project's
Finding of No Significant Impacts (FONSI); and
(b) An Environmental Assessment document did not identify that
the project was in a 100-year flood zone and therefore, a
``practicability'' finding was not made in the FONSI. As a result,
the project was not in compliance with Executive Order 11988
Floodplain Management and 23 CFR 650.
(N5) Compliance with Procedural and Substantive Requirements--
MOU Section 5.1 requires Caltrans to be subject to the same
procedural and substantive requirements that apply to the U.S.
Department of Transportation (DOT) in carrying out the
responsibilities assumed under the Pilot Program. Such procedural
and substantive requirements include compliance with Federal laws,
Federal regulations, Executive Orders, DOT Orders, FHWA Orders,
official guidance and policy issued by tDOT or FHWA, and any
applicable Federal Court decisions, and interagency agreements such
as programmatic agreements, memoranda of agreement, and other
similar documents that relate to the environmental review process.
Documentation errors during the NEPA process were noted in 11 of
approximately 80 project files reviewed during the audit. Project
file reviews identified incomplete or inaccurate NEPA documents and
other related project materials. Some of these instances included:
(a) A FONSI that did not include a response to comments received
on the Environmental Assesment regarding traffic operations and
their impacts on the project;
(b) A FONSI that did not include a statement that the Section 7
consultation had been performed in compliance with the ESA;
(c) Two CE determinations failed to reference the most current
noise studies performed prior to the approvals of the CEs;
(d) One CE determination failed to reference the most current
traffic analysis performed prior to the approval of the CE and;
(e) A project file contained a fact sheet for the project that
contained incorrect information on the level of environmental
documentation. Even if this fact sheet was not released to the
public, it is part of the project file and would become part of the
administrative record, and thus contain incorrect information.
(N6) Re-evaluation Process--MOU Section 5.1 requires Caltrans to
be subject to the same procedural and substantive requirements that
apply to DOT in carrying out the responsibilities assumed under the
Pilot Program. This includes the process and documentation for
conducting NEPA re-evaluations to comply with 23 CFR 771.129.
Additionally, SER Chapter 33 discusses re-validations and re-
evaluations. Project file reviews and staff interviews identified
varying degrees of compliance with these procedures. Project file
reviews completed in some Districts determined that the re-
evaluations completed complied with SER Chapter 33. However, in
other Districts project files identified the following
inconsistencies:
(a) A re-evaluation was used to combine portions of two EISs.
The FHWA re-evaluation process does not accommodate such an
approach. Other elements of this re-evaluation that appeared to
deviate from established procedures included: (1) A change was made
to the project that was not evaluated in either of the original EISs
or the subsequent re-evaluations performed on the respective
projects and (2) a previous conformity determination was relied on
for the segment covered by one of the EISs, whereas a new conformity
determination was done on the segment from the second EIS. There was
no conformity determination for the combined project;
(b) In another project file review, no evidence was found that a
Section 106 Area of Potential Effect (APE) was revised after a post-
final environmental document change occurred that expanded the
footprint of the proposed project outside of the original APE. No
documents in the project file were identified to support that
Caltrans had performed an evaluation to determine if the change had
an effect on the validity of the original environmental document or
the Section 106 determination of effects;
(c) A re-evaluation of an original CE determination contained,
as a part of the re-evaluation, the addition of another project CE
determination. The District concurrently issued a Section 6005 CE
for the ``combined'' project, without including a new project
description. The project file contained the new CE with the re-
evaluation attached. Documentation in the file indicated that the
second project was not to be added to the original CE, since that
would make the first project ineligible for a Federal funding
category;
(d) A re-evaluation did not include documentation of an
affirmative determination that the NEPA document was still valid;
and
(e) Instances were observed by the audit team that re-
evaluations were approved without the original project file or
approved environmental document being in the District Office. In one
instance, a re-evaluation was approved by a District without
reviewing the project file or final environmental document.
According to information provided to the audit team, the project
file had been removed from the office and could not be located.
The audit team feels that additional clarification and guidance
needs to be provided by Caltrans to the environmental staff as to
the purpose and use of the re-evaluation process. A re-evaluation is
done to determine if the approved environmental document or the CE
designation remains valid. In the re-evaluation process, the
original decision and analysis needs to be reviewed for its
validity.
(N7) Section 4(f) and ``Locally Significant'' Historic
Resources--MOU Section 5.1.1 affirms that Caltrans is subject to the
same procedural and substantive requirements that apply to the DOT
in carrying out the responsibilities assumed under the Pilot
Program. The SER Chapter 20, Section 4(f) and Related Requirements,
sets forth procedures for documenting impacts to Section 4(f)
properties in Caltrans-assigned environmental documents, while the
Forms and Templates section of the SER contains annotated outlines
for such documents. However, the SER does not address how Caltrans
should determine whether a historic resource which is significant at
the local level should be considered eligible for protection under
Section 4(f). In the case of one project reviewed by the audit team,
it was unclear from review of the project file and from interviews
with Caltrans staff what process was used for making the
determination and what internal and external coordination and
consultation was required. It is the audit team's opinion that the
SER should include a process to ensure consistency in the
determination of the historic significance of local resources.
(N8) Training: Inconsistent Level of Training for Staff--MOU
Section 12.1.1 requires Caltrans to ensure that its staff is
properly trained and that training will be provided ``in all
appropriate areas with respect to the environmental responsibilities
Caltrans has assumed.'' Section 4.2.2 of the MOU also requires that
Caltrans maintain adequate staff capability to effectively carry out
the responsibilities it has assumed.
The audit team found an inconsistent application of the training
plan for generalists in two Districts. Interviews with several SEPs
in two Districts indicated that oversight or tracking of training
for generalists is not uniform and identified the need for a more
systematic approach. The interviews found that training attended by
generalists is not consistently monitored by their SEPs, nor is the
training plan consistency applied or tracked to ensure employees
attend the proper training given to support the generalist's
responsibilities. While the audit team did learn that a more
systematic training plan for generalists (i.e., the generalist
roadmap) had recently been developed, it remains an important issue
to ensure that staff attends the training prescribed by the plan to
ensure they have the proper skill set to effectively carry out
responsibilities under the Pilot Program.
(N9) Training: Inconsistent Understanding of Required
Processes--MOU Section 4.2.2 requires Caltrans to maintain adequate
organizational and staff capacity to effectively carry out the
responsibilities it has assumed under MOU Section 3. The following
inconsistencies were noted during interviews with Caltrans staff:
[[Page 5242]]
(a) Interviews with two SEPs and project file reviews indicated
a lack of understanding of the Section 4(f) process and options
available for implementation and documentation of the Section 4(f)
process. A lack of understanding and knowledge was identified in the
areas of the determination of de minimis impacts findings, the use
of established Section 4(f) programmatic agreements, and the
required documentation, evaluation, and explanation to be included
in the environmental documents;
(b) Interviews with one HQ Environmental Coordinator and one SEP
reflected a lack of awareness of any policy or guidance for the use
of the Statute of Limitations notice and;
(c) Interviews with SEPs in two Districts reflected a lack of
awareness and knowledge of the ``Blanket'' CE for approval of design
exceptions. While the use of this may be limited, a general
understanding and awareness is expected by Caltrans staff. Several
SEPs either did not know of the ``Blanket'' CE or were unaware of
how and when to use it.
Deficient
(D1) Reports Listing Approvals and Decisions (i.e., Quarterly
Reports)--MOU Section 8.2.7 requires Caltrans to submit a report
listing all Pilot Program approvals and decisions made with respect
to responsibilities assumed under the MOU with FHWA (each quarter
for the first 2 years; after the first 2 years no less than every 6
months). Caltrans has chosen to continue to provide quarterly
reports to FHWA. Inaccurate project reporting continues to be an
ongoing issue affecting the quarterly report process and has been
identified in every previous FHWA audit report. Among the reporting
errors identified in this audit were:
(a) Omission of two EAs;
(b) Omission of one FONSI;
(c) Omission of a biological opinion;
(d) Incorrect approval date for a CE determination;
(e) Incorrect listing of a re-evaluation/revalidation for a
Section 6004 CE determination as Section 6005 CE determination; and
(f) Incorrectly included a re-evaluation/revalidation of a
project with no Federal funding or required approvals, and therefore
not a part of the Pilot Program.
The current Caltrans approach to developing the quarterly
reports continues to be deficient. The accuracy of the reports on
project approvals and decisions affects the FHWA oversight of the
Pilot Program. The FHWA acknowledges that Caltrans is in the initial
stages of statewide implementation of the File Maker Pro
environmental database. It is anticipated that the implementation of
this database system will improve the accuracy of information
provided in the quarterly reports to FHWA.
(D2) Section 4(f) Documentation--MOU Section 5.1.1 affirms that
Caltrans is subject to the same procedural and substantive
requirements that apply to DOT in carrying out the responsibilities
assumed under the Pilot Program. The SER Chapter 20, Section 4(f)
and Related Requirements, sets forth procedures for documenting
impacts to Section 4(f) properties in Caltrans-assigned
environmental documents, while the Forms and Templates section of
the SER contains annotated outlines for such documents, including
appropriate language for addressing de minimis impacts (49 U.S.C.
303(d); 23 U.S.C. 139(b); 23 CFR 774.17). As was also noted in the
fourth FHWA audit of the Pilot Program, project file reviews and
interviews with staff during this audit identified inconsistencies
in the documentation requirements for carrying out the Section 4(f)
provisions. These included:
(a) For a bridge replacement project located within a National
Forest, no documentation was provided in the EA document or in the
project file regarding the Section 4(f) status of the recreational
facilities in the immediate project vicinity or any possible project
impacts to those resources;
(b) A project file contained a letter from the official with
jurisdiction over the Section 4(f) recreational resource stating the
impacts to the resource would be de minimis. Neither the EA document
nor the project file contained the supporting documentation for that
determination, as required under 23 CFR 774.7(b).
(c) The Section 4(f) discussion in the environmental document of
another project (for which no NEPA approval had been made at the
time of the audit) was unclear as to which type of Section 4(f)
documentation and approval was being contemplated. The applicable
section of the EA included the discussion of four different types of
Section 4(f) approvals:
1. The EA described the project as qualifying for a Nationwide
Programmatic Section 4(f) evaluation, but did not reach a conclusion
pursuant to the applicable Programmatic.
2. The document then included a discussion similar to what is
used in an individual Section 4(f) Evaluation, including impacts to
Section 4(f) properties, avoidance alternatives, and measures to
minimize harm, ending by stating that no preferred alternative had
been identified for the project.
3. The EA also contained a Section 4(f) constructive use
discussion, which reached no conclusion.
4. Finally, the project file contained an e-mail stating that
although the EA was missing expected language regarding de minimis
impacts and a concurrence letter from the officials with
jurisdiction, the Caltrans Branch Chief would sign the QA/QC sheets
``with the assurance that the above items will be completed.''
(D3) QA/QC Certification Process--MOU Section 8.2.5 and SER
Chapter 38 require Caltrans staff to review each environmental
document in accordance with the policy memorandum titled,
``Environmental Document Quality Control Program under the NEPA
Pilot Program'' (July 2, 2007). Incomplete and incorrectly completed
QC certification forms continue to be identified. During project
file reviews by the audit team, the following instances of
incomplete or incorrect QC certification forms since the July 2009
audit were observed:
(a) An EA and Section 4(f) Evaluation was approved contingent on
changes that still needed to be made to the document;
(b) One QC certification form was approved by the Quality
Control Reviewer, Preparer, and Branch Chief without the technical
reviewer's signature due to pending comments;
(c) Five other QC certification forms contained undated review
signatures or the signatures were not obtained in the proper
sequence in accordance with the Caltrans established QA/QC
processes;
(d) Two QC certification forms were missing the signatures of
required reviewers. In those cases, a memo was included in the files
documenting this oversight. One memo noted that the NEPA document
that was approved for the project had been incomplete. No additional
explanation was provided; and
(e) Two external QC certification forms contained signatures
that were obtained after the internal QC certification form
signatures. The SER Chapter 38 process requires the QC external
certification form to be completed before the internal certification
review can be initiated.
(D4) Maintenance of Project and General Administrative Files--
MOU Section 8.2.4 requires Caltrans to maintain project and general
administrative files pertaining to its discharge of the
responsibilities assumed under the Pilot Program. Caltrans has
instituted specific procedures for maintaining project files and has
provided training on these procedures. Previous audits identified
inconsistencies with the application of these procedures (i.e.,
missing required documents, missing UFS tabs) and inconsistencies
throughout the Districts visited in this audit were also identified.
This audit also identified inconsistencies with file maintenance in
at least 15 of the approximately 80 project files reviewed. Examples
of these include:
(a) Various types of required project documentation were missing
from project files. Examples of missing documents included:
Signed final environmental documents;
Noise abatement decision report;
Historic Properties Survey Report;
Environmental Commitment Records;
internal and external QC certification forms (some
signed but undated);
Signed copies of the Preliminary Environmental Analysis
Report/Preliminary Environmental Scoping forms;
Section 106 Memorandum of Agreement; and
Information on the types of Section 4(f) resources and
the projects' impacts upon them.
(b) Two instances in which the project files were not available
for review; in one case, the file has been improperly disposed,
while in the other case, it was uncertain whether the project file
had been misplaced or had never been set up.
Response to Comments and Finalization of Report
The FHWA received no comments during the 30-day comment period
for the draft audit report. Therefore, the FHWA feels that there is
no need to revise the draft audit
[[Page 5243]]
report findings and finalizes the audit report with this notice.
[FR Doc. 2011-1870 Filed 1-27-11; 8:45 am]
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