Notice2022-13401
Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report
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Published
June 23, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
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) and other Federal environmental laws 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 announces and solicits comments on the fourth and final audit report for the Utah Department of Transportation (UDOT).
Full Text
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<title>Federal Register, Volume 87 Issue 120 (Thursday, June 23, 2022)</title>
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[Federal Register Volume 87, Number 120 (Thursday, June 23, 2022)]
[Notices]
[Pages 37547-37550]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13401]
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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; Request for comment.
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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) and other Federal environmental laws 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 announces
and solicits comments on the fourth and final audit report for the Utah
Department of Transportation (UDOT).
DATES: Comments must be received on or before July 25, 2022.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. You may also submit comments electronically
at <a href="http://www.regulations.gov">www.regulations.gov</a>. All comments should include the docket number
that appears in the heading of this document. All comments received
will be available for examination and copying at the above address from
9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
Those desiring notification of receipt of comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page
that appears after submitting comments electronically. Anyone can
search the electronic form of all comments in any of our dockets by the
name of the individual submitting the comment (or signing the comment,
if submitted on behalf of an association, business, or labor union).
The DOT posts these comments, without edits, including any personal
information the commenter provides, to <a href="http://www.regulations.gov">www.regulations.gov</a>, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at <a href="http://www.dot.gov/privacy">www.dot.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: Ms. Lana Lau, Office of Project
Development and Environmental Review, (202) 366-2052, <a href="/cdn-cgi/l/email-protection#571b363936791b36221733382379303821"><span class="__cf_email__" data-cfemail="c884a9a6a9e684a9bd88aca7bce6afa7be">[email protected]</span></a>,
or Mr. Patrick Smith, Office of the Chief Counsel, (202) 366-1345,
<a href="/cdn-cgi/l/email-protection#0959687d7b606a62276a275a64607d61496d667d276e667f"><span class="__cf_email__" data-cfemail="83d3e2f7f1eae0e8ade0add0eeeaf7ebc3e7ecf7ade4ecf5">[email protected]</span></a>, 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 viewed online at
<a href="http://www.regulations.gov">www.regulations.gov</a> using the docket number listed above. Electronic
retrieval help and guidelines are available on the website. It is
available 24 hours each day, 365 days each year. An electronic copy of
this document may also be downloaded from the Office of the Federal
Register's website at <a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the U.S. Government
Publishing Office's website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
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 (81 FR
80710), 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 other
[[Page 37548]]
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. The FHWA published the first audit report
of UDOT compliance on September 17, 2018 (83 FR 46992), the second
report on November 13, 2019 (84 FR 61680), and the third report on
September 17, 2020 (85 FR 58102). This notice announces the
availability of the fourth and final audit report for UDOT and solicits
public comments.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR part 773.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program; Draft FHWA Audit of
the Utah Department of Transportation; July 1, 2018-June 30, 2019
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) fourth audit of the Utah Department of
Transportation's (UDOT) National Environmental Policy Act (NEPA) review
responsibilities and liabilities that FHWA has assigned and UDOT has
assumed pursuant to 23 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 liabilities for Federal-aid highway
projects and certain other FHWA approvals in Utah. 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
does not cover the CE Program Assignment responsibilities.
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. The Audit Team
conducted its review during the period from November 9 to December 2,
2020. As part of this 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) 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 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 had found that UDOT
issued an environmental document without a final legal sufficiency
finding, and 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 is 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 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.
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 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 audit in Utah and includes a summary discussion
that describes progress since the last audit. This audit is the last of
the required audits.
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 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
[[Page 37549]]
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 re-evaluations.
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 re-evaluations, 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 videoconference interviews.
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. 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. 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 Re-evaluation Q&A
Guidance; Moving Ahead for Progress in the 21st Century Act (MAP-21)
Section 1319 interim guidance relating to the appropriate use of the
combined Final Environment Impact Statement/Record of Decision (FEIS/
ROD) 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 re-evaluations
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 re-evaluations. 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
[[Page 37550]]
project impacts, as well as project scope modifications.
Observation #1
The team reviewed multiple re-evaluations for the West Davis
Corridor Project. Each individual re-evaluation addressed the changes
on that portion of the larger project. The FHWA suggests UDOT also add
language that summarizes the changes across all the re-evaluations,
such as providing a listing of all the related re-evaluations 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 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.
Non-Compliance Observation
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 non-
compliance observations could suggest a persistent failure to
adequately consult, coordinate, or consider the concerns of other
Federal, State, Tribal, or local agencies with oversight, consultation,
or coordination responsibilities. The FHWA expects 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 to Previous Audit Findings
The FHWA reported a non-compliance 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 outside counsel. The form ensures a record that the review occurred.
This form has already been used for legal sufficiency reviews during
this audit period.
Next Steps
The FHWA provided this draft audit report to UDOT for a 30-day
review and comment period. The Audit Team considered UDOT comments in
developing this draft audit report. The FHWA will publish this notice
in the Federal Register for a 30-day comment period in accordance with
23 U.S.C. 327(g)(2)(A). No later than 60 days after the close of the
comment period, FHWA will respond to all comments submitted to finalize
this draft audit report pursuant to 23 U.S.C. 327(g)(2)(B). Once
finalized, FHWA will publish the final audit report in the Federal
Register.
[FR Doc. 2022-13401 Filed 6-22-22; 8:45 am]
BILLING CODE 4910-22-P
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