Notice2022-23914
Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 3, 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) for Federal highway projects. When a State assumes these Federal responsibilities, the State becomes solely responsible and liable for carrying out the responsibilities it has assumed in lieu of FHWA. This program mandates annual audits during each of the first 4 years of State participation to ensure compliance with program requirements. This notice finalizes the findings of the third audit report for the Utah Department of Transportation (UDOT).
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<title>Federal Register, Volume 87 Issue 212 (Thursday, November 3, 2022)</title>
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[Federal Register Volume 87, Number 212 (Thursday, November 3, 2022)]
[Notices]
[Pages 66348-66352]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23914]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2020-0012]
Surface Transportation Project Delivery Program; Utah Department
of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), 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. This program mandates annual audits during each of the first 4
years of State participation to ensure compliance with program
requirements. This notice finalizes the findings of the third 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,
<a href="/cdn-cgi/l/email-protection#b4f0d5c2ddd09af7dbdcd1daf4d0dbc09ad3dbc2"><span class="__cf_email__" data-cfemail="b6f2d7c0dfd298f5d9ded3d8f6d2d9c298d1d9c0">[email protected]</span></a>, or Mr. Patrick Smith, Office of the Chief Counsel,
(202) 366-1345, <a href="/cdn-cgi/l/email-protection#b2e2d3c6c0dbd1d99cf19ce1dfdbc6daf2d6ddc69cd5ddc4"><span class="__cf_email__" data-cfemail="87d7e6f3f5eee4eca9c4a9d4eaeef3efc7e3e8f3a9e0e8f1">[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 downloaded from the
specific docket page at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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 the
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, 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
[[Page 66349]]
responsibilities under NEPA, and the responsibilities for other Federal
environmental laws described in the MOU.
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 results of each
audit must be made available for public comment. This notice finalizes
the findings of the third audit report for UDOT participation in the
NEPA Assignment program. The FHWA published a draft version of this
report in the Federal Register on September 17, 2020, and made it
available for public review and comment for 30 days in accordance with
23 U.S.C. 327(g). The FHWA received one response to the Federal
Register notice during the public comment period for the draft report.
The only response, from the American Road and Transportation Builders
Association, outlined their general support for the NEPA Assignment
program to accelerate Federal-aid highway program and project delivery.
The FHWA determined that the comment required no changes to the draft
report. This notice finalizes the third 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.
Stephanie Pollack,
Acting Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
FHWA Audit of the Utah Department of Transportation--Final Report
July 1, 2018-June 30, 2019
Executive Summary
This report summarizes the results of the Federal Highway
Administration's (FHWA) third 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 States Code (U.S.C.) 327. Throughout this report,
FHWA uses the term ``NEPA Assignment Program'' to refer to the program
codified at 23 U.S.C. 327. 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 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 June 2019 to plan and conduct an
audit of NEPA responsibilities UDOT assumed. The Audit Team conducted
an on-site review during the week of October 7 to October 10, 2019.
Prior to the on-site visit, the Audit Team reviewed UDOT's NEPA project
files, UDOT's response to FHWA's pre-audit information request (PAIR),
UDOT's 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 interviews with four members of
UDOT central office staff, three of UDOT's legal counsel (one Assistant
Attorney General (AG) assigned to UDOT and two outside counsel), and
seven staff members from the U.S. Army Corps of Engineers (USACE) as
part of this on-site review.
Overall, the Audit Team found that UDOT continues to carry out the
assigned environmental review and transportation decisionmaking
responsibilities successfully. The UDOT has made efforts to respond to
the FHWA findings from the second audit, including improving document
management and QA/QC procedures. In the first and second audits, the
FHWA Audit Team observed inconsistent understanding of QA/QC procedures
among UDOT staff and lack of adherence to its QA/QC procedures. In the
third audit, the Audit Team found that UDOT issued an environmental
document without a final legal sufficiency finding, and observed that
there were some ways UDOT could improve their training.
The Audit Team identified one non-compliance observation and one
observation as well as several successful practices. The Audit Team
found UDOT has been carrying out the responsibilities it has assumed in
compliance with the provisions of the Section 327 MOU.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and compliance
for Federal-aid highway projects and certain 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.
After this third audit, FHWA conducted the fourth and last annual
audit in November 2020 to satisfy provisions of 23 U.S.C. 327(g) and
Part 11 of the MOU. Audits are the primary mechanism through which FHWA
may oversee UDOT's compliance with the MOU and the NEPA Assignment
Program requirements. This includes ensuring compliance with applicable
Federal environmental laws and policies, evaluating UDOT's progress
toward achieving the performance measures identified in MOU Section
10.2, and collecting information needed for the Secretary's annual
report to Congress. The FHWA must present the results of each audit in
a report and make it available for public comment in the Federal
Register.
The Audit Team consisted of NEPA subject matter experts from the
FHWA Utah Division as well as additional FHWA Division staff from
California, Georgia, Alaska, and FHWA Headquarters. The subject matter
experts received training on how to assess UDOT's compliance and assess
the levels of accomplishment associated with the implementation of the
NEPA Assignment Program in Utah.
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 USDOT Secretary's responsibilities for compliance with
the National Environmental Policy Act of 1969 (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
[[Page 66350]]
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 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.
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 11 NEPA
Project files with DCEs, EAs, and EISs, representing all projects with
decision points or other actionable items between July 1, 2018, and
June 30, 2019. The Audit Team also interviewed environmental staff in
UDOT's headquarters office.
The PAIR consisted of 26 questions about specific elements in the
MOU. The Audit Team used UDOT's response to the PAIR to develop
specific follow-up questions for the on-site interviews with UDOT
staff.
The Audit Team conducted four in-person interviews with UDOT
environmental staff, one in-person interview with seven staff members
of the USACE, two phone interviews with UDOT's outside legal counsel,
and one phone interview with legal counsel from the Utah Attorney
General's office.
Throughout the document reviews and interviews, the Audit Team
verified information on the UDOT NEPA Assignment Program including UDOT
policies, guidance, manuals, and reports. This included the NEPA QA/QC
Guidance, the NEPA Assignment Training Plan, and the NEPA Assignment
Self-Assessment Report.
The Audit Team compared the procedures outlined in UDOT
environmental manuals and policies to the information obtained during
interviews and project file reviews to determine if there were
discrepancies between UDOT's performance and documented procedures. The
Audit Team documented observations under the six NEPA Assignment
Program topic areas. Below are the audit results.
Overall, UDOT successfully carried out the environmental
responsibilities it had assumed through the MOU and the application for
the NEPA Assignment Program, and, as such, the Audit Team found UDOT
was substantially compliant with the provisions of the MOU.
Observations and Successful Practices
This section summarizes the Audit Team's observations of UDOT's
NEPA Assignment Program implementation, including successful practices
UDOT may want to continue or expand. Successful practices are positive
results FHWA would like to commend UDOT for developing. These may
include ideas or concepts that UDOT has planned but not yet
implemented. Observations are items the Audit Team would like to draw
UDOT's attention to, which may benefit from revisions to improve
processes, procedures, or outcomes. The UDOT may have already taken
steps to address or improve upon the Audit Team's observations, but at
the time of the audit, they appeared to be areas where UDOT could make
improvements. This report addresses all six MOU topic areas as separate
discussions. Under each area, this report discusses successful
practices followed by observations.
This audit report provides an opportunity for UDOT to implement
actions to improve their program. The FHWA considered the status of
areas identified for potential improvement in this audit's observations
as part of the scope of Audit #4. The fourth audit report will include
a summary discussion that describes UDOT's progress since this third
audit.
Program Management
Successful Practices
During the kickoff meeting, the Audit Team learned that UDOT has
placed the Environmental Services Division under Program Development
rather than Project Development. This re-organization helped
environmental services align their work with planning staff. The UDOT
described their interest in advancing a linking planning and
environment approach related to their corridor planning process. The
UDOT plans to pilot this approach on some corridors studies.
Implementing this linking planning and environment approach could help
address new environmental requirements and initiatives to accelerate
project delivery. The FHWA and UDOT jointly discussed the opportunity
and potential benefits that could result from hosting a peer exchange
on this subject. In interviews with the USACE, the Audit Team learned
that they have had recent discussions with UDOT about this type of
approach.
Within the last auditing period, UDOT initiated bi-monthly meetings
with USACE to discuss upcoming projects. Early coordination with
interested agencies can be effective in early identification and
resolution of issues, and help to accelerate project delivery. The
USACE supports continuing these early coordination efforts. In
addition, USACE noted that UDOT's project managers were diligent and
effective in documenting discussions in meetings and sending project-
specific meeting notes to them for review and concurrence.
Through interviews with USACE, the Audit Team learned that UDOT had
consistently monitored the effectiveness of its wetland mitigation as
required for permits issued by USACE under Section 404 of the Clean
Water Act, and they sent timely and complete monitoring reports to the
USACE.
The UDOT uses varying methods of communication for its public
involvement, which UDOT customizes to the context of each project and
the surrounding community. Communication methods include, but are not
limited to, one-on-one discussions with the public, emails and phone
calls UDOT receives from the public through project websites,
neighborhood gatherings, and placing door hangers throughout
communities. Public involvement plans evolve throughout the NEPA
process, and UDOT environmental and public involvement staff meet as a
team to decide how to address public concerns as they arise. Through
interviews, the Audit Team learned that UDOT is exploring the use of
virtual public involvement strategies on some of its projects, such as
the use of videos and mapping tools, as a means of further enhancing
public engagement.
Documentation and Records Management
Successful Practices
The UDOT continues to improve implementation of its project file
system. The UDOT uses ProjectWise as its environmental file system of
record for NEPA Assignment Program projects. The folder structure in
ProjectWise outlines the potential components of a
[[Page 66351]]
complete project file that consultants and staff should populate, and
UDOT's Environmental Document File Management guidance explains methods
for organizing project files. In addition, the Environmental
Performance Manager reviews project folders in ProjectWise to ensure
that all project files are organized in accordance with the file
structure. These measures have noticeably improved the organization and
completeness of project files since the first two audits.
Quality Assurance/Quality Control
Successful Practices
The Audit Team learned through the PAIR response and interviews
that, in response to Audit #2, UDOT had revised the Environmental
Document Review Tool to differentiate requirements for EAs and EISs.
The UDOT had also created a new checklist for QA/QC. In interviews,
UDOT staff recognized that they may need to further revise procedures
to ensure documentation is complete, and stated that they are committed
to continuing to revise and implement their process to document legal
sufficiency findings on all documents requiring findings in accordance
with UDOT's Manual of Instruction (MOI) and QA/QC plan. The UDOT
staff's weekly project meetings, as well as their biweekly meetings to
talk about issues that arise in the environmental program, are ways
they can continue to refine their processes.
Legal Sufficiency
Successful Practice
The UDOT Environmental Managers work directly with outside counsel.
The UDOT Environmental Managers, an Assistant AG, and outside counsel
hold quarterly meetings during which UDOT apprises counsel of upcoming
project reviews and anticipated review deadlines. These quarterly
meetings are one of UDOT's strategies for keeping the Assistant AG
assigned to UDOT apprised of all communications between UDOT staff and
outside counsel.
Training
Observation #1
The UDOT continues to update its training plan on an annual basis,
as required under Section 12.2 of the MOU. During the audit period UDOT
provided its staff 12 training opportunities on NEPA and other
environmental requirements, in accordance with the training plan.
Section 12.2 of the MOU states that ``UDOT and FHWA, in consultation
with other Federal agencies as deemed appropriate, will assess UDOT's
need for training and develop a training plan.'' During interviews,
however, USACE, staff stated they have not had the opportunity to
provide input on UDOT's training plan. The USACE expressed that their
staff may benefit from training to better understand UDOT's highway
design standards, requirements, and policies. Interagency discussions
regarding training needs may identify opportunities for cross-training
with the potential to improve interagency communication and
coordination, and lead to more efficient permit review and consultation
processes.
Performance Measures
Successful Practices
The UDOT's self-assessment documented the performance management
details of the NEPA Assignment Program in Utah, which demonstrates
UDOT's procedures under NEPA assignment have resulted in a reduction in
the time needed to complete DCEs, EAs, and EISs. The average time to
complete environmental documents is 7 months for DCEs, 24 months for
EAs, and 37 months for EISs. Although these data are based on a limited
number of completed UDOT NEPA reviews since January 2017, UDOT's
initial timeliness results are promising.
The UDOT regularly updates their MOI to continuously improve their
policies and procedures. During this audit period, UDOT updated their
MOI in September 2018. The UDOT has polled resource agencies every year
to get feedback on their performance. The UDOT's self-assessment
documents that, although they had a lower response rate to their annual
resource agency poll this year (24 percent) compared to last year (50
percent), the overall evaluation rating is 4 percent higher than the
ratings prior to NEPA assignment. The UDOT recognized that the low
response rate may be due to timing (UDOT sent the surveys in the summer
and allowed 2 weeks for responses). In interviews with the USACE, the
Audit Team heard that the distribution method may also be a factor. The
USACE suggested that UDOT find a way to give the survey more visibility
(e.g., discuss it at the bimonthly meeting, phone call in advance of
the email, have it come from someone they work with regularly).
Non-Compliance Observation
Non-compliance observations are instances where the Audit 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 following non-compliance observation relates to UDOT not
complying with the State's environmental review procedures.
Non-Compliance Observation #1--Issuing a Document Without Final Legal
Sufficiency Finding
As noted in UDOT's Self-Assessment and confirmed through audit
interviews and project file reviews, the Audit Team learned that in the
case of one project's individual Section 4(f) evaluation, while outside
counsel reviewed and commented on the draft evaluation prior to its
release, the project file contained no documentation demonstrating that
the required legal sufficiency review was completed pursuant to 23 CFR
771.125(b) and/or 23 CFR 774.7(d) prior to UDOT's approval of the
evaluation. This was also not in accordance with UDOT's QA/QC plan,
Section 4.1.B, which requires the reviewing attorney provide the
Environmental Program Manager with written documentation that the legal
sufficiency review has been completed. The UDOT's response to the draft
audit report indicated that they have since implemented a standard
checklist form, to be completed by legal counsel, to document their
project review to clarify the documentation of legal sufficiency
reviews.
Response to Public Comments on the Draft Report and the Final Report
The FHWA received one comment from the American Road &
Transportation Builders Association (ARTBA) 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 and determined that there is no need to
revise the draft audit report in response to ARTBA's comment.
Therefore, FHWA is finalizing UDOT's third NEPA
[[Page 66352]]
Assignment audit report with this Federal Register notice.
[FR Doc. 2022-23914 Filed 11-2-22; 8:45 am]
BILLING CODE 4910-22-P
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