Notice2023-20220
Surface Transportation Project Delivery Program; Florida DOT Audit #4 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
September 19, 2023
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
The Surface Transportation Project Delivery Program, commonly known as the National Environmental Policy Act (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 responsible and liable for the responsibilities it has assumed, in lieu of FHWA. This program mandates annual audits during each of the first 4 years to ensure the State's compliance with program requirements. This is the fourth and final audit of the Florida Department of Transportation's (FDOT) performance of its responsibilities under the NEPA Assignment Program. This notice finalizes the findings of the fourth and final audit report for FDOT.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 180 (Tuesday, September 19, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 180 (Tuesday, September 19, 2023)]
[Notices]
[Pages 64509-64512]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20220]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2020-0025]
Surface Transportation Project Delivery Program; Florida DOT
Audit #4 Report
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Project Delivery Program, commonly
known as the National Environmental Policy Act (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 responsible and liable for the responsibilities it has assumed,
in lieu of FHWA. This program mandates annual audits during each of the
first 4 years to ensure the State's compliance with program
requirements. This is the fourth and final audit of the Florida
Department of Transportation's (FDOT) performance of its
responsibilities under the NEPA Assignment Program. This notice
finalizes the findings of the fourth and final audit report for FDOT.
FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of
Project Development and Environmental Review, (407) 867-6402,
<a href="/cdn-cgi/l/email-protection#dab7bba8b3a9bfb6f4b6b5aabfa0f7b9a8afa09abeb5aef4bdb5ac"><span class="__cf_email__" data-cfemail="aec3cfdcc7ddcbc280c2c1decbd483cddcdbd4eecac1da80c9c1d8">[email protected]</span></a>, Federal Highway Administration, U.S.
Department of Transportation, 400 W Washington Street, Room 4200,
Orlando, FL 32801, or Mrs. Michelle Andotra, Office of the Chief
Counsel, (404) 562-3679, <a href="/cdn-cgi/l/email-protection#b0ddd9d3d8d5dcdcd59ed1ded4dfc4c2d1f0d4dfc49ed7dfc6"><span class="__cf_email__" data-cfemail="630e0a000b060f0f064d020d070c17110223070c174d040c15">[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
title 23, United States Code (U.S.C.), section 327, commonly known as
the NEPA Assignment Program, allows a State to assume FHWA's
responsibilities for environmental 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. Effective December
14, 2016, FDOT assumed FHWA's responsibilities for environmental review
and the responsibilities for reviews under other Federal environmental
requirements.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits to ensure compliance with the memorandum of
understanding during each of the first 4 years of State participation
and, after the fourth year, monitor compliance. The results of each
audit must be made available for public comment. This notice finalizes
the findings of the fourth audit report on FDOT participation in the
program. A draft version of this report was published in the Federal
Register on December 14, 2022, at 87 FR 76535, and was available for
public review and comments. The FHWA received two responses to the
Federal Register Notice during the public comment period for this draft
report. One comment from the American Road and Transportation Builders
Association voiced support for this program and another was made by a
citizen. The citizen's comment was unrelated to this report.
Authority: Section 1313 of Public Law 112-141; section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
FINAL
Surface Transportation Project Delivery Program, FHWA Audit #4 of the
Florida Department of Transportation, May 2019 to April 2020
Executive Summary
This is a report of the fourth and final audit of the Florida
Department of Transportation's (FDOT) assumption of National
Environmental Policy Act (NEPA) responsibilities under the Surface
Transportation Project Delivery Program. Under the authority of section
327 of Title 23, United States Code (U.S.C.), FDOT and the Federal
Highway Administration (FHWA) executed a memorandum of understanding
(MOU) on December 14, 2016, whereby FHWA assigned, and FDOT assumed,
FHWA's NEPA responsibilities and liabilities for Federal-aid highway
projects and other related environmental reviews for transportation
projects in Florida.
The FHWA formed a team in January 2020 to conduct an audit of
FDOT's performance according to the terms of the MOU. The team held
internal meetings and reviewed FDOT's 2019 Project Development &
Environment (PD&E) Manual and NEPA project files, FDOT's response to
FHWA's pre-audit information request (PAIR), and FDOT's NEPA Assignment
Self Assessment Summary Report. The team presented initial project file
observations to FDOT Office of Environmental Management (OEM) on June
26, 2020, and July 28, 2020. The team conducted virtual interviews with
FDOT, resource agencies, and prepared preliminary audit results from
September 21-24, 2020. The team presented these preliminary
observations to FDOT OEM leadership on September 25, 2020.
While FDOT continues to develop, revise, and implement procedures
and processes required to carry out the NEPA Assignment Program, it is
FHWA's expectation that documentation to support a project's decision
will be included in the Statewide Environmental Project Tracker (SWEPT)
system prior to project closeout. By addressing the observation in this
report, FDOT will continue to assure a successful program.
Overall, the team found that FDOT remains committed to delivering a
successful NEPA Program. This report describes numerous successful
practices, no observations, and one non-compliance observation. The
FDOT has carried out the responsibilities it has assumed in keeping
with the intent of the MOU and FDOT's application. Through this report,
FHWA is notifying FDOT of the one non-compliance observation that
requires FDOT to take corrective action. The report concludes with the
status of FHWA's non-compliance observations from the first, second,
and third audit reviews, including any FDOT self-imposed corrective
actions.
Background
The purpose of the audits performed under the authority of 23
U.S.C. 327 is to assess a State's compliance with the provisions of the
MOU as well as all
[[Page 64510]]
applicable Federal statutes, regulations, policies, and guidance. The
FHWA's review and oversight obligation entails the need to collect
information to evaluate the success of the NEPA Assignment Program; to
evaluate a State's progress toward achieving its performance measures
as specified in the MOU; and to collect information for the
administration of the NEPA Assignment Program. This report summarizes
the results of the fourth audit in Florida 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 overall scope of this audit review is defined both in statute
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as
an official and careful examination and verification of accounts and
records, especially of financial accounts, by an independent unbiased
body. With regard to accounts or financial records, audits may follow a
prescribed process or methodology and be conducted by ``auditors'' who
have special training in those processes or methods. The FHWA considers
this review to meet the definition of an audit because it is an
unbiased, independent, official, and careful examination and
verification of records and information about FDOT's assumption of
environmental responsibilities.
The team consisted of NEPA subject matter experts (SME) from FHWA
offices in Texas, Georgia, and Headquarters, as well as staff from
FHWA's Florida Division. The diverse composition of the team, as well
as the process of developing the review report and publishing it in the
Federal Register, are intended to make this audit an unbiased official
action taken by FHWA.
The team conducted a careful examination of FDOT policies,
guidance, and manuals pertaining to NEPA responsibilities, as well as a
representative sample of FDOT's project files. Other documents, such as
the August 2020 PAIR responses and FDOT's August 2020 Self Assessment
Summary Report, also informed this review. In addition, the team
interviewed FDOT and resource and regulatory agency staff via video
conference. This review is organized around the six NEPA Assignment
Program elements: program management; documentation and records
management; quality assurance/quality control (QA/QC); legal
sufficiency; performance measurement; and training program. In
addition, the team considered three cross-cutting focus areas: (1)
Environmental Permits; (2) Process Improvements; and, (3) Project
Authorizations.
The team defined the timeframe for highway project environmental
approvals subject to this fourth audit to be between May 2019 and April
2020, when 635 projects were approved. The team drew judgmental samples
totaling 110 projects from data in FDOT's online file system, SWEPT. In
the context of this report, descriptions of environmental documents are
consistent with FDOT's Project Development and Environment Manual. The
FHWA judgmentally selected all reevaluations of Environmental Impact
Statements with Records of Decision (ROD) (three projects) and
Environmental Assessments with Findings of No Significant Impacts
(FONSI) (eight projects). The team selected a random sample of 61 Type
1 Categorical Exclusions (CE), 16 Type 2 CEs, and 22 Type 2 CE
Reevaluations, for a total of 110 projects in the sample. The team
reviewed all fiscal project authorization files in the audit period
(422 project files) downloaded from FHWA's Fiscal Management
Information System to determine if the NEPA certification was completed
for these projects prior to the authorization. In addition, for all
projects with a NEPA approval date within the audit year (316
projects), SWEPT was used to evaluate the supporting environmental
information. The remaining 106 projects used the FDOT Project Approvals
Reports to provide a cursory review of the environmental information.
The team submitted a PAIR to FDOT that contained 25 questions
covering all 6 NEPA Assignment Program elements. The FDOT responses to
the PAIR were used to develop questions for the virtual interviews with
FDOT staff.
The team conducted a total of 32 interviews. Interview participants
included staff from all seven FDOT District offices and the FDOT
Central Office. The team interviewed FDOT legal and environmental
staff. The team also interviewed representatives from the following
resource agencies: National Oceanic and Atmospheric Administration--
National Marine Fisheries Service; the U.S. Coast Guard; the U.S. Fish
and Wildlife Service; U.S. Army Corps of Engineers; and the State
Historic Preservation Officer from the Florida Department of State,
Division of Historic Resources.
The team compared FDOT policies and procedures (including the
published 2019 PD&E Manual) for the audit focus areas to the
information obtained during interviews and project file reviews to
determine if FDOT's performance of its MOU responsibilities are in
accordance with FDOT policies and procedures and Federal requirements.
Individual observations were documented during interviews and reviews
and combined under the six NEPA Assignment Program elements. The audit
results are described below by program element.
Overall Audit Opinion
The team recognizes that FDOT's efforts have included implementing
the requirements of the MOU by: processing and approving projects;
refining policies, procedures, and guidance documents; refining the
SWEPT Tracking System for official project files; training staff;
implementing a QA/QC Plan; and conducting a self assessment for
monitoring compliance with the assumed responsibilities. The team found
evidence of FDOT's continuing efforts to train staff in clarifying the
roles and responsibilities of FDOT staff, and in educating staff in an
effort to assure compliance with all of the assigned responsibilities.
During the fourth audit, the team identified numerous successful
practices, no observations, and one non-compliance observation that
FDOT will need to address through corrective actions.
The FDOT has carried out the responsibilities it has assumed
consistent with the intent of the MOU and FDOT's application. The team
finds that FDOT is in substantial compliance with the terms of the MOU.
By addressing the non-compliance observation in this report, FDOT will
continue to assure a successful program.
Successful Practices and Observations
Successful practices are practices that the team believes are
positive, and encourages FDOT to continue or expand those programs in
the future. The team identified numerous successful practices in this
report. Observations are items the team would like to draw FDOT's
attention to, which may improve processes, procedures, and/or outcomes.
The team identified no observations in this report.
A non-compliance observation is an instance where the team finds
the State is not in compliance or is deficient with regard to a Federal
regulation, statute, guidance, policy, State procedure, or the MOU.
Non-compliance may also include instances where the State has failed to
secure or maintain adequate personnel and/or financial resources to
carry out the responsibilities they have assumed. The FHWA expects the
State to develop and implement corrective actions to address all non-
compliance
[[Page 64511]]
observations. The team identified one non-compliance observation during
this fourth audit.
The team acknowledges that sharing initial results during the
closeout and sharing the draft audit report with FDOT provided them the
opportunity to clarify any observation, as needed, and/or begin
implementing corrective actions to improve the program.
The Audit Report addresses all six MOU program elements as separate
discussions.
Program Management
Successful Practices
The FDOT has continued and expanded its working relationships with
the resource agencies. The FDOT has been meeting early and often with
some resource agencies to discuss ongoing and future projects. This
enhanced communication minimizes delays in project delivery and
permitting processes. The Efficient Transportation Decision Making
process was in place prior to NEPA Assignment and this tool continues
to foster good relationships between FDOT and the resource agencies.
Districts are beginning to conduct periodic Environmental Technical
Advisory Team (ETAT) Webinars instead of annual ETAT meetings to
discuss upcoming projects. In addition, federally funded positions
dedicated to FDOT projects reduce delays in project delivery.
The SWEPT is a fundamental component of FDOT's NEPA Assignment
success. The SWEPT continues to be a critical and flexible tool in
implementing the NEPA Assignment Program responsibilities. The review
team learned through the interviews that as FDOT users have become more
familiar with the SWEPT System, they have praised its usefulness in
streamlining the NEPA documentation process. The SWEPT provides
standards for documentation in templates, provides a consistent
interface, and facilitates the creation of the administrative record.
Users also have an opportunity to provide input to improve SWEPT's
ability to track project progression. The SWEPT has continued to evolve
and is now used to support the permitting process for some projects.
The FDOT's internal communication is robust and effective. As
FDOT's NEPA Assignment Program matures, communication and relationships
continue to improve between FDOT's OEM staff, district staff, and
consultants. Communications at the program level between OEM and
district staff have become a regular part of their day-to-day
operations. The OEM engagement through the Project Delivery
Coordinators has helped save time on projects and improved consistency.
Monthly meetings within the districts among environmental staff and
permit coordinators have improved project development and delivery. One
district holds quarterly meetings between permitting, environmental
management, and construction offices to discuss outstanding items and
issues.
The FDOT Districts accelerate NEPA project delivery through
enhanced scoping. The review team learned through interviews that two
districts have staff complete surveys and assessments before the NEPA
process begins to accelerate project delivery. Once the NEPA process
begins, the district consultants are then able to complete the NEPA
phase in a shorter timeframe, without having to wait on seasonal
surveys, such as those required for some species, and other information
that is needed for the NEPA decisions. This early information gathering
is an example of Planning and Environment Linkages to allow for
accelerated NEPA project delivery and reduced costs for consultant
services in the environmental phase.
Quality Assurance/Quality Control
Successful Practice
The SWEPT provides a QA/QC advantage. The review team learned
through interviews that SWEPT provides additional environmental
document quality control for the project file. The use of templates in
SWEPT and the SWEPT System validation control point prevents project
advancement and approval until required documents are uploaded and
serves as additional QA/QC tools.
Legal Sufficiency
Successful Practices
The FDOT has an attorney dedicated to Section 4(f) reviews. Section
4(f) is a complex law which is challenging to master and implement.
This practice allows FDOT counsel to provide consistent advice, develop
subject matter expertise, and allows for streamlined reviews ensuring
the analysis meets the legal sufficiency requirements in accordance
with 23 CFR part 774.
Counsel has been fully integrated into the NEPA decisionmaking
process. The FDOT Districts routinely contact counsel with questions
throughout the NEPA development process. Consulting early and often
with counsel has not only expedited the NEPA decisionmaking process but
also translated into counsel being invited to participate in other
phases of project development and policy matters.
Training Program
The FDOT has continued to focus resources ensuring staff, other
agencies, and consultants are adequately trained. In the audit period
FDOT again trained more than 2,300 staff, consultants, resource
agencies and local agencies in over 100 courses on topics such as
Section 4(f), Permits, Wetlands, and the PD&E Manual. Through
information presented in the FDOT Self Assessment and the interviews,
the review team learned of the variety in, and growth of, FDOT's
environmental training program.
Successful Practice
The FDOT has a strong onboarding process when new employees join
the OEM. The OEM initiated a 6-month pilot program to conduct weekly
sessions led by technical experts. These onboarding mentoring sessions
with SMEs are being recorded and made available for other FDOT staff to
watch on demand.
Performance Measures
Based on information reported in FDOT's 2020 Self Assessment
Summary Report, FDOT met, exceeded, or was close to achieving all
targets for the review period.
Documentation and Records Management
The team reviewed environmental documentation for 61 Type 1 CEs, 16
Type 2 CEs, and 33 Reevaluations which included RODs, FONSIs, and Type
2 CEs to determine if the environmental review met Federal
requirements. The team also reviewed 422 fiscal project authorization
files to determine if NEPA was completed for these projects prior to
the authorization.
Non-Compliance Observation #1: Some FDOT project files contain
insufficient documentation to support the project authorization,
environmental analysis, or environmental decision.
The team found some CEs that did not have a Statewide
Transportation Improvement Program (STIP) page or had an outdated STIP
page (10 projects) in their documentation for fiscal constraint. The
team also found that some fiscal project authorizations did not have
documentation verifying that NEPA was completed (11 projects). The FDOT
has already updated the SWEPT System by uploading any missing
documentation. In addition, FDOT committed to making process
[[Page 64512]]
improvements to address any remaining concerns.
While the SWEPT System has validation control points in place,
there are still opportunities for additional enhancements regarding
quality assurance to ensure these documents are included in all project
files. It is FHWA's expectation that documentation to support a
project's decision will be included in the SWEPT system prior to
project closeout.
Update From Previous Audit Findings
The FHWA reported a non-compliance observation related to some FDOT
project files that lacked documentation to support the environmental
analysis or decision as part of Audit #1, Audit #2, and Audit #3. Also,
as part of Audit #3, FHWA identified the lack of documentation to
support the project authorization. The FDOT and FHWA have productively
worked together to resolve documentation issues from these previous
audits. The FDOT implemented several process improvements to address
noted procedural deficiencies.
2017 Audit #1, Non-Compliance Observation #1 and 2018 Audit #2,
Non-Compliance Observation #1: Some FDOT project files contain
insufficient documentation to support the environmental analysis or
decision.
To address the 2017 and 2018 findings, FDOT implemented
enhancements to SWEPT including revisions to the Type 1 CE checklist,
the Type 2 CE form, and the reevaluation form. They added STIP and the
Transportation Improvement Plan planning consistency uploading
instructions, added validation for data within the Type 1 CE checklist
for right-of-way, wetlands, floodplains, and waterways, added an
attachment point for the project commitment record in the Type 1 CE
checklist, allowed multiple attachments for Section 7 Endangered
Species Act concurrence letters, integrated Section 4(f) approvals for
applicable classes of action, and developed a spreadsheet tool for the
project managers to verify which documents need to be uploaded to the
project file. The FDOT also updated the PD&E manual, conducted training
for their staff on the SWEPT and PD&E manual enhancements and on the
areas of noted deficiencies. The FDOT also developed computer based
training in some of these areas for future use.
2019 Audit #3, Non-Compliance Observation #1: Some FDOT project
files contain insufficient documentation to support the project
authorization, environmental analysis or decision.
To address the 2019 findings, FDOT implemented enhancements to
SWEPT by adding validation for data within the Type 1 CE checklist for
bridge permits. The FDOT also updated the PD&E manual, conducted
training for their staff on the SWEPT, and made PD&E manual
enhancements in the noted deficiency areas. The FDOT also developed
computer based training for class of actions, CEs, and environmental
assessments.
The improvements made in response to the 2017, 2018, and 2019
observations were assessed during this final audit and are considered
sufficient to address the issues underlying the non-compliance
observations in those audits.
Finalizing This Report
The FHWA received two responses to the Federal Register Notice
during the public comment period for this draft report. One comment
from the American Road and Transportation Builders Association voiced
support of this program and another was made by a citizen. The
citizen's comment was unrelated to this report. This report is a
finalized version of the draft report without substantive changes.
[FR Doc. 2023-20220 Filed 9-18-23; 8:45 am]
BILLING CODE 4910-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 19, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.