[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Notices]
[Pages 85303-85311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28353]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2016-0025]


Surface Transportation Project Delivery Program; TxDOT Audit #3 
Report

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice, request for comment.

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SUMMARY: The Surface Transportation Project Delivery 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 carrying out the responsibilities it has 
assumed, in lieu of FHWA. Prior to the Fixing America's Surface 
Transportation (FAST) Act of 2015, the Program required semiannual 
audits during each of the first 2 years of State participation to 
ensure compliance by each State participating in the Program. This 
notice announces and solicits comments on the third audit report for 
the Texas Department of Transportation's (TxDOT) participation in 
accordance to these pre-FAST Act requirements.

DATES: Comments must be received on or before December 27, 2016.

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 www.regulations.gov. 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-

[[Page 85304]]

addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically. Anyone is able 
to search the electronic form of all comments in any one 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 www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 FDMS), which can 
be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Dr. Owen Lindauer, Office of Project 
Development and Environmental Review, (202) 366-2655, 
[email protected], or Mr. Alan Strasser, Office of the Chief 
Counsel, (202) 366-1356, [email protected], Federal Highway 
Administration, Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    An electronic copy of this notice may be downloaded from the 
specific docket page at www.regulations.gov.

Background

    The Surface Transportation Project Delivery Program (or NEPA 
Assignment Program) allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal 
highway projects. This provision has been codified at 23 U.S.C. 327. 
When a State assumes these Federal responsibilities, the State becomes 
solely responsible and liable for carrying out the responsibilities it 
has assumed, in lieu of FHWA. The TxDOT published its application for 
assumption under the National Environmental Policy Act (NEPA) 
Assignment Program on March 14, 2014, at Texas Register 39(11): 1992, 
and made it available for public comment for 30 days. After considering 
public comments, TxDOT submitted its application to FHWA on May 29, 
2014. The application served as the basis for developing the Memorandum 
of Understanding (MOU) that identifies the responsibilities and 
obligations TxDOT would assume. The FHWA published a notice of the 
draft of the MOU in the Federal Register on October 10, 2014, at 79 FR 
61370 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 
TxDOT considered comments and proceeded to execute the MOU. Since 
December 16, 2014, TxDOT has assumed FHWA's responsibilities under NEPA 
and the responsibilities for reviews under other Federal environmental 
requirements.
    Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary 
to conduct semiannual audits during each of the first 2 years of State 
participation, annual audits during years 3 and 4, and monitoring each 
subsequent year of State participation to ensure compliance by each 
State participating in the Program. The results of each audit were 
required to be presented in the form of an audit report and be made 
available for public comment. On December 4, 2015, the President signed 
into law the FAST Act, Public Law 114-94, 129 Stat. 1312 (2015). 
Section 1308 of the FAST Act amended the audit provisions by limiting 
the number of audits to one audit each year during the first 4 years of 
a State's participation. However, FHWA had already conducted the second 
audit for TxDOT's participation. This notice announces the availability 
of the report for the third audit for TxDOT conducted prior to the FAST 
Act and solicits public comment on same.

    Authority:  Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85.

    Issued on: November 17, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.

Draft

Surface Transportation Project Delivery Program FHWA Audit #3 of the 
Texas Department of Transportation, December 17, 2015 to June 16, 2016

Executive Summary

    This report summarizes the findings of FHWA's third audit review 
(Audit #3) to assess the performance by the Texas Department of 
Transportation (TxDOT) regarding its assumption of responsibilities and 
obligations, as assigned by Federal Highway Administration (FHWA), 
under a memorandum of understanding (MOU) which took effect on December 
16, 2014. From that date, TxDOT assumed FHWA National Environmental 
Policy Act (NEPA) responsibilities assigned for the environmental 
review and compliance, and for other environmental laws related to NEPA 
for highway projects in Texas (NEPA Assignment Program). The status of 
FHWA's observations from the second audit review (Audit #2), including 
any TxDOT self-imposed corrective actions, is detailed at the end of 
this report.
    The FHWA Audit #3 team (team) was formed in February 2016 and met 
regularly to prepare for the on-site portion of the audit. Prior to the 
on-site visit, the team: (1) Performed reviews of project files in 
TxDOT's Environmental Compliance Oversight System (ECOS), (2) examined 
TxDOT's responses to FHWA's information requests, and (3) developed 
interview questions. The on-site portion of this audit, comprised of 
TxDOT and other agency interviews, was conducted on April 11-15, 2016.
    The TxDOT continues to develop, revise, and implement procedures 
and processes required to carry out the NEPA Assignment Program. 
Overall, the team found continued evidence that TxDOT is committed to 
establishing a successful program. This report summarizes the team's 
assessment of the current status of several aspects of the NEPA 
Assignment Program, including numerous successful practices and six 
observations that represent opportunities for TxDOT to improve its 
program. The team identified four non-compliance observations that 
TxDOT will need to address as corrective actions, if not already 
addressed, in FHWA's next review or audit.
    The TxDOT has continued to make progress toward meeting the 
responsibilities it has assumed in accordance with the MOU. Through 
this report, FHWA is notifying TxDOT of several non-compliance 
observations that require TxDOT to take corrective action. By taking 
corrective action and considering changes based on the observations in 
this report, TxDOT should continue to move the NEPA Assignment Program 
forward successfully.

Background

    The Surface Transportation Project Delivery Program allows a State 
to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for highway projects. This Program is 
codified at 23 U.S.C. 327. When a State assumes these Federal 
responsibilities for NEPA project decisionmaking, the State becomes 
solely responsible and liable for carrying out these obligations in 
lieu of and without further approval by FHWA.
    The State of Texas was assigned the responsibility for making NEPA 
project approvals and the responsibility for making other related 
environmental decisions for highway projects on December 16, 2014. In 
enacting Texas Transportation Code, Sec.  201.6035, the

[[Page 85305]]

State has waived its sovereign immunity under the 11th Amendment of the 
U.S. Constitution and consents to defend any actions brought by its 
citizens for NEPA decisions it has made in Federal court.
    The FHWA responsibilities assigned to TxDOT are specified in the 
MOU. These responsibilities include: Compliance with the Endangered 
Species Act (ESA) Section 7 consultations with the U.S. Fish and 
Wildlife Service (USFWS) and the National Oceanic and Atmospheric 
Administration's National Marine Fisheries Service, and Section 106 
consultations with the Texas Historical Commission (THC) regarding 
impacts to historic properties. Other responsibilities may not be 
assigned and remain with FHWA. They include: (1) Responsibility for 
project-level conformity determinations under the Clean Air Act and (2) 
the responsibility for government-to-government consultation with 
federally-recognized Indian tribes. Based on 23 U.S.C. 327(a)(2)(D), 
any responsibility not explicitly assigned in the MOU is retained by 
FHWA.
    The TxDOT's MOU specifies that FHWA is required to conduct six 
audit reviews. These audits are part of FHWA's oversight responsibility 
for the NEPA Assignment Program. The reviews are to assess a State's 
compliance with the provisions of the MOU as well as all applicable 
Federal laws and policies. They also are used to evaluate a State's 
progress toward achieving its performance measures as specified in the 
MOU; to evaluate the success of the NEPA Assignment Program; and to 
inform the administration of the findings regarding the NEPA Assignment 
Program. In December 2015, statutory changes in Section 1308 of the 
Fixing America's Surface Transportation Act (FAST Act), reduced the 
frequency of these audit reviews to one audit per year during the first 
four years of state participation in the program.

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 TxDOT's assumption of 
environmental responsibilities. Principal members of the team that 
conducted this audit have completed special training in audit processes 
and methods.
    The diverse composition of the team, the process of developing the 
review report, and publishing it in the Federal Register help maintain 
an unbiased review and establish the audit as an official action taken 
by FHWA. The team for Audit #3 included NEPA subject-matter experts 
from the FHWA Texas Division Office, as well as FHWA offices in 
Washington, DC, Atlanta, GA, and Tallahassee, FL. In addition to the 
NEPA experts, the team included FHWA planners, engineers, and air 
quality specialists from the Texas Division office.
    Audits, as stated in the MOU (Parts 11.1.1 and 11.1.5), are the 
primary mechanism used by FHWA to oversee TxDOT's compliance with the 
MOU and ensure compliance with applicable Federal laws and policies, 
evaluate TxDOT's progress toward achieving the performance measures 
identified in the MOU (Part 10.2), and collect information needed for 
the Secretary's annual report to Congress. These audits also must be 
designed and conducted to evaluate TxDOT's technical competency and 
organizational capacity, adequacy of the financial resources committed 
by TxDOT to administer the responsibilities assumed, quality assurance/
quality control process, attainment of performance measures, compliance 
with the MOU requirements, and compliance with applicable laws and 
policies in administering the responsibilities assumed. The four 
performance measures identified in the MOU are: (1) Compliance with 
NEPA and other Federal environmental statutes and regulations, (2) 
quality control and quality assurance for NEPA decisions, (3) 
relationships with agencies and the general public, and (4) increased 
efficiency, timeliness, and completion of the NEPA process.
    The scope and focus of this audit included reviewing the processes 
and procedures (i.e., toolkits) used by TxDOT to reach and document its 
independent project decisions. The team conducted a careful examination 
of highway project files in TxDOT's ECOS and verified information on 
the TxDOT NEPA Assignment Program through inspection of other records 
and through interviews of TxDOT and other staff. The team gathered 
information that served as the basis for this audit from three primary 
sources: (1) TxDOT's response to a pre-audit #3 information request, 
(2) a review of both a judgmental and random sample of project files in 
ECOS with approval dates subsequent to the execution of the MOU, and 
(3) interviews with TxDOT, the USFWS, U.S. Environmental Protection 
Agency (USEPA), and THC staff. The TxDOT provided information in 
response to FHWA pre-audit questions and requests for documents. That 
material covered the following six topics: Program management, 
documentation and records management, quality assurance/quality 
control, legal sufficiency review, performance measurement, and 
training. The team subdivided into working groups that focused on 
considering TxDOT's performance according to each of the six topics.
    The intent of the review was to check that TxDOT has the proper 
procedures in place to implement the responsibilities assumed through 
the MOU, ensure that the staff is aware of those procedures, and that 
staff implements the procedures appropriately to achieve compliance 
with NEPA and other assigned responsibilities. The review did not 
evaluate the substance of project-specific decisions or second guess 
those decisions, as such decisions are the sole responsibility of 
TxDOT. The team focused on whether the procedures TxDOT followed 
complied with Federal statutes, regulation, policy, procedure, process, 
guidance, and guidelines.
    The team defined the timeframe for highway project environmental 
approvals subject to this third audit to be between July 1, 2015, and 
January 29, 2016. The third audit intended to: (1) Evaluate whether 
TxDOT's NEPA decisionmaking and other actions comply with all the 
responsibilities it assumed in the MOU, and (2) determine the current 
status of observations in the Audit #2 report, as well as required 
corrective actions (see summary at end of this report). The population 
of environmental approvals included 1489 projects based on certified 
lists of NEPA approvals reported monthly by TxDOT. The NEPA approvals 
included 1423 categorical exclusion determinations (CEs), approvals to 
circulate Environmental Assessments (EAs), findings of no significant 
impacts (FONSI), re-evaluations of EAs, Section 4(f) decisions, 
approvals of a draft environmental impact statement (EIS), and records 
of decision (RODs). The team drew a sample with a 95 percent confidence 
interval with a 10 percent margin of error. This sample included 93 
randomly selected CE projects and

[[Page 85306]]

all 66 approvals that were not CEs. The team reviewed 159 project files 
in this review.
    The interviews conducted by the team focused on TxDOT's leadership 
and staff at the Environmental Affairs Division (ENV) Headquarters in 
Austin and staff in ten of TxDOT's Districts. The team divided into 
three groups to complete the face-to-face interviews of District staff 
in El Paso and Odessa; Pharr and Yoakum; and San Angelo, Abilene, and 
Brownwood. Staff from the Wichita Falls, Atlanta, and Lufkin Districts 
completed interviews via remote tele-conference. The team continued to 
use the same review form and interview questions for Districts as used 
in Audits #1 and 2. With these last 10 interviews completed, staff from 
all 25 TxDOT Districts were interviewed as part of FHWA's audits.

Overall Audit Opinion

    The TxDOT continues to make progress in the implementation of its 
program that assumes FHWA's NEPA project-level decision authority and 
other environmental responsibilities. The team acknowledges TxDOT's 
effort to refine, and when necessary, establish internal policies and 
procedures. The team found ample evidence of TxDOT's continuing efforts 
to train staff in clarifying the roles and responsibilities of TxDOT 
staff, and in educating staff in an effort to assure compliance with 
all of the assigned responsibilities.
    The team identified several non-compliant observations in this 
review that TxDOT will need to address through corrective actions. 
These observations come from a review of TxDOT procedures, project file 
documentation, and interview information. This report also identifies 
several notable good practices that we recommend be expanded upon.

Non-Compliance Observations

Audit #3
    Non-compliance observations are instances where the team found the 
TxDOT was out of compliance or deficient with regard to a Federal 
regulation, statute, guidance, policy, the terms of the MOU, or TxDOT's 
procedures for compliance with the NEPA process. Such observations may 
also include instances where TxDOT 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 take 
into account the concerns of other Federal, State, tribal, or local 
agencies with oversight, consultation, or coordination 
responsibilities. The FHWA expects TxDOT to develop and implement 
corrective actions to address all non-compliance observations. As part 
of information gathered for this audit, TxDOT has informed the team 
they are still implementing some recommendations made by FHWA on Audit 
#2 to address non-compliance. The FHWA will conduct follow up reviews 
of non-compliance observations.
    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 TxDOT 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 includes statutory provisions, regulations, policies, and guidance 
related to the implementation of NEPA for Federal highway projects such 
as 23 U.S.C. 139, 40 CFR 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 TxDOT to maintaining documented compliance with 
requirements of all applicable statutes and regulations, as well as 
procedures and processes set forth in the MOU. The following four non-
compliance observations were found by the team based on review of TxDOT 
ENV toolkit/handbook procedures, documentation in project files, and 
other sources.

Audit #3 Non-Compliance Observation #1

Section 7 Consultation
    The TxDOT has assumed the responsibilities for compliance with the 
ESA of 1973 (16 U.S.C. 1531-1544) and developed a procedure, as part of 
the TxDOT environmental toolkit, for staff to make ESA determinations. 
Through project file reviews, the team found that TxDOT's toolkit 
procedures do not comply with the ESA requirements and USFWS policy \1\ 
in circumstances where an endangered species or its habitat is present. 
Pursuant to MOU part 3.1.1 (see above), TxDOT's procedures must also be 
consistent with FHWA guidance and the USFWS & NMFS 1998 Endangered 
Species Consultation Handbook. Specifically, when a species or its 
habitat is present within a project's impact area and impact is 
possible, the project file needs to show consultation with USFWS or 
provide documentation explaining how the project impacts will have no 
effect on either species or their habitat. The TxDOT needs to take 
action to revise its ESA procedures when an endangered species or its 
habitat is present to make those procedures consistent with Federal 
policy and guidance. The team urges TxDOT staff to meet with USFWS 
staff to discuss how the revised procedures would result in more a 
consistent set of determinations.
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    \1\ USFWS & NMFS 1998 Endangered Species Consultation Handbook, 
Standard Operating Procedure for Accessing USFWS Ecological Services 
for Technical Assistance and Section 7 Consultations; 300.01 SOP 
Version 2, September 2015.
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    In four of the five project files reviewed, where an endangered 
species or its habitat was present, TxDOT's procedure allowed for a 
professional biologist's judgment in making an ESA determination of 
``no effect,'' without either supporting documentation or consultation 
with USFWS. The team has informed TxDOT of this deficiency and TxDOT 
has indicated it has reviewed similarly-made ESA determinations to 
check for errors.

Audit #3 Non-Compliance Observation #2

Noise Policy
    Non-compliance observation #2 results from 11 project files where 
the template letter fails to inform about the non-eligibility for 
Federal-aid participation in Type II traffic noise abatement projects 
as required by 23 CFR 772.17(a)(3). Three of those same projects did 
not follow TxDOT's noise wall policy previously approved by FHWA. The 
FHWA complies with its noise regulations (23 CFR 772) by reviewing and 
approving each State's noise guidance and then relying on the State to 
follow those procedures. For Texas, its noise guidelines (Guidelines 
for Analysis and Abatement of Roadway Traffic Noise, 2011) represents 
the noise policy reviewed and approved by FHWA that serves as the basis 
for compliance with 23 CFR 772. In 2016, TxDOT updated its noise 
guidelines but did not submit that material to FHWA for review and 
approval pursuant to 23 CFR 772.7(b). Therefore, TxDOT cannot use these 
guidelines as a basis for compliance with 23 CFR 772. The team found 
inconsistencies and incorrect information in the ECOS project file of 
record such as: notification to locals with jurisdiction occurring 
before a

[[Page 85307]]

NEPA decision was made; the date of public knowledge improperly 
occurring before the NEPA decision; and holding a noise workshop before 
the public hearing. Two of the three projects followed the unapproved 
2016 noise policy rather than the 2011 noise policy and were found to 
be non-compliant with the 2011 policy. These non-compliant observations 
result from TxDOT having two noise policies, one that has been FHWA 
approved (2011) and another more recent version that has not been 
approved. If TxDOT intends to update its 2011 noise policy, FHWA must 
review and approve the new policy before TxDOT may apply it to 
projects. Until then, TxDOT needs to take action to ensure compliance 
with the 2011 policy.

Audit #3 Non-Compliance Observation #3

Public Involvement
    Non-compliance observation #3 is based upon evidence in files for 
four projects reviewed that TxDOT did not follow its public involvement 
procedure and toolkit requirements.\2\ The FHWA's regulation at 23 CFR 
771.111(h)(1) requires that each State have FHWA approved public 
involvement procedures to implement the public involvement/public 
hearing requirements in law and regulation. The review team found that 
TxDOT inconsistently applied its public involvement procedures. 
Although TxDOT has detailed public involvement procedures in place, 
TxDOT staff sometimes fails to follow those procedures. In one project 
file, TxDOT did not hold a public hearing for a project on new 
alignment as required in the State's procedures.\3\ Another project 
file lacked documentation of public involvement required by the TxDOT 
procedures.\4\
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    \2\ TxDOT's Environmental Handbook/Public Involvement; 760.01 
GUI Version 2, August 2015.
    \3\ See id., Part 5.1.
    \4\ See id., Part 11.
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    In addition, the team reviewed a project file showing that TxDOT 
made a finding of no significant impact (FONSI) for an action described 
in 23 CFR 771.115(a) without evidence of a required additional public 
notification. The FHWA's regulation at 23 CFR 771.119(h) requires 
public notification to occur 30 days prior to issuing a FONSI. The team 
reviewed the TxDOT public involvement toolkit and found no mention of 
the Federal requirement for public notification under these 
circumstances. The TxDOT is currently modifying its public involvement 
procedures and has requested that FHWA review and approve those 
procedures pursuant to 23 CFR 771.111(h). The TxDOT needs to take 
corrective action to comply with the regulatory requirements for public 
involvement consistent with either its 2015 handbook or a revised 
public involvement policy that has been reviewed and approved by FHWA.

Audit #3 Non-Compliance Observation #4

Section 4(f)
    Non-compliance observation #4 results from the review of one 
project file that lacked the required documentation for compliance with 
Section 4(f) as specified in 23 CFR 774.7 and TxDOT's Environmental 
Handbook/U.S. Department of Transportation Act: Section 4(f); 810.01 
GUI Version 1 dated May 2015. The project file lacked the date and 
identity of the individual who made a de minimis impact determination. 
The TxDOT did not follow established Section 4(f) toolkit procedures. 
The TxDOT should ensure that all required Section 4(f) documentation is 
complete and included in a project's file.

Successful Practices and Other Observations

    This section summarizes the team's observations about issues or 
practices that TxDOT may consider as areas to improve. It also 
summarizes practices that the team believes are successful, so that 
TxDOT can consider continuing or expanding those programs in the 
future. Further information on these observations and successful 
practices is contained in the following subsections that address these 
six topic areas: Program management; documentation and records 
management; quality assurance/quality control; legal sufficiency; 
performance management; and training.
    Throughout the following subsections, the team lists nine remaining 
observations that FHWA recommends TxDOT consider in order to make 
improvements. The FHWA's suggested implementation methods of action 
include: Corrective action, targeted training, revising procedures, 
continued self-assessment, or some other means. The team acknowledges 
that, by sharing the preliminary draft audit report with TxDOT, TxDOT 
has begun the process of implementing actions to address these 
observations to improve its program prior to the publication of this 
report.

1. Program Management

Successful Practices and Observations

    Over the course of interviewing all 25 Districts over the past 18 
months, the team noted that District staff welcomed the opportunity to 
be responsible for making CE approvals. Additionally, TxDOT District 
staff members and management have said in interviews that they are more 
diligent with their documentation because they know that these 
approvals will be internally assessed and the District held accountable 
by the TxDOT ENV Self-Assessment Branch (SAB). District staff indicated 
in interviews that the SAB detailed reviews are highly valued because 
they can learn from their mistakes and improve. Accountability, in 
part, is driving an enhanced desire for TxDOT staff to correctly 
document environmental compliance.
    The team recognizes enhanced communication among individuals in the 
project development process as a successful practice. Information 
gained from interviews and materials provided by TxDOT demonstrate 
improved communication amongst Districts and between Districts and ENV. 
Staff interviewed in Rural Districts indicated that in the past they 
received less attention from ENV than Metropolitan Districts. The team 
noted that ``NEPA Chats'' (regular conference calls led by ENV, 
providing a platform for Districts to discuss complex NEPA 
implementation issues) have helped remove any perceived disparity. 
Urban and Rural Districts feel more included and a part of the 
conversation. The team noted that Rural District staff developed their 
own networks to keep each other informed. District environmental and 
planning staff told the team that they take initiative and break down 
internal District silos between planning, design, construction, and 
maintenance. This includes providing internal self-initiated training 
across disciplines so everyone in the District Office is aware of TxDOT 
procedures to ensure that staff follows NEPA-related processes and 
either keeps projects on-schedule or ensures that there are no 
surprises if projected schedules slip. Finally, the ENV Division 
Director initiated a new approach to effective ENV-District staff 
communication. The Director established an informal three-member 
advisory board with rotating representatives from each of the 
Metropolitan, Urban, and Rural Districts. This board meets with the 
Director to identify and discuss issues and concerns that should be 
addressed by ENV. This exchange and feedback loop should prove 
informative, enable

[[Page 85308]]

the success of the NEPA Assignment Program, and allow for any needed 
changes or adaptations based on District input.
    The team noted that the Air Quality reviewers at TxDOT ENV work 
extremely well with FHWA in processing this unassigned component of the 
program. The ENV reviewers are empowered to perform their own QA/QC 
review of District-produced material before it is sent to FHWA for 
approval. Retaining and using highly skilled, technical expertise in-
house at ENV promotes an efficient and consistent interpretation of 
Federal regulations and a successful procedure-driven process. This 
ensures compliance from the outset and should be seen as a model to be 
duplicated in other areas.

Audit #3 Observation #1

    The team identified one project file that showed that the NEPA 
review was incomplete despite the project appearing on a list of 
projects certifying that all environmental requirements had been 
completed pursuant to the MOU (See Part 8.2.6.). Projects that TxDOT 
reports as certified may be processed to receive Federal-aid funding 
from FHWA. Through follow up conversations with TxDOT, the team learned 
that reporting this project was an error that has since been rectified. 
The team urges TxDOT to include a quality control review step as part 
of its process to ensure that only projects that have satisfied all 
environmental requirements are certified and reported to FHWA.

2. Documentation and Records Management

    The team relied on information in ECOS, TxDOT's official file of 
record, to evaluate project documentation and records management 
practices. Many TxDOT toolkit and handbook procedures mention the 
requirement to store official documentation in ECOS. The ECOS is also a 
tool for storage and management of information records, as well as for 
disclosure within TxDOT District Offices, between Districts and ENV, 
and between TxDOT and the public. The TxDOT staff noted that ECOS is 
both adaptable and flexible. The TxDOT must maintain and update the 
ECOS operating protocols (for consistency of use and document/data 
location) and educate its users on updates in a timely manner.

Successful Practices and Observations

    A number of best practices demonstrated by TxDOT were evident as a 
result of the documentation and records management review.
    The team learned through interviews that many TxDOT staff members 
routinely use and are becoming increasingly comfortable with the (still 
optional) scope development tool. Some staff indicated that they also 
utilized the scope development tool to develop their own checklists to 
ensure that all environmental requirements have been met prior to 
making a NEPA approval.
    The team noted from interviews of USFWS and ENV subject matter 
staff that Biological Assessment (BA) and Biological Opinion (BO) 
documentation is more detailed and provides for supportable 
conclusions. Specifically, the team learned that information in the BA 
was formatted so that it could be incorporated directly into a BO, 
which results in faster completion of ESA compliance and thus reduced 
review timeframes.

Audit #3 Observation #2

    The team continued to find instances in which individual project 
files contained inconsistent and, in some cases, contradictory 
Environmental Permits Issues and Commitments (EPICs) information. The 
TxDOT procedures allow for documentation to be uploaded into the 
documentation tab as well as into an EPIC tab. The EPIC tab indicates 
``No EPICs exist for this project'' as the default statement. The ENV 
management stated that an updated procedure allows for this 
discrepancy. The team urges TxDOT to develop a procedure where EPIC 
information may be consistently documented and found in ECOS.

3. Quality Assurance/Quality Control (QA/QC)

Successful Practices and Observations

    The team observed several successful practices currently in place 
that align with TxDOT's QA/QC Control Procedures for Environmental 
Documents.
    The team found evidence that TxDOT's approach to Quality Assurance 
by SAB is functioning well as a post-NEPA approval review. The team 
once again heard positive feedback in District staff interviews 
regarding the SAB, noting that the SAB's comments are very helpful and 
timely. According to TxDOT's self-assessment report, the SAB group 
reviewed 100 percent of all CE documents in January 2016 and reported 
the results to all Districts via webinars to ensure that all District 
personnel were up to date on proper procedures and a consistent message 
regarding corrective actions were relayed to all District environmental 
staff. The TxDOT also reports that there was a SAB effort to train 
District staff in public involvement procedures and to provide 
information on the new Section 106 programmatic agreement. During our 
interviews, we also learned that close out meetings have been held for 
EA projects to share lessons learned among District, ENV, and TxDOT 
subject matter expert environmental staff. As a result of this team 
effort, since Audit #1, we observed that Districts have welcomed the 
opportunity to be responsible for CE decisions that are delegated to 
their level. Additionally those Districts are more careful with their 
documentation and reviews because they know that the TxDOT ENV SAB will 
internally assess those decisions and hold them accountable.

4. Legal Sufficiency Review

    Based on the interviews and review of documentation, the 
requirements for legal sufficiency under the MOU are being adequately 
fulfilled.
    The level of legal expertise available for reviews appears to be 
sufficient, based on information gained from interviews. Currently 
there are three attorneys in TxDOT's General Counsel Division (GCD) 
(previously referred to as Office of General Counsel, OGC) with two of 
the attorneys having been hired in the last six months. One of the new 
attorneys has environmental law experience (primarily in water quality 
and water utilities issues) but no highway or NEPA experience. Both new 
attorneys have attended four NEPA training courses that ENV provided 
(via the FHWA Resource Center) and are scheduled to attend two more. 
One of the new attorneys was very complimentary of the quality of the 
training and its usefulness in guiding her reviews. The GCD also has 
contracts with three outside law firms on an ``as needed'' basis and an 
outside contract attorney who has provided legal assistance on 
environmental issues for a number of years to ENV.
    The GCD assistance continues to be guided by ENVs Project Delivery 
Manual Sections 303.080 through 303.086. These sections provide 
guidance on conducting legal sufficiency review of FHWA-funded projects 
and publishing a Notice of Intent to prepare an EIS and a Notice of 
Availability in the Federal Register.
    In February 2016, TxDOT received a notice of intent to sue by a 
Non-Governmental Organization for a Federal project for which they made 
the environmental decision. The TxDOT notified the FHWA Office of the 
Chief Counsel, as required by the MOU.

[[Page 85309]]

    Based on a report provided by GCD, since April 2015, GCD had 
reviewed or been involved in legal review for six project actions. 
These included four 139(l) notices, an FEIS, and one NOI. The ENV 
project managers make requests for review of a document to the lead 
attorney, who then assigns that document for formal legal review. That 
lead attorney then assigns the document to one of the attorneys based 
on workload and complexity. Attorney comments are provided in the 
standard comment response matrix back to ENV. All comments must be 
satisfactorily addressed for GCD to complete its legal sufficiency 
review. The GCD does not issue conditional legal sufficiency 
determinations.

Successful Practice

    Based on our discussions, GCD is very involved with the Districts 
and ENV throughout the NEPA project development process and legal 
issues. The team did note more open communication between all GCD, ENV, 
and District staff. All of the attorneys are regular participants in 
the monthly ENV NEPA Chats.

5. Performance Measurement

    As TxDOT explained in its response to FHWA's pre-audit #3 
information request, performance measurement (evaluating how well TxDOT 
is managing the program and determining the value delivered for 
customers and stakeholders) is a complex issue. The TxDOT devotes a 
high level of effort developing the metrics to measure performance. 
Despite the challenges of complexity and effort, TxDOT informed the 
team that it uses performance measurements to identify potential risk, 
review areas needing improvement, and recognize successful practices.

Successful Practices and Observations

    The team acknowledges the utility of TxDOT's performance measures 
for quality control and quality assurance in its CE determinations. As 
explained in their self-assessment summary report and their response to 
FHWA's pre-audit #3 information request, TxDOT conducted an extensive 
analysis of whether project file errors were substantive or not 
substantive. The team generally found substantive errors to be non-
compliant with respect to the validity of environmental decisions, 
whereas non-substantive errors were flaws in information that 
substantiated those decisions. The TxDOT's analysis of these errors 
demonstrates that non-substantive errors largely affect TxDOT 
efficiency in reporting and data analysis. The TxDOT's procedures 
result in the identification and correction of substantive errors. This 
careful consideration of performance regarding CE determination errors 
and corrective actions demonstrates how measurement and application of 
corrective actions improved overall performance. In addition, TxDOT is 
applying this information to design specific ECOS upgrades to eliminate 
several categories of errors.
    The specific consideration of errors is just one example of what 
the team learned from interviewing TxDOT's ENV Director and assessing 
TxDOT leadership's review measures to monitor continuous improvement. 
The TxDOT's leadership, consultants, and District staff all noted an 
improvement and a higher consistency in the quality of environmental 
decisions and environmental documentation for CE determinations. The 
TxDOT identified issues that may require policy or program attention. 
These issues are memorialized in the self-assessment report's root 
cause analysis for substantive and non-substantive errors.

Audit #3 Observation #3

    The team considered TxDOT's QA/QC target measure of 95 percent of 
project files determined to be complete and accurate and TxDOT's 
reported measure of 77.7 percent. While the target of any performance 
measure should be at or close to 100 percent, FHWA acknowledges that 
attaining this measure may be extremely difficult, especially given 
that the project class is an EA or EIS. The TxDOT has analyzed the 
range of errors and identified missing or incomplete information as a 
persistent problem. Given TxDOT's efforts to date and careful 
consideration of FHWA's observations on QA/QC, TxDOT may consider error 
rates and/or different measure(s) that demonstrate continuous 
improvement.

Audit #3 Observation #4

    Timeliness measures reported by TxDOT in their recent self-
assessment summary report identify time frames for completion of EA and 
EIS projects. Most of these projects were initiated prior to December 
2014, when TxDOT was assigned FHWA's NEPA responsibilities. The average 
time to complete a FONSI before and after assignment dropped from 1060 
days to 686 days (eliminating an outlier project that took 2590 days). 
While one expects projects initiated and completed under assignment to 
finish faster than any previous average time frame, even TxDOT 
recognizes that complex EAs require more time to reach a FONSI than 
projects with fewer impacts or complexities. The TxDOT's summary report 
contains too few data points to determine trends, and there is no 
control to differentiate between ``complex'' and ``simple'' EAs. The 
team urges TxDOT to consider a timeliness measure for CEs, recognizing 
the issues of consistency within and among CE actions listed in 23 CFR 
771.117(c) and 23 CFR 771.117(d). Meaningful timeliness measures should 
accommodate the time TxDOT takes to initiate and complete environmental 
reviews, given that some reviews will take less time and entail fewer 
tasks or steps than others. The TxDOT could consider ways to 
``control'' for project complexity, perhaps by stratifying their data 
or by measuring the timeliness to complete certain tasks (such as 
defining purpose and need, the range of alternatives, or the time to 
prepare an Draft EIS, Final EIS, or ROD).

6. Training Program

    The TxDOT has specifically designed an environmental professional 
training program for its environmental professional staff and others. 
This program was updated for 2016 and the team learned about it through 
a four-page description and share point site information provided in 
TxDOT's response to FHWA's pre-audit #3 information request. This 
information was supplemented through interviews with TxDOT ENV staff 
responsible for the training program. This program, FHWA was told, must 
satisfy requirements in State law (Texas Administrative Code, or TAC, 
title 43, part 1, chapter 2, subchapter A, rule Sec.  2.11) as well as 
requirements specified in Part 12 of the MOU. Texas law requires that 
TxDOT individuals be ``certified'' before they may make environmental 
decisions and must maintain ``certification'' to continue to make 
decisions. It follows then that TxDOT's training focus is TxDOT staff's 
initial certification and continuing certification. The MOU training 
requirements establish ongoing competency requirements for TxDOT's 
staff.

Successful Practices and Observations

    The team recognizes the following successful training practices and 
observations. The team learned from an interview that TxDOT's new hire 
``on-boarding'' process is extraordinarily responsive to delivering the 
ENV 207 training course. This course, which provides a general overview 
of environmental considerations in project development, also entails 
practical ECOS training in how to create a project, use the optional 
scope

[[Page 85310]]

development tool, how to assign a task, and how to complete a form. 
Additionally, an interviewee told the team that training updates to the 
ENV 207 course were continuous.
    Another successful practice is to open up the full range of TxDOT's 
training classes to enrollment by local government and consultant staff 
(after TxDOT staff has been provided an initial opportunity to enroll). 
And finally, TxDOT is archiving and providing easy access of recordings 
from all NEPA Chats/informal training including, notes, and handouts 
from those offerings/training.

Audit #3 Observation #5

    The team learned through interviews that TxDOT oversight and 
tracking of environmental competency training/competency assurance is 
de-centralized. This means that individual TxDOT staff and supervisors 
are responsible for maintaining environmental ``certification'' under 
State law, as well as general competencies and capabilities to carry 
out MOU responsibilities (see MOU Part 4.2.2). The team was unable to 
assess the overall staff competency and exposure to training because 
information was spread across all 25 TxDOT Districts. These audit 
reviews require details demonstrating that TxDOT staff are capable, 
competent, qualified, and certified (from the perspective of TAC and 
the MOU) to perform these assigned responsibilities. Thus, TxDOT's 
ability to monitor the certification and competency status of their 
qualified staff is important. The TxDOT should consider at least an 
annual assessment that compiles all the environmental competency 
information from across all Districts and ENV.

Audit #3 Observation #6

    The TxDOT acknowledged in its recent self-assessment summary report 
that many of the errors it detects in project files (both substantive 
and non-substantive) are tied to staff knowledge and use of the ECOS 
program. In many ways, TxDOT has demonstrated that updating ECOS is the 
most efficient way to head off errors and increase consistency in 
TxDOT's environmental review process. The team learned from interviews 
that the first wave of ECOS changes will coincide with new training. In 
addition to the other recommendations made by FHWA, TxDOT should engage 
its subject matter experts, the self-assessment team, as well as its 
overall policy and program staff in crafting and delivering this 
training to address the non-compliance observations noted above. In 
addition, TxDOT should take any lessons learned from the corrective 
actions taken as a result of this audit and incorporate them into 
future training.

Status of Non-Compliance Observations and Other Observations From Audit 
#2 (September 2015) and FHWA Responses to TxDOT's Audit #2 Comments

Audit #2 Non-Compliance Observations

    1. CE determination prior to regulatory criteria being met--The 
TxDOT indicated in its comment on the Federal Register notice of the 
draft Audit #2 report that it (1) circulated a memo to its staff 
regarding conditional clearances, (2) revised its standard operating 
procedures to remove the discussion of conditional clearances, and (3) 
completed informal training on this issue utilizing the NEPA Chats. The 
TxDOT's comment included discussion on the timing of NEPA approvals, 
but after FHWA discussed these comments with TxDOT, TxDOT chose to 
withdraw comments regarding the timing of NEPA approvals.
    2. NEPA Decision reporting--The TxDOT reported to FHWA that it 
revised its method of monthly NEPA Approval certification reporting in 
an effort to eliminate errors. The recurrence of a reporting error in 
Audit #3 indicates that under current reporting procedures, it is still 
possible for TxDOT to erroneously certify projects that are still being 
processed as being complete. The FHWA relies upon TxDOT's independent 
NEPA decision to advance federally funded projects. If FHWA advances a 
project that has been improperly processed by TxDOT, this may 
jeopardize Federal-aid reimbursement or eligibility of Federal funds on 
that project.
    3. Project file records and missing information--The TxDOT 
acknowledged the concern for incomplete project files in its comments 
on Audit #2. The TxDOT states that it has reviewed the projects under 
this observation and has provided corrective actions in the form of (1) 
individual communications with staff affected, and (2) through NEPA 
Chats.

Audit #2 Observations

    All observations are purely for TxDOT's consideration only and 
should not be deemed non-compliance observations unless otherwise 
noted.
    1. Relationships between TxDOT and other Federal Agency staff--The 
TxDOT indicated in its comments on Audit #2 that it has conducted 
follow up meetings with U.S. Coast Guard staff. It also disagrees with 
the characterization that TxDOT's relationship with the Texas SHPO is 
``strained.'' The FHWA has continued to include interviews with outside 
agency staff as part of this and future reviews/audits to seek 
information about relationships and to convey information back to 
TxDOT. The FHWA provides information for TxDOT to consider in 
maintaining and/or improving its working relationship with both Federal 
and State regulatory agencies. The FHWA interviews these agencies in 
order to (1) provide feedback about those relationships that TxDOT may 
not otherwise hear directly and (2) to review and assess TxDOT's 
procedures. The FHWA is also able to observe program-level interactions 
between TxDOT and other agencies and to convey observations back to 
TxDOT for consideration purposes.
    2. Legacy projects and TxDOT's ``no effect'' determinations for 
ESA--The TxDOT stated in its comments on Audit #2 that it met with FHWA 
staff on this matter and has assessed existing procedures, rules, and 
policies related to ESA consultation and reviewed related training. The 
team found a deficiency in the TxDOT procedure on making ESA 
determinations as a result of Audit #3. Since the procedure for making 
ESA determinations is non-compliant, TxDOT will need to implement a 
corrective action, which will be considered as part of FHWA's next 
review or audit.
    3. Consistency in TxDOT's approach to defining 23 CFR 771.117(e)(4) 
for major traffic disruption--This TxDOT response to the draft Audit #2 
report downplays the need for an agreed upon standard or threshold on 
how to apply the constraint in 23 CFR 771.117(e)(4) regarding traffic 
disruption. The TxDOT indicated that the decision is made by 
``professional judgement'' according to the criteria the CEQ has 
identified for a determination of significant impact (i.e., context and 
intensity). However, TxDOT's approach does not fulfill FHWA policy on 
how to set the threshold for this constraint, stated in the preamble to 
the notice of the final rule (79 FR 60110, Oct. 6, 2014). Thus, TxDOT 
should, at the minimum, identify examples of instances of substantial 
traffic disruption and instances that do not arise to the level of 
substantial disruption.
    4. Addressing errors and corrections to NEPA decisions in ECOS--
This TxDOT comment on Audit #2 acknowledges that a specific CE 
determination was incorrect, attributable to a typographical error. 
Thus, TxDOT completed a new CE determination for that project. As part 
of the project file reviews for Audit #4,

[[Page 85311]]

FHWA proposes to engage with TxDOT to have a shared set of expectations 
on the process or procedures that addresses various errors or omissions 
in TxDOT's NEPA decisionmaking at a program-level, both before and 
after TxDOT requests that FHWA approve Federal-aid. The integrity of 
data in ECOS is paramount to retaining an official file of record for 
Federal-aid projects. It is anticipated that ECOS upgrades will also 
help to fully address this issue with an improved quality control 
process improvement by TxDOT.
    5. Inadequate project description or project scope--The TxDOT 
stated in its comments on Audit #2 that discussions of adequate project 
descriptions have been the subject of several NEPA Chats and will 
continue to be discussed as long as this issue persists. The FHWA and 
TxDOT collaborated to develop a shared set of expectations for project 
development that was presented at the September 2015 TxDOT 
Environmental Conference.
    6. EPIC documentation and decisionmaking--The TxDOT indicated in 
its comment on the Audit #2 report that TxDOT ECOS procedures allow 
information to be loaded in two ways that can be confusing for 
reviewers. The TxDOT acknowledged this issue and stated that it has 
established an EPIC workgroup with the purpose of identifying a more 
consistent method to record and track EPICs. The results of this 
workgroup will be incorporated into a series of ECOS upgrades scheduled 
over the next 2 years.
    7. Multiple CE approval documents in ECOS--The TxDOT stated in its 
comment on Audit #2 that the project file for this observation 
contained a typographical error that made the initial CE determination 
incorrect. The TxDOT then made a new CE determination. Having a shared 
set of expectations (see number 4, above) between TxDOT and FHWA on how 
to address errors and omissions should improve both the program and the 
review process.
    8. Multiple reevaluations of a NEPA approval--The TxDOT indicated 
in its comment on Audit #2 that the multiple reevaluations resulted 
from a design-build project, where changes may occur often. The TxDOT 
prefers to respond to changes within a set time frame to keep the 
project moving especially on design-build projects. Reevaluations must 
look at the entire project. This situation will also be considered as 
part of the shared set of FHWA-TxDOT expectations on how to handle 
project changes.
    9. ECOS upgrades schedule too slow--This TxDOT response to Audit #2 
disagreed that the pace of ECOS upgrades might increase litigation 
risk. Based on information from Audit #3 interviews, this observation 
is tied to TxDOT's commitment of resources to assume responsibilities 
under the MOU (Part 4.2). This was presented as a continued observation 
from previous audits and is restated to draw TxDOT's attention to an 
identified problem. This observation is not a statement of non-
compliance, although it could lead to a non-compliance observation in 
the future. As ECOS is the official file of record, FHWA is concerned 
that TxDOT has not improved ECOS quickly enough. The TxDOT should 
consider making database updates more timely and related procedures 
mandatory in relation to documentation storage within ECOS.
    10. Difficulty locating information in project files--This TxDOT 
comment on Audit #2 states that it formed a workgroup in the summer of 
2015 for the purpose of developing statewide guidance regarding filing 
and naming conventions in ECOS. The TxDOT Districts themselves had 
issues locating documentation within their own ECOS project files 
during site visits in Audit #2. The team continued to have difficulty 
(and ENV management and staff also confirmed the same difficulty) 
finding key project documentation for this audit, especially for large 
and complex projects. The FHWA looks forward to reviewing the 
recommendations of this workgroup and assessing any changes as part of 
a future review or audit.
    11. Evidence of recurring Non-Compliance Observations related to QA 
and QC application to individual projects--This TxDOT comment on Audit 
#2 commits to making project specific comments in SAB feedback reports 
available for Audit #3. These reports were made available and the TxDOT 
self-assessment report included an extensive analysis of QC outcomes 
for CE project reviews. The QC is still an issue prior to NEPA 
decisions being finalized for larger scale CEs as well as for EAs and 
EISs.
    12. Expectation for the timeframe necessary for a legal review--
This TxDOT comment on Audit #2 commits to revising the standard 
operating procedure to establish an expected review time for the 
TxDOT's Office of General Counsel (OGC) (now General Counsel Division--
GCD) to conduct a legal sufficiency review. As recommended during Audit 
#2, OGC has issued a procedure establishing legal review times for FEIS 
(30 days) and for NOI and 139(l) documents (3 days). If necessary, OGC 
can request additional time for the review.
    13. Measure for the TxDOT relationship with the public--The TxDOT 
continued to report the number of complaints received year-to-year as 
its performance measure for its relationship with the public. None were 
received, and the measure reported was unchanged from the prior self-
assessment summary report. The team learned from interviews that it is 
possible that the public may not distinguish between performance pre- 
and post-assignment. The team was told that TxDOT is still getting 
feedback from the public and agencies and plans to include the measures 
into a continuous improvement process. The TxDOT also noted, in its 
Federal Register comment on the draft Audit #2 report, that (1) 
assessing change in communication with the general public is inherently 
difficult, (2) NEPA assignment presents little external differentiation 
to the general public, and (3) finding success in measuring this 
variable has proven difficult.
    14. Implement ways to train local government staff--The TxDOT's 
Environmental Professional Training Program is described in a four-page 
report provided to the team as part of TxDOT's pre-audit information 
request response. That report identifies a series of workshops and 
training events jointly held with Texas Historical Commission staff. 
The team learned through interviews and the training program report 
that TxDOT has established an ENV training SharePoint site that is 
accessible to the public for local government staff to register for 
training at no cost.

Next Steps

    The FHWA provided a preliminary draft audit report to TxDOT for a 
14-day review and comment period. The team has considered TxDOT 
comments in developing this draft Audit #3 report. As the next step, 
FHWA will publish a notice in the Federal Register to make it available 
to the public for a 30-day comment period review [23 U.S.C. 327(g)]. No 
later than 60 days after the close of the comment period, FHWA will 
respond to all comments submitted in finalizing this draft audit report 
[pursuant to 23 U.S.C. 327(g)(2)(B)]. Once finalized, the audit report 
will be published in the Federal Register.

[FR Doc. 2016-28353 Filed 11-23-16; 8:45 am]
BILLING CODE 4910-22-P