[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Notices]
[Pages 59206-59212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26947]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2017-0038]


Surface Transportation Project Delivery Program; TxDOT Audit #4 
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 fourth audit report for 
the Texas Department of Transportation's (TxDOT) participation in 
accordance with these pre-FAST Act requirements.

DATES: Comments must be received on or before January 16, 2018.

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-
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. Jomar Maldonado, Office of the Chief 
Counsel, (202) 366-1373, [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 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. Since December 16, 2014, 
TxDOT has assumed FHWA's responsibilities under National Environmental 
Policy Act and the responsibilities for reviews under other Federal 
environmental requirements under this authority.
    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, Pub. L. 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. This notice announces the availability of the 
report for the fourth audit for TxDOT conducted prior to the FAST Act 
and solicits public comment onit.

    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: December 8, 2017.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.

DRAFT

Surface Transportation Project Delivery Program

FHWA Audit #4 of the Texas Department of Transportation

June 16, 2016 to August 1, 2017

Executive Summary

    This report summarizes the results of FHWA's fourth audit review 
(Audit #4) to assess the performance by the Texas Department of 
Transportation (TxDOT) regarding its assumption of responsibilities 
assigned by Federal Highway Administration (FHWA), under a memorandum 
of understanding (MOU) that took effect on December 16, 2014. TxDOT 
assumed FHWA's National Environmental Policy Act (NEPA) 
responsibilities and other environmental review responsibilities 
related to Federal-aid highway projects in Texas. The status of FHWA's 
observations from the third audit review (Audit #3), including any 
TxDOT self-imposed corrective actions, is detailed at the end of this 
report. The FHWA Audit #4 team (team) appreciates the cooperation and 
professionalism of TxDOT staff in conducting this review.
    The team was formed in October 2016 and met regularly to prepare 
for 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. Interviews of TxDOT 
and resource agency staff occurred during the on-site portion of this 
audit, conducted on May 22-26, 2017.
    The TxDOT continues to develop, revise, and implement procedures 
and processes required to carry out the NEPA Assignment Program. Based 
on information provided by TxDOT and from interviews, TxDOT is 
committed to maintaining a successful program. This report describes 
two (2) categories of non-compliance observations and eight (8) 
observations that represent opportunities for TxDOT to improve its 
program. It also includes brief status updates of the Audit #3 
conclusions.
    The TxDOT has continued to make progress toward meeting the 
responsibilities it has assumed in

[[Page 59207]]

accordance with the MOU. The non-compliance observations identified in 
this review will 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 (NEPA 
Assignment 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 decision-
making, the State becomes solely responsible and liable for carrying 
out these obligations in lieu of, and without further NEPA related 
approval by, FHWA.
    The State of Texas was assigned the responsibility for making 
project NEPA 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 State has 
waived its sovereign immunity under the 11th Amendment of the U.S. 
Constitution and consents to defend against any actions brought by its 
citizens for NEPA decisions it has made in Federal court.
    The FHWA project-specific environmental review 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 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. 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. This 
audit is the fourth completed in Texas. The 5th and final audit is 
planned for 2018.

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. Regarding 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 and the process of developing 
the review report and publishing it in the Federal Register help to 
maintain an unbiased review and establish the audit as an official 
action taken by FHWA. The team for Audit #4 included NEPA subject-
matter experts from the FHWA Texas Division Office, as well as FHWA 
offices in Washington, DC, Atlanta, GA, Charleston, SC, and Salt Lake 
City, UT. 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, 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 
consider 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.
    This audit reviewed processes and procedures (i.e., toolkits and 
handbooks) TxDOT staff use to process and make NEPA approvals. The 
information the team gathered that served as the basis for this audit 
came from three primary sources: (1) TxDOT's response to a pre-audit #4 
information request (PAIR #4), (2) a review of both a judgmental and 
random sample of project files in ECOS with approval dates after 
February 1, 2016, and (3) interviews with TxDOT and the USFWS staff. 
The TxDOT provided information in response to FHWA pre-audit questions 
and requests for documents and provided a written clarification to FHWA 
thereafter. That material covered the following six topics: program 
management, documentation and records management, quality assurance/
quality control, legal sufficiency review, performance measurement, and 
training. In addition to considering these six topics, the team also 
considered the following topics: Endangered Species Act (ESA) 
compliance, consideration of noise impacts and noise mitigation 
(Noise), and adherence to the TxDOT Public Involvement plan.
    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 make 
certain the staff implements the procedures appropriately to achieve 
compliance with NEPA and other assigned responsibilities. The review 
did not second guess project-specific decisions, as such decisions are 
the sole responsibility of TxDOT. The team focused on whether the 
procedures TxDOT followed complied with all Federal statutes, 
regulation, policy, procedure, process, guidance, and guidelines.
    The team defined the timeframe for highway project environmental 
approvals subject to this fourth audit to be between February 1, 2016, 
and January 31, 2017. The project file review effort occurred in two 
phases: approvals made during Round 1 (Feb 1, 2016-July 31, 2016) and 
Round 2 (Aug 1, 2016-Jan 31, 2017). One important note is that this 
audit project file review time frame spans a full 12 months, where 
previous

[[Page 59208]]

audits reviewed project approvals that spanned 6 months. The population 
of environmental approvals included 224 projects based on 12 certified 
lists of NEPA approvals reported monthly by TxDOT. The NEPA project 
file approvals reviewed included: (1) categorical exclusion 
determinations (CEs), (2) approvals to circulate draft Environmental 
Assessments (EAs), (3) findings of no significant impacts (FONSI), (4) 
re-evaluations of EAs, Section 4(f) decisions, (5) approvals of a draft 
environmental impact statement (DEIS), and (6) re-evaluations of EISs 
and records of decision (RODs). Project files reviewed constitute a 
sample of randomly selected c-listed CEs, and 100 percent of the 
following file approvals: 4(f) approvals; CE determinations for actions 
not listed in the ``c'' or ``d'' lists; the FONSI and its EA; the ROD 
and its EIS; and re-evaluations of these documents and approvals.
    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 four of TxDOT's Districts. The team interviewed the 
Austin District and then divided into two groups (the next day) to 
complete the face-to-face interviews of District staff in Waco and San 
Antonio. Members of the team interviewed staff from the Ft. Worth 
District via teleconference. The team used the same ECOS project 
document review form but updated interview questions for Districts and 
ENV staff with new focus areas to gather data.

Overall Audit Opinion

    The TxDOT continues to make progress in the implementation of its 
program that assumes FHWA's NEPA project-level decision responsibility 
and other environmental responsibilities. The team acknowledges TxDOT's 
effort to refine and, when necessary, establish additional written 
internal policies and procedures. The team found 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 two non-compliant observations in this audit 
that TxDOT will need to address through corrective actions. These non-
compliance observations come from a review of TxDOT procedures, project 
file documentation, and interview information. This report also 
identifies several notable observations and successful practices that 
we recommend be expanded.

Non-Compliance Observations

    Non-compliance observations are instances where the team found the 
TxDOT was out of compliance or deficient in proper implementation of a 
Federal regulation, statute, guidance, policy, the terms of the MOU, or 
TxDOT's own 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 consider 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 
informed the team they are still implementing some recommendations made 
by FHWA on Audit #3 to address non-compliance. The FHWA will conduct 
followup reviews of non-compliance observations in Audit #5 from this 
review.
    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 
provisions in the MOU. The following non-compliance observations are 
presented as two categories of non-compliance observations: (1) with 
procedures specified in Federal laws, regulations, policy, or guidance, 
or (2) with the State's environmental review procedures.

Audit #4 Non-Compliance Observation #1: Section 5.1.1 of the MOU 
requires the State to follow Federal laws, regulations, policy, and 
procedures to implement the responsibilities assumed. This review 
identified several examples of deficient adherence to these Federal 
procedures.

    (a) Project scope analyzed for impacts differed from the scope 
approved


Making an approval that includes actions not considered as part of 
environmental review is deficient according to the FHWA Technical 
Advisory 6640.8A. The scope of the FONSI cannot include actions not 
considered in the EA. This recurring deficiency was also identified for 
a project file in Audit #3.

    (b) Plan consistency prior to NEPA approval

Section 3.3.1 of the MOU requires that prior to approving any CE 
determination, FONSI, Final EIS, or final EIS/ROD, TxDOT will ensure 
and document that the project is consistent with the current 
Transportation Improvement Plan (TIP), Regional Transportation Plan 
(RTP), or Metropolitan Transportation Plan (MTP). The team identified 
two projects where TxDOT made NEPA approval without meeting the MOU 
consistency requirement.

    (c) Public Involvement

The FHWA's regulation at 23 CFR 771.119(h) requires a second public 
notification to occur 30 days prior to issuing a FONSI. The team 
reviewed a project file where TxDOT approved a FONSI for an action 
described in 23 CFR 771.115(a) without evidence of a required 
additional public notification. TxDOT acknowledges this requirement in 
their updated public involvement handbook.

    (d) Timing of NEPA approval

One project file lacked documentation for Section 106 compliance prior 
to TxDOT making a NEPA approval. The FHWA regulation at 23 CFR 771.133 
expects compliance with all applicable laws or reasonable assurance all 
requirements will be met at the time of an approval.

Audit #4 Non-Compliance Observation #2: Section 7.2.1 of the MOU 
requires the State to develop State procedures to implement the 
responsibilities assumed. This review identified several examples of 
deficient adherence to these state procedures.

    (a) Reporting of approvals made by TxDOT

MOU section 8.7.1 requires the State to certify on a list the approvals 
it makes pursuant to the terms of the MOU and Federal review 
requirements so FHWA

[[Page 59209]]

knows which projects completed NEPA and are eligible for Federal-aid 
funding. The FHWA identified a project whose approval was made pursuant 
to State law and therefore should not have been on the certified list 
of projects eligible for Federal-aid funding. This is a recurrence from 
Audit #3.
    (b) Noise workshop timing

One project did not follow the TxDOT Noise guidelines for the timing of 
a required noise workshop. TxDOT improperly held a noise workshop 
months before the public hearing opportunity. The TxDOT noise 
guidelines (Guidelines for Analysis and Abatement of Roadway Traffic 
Noise, 2011) identifies procedures for compliance with 23 CFR 772. This 
is a recurrence of the same non-compliance observation in Audit #3.

    (c) Endangered Species Act Section 7

The TxDOT provided training to staff and updated its Section 7 
compliance procedures, as part of a partnering effort after Audit #3 
between FHWA, TxDOT, and USFWS. However, one project was still not in 
compliance with the updated procedures.

    (d) Indirect & Cumulative Impacts

One project file reviewed by the team lacked the indirect and 
cumulative impact analysis that is expected according to TxDOTs 
indirect and cumulative impact evaluation procedures.

    (e) Federal approval request for a State-funded project

The review team reviewed a project file where TxDOT followed State 
environmental laws and then requested Federal-aid to purchase right-of-
way. TxDOT informed the team that they are removing Federal funds from 
the ROW portion of this project as corrective action. This is a 
recurrence from Audit #3.

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 successful practices and 
observations 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 8 observations 
for TxDOT to consider in order to make improvements. The FHWA's 
suggested implementation methods of action include: corrective action, 
targeted training, revising procedures, continued self-assessment, 
improved QA/QC, 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 and 
improve its program prior to the publication of this report.

1. Program Management

Successful Practices and Observations

    The team appreciates TxDOT ENV willingness to partner with FHWA 
before, during, and after audit reviews. This has resulted in improved 
communication and assisted the team in verifying many of the 
conclusions in this report. The quarterly partnering sessions, started 
in 2016, will be an ongoing effort. These exchanges of information 
between FHWA and TxDOT have clarified and refined FHWA's reviews and 
assisted TxDOT's efforts to make improvements to their environmental 
review processes and procedures.
    The team noted in District and ENV staff interviews that they 
welcomed the opportunity to be responsible and accountable for NEPA 
decisions. 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 Program 
Review Team (formerly TxDOT's Self-Assessment Branch, [SAB]). District 
staff indicated in interviews that the former SAB detailed reviews were 
highly valued because they learned from their mistakes and make 
improvements. Accountability, in part, is driving an enhanced desire 
for TxDOT staff to consistently and carefully complete environmental 
reviews.
    The team recognizes enhanced communication among individuals in the 
project development process through the Core Team (a partnership of 
District and ENV environmental staff assigned to an individual EIS 
project) as a valuable concept. Information gained from interviews and 
materials provided by TxDOT in most cases demonstrate improved 
communication amongst Districts and between Districts and ENV. The team 
noted that ``NEPA Chats'' (regular conference calls led by ENV, 
providing a platform for Districts to discuss complex NEPA 
implementation issues) are still, for the most part, well received. 
Districts also provide internal self-initiated training across 
disciplines so everyone in the District Office is aware of TxDOT 
procedures to try to ensure that staff follows NEPA-related, discipline 
specific processes. This keeps projects on-schedule or ensures that 
there are no surprises if projected schedules slip.

Audit #4 Observation #1: Noise procedure clarification.

    TxDOT ENV is currently in the process of proposing an update to 
their Noise Guidelines. The team reviewed a project file where the 
decisions based on an original noise study were re-examined to reach a 
different conclusion. The current TxDOT Noise Guidelines do not address 
how, or under what conditions a re-examination of an original Noise 
Study report that reaches different conclusions could occur. The team 
urges TxDOT to clarify their noise guidelines to ensure consistent and 
fair and equitable treatment of stakeholders affected by highway noise 
impacts.

Audit #4 Observation #2: Section 7 of the Endangered Species Act

    During the interviews, the review team learned that there is a 
disincentive for ``may affect'' determinations because TxDOT cannot 
predict the amount of time required to complete informal consultation. 
If a particular project's schedule could accommodate the time required 
for informal consultation, a ``may affect'' determination might be made 
to minimize a risk of a legal challenge.
    The review team would like to draw TxDOT's attention to the 
possibility that risk management decisionmaking can introduce a bias or 
``disincentive'' to coordinate with USFWS when it is expected according 
to Federal policy and guidance. In fulfilling ESA Section 7(a)(2) 
responsibilities, Congress intended the ``benefit of the doubt'' to be 
given to the species (H.R. Conf. Rep. 96-697, 96 Cong., 1st sess. 
1979).
    The team acknowledges that TxDOT plans to train staff on its 
revised ESA handbook and standard operating procedures, and this may 
inform staff of this bias. Through interviews, the team learned that in 
certain Districts with sensitive habitats (i.e., karst) or the 
possibility of a species present (i.e., a salamander), ENV managers 
would review a project's information in addition to the District's and/
or ENV biologists. This enhanced review process is currently limited 
only to two Districts and could be expanded to

[[Page 59210]]

include instances where such bias may occur.

Audit #4 Observation #3: Project description and logical termini

    The team reviewed one project where the scope described in the NEPA 
document differed from what was proposed to be implemented. A proposed 
added capacity project's description indicated a longer terminus 
compared to a schematic. The team could not determine whether the 
description or the schematic accurately reflected the project proposal.
    A second reviewed project contained a description of the proposed 
project as the project's purpose instead of identifying a purpose that 
would accommodate more than one reasonable alternative. The team urges 
TxDOT to make reviewers aware of these challenges.

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. ECOS is how TxDOT identifies 
and procures information required to be disclosed to, and requested by, 
the public. ECOS is being upgraded, and there are four more phased 
upgrades planned over time. The most recent work includes incorporation 
of a revised scope development tool, Biological Evaluation (BE) form, 
and new way to electronically approve a CE determination form in lieu 
of paper. The TxDOT staff noted that ECOS is both adaptable and 
flexible.

Successful Practices and Observations

    A number of successful practices demonstrated by TxDOT were evident 
as a result of the documentation and records management review. The 
team learned that ECOS continues to improve in download speed and 
compatibility. The team learned through interviews with TxDOT staff 
members that ENV is changing the scope development tool within ECOS and 
that functionality will improve. 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.

Audit #4 Observation #4: Record keeping integrity

    The team's review included project files that were incomplete 
because of missing or incorrect CSJ references that would link the 
files to environmental review documentation. TxDOT has indicated that 
they are working to address this problem. In addition to the issue of 
database links, the team identified a project file that lacked a record 
of required public involvement required per TxDOT procedures. The team 
learned from interviews that ENV and District staff do not consistently 
include such documentation in ECOS. Also, one reviewed project file had 
outdated data for threatened and endangered species. The team urges 
TxDOT staff to rely upon up to date and complete data in making project 
decisions.
    The team identified one project file where total project costs were 
not presented in the project documentation and EA documents were added 
after the FONSI was signed. The added EA documentation was editorial in 
nature. The team urges TxDOT to ensure the project file contains 
supportive documentation. Material that was not considered as part of 
the NEPA decision, and that was dated after the NEPA approval should 
not be included in a project's file.
    The team found a project file that had conflicting information 
about a detour. The review form indicated that no detour was proposed, 
but letters to a county agency said that a road would be closed, which 
would require addressing the need for a detour. Our review was unable 
to confirm the detour or whether the impact road closure was 
considered.

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

Successful Practices and Observations

    The team observed some continued successful practices from previous 
audits in (QA/QC). These successful practices include the use of 
established checklists, certifications, NEPA Chats, and the CORE Team 
concept (items described in previous audit reports). The TxDOT District 
Office environmental staff continue to do peer reviews of environmental 
decisions to double check the quality and accuracy of documentation. 
The Environmental Affairs Division has established a post-NEPA review 
team (performance review team) that was briefly mentioned in the Self-
Assessment report to FHWA. Through our interviews, we learned that the 
team reaches out to ENVs own Section Directors and subject matter 
experts, in addition to District environmental staff, regarding their 
observations to improve the quality of documentation in future NEPA 
decisions. The FHWA team observed increased evidence in ECOS of 
documentation of collaboration illustrating the efforts to improve 
document quality and accuracy.

Audit #4 Observation #5: Effectiveness and change in QA/QC

    Based on project file reviews, the team found errors and omissions 
that should have been identified and addressed through TxDOT quality 
control. Also, TxDOT's certified monthly list of project decisions 
contained errors, some of which were recurring.
    During this review period, the team was informed that TxDOT's 
approach to QA/QC had changed since the previous audit review. In audit 
#3, the team identified the Self-Assessment Branch (SAB) as a 
successful practice. TxDOT's response in the PAIR #4 indicated SAB was 
disbanded and ENV did not explain how its function would be replaced. 
Through interviews, the team learned that TxDOT had reorganized its SAB 
staff and modified its approach to QA/QC. This report identifies a 
higher number of observations that were either non-compliant or the 
result of missing or erroneous information compared to previous audits. 
The team could not assess the validity and relevance of TxDOT's self-
assessment of QA/QC because TxDOT's methodology (sampling and 
timeframe) was not explained. Lastly, through interviews with District 
environmental staff, the team learned that they are unclear on how 
errors and omissions now identified by the new ``performance review 
team'' and ENV SMEs are to be resolved. The team urges TxDOT to 
evaluate its new approach to QA/QC with relevant and valid performance 
measures and to explain its approach to QA/QC to its staff.

4. Legal Sufficiency Review

    Based on the interviews with two of the General Counsel Division 
(GCD) staff and documentation review, the requirements for legal 
sufficiency under the MOU continue to be adequately fulfilled.
    There are five attorneys in TxDOT's GCD, with one serving as lead 
attorney. Additional assistance is provided by a consultant attorney 
who has delivered environmental legal assistance to ENV for several 
years and by an outside law firm. The contract for the outside law firm 
is currently going through a scheduled re-procurement. The GCD 
assistance continues to be guided by

[[Page 59211]]

ENVs Project Delivery Manual Sections 303.080 through 303.086. These 
sections provide guidance on conducting legal sufficiency review of 
FHWA-funded projects and those documents that are to be published in 
the Federal Register, such as the Notice of Intent (NOI) to prepare an 
EIS, Statute of Limitation (139(l)), and Notice of Availability of EIS.
    GCD continues to serve as a resource to ENV and the Districts and 
is involved early in the development of large and complex projects. One 
example is the very large Houston District IH 45 project around 
downtown Houston with an estimated cost of $4.5 billion. The GCD lead 
attorney has been involved in the project and participated in the 
project's public hearing. GCD participates in the monthly NEPA chats 
and recently provided informal training during the chat on project 
scoping, logical termini, and independent utility.
    According to TxDOT's response to FHWA's PAIR #4, GCD staff has 
reviewed or been involved in legal review for eight projects. The ENV 
project delivery managers make requests for review of a document or 
assistance to the lead attorney, who then assigns that project to an 
attorney for legal review. Attorney comments are provided in the 
standard comment response matrix back to ENV and are reviewed by the 
lead attorney. All comments must be satisfactorily addressed for GCD to 
complete its legal sufficiency determination. The GCD does not issue 
conditional legal sufficiency determinations. Legal sufficiency is 
documented by email to ENV.
    A notable effort by GCD, in the last year, were the two lawsuits on 
TxDOT issued Federal environmental FONSI decision on the MOPAC 
intersections, the ongoing environmental process on the widening of 
south MOPAC, and State environmental decision on SH 45 SW. The lawsuit 
advanced only the Federal environmental decision on the MOPAC 
intersections. GCD worked first to develop the administrative record, 
having the numerous consultant and TxDOT staff provide documentation of 
their involvement on the MOPAC intersections project. Staff from GCD, 
Attorney General, and outside counsel then developed the voluminous 
record, which is their first since assuming NEPA responsibilities. The 
initial request by the plaintiffs for a preliminary injunction on the 
project was denied in Federal court, and, since a hearing on the merits 
was held later, they are awaiting the judge's decision. The FHWA and 
DOJ were notified, as appropriate, of the notices of pleadings through 
the court's PACE database.

Successful Practice

    ENV involves GCD early on projects and issues in need of their 
attention and expertise. Based on our discussions, GCD continues to be 
involved with the Districts and ENV throughout the NEPA project 
development process, when needed, and addresses legal issues, as 
appropriate. Based on interview responses, observation, and the 
comments above, TxDOT's approach to legal sufficiency is adequate.

5. Performance Measurement

    TxDOT states in their self-assessment summary report that they 
achieved acceptable performance goals for all five performance-based 
performance metrics with the remaining seven performance goals 
remaining, consistent with the March 2016 self-assessment. The TxDOT 
continues to devote a high level of effort to develop the metrics to 
measure performance. During this audit, the team learned through 
interviews that the methodology employed to assess QA/QC performance 
had been revamped to the point that the results do not appear to be 
comparable with measures from previous years.

Successful Practices and Observations

    As part of TxDOT's response to the PAIR #4, TxDOT provided an 
alternate performance metric for EA timeframes that analyzed the 
distribution of EA durations for projects initiated and completed prior 
to assignment, initiated prior to assignment but completed after 
assignment, and ones initiated and completed after assignment. This 
creative approach identified both improved and diminished performance 
in EA timeframes for projects initiated before assignment but completed 
after assignment. TxDOT reports in their response to the PAIR #4 that, 
at a 95 percent confidence interval, comparing completion times for EA 
projects before and after assignment, the post-assignment median 
timeframe for completion is faster after assignment.

Audit #4 Observation #6: Performance measure awareness and 
effectiveness

    The team noted through interviews of TxDOT District Office staff 
that many were unaware of TxDOT performance measures and their results. 
We encourage TxDOT environmental leadership to make these results 
available to their staff, if only as a means of feedback on 
performance. Overall, these measures are a positive reflection of 
actions taken by TxDOT staff, and sharing changes in performance 
measures may lead to improved performance.
    As mentioned above, the team learned that TxDOT's QA/QC methodology 
changed from that utilized since the previous audit. Previously, the 
measure reported the percent of project files determined to be complete 
and accurate, but included information on substantive errors made 
across different documents. Now the measure is limited only to the 
percent of project files determined to be complete that relies upon new 
yes/no/NA response questions whose result lacks an evaluation of the 
substantial-ness of errors of accuracy or completion. The team urges 
TxDOT to continue to analyze the information they are already 
collecting on the completeness and accuracy of project files as means 
of implementing information that usually leads to continuous 
improvement.

6. Training Program

    Since the period of the previous audit, TxDOT has revamped its on-
line training program, as training courses content were out of date. 
Training continues to be offered to TxDOT staff informally through NEPA 
chats as well as through in-person instructor training. All of the 
training information for any individual TxDOT District staff 
environmental professional can be found on a TxDOT sharepoint site and 
is monitored by the training coordinator (especially the qualifications 
in the Texas Administrative Code). This makes it much more 
straightforward for third parties (including FHWA) to assess the 
District staff competency and exposure to training. Since Audit #3 
TxDOT has increased the number of hours of training that staff are 
required to have to maintain environmental certification from 16 to 32 
hours. Based on interviews, we learned that some individuals had far 
exceeded the minimal number of training hours required. We learned that 
training hours could be earned by participating in the environmental 
conference, but with a stipulation that other sources of training would 
be required.

Successful Practices and Observations

    The team recognizes the following successful training practices. We 
learned from interviews that two TxDOT District Offices conduct annual 
training events for staff of local governments as a means to help them 
develop their own projects. This training identifies the TxDOT 
expectations for successful project development, including 
environmental review.
    Another successful practice we learned from interviews, and 
reported

[[Page 59212]]

by TxDOT in the list of training scheduled, is that public involvement 
training has been revised to emphasize additional outreach that goes 
beyond the minimum requirements. The emphasis appears to be on 
achieving meaningful public engagement rather than simple public 
disclosure.
    Finally, the team would like to acknowledge that TxDOT has 
recognized and taken advantage of cross training that is a successful 
practice. The TxDOT ENV strategic planning coordinator informed us in 
an interview that he co-taught a class on planning consistency by 
adding an environmental component. The team taught how the planning 
issues relate to environmental review and compliance 5 or 6 times 
throughout the State. The ENV strategic planning coordinator is now 
working with the local government division to add an environment module 
to the Local Project Assistance (LPA) class with specific discussion of 
environmental reviews (adding information on how to work with ENV at 
TxDOT, or how to find consultants who are approved to do work for 
TxDOT).

Audit #4 Observation #7: Additional outreach on improvements.

    The team learned through interviews the value and importance of 
NEPA chats for informing ENV staff when there are changes in 
procedures, guidance, or policy. For example, when the handbook for 
compliance with ESA was first completed, it was the subject of a NEPA 
chat. The team is aware of recent changes TxDOT made to the handbook 
related to a non-compliance related to ESA compliance. Based on 
information gained from interviews, the team learned that the changes 
to the ESA SOP/handbook were not followed by a NEPA chat. As a result, 
we confirmed that most of the TxDOT Biology SMEs were unaware of the 
handbook changes. The team appreciates that TxDOT has revised its ESA 
handbook and urges staff to implement training or other outreach to 
inform TxDOT staff of these revisions.

Audit #4 Observation #8: FAST Act training.

    The Fixing America's Transportation (FAST) Act included several new 
statutory requirements for the environmental review process, as well as 
other changes that change NEPA procedures and requirements. The FHWA's 
Office of Project Development and Environmental Review has released 
some guidance on how to implement these requirements and anticipates 
releasing additional information. Even though additional information on 
these changes is forthcoming, States under NEPA assignment are required 
to implement these changes. The team learned through TxDOT's PAIR #4, 
and through interviews, that TxDOT has neither developed nor delivered 
training to its staff concerning new requirements for the FAST Act for 
environmental review. In response to this observation, TxDOT is 
currently collaborating with FHWA to develop a presentation on this 
topic for its annual environmental conference.

Status of Non-Compliance Observations and Other Observations From Audit 
#3 (April 2017)

Audit #3 Non-Compliance Observations

1. Section 7 Consultation-- TxDOT ENV made revisions to their ESA 
procedures that they have shared with FHWA and USFWS via partnering 
sessions. TxDOT implementation and training efforts are still pending 
by ENV management on the revised procedures to ENV and District staff.
2. Noise Policy-- TxDOT has informed the team that they are in the 
process of updating the 2011 Noise Guidelines. TxDOT will submit those 
guidelines to FHWA for review and approval once they are updated. TxDOT 
has not indicated whether they intend to provide training on these 
guidelines for TxDOT District Office and consultant staff.
3. Public Involvement-- TxDOT updated their FHWA approved Handbook in 
November of 2016. There was one recurrence of a non-compliant action 
that was reported in Audit #3 during Audit #4. TxDOT informed FHWA that 
ENV will request that FHWA review their Texas Administrative Code in 
lieu of their previous request that FHWA review only their Public 
Involvement Handbook.
4. Section 4(f)-- FHWA did not have any non-compliance observations in 
regards to TxDOT carrying out their assigned Section 4(f) 
responsibilities during Audit #4.

Audit #3 Observations

1. A certified project had an incomplete review-- TxDOT continues to 
certify NEPA approvals for projects on a list provided to FHWA. This 
audit review identified an error of the inclusion of a project on a 
certified list.
2. Inconsistent and contradictory information in some project files-- 
TxDOT has made ECOS software upgrades recently that address this 
problem. This audit review continued to identify project file errors in 
the consistency of information.
3. TxDOT's QA/QC performance measure could demonstrate continuous 
improvement--Since Audit #3, TxDOT has developed a new approach to the 
QA/QC performance measure. For CE reviews, the methodology is based on 
``yes/no/NA'' answers to 50 questions (for EA projects there are 100 
questions) based on requirements in the TxDOT handbooks. The measures 
are an average of the individual projects reviewed. TxDOT has not 
addressed how this new measure may demonstrate continuous improvement.
4. Consider implementing more meaningful timeliness measures--TxDOT's 
response to the pre-audit information request as well as in their self-
assessment summary included detailed discussions of the timeliness 
measures for CEs as well as for EA projects that are meaningful.
5. TxDOT's ability to monitor the certification and competency status 
of their qualified staff--TxDOT has included on its training sharepoint 
site a database that identifies each environmental staff member, a 
complete list of training they have completed, and when that training 
occurred. TxDOT's training coordinator is responsible for monitoring 
this database to ensure all staff maintain their competency and 
qualification status per State law as well as the ongoing training 
requirement specified by the ENV director.

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 #4 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 review comment period [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. 2017-26947 Filed 12-13-17; 8:45 am]
 BILLING CODE 4910-22-P