[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
[Notices]
[Pages 15663-15666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07561]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-0009]


Surface Transportation Project Delivery Program; Utah Department 
of Transportation Audit Report

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice; Request for comment.

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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
established the Surface Transportation Project Delivery Program that 
allows a State to assume FHWA's environmental responsibilities for 
environmental review, consultation, and compliance under the National 
Environmental Policy Act (NEPA) for Federal highway projects. When a 
State assumes these Federal responsibilities, the State becomes solely 
responsible and liable for carrying out the responsibilities it has 
assumed, in lieu of FHWA. This program mandates annual audits during 
each of the first 4 years of State participation to ensure compliance 
with program requirements. This notice announces and solicits comments 
on the second audit report for the Utah Department of Transportation 
(UDOT).

DATES: Comments must be received on or before May 16, 2019.

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 can 
search the electronic form of all comments in any of our dockets by the 
name of the individual submitting the comment (or signing the comment, 
if submitted on behalf of an association, business, or labor union). 
The DOT posts these comments, without edits, including any personal 
information the commenter provides, to 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: Ms. Deirdre Remley, Office of Project 
Development and Environmental Review, (202) 366-0524, 
[email protected], or Mr. David Sett, Office of the Chief Counsel, 
(404) 562-3676, [email protected], Federal Highway Administration, 
U.S. Department of Transportation, 60 Forsyth Street 8M5, Atlanta, GA 
30303. 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, codified at 23 
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a 
State to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for Federal highway projects. When a State 
assumes these Federal responsibilities, the State becomes solely liable 
for carrying out the responsibilities it has assumed, in lieu of FHWA. 
The UDOT published its application for NEPA assumption on October 9, 
2015, and made it available for public comment for 30 days. After 
considering public comments, UDOT submitted its application to FHWA on 
December 1, 2015. The application served as the basis for developing a 
memorandum of understanding (MOU) that identified the responsibilities 
and obligations that UDOT would assume. The FHWA published a notice of 
the draft MOU in the Federal Register on November 16, 2016, with a 30-
day comment period to solicit the views of the public and Federal 
agencies. After the close of the comment period, FHWA and UDOT 
considered comments and

[[Page 15664]]

proceeded to execute the MOU. Effective January 17, 2017, UDOT assumed 
FHWA's responsibilities under NEPA, and the responsibilities for NEPA-
related Federal environmental laws described in the MOU.
    Section 327(g) of title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the MOU during each of 
the first 4 years of State participation and, after the fourth year, 
monitor compliance. The FHWA must make the results of each audit 
available for public comment. The first audit report of UDOT compliance 
was finalized on September 17, 2018. This notice announces the 
availability of the second audit report for UDOT and solicits public 
comment on the same.

    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C 327; 23 CFR 773.

    Issued on: April 8, 2019.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

Draft FHWA Audit of the Utah Department of Transportation

June 10, 2017-June 30, 2018

Executive Summary

    This report summarizes the results of the Federal Highway 
Administration's (FHWA) second audit of the Utah Department of 
Transportation's (UDOT) National Environmental Policy Act (NEPA) review 
responsibilities and obligations that FHWA has assigned and UDOT has 
assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this 
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the 
program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C. 
327, UDOT and FHWA executed a memorandum of understanding (MOU) on 
January 17, 2017, to memorialize UDOT's NEPA responsibilities and 
liabilities for Federal-aid highway projects and certain other FHWA 
approvals for transportation projects in Utah. The FHWA's only NEPA 
responsibilities in Utah are oversight and review of how UDOT executes 
its NEPA Assignment Program obligations. The section 327 MOU covers 
environmental review responsibilities for projects that require the 
preparation of environmental assessments (EA), environmental impact 
statements (EIS), and non-designated documented categorical exclusions 
(DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's 
environmental review responsibilities for other categorical exclusions 
(CE), commonly known as CE Program Assignment. This audit does not 
cover the CE Program Assignment responsibilities and projects.
    As part of its review responsibilities under 23 U.S.C. 327, FHWA 
formed a team (the ``Audit Team'') in July 2018 to plan and conduct an 
audit of NEPA responsibilities UDOT assumed. Prior to the on-site 
visit, the Audit Team reviewed UDOT's NEPA project files, UDOT's 
response to FHWA's pre-audit information request (PAIR), UDOT's self-
assessment of its NEPA Program, UDOT's NEPA Quality Assurance/Quality 
Control (QA/QC) Guidance, its NEPA Assignment Training Plan, and its 
NEPA Assignment Self-Assessment Report. The Audit Team conducted an on-
site review during the week of October 15 to October 18, 2018. The 
Audit Team conducted interviews with seven members of UDOT central 
office staff, three staff members of UDOT's legal counsel, and two 
staff members from the Utah State Historic Preservation Office as part 
of this on-site review.
    Overall, the Audit Team found that UDOT is successfully adding DCE, 
EA, and EIS project review responsibilities to an already successful CE 
review program. The UDOT has made efforts to respond to FHWA findings 
of the first audit, including improving document management, internal 
communication, and use of terms related to Section 4(f). In the first 
audit, FHWA Audit Team made the observation that there was inconsistent 
understanding of QA/QC procedures among UDOT staff. In the second 
audit, FHWA Audit Team identified an observation related to four 
instances of UDOT's lack of adherence to its QA/QC procedures. In 
addition, although UDOT has improved its document management, the 
second audit found that UDOT continues to lack procedures for retaining 
draft and deliberative materials for project records.
    The Audit Team identified two observations as well as several 
successful practices. The Audit Team finds UDOT is carrying out the 
responsibilities it has assumed and is in substantial compliance with 
the provisions of the MOU.

Background

    The NEPA Assignment Program allows a State to assume FHWA's 
environmental responsibilities for review, consultation, and compliance 
for Federal-aid highway projects and certain FHWA approvals. Under 23 
U.S.C. 327, a State that assumes these Federal responsibilities becomes 
solely responsible and solely liable for carrying them out. Effective 
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA and 
other related environmental laws. Examples of responsibilities UDOT has 
assumed in addition to NEPA include section 7 consultation under the 
Endangered Species Act and consultation under section 106 of the 
National Historic Preservation Act.
    Following this second audit, FHWA will conduct two more annual 
audits to satisfy provisions of 23 U.S.C. 327(g) and Part 11 of the 
MOU. Audits are the primary mechanism through which FHWA may oversee 
UDOT's compliance with the MOU and the NEPA Assignment Program 
requirements. This includes ensuring compliance with applicable Federal 
laws and policies, evaluating UDOT's progress toward achieving the 
performance measures identified in MOU Section 10.2, and collecting 
information needed for the Secretary's annual report to Congress. The 
FHWA must present the results of each audit in a report and make it 
available for public comment in the Federal Register.
    The Audit Team consisted of NEPA subject matter experts from FHWA 
Utah Division, as well as additional FHWA Division staff from 
California, the District of Columbia, Georgia, and Alaska. These 
experts received training on how to evaluate implementation of the NEPA 
Assignment Program.

Scope and Methodology

    The Audit Team conducted an examination of UDOT's NEPA project 
files, UDOT responses to the PAIR, and UDOT self-assessment. The audit 
also included interviews with staff and reviews of UDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities. All reviews 
focused on objectives related to the six NEPA Assignment Program 
elements: Program management; documentation and records management; QA/
QC; legal sufficiency; training; and performance measurement.
    The focus of the audit was on UDOT's process and program 
implementation. Therefore, while the Audit Team reviewed project files 
to evaluate UDOT's NEPA process and procedures, the Audit Team did not 
evaluate UDOT's project-specific decisions to determine if they were, 
in FHWA's opinion, correct or not. The Audit Team reviewed 23 NEPA 
Project files with DCEs, EAs, and EISs, representing all projects with 
decision points or other actionable items between June 10, 2017, and 
June 30, 2018. The Audit Team also

[[Page 15665]]

interviewed environmental staff in UDOT's headquarters office.
    The PAIR consisted of 29 questions about specific elements in the 
MOU. The Audit Team used UDOT's response to the PAIR to develop 
specific follow-up questions for the on-site interviews with UDOT 
staff.
    The Audit Team conducted seven in-person interviews with UDOT 
environmental staff, one in-person interview with two staff members of 
the UDOT State Historic Preservation Office, two phone interviews with 
UDOT's outside legal counsel, and one interview with legal counsel from 
the Utah Attorney General's office. The Audit Team invited UDOT staff, 
middle management, and executive management to participate to ensure 
the interviews represented a diverse range of staff expertise, 
experience, and program responsibility.
    Throughout the document reviews and interviews, the Audit Team 
verified information on the UDOT NEPA Assignment Program including UDOT 
policies, guidance, manuals, and reports. This included the NEPA QA/QC 
Guidance, the NEPA Assignment Training Plan, and the NEPA Assignment 
Self-Assessment Report.
    The Audit Team compared the procedures outlined in UDOT 
environmental manuals and policies to the information obtained during 
interviews and project file reviews to determine if there were 
discrepancies between UDOT's performance and documented procedures. The 
Audit Team documented observations under the six NEPA Assignment 
Program topic areas. Below are the audit results.
    Overall, UDOT has carried out the environmental responsibilities it 
assumed through the MOU and the application for the NEPA Assignment 
Program, and, as such, the Audit Team finds UDOT is substantially 
compliant with the provisions of the MOU.

Observations and Successful Practices

    This section summarizes the Audit Team's observations of UDOT's 
NEPA Assignment Program implementation, including successful practices 
UDOT may want to continue or expand. Successful practices are positive 
results FHWA would like to commend UDOT for developing. These may 
include ideas or concepts that UDOT has planned but not yet 
implemented. Observations are items the Audit Team would like to draw 
UDOT's attention to that may benefit from revisions to improve 
processes, procedures, or outcomes. The UDOT may have already taken 
steps to address or improve upon the Audit Team's observations, but, at 
the time of the audit, they appeared to be areas where UDOT could make 
improvements. This report addresses all six MOU topic areas as separate 
discussions. Under each area, this report discusses successful 
practices followed by observations.
    This audit report provides an opportunity for UDOT to implement 
actions to improve their program. The FHWA will consider the status of 
areas identified for potential improvement in this audit's observations 
as part of the scope of Audit #3. The third audit report will include a 
summary discussion that describes progress since the last audit.

Program Management

Successful Practices

    The UDOT and FHWA Division office meet on a quarterly basis to keep 
staff updated on current topics related to UDOT's implementation of the 
NEPA Assignment Program. During FHWA/UDOT quarterly meetings, the 
agencies work to ensure project delivery schedules of non-assigned 
Federal actions, such as Federal land transfers and Interstate access 
change requests as they relate to projects assigned to UDOT under the 
MOU. This meeting is also used to address program-level NEPA Assignment 
questions, such as clarifying starting dates of EAs for performance 
tracking.

Documentation and Records Management

Successful Practices

    ProjectWise is a document database UDOT uses to maintain final 
project records for DCEs, EAs, and EISs. Though it was not developed 
specifically for producing and maintaining environmental documents, 
ProjectWise is accessible to all staff and can store final 
environmental documents and technical reports. Since the last audit, 
UDOT has started using organizational tools, such as subfolders in 
ProjectWise, to better organize final environmental documents. Once the 
environmental review process is complete for a project and the 
consultant has submitted final project files, UDOT uses project record 
checklists to confirm completeness of ProjectWise files.

Observation #1: Incomplete Retention of Environmental Project Records

    The project reviews and interviews determined UDOT retains final 
environmental documents such as EAs, Draft EISs, Final EISs, Findings 
of No Significant Impact, and Records of Decision, and certain 
technical reports in ProjectWise. There is, however, no procedure for 
retaining other types of supporting materials that inform NEPA 
decisions and other environmental determinations. Other records, such 
as meeting summaries documenting coordination with resource agencies 
and stakeholders or telephone memos documenting conversations used to 
gather substantive information related to environmental decisions, were 
generally absent from the ProjectWise files reviewed. Some 
environmental staff said they store these types of documents on 
personal drives, local servers, or as hardcopy in filing cabinets. This 
dispersal and inconsistency of recordkeeping could result in document 
loss and difficulty of retrieval, hampering the ability to demonstrate 
support for Agency decisions, including compilation of administrative 
records in legal challenges.

Quality Assurance/Quality Control

Observation #2: Inconsistent Application of UDOT's QA/QC Procedures

    Section 8.2.4 of the MOU requires UDOT to develop a QA/QC process. 
Project file reviews revealed that one of the two Draft EISs that UDOT 
approved for circulation during the audit period occurred prior to 
completion of the required QA/QC process. This approval was not in 
accordance with either the QA/QC Plan or the UDOT Manual of 
Instruction, which require the Environmental Document QC Form, signed 
by the Environmental Program Manager and the Director of Environment, 
be provided to the UDOT Signatory Official with the request for 
approval of the Draft EIS.
    Project file reviews and interviews with UDOT staff revealed an 
inconsistent approach to conducting and documenting the QA/QC process 
for DCEs. The Audit Team reviewed project files for four DCEs. This 
review revealed three different approaches to conducting the required 
QA/QC for these projects. Two of these QA/QC reviews used one form, the 
third used a different form, and the fourth project had neither a form 
nor other documentation in ProjectWise. These inconsistencies in 
practice suggest that UDOT's QA/QC procedures may not be effective. The 
UDOT may also be unnecessarily increasing its risks when staff do not 
follow stipulated quality control reviews prior to making NEPA 
decisions.

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Legal Sufficiency

Successful Practices

    During the audit period, outside counsel issued two findings of 
legal sufficiency per the requirements of 23 CFR 771.125(b) and 23 CFR 
774.7(d), copies of which were provided to the Audit Team. Through 
interviews, the Audit Team learned UDOT has continued using the legal 
sufficiency process it put in place for both Section 326 CE and section 
327 NEPA Assignment, which is contracting with outside counsel who have 
extensive experience in NEPA, other environmental laws, and Federal 
environmental litigation. The UDOT Environmental Managers work directly 
with outside counsel without the need to go through the Utah Attorney 
General's (AG) Office. Nevertheless, an Assistant AG assigned to UDOT 
is kept apprised of all communications between UDOT staff and outside 
counsel and reviews all bills submitted by outside counsel. Outside 
counsel have been included as part of the ``project team'' from the 
start of projects, and some have reviewed draft notices of intent for 
EISs. In addition, the UDOT, an Assistant AG, and outside counsel hold 
quarterly meetings at which UDOT staff apprise counsel of upcoming 
project reviews and anticipated review deadlines.

Training

Successful Practices

    The UDOT has created a training plan that is customized to each 
employee's needs and disciplines to provide more focused training 
opportunities by specialty. The UDOT provides training on general 
environmental topics, such as NEPA, and provides opportunities for 
subject matter experts to take training related to their disciplines.

Performance Measures

Successful Practices

    The UDOT's self-assessment documented the performance management 
details of the NEPA Assignment program in Utah, which demonstrates 
UDOT's procedures under NEPA assignment have resulted in a 50 percent 
reduction in the time to complete DCEs, EAs, and EISs. The average time 
to complete environmental documents is 5 months for DCEs, 18 months for 
EAs, and 37 months for an EIS. Although these data are based on a 
limited number of completed UDOT NEPA reviews since January 2017 (nine 
DCEs, two EAs, and one EIS), UDOT's initial timeliness results are 
promising. The UDOT will continue to monitor its progress towards 
improving timeliness of environmental reviews as part of its 
performance under the NEPA Assignment Program.

Next Steps

    The FHWA provided this draft audit report to UDOT for a 28-day 
review and comment period. The Audit Team considered UDOT comments in 
developing this draft audit report. The FHWA will publish a notice in 
the Federal Register for a 30-day comment period in accordance with 23 
U.S.C. 327(g)(2)(A). No later than 60 days after the close of the 
comment period, FHWA will respond to all comments submitted to finalize 
this draft audit report pursuant to 23 U.S.C. 327(g)(2)(B). Once 
finalized, FHWA will publish the final audit report in the Federal 
Register.

[FR Doc. 2019-07561 Filed 4-15-19; 8:45 am]
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