[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Notices]
[Pages 62870-62873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19705]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2021-0010]


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

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

ACTION: Notice.

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

FOR FURTHER INFORMATION CONTACT: Mr. David Cohen, Office of Project 
Development and Environmental Review, (202) 366-8531, 
[email protected], or Ms. Diane Mobley, Office of the Chief Counsel, 
(202) 366-1366, [email protected], Federal Highway Administration, 
U.S. Department of Transportation, 1200 New Jersey Avenue SE, 
Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

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

Background

    The Surface Transportation Project Delivery Program, codified at 23 
United States Code (U.S.C.) 327, commonly known as the NEPA Assignment 
Program, allows a State to assume FHWA's environmental responsibilities 
for review, consultation, and compliance for Federal highway projects. 
When a State assumes these Federal responsibilities, the State becomes 
solely liable for carrying out the responsibilities in lieu of FHWA. 
The UDOT published its application for NEPA assumption on October 9, 
2015, and made it available for public comment for 30 days. After 
considering public comments, UDOT submitted its application to FHWA on 
December 1, 2015. The application served as the basis for developing a 
memorandum of understanding (MOU) that identifies the responsibilities 
and obligations that UDOT would assume. The FHWA published a notice of 
the draft MOU in the Federal Register on November 16, 2016 (81 FR 
80710), with a 30-day comment period to solicit the views of the public 
and Federal agencies. After the end of the comment period, FHWA and 
UDOT considered comments and proceeded to execute the MOU. Effective 
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA, and 
the responsibilities for other Federal environmental laws described in 
the MOU. On May 26, 2022, FHWA and UDOT renewed the MOU for another 5-
year term.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits during each of the first 4 years of State 
participation. After the fourth year, the Secretary shall monitor the 
State's compliance with the written agreement. The FHWA must make the 
results of each audit available for public comment. This notice 
finalizes the findings of the fourth audit report for UDOT 
participation in the NEPA Assignment Program. The FHWA published a 
draft version of this report in the Federal Register on June 23, 2022 
(87 FR 37547), and made it available for public review and comment for 
30 days in accordance with 23 U.S.C. 327(g). The FHWA received three 
responses to the Federal Register notice during the public comment 
period for the draft report, and FHWA responds to these comments in the 
final report, pursuant to 23 U.S.C. 327(g)(2). The FHWA also determined 
that the comments required no changes to the draft audit report. This 
notice finalizes the fourth and final NEPA Assignment audit report in 
Utah.
    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.

Shailen P. Bhatt,
Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program, FHWA Audit of the Utah 
Department of Transportation--Final Report, July 1, 2019-June 30, 2020

Executive Summary

    This report summarizes the results of the Federal Highway 
Administration's (FHWA) fourth and final audit of the Utah Department 
of Transportation's (UDOT) National Environmental Policy Act (NEPA) 
review responsibilities and obligations that FHWA assigned and UDOT 
assumed pursuant to 23 United State Code (U.S.C.) 327. Throughout this 
report, FHWA uses the term ``NEPA Assignment Program'' to refer to the 
program codified at 23 U.S.C. 327. Pursuant to 23 U.S.C. 327, UDOT and 
FHWA executed a memorandum of understanding (MOU) on January 17, 2017, 
to memorialize UDOT's NEPA responsibilities and obligations for 
Federal-aid highway projects and certain other FHWA actions in Utah. 
The FHWA and UDOT recently renewed the MOU on May 26, 2022, for another 
5-year term. The section 327 MOU covers environmental review 
responsibilities for projects that require the preparation of 
environmental assessments (EA), environmental impact statements (EIS), 
and non-designated documented categorical exclusions (DCE). A separate 
MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's environmental review 
responsibilities for other categorical exclusions (CE), commonly known 
as CE Program Assignment. The scope of this audit did not include the 
CE Program Assignment responsibilities and projects.
    As part of FHWA's review responsibilities under 23 U.S.C. 327, FHWA 
formed a team (the ``Audit Team'') in August 2020 to plan and conduct 
an audit of NEPA responsibilities UDOT assumed. Due to COVID-19-related 
travel restrictions, the Audit Team conducted a virtual audit during 
the period from November 9, 2020, to December 2, 2020. Prior to the 
virtual audit, the Audit Team reviewed UDOT's NEPA project files, 
UDOT's response to FHWA's pre-audit information request (PAIR), UDOT's 
NEPA Assignment Self-Assessment Report, UDOT's NEPA Quality Assurance/
Quality Control (QA/QC)

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Guidance, and UDOT's NEPA Assignment Training Plan. The Audit Team 
conducted videoconference interviews with four members of UDOT central 
office staff, six of UDOT's legal counsel (one current Assistant 
Attorney General assigned to UDOT, one former Assistant Attorney 
General assigned to UDOT, and four outside counsel), three staff 
members from the U.S Environmental Protection Agency, and two staff 
members from the U.S. Fish and Wildlife Service (FWS) as part of the 
virtual audit.
    Overall, the Audit Team found that UDOT continues to successfully 
carry out its DCE, EA, and EIS project review responsibilities. The 
UDOT has also made efforts to respond to the FHWA findings from the 
third audit, including improving document management and QA/QC 
procedures. In the third audit, the Audit Team found that UDOT issued 
an environmental document without a final legal sufficiency finding, 
and had observed that there were ways UDOT could improve their 
training.
    In this fourth and final audit, the Audit Team identified four 
observations and two successful practices. The Audit Team finds UDOT is 
carrying out the responsibilities it has assumed, and they are in 
substantial compliance with the provisions of the MOU. This report also 
concludes with the status of FHWA's non-compliance observation from the 
third audit review, including any UDOT self-imposed corrective actions. 
After the fourth year of UDOT's participation in the program, FHWA will 
continue to monitor UDOT's compliance with the terms of this MOU, in 
accordance with 23 U.S.C. 327(h).

Background

    The NEPA Assignment Program allows a State to assume FHWA's 
environmental responsibilities for review, consultation, and compliance 
for Federal-aid highway projects and certain other FHWA actions. Under 
23 U.S.C. 327, a State that assumes these Federal responsibilities 
becomes solely responsible and solely liable for carrying them out. 
Effective January 17, 2017, UDOT assumed FHWA's responsibilities under 
NEPA and other Federal environmental laws. Examples of responsibilities 
UDOT has assumed in addition to NEPA include section 7 consultation 
under the Endangered Species Act and consultation under section 106 of 
the National Historic Preservation Act.
    Audits are the primary mechanism through which FHWA oversees UDOT's 
compliance with the MOU and the NEPA Assignment Program requirements. 
This includes ensuring compliance with the 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. Through this fourth and final 
audit, FHWA will satisfy provisions of 23 U.S.C. 327(g) and Part 11 of 
the MOU. This report summarizes the results of the fourth and final 
audit in Utah, and it includes a summary discussion that describes 
progress since the last audit.

Scope and Methodology

    The MOU (Part 3.1.1) states that ``[p]ursuant to 23 U.S.C. 
327(a)(2)(A), on the effective date, FHWA assigns, and UDOT assumes, 
subject to the terms and conditions set forth in 23 U.S.C. 327 and this 
MOU, all of the U.S. Department of Transportation Secretary's 
responsibilities for compliance with the NEPA, 42 U.S.C. 4321 et seq. 
with respect to the highway projects specified under subpart 3.3. This 
assignment includes statutory provisions, regulations, policies, and 
guidance related to the implementation of NEPA for highway projects 
such as 23 U.S.C. 139, 40 CFR parts 1500-1508, DOT Order 5610.1C, and 
23 CFR 771 as applicable.'' Also, the performance measure in MOU Part 
10.2.1(A) for compliance with NEPA and other Federal environmental 
statutes and regulations commits UDOT to maintaining documented 
compliance with requirements of all applicable statutes and regulations 
as well as the provisions in the MOU.
    The Audit Team consisted of NEPA subject matter experts from the 
FHWA Utah Division, FHWA Resource Center, the Volpe Center, FHWA 
Headquarters, and FHWA Office of the Chief Counsel. These experts 
received training on how to evaluate implementation of the NEPA 
Assignment Program.
    The Audit Team conducted an examination of UDOT's NEPA project 
files, UDOT's responses to the PAIR, and UDOT's self-assessment. The 
audit also included interviews with staff and reviews of UDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities. All reviews 
focused on objectives related to the six NEPA Assignment Program 
elements: program management; documentation and records management; QA/
QC; legal sufficiency; training; and performance measurement. In 
particular, the Audit Team reviewed UDOT's process and procedures for 
conducting environmental reevaluations.
    The focus of the audit was on UDOT's process and program 
implementation. Therefore, while the Audit Team reviewed project files 
to evaluate UDOT's NEPA process and procedures, the Audit Team did not 
evaluate UDOT's project-specific decisions to determine if they were, 
in FHWA's opinion, appropriate or not. The Audit Team reviewed 20 NEPA 
Project files with DCEs, EAs, EISs, and reevaluations, representing all 
projects with decision points or other actionable items between July 1, 
2019, and June 30, 2020. The Audit Team also interviewed environmental 
staff in UDOT's headquarters office.
    The PAIR consisted of 25 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 UDOT staff. The Audit Team 
conducted four interviews with UDOT environmental staff, one virtual 
interview with staff from the U.S. Environmental Protection Agency 
(EPA), one interview with staff from the FWS, two interviews with 
UDOT's outside legal counsel, and one interview with legal counsel from 
the Utah Attorney General's Office. All interviews were conducted as 
videoconferences.
    Throughout the document reviews and interviews, the Audit Team 
verified information regarding 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 and arrived at the following audit opinion.
    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

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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 that the Audit Team would like to 
draw UDOT's attention to, which may benefit from revisions to improve 
processes, procedures, or outcomes. The UDOT may have already taken 
steps to address or improve upon the Audit Team's observations, but at 
the time of the audit they appeared to be areas where UDOT could make 
improvements. This report addresses all six MOU topic areas as separate 
discussions. Within each area, this report discusses successful 
practices followed by observations.
    This audit report provides an opportunity for UDOT to implement 
actions to improve their NEPA Assignment Program. The FHWA and UDOT 
will continue to work together to monitor UDOT's compliance with the 
terms of this MOU, as required by 23 U.S.C. 327(h).

Program Management

Successful Practice #1

    The Audit Team identified one of UDOT's project websites which 
included detailed information about the proposed noise impact analyses, 
traffic noise abatement measures, and the proposed relocation of the 
existing noise barriers as a successful practice. The noise impact and 
abatement information presented to the public was comprehensive and 
easy to understand.

Observation #1

    Section 5.1.4 of UDOT's NEPA Assignment MOU outlines an interagency 
planning and coordination protocol to make sure that all programmatic 
agreements reflect UDOT's new roles and responsibilities under NEPA 
Assignment. The Audit Team observed that UDOT's Section 106 
programmatic agreements with four Tribal governments predate NEPA 
Assignment, and they do not reflect UDOT's assigned roles and 
responsibilities. We recommend that UDOT reach out to these Tribal 
governments and implement the interagency planning and coordination 
provisions of Section 5.1.4, which may include amending the 
programmatic agreements or obtaining a ``written consent.'' The 
recommended path forward would enable UDOT to clarify its assigned 
roles and responsibilities during Section 106 consultations. The 
overall consistency across all five of the Section 106 programmatic 
agreements is important to clarify the organizational roles and 
responsibilities between UDOT and FHWA for both Section 106 and 
Government-to-Government consultations, resulting in more predictable 
lines of communication, more productive and meaningful interagency 
dialogue with the Tribes, and a positive reinforcement of FHWA's 
retained Tribal trust responsibilities.

Observation #2

    In the course of reviewing the most recent Manual of Instruction 
(MOI), the Audit Team identified several areas that do not address the 
most recent requirements and guidelines associated with the Fixing 
America's Surface Transportation Act; FHWA's 2019 Reevaluation Q&A 
Guidance; Moving Ahead for Progress in the 21st Century Act Section 
1319 interim guidance relating to the appropriate use of the combined 
Final Environment Impact Statement/Record of Decision documents; FHWA's 
2011 Environmental Justice and NEPA guidance for identifying, 
disclosing and mitigating impacts to environmental justice communities; 
or FHWA's October 2018 memorandum addressing activities that may be 
completed prior to issuance of a Notice of Intent to prepare an EIS. 
During interviews, UDOT informed us that they make regular updates to 
the MOI, as needed. However, these examples illustrate that the MOI 
would benefit from a regularly scheduled, comprehensive review to 
ensure that it reflects current national policy and guidance.

Documentation and Records Management

Successful Practice #1

    During this audit period, the Audit Team reviewed reevaluations for 
two EIS projects that appeared to use the same format. While it is not 
explicitly required by the MOI, UDOT did appear to use a standard 
procedure for these reevaluations. For example, both included a Summary 
of Re-evaluation Analysis Table that functions like an environmental 
checklist. This table creates a standard process for looking at changes 
in both the magnitude of project impacts, as well as project scope 
modifications.

Observation #1

    The team reviewed multiple reevaluations for the West Davis 
Corridor Project. Each individual reevaluation addressed the changes on 
that portion of the larger project. The FHWA suggests UDOT also add 
language that summarizes the changes across all the reevaluations, such 
as providing a listing of all the related reevaluations and a statement 
correlating them, to clearly demonstrate and document that UDOT has 
considered impacts across the entirety of the project.

Quality Assurance/Quality Control

    The UDOT has made improvements to its QA/QC procedures. These 
improvements are discussed in the Legal Sufficiency section of this 
report.

Legal Sufficiency

    During the audit period outside counsel issued three 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. These 
include legal sufficiency reviews of one EIS and two Section 4(f) 
evaluations. The UDOT has continued using the legal sufficiency process 
it put in place for both Section 326 CE and Section 327 NEPA 
Assignment; that is, contracting with outside counsel who have 
extensive experience in NEPA, other environmental laws, and Federal 
environmental litigation. Since the signing of the initial FHWA-UDOT 
MOU for the NEPA Assignment Program in January 2017, no lawsuits have 
been filed against NEPA-assigned projects in the State of Utah.

Training

    The UDOT has continued to develop an annual training plan, in 
compliance with Section 12.2 of the MOU.

Performance Measures

    The UDOT has continued to assess its performance as required under 
the terms of the MOU. The UDOT's annual self-assessment report 
indicates that they are meeting their performance targets. The process 
of, and results from, the State's self-assessment have been an 
important factor in the improvement of UDOT's NEPA Program. Observation 
#1 Section 10.2.1.C.i of the MOU requires UDOT to assess change in and 
ensure effective communication among UDOT, Federal, and State resource 
agencies resulting from assumption of responsibilities under the MOU. 
In interviews, resource agency staff at the EPA and the FWS stated that 
overall they have a good working relationship with UDOT staff. Some FWS 
staff indicated that they could utilize additional information on the 
differences between the 23 U.S.C. 326 (CE Assignment) program and the 
23 U.S.C. 327 (NEPA Assignment) program. The Audit Team also learned 
that neither FWS nor EPA had responded to

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UDOT's annual resource agency survey. These are examples of where 
UDOT's program may benefit from more consistent, program-level 
discussions with resource agencies to ensure that all parties 
understand their respective roles and responsibilities, as well as the 
provisions of the 326 and 327 programs. Stronger managerial-level 
communications with the resource agencies may increase their 
understanding of the importance of the survey and improve the response 
rate.

No Non-Compliance Observations in Audit #4

    Non-compliance observations are instances where the team found UDOT 
was out of compliance or deficient in proper implementation of a 
Federal regulation, statute, guidance, policy, the terms of the MOU, or 
UDOT's own procedures for compliance with the NEPA process. Such 
observations may also include instances where UDOT has failed to 
maintain technical competency, adequate personnel, and/or financial 
resources to carry out the assumed responsibilities. Other 
noncompliance observations could suggest a persistent failure to 
adequately consult, coordinate, or consider the concerns of other 
Federal, State, Tribal, or local agencies with oversight, consultation, 
or coordination responsibilities. The FHWA expects UDOT to develop and 
implement corrective actions to address all non-compliance 
observations. The Audit Team did not identify any non-compliance 
observations during this audit.

Follow-up on the Prior Non-Compliance Observations From Audit #3

    The FHWA had reported a noncompliance observation relating to UDOT 
not complying with the State's environmental review procedures as a 
part of Audit #3. 2019 Audit #3--Issuing a Document Without Final Legal 
Sufficiency Finding As noted earlier, in response to the 2019 audit 
finding that legal sufficiency review documentation was not provided 
prior to approval of a project FEIS, UDOT and outside counsel 
implemented a more formalized system by instituting a Legal Sufficiency 
Review Form to be completed by UDOT's outside counsel. The form would 
ensure a record that the legal sufficiency review occurred. The Audit 
Team confirmed that UDOT developed and implemented the form for the 
legal sufficiency reviews during this audit period.

Response to Public Comments on the Draft Report and the Final Report

    The FHWA received and responded to three comments on the draft 
audit report, pursuant to 23 U.S.C. 327(g)(2). The American Road & 
Transportation Builders Association (ARTBA) commented that they are in 
general support of UDOT's implementation of the NEPA Assignment Program 
to accelerate Federal-aid highway program and project delivery in Utah. 
The FHWA appreciates ARTBA's input. A private citizen commented that he 
is not supportive of UDOT's implementation of the NEPA Assignment 
Program, due to his experience with the Northern Corridor Highway 
Project in the Bureau of Land Management's (BLM) Red Cliffs National 
Conservation Area. The Audit Team, in conjunction with the FHWA Utah 
Division Office, independently reviewed and confirmed that the Federal 
action associated with this concern was the BLM's Federal land 
management decision, including BLM's NEPA approval for that Federal 
land management decision. It was not a NEPA approval by UDOT under the 
NEPA Assignment Program. Finally, an anonymous commenter raised 
concerns about UDOT's traffic noise abatement procedures as they apply 
to local public agencies. Based on FHWA's traffic noise abatement 
regulations in 23 CFR 772.7(b), UDOT has developed noise policies in 
conformance with 23 CFR part 772, and FHWA Utah Division Office 
approved them. The UDOT is required to apply these policies uniformly 
and consistently statewide, including the uniform and consistent 
application to the NEPA reviews of the Federal-aid highway projects 
administered by the local public agencies in Utah.
    After reviewing the public comments, and looking into the concerns 
raised in the comments, FHWA determined that there is no need to revise 
the draft audit report. The FHWA may also consider the public comments 
in scoping the future NEPA Assignment monitoring reviews in Utah.
    Therefore, FHWA is finalizing UDOT's fourth and final NEPA 
Assignment audit report with this Federal Register notice.

[FR Doc. 2023-19705 Filed 9-12-23; 8:45 am]
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