Surface Transportation Project Delivery Program; TxDOT Audit #5 Report, 2298-2304 [2019-01250]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Notices]
[Pages 2298-2304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01250]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2018-0044]


Surface Transportation Project Delivery Program; TxDOT Audit #5 
Report

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

ACTION: Notice, request for comment.

-----------------------------------------------------------------------

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, 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 fifth and last audit report for 
the Texas Department of Transportation's (TxDOT) participation in 
accordance to these pre-FAST Act requirements.

DATES: Comments must be received on or before March 8, 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 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, 
owen.lindauer@dot.gov, or Mr. Jomar Maldonado, Office of the Chief 
Counsel, (202) 366-1373, jomar.maldonado@dot.gov, 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 (or NEPA 
Assignment Program) allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal 
highway projects. This provision has been codified at 23 U.S.C. 327. 
Since December 16, 2014, TxDOT has assumed FHWA's responsibilities 
under NEPA 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, Public Law 114-94, 129 Stat. 1312 (2015). 
Section 1308 of the FAST Act amended the audit provisions by limiting 
the number of audits to one audit each year during the first 4 years of 
a State's participation. This notice announces the availability of the 
report for the fifth and final audit for TxDOT conducted prior to the 
FAST Act and solicits public comment on same.

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

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

DRAFT

Surface Transportation Project Delivery Program, FHWA Audit #5 of the 
Texas Department of Transportation, August 1, 2017 to August 1, 2018

Executive Summary

    This is a report of Federal Highway Administration's (FHWA's) fifth 
audit (Audit #5) of the Texas Department of Transportation (TxDOT) 
responsibilities assigned under a memorandum of understanding (MOU) 
effective December 16, 2014. From that date, TxDOT assumed FHWA's 
National Environmental Policy Act (NEPA) responsibilities assigned for 
the environmental review and compliance and for other environmental 
review laws and requirements for highway projects in Texas (NEPA 
Assignment Program). The report concludes with a status update for 
FHWA's observations from the fourth audit review (Audit #4).
    The FHWA Audit #5 team (team) was formed in October 2017 and met 
regularly to prepare for the on-site portion of the audit. Prior to the 
on-site visit, the team: (1) Performed reviews of project files in 
TxDOT's Environmental Compliance Oversight System (ECOS), (2) examined 
TxDOT's responses to FHWA's pre-audit information requests (PAIR), and 
(3) developed interview questions. The on-site portion of this audit, 
comprised of TxDOT interviews, was conducted on May 21-25, 2018.
    The TxDOT continues to develop, revise, and implement procedures 
and processes required to carry out the NEPA Assignment Program. 
Overall, the team found continued evidence that TxDOT is committed to 
establishing a successful program. This report summarizes the team's 
assessment of the status of several aspects of the NEPA Assignment 
Program, including a variety of successful practices and five 
observations that represent opportunities for TxDOT to improve its 
program. The team identified two categories of non-compliance

[[Page 2299]]

observations that TxDOT will need to address as corrective actions.
    The TxDOT has continued to make progress toward meeting the 
responsibilities it has assumed in accordance with the MOU. The team 
finds TxDOT to be in substantial compliance with the terms of the MOU, 
and FHWA looks forward to working with TxDOT to renew the MOU.

Background

    The Surface Transportation Project Delivery Program allows a State 
to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for highway projects. This Program is 
codified at 23 U.S.C. 327. When a State assumes these Federal 
responsibilities for NEPA project decisionmaking, the State becomes 
solely responsible and liable for carrying out these obligations in 
lieu of and without further 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.
    The FHWA responsibilities assigned to TxDOT are specified in the 
MOU. These responsibilities include: Compliance with the Endangered 
Species Act (ESA) Section 7 consultations with the U.S. Fish and 
Wildlife Service (USFWS) and the National Oceanic and Atmospheric 
Administration's National Marine Fisheries Service, and Section 106 
consultations with the Texas Historical Commission regarding impacts to 
historic properties. Some 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.
    These audits are part of FHWA's oversight responsibility for the 
NEPA Assignment Program. The reviews are to assess a State's compliance 
with the provisions of the MOU as well as all applicable Federal laws 
and policies. They also are used to evaluate a State's progress toward 
achieving its performance measures as specified in the MOU; to evaluate 
the success of the NEPA Assignment Program; and to inform the 
administration of the findings regarding the NEPA Assignment Program. 
In December 2015, statutory changes in Section 1308 of the Fixing 
America's Surface Transportation Act (FAST Act), reduced the frequency 
of these audit reviews to one audit per year during the first 4 years 
of State participation in the program. This audit is the last of the 
required audits.

Scope and Methodology

    The team for Audit #5 included NEPA subject-matter experts from 
FHWA Texas Division Office, as well as FHWA offices in Washington, 
District of Columbia, Atlanta, Georgia, and Phoenix, Arizona. In 
addition to the NEPA experts, the team included FHWA planners, 
engineers, and air quality specialists from the Texas Division office. 
The diverse composition of the team, the process of developing the 
review report, and publishing it in the Federal Register help maintain 
an unbiased review and establish the audit as an official action taken 
by FHWA.
    The scope and focus of this audit included reviewing the processes 
and procedures (i.e., toolkits and handbooks) used by TxDOT to reach 
and document its independent project decisions. The team conducted a 
careful examination of highway project files in TxDOT's database called 
Environmental Compliance Oversight System (ECOS) and verified 
information on the TxDOT NEPA Assignment Program through inspection of 
other records and through interviews with TxDOT and other staff. The 
team gathered information that served as the basis for this audit from 
three primary sources: (1) TxDOT's response to a pre-Audit #5 
information request (PAIR #5), (2) a review of a judgmental sample of 
project files in ECOS with approval dates after the execution of the 
MOU, and (3) interviews with TxDOT staff. In addition, 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.
    This review will also serve to assess the State's performance in 
carrying out the selected and identified procedures established for 
NEPA Assignment including compliance with transportation planning 
procedures in regard to funding eligibility requirements for placing 
TxDOT projects on the Statewide Transportation Improvement Program 
(STIP) and for Metropolitian Planning Organizations placing projects in 
the Metropolitan Transportation Plan (MTP)/Transportation Improvement 
Program (TIP) (MOU stipulation 3.3.1). Interviews with TxDOT's Finance 
Division (Letting Management Office) and Transportation Planning and 
Programming Division personnel were included in Audit #5.
    The intent of the review was to check that TxDOT overall has the 
procedures in place to implement the responsibilities assumed through 
the MOU, ensure that the staff is aware of those procedures, and that 
staff implements the procedures to achieve compliance with NEPA and 
other assigned responsibilities. The review did not evaluate 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. In some cases, procedures within 
TxDOT cross multiple divisions (and 25 districts) and require close 
coordination amongst all parties internal to TxDOT to ensure compliance 
under the MOU.
    The fifth audit intends to: (1) Evaluate whether TxDOT's NEPA 
process and procedures (both Federal and State) used for project 
decisionmaking and other actions comply with all the responsibilities 
it assumed in the MOU and (2) determine the status of observations in 
the Audit #4 report, as well as required corrective actions (see 
summary at end of this report). The NEPA approvals included categorical 
exclusion (CE) ``d-list'' approvals, findings of no significant impacts 
(FONSI), re-evaluations of environmental assessments (EAs), Section 
4(f) decisions, approvals of a draft environmental impact statement 
(DEIS), re-evaluations of EISs, and records of decision.
    The team defined the timeframe for highway project environmental 
approvals subject to this fifth audit to be between February 1, 2017, 
to January 31, 2018. The population of project approvals selected for 
review derived from 12 TxDOT-certified lists of NEPA approvals reported 
monthly. The project file review effort was divided into approvals made 
during Round 1 (Feb 1, 2017--July 31, 2017) and Round 2 (Aug 1, 2017--
Jan 31, 2018). Round 1 of our ECOS Review initially consisted of 14 
project FONSIs, 12 EA re-evaluations (Re-Evals), 3 EIS Re-Evals, 16 CE 
determinations of actions not listed in regulation (Open-ended d-list 
CEs), 1 final EA, and 1 c-28 CE (for a rail project) for a total of 47 
projects. Round 2 of our ECOS Review consisted of 4 FONSIs, 6 EA Re-
Evals, 2 EIS Re-Evals, 17 Open-ended d-list CE, and 1 final EA. The 
FHWA's Compliance Assessment Program (CAP) conducts a

[[Page 2300]]

review of project files independent of this audit. Two projects from 
CAP were considered in this review bringing the total to 32 projects 
that were initially reviewed. The total number of projects that were 
initially reviewed for the Audit #5 ECOS Review totaled 79 projects.
    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 six of TxDOT's Districts. The team conducted face-
to-face interviews of TxDOT District staff in the San Angelo, Abilene, 
Wichita Falls, Fort Worth, Houston, and Lufkin Districts. The TxDOT 
staff from the Transportation Planning and Programming (TPP) Division 
and the Finance Division (FIN) were also interviewed. The team used the 
same ECOS project document review form to document findings related to 
projects. The team updated interview questions for districts and ENV, 
TPP, and FIN with new focus areas to gather relevant data to draw 
conclusions herein.

Overall Audit Opinion

    The TxDOT continues to make progress in the implementation of its 
program that assumes FHWA's NEPA project-level decision authority and 
other environmental responsibilities. The team acknowledges TxDOT's 
effort to refine, and when necessary, establish additional written 
internal policies and procedures. The team found evidence of TxDOT's 
continuing efforts to train staff, clarify the roles and 
responsibilities of TxDOT staff, and in educate staff in an effort to 
assure compliance with all of the assigned responsibilities.
    The team identified 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 observations and successful practices that we 
recommend be expanded upon. The team finds TxDOT to be in substantial 
compliance with the terms of the MOU, and FHWA looks forward to working 
with TxDOT to renew the MOU.

Non-Compliance Observations

    Non-compliance observations are instances where the team found 
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.
    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 DOT 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 
and (2) with the State's environmental review procedures.
    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. The follow is a list of the 
procedures and the instance where the team found the TxDOT to be non-
compliant.
(a) Logical Termini and Independent Utility
    The TxDOT approved a project to add capacity with project limits 
based on county lines. Using county lines to establish project limits 
is inconsistent with FHWA policies and guidance on establishing a 
project's logical termini because its sets an arbitrary boundary. (23 
CFR 771.111(f); The Development of Logical Project Termini, FHWA 
guidance (November 5, 1993)).
(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 TIP, 
Regional Transportation Plan (RTP), or MTP. The team identified three 
projects where TxDOT made NEPA approval without meeting the MOU 
consistency requirement. This recurring deficiency was also identified 
for a project file in Audit #4.
(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 for an action 
described in 23 CFR 771.115(a). The team reviewed a project file where 
TxDOT approved a FONSI for an action described in 23 CFR 771.115(a) 
(new controlled access freeway) without evidence of a required 
additional public notification. The TxDOT acknowledges this requirement 
in their updated public involvement handbook. This recurring deficiency 
was also identified in Audits #3 and 4.
(d) Section 4(f) De Minimis
    The TxDOT determined Section 4(f) is required for a project without 
completing the required Section 4(f) de minimis determination (MOU 
3.2.1 and 23 CFR 774).
(e) Certification of NEPA Compliance Missing at Project Construction 
Authorization
    In two instances TxDOT requested, and received, construction 
authorization for a Federal-aid project without ensuring the completion 
of NEPA. (Section 8.7.1 of MOU). Section 8.7.1 of the MOU requires 
TxDOT to certify to FHWA, for Federal-aid funded projects, that TxDOT 
has fully carried out all responsibilities assumed under the MOU prior 
to the execution of any Federal-aid project agreement for physical 
construction. The TxDOT is aware of these instances and had implemented 
corrective action to address this issue by the time Audit #5 was in 
process.
    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 the following examples of deficient 
adherence to these State procedures.

[[Page 2301]]

(a) Noise Policy
    One project did not follow the TxDOT Noise guidelines (Guidelines 
for Analysis and Abatement of Roadway Traffic Noise, 2011) by not 
addressing critical noise comments made by ENV prior to project 
approval. The TxDOT noise guidelines identifies procedures for 
compliance with 23 CFR part 772.
(b) Required TxDOT ENV Class of Action Pre-Approval Process
    A TxDOT district approved a project that was not on the ``c'' or 
``d'' list and the district did not receive the required pre-approval 
from ENV to process the project as an open-ended d-list CE.

Successful Practices and Other Observations

    This section summarizes the TxDOTs practices that the team believes 
are successful as well as observations about issues that TxDOT may 
consider as areas to improve. 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 observations 
that FHWA recommends TxDOT consider in order to make improvements. The 
FHWA's suggested implementation methods of action include: Corrective 
action, targeted training, revising procedures, continued self-
assessment, 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 to improve its program prior to the publication of this 
report.
1. Program Management
Successful Practices and Observations
    The team applauds TxDOT-ENV willingness to continue to engage in 
quarterly partnering meetings with FHWA that started in 2016. The 
exchange of information between FHWA and TxDOT has enhanced FHWA's 
understanding of TxDOT's program and has led to cooperation that has 
resulted in improved TxDOT processes and procedures. This will assist 
in making monitoring a success as well. District staff interviewed 
described the positive interaction that occurs among the District 
Transportation and Planning Director and the Environmental Coordinator 
(EC) with district designers and engineers to discuss projects being 
developed and discuss issues and revise schedules if needed.
Observation #1: Planning Consistency at the Time of 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 TIP, RTP, 
or MTP. The TxDOT's use of Develop Authority (DA) in some project files 
as a basis for planning consistency satisfies this requirement so long 
as TxDOT has provided FHWA with a DA financial plan. The team urges 
TxDOT to provide FHWA with the financial documentation to support the 
use of DA.
Observation #2: TxDOT Inter-Division Coordination
    The team learned through interviews that staff from divisions other 
than ENV (Transportation Planning and Programming, Finance, Right-of-
way, and Rail) who support environmental reviews and decisions were 
unaware of their part they played in NEPA reviews. We urge TxDOT ENV to 
discuss needs and procedures for delivering compliant NEPA approval for 
Federal-aid projects with these other divisions. The TxDOT is aware of 
this issue and has implemented procedures to address it.
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. The ECOS is how TxDOT 
identifies and procures information required to be disclosed to and 
requested by the public. The ECOS is being upgraded and there are more 
phased upgrades planned over time. The most recent work includes 
Expedited C-List (22), an automated process to add a Control Section 
Job number to an existing environmentally cleared project, and 
automated business rules to prevent incorrect project associations in 
ECOS.
Successful Practices and Observations
    The team learned that ECOS continues to improve in download speed 
and compatibility. The team learned from interviews that ECOS continues 
to improve reliability, download speeds, and has fewer technical 
problems. The phased ECOS updates continue to roll out.
    Overall ECOS has provided a consistent repository for better 
documentation and is enhanced by staff use of a new naming convention 
per discipline. The EA checklist is working well in conjunction with 
the CORE Team concept.
3. Quality Assurance/Quality Control (QA/QC)
Successful Practices and Observations
    The team observed continued successful practices from previous 
audits in QA/QC. These successful practices include the use of NEPA 
Chats, increased Subject Matter Expert (SME) interactions with district 
staff after review of files, and the CORE Team concept (items described 
in previous audit reports). The TxDOT District Office environmental 
staff continues to do peer reviews of environmental decisions to double 
check the quality and accuracy of documentation.
    The team learned through interviews that approved open-ended d-list 
projects were reviewed by Program Review Section (PR) as part of a 
thorough review of NEPA class of action. District staff said in 
interviews that they feel they can reach out to ENV staff and PR to ask 
questions to assist in the preparation of compliant and quality 
documents.
    The ENV SME's, we were told in interviews, are reaching out to the 
district staff with corrections and resolution of issues in documents, 
which is viewed as an improved way to relate and resolve issues found 
in file reviews. These communications often result in improvements in 
guidance/checklists as well as a noted decrease in corrective actions 
from PR reviews. Interviewees told us that ECOS continues to improve 
and is perceived to be easier to use and that updates have resulted in 
fewer substantive errors. The team considers that self-assessments 
conducted by ENV for Section 4(f) and Public Involvement resulted in 
positive changes and improvements in quality documents by using 
established checklists and certifications and the CORE Team concept.
Observation#3: TxDOT Monthly Lists of NEPA Approvals
    The review team identified a few projects listed on the monthly 
list incorrectly, projects missing from the list, and projects added on 
after

[[Page 2302]]

submittal to FHWA. The TxDOT is aware of this problem and is taking 
steps to address it.
Observation#4: QC for Re-Evaluations
    The team noted in project file reviews that re-evaluation 
recordkeeping was inconsistent, especially for consultation re-
evaluations. Because re-evaluations are not reviewed by TxDOT's PR, the 
team would urge TxDOT to subject at least a sample of re-evaluations to 
quality assurance review.
4. Legal Sufficiency Review
    The team did not identify any observations and only presents a 
summary of TxDOT's approach to legal review. The General Counsel 
Division (GCD) currently has five lawyers on staff (lead attorney and 
four staff) plus outside counsel. After the lead attorney, the staff 
has between 6-months and two and half years of experience with GCD. 
Reviews are done primarily by the lead attorney and two staff with the 
other two assisting on an as needed basis such as the development of 
the administrative record and quick turnaround required for a DEIS. 
Additional assistance is provided by an outside law firm and a 
consultant attorney who has delivered environmental legal assistance to 
ENV for several years. The GCD assistance continues to be guided by 
ENVs Project Delivery Manual Sections 303.080 through 303.086. These 
sections provide guidance on conducting legal sufficiency review of 
FHWA-funded projects and those documents that are to be published in 
the Federal Register such as the Notice of Intent to prepare an EIS, 
Statute of Limitation (139(l)), and Notice of Availability of EIS.
    During the last year GCD had a very large effort to address the 
MOPAC lawsuit particularly in developing the administrative record. 
They used their staff along with the Attorney General, consultant staff 
and outside staff. Another significant effort was a lawsuit on an EA/
FONSI that required a very quick turnaround by the entire staff to a 
request for a preliminary injunction. The TxDOT was served notice of 
the lawsuit on March 27 and notified FHWA Chief Counsel, the U.S. 
Department of Justice, and the FHWA Texas Division Office on the same 
day as required by the MOU.
    The FHWA Office of Chief Counsel provided legal sufficiency 
training to GCD in August 2017. The TxDOT would like to have the same 
training provided on a periodic basis. Recent staff training included a 
legal sufficiency course provided by FHWA Office of Chief Counsel, ENV 
self-developed courses, the TRB Summer Seminar in July 2017 in Salt 
Lake City, and Advanced Administrative Law Seminars held in Austin.
    Based on interviews noted above and information provided in the 
PAIR, TxDOT's current process is legally sufficient and the team 
considers that the requirements for legal sufficiency under the MOU 
continue to be fulfilled.
5. Performance Measurement
    Successful Practices and Observations: The TxDOT continues to 
successfully monitor its metrics to measure performance. The TxDOT's 
summary of its performance measures was described in their self-
assessment summary report. Completion of checklists for project quality 
control continue to be an important measure of overall quality control. 
The TxDOT draws a sample from the population of completed CE project 
files to assess their completeness and accuracy. A separate study 
focused on documentation from 21 EAs. The TxDOT lists the missing or 
deficient information from project files that serves as a basis for 
taking corrective actions. What results is continuous improvements 
based on corrective actions taken. Developments in ECOS have largely 
eliminated substantive error resulting from flawed Categorical 
Exclusion Determination Forms (CEDFs). In previous self-assessments, 
these CEDF errors were a common source of non-compliance.
    The effectiveness of TxDOT's assumption of NEPA responsibilities on 
timeliness of EA decisionmaking was a focus of the TxDOT self-
assessment summary report. Their thoughtful analysis states that start-
to-finish comparisons of EAs prior to and after NEPA assignment suggest 
improvements in timeliness. Median and average EA project completion 
terms for pre-assignment projects suffer from long-duration project 
outliers that are absent from the set of assigned EA projects. Average 
time frames for EA completion post assignment were identified and were 
determined to be statistically valid. While timeliness for EA 
decisionmaking has been documented for the 4 years of NEPA assignment, 
it is also true that this trend fits neatly into a national trend of 
falling median time frames once long-duration outliers have been 
eliminated.
Observation#5: Audit #4 Corrective Actions
    The team noted through the self-assessment summary report that as 
part of the measure of implemented corrective actions, because of the 
delay in finalizing the Audit #4 report, TxDOT had not yet identified 
or implemented corrective actions for that audit result. We urge TxDOT 
to consider developing and implementing reasonable corrective actions 
whenever TxDOT becomes aware of deficiencies in their program. Since 
the completion of the interviews for this audit review TxDOT has 
implemented corrective actions (see Status of Non-compliance 
observations below).
6. Training Program
    Successful Practices and Observations: Looking back over the last 4 
years, TxDOT's training program has shown trends of: (a) Increased 
reliance on developing and delivering training by TxDOT staff compared 
with FHWA Resource Center staff or others, (b) increased organization 
and efficiency in available training as well as training tracking, and 
(c) greater clarity in basic and continuing training requirements 
(linked to the Texas Administrative Code).
    Through an interview, the team learned that a new hands-on training 
workshop in biology consisting of a class room lecture and a field 
component to identify species (mussels, birds) has been delivered in 
west Texas (Junction) that engaged USFWS staff. So well received were 
these workshops that spin off workshops have occurred in east Texas and 
coastal Texas.
    The TxDOT informed the team through an interview that through an 
annual survey to TxDOT staff and resource agencies, it learns of needs 
for new training. As a result, TxDOT has developed or is developing the 
following courses: (a) A basic NEPA training class that for local 
government staff and consultants that follows a 1.5-day general 
training class that targets local government staff, and (b) a NEPA 
class that bridges the NEPA 101 class and environmental SME classes 
training for non-environmental professionals.
    The team learned through an interview that there is an interest 
from at least one transportation and planning director in a class in 
risk management on environmental decisionmaking. Now that TxDOT staff 
have experience in the range of NEPA decision making challenges, the 
team urges that TxDOT's training plan consider NEPA decision making 
training. Since the completion of the interviews for this audit review 
TxDOT has begun developing new training for non-environmental 
professionals to introduce them to environmental review topics.

[[Page 2303]]

Status of Non-Compliance Observations and Other Observations From Audit 
#4 (September 2018)

Audit #4 Non-Compliance Observation #1:
(a) Project Scope Analyzed for Impacts Differed From the Scope Approved
    The TxDOT developed an update for their Scope Development Tool over 
the past 16 months and recently implemented those changes. For specific 
issues such as this one, TxDOT PR conducts a debrief among the project 
core team members and the Deputy Division Director.
(b) Plan Consistency Prior to NEPA Approval
    The TxDOT continues to follow their NEPA approval procedures that 
include procedures to determine planning consistency. The TxDOT was 
asked to provide the documented financial plan for the use of ``Develop 
Authority'' to ensure that this approach complies with planning 
consistency. The TxDOT has provided a draft of this documentation. This 
is a recurrence from Audit #3.
(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 for an action 
that normally would require the preparation of an EIS. The TxDOT 
acknowledges this requirement and has updated their public involvement 
handbook. This is a recurrence from Audit #3.
(d) Timing of NEPA Approval
    One project file lacked documentation for Section 106 compliance 
prior to TxDOT making a NEPA approval. The regulation at 23 CFR 771.133 
requires compliance with all applicable requirements or reasonable 
assurance that all requirements will be met at the time of NEPA 
approval. The TxDOT PR conducted a debrief among the project core team 
members and the Deputy Division Director. The TxDOT is preparing 
changes to ECOS to address this issue.
Audit #4 Non-Compliance Observation #2:
(a) Reporting of Approvals Made by TxDOT
    The 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 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. The TxDOT continually works to assure that only Federal 
projects are present on the monthly approval list. At the time the 
monthly report is prepared, only projects with NEPA approvals are 
present on the list. The TxDOT suggests that instances where a 
project's funding changes after the certified list is prepared could 
account for discrepancies between being federally funded and State 
funded at the time FHWA reviews the list.
(b) Noise Workshop Timing
    One project did not follow TxDOT noise guidelines. The TxDOT is in 
the process of updating their Noise Policy and Guidelines and is 
seeking FHWA approval for those changes. This specific issue has been 
highlighted and discussed at the Environmental Coordinators Conference 
in September 2018.
(c) Endangered Species Act Section 7
    Training efforts by TxDOT are ongoing. The TxDOT is aware of the 
concern for Section 7 compliance.
(d) Indirect & Cumulative Impacts
    The TxDOT hosted a FHWA Resource Center training in February of 
2018 regarding this topic and a more common-sense approach to 
performing the required analyses.
(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. The 
TxDOT has removed Federal funds from the Right of Way portion of this 
project as corrective action.
Audit #4 Observations
    1. Noise procedure clarification: The TxDOT ENV is currently in the 
process of proposing an update to their Noise Policy for FHWA approval 
in 2018 and will update their accompanying Noise Guidelines as well.
    2. Section 7 of the Endangered Species Act:
    The TxDOT continues to train staff on its revised ESA handbook and 
standard operating procedures. In certain districts with sensitive 
habitats (e.g., karst) or the possibility of a species present (e.g., a 
salamander), ENV managers plan to 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 include instances where such bias may occur.
    3. Project description and logical termini: A project contained a 
description of the proposed project as the project's purpose. Another 
proposed added capacity project's description indicated a longer 
terminus compared to a schematic. The TxDOT is aware of these instances 
and discussed these matters with the parties involved.
    4. Record keeping integrity: There were several project files where 
the team identified instances of missing information or information was 
not consistently linked or uploaded. The ECOS is being upgraded 
currently with phase three, and there are two more phased upgrades 
planned over time.
    5. Effectiveness and change in QA/QC: The TxDOT has reorganized its 
Self Assessment Branch and is now called Program Review Section (PR). 
Their approach to QA feedback to TxDOT staff relies on SMEs to 
communicate results of QA reviews.
    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 to encourage 
continuous improvement. The TxDOT provided status on this observation 
in their response to for this audit that included one NEPA chat, and 
meetings with districts who participated in the May 2017 audit. The 
TxDOT district staff now have access to the 2016 and 2017 Self-
Assessment reports via SharePoint.
    7. Additional outreach on improvements: This observation relates to 
informal training to implement TxDOT procedures changes in its 
handbook. As part of information collected for Audit #5, TxDOT 
indicated that they include handbook changes on endangered species 
procedures were a topic briefed at a June 2017 NEPA Chat.
    8. FAST Act training: At the time of Audit #4, TxDOT had neither 
developed nor delivered training to its staff concerning new 
requirements for the FAST Act for environmental review. Since that time 
TxDOT indicated a FAST Act briefing was provided by FHWA Headquarters 
staff at TxDOT's annual Environmental Conference in September 2017. The 
TxDOT also posted a guidance document entitled ``Avoiding Migratory 
Birds and Handling Potential Violations'' in the Natural Resource 
Management toolkit in January 2017 that provides high level guidance on 
FAST Act provisions related to swallow species on at-risk bridges. The 
TxDOT's natural resources management (NRM) section reviewed

[[Page 2304]]

this guidance with districts at one of the bimonthly district/NRM 
coordination meetings.

Next Steps

    The team has worked with TxDOT in developing this draft report. As 
the next step, FHWA will publish a notice in the Federal Register to 
make the draft audit report 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 consider all comments submitted 
in finalizing this draft audit report. Once finalized, the final audit 
report will be published in the Federal Register.

[FR Doc. 2019-01250 Filed 2-5-19; 8:45 am]
BILLING CODE 4910-22-P