Surface Transportation Project Delivery Program; TxDOT Audit #5 Report, 22555-22560 [2019-10312]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Notices]
[Pages 22555-22560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10312]


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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.

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

FOR FURTHER INFORMATION CONTACT: Dr. Owen Lindauer, Office of Project 
Development and Environmental Review, (202) 366-2655, 
[email protected], or Mr. David Sett, Office of the Chief Counsel, 
(404) 562-3676, [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 (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. A draft version of this report was published 
in the Federal Register on December 14, 2017, at 82 FR 59206 and was 
available for public review and comment. The FHWA received one response 
during the 30-day public notice and comment period. The American Road 
and Transportation Builders Association voiced support of this program. 
This notice finalizes the findings of the fifth and final audit report 
for the TxDOT participation in the Surface Transportation Project 
Delivery Program.

    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: May 9, 2019.
Nicole R. Nason,
Administrator, Federal Highway Administration.

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) 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). This 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

[[Page 22556]]

categories of non-compliance 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: responsibility for project-level 
conformity determinations under the Clean Air Act and 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 (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's Texas, District of Columbia, Georgia, and Arizona Division 
Offices. In addition to the NEPA experts, the team included 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 QA/QC, legal sufficiency review, performance 
measurement, and training.
    This review also assessed 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 
Metropolitan 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: (1) evaluated 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) determined 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 (EA), 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 review of project 
files independent of

[[Page 22557]]

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.

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 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 the 
review team 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 U.S. Department of Transportation 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 
address categories associated with procedures specified in Federal 
laws, regulations, policy, or guidance and 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 following 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 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.
    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.

[[Page 22558]]

    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; QA/QC; 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 
encourages 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. The team encourages 
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

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. The team 
observed continued success in that 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.
    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.
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 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

[[Page 22559]]

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, 2017, 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 QC continue to be an important measure of 
overall QC. 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. 
TxDOT should 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. These workshops were 
received well and 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 identified 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 also learned through an interview that there is an 
interest from at least one transportation and planning director for a 
class in risk management on environmental decisionmaking. Now that 
TxDOT staff have experience in the range of NEPA decisionmaking 
challenges, the team suggests that TxDOT's training plan consider NEPA 
decisionmaking 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.

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

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

Finalization of Report

    The FHWA received one response to the Federal Register Notice 
during the public comment period for this draft report. The American 
Road and Transportation Builders Association voiced support of this 
program. This report is a finalized draft version of this report 
without substantive changes.

[FR Doc. 2019-10312 Filed 5-16-19; 8:45 am]
BILLING CODE 4910-22-P