82 FR 17719 - Surface Transportation Project Delivery Program; TxDOT Audit Report #3

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration

Federal Register Volume 82, Issue 69 (April 12, 2017)

Page Range		17719-17728
FR Document		2017-07345
The Surface Transportation Project Delivery Program allows a State to assume FHWA's environmental responsibilities for review, consultation, and compliance for Federal-aid 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 third audit report for the Texas Department of Transportation's (TxDOT) participation in accordance to these pre-FAST Act requirements.
Federal Register, Volume 82 Issue 69 (Wednesday, April 12, 2017)
[Federal Register Volume 82, Number 69 (Wednesday, April 12, 2017)]
[Notices]
[Pages 17719-17728]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07345]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2016-0025]


Surface Transportation Project Delivery Program; TxDOT Audit 
Report #3

AGENCY: Federal Highway Administration (FHWA), 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-aid 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 third 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. Jomar Maldonado, Office of the Chief 
Counsel, (202) 366-1373, [email protected], Federal Highway 
Administration, Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

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

Background

    The Surface Transportation Project Delivery Program (or NEPA 
Assignment Program) allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal-
aid highway projects (23 U.S.C. 327). 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 TxDOT published its application for assumption under the 
National Environmental Policy Act (NEPA) Assignment Program on March 
14, 2014, at Texas Register 39(11): 1992, and made it available for 
public comment for 30 days. After considering public comments, TxDOT 
submitted its application to FHWA on May 29, 2014. The application 
served as the basis for developing the Memorandum of Understanding 
(MOU) that identifies the responsibilities and obligations TxDOT would 
assume. The FHWA published a notice of the draft of the MOU in the 
Federal Register on October 10, 2014, at 79 FR 61370 with a 30-day 
comment period to solicit the views of the public and Federal agencies. 
After the close of the comment period FHWA and TxDOT considered 
comments and proceeded to execute the MOU. Since December 16, 2014, 
TxDOT has assumed FHWA's responsibilities under NEPA, and the 
responsibilities for the NEPA-related Federal environmental laws.
    Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary 
to conduct

[[Page 17720]]

semiannual audits during each of the first 2 years of State 
participation, and annual audits during each subsequent year of State 
participation to ensure compliance by each State participating in the 
program. The results of each audit were required to be presented in the 
form of an audit report and be made available for public comment. On 
December 4, 2015, the President signed into law the FAST Act (Pub. L. 
114-94, 129 Stat. 1312 (2015)). Section 1308 of the FAST Act amended 
the audit provisions by limiting the number of audits to one audit each 
year during the first 4 years of a State's participation. This third 
audit represents the annual review of TxDOT's performance in the 2nd 
year of the State's participation. A draft version of this report was 
published in the Federal Register on November 26, 2016, at 81 FR 85303 
and was available for public review and comment. The FHWA received two 
responses; one was from TxDOT and the other was from the American Road 
and Transportation Builders Association. Only the TxDOT response 
contained substantive comments.
    The first TxDOT comment stated that it disagreed with the draft 
report's characterization of issues related to the degree or 
consistency with which TxDOT has followed guidance, policies, and 
internal TxDOT procedures as ``non-compliance'' observations, as these 
issues do not involve any violation of a statute or rule. Further, 
TxDOT stated that it would consider adherence to regulation and rule as 
meeting the compliance standard while adherence to guidance or policy 
is a second tier threshold that, while important, does not merit a non-
compliance characterization if/when it is not met. The TxDOT disagrees 
with these types of issues being characterized as ``non-compliance'' 
along with alleged violations of statutes and rules. The FHWA responds 
that TxDOT has applied an incorrect standard of review to this audit. 
The MOU subpart 11.1.1 states that the standard is to review ``TxDOT's 
discharge of the responsibilities it has assumed under this MOU.'' As 
such, the review is not limited only to possible violations of statute 
or rule. Further, TxDOT has subjected itself to following the guidance 
and policy of FHWA and other Federal agencies pursuant to MOU subpart 
5.1.1. The FHWA has made no change in the way that non-compliance 
observations are characterized in finalizing the report.
    Another TxDOT comment questions the basis of Non-Compliance 
Observation #1 regarding compliance with Section 7 of the Endangered 
Species Act (ESA). The TxDOT alleges that the audit team questioned the 
TxDOT biologist's judgement regarding its decisions on four projects. 
The TxDOT disagrees with FHWA's characterization that the report did 
not evaluate or second guess those decisions. The FHWA responds that 
the non-compliance observation was based on a number of actions 
documented for specific projects that did not comply either with U.S. 
Fish and Wildlife Service (USFWS) guidance, or that TxDOT toolkit 
procedures did not comply with the ESA requirements and USFWS policy in 
circumstances where an endangered species or its habitat is present. 
The FHWA will revise the text in Non-Compliance Observation #1 for 
further clarity.
    The TxDOT commented that under Successful Practices and Other 
Observations, the draft audit report states ``[t]hroughout the 
following subsections, the team lists nine remaining observations that 
FHWA recommends TxDOT consider in order to make improvements.'' The 
TxDOT has only identified six numbered observations present in the 
draft report. The FHWA appreciates TxDOT's identification of this 
error, and the final report will reflect the six numbered observations.
    The TxDOT's next comment is that the statement: ``The ECOS 
[Environmental Compliance Oversight System] is a tool for storage and 
management of information records, as well as for disclosure within 
TxDOT District Offices, between Districts and ENV [TxDOT's 
Environmental Affairs Division], and between TxDOT and the public,'' is 
incorrect. The TxDOT indicated that ECOS was never envisioned to be a 
tool for the public's use. The FHWA recognizes that while ECOS may be 
the means by which TxDOT identifies and procures information requested 
by the public, ECOS itself was not intended to be the tool available to 
the public to allow the public, on their own, to access project 
specific information. The sentence identified by TxDOT will be revised 
to remove mention of the public.
    The next TxDOT comment raises three issues about Non-Compliance 
Observation #1: (1) That the report has not clearly identified which, 
if any, ``ESA requirements'' are the basis for the observation; (2) 
there is nothing in the ESA rules about determining if ``impact is 
possible''; and (3) there is no requirement to ``provide documentation 
explaining how the project impacts will have no effect,'' as neither 
Section 7 itself nor USFWS's regulations require the preparation of any 
level of documentation when a Federal agency determines that it is not 
necessary to consult under Section 7. Regarding item (1), FHWA responds 
that it has provided TxDOT with specific instances identified in the 
file reviews where ESA requirements were not met, including use of 
improper species lists and not defining a project's action area for 
species. Regarding item (2), FHWA responds that Congress intended to 
``give the benefit of the doubt to the species'' (H.R. Conf. Rep. 96-
697, 96 Cong., 1st sess. 1979). It follows that regarding Section 7 
compliance, anytime impacts are possible, the agency may not ignore 
that possibility. Finally, regarding item (3), FHWA's expectation for 
documented compliance is established in the MOU [subpart 10.2.1(A)(i)]. 
The draft report points out that TxDOT's Section 7 compliance 
procedures promote the utilization of professional judgment but allow 
for a project record to logically contradict the compliance decision 
based on that judgment. The Non-Compliance Observation #1 discussion 
was revised to include: (1) Mention of critical habitat, and (2) the 
justification for consideration of possible impacts to a species or 
their habitat.
    The next TxDOT comment clarifies that TxDOT follows only one noise 
policy that was approved by FHWA in 2011. The comment states that 
FHWA's observations are the result of incorrect actions by individual 
project sponsors and are not the result of a new noise policy. The 
TxDOT developed in 2016 an Environmental Handbook for Traffic Noise 
that did not replace the approved 2011 Guidelines for Analysis and 
Abatement of Highway Traffic Noise. The FHWA appreciates TxDOT's 
identification of this error, and the final report will remove mention 
of a second noise policy and focus the observation on incorrect actions 
identified in project files.

    Authority:  Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 49 CFR 1.48.

Walter C. Waidelich, Jr.,
Acting Deputy Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

FHWA Audit #3 of the Texas Department of Transportation

December 17, 2015, to June 16, 2016

Executive Summary

    This report summarizes the findings of the Federal Highway 
Administration's (FHWA) third audit review (Audit #3) to assess the

[[Page 17721]]

performance by the Texas Department of Transportation (TxDOT) regarding 
its assumption of responsibilities and obligations, as assigned by 
FHWA, under a memorandum of understanding (MOU) which took effect on 
December 16, 2014. From that date, TxDOT assumed FHWA National 
Environmental Policy Act (NEPA) responsibilities assigned for the 
environmental review and compliance, and for other environmental laws 
related to NEPA for highway projects in Texas (NEPA Assignment 
Program). The status of FHWA's observations from the second audit 
review (Audit #2), including any TxDOT self-imposed corrective actions, 
is detailed at the end of this report.
    The FHWA Audit #3 team (team) was formed in February 2016 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 information requests, and (3) developed 
interview questions. The on-site portion of this audit, comprised of 
TxDOT and other agency interviews, was conducted on April 11-15, 2016.
    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 current status of several aspects of the NEPA 
Assignment Program, including numerous successful practices and six 
observations that represent opportunities for TxDOT to improve its 
program. The team identified four non-compliance observations that 
TxDOT will need to address as corrective actions, if not already 
addressed, in FHWA's next review or audit.
    The TxDOT has continued to make progress toward meeting the 
responsibilities it has assumed in accordance with the MOU. Through 
this report, FHWA is notifying TxDOT of several non-compliance 
observations that require TxDOT to take corrective action. By taking 
corrective action and considering changes based on the observations in 
this report, TxDOT should continue to move the NEPA Assignment Program 
forward successfully.

Background

    The Surface Transportation Project Delivery Program 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 approval by FHWA.
    The State of Texas was assigned the responsibility for making 
project NEPA approvals and the responsibility for making other related 
environmental decisions for highway projects on December 16, 2014. In 
enacting Texas Transportation Code, Sec.  201.6035, the State has 
waived its sovereign immunity under the 11th Amendment of the U.S. 
Constitution and consents to defend any actions brought by its citizens 
for NEPA decisions it has made in Federal court.
    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 National Marine Fisheries Service, and Section 106 
consultations with the Texas Historical Commission (THC) regarding 
impacts to historic properties. Other responsibilities may not be 
assigned and remain with FHWA. They include: (1) responsibility for 
project-level conformity determinations under the Clean Air Act and (2) 
the responsibility for government-to-government consultation with 
federally recognized Indian tribes. Based on 23 U.S.C. 327(a)(2)(D), 
any responsibility not explicitly assigned in the MOU is retained by 
FHWA.
    The TxDOT's MOU specifies that FHWA is required to conduct six 
audit reviews. These audits are part of FHWA's oversight responsibility 
for the NEPA Assignment Program. The reviews are to assess a State's 
compliance with the provisions of the MOU 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.

Scope and Methodology

    The overall scope of this audit review is defined both in statute 
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as 
an official and careful examination and verification of accounts and 
records, especially of financial accounts, by an independent unbiased 
body. With regard to accounts or financial records, audits may follow a 
prescribed process or methodology, and be conducted by ``auditors'' who 
have special training in those processes or methods. The FHWA considers 
this review to meet the definition of an audit because it is an 
unbiased, independent, official, and careful examination and 
verification of records and information about TxDOT's assumption of 
environmental responsibilities. Principal members of the team that 
conducted this audit have completed special training in audit processes 
and methods.
    The diverse composition of the team, 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 team for Audit #3 included NEPA subject-matter experts 
from the FHWA Texas Division Office, as well as FHWA offices in 
Washington, DC, Atlanta, GA, and Tallahassee, FL. In addition to the 
NEPA experts, the team included FHWA planners, engineers, and air 
quality specialists from the Texas Division office.
    Audits, as stated in the MOU (Parts 11.1.1 and 11.1.5), are the 
primary mechanism used by FHWA to oversee TxDOT's compliance with the 
MOU and ensure compliance with applicable Federal laws and policies, 
evaluate TxDOT's progress toward achieving the performance measures 
identified in the MOU (Part 10.2), and collect information needed for 
the Secretary's annual report to Congress. These audits also must be 
designed and conducted to evaluate TxDOT's technical competency and 
organizational capacity, adequacy of the financial resources committed 
by TxDOT to administer the responsibilities assumed, quality assurance/
quality control process, attainment of performance measures, compliance 
with the MOU requirements, and compliance with applicable laws and 
policies in administering the responsibilities assumed. The four 
performance measures identified in the MOU are: (1) compliance with 
NEPA and other Federal environmental statutes and regulations, (2) 
quality control and quality assurance for NEPA decisions,

[[Page 17722]]

(3) relationships with agencies and the general public, and (4) 
increased efficiency, timeliness, and completion of the NEPA process.
    The scope and focus of this audit included reviewing the processes 
and procedures (i.e., toolkits) used by TxDOT to reach and document its 
independent project decisions. The team conducted a careful examination 
of highway project files in TxDOT's ECOS and verified information on 
the TxDOT NEPA Assignment Program through inspection of other records 
and through interviews of 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 #3 information request, 
(2) a review of both a judgmental and random sample of project files in 
ECOS with approval dates subsequent to the execution of the MOU, and 
(3) interviews with TxDOT, the USFWS, U.S. Environmental Protection 
Agency (USEPA), and THC staff. The TxDOT provided information in 
response to FHWA pre-audit questions and requests for documents. That 
material covered the following six topics: program management, 
documentation and records management, quality assurance/quality 
control, legal sufficiency review, performance measurement, and 
training. The team subdivided into working groups that focused on 
considering TxDOT's performance according to each of the six topics.
    The intent of the review was to check that TxDOT has the proper 
procedures in place to implement the responsibilities assumed through 
the MOU, ensure that the staff is aware of those procedures, and that 
staff implements the procedures appropriately to achieve compliance 
with NEPA and other assigned responsibilities. The review did not 
evaluate the substance of project-specific decisions or second guess 
those decisions, as such decisions are the sole responsibility of 
TxDOT. The team focused on whether the procedures TxDOT followed 
complied with Federal statutes, regulation, policy, procedure, process, 
guidance, and guidelines.
    The team defined the timeframe for highway project environmental 
approvals subject to this third audit to be between July 1, 2015, and 
January 29, 2016. The third audit intended to: (1) evaluate whether 
TxDOT's NEPA decisionmaking and other actions comply with all the 
responsibilities it assumed in the MOU, and (2) determine the current 
status of observations in the Audit #2 report, as well as required 
corrective actions (see summary at end of this report). The population 
of environmental approvals included 1489 projects based on certified 
lists of NEPA approvals reported monthly by TxDOT. The NEPA approvals 
included 1423 categorical exclusion determinations (CE), approvals to 
circulate Environmental Assessments (EA), findings of no significant 
impacts (FONSI), re-evaluations of EAs, Section 4(f) decisions, 
approvals of a draft environmental impact statement (EIS), and records 
of decision (ROD). The team drew a sample with a 95 percent confidence 
interval with a 10 percent margin of error. This sample included 93 
randomly selected CE projects and all 66 approvals that were not CEs. 
The team reviewed 159 project files in this review.
    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 10 of TxDOT's Districts. The team divided into 
three groups to complete the face-to-face interviews of District staff 
in El Paso and Odessa; Pharr and Yoakum; and San Angelo, Abilene, and 
Brownwood. Staff from the Wichita Falls, Atlanta, and Lufkin Districts 
completed interviews via remote tele-conference. The team continued to 
use the same review form and interview questions for Districts as used 
in Audits #1 and 2. With these last 10 interviews completed, staff from 
all 25 TxDOT Districts were interviewed as part of FHWA's audits.

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 internal policies and 
procedures. The team found ample evidence of TxDOT's continuing efforts 
to train staff in clarifying the roles and responsibilities of TxDOT 
staff, and in educating staff in an effort to assure compliance with 
all of the assigned responsibilities.
    The team identified several non-compliant observations in this 
review that TxDOT will need to address through corrective actions. 
These observations come from a review of TxDOT procedures, project file 
documentation, and interview information. This report also identifies 
several notable good practices that we recommend be expanded upon.

Non-Compliance Observations

AUDIT #3
    Non-compliance observations are instances where the team found the 
TxDOT was out of compliance or deficient with regard to a Federal 
regulation, statute, guidance, policy, the terms of the MOU, or TxDOT's 
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 take 
into account the concerns of other Federal, State, tribal, or local 
agencies with oversight, consultation, or coordination 
responsibilities. The FHWA expects TxDOT to develop and implement 
corrective actions to address all non-compliance observations. As part 
of information gathered for this audit, TxDOT has informed the team 
they are still implementing some recommendations made by FHWA on Audit 
#2 to address non-compliance. The FHWA will conduct follow up reviews 
of 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 (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 
procedures and processes set forth in the MOU. The following four non-
compliance observations were found by the team based on review of TxDOT 
ENV toolkit/handbook procedures, documentation in project files, and 
other sources.

[[Page 17723]]

Audit #3 Non-Compliance Observation #1: Section 7 Consultation

    The TxDOT has assumed the responsibilities for compliance with the 
ESA of 1973 (16 U.S.C. 1531-1544) and developed a procedure, as part of 
the TxDOT environmental toolkit, for staff to make ESA effect 
determinations. Through project file reviews, the team found that 
TxDOT's toolkit procedures do not comply with the ESA requirements and 
USFWS policy \1\ in circumstances where an endangered species, its 
habitat or critical habitat may be present. Pursuant to MOU part 3.1.1 
(see above), TxDOT's procedures must also be consistent with FHWA 
guidance and the USFWS & NMFS 1998 Endangered Species Consultation 
Handbook. Specifically, when a species or its habitat or critical 
habitat may be present within a project's action area and an effect is 
possible, the project file needs to show consultation with USFWS (for a 
may affect determination) or include documentation explaining how the 
project will have no effect on the species and its habitat or critical 
habitat. The TxDOT needs to take action to revise its ESA guidance and 
procedures when an endangered species or its habitat may be present to 
make those procedures consistent with Federal policy and guidance. The 
team acknowledges that TxDOT staff have met with FHWA and USFWS staff 
to discuss how the revised procedures would result in more a consistent 
set of determinations.
---------------------------------------------------------------------------

    \1\ USFWS & NMFS 1998 Endangered Species Consultation Handbook, 
Standard Operating Procedure for Accessing USFWS Ecological Services 
for Technical Assistance and Section 7 Consultations; 300.01 SOP 
Version 2, September 2015.
---------------------------------------------------------------------------

    In four of the five project files reviewed, where an endangered 
species its habitat or critical habitat was potentially present, 
TxDOT's procedure allowed for ESA determinations of ``no effect'' to be 
made based upon a biologist's professional judgment without supporting 
analysis and documentation including a reasoned assessment of the best 
available data. For some, the analysis and documentation included in 
the project files supported a ``may affect'' determination and informal 
consultation with USFWS. In fulfilling ESA section 7(a)(2) 
responsibilities, Congress intended the ``benefit of the doubt'' be 
given to the species (H.R. Conf. Rep. 96-697, 96 Cong., 1st sess. 
1979). The team has informed TxDOT of this deficiency and TxDOT has 
indicated it has reviewed similarly made ESA determinations to check 
for errors. The TxDOT is collaborating with FHWA and the USFWS to 
revise its' ESA handbook and standard operating procedures.

Audit #3 Non-Compliance Observation #2: Noise Policy

    Non-compliance observation #2 results from 11 project files where 
the template letter fails to inform about the non-eligibility for 
Federal-aid participation in Type II traffic noise abatement projects 
as required by 23 CFR 772.17(a)(3). Three of those same projects did 
not follow TxDOT's noise wall policy previously approved by FHWA. The 
FHWA complies with its noise regulations (23 CFR 772) by reviewing and 
approving each State's noise guidance and then relying on the State to 
follow those procedures. For Texas, its noise guidelines (Guidelines 
for Analysis and Abatement of Roadway Traffic Noise, 2011) represents 
the noise policy reviewed and approved by FHWA that serves as the basis 
for compliance with 23 CFR 772. In 2016, TxDOT updated its noise 
handbook according to the 2011 noise policy guidelines that we learned 
from staff interviews lead to some confusion. The team found 
inconsistencies and incorrect information in the ECOS project file of 
record such as: notification to locals with jurisdiction occurring 
before a NEPA decision was made; the date of public knowledge 
improperly occurring before the NEPA decision; and holding a noise 
workshop before the public hearing.

Audit #3 Non-Compliance Observation #3: Public Involvement

    Non-compliance observation #3 is based upon evidence in files for 
four projects reviewed that TxDOT did not follow its public involvement 
procedure and handbook requirements.\2\ The FHWA's regulation at 23 CFR 
771.111(h)(1) requires that each State have FHWA approved public 
involvement procedures to implement the public involvement/public 
hearing requirements in law and regulation. The review team found that 
TxDOT inconsistently applied its public involvement procedures. 
Although TxDOT has detailed public involvement procedures in place, 
TxDOT staff sometimes fails to follow those procedures. In one project 
file, TxDOT did not hold a public hearing for a project on new 
alignment as required in the State's procedures.\3\ Another project 
file lacked documentation of public involvement required by the TxDOT 
procedures.\4\
---------------------------------------------------------------------------

    \2\ TxDOT's Environmental Handbook/Public Involvement; 760.01 
GUI Version 2, August 2015.
    \3\ See id., Part 5.1.
    \4\ See id., Part 11.
---------------------------------------------------------------------------

    In addition, the team reviewed a project file showing that TxDOT 
issued a FONSI for an action described in 23 CFR 771.115(a) without 
evidence of a required additional public notification. The FHWA's 
regulation at 23 CFR 771.119(h) requires a second public notification 
to occur 30 days prior to issuing a FONSI. The team reviewed the TxDOT 
public involvement handbook and found no mention of the Federal 
requirement for a second public notification under these circumstances. 
The TxDOT modified its public involvement procedures and FHWA reviewed 
and approved those procedures pursuant to 23 CFR 771.111(h). The TxDOT 
needs to take corrective action to comply with the regulatory 
requirements for public involvement consistent with the revised public 
involvement policy that has been reviewed and approved by FHWA.

Audit #3 Non-Compliance Observation #4: Section 4(f)

    Non-compliance observation #4 results from the review of one 
project file that lacked the required documentation for compliance with 
Section 4(f) as specified in 23 CFR 774.7 and TxDOT's Environmental 
Handbook/U.S. Department of Transportation Act: Section 4(f); 810.01 
GUI Version 1 dated May 2015. The project file lacked the date and 
identity of the individual who made a de minimis impact determination. 
The TxDOT did not follow established Section 4(f) toolkit procedures. 
The TxDOT should ensure that all required Section 4(f) documentation is 
complete and included in a project's file.

Successful Practices and Other Observations

    This section summarizes the team's observations about issues or 
practices that TxDOT may consider as areas to improve. It also 
summarizes practices that the team believes are successful, so that 
TxDOT can consider continuing or expanding those programs in the 
future. Further information on these observations and successful 
practices 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 six remaining 
observations that FHWA recommends

[[Page 17724]]

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, 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

    Over the course of interviewing all 25 Districts over the past 18 
months, the team noted that District staff welcomed the opportunity to 
be responsible for making CE approvals. Additionally, TxDOT District 
staff members and management have said in interviews that they are more 
diligent with their documentation because they know that these 
approvals will be internally assessed and the District held accountable 
by the TxDOT ENV Self-Assessment Branch (SAB). District staff indicated 
in interviews that the SAB detailed reviews are highly valued because 
they can learn from their mistakes and improve. Accountability, in 
part, is driving an enhanced desire for TxDOT staff to correctly 
document environmental compliance.
    The team recognizes enhanced communication among individuals in the 
project development process as a successful practice. Information 
gained from interviews and materials provided by TxDOT demonstrate 
improved communication amongst Districts and between Districts and ENV. 
Staff interviewed in Rural Districts indicated that in the past they 
received less attention from ENV than Metropolitan Districts. The team 
noted that ``NEPA Chats'' (regular conference calls led by ENV, 
providing a platform for Districts to discuss complex NEPA 
implementation issues) have helped remove any perceived disparity. 
Urban and Rural Districts feel more included and a part of the 
conversation. The team noted that Rural District staff developed their 
own networks to keep each other informed. District environmental and 
planning staff told the team that they take initiative and break down 
internal District silos between planning, design, construction, and 
maintenance. This includes providing internal self-initiated training 
across disciplines so everyone in the District Office is aware of TxDOT 
procedures to ensure that staff follows NEPA-related processes and 
either keeps projects on-schedule or ensures that there are no 
surprises if projected schedules slip. Finally, the ENV Division 
Director initiated a new approach to effective ENV-District staff 
communication. The Director established an informal three-member 
advisory board with rotating representatives from each of the 
Metropolitan, Urban, and Rural Districts. This board meets with the 
Director to identify and discuss issues and concerns that should be 
addressed by ENV. This exchange and feedback loop should prove 
informative, enable the success of the NEPA Assignment Program, and 
allow for any needed changes or adaptations based on District input.
    The team noted that the Air Quality reviewers at TxDOT ENV work 
extremely well with FHWA in processing this unassigned component of the 
program. The ENV reviewers are empowered to perform their own Quality 
Assurance/Quality Control (QA/QC) review of District-produced material 
before it is sent to FHWA for approval. Retaining and using highly 
skilled, technical expertise in-house at ENV promotes an efficient and 
consistent interpretation of Federal regulations and a successful 
procedure-driven process. This ensures compliance from the outset and 
should be seen as a model to be duplicated in other areas.

Audit #3 Observation #1

    The team identified one project file that showed that the NEPA 
review was incomplete despite the project appearing on a list of 
projects certifying that all environmental requirements had been 
completed pursuant to the MOU (See Part 8.2.6.). Projects that TxDOT 
reports as certified may be processed to receive Federal-aid funding 
from FHWA. Through follow up conversations with TxDOT, the team learned 
that reporting this project was an error that has since been rectified. 
The team urges TxDOT to include a quality control review step as part 
of its process to ensure that only projects that have satisfied all 
environmental requirements are certified and reported to FHWA.

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 the means by 
which TxDOT identifies and procures information required to be 
disclosed to and requested by the public. The TxDOT staff noted that 
ECOS is both adaptable and flexible. The TxDOT must maintain and update 
the ECOS operating protocols (for consistency of use and document/data 
location) and educate its users on updates in a timely manner.

Successful Practices and Observations

    A number of best practices demonstrated by TxDOT were evident as a 
result of the documentation and records management review.
    The team learned through interviews that many TxDOT staff members 
routinely use and are becoming increasingly comfortable with the (still 
optional) scope development tool. Some staff indicated that they also 
utilized the scope development tool to develop their own checklists to 
ensure that all environmental requirements have been met prior to 
making a NEPA approval.
    The team noted from interviews of USFWS and ENV subject matter 
staff that Biological Assessment (BA) and Biological Opinion (BO) 
documentation is more detailed and provides for supportable 
conclusions. Specifically, the team learned that information in the BA 
was formatted so that it could be incorporated directly into a BO, 
which results in faster completion of ESA compliance and thus reduced 
review timeframes.

Audit #3 Observation #2

    The team continued to find instances in which individual project 
files contained inconsistent and, in some cases, contradictory 
Environmental Permits Issues and Commitments (EPIC) information. The 
TxDOT procedures allow for documentation to be uploaded into the 
documentation tab as well as into an EPIC tab. The EPIC tab indicates 
``No EPICs exist for this project'' as the default statement. The ENV 
management stated that an updated procedure allows for this 
discrepancy. The team urges TxDOT to develop a procedure where EPIC 
information may be consistently documented and found in ECOS.

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

Successful Practices and Observations

    The team observed several successful practices currently in place 
that align with TxDOT's QA/QC Control Procedures for Environmental 
Documents.

[[Page 17725]]

    The team found evidence that TxDOT's approach to Quality Assurance 
by SAB is functioning well as a post-NEPA approval review. The team 
once again heard positive feedback in District staff interviews 
regarding the SAB, noting that the SAB's comments are very helpful and 
timely. According to TxDOT's self-assessment report, the SAB group 
reviewed 100 percent of all CE documents in January 2016 and reported 
the results to all Districts via webinars to ensure that all District 
personnel were up to date on proper procedures and a consistent message 
regarding corrective actions were relayed to all District environmental 
staff. The TxDOT also reports that there was a SAB effort to train 
District staff in public involvement procedures and to provide 
information on the new Section 106 programmatic agreement. During our 
interviews, we also learned that close out meetings have been held for 
EA projects to share lessons learned among District, ENV, and TxDOT 
subject matter expert environmental staff. As a result of this team 
effort, since Audit #1, we observed that Districts have welcomed the 
opportunity to be responsible for CE decisions that are delegated to 
their level. Additionally those Districts are more careful with their 
documentation and reviews because they know that the TxDOT ENV SAB will 
internally assess those decisions and hold them accountable.

2. Legal Sufficiency Review

    Based on the interviews and review of documentation, the 
requirements for legal sufficiency under the MOU are being adequately 
fulfilled.
    The level of legal expertise available for reviews appears to be 
sufficient, based on information gained from interviews. Currently 
there are three attorneys in TxDOT's General Counsel Division (GCD) 
(previously referred to as Office of General Counsel, OGC) with two of 
the attorneys having been hired in the last 6 months. One of the new 
attorneys has environmental law experience (primarily in water quality 
and water utilities issues) but no highway or NEPA experience. Both new 
attorneys have attended four NEPA training courses that ENV provided 
(via the FHWA Resource Center) and are scheduled to attend two more. 
One of the new attorneys was very complimentary of the quality of the 
training and its usefulness in guiding her reviews. The GCD also has 
contracts with three outside law firms on an ``as needed'' basis and an 
outside contract attorney who has provided legal assistance on 
environmental issues for a number of years to ENV.
    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 publishing a Notice of Intent to prepare an EIS and a Notice of 
Availability in the Federal Register.
    In February 2016, TxDOT received a notice of intent to sue by a 
Non-Governmental Organization for a Federal project for which they made 
the environmental decision. The TxDOT notified the FHWA Office of the 
Chief Counsel, as required by the MOU.
    Based on a report provided by GCD, since April 2015, GCD had 
reviewed or been involved in legal review for six project actions. 
These included four 139(l) notices, an FEIS, and one Notice of Intent 
(NOI). The ENV project managers make requests for review of a document 
to the lead attorney, who then assigns that document for formal legal 
review. That lead attorney then assigns the document to one of the 
attorneys based on workload and complexity. Attorney comments are 
provided in the standard comment response matrix back to ENV. All 
comments must be satisfactorily addressed for GCD to complete its legal 
sufficiency review. The GCD does not issue conditional legal 
sufficiency determinations.

Successful Practice

    Based on our discussions, GCD is very involved with the Districts 
and ENV throughout the NEPA project development process and legal 
issues. The team did note more open communication between all GCD, ENV, 
and District staff. All of the attorneys are regular participants in 
the monthly ENV NEPA Chats.

3. Performance Measurement

    As TxDOT explained in its response to FHWA's pre-audit #3 
information request, performance measurement (evaluating how well TxDOT 
is managing the program and determining the value delivered for 
customers and stakeholders) is a complex issue. The TxDOT devotes a 
high level of effort developing the metrics to measure performance. 
Despite the challenges of complexity and effort, TxDOT informed the 
team that it uses performance measurements to identify potential risk, 
review areas needing improvement, and recognize successful practices.

Successful Practices and Observations

    The team acknowledges the utility of TxDOT's performance measures 
for quality control and quality assurance in its CE determinations. As 
explained in their self-assessment summary report and their response to 
FHWA's pre-audit #3 information request, TxDOT conducted an extensive 
analysis of whether project file errors were substantive or not 
substantive. The team generally found substantive errors to be non-
compliant with respect to the validity of environmental decisions, 
whereas non-substantive errors were flaws in information that 
substantiated those decisions. The TxDOT's analysis of these errors 
demonstrates that non-substantive errors largely affect TxDOT 
efficiency in reporting and data analysis. The TxDOT's procedures 
result in the identification and correction of substantive errors. This 
careful consideration of performance regarding CE determination errors 
and corrective actions demonstrates how measurement and application of 
corrective actions improved overall performance. In addition, TxDOT is 
applying this information to design specific ECOS upgrades to eliminate 
several categories of errors.
    The specific consideration of errors is just one example of what 
the team learned from interviewing TxDOT's ENV Director and assessing 
TxDOT leadership's review measures to monitor continuous improvement. 
The TxDOT's leadership, consultants, and District staff all noted an 
improvement and a higher consistency in the quality of environmental 
decisions and environmental documentation for CE determinations. The 
TxDOT identified issues that may require policy or program attention. 
These issues are memorialized in the self-assessment report's root 
cause analysis for substantive and non-substantive errors.

Audit #3 Observation #3

    The team considered TxDOT's QA/QC target measure of 95 percent of 
project files determined to be complete and accurate and TxDOT's 
reported measure of 77.7 percent. While the target of any performance 
measure should be at or close to 100 percent, FHWA acknowledges that 
attaining this measure may be extremely difficult, especially given 
that the project class is an EA or EIS. The TxDOT has analyzed the 
range of errors and identified missing or incomplete information as a 
persistent problem. Given TxDOT's efforts to date and careful 
consideration of FHWA's observations on QA/QC, TxDOT may consider error 
rates and/or different measure(s) that demonstrate continuous 
improvement.

[[Page 17726]]

Audit #3 Observation #4

    Timeliness measures reported by TxDOT in their recent self-
assessment summary report identify time frames for completion of EA and 
EIS projects. Most of these projects were initiated prior to December 
2014, when TxDOT was assigned FHWA's NEPA responsibilities. The average 
time to complete a FONSI before and after assignment dropped from 1060 
days to 686 days (eliminating an outlier project that took 2590 days). 
While one expects projects initiated and completed under assignment to 
finish faster than any previous average time frame, even TxDOT 
recognizes that complex EAs require more time to reach a FONSI than 
projects with fewer impacts or complexities. The TxDOT's summary report 
contains too few data points to determine trends, and there is no 
control to differentiate between ``complex'' and ``simple'' EAs. The 
team urges TxDOT to consider a timeliness measure for CEs, recognizing 
the issues of consistency within and among CE actions listed in 23 CFR 
771.117(c) and 23 CFR 771.117(d). Meaningful timeliness measures should 
accommodate the time TxDOT takes to initiate and complete environmental 
reviews, given that some reviews will take less time and entail fewer 
tasks or steps than others. The TxDOT could consider ways to 
``control'' for project complexity, perhaps by stratifying their data 
or by measuring the timeliness to complete certain tasks (such as 
defining purpose and need, the range of alternatives, or the time to 
prepare an Draft EIS, Final EIS, or ROD).

4. Training Program

    The TxDOT has specifically designed an environmental professional 
training program for its environmental professional staff and others. 
This program was updated for 2016 and the team learned about it through 
a four-page description and share point site information provided in 
TxDOT's response to FHWA's pre-audit #3 information request. This 
information was supplemented through interviews with TxDOT ENV staff 
responsible for the training program. This program, FHWA was told, must 
satisfy requirements in State law (Texas Administrative Code, or TAC, 
title 43, part 1, chapter 2, subchapter A, rule Sec.  2.11) as well as 
requirements specified in Part 12 of the MOU. Texas law requires that 
TxDOT individuals be ``certified'' before they may make environmental 
decisions and must maintain ``certification'' to continue to make 
decisions. It follows then that TxDOT's training focus is TxDOT staff's 
initial certification and continuing certification. The MOU training 
requirements establish ongoing competency requirements for TxDOT's 
staff.

Successful Practices and Observations

    The team recognizes the following successful training practices and 
observations. The team learned from an interview that TxDOT's new hire 
``on-boarding'' process is extraordinarily responsive to delivering the 
ENV 207 training course. This course, which provides a general overview 
of environmental considerations in project development, also entails 
practical ECOS training in how to create a project, use the optional 
scope development tool, how to assign a task, and how to complete a 
form. In addition, an interviewee told the team that training updates 
to the ENV 207 course were continuous.
    Another successful practice is to open up the full range of TxDOT's 
training classes to enrollment by local government and consultant 
staff, (after TxDOT staff has been provided an initial opportunity to 
enroll). And finally, TxDOT is archiving and providing easy access of 
recordings from all NEPA Chats/informal training including, notes, and 
handouts from those offerings/training.

Audit #3 Observation #5

    The team learned through interviews that TxDOT oversight and 
tracking of environmental competency training/competency assurance is 
de-centralized. This means that individual TxDOT staff and supervisors 
are responsible for maintaining environmental ``certification'' under 
State law, as well as general competencies and capabilities to carry 
out MOU responsibilities (see MOU Part 4.2.2). The team was unable to 
assess the overall staff competency and exposure to training because 
information was spread across all 25 TxDOT Districts. These audit 
reviews require details demonstrating that TxDOT staff are capable, 
competent, qualified, and certified (from the perspective of TAC and 
the MOU) to perform these assigned responsibilities. Thus, TxDOT's 
ability to monitor the certification and competency status of their 
qualified staff is important. The TxDOT should consider at least an 
annual assessment that compiles all the environmental competency 
information from across all Districts and ENV.

Audit #3 Observation #6

    The TxDOT acknowledged in its recent self-assessment summary report 
that many of the errors it detects in project files (both substantive 
and non-substantive) are tied to staff knowledge and use of the ECOS 
program. In many ways, TxDOT has demonstrated that updating ECOS is the 
most efficient way to head off errors and increase consistency in 
TxDOT's environmental review process. The team learned from interviews 
that the first wave of ECOS changes will coincide with new training. In 
addition to the other recommendations made by FHWA, TxDOT should engage 
its subject matter experts, the self-assessment team, as well as its 
overall policy and program staff in crafting and delivering this 
training to address the non-compliance observations noted above. In 
addition, TxDOT should take any lessons learned from the corrective 
actions taken as a result of this audit and incorporate them into 
future training.

Status of Non-Compliance Observations and Other Observations From Audit 
#2 (September 2015) and FHWA Responses to TxDOT's Audit #2 comments

Audit #2 Non-Compliance Observations

    1. CE determination prior to regulatory criteria being met--The 
TxDOT indicated in its comment on the Federal Register notice of the 
draft Audit #2 report that it (1) circulated a memo to its staff 
regarding conditional clearances, (2) revised its standard operating 
procedures to remove the discussion of conditional clearances, and (3) 
completed informal training on this issue utilizing the NEPA Chats. The 
TxDOT's comment included discussion on the timing of NEPA approvals, 
but after FHWA discussed these comments with TxDOT, TxDOT chose to 
withdraw comments regarding the timing of NEPA approvals.
    2. NEPA Decision reporting--The TxDOT reported to FHWA that it 
revised its method of monthly NEPA Approval certification reporting in 
an effort to eliminate errors. The recurrence of a reporting error in 
Audit #3 indicates that under current reporting procedures, it is still 
possible for TxDOT to erroneously certify projects that are still being 
processed as being complete. The FHWA relies upon TxDOT's independent 
NEPA decision to advance federally funded projects. If FHWA advances a 
project that has been improperly processed by TxDOT, this may 
jeopardize Federal-aid reimbursement or eligibility of Federal funds on 
that project.
    3. Project file records and missing information--The TxDOT 
acknowledged the concern for

[[Page 17727]]

incomplete project files in its comments on Audit #2. The TxDOT states 
that it has reviewed the projects under this observation and has 
provided corrective actions in the form of (1) individual 
communications with staff affected, and (2) through NEPA Chats.

Audit #2 Observations

    All observations are purely for TxDOT's consideration only and 
should not be deemed non-compliance observations unless otherwise 
noted.
    1. Relationships between TxDOT and other Federal Agency staff--The 
TxDOT indicated in its comments on Audit #2 that it has conducted 
follow up meetings with U.S. Coast Guard staff. It also disagrees with 
the characterization that TxDOT's relationship with the Texas SHPO is 
``strained.'' The FHWA has continued to include interviews with outside 
agency staff as part of this and future reviews/audits to seek 
information about relationships and to convey information back to 
TxDOT. The FHWA provides information for TxDOT to consider in 
maintaining and/or improving its working relationship with both Federal 
and State regulatory agencies. The FHWA interviews these agencies in 
order to (1) provide feedback about those relationships that TxDOT may 
not otherwise hear directly and (2) to review and assess TxDOT's 
procedures. The FHWA is also able to observe program-level interactions 
between TxDOT and other agencies and to convey observations back to 
TxDOT for consideration purposes.
    2. Legacy projects and TxDOT's ``no effect'' determinations for 
ESA--The TxDOT stated in its comments on Audit #2 that it met with FHWA 
staff on this matter and has assessed existing procedures, rules, and 
policies related to ESA consultation and reviewed related training. The 
team found a deficiency in the TxDOT procedure on making ESA 
determinations as a result of Audit #3. Since the procedure for making 
ESA determinations is non-compliant, TxDOT will need to implement a 
corrective action, which will be considered as part of FHWA's next 
review or audit.
    3. Consistency in TxDOT's approach to defining 23 CFR 771.117(e)(4) 
for major traffic disruption--This TxDOT response to the draft Audit #2 
report downplays the need for an agreed upon standard or threshold on 
how to apply the constraint in 23 CFR 771.117(e)(4) regarding traffic 
disruption. The TxDOT indicated that the decision is made by 
``professional judgment'' according to the criteria the CEQ has 
identified for a determination of significant impact (i.e., context and 
intensity). However, TxDOT's approach does not fulfill FHWA policy on 
how to set the threshold for this constraint, stated in the preamble to 
the notice of the final rule (79 FR 60110, Oct. 6, 2014). Thus, TxDOT 
should, at the minimum, identify examples of instances of substantial 
traffic disruption and instances that do not arise to the level of 
substantial disruption.
    4. Addressing errors and corrections to NEPA decisions in ECOS--
This TxDOT comment on Audit #2 acknowledges that a specific CE 
determination was incorrect, attributable to a typographical error. 
Thus, TxDOT completed a new CE determination for that project. As part 
of the project file reviews for Audit #4, FHWA proposes to engage with 
TxDOT to have a shared set of expectations on the process or procedures 
that addresses various errors or omissions in TxDOT's NEPA 
decisionmaking at a program-level, both before and after TxDOT requests 
that FHWA approve Federal-aid. The integrity of data in ECOS is 
paramount to retaining an official file of record for Federal-aid 
projects. It is anticipated that ECOS upgrades will also help to fully 
address this issue with an improved quality control process improvement 
by TxDOT.
    5. Inadequate project description or project scope--The TxDOT 
stated in its comments on Audit #2 that discussions of adequate project 
descriptions have been the subject of several NEPA Chats and will 
continue to be discussed as long as this issue persists. The FHWA and 
TxDOT collaborated to develop a shared set of expectations for project 
development that was presented at the September 2015 TxDOT 
Environmental Conference.
    6. EPIC documentation and decisionmaking--The TxDOT indicated in 
its comment on the Audit #2 report that TxDOT ECOS procedures allow 
information to be loaded in two ways that can be confusing for 
reviewers. The TxDOT acknowledged this issue and stated that it has 
established an EPIC workgroup with the purpose of identifying a more 
consistent method to record and track EPICs. The results of this 
workgroup will be incorporated into a series of ECOS upgrades scheduled 
over the next 2 years.
    7. Multiple CE approval documents in ECOS--The TxDOT stated in its 
comment on Audit #2 that the project file for this observation 
contained a typographical error that made the initial CE determination 
incorrect. The TxDOT then made a new CE determination. Having a shared 
set of expectations (see number 4, above) between TxDOT and FHWA on how 
to address errors and omissions should improve both the program and the 
review process.
    8. Multiple reevaluations of a NEPA approval--The TxDOT indicated 
in its comment on Audit #2 that the multiple reevaluations resulted 
from a design-build project, where changes may occur often. The TxDOT 
prefers to respond to changes within a set time frame to keep the 
project moving especially on design-build projects. Reevaluations must 
look at the entire project. This situation will also be considered as 
part of the shared set of FHWA-TxDOT expectations on how to handle 
project changes.
    9. ECOS upgrades schedule too slow--This TxDOT response to Audit #2 
disagreed that the pace of ECOS upgrades might increase litigation 
risk. Based on information from Audit #3 interviews, this observation 
is tied to TxDOT's commitment of resources to assume responsibilities 
under the MOU (Part 4.2). This was presented as a continued observation 
from previous audits and is restated to draw TxDOT's attention to an 
identified problem. This observation is not a statement of non-
compliance, although it could lead to a non-compliance observation in 
the future. As ECOS is the official file of record, FHWA is concerned 
that TxDOT has not improved ECOS quickly enough. The TxDOT should 
consider making database updates more timely and related procedures 
mandatory in relation to documentation storage within ECOS.
    10. Difficulty locating information in project files--This TxDOT 
comment on Audit #2 states that it formed a workgroup in the summer of 
2015 for the purpose of developing statewide guidance regarding filing 
and naming conventions in ECOS. The TxDOT Districts themselves had 
issues locating documentation within their own ECOS project files 
during site visits in Audit #2. The team continued to have difficulty 
(and ENV management and staff also confirmed the same difficulty) 
finding key project documentation for this audit, especially for large 
and complex projects. The FHWA looks forward to reviewing the 
recommendations of this workgroup and assessing any changes as part of 
a future review or audit.
    11. Evidence of recurring Non-Compliance Observations related to QA 
and QC application to individual projects--This TxDOT comment on Audit 
#2 commits to making project specific comments in SAB feedback reports 
available for Audit #3. These reports were made available and the TxDOT 
self-assessment report included an extensive analysis of QC outcomes 
for CE project reviews. The QC is still

[[Page 17728]]

an issue prior to NEPA decisions being finalized for larger scale CEs 
as well as for EAs and EISs.
    12. Expectation for the timeframe necessary for a legal review--
This TxDOT comment on Audit #2 commits to revising the standard 
operating procedure to establish an expected review time for the 
TxDOT's OGC now GCD to conduct a legal sufficiency review. As 
recommended during Audit # 2, OGC has issued a procedure establishing 
legal review times for FEIS (30 days) and for NOI and 139(l) documents 
(3 days). If necessary, OGC can request additional time for the review.
    13. Measure for the TxDOT relationship with the public--The TxDOT 
continued to report the number of complaints received year-to-year as 
its performance measure for its relationship with the public. None were 
received, and the measure reported was unchanged from the prior self-
assessment summary report. The team learned from interviews that it is 
possible that the public may not distinguish between performance pre- 
and post- assignment. The team was told that TxDOT is still getting 
feedback from the public and agencies and plans to include the measures 
into a continuous improvement process. The TxDOT also noted, in its 
Federal Register comment on the draft Audit #2 report, that (1) 
assessing change in communication with the general public is inherently 
difficult, (2) NEPA assignment presents little external differentiation 
to the general public, and (3) finding success in measuring this 
variable has proven difficult.
    14. Implement ways to train local government staff--The TxDOT's 
Environmental Professional Training Program is described in a four-page 
report provided to the team as part of TxDOT's pre-audit information 
request response. That report identifies a series of workshops and 
training events jointly held with THC staff. The team learned through 
interviews and the training program report that TxDOT has established 
an ENV training SharePoint site that is accessible to the public for 
local government staff to register for training at no cost.

Finalization of Report

    The FHWA received two responses from the American Road & 
Transportation Builders Association (ARTBA) and TxDOT during the 30-day 
comment period for the draft report. The team has considered these 
comments in finalizing this audit report. The ARTBA's comments were 
supportive of the Surface Transportation Project Delivery Program and 
did not relate specifically to Audit #3. The TxDOT's comments provided 
information about non-compliance and general observations from the 
draft report that should be revised. The response also describes 
actions TxDOT has taken in response to the report's observations.
    Several TxDOT comments have resulted in changes in this report. The 
number of observations in the draft report was incorrectly referred to 
in one instance as nine and has been corrected. The information storage 
and management role of ECOS was clarified by deleting mention of public 
use, but instead an internal tool TxDOT uses to disclose information to 
the public. Because of TxDOT comments on the draft report's discussion 
of ESA compliance, the discussion of Non-Compliance Observation #1 was 
revised to include: Mention of critical habitat, and the justification 
for consideration of possible effects to a species or their habitat. 
The TxDOT's response also clarified that it updated its handbook 
procedures for noise issues, but did not update the 2011 noise policy. 
The discussion of Non-Compliance #2 has removed mention of a TxDOT 2016 
noise policy.
    Since the completion of this report, staff from TxDOT and FHWA have 
established quarterly partnering sessions where observations and other 
issues relating to NEPA assignment are being discussed, clarified, and 
resolved.
[FR Doc. 2017-07345 Filed 4-11-17; 8:45 am]
BILLING CODE 4910-22-P
17720 Federal Register / Vol. 82, No. 69 / Wednesday, April 12, 2017 / Notices

semiannual audits during each of the Species Act (ESA). The TxDOT alleges documentation when a Federal agency
first 2 years of State participation, and that the audit team questioned the determines that it is not necessary to
annual audits during each subsequent TxDOT biologist’s judgement regarding consult under Section 7. Regarding item
year of State participation to ensure its decisions on four projects. The (1), FHWA responds that it has provided
compliance by each State participating TxDOT disagrees with FHWA’s TxDOT with specific instances
in the program. The results of each audit characterization that the report did not identified in the file reviews where ESA
were required to be presented in the evaluate or second guess those requirements were not met, including
form of an audit report and be made decisions. The FHWA responds that the use of improper species lists and not
available for public comment. On non-compliance observation was based defining a project’s action area for
December 4, 2015, the President signed on a number of actions documented for species. Regarding item (2), FHWA
into law the FAST Act (Pub. L. 114–94, specific projects that did not comply responds that Congress intended to
129 Stat. 1312 (2015)). Section 1308 of either with U.S. Fish and Wildlife ‘‘give the benefit of the doubt to the
the FAST Act amended the audit Service (USFWS) guidance, or that species’’ (H.R. Conf. Rep. 96–697, 96
provisions by limiting the number of TxDOT toolkit procedures did not Cong., 1st sess. 1979). It follows that
audits to one audit each year during the comply with the ESA requirements and regarding Section 7 compliance,
first 4 years of a State’s participation. USFWS policy in circumstances where anytime impacts are possible, the
This third audit represents the annual an endangered species or its habitat is agency may not ignore that possibility.
review of TxDOT’s performance in the present. The FHWA will revise the text Finally, regarding item (3), FHWA’s
2nd year of the State’s participation. A in Non-Compliance Observation #1 for expectation for documented compliance
draft version of this report was further clarity. is established in the MOU [subpart
published in the Federal Register on The TxDOT commented that under 10.2.1(A)(i)]. The draft report points out
November 26, 2016, at 81 FR 85303 and Successful Practices and Other that TxDOT’s Section 7 compliance
was available for public review and Observations, the draft audit report procedures promote the utilization of
comment. The FHWA received two states ‘‘[t]hroughout the following professional judgment but allow for a
responses; one was from TxDOT and the subsections, the team lists nine project record to logically contradict the
other was from the American Road and remaining observations that FHWA compliance decision based on that
Transportation Builders Association. recommends TxDOT consider in order judgment. The Non-Compliance
Only the TxDOT response contained to make improvements.’’ The TxDOT Observation #1 discussion was revised
substantive comments. has only identified six numbered to include: (1) Mention of critical
The first TxDOT comment stated that observations present in the draft report. habitat, and (2) the justification for
it disagreed with the draft report’s The FHWA appreciates TxDOT’s consideration of possible impacts to a
characterization of issues related to the identification of this error, and the final species or their habitat.
degree or consistency with which report will reflect the six numbered The next TxDOT comment clarifies
TxDOT has followed guidance, policies, observations. that TxDOT follows only one noise
and internal TxDOT procedures as The TxDOT’s next comment is that policy that was approved by FHWA in
‘‘non-compliance’’ observations, as the statement: ‘‘The ECOS 2011. The comment states that FHWA’s
these issues do not involve any [Environmental Compliance Oversight observations are the result of incorrect
violation of a statute or rule. Further, System] is a tool for storage and actions by individual project sponsors
TxDOT stated that it would consider management of information records, as and are not the result of a new noise
adherence to regulation and rule as well as for disclosure within TxDOT policy. The TxDOT developed in 2016
meeting the compliance standard while District Offices, between Districts and an Environmental Handbook for Traffic
adherence to guidance or policy is a ENV [TxDOT’s Environmental Affairs Noise that did not replace the approved
second tier threshold that, while Division], and between TxDOT and the 2011 Guidelines for Analysis and
important, does not merit a non- public,’’ is incorrect. The TxDOT Abatement of Highway Traffic Noise.
compliance characterization if/when it indicated that ECOS was never The FHWA appreciates TxDOT’s
is not met. The TxDOT disagrees with envisioned to be a tool for the public’s identification of this error, and the final
these types of issues being characterized use. The FHWA recognizes that while report will remove mention of a second
as ‘‘non-compliance’’ along with alleged ECOS may be the means by which noise policy and focus the observation
violations of statutes and rules. The TxDOT identifies and procures on incorrect actions identified in project
FHWA responds that TxDOT has information requested by the public, files.
applied an incorrect standard of review ECOS itself was not intended to be the
to this audit. The MOU subpart 11.1.1 tool available to the public to allow the Authority: Section 1313 of Public Law
112–141; Section 6005 of Public Law 109–59;
states that the standard is to review public, on their own, to access project
23 U.S.C. 327; 49 CFR 1.48.
‘‘TxDOT’s discharge of the specific information. The sentence
responsibilities it has assumed under identified by TxDOT will be revised to Walter C. Waidelich, Jr.,
this MOU.’’ As such, the review is not remove mention of the public. Acting Deputy Administrator, Federal
limited only to possible violations of The next TxDOT comment raises Highway Administration.
statute or rule. Further, TxDOT has three issues about Non-Compliance
Surface Transportation Project Delivery
subjected itself to following the Observation #1: (1) That the report has
Program
guidance and policy of FHWA and other not clearly identified which, if any,
Federal agencies pursuant to MOU ‘‘ESA requirements’’ are the basis for the FHWA Audit #3 of the Texas
subpart 5.1.1. The FHWA has made no observation; (2) there is nothing in the Department of Transportation
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change in the way that non-compliance ESA rules about determining if ‘‘impact December 17, 2015, to June 16, 2016
observations are characterized in is possible’’; and (3) there is no
finalizing the report. requirement to ‘‘provide documentation Executive Summary
Another TxDOT comment questions explaining how the project impacts will This report summarizes the findings
the basis of Non-Compliance have no effect,’’ as neither Section 7 of the Federal Highway
Observation #1 regarding compliance itself nor USFWS’s regulations require Administration’s (FHWA) third audit
with Section 7 of the Endangered the preparation of any level of review (Audit #3) to assess the

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performance by the Texas Department of responsibilities for review, consultation, Scope and Methodology
Transportation (TxDOT) regarding its and compliance for highway projects. The overall scope of this audit review
assumption of responsibilities and This Program is codified at 23 U.S.C. is defined both in statute (23 U.S.C. 327)
obligations, as assigned by FHWA, 327. When a State assumes these and the MOU (Part 11). An audit
under a memorandum of understanding Federal responsibilities for NEPA generally is defined as an official and
(MOU) which took effect on December project decisionmaking, the State careful examination and verification of
16, 2014. From that date, TxDOT becomes solely responsible and liable accounts and records, especially of
assumed FHWA National for carrying out these obligations in lieu financial accounts, by an independent
Environmental Policy Act (NEPA) of and without further approval by unbiased body. With regard to accounts
responsibilities assigned for the FHWA. or financial records, audits may follow
environmental review and compliance, The State of Texas was assigned the
a prescribed process or methodology,
and for other environmental laws responsibility for making project NEPA
and be conducted by ‘‘auditors’’ who
related to NEPA for highway projects in approvals and the responsibility for
have special training in those processes
Texas (NEPA Assignment Program). The making other related environmental
or methods. The FHWA considers this
status of FHWA’s observations from the decisions for highway projects on
review to meet the definition of an audit
second audit review (Audit #2), December 16, 2014. In enacting Texas
Transportation Code, § 201.6035, the because it is an unbiased, independent,
including any TxDOT self-imposed
State has waived its sovereign immunity official, and careful examination and
corrective actions, is detailed at the end
under the 11th Amendment of the U.S. verification of records and information
of this report.
The FHWA Audit #3 team (team) was Constitution and consents to defend any about TxDOT’s assumption of
formed in February 2016 and met actions brought by its citizens for NEPA environmental responsibilities.
regularly to prepare for the on-site decisions it has made in Federal court. Principal members of the team that
portion of the audit. Prior to the on-site The FHWA responsibilities assigned conducted this audit have completed
visit, the team: (1) performed reviews of to TxDOT are specified in the MOU. special training in audit processes and
project files in TxDOT’s Environmental These responsibilities include: methods.
Compliance Oversight System (ECOS), compliance with the Endangered The diverse composition of the team,
(2) examined TxDOT’s responses to Species Act (ESA), Section 7 the process of developing the review
FHWA’s information requests, and (3) consultations with the U.S. Fish and report, and publishing it in the Federal
developed interview questions. The on- Wildlife Service (USFWS) and the Register help maintain an unbiased
site portion of this audit, comprised of National Oceanic and Atmospheric review and establish the audit as an
TxDOT and other agency interviews, Administration National Marine official action taken by FHWA. The
was conducted on April 11–15, 2016. Fisheries Service, and Section 106 team for Audit #3 included NEPA
The TxDOT continues to develop, consultations with the Texas Historical subject-matter experts from the FHWA
revise, and implement procedures and Commission (THC) regarding impacts to Texas Division Office, as well as FHWA
processes required to carry out the historic properties. Other offices in Washington, DC, Atlanta, GA,
NEPA Assignment Program. Overall, the responsibilities may not be assigned and and Tallahassee, FL. In addition to the
team found continued evidence that remain with FHWA. They include: (1) NEPA experts, the team included
TxDOT is committed to establishing a responsibility for project-level FHWA planners, engineers, and air
successful program. This report conformity determinations under the quality specialists from the Texas
summarizes the team’s assessment of Clean Air Act and (2) the responsibility Division office.
the current status of several aspects of for government-to-government Audits, as stated in the MOU (Parts
the NEPA Assignment Program, consultation with federally recognized 11.1.1 and 11.1.5), are the primary
including numerous successful Indian tribes. Based on 23 U.S.C. mechanism used by FHWA to oversee
practices and six observations that 327(a)(2)(D), any responsibility not TxDOT’s compliance with the MOU and
represent opportunities for TxDOT to explicitly assigned in the MOU is ensure compliance with applicable
improve its program. The team retained by FHWA. Federal laws and policies, evaluate
identified four non-compliance The TxDOT’s MOU specifies that TxDOT’s progress toward achieving the
observations that TxDOT will need to FHWA is required to conduct six audit performance measures identified in the
address as corrective actions, if not reviews. These audits are part of MOU (Part 10.2), and collect
already addressed, in FHWA’s next FHWA’s oversight responsibility for the information needed for the Secretary’s
review or audit. NEPA Assignment Program. The annual report to Congress. These audits
The TxDOT has continued to make reviews are to assess a State’s also must be designed and conducted to
progress toward meeting the compliance with the provisions of the evaluate TxDOT’s technical competency
responsibilities it has assumed in MOU as well as all applicable Federal and organizational capacity, adequacy
accordance with the MOU. Through this laws and policies. They also are used to of the financial resources committed by
report, FHWA is notifying TxDOT of evaluate a State’s progress toward TxDOT to administer the
several non-compliance observations achieving its performance measures as responsibilities assumed, quality
that require TxDOT to take corrective specified in the MOU; to evaluate the assurance/quality control process,
action. By taking corrective action and success of the NEPA Assignment attainment of performance measures,
considering changes based on the Program; and to inform the compliance with the MOU
observations in this report, TxDOT administration of the findings regarding requirements, and compliance with
should continue to move the NEPA the NEPA Assignment Program. In applicable laws and policies in
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Assignment Program forward December 2015, statutory changes in administering the responsibilities
successfully. Section 1308 of the Fixing America’s assumed. The four performance
Surface Transportation (FAST) Act, measures identified in the MOU are: (1)
Background reduced the frequency of these audit compliance with NEPA and other
The Surface Transportation Project reviews to one audit per year during the Federal environmental statutes and
Delivery Program allows a State to first 4 years of State participation in the regulations, (2) quality control and
assume FHWA’s environmental program. quality assurance for NEPA decisions,

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(3) relationships with agencies and the of this report). The population of Non-Compliance Observations
general public, and (4) increased environmental approvals included 1489
AUDIT #3
efficiency, timeliness, and completion projects based on certified lists of NEPA
of the NEPA process. approvals reported monthly by TxDOT. Non-compliance observations are
The scope and focus of this audit The NEPA approvals included 1423 instances where the team found the
included reviewing the processes and categorical exclusion determinations TxDOT was out of compliance or
procedures (i.e., toolkits) used by (CE), approvals to circulate deficient with regard to a Federal
TxDOT to reach and document its Environmental Assessments (EA), regulation, statute, guidance, policy, the
independent project decisions. The terms of the MOU, or TxDOT’s
findings of no significant impacts
team conducted a careful examination procedures for compliance with the
(FONSI), re-evaluations of EAs, Section
of highway project files in TxDOT’s NEPA process. Such observations may
ECOS and verified information on the 4(f) decisions, approvals of a draft
environmental impact statement (EIS), also include instances where TxDOT
TxDOT NEPA Assignment Program has failed to maintain technical
through inspection of other records and and records of decision (ROD). The team
competency, adequate personnel, and/or
through interviews of TxDOT and other drew a sample with a 95 percent
financial resources to carry out the
staff. The team gathered information confidence interval with a 10 percent
assumed responsibilities. Other non-
that served as the basis for this audit margin of error. This sample included
compliance observations could suggest a
from three primary sources: (1) TxDOT’s 93 randomly selected CE projects and persistent failure to adequately consult,
response to a pre-audit #3 information all 66 approvals that were not CEs. The coordinate, or take into account the
request, (2) a review of both a team reviewed 159 project files in this concerns of other Federal, State, tribal,
judgmental and random sample of review. or local agencies with oversight,
project files in ECOS with approval The interviews conducted by the team consultation, or coordination
dates subsequent to the execution of the focused on TxDOT’s leadership and responsibilities. The FHWA expects
MOU, and (3) interviews with TxDOT, TxDOT to develop and implement
staff at the Environmental Affairs
the USFWS, U.S. Environmental corrective actions to address all non-
Division (ENV) Headquarters in Austin
Protection Agency (USEPA), and THC compliance observations. As part of
staff. The TxDOT provided information and staff in 10 of TxDOT’s Districts. The
team divided into three groups to information gathered for this audit,
in response to FHWA pre-audit TxDOT has informed the team they are
questions and requests for documents. complete the face-to-face interviews of
District staff in El Paso and Odessa; still implementing some
That material covered the following six recommendations made by FHWA on
topics: program management, Pharr and Yoakum; and San Angelo,
Abilene, and Brownwood. Staff from the Audit #2 to address non-compliance.
documentation and records The FHWA will conduct follow up
management, quality assurance/quality Wichita Falls, Atlanta, and Lufkin
reviews of non-compliance
control, legal sufficiency review, Districts completed interviews via
observations.
performance measurement, and training. remote tele-conference. The team
The team subdivided into working continued to use the same review form The MOU (Part 3.1.1) states that
groups that focused on considering and interview questions for Districts as ‘‘[p]ursuant to 23 U.S.C. 327(a)(2)(A), on
TxDOT’s performance according to each the Effective Date, FHWA assigns, and
used in Audits #1 and 2. With these last
of the six topics. TxDOT assumes, subject to the terms
10 interviews completed, staff from all
The intent of the review was to check and conditions set forth in 23 U.S.C. 327
25 TxDOT Districts were interviewed as and this MOU, all of the U.S.
that TxDOT has the proper procedures part of FHWA’s audits.
in place to implement the Department of Transportation (DOT)
responsibilities assumed through the Overall Audit Opinion Secretary’s responsibilities for
MOU, ensure that the staff is aware of compliance with the National
those procedures, and that staff The TxDOT continues to make Environmental Policy Act of 1969
implements the procedures progress in the implementation of its (NEPA), 42 U.S.C. 4321 et seq. with
appropriately to achieve compliance program that assumes FHWA’s NEPA respect to the highway projects
with NEPA and other assigned project-level decision authority and specified under subpart 3.3. This
responsibilities. The review did not other environmental responsibilities. includes statutory provisions,
evaluate the substance of project- The team acknowledges TxDOT’s effort regulations, policies, and guidance
specific decisions or second guess those to refine, and when necessary, establish related to the implementation of NEPA
decisions, as such decisions are the sole internal policies and procedures. The for Federal highway projects such as 23
responsibility of TxDOT. The team team found ample evidence of TxDOT’s U.S.C. 139, 40 CFR 1500–1508, DOT
focused on whether the procedures continuing efforts to train staff in Order 5610.1C, and 23 CFR 771 as
TxDOT followed complied with Federal clarifying the roles and responsibilities applicable.’’ Also, the performance
statutes, regulation, policy, procedure, of TxDOT staff, and in educating staff in measure in MOU Part 10.2.1(A) for
process, guidance, and guidelines. an effort to assure compliance with all compliance with NEPA and other
The team defined the timeframe for of the assigned responsibilities. Federal environmental statutes and
highway project environmental regulations commits TxDOT to
approvals subject to this third audit to The team identified several non- maintaining documented compliance
be between July 1, 2015, and January 29, compliant observations in this review with requirements of all applicable
2016. The third audit intended to: (1) that TxDOT will need to address statutes and regulations, as well as
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evaluate whether TxDOT’s NEPA through corrective actions. These procedures and processes set forth in
decisionmaking and other actions observations come from a review of the MOU. The following four non-
comply with all the responsibilities it TxDOT procedures, project file compliance observations were found by
assumed in the MOU, and (2) determine documentation, and interview the team based on review of TxDOT
the current status of observations in the information. This report also identifies ENV toolkit/handbook procedures,
Audit #2 report, as well as required several notable good practices that we documentation in project files, and
corrective actions (see summary at end recommend be expanded upon. other sources.

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Audit #3 Non-Compliance Observation errors. The TxDOT is collaborating with involvement required by the TxDOT
#1: Section 7 Consultation FHWA and the USFWS to revise its’ procedures.4
The TxDOT has assumed the ESA handbook and standard operating In addition, the team reviewed a
responsibilities for compliance with the procedures. project file showing that TxDOT issued
ESA of 1973 (16 U.S.C. 1531–1544) and a FONSI for an action described in 23
Audit #3 Non-Compliance Observation CFR 771.115(a) without evidence of a
developed a procedure, as part of the #2: Noise Policy required additional public notification.
TxDOT environmental toolkit, for staff Non-compliance observation #2 The FHWA’s regulation at 23 CFR
to make ESA effect determinations. results from 11 project files where the 771.119(h) requires a second public
Through project file reviews, the team template letter fails to inform about the notification to occur 30 days prior to
found that TxDOT’s toolkit procedures non-eligibility for Federal-aid issuing a FONSI. The team reviewed the
do not comply with the ESA participation in Type II traffic noise TxDOT public involvement handbook
requirements and USFWS policy 1 in abatement projects as required by 23 and found no mention of the Federal
circumstances where an endangered CFR 772.17(a)(3). Three of those same requirement for a second public
species, its habitat or critical habitat projects did not follow TxDOT’s noise notification under these circumstances.
may be present. Pursuant to MOU part wall policy previously approved by The TxDOT modified its public
3.1.1 (see above), TxDOT’s procedures FHWA. The FHWA complies with its involvement procedures and FHWA
must also be consistent with FHWA noise regulations (23 CFR 772) by reviewed and approved those
guidance and the USFWS & NMFS 1998 reviewing and approving each State’s procedures pursuant to 23 CFR
Endangered Species Consultation noise guidance and then relying on the 771.111(h). The TxDOT needs to take
Handbook. Specifically, when a species State to follow those procedures. For corrective action to comply with the
or its habitat or critical habitat may be Texas, its noise guidelines (Guidelines regulatory requirements for public
present within a project’s action area for Analysis and Abatement of Roadway involvement consistent with the revised
and an effect is possible, the project file Traffic Noise, 2011) represents the noise public involvement policy that has been
needs to show consultation with policy reviewed and approved by reviewed and approved by FHWA.
USFWS (for a may affect determination) FHWA that serves as the basis for
or include documentation explaining Audit #3 Non-Compliance Observation
compliance with 23 CFR 772. In 2016,
how the project will have no effect on #4: Section 4(f)
TxDOT updated its noise handbook
the species and its habitat or critical according to the 2011 noise policy Non-compliance observation #4
habitat. The TxDOT needs to take action guidelines that we learned from staff results from the review of one project
to revise its ESA guidance and interviews lead to some confusion. The file that lacked the required
procedures when an endangered species team found inconsistencies and documentation for compliance with
or its habitat may be present to make incorrect information in the ECOS Section 4(f) as specified in 23 CFR 774.7
those procedures consistent with project file of record such as: and TxDOT’s Environmental Handbook/
Federal policy and guidance. The team notification to locals with jurisdiction U.S. Department of Transportation Act:
acknowledges that TxDOT staff have occurring before a NEPA decision was Section 4(f); 810.01 GUI Version 1 dated
met with FHWA and USFWS staff to made; the date of public knowledge May 2015. The project file lacked the
discuss how the revised procedures improperly occurring before the NEPA date and identity of the individual who
would result in more a consistent set of decision; and holding a noise workshop made a de minimis impact
determinations. before the public hearing. determination. The TxDOT did not
In four of the five project files follow established Section 4(f) toolkit
reviewed, where an endangered species Audit #3 Non-Compliance Observation procedures. The TxDOT should ensure
its habitat or critical habitat was #3: Public Involvement that all required Section 4(f)
potentially present, TxDOT’s procedure Non-compliance observation #3 is documentation is complete and
allowed for ESA determinations of ‘‘no based upon evidence in files for four included in a project’s file.
effect’’ to be made based upon a projects reviewed that TxDOT did not
biologist’s professional judgment Successful Practices and Other
follow its public involvement procedure
without supporting analysis and Observations
and handbook requirements.2 The
documentation including a reasoned FHWA’s regulation at 23 CFR This section summarizes the team’s
assessment of the best available data. 771.111(h)(1) requires that each State observations about issues or practices
For some, the analysis and have FHWA approved public that TxDOT may consider as areas to
documentation included in the project involvement procedures to implement improve. It also summarizes practices
files supported a ‘‘may affect’’ the public involvement/public hearing that the team believes are successful, so
determination and informal requirements in law and regulation. The that TxDOT can consider continuing or
consultation with USFWS. In fulfilling review team found that TxDOT expanding those programs in the future.
ESA section 7(a)(2) responsibilities, inconsistently applied its public Further information on these
Congress intended the ‘‘benefit of the involvement procedures. Although observations and successful practices is
doubt’’ be given to the species (H.R. TxDOT has detailed public involvement contained in the following subsections
Conf. Rep. 96–697, 96 Cong., 1st sess. procedures in place, TxDOT staff that address these six topic areas:
1979). The team has informed TxDOT of sometimes fails to follow those program management; documentation
this deficiency and TxDOT has procedures. In one project file, TxDOT and records management; quality
indicated it has reviewed similarly assurance/quality control; legal
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did not hold a public hearing for a
made ESA determinations to check for project on new alignment as required in sufficiency; performance management;
the State’s procedures.3 Another project and training.
1 USFWS & NMFS 1998 Endangered Species
file lacked documentation of public Throughout the following
Consultation Handbook, Standard Operating subsections, the team lists six remaining
Procedure for Accessing USFWS Ecological
Services for Technical Assistance and Section 7 2 TxDOT’s Environmental Handbook/Public observations that FHWA recommends
Consultations; 300.01 SOP Version 2, September Involvement; 760.01 GUI Version 2, August 2015.
2015. 3 See id., Part 5.1. 4 See id., Part 11.

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TxDOT consider in order to make ensures that there are no surprises if well as for disclosure within TxDOT
improvements. The FHWA’s suggested projected schedules slip. Finally, the District Offices. The ECOS is the means
implementation methods of action ENV Division Director initiated a new by which TxDOT identifies and
include: corrective action, targeted approach to effective ENV-District staff procures information required to be
training, revising procedures, continued communication. The Director disclosed to and requested by the
self-assessment, or some other means. established an informal three-member public. The TxDOT staff noted that
The team acknowledges that, by sharing advisory board with rotating ECOS is both adaptable and flexible.
the preliminary draft audit report with representatives from each of the The TxDOT must maintain and update
TxDOT, TxDOT has begun the process Metropolitan, Urban, and Rural the ECOS operating protocols (for
of implementing actions to address Districts. This board meets with the consistency of use and document/data
these observations to improve its Director to identify and discuss issues location) and educate its users on
program prior to the publication of this and concerns that should be addressed updates in a timely manner.
report. by ENV. This exchange and feedback
loop should prove informative, enable Successful Practices and Observations
1. Program Management the success of the NEPA Assignment A number of best practices
Successful Practices and Observations Program, and allow for any needed demonstrated by TxDOT were evident
Over the course of interviewing all 25 changes or adaptations based on District as a result of the documentation and
Districts over the past 18 months, the input. records management review.
The team noted that the Air Quality The team learned through interviews
team noted that District staff welcomed
reviewers at TxDOT ENV work that many TxDOT staff members
the opportunity to be responsible for
extremely well with FHWA in routinely use and are becoming
making CE approvals. Additionally,
processing this unassigned component increasingly comfortable with the (still
TxDOT District staff members and
of the program. The ENV reviewers are optional) scope development tool. Some
management have said in interviews empowered to perform their own
that they are more diligent with their staff indicated that they also utilized the
Quality Assurance/Quality Control (QA/ scope development tool to develop their
documentation because they know that QC) review of District-produced
these approvals will be internally own checklists to ensure that all
material before it is sent to FHWA for environmental requirements have been
assessed and the District held approval. Retaining and using highly
accountable by the TxDOT ENV Self- met prior to making a NEPA approval.
skilled, technical expertise in-house at The team noted from interviews of
Assessment Branch (SAB). District staff ENV promotes an efficient and
indicated in interviews that the SAB USFWS and ENV subject matter staff
consistent interpretation of Federal that Biological Assessment (BA) and
detailed reviews are highly valued regulations and a successful procedure-
because they can learn from their Biological Opinion (BO) documentation
driven process. This ensures is more detailed and provides for
mistakes and improve. Accountability, compliance from the outset and should
in part, is driving an enhanced desire supportable conclusions. Specifically,
be seen as a model to be duplicated in the team learned that information in the
for TxDOT staff to correctly document other areas.
environmental compliance. BA was formatted so that it could be
The team recognizes enhanced Audit #3 Observation #1 incorporated directly into a BO, which
communication among individuals in The team identified one project file results in faster completion of ESA
the project development process as a that showed that the NEPA review was compliance and thus reduced review
successful practice. Information gained incomplete despite the project timeframes.
from interviews and materials provided appearing on a list of projects certifying Audit #3 Observation #2
by TxDOT demonstrate improved that all environmental requirements had
communication amongst Districts and The team continued to find instances
been completed pursuant to the MOU
between Districts and ENV. Staff in which individual project files
(See Part 8.2.6.). Projects that TxDOT
interviewed in Rural Districts indicated contained inconsistent and, in some
reports as certified may be processed to
that in the past they received less cases, contradictory Environmental
receive Federal-aid funding from
attention from ENV than Metropolitan Permits Issues and Commitments (EPIC)
FHWA. Through follow up
Districts. The team noted that ‘‘NEPA information. The TxDOT procedures
conversations with TxDOT, the team
Chats’’ (regular conference calls led by allow for documentation to be uploaded
learned that reporting this project was
ENV, providing a platform for Districts into the documentation tab as well as
an error that has since been rectified.
to discuss complex NEPA into an EPIC tab. The EPIC tab indicates
The team urges TxDOT to include a
implementation issues) have helped ‘‘No EPICs exist for this project’’ as the
quality control review step as part of its
remove any perceived disparity. Urban default statement. The ENV
process to ensure that only projects that
and Rural Districts feel more included management stated that an updated
have satisfied all environmental
and a part of the conversation. The team procedure allows for this discrepancy.
requirements are certified and reported
noted that Rural District staff developed The team urges TxDOT to develop a
to FHWA.
their own networks to keep each other procedure where EPIC information may
informed. District environmental and 2. Documentation and Records be consistently documented and found
planning staff told the team that they Management in ECOS.
take initiative and break down internal The team relied on information in 1. Quality Assurance/Quality Control
District silos between planning, design, ECOS, TxDOT’s official file of record, to (QA/QC)
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construction, and maintenance. This evaluate project documentation and
includes providing internal self- records management practices. Many Successful Practices and Observations
initiated training across disciplines so TxDOT toolkit and handbook The team observed several successful
everyone in the District Office is aware procedures mention the requirement to practices currently in place that align
of TxDOT procedures to ensure that store official documentation in ECOS. with TxDOT’s QA/QC Control
staff follows NEPA-related processes The ECOS is also a tool for storage and Procedures for Environmental
and either keeps projects on-schedule or management of information records, as Documents.

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incomplete project files in its comments TxDOT’s approach does not fulfill omissions should improve both the
on Audit #2. The TxDOT states that it FHWA policy on how to set the program and the review process.
has reviewed the projects under this threshold for this constraint, stated in 8. Multiple reevaluations of a NEPA
observation and has provided corrective the preamble to the notice of the final approval—The TxDOT indicated in its
actions in the form of (1) individual rule (79 FR 60110, Oct. 6, 2014). Thus, comment on Audit #2 that the multiple
communications with staff affected, and TxDOT should, at the minimum, reevaluations resulted from a design-
(2) through NEPA Chats. identify examples of instances of build project, where changes may occur
substantial traffic disruption and often. The TxDOT prefers to respond to
Audit #2 Observations changes within a set time frame to keep
instances that do not arise to the level
All observations are purely for of substantial disruption. the project moving especially on design-
TxDOT’s consideration only and should 4. Addressing errors and corrections build projects. Reevaluations must look
not be deemed non-compliance to NEPA decisions in ECOS—This at the entire project. This situation will
observations unless otherwise noted. TxDOT comment on Audit #2 also be considered as part of the shared
1. Relationships between TxDOT and acknowledges that a specific CE set of FHWA–TxDOT expectations on
other Federal Agency staff—The TxDOT determination was incorrect, how to handle project changes.
indicated in its comments on Audit #2 attributable to a typographical error. 9. ECOS upgrades schedule too
that it has conducted follow up Thus, TxDOT completed a new CE slow—This TxDOT response to Audit #2
meetings with U.S. Coast Guard staff. It determination for that project. As part of disagreed that the pace of ECOS
also disagrees with the characterization the project file reviews for Audit #4, upgrades might increase litigation risk.
that TxDOT’s relationship with the FHWA proposes to engage with TxDOT Based on information from Audit #3
Texas SHPO is ‘‘strained.’’ The FHWA to have a shared set of expectations on interviews, this observation is tied to
has continued to include interviews the process or procedures that addresses TxDOT’s commitment of resources to
with outside agency staff as part of this various errors or omissions in TxDOT’s assume responsibilities under the MOU
and future reviews/audits to seek NEPA decisionmaking at a program- (Part 4.2). This was presented as a
information about relationships and to level, both before and after TxDOT continued observation from previous
convey information back to TxDOT. The requests that FHWA approve Federal- audits and is restated to draw TxDOT’s
FHWA provides information for TxDOT aid. The integrity of data in ECOS is attention to an identified problem. This
to consider in maintaining and/or paramount to retaining an official file of observation is not a statement of non-
improving its working relationship with record for Federal-aid projects. It is compliance, although it could lead to a
both Federal and State regulatory anticipated that ECOS upgrades will non-compliance observation in the
agencies. The FHWA interviews these also help to fully address this issue with future. As ECOS is the official file of
agencies in order to (1) provide feedback an improved quality control process record, FHWA is concerned that TxDOT
about those relationships that TxDOT improvement by TxDOT. has not improved ECOS quickly enough.
may not otherwise hear directly and (2) 5. Inadequate project description or The TxDOT should consider making
to review and assess TxDOT’s project scope—The TxDOT stated in its database updates more timely and
procedures. The FHWA is also able to comments on Audit #2 that discussions related procedures mandatory in
observe program-level interactions of adequate project descriptions have relation to documentation storage
between TxDOT and other agencies and been the subject of several NEPA Chats within ECOS.
to convey observations back to TxDOT and will continue to be discussed as 10. Difficulty locating information in
for consideration purposes. long as this issue persists. The FHWA project files—This TxDOT comment on
2. Legacy projects and TxDOT’s ‘‘no and TxDOT collaborated to develop a Audit #2 states that it formed a
effect’’ determinations for ESA—The shared set of expectations for project workgroup in the summer of 2015 for
TxDOT stated in its comments on Audit development that was presented at the the purpose of developing statewide
#2 that it met with FHWA staff on this September 2015 TxDOT Environmental guidance regarding filing and naming
matter and has assessed existing Conference. conventions in ECOS. The TxDOT
procedures, rules, and policies related 6. EPIC documentation and Districts themselves had issues locating
to ESA consultation and reviewed decisionmaking—The TxDOT indicated documentation within their own ECOS
related training. The team found a in its comment on the Audit #2 report project files during site visits in Audit
deficiency in the TxDOT procedure on that TxDOT ECOS procedures allow #2. The team continued to have
making ESA determinations as a result information to be loaded in two ways difficulty (and ENV management and
of Audit #3. Since the procedure for that can be confusing for reviewers. The staff also confirmed the same difficulty)
making ESA determinations is non- TxDOT acknowledged this issue and finding key project documentation for
compliant, TxDOT will need to stated that it has established an EPIC this audit, especially for large and
implement a corrective action, which workgroup with the purpose of complex projects. The FHWA looks
will be considered as part of FHWA’s identifying a more consistent method to forward to reviewing the
next review or audit. record and track EPICs. The results of recommendations of this workgroup and
3. Consistency in TxDOT’s approach this workgroup will be incorporated assessing any changes as part of a future
to defining 23 CFR 771.117(e)(4) for into a series of ECOS upgrades review or audit.
major traffic disruption—This TxDOT scheduled over the next 2 years. 11. Evidence of recurring Non-
response to the draft Audit #2 report 7. Multiple CE approval documents in Compliance Observations related to QA
downplays the need for an agreed upon ECOS—The TxDOT stated in its and QC application to individual
standard or threshold on how to apply comment on Audit #2 that the project projects—This TxDOT comment on
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the constraint in 23 CFR 771.117(e)(4) file for this observation contained a Audit #2 commits to making project
regarding traffic disruption. The TxDOT typographical error that made the initial specific comments in SAB feedback
indicated that the decision is made by CE determination incorrect. The TxDOT reports available for Audit #3. These
‘‘professional judgment’’ according to then made a new CE determination. reports were made available and the
the criteria the CEQ has identified for a Having a shared set of expectations (see TxDOT self-assessment report included
determination of significant impact (i.e., number 4, above) between TxDOT and an extensive analysis of QC outcomes
context and intensity). However, FHWA on how to address errors and for CE project reviews. The QC is still

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17728 Federal Register / Vol. 82, No. 69 / Wednesday, April 12, 2017 / Notices

an issue prior to NEPA decisions being Delivery Program and did not relate ADDRESSES: You may submit comments
finalized for larger scale CEs as well as specifically to Audit #3. The TxDOT’s bearing the Federal Docket Management
for EAs and EISs. comments provided information about System (FDMS) Docket No. FMCSA–
12. Expectation for the timeframe non-compliance and general 2017–0032 using any of the following
necessary for a legal review—This observations from the draft report that methods:
TxDOT comment on Audit #2 commits should be revised. The response also • Federal eRulemaking Portal: Go to
to revising the standard operating describes actions TxDOT has taken in http://www.regulations.gov. Follow the
procedure to establish an expected response to the report’s observations. on-line instructions for submitting
review time for the TxDOT’s OGC now Several TxDOT comments have comments.
GCD to conduct a legal sufficiency resulted in changes in this report. The • Mail: Docket Management Facility;
review. As recommended during Audit number of observations in the draft U.S. Department of Transportation, 1200
# 2, OGC has issued a procedure report was incorrectly referred to in one New Jersey Avenue SE., West Building
establishing legal review times for FEIS instance as nine and has been corrected. Ground Floor, Room W12–140,
(30 days) and for NOI and 139(l) The information storage and Washington, DC 20590–0001.
documents (3 days). If necessary, OGC management role of ECOS was clarified • Hand Delivery: West Building
can request additional time for the by deleting mention of public use, but Ground Floor, Room W12–140, 1200
review. instead an internal tool TxDOT uses to New Jersey Avenue SE., Washington,
13. Measure for the TxDOT disclose information to the public. DC, between 9 a.m. and 5 p.m., e.t.,
relationship with the public—The Because of TxDOT comments on the Monday through Friday, except Federal
TxDOT continued to report the number draft report’s discussion of ESA Holidays.
of complaints received year-to-year as compliance, the discussion of Non- • Fax: 1–202–493–2251.
its performance measure for its Compliance Observation #1 was revised Instructions: Each submission must
relationship with the public. None were to include: Mention of critical habitat, include the Agency name and the
received, and the measure reported was and the justification for consideration of docket numbers for this notice. Note
unchanged from the prior self- possible effects to a species or their that all comments received will be
assessment summary report. The team habitat. The TxDOT’s response also posted without change to http://
learned from interviews that it is clarified that it updated its handbook www.regulations.gov, including any
possible that the public may not procedures for noise issues, but did not personal information provided. Please
distinguish between performance pre- update the 2011 noise policy. The see the Privacy Act heading below for
and post- assignment. The team was discussion of Non-Compliance #2 has further information.
told that TxDOT is still getting feedback removed mention of a TxDOT 2016 Docket: For access to the docket to
from the public and agencies and plans noise policy. read background documents or
to include the measures into a
Since the completion of this report, comments, go to http://
continuous improvement process. The
staff from TxDOT and FHWA have www.regulations.gov at any time or
TxDOT also noted, in its Federal
established quarterly partnering Room W12–140 on the ground level of
Register comment on the draft Audit #2
sessions where observations and other the West Building, 1200 New Jersey
report, that (1) assessing change in
issues relating to NEPA assignment are Avenue SE., Washington, DC, between 9
communication with the general public
being discussed, clarified, and resolved. a.m. and 5 p.m., e.t., Monday through
is inherently difficult, (2) NEPA [FR Doc. 2017–07345 Filed 4–11–17; 8:45 am] Friday, except Federal holidays. The
assignment presents little external
BILLING CODE 4910–22–P Federal Docket Management System
differentiation to the general public, and
(FDMS) is available 24 hours each day,
(3) finding success in measuring this
365 days each year. If you want
variable has proven difficult. DEPARTMENT OF TRANSPORTATION
14. Implement ways to train local acknowledgment that we received your
government staff—The TxDOT’s comments, please include a self-
Federal Motor Carrier Safety addressed, stamped envelope or
Environmental Professional Training Administration
Program is described in a four-page postcard or print the acknowledgement
report provided to the team as part of page that appears after submitting
[Docket No. FMCSA–2017–0032]
TxDOT’s pre-audit information request comments on-line.
response. That report identifies a series Qualification of Drivers; Exemption Privacy Act: In accordance with 5
of workshops and training events jointly Applications; Diabetes Mellitus U.S.C. 553(c), DOT solicits comments
held with THC staff. The team learned from the public to better inform its
AGENCY: Federal Motor Carrier Safety rulemaking process. DOT posts these
through interviews and the training
Administration (FMCSA), DOT. comments, without edit, including any
program report that TxDOT has
established an ENV training SharePoint ACTION: Notice of applications for personal information the commenter
site that is accessible to the public for exemptions; request for comments. provides, to www.regulations.gov, as
local government staff to register for described in the system of records
SUMMARY: FMCSA announces receipt of notice (DOT/ALL–14 FDMS), which can
training at no cost. applications from 43 individuals for be reviewed at www.dot.gov/privacy.
Finalization of Report exemption from the prohibition against FOR FURTHER INFORMATION CONTACT: Ms.
The FHWA received two responses persons with insulin-treated diabetes Christine A. Hydock, Chief, Medical
from the American Road & mellitus (ITDM) operating commercial Programs Division, (202) 366–4001,
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Transportation Builders Association motor vehicles (CMVs) in interstate fmcsamedical@dot.gov, FMCSA,
(ARTBA) and TxDOT during the 30-day commerce. If granted, the exemptions Department of Transportation, 1200
comment period for the draft report. The would enable these individuals with New Jersey Avenue SE., Room W64–
team has considered these comments in ITDM to operate CMVs in interstate 113, Washington, DC 20590–0001.
finalizing this audit report. The commerce. Office hours are 8:30 a.m. to 5 p.m., e.t.,
ARTBA’s comments were supportive of DATES: Comments must be received on Monday through Friday, except Federal
the Surface Transportation Project or before May 12, 2017. holidays.

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Document Created: 2017-04-12 00:23:23
Document Modified: 2017-04-12 00:23:23
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Contact		Dr. Owen Lindauer, Office of Project Development and Environmental Review, (202) 366-2655, [email protected], or Mr. Jomar Maldonado, Office of the Chief Counsel, (202) 366-1373, [email protected], Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.
FR Citation		82 FR 17719
82 FR 17719 - Surface Transportation Project Delivery Program; TxDOT Audit Report #3

DEPARTMENT OF TRANSPORTATIONFederal Highway Administration

Federal Register Volume 82, Issue 69 (April 12, 2017)

DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
