[Federal Register Volume 87, Number 120 (Thursday, June 23, 2022)]
[Notices]
[Pages 37547-37550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13401]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2021-0010]


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

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

ACTION: Notice; Request for comment.

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

DATES: Comments must be received on or before July 25, 2022.

ADDRESSES: Mail or hand deliver comments to Docket Management Facility: 
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. You may also submit comments electronically 
at www.regulations.gov. All comments should include the docket number 
that appears in the heading of this document. All comments received 
will be available for examination and copying at the above address from 
9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. 
Those desiring notification of receipt of comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically. Anyone can 
search the electronic form of all comments in any of our dockets by the 
name of the individual submitting the comment (or signing the comment, 
if submitted on behalf of an association, business, or labor union). 
The DOT posts these comments, without edits, including any personal 
information the commenter provides, to www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 FDMS), which can 
be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. Lana Lau, Office of Project 
Development and Environmental Review, (202) 366-2052, <a href="/cdn-cgi/l/email-protection#571b363936791b36221733382379303821"><span class="__cf_email__" data-cfemail="c884a9a6a9e684a9bd88aca7bce6afa7be">[email protected]</span></a>, 
or Mr. Patrick Smith, Office of the Chief Counsel, (202) 366-1345, 
<a href="/cdn-cgi/l/email-protection#0959687d7b606a62276a275a64607d61496d667d276e667f"><span class="__cf_email__" data-cfemail="83d3e2f7f1eae0e8ade0add0eeeaf7ebc3e7ecf7ade4ecf5">[email protected]</span></a>, Federal Highway Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    An electronic copy of this notice may be viewed online at 
www.regulations.gov using the docket number listed above. Electronic 
retrieval help and guidelines are available on the website. It is 
available 24 hours each day, 365 days each year. An electronic copy of 
this document may also be downloaded from the Office of the Federal 
Register's website at www.FederalRegister.gov and the U.S. Government 
Publishing Office's website at www.GovInfo.gov.

Background

    The Surface Transportation Project Delivery Program, codified at 23 
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a 
State to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for Federal highway projects. When a State 
assumes these Federal responsibilities, the State becomes solely liable 
for carrying out the responsibilities it has assumed in lieu of FHWA. 
The UDOT published its application for NEPA assumption on October 9, 
2015, and made it available for public comment for 30 days. After 
considering public comments, UDOT submitted its application to FHWA on 
December 1, 2015. The application served as the basis for developing a 
memorandum of understanding (MOU) that identified the responsibilities 
and obligations that UDOT would assume. The FHWA published a notice of 
the draft MOU in the Federal Register on November 16, 2016 (81 FR 
80710), with a 30-day comment period to solicit the views of the public 
and Federal agencies. After the close of the comment period, FHWA and 
UDOT considered comments and proceeded to execute the MOU. Effective 
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA, and 
the responsibilities for other

[[Page 37548]]

Federal environmental laws described in the MOU.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the MOU during each of 
the first 4 years of State participation and, after the fourth year, 
monitor compliance. The FHWA must make the results of each audit 
available for public comment. The FHWA published the first audit report 
of UDOT compliance on September 17, 2018 (83 FR 46992), the second 
report on November 13, 2019 (84 FR 61680), and the third report on 
September 17, 2020 (85 FR 58102). This notice announces the 
availability of the fourth and final audit report for UDOT and solicits 
public comments.
    Authority: Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR part 773.

Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program; Draft FHWA Audit of 
the Utah Department of Transportation; July 1, 2018-June 30, 2019

Executive Summary

    This report summarizes the results of the Federal Highway 
Administration's (FHWA) fourth audit of the Utah Department of 
Transportation's (UDOT) National Environmental Policy Act (NEPA) review 
responsibilities and liabilities that FHWA has assigned and UDOT has 
assumed pursuant to 23 U.S.C. 327. Throughout this report, FHWA uses 
the term ``NEPA Assignment Program'' to refer to the program codified 
at 23 U.S.C. 327. Pursuant to 23 U.S.C. 327, UDOT and FHWA executed a 
memorandum of understanding (MOU) on January 17, 2017, to memorialize 
UDOT's NEPA responsibilities and liabilities for Federal-aid highway 
projects and certain other FHWA approvals in Utah. The section 327 MOU 
covers environmental review responsibilities for projects that require 
the preparation of environmental assessments (EA), environmental impact 
statements (EIS), and non-designated documented categorical exclusions 
(DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT's 
environmental review responsibilities for other categorical exclusions 
(CE), commonly known as CE Program Assignment. The scope of this audit 
does not cover the CE Program Assignment responsibilities.
    As part of FHWA's review responsibilities under 23 U.S.C. 327, FHWA 
formed a team (the ``Audit Team'') in August 2020 to plan and conduct 
an audit of NEPA responsibilities UDOT assumed. The Audit Team 
conducted its review during the period from November 9 to December 2, 
2020. As part of this audit, the Audit Team reviewed UDOT's NEPA 
project files, UDOT's response to FHWA's pre-audit information request 
(PAIR), UDOT's NEPA Assignment Self-Assessment Report, UDOT's NEPA 
Quality Assurance/Quality Control (QA/QC) Guidance, and UDOT's NEPA 
Assignment Training Plan. The Audit Team conducted videoconference 
interviews with four members of UDOT central office staff, six of 
UDOT's legal counsel (one current Assistant Attorney General assigned 
to UDOT, one former Assistant Attorney General assigned to UDOT, and 
four outside counsel), three staff members from the U.S Environmental 
Protection Agency, and two staff members from the U.S. Fish and 
Wildlife Service (FWS) as part of the audit.
    Overall, the Audit Team found that UDOT continues to successfully 
carry out its DCE, EA, and EIS project review responsibilities. The 
UDOT has also made efforts to respond to the FHWA findings from the 
third audit, including improving document management and QA/QC 
procedures. In the third audit, the Audit Team had found that UDOT 
issued an environmental document without a final legal sufficiency 
finding, and observed that there were ways UDOT could improve their 
training.
    In this fourth and final audit, the Audit Team identified four 
observations and two successful practices. The Audit Team finds UDOT is 
carrying out the responsibilities it has assumed and is in substantial 
compliance with the provisions of the MOU. This report also concludes 
with the status of FHWA's non-compliance observation from the third 
audit review, including any UDOT self-imposed corrective actions. After 
the fourth year of UDOT's participation in the program, FHWA will 
continue to monitor UDOT's compliance with the terms of this MOU, in 
accordance with 23 U.S.C. 327(h).

Background

    The NEPA Assignment Program allows a State to assume FHWA's 
environmental responsibilities for review, consultation, and compliance 
for Federal-aid highway projects and certain FHWA approvals. Under 23 
U.S.C. 327, a State that assumes these Federal responsibilities becomes 
solely responsible and solely liable for carrying them out. Effective 
January 17, 2017, UDOT assumed FHWA's responsibilities under NEPA and 
other related environmental laws. Examples of responsibilities UDOT has 
assumed in addition to NEPA include section 7 consultation under the 
Endangered Species Act and consultation under section 106 of the 
National Historic Preservation Act.
    Audits are the primary mechanism through which FHWA oversees UDOT's 
compliance with the MOU and the NEPA Assignment Program requirements. 
This includes ensuring compliance with applicable Federal laws and 
policies, evaluating UDOT's progress toward achieving the performance 
measures identified in MOU Section 10.2, and collecting information 
needed for the Secretary's annual report to Congress. The FHWA must 
present the results of each audit in a report and make it available for 
public comment in the Federal Register.
    Through this fourth and final audit, FHWA will satisfy provisions 
of 23 U.S.C. 327(g) and Part 11 of the MOU. This report summarizes the 
results of the fourth audit in Utah and includes a summary discussion 
that describes progress since the last audit. This audit is the last of 
the required audits.

Scope and Methodology

    The MOU (Part 3.1.1) states that ``[p]ursuant to 23 U.S.C. 
327(a)(2)(A), on the Effective Date, FHWA assigns, and UDOT assumes, 
subject to the terms and conditions set forth in 23 U.S.C. 327 and this 
MOU, all of the U.S. Department of Transportation Secretary's 
responsibilities for compliance with the NEPA, 42 U.S.C. 4321 et seq. 
with respect to the highway projects specified under subpart 3.3. This 
assignment includes statutory provisions, regulations, policies, and 
guidance related to the implementation of NEPA for highway projects 
such as 23 U.S.C. 139, 40 CFR parts 1500-1508, DOT Order 5610.1C, and 
23 CFR 771 as applicable.'' Also, the performance measure in MOU Part 
10.2.1(A) for compliance with NEPA and other Federal environmental 
statutes and regulations commits UDOT to maintaining documented 
compliance with requirements of all applicable statutes and 
regulations, as well as provisions in the MOU.
    The Audit Team consisted of NEPA subject matter experts from the 
FHWA Utah Division, FHWA Resource Center, the Volpe Center, FHWA 
Headquarters, and FHWA Office of the Chief Counsel. These experts 
received training on how to evaluate implementation of the NEPA 
Assignment Program.
    The Audit Team conducted an examination of UDOT's NEPA project 
files, UDOT's responses to the PAIR, and UDOT's self-assessment. The 
audit

[[Page 37549]]

also included interviews with staff and reviews of UDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities. All reviews 
focused on objectives related to the six NEPA Assignment Program 
elements: program management; documentation and records management; QA/
QC; legal sufficiency; training; and performance measurement. In 
particular, the Audit Team reviewed UDOT's process and procedures for 
conducting environmental re-evaluations.
    The focus of the audit was on UDOT's process and program 
implementation. Therefore, while the Audit Team reviewed project files 
to evaluate UDOT's NEPA process and procedures, the Audit Team did not 
evaluate UDOT's project-specific decisions to determine if they were, 
in FHWA's opinion, appropriate or not. The Audit Team reviewed 20 NEPA 
Project files with DCEs, EAs, EISs, and re-evaluations, representing 
all projects with decision points or other actionable items between 
July 1, 2019, and June 30, 2020. The Audit Team also interviewed 
environmental staff in UDOT's headquarters office.
    The PAIR consisted of 25 questions about specific elements in the 
MOU. The Audit Team used UDOT's response to the PAIR to develop 
specific follow-up questions for the UDOT staff.
    The Audit Team conducted four interviews with UDOT environmental 
staff, one virtual interview with staff from the U.S. Environmental 
Protection Agency (EPA), one interview with staff from the FWS, two 
interviews with UDOT's outside legal counsel, and one interview with 
legal counsel from the Utah Attorney General's office. All interviews 
were conducted as videoconference interviews.
    Throughout the document reviews and interviews, the Audit Team 
verified information regarding the UDOT NEPA Assignment Program 
including UDOT policies, guidance, manuals, and reports. This included 
the NEPA QA/QC Guidance, the NEPA Assignment Training Plan, and the 
NEPA Assignment Self-Assessment Report.
    The Audit Team compared the procedures outlined in UDOT 
environmental manuals and policies to the information obtained during 
interviews and project file reviews to determine if there were 
discrepancies between UDOT's performance and documented procedures. The 
Audit Team documented observations under the six NEPA Assignment 
Program topic areas. Below are the audit results.
    Overall, UDOT has carried out the environmental responsibilities it 
assumed through the MOU and the application for the NEPA Assignment 
Program, and as such the Audit Team finds UDOT is substantially 
compliant with the provisions of the MOU.

Observations and Successful Practices

    This section summarizes the Audit Team's observations of UDOT's 
NEPA Assignment Program implementation, including successful practices 
UDOT may want to continue or expand. Successful practices are positive 
results FHWA would like to commend UDOT for developing. These may 
include ideas or concepts that UDOT has planned but not yet 
implemented. Observations are items the Audit Team would like to draw 
UDOT's attention to, which may benefit from revisions to improve 
processes, procedures, or outcomes. The UDOT may have already taken 
steps to address or improve upon the Audit Team's observations, but at 
the time of the audit they appeared to be areas where UDOT could make 
improvements. This report addresses all six MOU topic areas as separate 
discussions. Within each area, this report discusses successful 
practices followed by observations.
    This audit report provides an opportunity for UDOT to implement 
actions to improve their NEPA Assignment Program. The FHWA and UDOT 
will continue to work together to monitor UDOT's compliance with the 
terms of this MOU, as required by 23 U.S.C. 327(h).

Program Management

Successful Practice #1
    The Audit Team identified one of UDOT's project websites which 
included detailed information about the proposed noise impact analyses, 
traffic noise abatement measures, and the proposed relocation of the 
existing noise barriers as a successful practice. The noise impact and 
abatement information presented to the public was comprehensive and 
easy to understand.
Observation #1
    Section 5.1.4 of UDOT's NEPA Assignment MOU outlines an interagency 
planning and coordination protocol to make sure that all programmatic 
agreements reflect UDOT's new roles and responsibilities under NEPA 
Assignment. The Audit Team observed that UDOT's Section 106 
programmatic agreements with four Tribal governments predate NEPA 
Assignment, and they do not reflect UDOT's assigned roles and 
responsibilities. We recommend that UDOT reach out to these Tribal 
governments and implement the interagency planning and coordination 
provisions of Section 5.1.4, which may include amending the 
programmatic agreements or obtaining a ``written consent''. The 
recommended path forward would enable UDOT to clarify its assigned 
roles and responsibilities during Section 106 consultations.
    The overall consistency across all five of the Section 106 
programmatic agreements is important to clarify the organizational 
roles and responsibilities between UDOT and FHWA for both Section 106 
and Government-to-Government consultations, resulting in more 
predictable lines of communication, more productive and meaningful 
interagency dialogue with the Tribes, and a positive reinforcement of 
FHWA's retained Tribal trust responsibilities.
Observation #2
    In the course of reviewing the most recent Manual of Instruction 
(MOI), the Audit Team identified several areas that do not address the 
most recent requirements and guidelines associated with the Fixing 
America's Surface Transportation Act; FHWA's 2019 Re-evaluation Q&A 
Guidance; Moving Ahead for Progress in the 21st Century Act (MAP-21) 
Section 1319 interim guidance relating to the appropriate use of the 
combined Final Environment Impact Statement/Record of Decision (FEIS/
ROD) documents; FHWA's 2011 Environmental Justice and NEPA guidance for 
identifying, disclosing and mitigating impacts to environmental justice 
communities; or FHWA's October 2018 memorandum addressing activities 
that may be completed prior to issuance of a Notice of Intent to 
prepare an EIS. During interviews, UDOT informed us that they make 
regular updates to the MOI, as needed. However, these examples 
illustrate that the MOI would benefit from a regularly scheduled, 
comprehensive review to ensure that it reflects current national policy 
and guidance.

Documentation and Records Management

Successful Practice #1
    During this audit period, the Audit Team reviewed re-evaluations 
for two EIS projects that appeared to use the same format. While it is 
not explicitly required by the MOI, UDOT did appear to use a standard 
procedure for these re-evaluations. For example, both included a 
Summary of Re-evaluation Analysis Table that functions like an 
environmental checklist. This table creates a standard process for 
looking at changes in both the magnitude of

[[Page 37550]]

project impacts, as well as project scope modifications.
Observation #1
    The team reviewed multiple re-evaluations for the West Davis 
Corridor Project. Each individual re-evaluation addressed the changes 
on that portion of the larger project. The FHWA suggests UDOT also add 
language that summarizes the changes across all the re-evaluations, 
such as providing a listing of all the related re-evaluations and a 
statement correlating them, to clearly demonstrate and document that 
UDOT has considered impacts across the entirety of the project.

Quality Assurance/Quality Control

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

Legal Sufficiency

    During the audit period outside counsel issued three findings of 
legal sufficiency per the requirements of 23 CFR 771.125(b) and 23 CFR 
774.7(d), copies of which were provided to the Audit Team. These 
include legal sufficiency reviews of one EIS and two Section 4(f) 
evaluations. The UDOT has continued using the legal sufficiency process 
it put in place for both Section 326 CE and Section 327 NEPA 
Assignment; that is, contracting with outside counsel who have 
extensive experience in NEPA, other environmental laws, and Federal 
environmental litigation.
    Since the signing of the initial FHWA-UDOT MOU for the NEPA 
Assignment Program in January 2017, no lawsuits have been filed against 
NEPA-assigned projects in the State of Utah.

Training

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

Performance Measures

    The UDOT has continued to assess its performance as required under 
the terms of the MOU. The UDOT's annual self-assessment report 
indicates that they are meeting their performance targets. The process 
of, and results from, the State's self-assessment have been an 
important factor in the improvement of UDOT's NEPA Program.
Observation #1
    Section 10.2.1.C.i of the MOU requires UDOT to assess change in and 
ensure effective communication among UDOT, Federal and State resource 
agencies resulting from assumption of responsibilities under the MOU.
    In interviews, resource agency staff at the EPA and the FWS stated 
that overall they have a good working relationship with UDOT staff. 
Some FWS staff indicated that they could utilize additional information 
on the differences between the 23 U.S.C. 326 (CE Assignment) program 
and the 23 U.S.C. 327 (NEPA Assignment) program. The audit team also 
learned that neither FWS nor EPA had responded to UDOT's annual 
resource agency survey. These are examples of where UDOT's program may 
benefit from more consistent, program-level discussions with resource 
agencies to ensure that all parties understand their respective roles 
and responsibilities, as well as the provisions of the 326 and 327 
programs. Stronger managerial-level communications with the resource 
agencies may increase their understanding of the importance of the 
survey and improve the response rate.

Non-Compliance Observation

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

Follow-up to Previous Audit Findings

    The FHWA reported a non-compliance observation relating to UDOT not 
complying with the State's environmental review procedures as a part of 
Audit #3.

2019 Audit #3--Issuing a Document Without Final Legal Sufficiency 
Finding

    As noted earlier, in response to the 2019 audit finding that legal 
sufficiency review documentation was not provided prior to approval of 
a project FEIS, UDOT and outside counsel implemented a more formalized 
system by instituting a Legal Sufficiency Review Form to be completed 
by outside counsel. The form ensures a record that the review occurred. 
This form has already been used for legal sufficiency reviews during 
this audit period.

Next Steps

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

[FR Doc. 2022-13401 Filed 6-22-22; 8:45 am]
BILLING CODE 4910-22-P


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