[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Notices]
[Pages 9638-9645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4432]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2009-0119]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final report.
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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established
the Surface Transportation Project Delivery Pilot Program, codified at
23 U.S.C. 327. To ensure compliance by each State participating in the
Pilot Program, 23 U.S.C. 327(g) mandates semiannual audits during each
of the first 2 years of State participation. This final report presents
the findings from the fourth FHWA audit of the California
[[Page 9639]]
Department of Transportation (Caltrans) under the pilot program.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, (202) 366-2034,
Ruth.Rentch@dot.gov, or Mr. Michael Harkins, Office of the Chief
Counsel, (202) 366-4928, Michael.Harkins@dot.gov, Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15
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 Office
of the Federal Register's home page at http://www.archives.gov and the
Government Printing Office's Web site at http://www.access.gpo.gov.
Background
Section 6005 of SAFETEA-LU (codified at 23 U.S.C. 327) established
a pilot program to allow up to five States to assume the Secretary of
Transportation's responsibilities for environmental review,
consultation, or other actions under any Federal environmental law
pertaining to the review or approval of highway projects. In order to
be selected for the pilot program, a State must submit an application
to the Secretary.
On June 29, 2007, Caltrans and FHWA entered into a Memorandum of
Understanding (MOU) that established the assignments to and assumptions
of responsibility to Caltrans. Under the MOU, Caltrans assumed the
majority of FHWA's responsibilities under the National Environmental
Policy Act, as well as the FHWA's responsibilities under other Federal
environmental laws for most highway projects in California.
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) requires the Secretary to conduct semiannual
audits during each of the first 2 years of State participation; and
annual audits during each subsequent year of State participation. The
results of each audit must be presented in the form of an audit report
and be made available for public comment. The FHWA solicited comments
on the fourth audit report in a Federal Register Notice published on
December 23, 2009, at 74 FR 68308. The FHWA received no comments. This
notice provides the final draft of the fourth FHWA audit report for
Caltrans under the pilot program.
Authority: Section 6005 of Pub. L. 109-59; 23 U.S.C. 315 and
327; 49 CFR 1.48.
Issued on: February 23, 2010.
Victor M. Mendez,
Administrator.
Surface Transportation Project Delivery Pilot Program Federal Highway
Administration Audit of California Department of Transportation July
27-31, 2009
Introduction
Overall Audit Opinion
Based on the information reviewed, it is the Federal Highway
Administration (FHWA) audit team's opinion that as of July 31, the
California Department of Transportation (Caltrans) has continued to
make progress toward meeting all responsibilities assumed under the
Surface Transportation Project Delivery Pilot Program (Pilot Program),
as specified in the Memorandum of Understanding (MOU) \1\ with FHWA and
in the Caltrans Application for Assumption (Application).
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\1\ Caltrans MOU between FHWA and Caltrans available at: http://environment.fhwa.dot.gov/strmlng/safe_cdot_pilot.asp.
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With the completion of FHWA's fourth audit, Caltrans has been
operating under the Pilot Program for 2 years. In compliance with the
time specifications for the required audits, FHWA has completed the
four semiannual audits in the first 2 years of State participation. As
required under the Pilot Program, FHWA audits of Caltrans will now be
on an annual basis. During the four audits conducted, the audit team
has completed on-site audits at 9 of the 12 Caltrans Districts and the
remaining Districts were within the scope of the Caltrans Regional
Offices that were audited. The audit team continues to identify
significant differences across the Districts in terms of the Pilot
Program. Example of such differences include: resource availability and
allocation; methods of implementation; processes and their improvement;
and progress toward meeting all commitments. It is the audit team's
opinion that the highly decentralized nature of Caltrans' operations is
a major contributing factor to the variation observed. The
decentralized nature of the organization necessitates clear,
consistent, and ongoing oversight by Caltrans Headquarters over
Districts' implementation and operation of the Pilot Program. A robust
oversight program will help foster the exchange of information and the
sharing of best practices and resources between Districts and will put
the entire organization in a better position to more fully implement
all assumed responsibilities and meet all Pilot Program commitments.
The FHWA commends Caltrans for its implementation of corrective
actions in response to previous audit findings. However, these
corrective actions and ``fixes'' have been put into practice on a case-
by-case basis. The FHWA recommends that Caltrans develop a
departmentwide, holistic corrective action management approach and
system that will develop and implement an internal process review to
determine needed improvements to existing processes and procedures.
Due to the multiyear timeframes associated with more complex and
controversial projects, the full lifecycle of the environmental review
aspect of project development (proceeding from initiation of
environmental studies and concluding with the issuance of a record of
decision or equivalent decision document) has yet to be fully realized
within the period of the Pilot Program. Over the past 2 years, the FHWA
California Division has continued to execute the FHWA role for 22
project reviews and decisions excluded from the Pilot Program. Caltrans
continues to gain experience in understanding the resource requirements
and processes necessary to administer its Pilot Program. It is the
audit team's opinion that Caltrans needs to continue to refine its
approaches and resources to meet all Pilot Program commitments,
especially given the likelihood of increasing resource demands
associated with exclusively managing ever-more complex and
controversial projects under the Pilot Program.
During the on-site audit, Caltrans staff and management continued
to express ongoing interest in receiving feedback from the FHWA audit
team related to program successes and areas in need of improvement. By
addressing all findings in this report, Caltrans will continue to move
its program toward full compliance with all assumed responsibilities
and meeting all Pilot Program commitments.
Limitations of the Audit
The conclusions presented in this report are opinions based upon
interviews of selected persons knowledgeable about past and current
activities related to the execution of the Pilot Program at Caltrans,
and a review of selected documents over a limited time period. The FHWA
audit team's ability to conduct the audit and make determinations of
Caltrans successful participation in having met its commitments under
the Pilot Program
[[Page 9640]]
during the four audits conducted have been further limited by the
following:
Not every District was audited. Each audit (including this
audit) consisted of visits to selected Caltrans Districts.
Incomplete project files. Project files and associated
project documentation have, when reviewed, not always been complete
(i.e., a full administrative record was not always available for review
by the auditor team). This is especially true for projects where the
project or related studies were initiated prior to commencement of the
Pilot Program.
The limited scope of Pilot Program activity to date
conducted by Caltrans. Since Caltrans has not been operating under the
Pilot Program for the period of time that is generally agreed to be
required to complete the full lifecycle of most Environmental Impact
Statements (EIS) and other complex projects, FHWA is not yet able to
fully determine how Caltrans complies with all the responsibilities
assumed in those project situations.
Insufficient data to determine time savings. Similarly, it
is too early in Caltrans' participation in the Pilot Program, and there
is not enough data available, for FHWA to be able to report
conclusively on time savings being achieved as a result of Caltrans
participation in the Pilot Program.
Lack of ability to view legal comments provided by
Caltrans staff attorneys. As in prior audits, Caltrans did not permit
access to its attorneys' written comments on assigned environmental
documents. The inability to document the existence (not the substance)
of such comments has made it difficult for the audit team to determine
if the legal sufficiency process is being implemented in an effective--
as opposed to a timely--manner. While recognizing Caltrans' expressed
concerns about the attorney-client privilege and acknowledging the
dialogue that has taken place regarding these concerns and the
appropriate documentation of this process, the audit team, mindful of
the provisions of 23 CFR 1.5 as well as sections 8.1.6, 8.2.2, and
8.2.4 of the MOU, is considering whether documentation beyond the
timeline provided by Caltrans Legal Division's Legal Information
Computer System database and individual findings of legal sufficiency
is necessary for FHWA to evaluate fully Caltrans' compliance with these
requirements.
Distinction between the two Categorical Exclusion (CE)
assumption processes. Since the assumption by Caltrans of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU, Pub. L. 109-59) Section 6004 CE process is not a
part of these audits, it is not possible to validate the correctness of
determinations placing individual CEs under the aegis of each assumed
responsibility.
Continued errors in the quarterly reports. Since the
quarterly reports continue to contain errors, it is difficult to have
confidence that all National Environmental Policy Act (NEPA) documents
have been reported and thus can be part of the FHWA audit plans.
Background
The SAFETEA-LU Section 6005(a) established the Pilot Program,
codified at title 23, United States Code, section 327. The Pilot
Program allows the Secretary of Transportation (Secretary) to assign,
and the State to assume, the Secretary's responsibilities under NEPA
for one or more highway projects. Upon assigning NEPA responsibilities,
the Secretary may further assign to the State all or part of the
Secretary's responsibilities for environmental review, consultation, or
other action required under any Federal environmental law pertaining to
the review of a specific highway project. When a State assumes the
Secretary's responsibilities under this program, the State becomes
solely responsible and is liable for carrying out the responsibilities
it has assumed, in lieu of the FHWA.
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) mandates that FHWA, on behalf of the
Secretary, conduct semiannual audits during each of the first 2 years
of State participation; and annual audits during each subsequent year
of State participation. The focus of the FHWA audit process is four
fold: (1) To assess a Pilot State's compliance with the required MOU
and applicable Federal laws and policies, (2) to collect information
needed to evaluate the success of the Pilot Program, (3) to evaluate
Pilot State progress in meeting its performance measures, and (4) to
collect information for use in the Secretary's annual report to
Congress on the administration of the Pilot Program. Additionally, 23
U.S.C. 327(g) requires FHWA to present the results of each audit in the
form of an audit report that is published in the Federal Register. This
audit report must be made available for public comment, and FHWA must
respond to public comments received no later than 60 days after the
date on which the period for public comment closes. The FHWA solicited
comments on the fourth audit report in a Federal Register Notice
published December 22, 2009, at 74 FR 68308. The FHWA received no
comments during the comment period. This notice provides the final
draft of the fourth FHWA audit report for Caltrans under the pilot
program.
Caltrans published its Application under the Pilot Program on March
14, 2007, and made it available for public comment for 30 days. After
considering public comments, Caltrans submitted its Application to FHWA
on May 21, 2007, and FHWA, after soliciting the views of Federal
agencies, reviewed and approved the Application. Then on June 29, 2007,
Caltrans and FHWA entered into an MOU that established the assignments
to and assumptions of responsibility to Caltrans, which became
effective July 1, 2007. Under the MOU, Caltrans assumed the majority of
FHWA's responsibilities under NEPA, as well as FHWA's responsibilities
under other Federal environmental laws for most highway projects in
California. Caltrans' participation in the Pilot Program is effective
through August 2011 (23 U.S.C 327(i)(1)).
Scope of the Audit
This is the fourth FHWA audit of the Caltrans Pilot Program. The
on-site portion of the audit was conducted in California from July 27
through July 31, 2009. As required in SAFETEA-LU, each FHWA audit must
assess compliance with the roles and responsibilities assumed by the
Pilot State in the MOU. The audit also includes recommendations to
assist Caltrans in administering a successful Pilot Program.
The audit primarily focused on the continued review of compliance
with assumed responsibilities.
Prior to the on-site audit, FHWA conducted telephone interviews
with Federal resource agency staff at the U.S. Army Corps of Engineers
(USACE), the U.S. Fish and Wildlife Service (USFWS), the National Park
Service, the National Oceanic and Atmospheric Administration and the
Environmental Protection Agency regional office in California. The on-
site audit included visits to the Caltrans Offices in District 5 (San
Luis Obispo), District 7 (Los Angeles), District 11 (San Diego), and
District 12 (Irvine). Additionally, Caltrans legal staff was
interviewed in Sacramento and USACE office in Irvine was visited.
This report documents findings within the scope of the audit as of
the completion date of the on-site audit on July 31, 2009.
[[Page 9641]]
Audit Process and Implementation
The intent of each FHWA audit completed under the Pilot Program is
to ensure that each Pilot State complies with the commitments in its
MOU with FHWA. The FHWA does not evaluate specific project-related
decisions made by the State because these decisions are the sole
responsibility of the Pilot State. However, the FHWA audit scope does
include the review of the processes and procedures (including
documentation) used by the Pilot State to reach project decisions in
compliance with MOU section 3.2.
In addition, Caltrans committed in its Application (incorporated by
reference in MOU section 1.1.2) to implement specific processes to
strengthen its environmental procedures in order to assume the
responsibilities assigned by FHWA under the Pilot Program. The FHWA
audits review how Caltrans is meeting each commitment and assesses
Pilot Program performance in the core areas specified in the Scope of
the Audit section of this report.
The Caltrans' Pilot Program commitments address:
Organization and Procedures under the Pilot Program
Expanded Quality Control Procedures
Independent Environmental Decisionmaking
Determining the NEPA Class of Action
Consultation and Coordination with Resource Agencies
Issue Identification and Conflict Resolution Procedures
Record Keeping and Retention
Expanded Internal Monitoring and Process Reviews
Performance Measures to Assess the Pilot Program
Training to Implement the Pilot Program
Legal Sufficiency Review.
The FHWA team for the fourth audit included representatives from
the following offices or agencies:
FHWA Office of Project Development and Environmental
Review
FHWA Office of the Chief Counsel
FHWA Alaska Division Office
FHWA Resource Center Environmental Team
Volpe National Transportation Systems Center
USFWS.
During the onsite audit, FHWA interviewed 80 staff from the
Caltrans four District offices, Caltrans legal staff, and the USACE.
The audit team interviewed a cross-section of staff including top
senior managers, senior environmental planners, generalists, associate
planners, and technical experts. The audit team also reviewed project
files and records for over 45 projects managed under the Pilot Program.
The FHWA acknowledges that Caltrans identified specific issues
during its fourth self-assessment performed under the Pilot Program
(required by MOU section 8.2.6), and has established processes to
address most issues. Some issues described in the Caltrans self
assessment may overlap with FHWA findings identified in this audit
report.
In accordance with MOU section 11.4.1, FHWA provided Caltrans with
a 30-day comment period to review this draft audit report. The FHWA
reviewed comments received from Caltrans and revised sections of the
draft report, where appropriate, prior to publishing it in the Federal
Register for public comment.
Status of Findings Since Last Audit
As part of the fourth audit, FHWA evaluated the corrective actions
implemented by Caltrans in response to the audit findings in the third
audit report.
Most of the compliant findings in the third audit report involved
specific processes and procedures of the North and Central Region
offices. As these offices were not visited during this fourth audit, we
cannot report on the continuance of their compliance.
The FHWA reviewed the current status of ``Deficient'' and ``Needs
Improvement'' audit findings identified during the third FHWA audit in
January 2009.
``Deficient'' audit findings status:
1. Quarterly Reports--The quarterly reports Caltrans provides to
FHWA under section 8.2.7 of the MOU continue to include an inaccurate
listing of all approvals and decisions under the Pilot Program. This
continued area of deficiency was also reported by Caltrans in their
fourth self assessment.
2. Performance Measure--``Monitor relationships with Federal and
State resource agencies''--Caltrans reported in its fourth self-
assessment that a survey was conducted in early 2009 with those Federal
and State resource agencies that it works with on Pilot Program
projects.
3. Delegation of Signature Authority--This issue has been rectified
through issuance of clarifying direction to staff.
4. Assignment of Section 6002 Responsibility under the Pilot
Program--Caltrans has revised its Standard Environmental Reference
(SER) to correct and clarify the template letters for inviting
cooperating and participating agencies to participate in an EIS
project, as per section 6002 of SAFETEA-LU.
``Needs Improvement'' audit findings:
1. Quality Assurance/Quality Control (QA/QC) Certification
Process--Ongoing improvement was observed in the completion of the QC
certification forms. Nevertheless incorrect and incomplete QC
certification forms were still identified.
2. Self Assessment and Process Reviews--As per the suggestion of
this finding, the Caltrans fourth self assessment included review of
ongoing projects as well as completed projects.
3. Air Quality Conformity Determinations--The project files
reviewed during the fourth audit contained the necessary FHWA air
quality conformity determination documentation, where applicable.
4. Project Files/Uniform File System (UFS)--Some project files
reviewed during this audit met the requirements of Section 8.2.4 of the
MOU and SER Chapter 38 while other files reviewed did not meet these
requirements.
5. Commitment of Resources--Inconsistencies continued to be
observed with regard to charging time spent on pilot program activities
to the official Pilot Program code (6DELE).
6. Training on Air Quality Conformity--Caltrans reported in its
fourth self assessment that Air Quality training has been offered and
is to be provided in the upcoming training plan.
7. Assignments under the Pilot Program--Caltrans staff interviewed
indicated a better understanding of the SAFETEA-LU Section 6002 (23
U.S.C. 139) environmental review process requirements than indicated in
the third audit.
8. Performance Measure--``Monitor relationships with the general
public''--The fourth Caltrans self assessment reported a new process
for monitoring this performance measure had been implemented.
Monitoring of how the relationships are evolving is now being
conducted.
9. Documentation of Class of Action Determination--For projects
initiated under the Pilot Program, project files for class of action
determination reviewed during the fourth audit, contained this
documentation.
10. Local Assistance Training Plan--This finding was not revisited
as to its status during the fourth audit.
Effective Practices
The FHWA audit team observed the following effective practices
during the fourth audit:
1. One Caltrans District training coordinator implemented a system
to
[[Page 9642]]
capture and track which employees in that district completed online
training courses by creating and assigning a unique billing code for
time spent taking such courses. This training coordinator then manually
input this information into an employee's training plans.
2. In some Districts, electronic files are set up and organized to
mirror the UFS headings.
3. In one Caltrans District, new environmental staff are required
to attend an internal 23-day ``boot camp'' that introduces them to the
processes, procedures, and related information needed for their
position.
4. The use of a memorandum to the file with a complete explanation
of the circumstances and details regarding the ``down-scoping'' of a
project from an EIS to an environmental assessment (EA), or from an EA
to a CE.
5. Explanatory notes in a project file under one UFS tab stating
where the information for that tab is found filed under another tab
within the project file.
Findings Definitions
The FHWA audit team carefully examined Pilot Program areas to
assess compliance in accordance with established criteria in the MOU
and Application. The time period covered by this fourth audit report is
from the start of the Caltrans Pilot Program (July 1, 2007) through
completion of the third onsite audit (July 31, 2009) with the focus of
the audit on the most recent 6 month period. This report presents audit
findings in three areas:
Compliant--Audit verified that a process, procedure or
other component of the Pilot Program meets a stated commitment in the
Application and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in the
Application and/or MOU is not fully implemented to achieve the stated
commitment or the process or procedure implemented is not functioning
at a level necessary to ensure the stated commitment is satisfied.
Action is recommended to ensure success.
Deficient--Audit was unable to verify if a process,
procedure or other component of the Pilot Program met the stated
commitment in the Application and/or MOU. Action is required to improve
the process, procedure or other component prior to the next audit; or
Audit determined that a process, procedure or other component of
the Pilot Program did not meet the stated commitment in the Application
and/or MOU. Corrective action is required prior to the next audit. or
Audit determined that for a past Needs Improvement finding, the
rate of corrective action has not proceeded in a timely manner; is not
on the path to timely resolution of the finding.
Summary of Findings--July 2009
Compliant
C1) Legal Sufficiency Timeline--Caltrans' Legal Division has
developed a consistent process to conduct required legal sufficiency
reviews by attorneys (per 23 CFR 771.125(b) and 774.7(d)). Based on
interviews with staff and information provided during the audit, legal
reviews of NEPA and Section 4(f) of the U.S. DOT Act of 1966 (Section
4(f)) documents appear to be conducted within the times allotted by
Caltrans internal performance goals.
Needs Improvement
N1) Inadequate Guidance in the SER--Section 8.2.5 of the MOU
requires ``At a minimum, Caltrans' quality control and quality
assurance activities will include the review and monitoring of its
processes relating to project decisions, environmental analysis,
project file documentation, checking for errors and omissions, legal
sufficiency reviews, and taking appropriate corrective action as
needed.'' Several instances were identified where the guidance provided
in the SER was unclear, misleading, or incomplete. This resulted in
documents incorrectly completed and/or processes not implemented
correctly. Examples of such instances were:
a.) SER Chapter 38 requires that the SEP sign the Environmental
Document Review Checklist once it is completed. Review of project files
revealed Environmental Document Review Checklists that were either not
signed by a Senior Environmental Planner (SEP) or not signed at all.
Additionally, different versions of the checklist were found in various
project files, none of which designated which signature line was to be
completed by the SEP. These various instances of noncompliance with the
SER requirement were observed within individual Districts and also from
District to District.
b.) SER Chapter 38 guidance does not distinguish between the
``pilot program'' citation required to appear in individual Section
4(f) Evaluations prepared for Section 6005 CE projects and those
prepared for Section 6004 CE projects. The statement in the SER
regarding the project being carried out by Caltrans under its
assumption of responsibility pursuant to 23 U.S.C. 327 is only
applicable to Section 4(f) evaluations for Section 6005 CEs under the
Pilot Program. The CEs completed by Caltrans under the Section 6004 CE
assumption should refer to 23 U.S.C. 326. Through interviews and
project file reviews, confusion about this was identified and, at least
in some cases, the apparent misunderstanding that the same language is
to be used for both Section 6004 and Section 6005 CEs with individual
Section 4(f) evaluations.
c.) SER Chapter 33 discusses the process and documentation for
conducting NEPA re-evaluations (to comply with 23 CFR 771.129). The
chapter, last updated November 10, 2008, does not provide clear
direction on how to process a re-evaluation under the Pilot Program.
The chapter includes a reference to a joint FHWA/Caltrans guidance on
NEPA consultation and re-evaluation, dated June 21, 2007, that states,
``When the NEPA Pilot Program (NEPA assumption) begins, the joint
guidance and the NEPA/CEQA Revalidation form will be revised as
necessary.'' The FHWA/Caltrans joint guidance has not been revised to
take the Pilot Program into consideration. There is a link to a review
form that matches the form contained in the joint FHWA/Caltrans
guidance and has FHWA removed as having approval authority; however,
there is no guidance on the appropriate use of the form.
d.) SER Chapter 25 references FHWA Order 6640.2 FHWA Actions to
address Environmental Justice in minority and Low-Income Populations;
however, the flowchart and guidance provided in that chapter do not
fully reflect the definition of Disproportionately High and Adverse
Effect on Minority and Low-Income Populations provided in that Order,
nor does it clearly state the need to identify population served and/or
affected by race, or national origin, and income level when determining
such effects. The SER chapter provides discussion points and some
sources for reference material, but does not provide specific guidance
to NEPA practitioners for how to integrate a project level review into
a NEPA process, to document proposed steps to guard against
disproportionately high and adverse effects, or to document meaningful
public involvement opportunities and consider the results.
N2) Procedural and Substantive Requirements--MOU Section 5.1.4
states that Caltrans will work with all other appropriate Federal
agencies concerning the laws, guidance, and policies that such other
Federal agencies are responsible for administering. Areas in need of
improvement in working with Federal agencies included:
[[Page 9643]]
a.) Through interviews with USACE and USFWS staff located in
California, instances were identified where there was confusion as to
the implementation of the Endangered Species Act (ESA) Section 7
process and how it is related to the USACE permitting process. Verbal
comments were made by resource agency staff that when working on local
agency projects, the local project sponsors lacked clarity on the
information regarding the ESA Section 7 compliance needed for the USACE
permitting process. It was also learned that on more than one occasion,
local agencies inappropriately acted as lead agency for ESA Section 7
consultation and Section 404 of the Clean Water Act coordination.
b.) The SER Chapter 38, Consultation and Coordination with Federal
Agencies, requires Caltrans to include the following specific language
in consultation documents being transmitted directly to Federal
resource agencies:
Caltrans is [transmitting/initiating * * * (describe product or
action)] as the NEPA lead agency under the provisions of the
Memorandum of Understanding (MOU) between the Federal Highway
Administration and the California Department of Transportation
Concerning the State of California's Participation in the Surface
Transportation Project Delivery Pilot Program, which became
effective on July 1, 2007. The MOU was signed pursuant to Section
6005 of the 2005 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which
allows the Secretary of Transportation to assign, and the State of
California to assume, responsibility for FHWA's responsibilities
under other Federal environmental laws. As this project is covered
by the Pilot Program MOU, FHWA has assigned and Caltrans has assumed
FHWA responsibility for environmental review, consultation, and
coordination on this project. Please direct all future
correspondence on this project to Caltrans.
A letter in a project file from Caltrans to USFWS requesting
initiation of formal ESA Section 7 consultation did not include the
required language regarding the responsibilities assumed by Caltrans.
N3) Section 4(f) Documentation--MOU Section 5.1.1 affirms that
Caltrans is subject to the same procedural and substantive requirements
that apply to the DOT in carrying out the responsibilities assumed
under the Pilot Program. Through project file reviews and interviews
with Caltrans staff, inconsistencies were identified with the
documentation required in carrying out the Section 4(f) provisions.
These included:
a.) For one project, no documentation was provided in the EA or in
the project file to support the assertion that ``[t]emporary uses do
not normally constitute `use' under Section 4(f) policy.'' The FHWA
regulation regarding ``temporary occupancies of land,'' 23 CFR
774.13(d), states in pertinent part that there must be documented
agreement with the official with jurisdiction over the Section 4(f)
resource that the requisite conditions have been met. 23 CFR
774.13(d)(5).
b.) Two project files that together contained inadequate
documentation of three potential Section 4(f) resources were
identified. Documentation did not fully support statements that these
resources were not, in fact, Section 4(f) resources. In one case, the
official with jurisdiction even disputed the statement in the
environmental document that the subject property was not a Section 4(f)
resource and provided information to support a Section 4(f) resource
identification. In another document, there was an implied de minimis
effect by the use of the term; however, no supporting documentation was
provided, nor was there any evidence of public involvement or
coordination with the officials with jurisdiction over the Section 4(f)
resource, as required by 49 U.S.C. 303(d) and 23 CFR 774.7(b).
c.) In four project files reviewed during the audit, documentation
did not reflect that the current Section 4(f) regulations are being
adhered to in all NEPA processes. In these four projects, references
were made to the prior FHWA regulations at 23 CFR 771.135 rather than
to the updated regulations at 23 CFR Part 774.
N4) Circulation of a Draft Section 4(f) Evaluation--Project file
reviews and interviews with Caltrans staff identified confusion as to
the requirements for the circulation of the Section 4(f) Evaluation to
the Department of the Interior (DOI) for review. In one instance,
Caltrans staff contacted the FHWA Division Office to determine
circulation requirements and documentation indicates that the Section
4(f) Evaluation was sent to FHWA for forwarding to DOI.
N5) Section 4(f) Implementation--MOU Section 5.1.1 requires
Caltrans to be subject to the same procedural and substantive
requirements that apply to the DOT when carrying out the
responsibilities it has assumed. Through project file reviews and
interviews of Caltrans staff, several inconsistencies with the
implementation and general understanding required in carrying out the
Section 4(f) provisions were identified. These include:
a.) Text in an EA that cited the Section 4(f) ``policy'' should
have referred to the Section 4(f) ``regulations.'' The correct citation
for this Section 4(f) Evaluation should have been the FHWA regulations,
23 CFR Part 774.
b.) Review of a final Environmental Assessment/Finding of No
Significant Impact (EA/FONSI) and project files revealed a lack of
understanding regarding the applicability of FHWA's Nationwide
Programmatic Section 4(f) evaluation for the rehabilitation or
replacement of historic bridges. Under the Programmatic, all five
criteria of applicability set forth in this programmatic must be met
and the explanation for meeting the criteria must be included in the
document and the project file (http://www.environment.fhwa.dot.gov/projdev/4fbridge.asp). In addition, the draft EA for this project
reached a Section 4(f) conclusion prior to executing the Section 106
MOU with the State Historic Preservation Office.
N6) Legal Division Staff--Caltrans' Legal Division consists of four
largely autonomous offices\2\ serving different regions of the State.
The MOU section 4.2.2 requires Caltrans ``to obtain adequate* * * staff
capability'' including ``without limitation* * * [d]emonstrating, in a
consistent manner, the capacity to perform Caltrans' assumed
responsibilities under this MOU and applicable Federal laws.'' As noted
in a previous audit report, Caltrans maintains a staff of attorneys in
each of the four offices trained to support the Pilot Program, and
tracks the training each of these attorneys receives related to
environmental law. The audit team notes that many of the attorneys
assigned to the Pilot Program have a great deal of general legal
experience; however, over the life of the Pilot it has become apparent
that the four legal offices vary widely when it comes to attorneys with
significant experience in Federal environmental law. During this audit,
it became clear that this inconsistency increased following the
retirement of a highly experienced attorney near the end of 2008. This
retirement has resulted in two of Caltrans' legal offices--each of
which serves some of Caltrans' largest and busiest Districts--having on
staff no attorneys with substantial experience in Federal environmental
law. It is the audit team's understanding that legal sufficiency
reviews are conducted independently within these autonomous offices,
increasing the potential that legal sufficiency reviews may be applied
in an inconsistent manner across the State.
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\2\ The four offices are located in Sacramento, San Francisco,
Los Angeles, and San Diego.
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N7) Training--Section 4.2.2 of the MOU requires Caltrans to
maintain adequate organizational and staff capacity to effectively
carry out the responsibilities it has assumed under Section 3 of the
MOU. The following inconsistencies were noted during interviews:
a.) Interviews and personnel training record reviews identified two
tools used by Caltrans to determine the capacity of Caltrans staff to
carry out Pilot Program responsibilities including a Learning
Management System (LMS) and Individual Development Plans (IDPs). The
audit team observed that these tools, and possibly others, are used in
varying ways and with varying success across Districts to (1) identify
training needs or gaps in areas of expertise and (2) plan and track the
training each employee receives. Given this variation and use of these
tools and approaches, it is unclear how District leadership ensures
that all Caltrans employees have the capacity to carry out assigned
responsibilities assumed under the Pilot Program and how this
information can be collected.
b.) Interviews reflected a lack of knowledge in two areas. As is
detailed in other portions of this audit report, several instances of
inadequate staff capacity for determining compliance process
requirements related to the Section 4(f) and ESA Section 7 processes
were observed during this audit. This is an example of a needed
competency that does not appear to be being met and/or being tracked.
As was also noted earlier in this report, there is varying
understanding of the re-evaluation process and requires additional
training for staff to be competent in the understanding of this
process.
c.) As the demand for and use of online training courses increases,
there is currently no consistent method for Caltrans to track which
employees have completed online training courses and to incorporate
this information into the LMS and into the employee IDPs. In order to
ensure that Caltrans employees implementing NEPA duties have the
knowledge and skills to assume the responsibilities under Section 3 of
the MOU, Caltrans should begin to track this information and also
determine which online training courses should be prerequisites for
performing certain NEPA assumption activities.
N8) Maintenance of Project and General Administrative Files--
Section 8.2.4 of the MOU requires Caltrans to maintain project and
general administrative files pertaining to its discharge of the
responsibilities assumed under the Pilot Program. Caltrans has
instituted specific procedures for maintaining project files and has
provided training on these procedures. Inconsistencies in the
application of these procedures, reported in previous audit findings,
were also identified in this audit. Inconsistencies in 12 of the 47
project files reviewed during the audit, including:
a.) Required project documentation was missing from several project
files. Examples of missing documentation included: a Biological
Opinion; ESA Section 7 concurrence documentation; internal and external
communications related to the project; letters from the District Local
Agency Engineer to the local agency transmitting the Preliminary
Environmental Study form with the list of the required technical
studies for the project; and noise abatement decision report.
b.) Some required file documentation missing from project files was
eventually located elsewhere in the District Office. Examples of items
missing from the project file, but brought to auditors upon request,
included cooperating agencies' letters, FHWA project level air quality
conformity determinations, Caltrans' noise abatement decision reports,
a project's Section 106 MOA, and evidence of the circulation of Section
4(f) documents to the DOI. Required documentation could not be located
during the audit.
c.) The required documentation according to 23 CFR
771.111(h)(2)(vi), which states that the State must provide
``transcript of each public hearing and a certification that a required
hearing or hearing opportunity was offered'' could not be located
during the audit. In two instances, the public hearing transcript was
not found nor was any certification (or other documentation) that a
hearing had been held.
d.) In several instances, project files were missing required UFS
tabs (though they contained pertinent documentation) and some sections
contained no information or explanation as to why the tabs were missing
or tab sections were empty.
N9) Varying Oversight/Analysis of Commitment of Resources --
Section 4.2.2 of the MOU requires that ``Caltrans will maintain
adequate organizational and staff capability, including competent and
qualified consultants where necessary or desirable, to effectively
carry out the responsibilities it has assumed under part 3 of this MOU.
This includes, without limitation:
[cir] Using appropriate environmental technical and managerial
expertise;
[cir] Devoting adequate staff resources; and
[cir] Demonstrating, in a consistent manner, the capacity to
perform Caltrans' assumed responsibilities under this MOU and
applicable Federal laws.''
Previous audits have tried to determine how Caltrans monitors its
resources to implement the Pilot Program, but based on audit
interviews, were unable to identify a uniform process. Through
interviews and material reviewed during this audit, it was determined
that the existing system used by Caltrans to track resources showed
inconsistent use of billing codes and in one case identified an error
not previously found by Caltrans. During the interviews with Caltrans
environmental personnel, inconsistencies continued to be identified in
the reporting and use of these Pilot Program codes. These
inconsistencies include:
(a) Lack of familiarity with the activities eligible to be billed
to the Pilot Program,
(b) Lack of supervisory direction as to what activities should be
billed to the Pilot Program;
(c) Failure to report all times eligible for billing under the
appropriate codes for both Capital and Local Assistance programs (codes
6DELE and 6LADELE, respectively);
(d) Varying degrees of oversight, or no oversight of the billing
codes for the Pilot Program performed in the Districts.
Deficient
D1) Quality Control Quality (QA/QC) Assurance--Under the Pilot
Program, and as reflected in the language cited on each environmental
document assigned to Caltrans per MOU Section 3.2.5, NEPA documentation
should reflect that FHWA has no role in the environmental review and
decisionmaking process for assigned projects. Through project file and
document reviews, three instances were observed where in a document or
in the project file, there were references to FHWA being involved in
the decisionmaking process.
D2) QA/QC Certification Process--Section 8.2.5 of the MOU and SER
Chapter 38 require Caltrans staff to review each environmental document
in accordance with the policy memorandum titled ``Environmental
Document Quality Control Program under the NEPA Pilot Program'' (July
2, 2007). Incomplete and incorrectly completed QC certification forms
continue to be identified. Five of the seven identified instances
occurred in 2008. Examples of these are:
a) Four instances in which review signatures on QA/QC forms were
not
[[Page 9645]]
obtained the proper sequence in accordance with the Caltrans
established QA/QC processes;
b) Three project files where QA/QC forms were either incomplete or
missing.
D3) Quarterly Reporting--MOU Section 8.2.7 requires Caltrans to
submit a report to FHWA each quarter for the first 2 years of Pilot
program listing all approvals and decisions Caltrans makes with respect
to responsibilities assumed under the MOU. Quarterly reports submitted
by Caltrans for the first eight quarters of Pilot program participation
were reviewed for this audit. Each of the first seven quarterly reports
has been revised; some reports have been revised multiple times. In
summary, for the first seven quarterly reports, a total of 63 new
projects were added in report revisions and 29 projects initially
reported were subsequently deleted. The reporting issues spanned across
the majority of districts reporting projects, and seven districts
submitted revisions to four or more quarterly reports. Inaccurate
project reporting has been a consistent issue affecting the quarterly
report process and has been identified in previous FHWA audit reports.
Among the errors discovered were reporting errors related to
incorrectly characterizing projects (e.g., CEs under Section 6004 and
Section 6005), and omissions associated with untimely reporting of
project approvals and decisions by district staff (i.e., a subsequent
quarterly report included a project that was approved in the previous
quarter). The approach used by each district to collect project
information for the quarterly reports is highly variable and is one key
contributor to continued reporting inaccuracies.
The current Caltrans approach to developing the quarterly reports
continues to be deficient. The accuracy of the reports on project
approvals and decisions affects FHWA oversight of the Pilot Program.
For example, if Caltrans does not report to FHWA a project being
administered under the Pilot Program, the project may not be included
in the audit process. Additionally, now that the FHWA onsite audit
process will move to an annual basis (semi-annual audits were required
during the first 2 years of the Pilot Program), the project approval
and decision reporting takes on increased significance as less in-field
auditing will occur.
Response to Comments and Finalization of Report
The FHWA received no comments during the 30-day comment period for
the draft audit report. Therefore, the FHWA feels that there is no need
to revise the draft audit report findings and finalizes the audit
report with this notice.
[FR Doc. 2010-4432 Filed 3-2-10; 8:45 am]
BILLING CODE 4910-22-P