The Texas Department of Transportation’s (TxDOT) assumption of authority for the Federal Highway Administration’s (FHWA) responsibilities for environmental review and approval is providing multiple streamlining benefits, saving time and money in the review process while still protecting the state’s natural resources.
TxDOT is the second state transportation agency in the nation to assume full environmental review authority from FHWA. California Department of Transportation (Caltrans) was the first to take on the role under a pilot program launched under the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Then, under MAP-21, the program was expanded and made permanent. Ohio Department of Transportation (ODOT) became the third state in December 2015. Four other state transportation agencies are in the process of applying for NEPA assignment: Alaska, Florida, Idaho, and Utah. In addition, Utah and Alaska have Categorical Exclusion-level assignment under the pilot program.
In late 2015, TxDOT marked its one year anniversary in the program and has been “pleased with the results so far,” said Carlos Swonke, Director of the agency’s Environmental Affairs Division.
For Texas, the new authority brings the following benefits:
- provides time and cost savings;
- eliminates a layer of review;
- involves no reduction in environmental considerations;
- allows direct consultation between TxDOT and federal regulatory agencies;
- enables quick turnaround time for project decisions; and
- allows for more control of project planning and scheduling.
Contents of the MOU
Details on the new authority are spelled out in a Memorandum of Understanding (MOU) the two agencies developed and signed in 2014. The MOU sets forth how TxDOT will implement the Surface Transportation Project Delivery Program (sometimes referred to as the NEPA Assignment Program) under MAP-21. The MAP-21 provisions enable all state transportation agencies to apply to be assigned federal environmental review authority from the FHWA under the National Environmental Policy Act and other environmental laws. TxDOT requested, and was granted, the full authority under the program with the exception of three projects that remained with FHWA as the lead agency.
TxDOT’s NEPA review responsibilities include determining, for individual projects, whether potential impacts merit an environmental impact statement, an environmental assessment, or a categorical exclusion. For Texas, determinations for categorical exclusion-level projects are done at the district (regional) level. Projects involving environmental impact statements or environmental assessments are coordinated, reviewed, and approved at the division (central) office level.
Besides these NEPA review responsibilities, TxDOT also has taken on some of FHWA’s responsibilities for highway projects under other environmental laws. The laws include the Clean Water Act, Endangered Species Act and Historic Preservation Act. Notably, MAP-21 precludes states from taking on federal responsibility for government-to-government consultation with Indian tribes or for conformity determinations under the Clean Air Act. In addition, under the MOU, FHWA retains responsibility for projects that cross state lines and international boundaries.
Four performance measures are identified in the MOU: (1) compliance with NEPA and other Federal environmental statutes and regulations; (2) quality control and quality assurance for NEPA decisions; (3) relationships with agencies and the general public; and (4) increased efficiency and timeliness and completion of the NEPA process.
Swonke said that his agency’s MOU generally followed the Caltrans format. And now that it is in place, it appears that FHWA will be using it as something of a template for other states coming into the program.
Preparing for NEPA Assignment
To prepare TxDOT staff for the new role, he continued, the agency has established a more rigorous process for project review and documentation. It also has created time for training on topics such as documentation and records management, and has updated its NEPA-related manuals. In addition, the agency has instituted a robust quality assurance/quality control process. TxDOT also maintains close communication with its district offices on changes in laws or executive orders that may affect the new responsibilities. Finally, it intends to communicate regularly about its assignment activities to stakeholder organizations.
FHWA, for its part, has assumed the role of program oversight and review and issues progress reports to Congress. It also has taken on training and technical assistance. Under MAP-21, FHWA must carry out two audits annually during the first two years that a state DOT assumes NEPA assignment and once in the third and fourth year. The audits include identification of successful practices as well as opportunities for improvement. Thus far, TxDOT has conducted environmental approvals on more than 1,600 projects, with the majority of these being categorical exclusion determinations.
Application Process, Pluses and Minuses
TxDOT began to consider applying for the program in 2012 when there was talk about extending the pilot program but before MAP-21 was passed. When MAP-21 passed, TxDOT leadership gave the green light to take the first steps.
The formal process began with securing a limited waiver of sovereign immunity that the state legislature passed in the spring of 2013, said Swonke. Under the waiver, TxDOT NEPA actions and decisions could be subject to federal court jurisdiction.
Next, the agency wrote a letter to FHWA expressing its interest in taking on NEPA assignment. It circulated its draft application for assignment for public comment as well as its draft MOU. After considering feedback on both documents, the MOU was finalized and signed by TxDOT and FHWA on December 16, 2014, and TxDOT began to take on its new responsibilities.
Benefits and Advice
As a result of taking on NEPA Assignment, Swonke said, TxDOT has made its review and approval process much more systematic, which provides greater consistency. In addition, the requirement for the state agency to have a self-assessment program has yielded a wide range of insightful information that is used to measure and improve the program.
He had one major suggestion for other state DOTS contemplating seeking NEPA assignment: early on, take an inventory of your technical expertise and the tools in hand that will guide your process. Both need to be up to the challenge of making decisions independently.
Just after the one-year point, Swonke said TxDOT’s program was still adapting to the change. “I am hoping the majority of our evolution will be complete a year from now,” he said.
For more information, contact Carlos Swonke, Director, TxDOT Environmental Affairs Division, at [email protected] or go to http://www.txdot.gov/inside-txdot/division/environmental/nepa-assignment.html.
In addition, see materials from AASHTO’s 2015