This section will provide case studies on implementation of MAP-21 provisions related to project delivery, NEPA review, and environmental provisions.
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.
|Texas DOT employees receive NEPA assignment training. Photo: TxDOT|
For Texas, the new authority brings the following benefits:
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 Carlos.Swonke@txdot.gov or go to http://www.txdot.gov/inside-txdot/division/environmental/nepa-assignment.html.
In addition, see materials from AASHTO’s 2015 Peer Exchange on NEPA assumption.
Provisions of the Moving Ahead for Progress in the 21st Century Act (MAP-21) that allow environmental impact statements and record of decision documents to be combined for transportation projects have achieved significant time savings for Washington State DOT, according to the agency.
The authority to issue one combined document have saved approximately 60 days to 90 days for the first two projects for which the agency used it, state officials report.
The authority was enacted as a streamlining provision under Section 1319 of MAP-21. In addition, the law authorized use of errata pages rather than a separate standalone final EIS if only minor comments are received on a draft EIS.
The provisions of MAP-21 were aimed at cutting the time required to process environmental documents for transportation projects.
WSDOT has published two combined FEIS/RODs under the new law: a Final Supplemental EIS and Record of Decision for the I-90 Snoqualmie Pass East project, and a Final Supplemental EIS and Record of Decision for the SR 167 Puyallup River Bridge project, according to WSDOT Policy Branch Manager Carol Lee Roalkvam.
For both projects, the combined EIS/ROD eliminated one round of document circulation and streamlined the cooperating agency and legal review. Each project saved approximately two to three months’ time, she said.
Additionally, the I-90 project team used the related streamlining measure which allows for a Draft EIS and errata page to suffice for a final EIS.
The I-90 team noted that the new processes used together took less time that it would have taken to prepare an Environmental Assessment/Finding of No Significant, according to Roalkvam. In one year, the team went from notice of intent, to Draft Supplemental EIS, to Final EIS/ROD.
“Many state DOTs are searching for examples of quality environmental documents,” Roalkvam said. “While every project is unique, I encourage state DOTs to look at the way the I-90 team applied the MAP-21 streamlining provision and the abbreviated FEIS format to prepare a concise, complete and readable document.”
|Washington State DOT combines final EIS, Record of Decision for I-90 Project. Photo: WSDOT|
Combined FEIS and ROD
Prior to MAP-21, FHWA and FTA were required by their own regulations and Council on Environmental Quality regulations to provide a waiting period of at least 30 days between publication of the FEIS and issuance of the ROD.
Section 1319(b) of MAP-21 overrode that requirement. It directs the lead agency to issue the FEIS and ROD as a single document “to the maximum extent practicable,” unless one of the following conditions is met:
FHWA and FTA issued interim guidance implementing Section 1319 on Jan. 14, 2013. The interim guidance calls for a case-by-case determination as to whether it is “practicable” to issue a combined FEIS and ROD. The guidance also directs FHWA Division Offices and FTA Regional Offices to consult with headquarters before issuing a combined FEIS/ROD.
‘Errata Pages’ Format for FEIS
MAP 21 also clarified that the lead agency can issue an FEIS that consists of “errata pages” -- rather than a complete, stand-alone document -- if the agency received only “minor comments” on the Draft EIS.
This flexibility existed under the CEQ regulations even before the enactment of MAP-21. Section 1319(a) confirms that this format is acceptable.
It also requires that errata pages “(1) cite the sources, authorities, or reasons that support the position of the agency” and “(2) if appropriate, indicate the circumstances that would trigger agency reappraisal or further response.”
In the Jan. 14 guidance, FHWA and FTA described the information that should be included in errata pages, and confirmed that this documentation must undergo the legal sufficiency review required for an FEIS under 23 CFR 771.125.
For more information, link to the I-90 project documents on the WSDOT website at http://www.wsdot.wa.gov/Projects/I90/SnoqualmiePassEast/I90FinalSEISandROD.
The Puyallup River Bridge documents are available at http://www.wsdot.wa.gov/Projects/SR167/PuyallupRiverBridge/Environmental.htm.
Additional information is available from Carol Lee Roalkvam, Policy Branch Manager, WSDOT, at RoalkvC@wsdot.wa.gov.
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