NEPA Delegation: New Directions for TxDOT

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1 TxDOT Short Course October 16, 2013 NEPA Delegation: New Directions for TxDOT Cindy Adams, HDR

2 What is NEPA Delegation? Formal Assignment of responsibilities from Federal to State Government Assignment occurs through MOU, based on State application MOU: Officially approves State s application Identifies FHWA s and State s roles and responsibilities Defines Assignment requirements

3 Path to Entering Assignment Program Many elements involved: Waive sovereign immunity Identify desired scope Prepare application Adjust organization, as appropriate Negotiate MOU Develop policy, procedure, tools, checklists Train staff

4 Scope of Assignment Tremendous flexibility offered, from specific projects to the entire federal-aid highway program Texas poised to request broad responsibilities all projects on and off State Highway System Excluding specific projects requested by District Engineers and projects not eligible for assumption FHWA retains discretion on what to assign: it may withhold assignment of specific projects or responsibilities

5 Application Completing Application a top priority Application identifies Scope of program requested for Assignment Current & Proposed Organization Current & Proposed Procedures, Tools Roles and responsibilities Training Resources for program Application contents represent TxDOT s commitments to the program

6 Goals of NEPA Assignment Streamline environmental process Save time in project delivery Continue to meet stringent federal environmental protection standards Show TxDOT s leadership in transportation delivery

7 All Environmental Laws, Regulations, and Policies Remain The Same But TxDOT, not FHWA, will be legally responsible to ensure compliance Can be sued in Federal court State Highway System NEPA documents Local Roadway NEPA documents TxDOT required to comply with all FHWA NEPA regulations, policies, and formal guidance Streamlining comes from eliminating review layer, not from shortcutting legal requirements Penalty for not following requirements ranges from loss of federal funding for specific project to loss of NEPA Assignment

8 FHWA Keeps These Responsibilities Engineering decisions Air quality conformity determinations Government to government consultation with tribes US DOT responsibilities for statewide and metropolitan planning Multi-modal projects, unless requested through separate application

9 And Changes Roles Moving from project to program-level responsibilities, providing: Training support Technical assistance and policy interpretation Assignment Program audits Twice yearly for the first two years; once a year thereafter Process and Program reviews

10 Checks and Balances TxDOT must comply with all FHWA NEPA regulations, policies, and formal guidance Agencies & public will have opportunity to comment on application TxDOT will be solely responsible & solely liable for the responsibilities it assumes, and will defend all claims in Federal court FHWA will audit program including how well TxDOT meets specified performance measures U.S. Secretary of Transportation will submit annual reports to Congress

11 Key MOU Requirements TxDOT will maintain its project files, including for local roadway projects, and make them available for FHWA inspection with 5 days notice TxDOT will carry out regular QA and QC to ensure it is meeting the requirements of law and MOU TxDOT will maintain adequate organization and staff capability to effectively carry out NEPA Assignment TxDOT will report quarterly to FHWA on its approvals and decisions

12 More MOU Requirements FHWA will provide no project-level assistance TxDOT will perform self-assessments at least every 6 months Determine if its processes are working properly, identify weaknesses, and take corrective action TxDOT to provide a summary of the selfassessment to FHWA FHWA will reassume authority for any project it determines TxDOT is out of compliance with MOU

13 Audit Issues TxDOT will need to effectively document its decisions For audit purposes, If it s not documented, it didn t happen Quality of record keeping this may be difficult adjustment for some staff TxDOT will need to demonstrate it has followed its own required procedures as well as FHWA requirements

14 Audit Lessons Learned FHWA acutely focused on the details of identified procedures Files must be kept in good order following requirements Must follow the letter of QC requirements and document review procedures for compliant findings No environmental document may be signed until all reviews are completed & documented

15 NEPA Assignment Benefits More efficient environmental review process Timesaving will result from eliminating one layer of government review Improved timeframe for project letting Streamlines consultation processes by Allowing direct formal consultation between TxDOT and federal resource agencies Reducing consultation parties from three to two, making consultation more efficient Increased focus on local decision-making Opportunity to be in forefront of new approach

16 Assignment Program Risks TxDOT will take on legal liability for decisions TxDOT attorneys will defend actions & decisions in Federal court For project both on and off State highway system No more FHWA backstop ; black hat Can be politically difficult to make right decision Penalty for poor performance ranges from Deficient findings in Federal Register to loss of assignment program

17 Assignment Program Creates New Model Change from end-check to built-in quality TxDOT and FHWA agree on program standards Established in Application and MOU TxDOT performs work, prepares and approves environmental documents Environmental documents conform to mutually established standards and expectations FHWA audits program to ensure it meets requirements & is generally successful

18 Program Success TxDOT will develop a successful program, based on Skilled & dedicated environmental staff 40+ years of preparing NEPA documents for FHWA Careful quality control Tools, guidance, & staff support Commitment to training, & to sharing best practices between Districts Learning from audits and self-assessments

19 We Need your Help Need ideas and input from Districts in developing the program and its procedures Need your support in following procedures that are established

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