Feb. 11 Update: I’ve included the actual Power Point Presentation below.
Below are my notes from the CTAEP February meeting entitled “FHWA Every Day Counts Initiative and Related TxDOT Efforts”.
The presenter was Dianna Noble, Director of TxDOT’s Environmental Affairs Division. Dianna’s talk focused not on streamlining (because everyone is tired of “streamlining” efforts in environmental planning) but on how TxDOT is striving to make the environmental process predictable, efficient and effective.
I’m glad I was able to catch this presentation, because it sounds like much has changed and is changing since I was at TxDOT ENV. I’ll try to get a copy of Dianna’s PowerPoint presentation and share it as well. Please forgive iPad typos.
My Notes on New TxDOT ENV Processes To Reduce Time to Deliver Projects by 50%
Federal Highway Administration (FHWA) Every Day Counts Initiative
In October, state Departments of Transportation or DOTs (including TxDOT) meet with FHWA. FHWA asked the DOTs to identify areas to focus on to accomplish the goal of reducing the “time to deliver projects” by 50%. Note: time to deliver projects includes areas other than just environmental processes (i.e. right of way). The following are areas that TxDOT has identified to focus on to accomplish the goal of reducing time to deliver projects by 50%.
Planning and Environmental Linkages
Metropolitan Planning Organizations (MPOs) are doing regional analyses of environmental issues (outside of NEPA). TxDOT is looking at working with MPOs. Specifically, what can and should the MPOs be doing, and how can state DOTs use the MPO environmental analyses?
For example, MPOs have resource specific studies, such as the Houston District Potential Archeology Liability Map (PALM). PALM is a predictive model based on soils in the area that helps determine what areas need archeology survey or don’t need an archeology survey. PALM reduces the number of field surveys and saves time.
New TxDOT processes require MPO resource studies and corridor studies to be included in NEPA analysis. See below for more information about new TxDOT processes.
Expanding Programmatic Agreements
Programmatic agreements set expectations (such as what projects have to go to FHWA, what information has to be included in documents, and how many days it will take to return comments). TxDOT has 27 programmatic agreements, 14 of which are with tribes.
An example of a programmatic agreement is the Memorandum of Understanding (MOU) with the Texas Historical Commission (THC). This MOU establishes a review time of 20 days for THC (10 days shorter than required by law), and allows TxDOT ENV staff to approve certain projects. TxDOT is currently working on programmatic agreements with US Fish and Wildlife and updating the Texas Parks and Wildlife agreement.
Expanded use of in lieu fees and mitigation banking
This push represents a programmatic approach to mitigation. For example, all stream impacts in the Dallas-Fort Worth (DFW) area are done by the Nature Conservancy. So if a TxDOT project impacts a stream in the DFW area, TxDOT pays the Nature Conservancy.
Currently, TxDOT has 3 mitigation banking instruments. These advanced banking instruments can speed up the mitigation process. Also, TxDOT is working on developing standard operating procedures for completing Section 7 process under the Endangered Species Act.
Enhanced technical assistance ongoing EISs
TxDOT looking to enhance interagency coordination. One example is TxDOT’s and FHWA’s interim One and Done Policy, which focuses on quality in production and decreasing the number of comment review cycles.
Another example is the Common Comments documents, which is a log of comments that are made over and over again on environmental documents (the Common Comments document is not finalized yet).
Another example is categorizing comments as editorial, substantive or critical. An editorial comment is a technical writer or grammatical issue. A substantive comment is a professional opinion disagreement, and it’s important for these issues to be discussed as part of the administrative record even if the document itself is not revised. Finally, a critical comment must be addressed. A critical comment is important enough for a meeting to be called to resolve the issue.
Revised environmental framework (New TxDOT ENV Process)
For example, environmental risk screening assessments will be required early in the project. Other examples include gathering planning documents, resource specific studies and corridor feasibility studies as part of the NEPA process. Also, an environmental compliance act plan must be developed to promote environmental planning.
Legal sufficiency enhancements
- Consult with FHWA environmental attorneys at early decision points.
- Dianna says in her opinion one should assume every project will be sued.
- ENV process now includes reviews by council for high risk projects.
Flexibilities in Right of Way Acquisition
- Standards of Uniformity regarding advance row purchase
- Working on Standards of Uniformity/Standard Operating Procedure for easements and utility adjustments
- Interesting Note: indirect and cumulative impact when you dig out and adjust utilities because of a project (TxDOT has been sued on this issue in the past)
What if the Texas Historical Commission isn’t funded by the legislature?
California faced this exact issue. Caltrans had to hire more historians. TxDOT currently has 2 SHPO staff: 1 archeologist and 1 historian.
How will the new TxDOT ENV processes impact current projects in system? Will those projects need to be revised to follow the new processes?
The new processes are expected to be rolled out later in February, and tools and documents should be rolled out after that. If a project is currently in back and forth with FHWA, then a risk assessment (part of the new process) should be done only on those issues that FHWA is commenting on. The goal of the risk assessment would be to stop back and forth on comments.
Sometimes, there are no technical documents provided that support a conclusion. FHWA needs to understand how a decision was made. One common FHWA comment is that statement X in the document are not properly supported (i.e. “There are no wetlands in the area.” How do you know there are no wetlands in the area? Who surveyed the area? What did that person see in the area?).
What is the Likelihood that I35 and 130 will be “swapped” and 130 will be the business route and I35 will be tolled?
TxDOT formed advisory panels of local government officials and the public. The My 35 pannel suggested that if you can’t get the trucks off I35, then make 130 the business route and toll I35. At this time, it is unknown how likely this scenario is. There are restrictions to tolling an interstate.
The statewide PALM (Potential Archeology Liability Map) is coming in the future.
Projects that are likely to be Sued
- Tolling because of environmental justice issues
- Health Issues related to air pollution (because right or wrong transportation is commonly understood to be a major contributor of greenhouse gases)
Upcoming Trends in Projects Likely to be Sued
Council of Environmental Quality (CEQ) released 2 new guidance documents: 1. Categorical Exclusion guidance and 2. Monitoring Mitigation guidance. Lawsuits on these two issues are likely. The CEQ has indicated that the permit applicant is responsible for the success of the mitigation effort (i.e. Did you say that you were going to do wetland mitigation? Now are those wetlands viable?).
Thus concludes my notes on the presentation. Let me know if you have any questions in the comments. Also, if you were at the presentation and I didn’t get a detail quite right, please let me know that as well.