Highway and Transit Projects: Evaluation Guidance Needed for States with National Environmental Policy Act Authority

Since 2005, over 30 provisions have been enacted in law to speed up the delivery of highway and transit projects, mainly by streamlining the NEPA review process. NEPA requires federal agencies to evaluate the potential environmental effects of proposed projects on the human environment. These project delivery provisions included new categorical exclusions to streamline the review process, and a provision allowing DOT to assign federal NEPA approval authority to states.

Congress included provisions in statute for GAO to assess the use of these provisions and whether they have accelerated project delivery. This report examines: (1) which project delivery provisions were used by state DOTs and selected transit agencies and the reported effects, and (2) the extent to which DOT has assigned NEPA authority to states and the reported effects, among other objectives. GAO surveyed all state DOTs and interviewed federal and state DOT officials and 11 selected transit agencies GAO determined were likely to have been affected by the provisions, and analyzed information from NEPA assignment states.

The Department of Transportation's (DOT) Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) are responsible for National Environmental Policy Act (NEPA) compliance on highway and transit projects. Project sponsors that receive federal funds, typically a state DOT or transit agency, develop documents necessary for NEPA compliance for FHWA and FTA to evaluate and approve. Project sponsors prepare an environmental impact statement (EIS) when a project will have a significant environmental impact, or an environmental assessment to determine if a project will have a significant impact. Projects that fit within a category of activities pre-determined to have no significant impact (such as repaving a road) can receive a categorical exclusion, and an EIS or environment assessment is generally not needed. GAO found:

State DOTs and selected transit agencies reported using provisions enacted in law to speed up the delivery of highway and transit projects, and while state DOTs reported that a number of provisions they used sped up delivery of highway projects, the effects on transit projects were less clear. For example, according to GAO's survey responses, 10 of 17 provisions that mainly created new “categorical exclusions” were used by 30 or more state DOTs and generally sped up projects. The provision state DOTs and transit agencies most often reported using was one that authorizes parkland or a historic site to be used for a transportation project if that project has a minimal impact on the environment. A majority of the 11 transit agencies GAO reviewed were not clear whether provisions they used sped up project delivery because these agencies did not track how long it took projects to complete the NEPA process, among other reasons.

DOT assigned NEPA authority to six states: Alaska, California, Florida, Ohio, Texas, and Utah. Under agreements with FHWA, state DOTs calculate time savings by comparing NEPA completion times before (the baseline) and after assuming the authority. Only California and Texas have reported results; California reported that it reduced EIS review time 10 years from a 16-year baseline. However, these reported time savings are questionable because the comparisons do not consider other factors, such as funding, that can affect timelines. In establishing baselines, both states have also faced challenges, such as how many and which projects to include. California reported to its legislature that its baseline may not be meaningful because of the relatively small sample of five projects, but nevertheless presents these data on its web site as evidence of “significant” time savings.

FHWA does not review the states' timeliness measures and time savings estimates, but has broad authority to offer guidance and technical assistance, which can include helping states develop sound evaluation methodologies and baselines. FHWA officials stated that they provide general technical assistance, but that no state has requested help developing evaluation methodologies. Offering and providing such assistance could help ensure that states considering applying for NEPA assignment base their decisions on reliable information, and that FHWA and Congress have reliable information to assess whether NEPA assignment results in more efficient environmental reviews.

FHWA should offer and provide guidance or technical assistance to NEPA assignment states on developing evaluation methodologies, including baseline time frames and timeliness measures. DOT partially concurred with the recommendation, saying it would clarify environmental review start times. GAO continues to believe further evaluation guidance is needed, as discussed in the report.

The National Environmental Policy Act of 1969 (NEPA)—which requires  federal agencies to evaluate the potential environmental effects of  proposed projects on the human environment—has been identified by  critics as containing time-consuming requirements and praised by  proponents for, among other things, helping protect the environment and  bringing public participation into the government’s decision making. The  Department of Transportation’s (DOT) Federal Highway Administration  (FHWA) through its division offices in each state and the Federal Transit  Administration (FTA) through its 10 regional offices are the federal  agencies responsible for NEPA compliance on highway and transit  projects, respectively. Project sponsors—typically a state department of  transportation (state DOT) or a local transit agency—receive FHWA and  FTA grant funds, oversee the construction of highway and transit projects,  develop the documents on which FHWA and FTA base their evaluations  of environmental effects, and collaborate with federal and state  stakeholders. In short, project sponsors generally prepare the documents  necessary for NEPA compliance, while the federal agencies must  ultimately approve the documents. In this report we refer to these  activities collectively as “environmental review” or “NEPA review.”

We have previously reported that environmental review is one of a  number of factors affecting the time frame for completing transportation  projects (delivery). The past three surface transportation  reauthorizations—the Safe, Accountable, Flexible, Efficient  Transportation Equity Act: A Legacy for Users (SAFETEA-LU) in 2005;  the Moving Ahead for Progress in the 21st Century Act (MAP-21) in 2012;  and the Fixing America’s Surface Transportation Act (FAST Act) in  2015—contain a number of provisions, called “project delivery  provisions”—aimed at accelerating the delivery of highway and transit  projects, mainly by streamlining the NEPA review process. These  provisions include, for example, the NEPA Assignment Authority  provision, which provides authority for the relevant DOT administration,  under certain circumstances, to assign federal NEPA authority to states  and thereby eliminate the federal approval role with respect to individual  projects. In this case, FHWA and FTA are the relevant DOT  administrations to assign NEPA authority to states for highway and transit  projects, respectively.

MAP-21 and the FAST Act included provisions for GAO to assess, among  other things, whether project sponsors have used the project delivery  provisions and the extent to which the provisions have sped up the  delivery of highway and transit projects. This report:  identifies provisions aimed at accelerating the delivery of highway and  transit projects that were included in the last three surface  transportation reauthorizations; examines which provisions were used by state DOTs and selected  transit agencies and the provisions’ reported effects, if any, on  accelerating the delivery of projects; and evaluates the extent to which DOT has assigned NEPA authority to  states and the reported effects.

In addition, in appendix I, we identify available information on the number  and percentage of the different types of NEPA reviews and the costs of  conducting NEPA reviews.

To address the first objective, we reviewed the past three surface  reauthorizations to identify highway and transit project delivery provisions  and categorized these provisions. To determine states’ use and reported  effects of the provisions on highway projects, we surveyed state DOTs  within all 50 states, the District of Columbia, and Puerto Rico. We had a  100 percent response rate. Based on the survey results, we conducted  follow-up interviews with officials from 10 state DOTs to discuss their  perceived effects of the provisions in greater detail. We selected these  state DOTs to include geographically diverse states and states that  reported varying levels of use of the provisions and effects. To determine  use and the perceived effects of the provisions applicable to selected  transit projects, we selected 11 transit agencies and interviewed officials  at those agencies. We selected these agencies based primarily on the  number of times they issued a notice of intent to prepare an  environmental impact statement (EIS) in the Federal Register from 2005  through 2016 to identify those transit agencies that may have experience  preparing EISs or some another NEPA review and experience using  transit project delivery provisions. We also considered other factors, such  as ridership and geographic location, to select the 11 transit agencies.  The results of the states’ and transit agencies’ interviews are not  generalizable.

To evaluate the extent to which DOT has assigned NEPA authority to  states, and the effects states have reported from assuming NEPA  authority, we identified the states that have been assigned NEPA  authority, based on information from FHWA, and interviewed state DOT  officials in those states. However, we did not include one of these states  because that state did not assume NEPA authority until November 2017.  For the states we included, we interviewed state DOT officials and  reviewed relevant documentation including memorandums of  understanding and analyses the state DOTs conducted on NEPA  assignment authority, such as methodologies for calculating NEPA  assignment time savings. In addition, we interviewed FHWA officials  about procedures to oversee the performance of NEPA assignment  states and interviewed FHWA division officials from those states. We  compared FHWA’s procedures to oversee NEPA assignment states  against standards for information and communication contained in  Standards for Internal Control in the Federal Government.

To determine available information on the number and percentage of the  different NEPA reviews and costs of conducting NEPA reviews for  highway and transit projects, we reviewed relevant publications,  documents, and analyses, and discussed these with FHWA and FTA  officials.

For all objectives, we interviewed agency officials and stakeholders  involved in highway and transit projects including FHWA, FTA, and  relevant transportation and environmental organizations. We conducted  this performance audit from August 2016 to January 2018 in accordance  with generally accepted government auditing standards. Those standards  require that we plan and perform the audit to obtain sufficient, appropriate  evidence to provide a reasonable basis for our findings and conclusions  based on our audit objectives. We believe that the evidence obtained  provides a reasonable basis for our findings and conclusions based on  our audit objectives. For more information on our objectives, scope, and  methodology, see appendix II.

FHWA and FTA fund and oversee highway and transit projects,  respectively. FHWA funds highway projects through formula grants to  state DOTs, provides technical expertise to state DOTs, and conducts  oversight of highway projects through its division offices in each state.  FTA funds a variety of transit programs through formula and competitive  grants and conducts oversight of transit projects’ planning and design  through 10 regional offices. Completing major highway and transit  projects involves complex processes that depend on a wide range of  stakeholders conducting many tasks. Project sponsors—the state DOTs  and local transit agencies—are the entities that develop the  environmental review documents to be approved by the federal agencies.  Examples of highway projects that may undergo environmental review  are bridge construction or roadway repaving, and examples of transit  projects include extension of light rail lines or construction of passenger  ferry facilities. Project sponsors that do not use federal funds for a project  generally do not need to meet NEPA requirements, but may still need to  satisfy state or local environmental review requirements.

As we have previously reported, highway projects typically include four  phases, and transit projects also follow similar processes.  1.  Planning: Project sponsors assess the need for a project in relation to  other potential transportation needs.  2.  Preliminary design and environmental review: Project sponsors  identify potential transportation solutions based on identified needs,  the potential environmental and social effects of those solutions, a  project’s cost, and construction location. They then analyze the effect,  if any, of the project and potential alternatives on the environment.  Based on the analysis as well as public input the preferred alternative  is selected.  3.  Final design and right-of-way acquisition: Project sponsors finalize  design plans and, if necessary, acquire private real property for the  project right-of-way and relocate any affected residents and  businesses.  4.  Construction: Project sponsors award construction contracts, oversee  construction, and accept the completed project.

In the preliminary design and environmental review phase, many activities  are to be carried out by the project sponsor pursuant to NEPA and other  federal laws. NEPA’s two principal purposes are to ensure (1) that an  agency carefully considers detailed information concerning significant  environmental impacts and (2) that environmental information is available  to public officials and citizens before decisions are made and actions are  taken. For highway and transit projects, the project sponsor is  responsible for preparing documentation showing the extent of the  project’s environmental impacts, in accordance with NEPA, and  determining which of the three following documentation types is needed:

An environmental impact statement (EIS), the most comprehensive of  the three documentation types, is required for projects that have a  significant effect on the environment. In broad terms, the lead federal  agency, FHWA or FTA, starts the EIS process by publishing a notice  of intent in the Federal Register. The lead agency then must engage  in an open process—inviting the participation of affected government  agencies, Indian tribes, the proponent of the action, and other  interested persons—for determining the scope of issues to be  addressed and for identifying the significant issues related to a  proposed action. The lead agency then is to coordinate as appropriate  with resource agencies, such as the U.S. Army Corps of Engineers or  the Fish and Wildlife Service, solicit comments from the public on a  draft EIS, incorporate comment responses as appropriate into a final  EIS, and issue a record of decision.

Project sponsors are to prepare environmental assessments when,  among other things, it is not clear whether a project is expected to  have significant environmental impacts. An environmental  assessment is intended to be a concise document that, among other  things, briefly provides sufficient evidence and analysis for  determining whether to prepare an EIS. If the agency determines that  there are no significant impacts from the proposed action, then the  agency prepares a Finding of No Significant Impact that presents the  reasons why the agency made that determination. If the agency  determines the project may cause significant environmental impacts, it  conducts an EIS.

Categorical exclusions refer to projects that would not individually or  cumulatively have a significant effect on the environment. These  projects generally require no or limited environmental review or  documentation under NEPA. Examples of highway projects that are  generally processed as categorical exclusions include resurfacing  roads, constructing bicycle lanes, installing noise barriers, and  landscaping.

While FHWA and FTA are the federal agencies responsible for ensuring  NEPA compliance on highway and transit projects, if certain requirements  are met, FHWA or FTA may assign a state and that state may assume  federal NEPA authority. States assume this authority subject to the same  procedural and substantive requirements as would apply to FHWA or  FTA. Specifically, the NEPA Assignment Authority provision provides  authority for FHWA to assign federal NEPA authority to states for  approving an EIS, environmental assessment, or categorical exclusion.  States must apply to FHWA or FTA, which reviews the state’s suitability  to assume the authority based on meeting certain regulatory  requirements and the state’s capability to assume the responsibility.  States must enter into a written memorandum of understanding (MOU)  and must, among other things, expressly consent to the jurisdiction of  federal courts by waiving sovereign immunity for any responsibility  assumed for NEPA. The MOU is for a term of not more than 5 years and  is renewable. MOUs are unique to each state; however they all contain  certain sections such as assignments of authority, acceptance of  jurisdiction, and performance measures. For the first 4 years, FHWA is to  conduct an annual audit to ensure compliance with the MOU, including  compliance with all federal laws. After the fourth year, FHWA is to  continue to monitor state compliance with the MOU, using a more limited  review.

In prior reports, we identified a number of factors that can affect the  length of time required to complete transportation projects. For highway  projects, we found that the large number of stakeholders and steps  (which include environmental reviews) in the project delivery process,  availability of funding, changing priorities, and public opposition can lead  to longer project time frames. For transit projects, we found that local  factors specific to each project determine the project development time  frame, including the extent of community support and extent of local  planning prior to approval of funding. We found that for 32 projects we  reviewed, the environmental review process was tied with stakeholder  coordination as the third most frequently cited factor by transit project  sponsors contributing to the length of the project development process.

The Three Most Recent Transportation Authorizations Included Numerous Provisions for Accelerating Highway and Transit Project Delivery

We identified 34 project delivery provisions that apply to highway projects  and 29 such provisions that apply to transit projects. These provisions  are intended to streamline various aspects of the NEPA process, making  it more efficient and timely. Most of the provisions apply to both types of  projects. Based on our review, we grouped the provisions into four  general categories: Accelerated NEPA Review, Administrative and  Coordination Changes, NEPA Assignment, and Advance Planning (see  table 1). See appendix III for the full list and a description of each project  delivery provision we identified.

The Accelerated NEPA Review category’s provisions generally establish  certain conditions that permit projects, if the specific conditions are  applicable, to exclude certain actions from a more detailed NEPA review.  For instance, these provisions are primarily comprised of new categorical  exclusions. Additionally, the Minor Impacts to Protected Public Land  provision authorizes a historic site, parkland, or refuge to be used for a  transportation project if that project is determined to have a de minimis  impact on the environment.

The Administrative and Coordination Changes category’s provisions are  more process oriented. These provisions, for example: (1) establish time  frames for parts of the NEPA review process, (2) encourage the use of  planning documents and programmatic plans as well as a coordination  plan for public and federal agency participation in the environmental  review process, and (3) seek to avoid duplication in NEPA review  documents.

The NEPA Assignment category’s provisions authorize FHWA or FTA, as  discussed above, to assign their NEPA authority to states. The first of the  two provisions—the ‘NEPA Assignment Authority’ provision—authorizes  FHWA or FTA to assign federal NEPA authority to states for reviewing  EIS, environmental assessment, and some categorical exclusion reviews,  so long as the categorical exclusion does not require an air-quality review  that involves the Environmental Protection Agency. The second  provision—the Categorical Exclusion Determination Authority provision— allows FHWA or FTA to assign limited NEPA authority to states to review  categorical exclusions. This authority can apply to categorical  exclusions with air-quality reviews, as well as all other categorical  exclusions.

The Advance Planning category’s provisions are not part of the agency’s  environmental review process and are not applicable to transit projects.  These provisions allow for certain activities in the highway project  development cycle, such as land acquisition, to occur prior to NEPA  approval. The three provisions in this category include the following:

The Advance Design-Build Contracting provision permits a state to  release requests for proposals and award design-build contracts prior  to completing the NEPA process; however, a contractor may not  proceed with final design or construction during the NEPA process.

The Advance Acquisition of Real Property provision authorizes states  to acquire real property interests, such as land, for a project before  completion of the NEPA process.

The 2-phase Contracts provision authorizes the awarding of contracts  on a competitive basis for preconstruction services and preliminary  project design before the completion of the NEPA process.

Most of the project delivery provisions are optional, which we define to  mean that the relevant entities (a federal agency or state or local  transportation agency), can choose to use the provision if circumstances  allow. For example, a state highway project within an existing operational  right-of-way may have the option to use the categorical exclusion for  projects within an existing operational right-of-way. Specifically, 22 of the  34 highway project delivery provisions and 17 of the 29 transit project  delivery provisions are optional. By contrast, 12 provisions are  requirements for both highway and transit projects, which we define to  mean that federal agencies, or state or local transportation agencies that  are subject to a provision must adhere to the requirements and  obligations in the provision, if all the conditions for its use have been  satisfied. Required provisions are primarily contained in the  Administrative and Coordination Changes category. For example, for  highway projects, the Programmatic Agreements for Efficient  Environmental Review provision, enacted in 2012, requires FHWA to  seek opportunities with states to enter into agreements that establish  streamlined processes for handling routine projects, such as highway  repair. Prior to 2012, FHWA actively encouraged programmatic  agreements between state DOTs and FHWA division offices, but seeking  opportunities to enter such agreements were not required.

State DOTs Reported That a Number of Provisions They Used Sped Up Highway Project Delivery, While for Most Selected Transit Agencies Effects Were Unclear

More Than Half of Optional Provisions Were Reported to Be Used by a Majority of State DOTs on Highway Projects

According to survey responses, 10 of the 17 optional provisions included  in the survey—which primarily fall under the Accelerated NEPA Review  category—were each used by 30 or more state DOTs (see fig. 1). Fifty  state DOTs reported using the Minor Impacts to Protected Public Land  provision—the most of any of the provisions. Some of the less widely  used provisions—the 7 provisions reported to be used by 21 or fewer  states—only apply to specific circumstances or highway projects that  many state DOTs undertake less frequently. For example, the Categorical  Exclusion for FHWA-funded Ferry Facility Rehabilitation or  Reconstruction provision would only apply to states that operate ferry  services, a circumstance that may explain its relatively low use. Also, for  3 of these 7 provisions, 10 or more states reported that they plan to use  the provision in the future. For example, while 21 state DOTs used the  Reduce Duplication by Eliminating Detailed Consideration of Alternative  Actions provision, an additional 17 state DOTs reported that they plan to  use it. All of the optional provisions were reported to be used by at least  14 state DOTs.

Some states reported that they have not used certain provisions and have  no plans to do so. Our survey served as a nationwide review of the use of  the provisions and was not designed to determine why each state did or  did not use each provision. However, our discussions with selected states  and optional comments provided in the survey provided some additional  insight into states’ use of the provisions. Officials at some state DOTs  reported that they had not used certain categorical exclusions because  other categorical exclusions could also apply to those projects.  Specifically, officials in 4 state DOTs told us that they did not use 4  categorical exclusion provisions for this reason. For example, officials at  the Colorado DOT said that the Categorical Exclusion for Geotechnical  and Archeological Investigations provision has not been used in Colorado  because other categorical exclusions were more applicable. Similarly,  officials at the Oklahoma DOT said that they had not used the Categorical  Exclusion for Projects within the Existing Operational Right-of-Way  provision because most of those projects already qualify for a categorical  exclusion under other criteria. For other provisions, such as the  Categorical Exclusion for Multimodal Projects provision, some state  DOTs, such as the Nebraska DOT, indicated that they do not conduct  multimodal projects and have no plans to do so for the foreseeable  future.

About Two-Thirds of the Optional Provisions Reportedly Sped Up Highway Project Delivery for the Majority of Users

For 11 of the 17 optional provisions included in our survey, a majority of  state DOTs that indicated they used the provisions (users) reported that  the provisions sped up project delivery (see fig. 2).

Over 90 percent of users of the Minor Impacts to Protected Public Land  provision reported that it sped up project delivery (46 out of 50 state  DOTs using the provision). FHWA officials said that without the Minor  Impacts to Protected Public Land provision, a state DOT would need to  complete an environmental assessment to show that performing even a  small project, such as adding a small bus stop on the periphery of a park,  would not have significant effects on the environment. The Minor  Impacts to Protected Public Land provision now allows a state DOT to  complete transportation projects that have a minimal environmental effect  on historic sites and parklands more quickly because the state DOT can  bypass the environmental assessment process. In our survey and  discussions with state DOTs, some officials noted how much time the  provision can help them save. Officials at the Virginia DOT estimated  that a 9-month to 1-year review could be cut to 2 to 4 months. An official  at the Colorado DOT said that reviews that used to take 6 months now  take 30 days. And officials at the Mississippi DOT said that they used the  provision when adding turn lanes near parks and were able to bypass a  review process that previously took 6 to 12 months.

Other examples of sped-up project delivery provided by state DOTs  include the following:

Categorical Exclusion in Emergencies provision: Mississippi DOT  officials said that this provision has been helpful, particularly given  project delivery lessons learned since Hurricane Katrina. They said  the provision allows the state DOT to use a categorical exclusion,  which takes 6 to 8 months for some projects, in place of an  environmental assessment, which can take 12 to 18 months and  involves additional review steps such as providing evidence and  analysis as to why a project does not require an EIS.

Use of Federal Highway or Transit Funds to Support Agencies  Participating in the Environmental Review Process provision: Arizona  DOT officials said that the state DOT funds positions in the Army  Corps of Engineers and the Fish and Wildlife Service that help lessen  the time it takes for those agencies to provide comments on Arizona  DOT project’s NEPA reviews. The officials estimated these positions  reduce review time by about one month compared to when these  agencies did not have Arizona DOT-funded positions.

For the remaining six optional provisions, 41 to 58 percent of users  reported that the provisions had no effect on project delivery. Based on  discussions with selected state DOTs and comments included with survey  responses, officials at some state DOTs reported that the provisions did  not have any effect because the states had already developed similar  processes, either through programmatic agreements with their FHWA  division office or at their own initiative. As a result, the state DOTs did not  realize any new time savings after the provisions were enacted in law. For  example, for each of three provisions that allow for certain documentation  to be eliminated for categorical exclusions, officials at seven state DOTs  reported that they had already developed similar processes through  programmatic agreements with their FHWA division office. Further, five  state DOTs reported that the Early Coordination Activities in  Environmental Review Process provision had no effect because they  already had a similar coordination process in place. Some states used  such a process at their own initiative and others in conjunction with their  FHWA division office.

Among Required Provisions, about Three- Quarters of State DOTs Reported That “Programmatic Agreements” Helped Speed Up Highway Projects, While the Effects Are Mixed for Other Provisions

Of the 12 required provisions—which fall into the Administrative and  Coordination Change category—only the Programmatic Agreements for  Efficient Environmental Review provision was reported by a majority of  state DOTs (39) to have sped up project delivery (see fig. 3). For  example, officials at the Mississippi DOT reported that a programmatic  agreement with the FHWA division office can allow it to save 6 to 8  months when processing categorical exclusions for projects with minimal  right-of-way acquisition. They explained that they no longer had to wait for  the FHWA division office to process the categorical exclusion. As  previously discussed, prior to 2012, FHWA actively encouraged, but did  not require, programmatic agreements between state DOTs and FHWA  division offices. In interviews and optional comments from the survey,  officials reported that programmatic agreements, both those entered into  before and after the enactment of the provision, had sped up project  delivery. We did not determine the number of state DOTs that attributed  the speed up in project delivery to the 2012 provision, as opposed to  those who attributed it to the earlier programmatic agreements with their  FHWA division offices. All of the required provisions reportedly sped up  project delivery for at least 4 state DOTs.

For 5 of the 12 provisions, between 10 and 18 states responded that the  provisions sped up project delivery. For example, officials at the Ohio  DOT estimated that the Combine Final Environmental Impact Statement  and Record of Decision in Certain Cases provision saves them a  minimum of 3 months. For the remaining 6 provisions, between 4 and 7  states reported that the provisions sped up project delivery, but each of  these provisions also had at least 16 states that reported the provision  had no effect on project delivery. Our survey served as a broad-based  review of the effects of the provisions and was not designed to determine  why each provision had the reported effects; however, some states  provided voluntary comments in the survey. As with various optional  provisions, some state DOT officials reported no effect because the state  had already developed processes and practices that they said achieved  what the provisions formalized, for example:

Coordination Plan for Public and Agency Participation provision: In  discussions and from optional comments, 4 state DOTs said that they  already had a similar process in place. Officials at the Louisiana DOT  stated that they performed a similar process prior to the ‘Coordination  Plan for Public and Agency Participation’ provision’s enactment in law  in an effort to coordinate with the public and other government  agencies.

45-Day Limit to Identify Resource Agencies provision: In interviews  and optional survey comments, officials at 2 state DOTs said that they  already had a similar process in place to promptly identify stakeholder  agencies.

Issue Resolution Process provision: Wyoming DOT officials said that  they had been performing a similar process prior to this provision’s  enactment in law to ensure consensus among stakeholders.

Some state DOTs reported that it was too early to determine the effects of  several provisions, particularly more recently enacted provisions. For 5 of  the 12 required provisions, more than one third of state DOTs (over 17  states) reported that it was too soon to judge the provisions’ effects. Four  of these 5 provisions were enacted in the FAST Act in 2015.  Consequently, state DOTs that used the provision had a short window of time to assess any potential effect on project delivery—particularly given  that highway projects often take a number of years to complete. Also,  while our survey did not ask state DOTs when they had most recently  initiated an EIS, several state DOTs voluntarily noted that they had not  done so since the FAST Act. Certain provisions apply only to projects  undergoing an EIS; states that have not done an EIS since such  provisions were enacted would not have had the opportunity to use the  provision. One such provision is the 45-Day Limit to Identify Resource  Agencies provision, for which 19 state DOTs reported that it was too early  to judge the effects.

For 5 of the 12 provisions, a relatively few state DOTs, between one and  eight, reported that the provision had slowed down project delivery. Eight  states reported that the Coordination Plan for Public and Agency  Participation provision slowed down project delivery, the most for any  provision. According to the Minnesota DOT, this provision slowed down  project delivery because it formalized and required a specific coordination  process in addition to those that had already been voluntarily occurring  with relevant federal and state resource agencies. Formalizing this  process resulted in resource agencies taking longer to provide responses  to the Minnesota DOT. Other states similarly said that this provision’s  additional formal processes slowed down project delivery.

We defined required provisions to mean that federal agencies or state or  local transportation agencies that are subject to the provision must  adhere to requirements and obligations in the provision, if all the  conditions for its use have been satisfied. States may not have had the  opportunity to apply some of the required provisions that apply to them  because they did not have exposure to the circumstances and conditions  that would invoke this provision’s use. For example, a state would not be  exposed to the 150-Day Statute of Limitations provision if it had not been  subject to a lawsuit. Unlike the optional provisions, we did not ask states  whether they elected to use the required provisions since state DOTs, if  subject to the provision, must adhere to the requirements and obligations  in the provision.

Selected State DOTs Reported Using the Three Advance Planning Provisions That Affect Project Delivery but Precede NEPA Review

Two of the three provisions from the Advance Planning category were  used by a majority of the 10 state DOTs we interviewed, and most of the  state DOTs that used each provision stated that it sped up project  delivery. This use is illustrated more specifically:

Advance Design-Build Contracting provision: 8 state DOTs used this  provision, 5 of which reported it sped up highway project delivery.

Advance Acquisition of Real Property provision: 6 state DOTs used  this provision, 4 of which reported it sped up highway project  delivery.

2-phase Contracts provision: 5 state DOTs used this provision, 4 of  which reported it sped up highway project delivery.

Some state DOT officials provided examples of how the provisions  affected their project delivery. For example, California DOT officials said  that the Advance Acquisition of Real Property provision saved them a few  months on small projects, involving one or two parcels of land; for a large  project involving hundreds of commercial and residential parcels, they  estimated time savings of more than a year. Similarly, Illinois DOT  officials said that the provision has yielded time savings of 6 months to a  year in instances where the DOT needs to purchase residential property.

Most Project Delivery Provisions Were Used by Selected Transit Agencies, but the Provisions’ Effects on Project Delivery Were Generally Unclear

More than two-thirds of the provisions designed to speed up transit  project delivery were reportedly used by 11 selected transit agencies. We  asked officials in selected transit agencies to report their use of 29 project  delivery provisions applicable to transit agencies, 17 of which are optional  and 12 of which are required. Of the 29 provisions, 6 were used by 4 or  more selected transit agencies (see fig. 4). The most used optional  provision, by 7 transit agencies, was the Minor Impacts to Protected  Public Land provision described earlier followed by the Planning  Documents Used in NEPA Review provision, used by 6 transit agencies.

Some transit agencies told us that the provisions they used sped up  project delivery. In addition, some provided estimated time savings.

Chicago Transit Authority (CTA) officials told us that the Minor  Impacts to Protected Public Land provision was extremely helpful for  recent CTA projects involving historic properties. For example, CTA  has implemented projects that involve track work at a station that is  adjacent to a historic boulevard. They estimated that the Minor  Impacts to Protected Public Land provision has reduced the time to  complete documentation by several months. Similarly, a Tri-County  Metropolitan Transportation District of Oregon official stated the Minor  Impacts to Protected Public Land provision has been instrumental  since in the past, the agency would have to stop the project if it  affected a park land.

Southeastern Pennsylvania Transportation Authority (SEPTA) officials  told us that they used the Categorical Exclusion for Minor Rail  Realignment provision one or two times within the past 2 years.  SEPTA estimated the provision saved the agency several months in  time savings per project. Officials stated that the provision allowed the  SEPTA to use a categorical exclusion in place of an environment  assessment. SEPTA officials also said they saved staff time and  approximately $100,000 a year in consultant fees and agency staff  resources by using the Categorical Exclusion for Preventative  Maintenance to Culverts and Channels provision.

Capital Metro officials in Austin, Texas, told us they used the  Categorical Exclusion for Projects within the Existing Operational  Right-of-Way provision for a rail right-of-way project. They estimated  the provision helped save at least 4 to 6 months in project delivery  because the agency was not required to do an environmental  assessment.

While some selected transit agencies reported using some provisions and  added that this provision’s use helped speed up project delivery or lower  costs, the effects of the provisions—whether they sped up project delivery  or streamlined the NEPA review process—were not clear to a majority of  the selected transit agencies. Because transit agencies in our review do  not track NEPA reviews—including their start and end dates—they were  not able to assess how project time frames or costs were affected by the  provisions. Officials from several selected transit agencies told us that  their understanding of the project delivery provisions’ effects was also  limited by their reliance on engineering and environmental-planning  consultants to prepare their NEPA documents. Officials from 4 of the 11  transit agencies told us that they rely on these consultants’ knowledge of  the provisions to prepare their NEPA documents. Further, officials from 1  transit agency said they required the assistance of their consultants to  respond to our requests for information.

Nine of the 29 provisions were not used by any of the agencies, and no  provision was used by more than 7 agencies. Our discussions with  selected transit agency and FTA officials provided some insight into  transit agencies’ use of the provisions, specifically:

Limited transit projects needing EISs: Transit agencies that do not  prepare EISs may have fewer opportunities to use some of the  provisions. Following discussions with FTA officials, we examined the  number of times transit agencies filed a notice of intent to prepare an  EIS in the Federal Register from 2005 through 2016 as a proxy to  identify those transit agencies that would likely use a number of the  project delivery provisions. We found that 48 transit agencies (out of  several hundreds of transit agencies) filed notices of intent from fiscal  year 2005 through 2016 but that of the 48 transit agencies, 34 had  filed a notice of intent only once during that time. In general, the vast  majority of transit agencies have little recent experience preparing EIS  documentation and using the provisions that are triggered by an  EIS. For example, only one transit agency (Tri-County Metropolitan  Transportation District of Oregon) had filed a notice of intent to  prepare an EIS after the FAST Act was enacted in 2015.

Duration of transit projects: Some instances where transit project  delivery provisions were not used could be due to the number of years  it takes to complete transit projects. According to FTA officials, where  sponsors for highway projects may have new projects initiating and  requiring NEPA reviews on a rolling basis, transit agencies operate  differently. A transit agency may have a project that goes through a  NEPA review and then begins construction of the project that can last  a number of years. The transit agency may not have another project  that requires an EIS for several years. For example, New York  Metropolitan Transportation Authority (MTA), the largest transit  agency by ridership in the country, completed its last EIS review in  2004 and has since been working on construction of that project,  according to FTA officials. While MTA has been receiving FTA funds  for construction, no additional project has undergone an EIS.

Changing provisions and delayed guidance: Some transit agency  officials told us that the changing provisions across the three enacted  surface transportation authorization acts pose challenges to using the  project delivery provisions. Understanding the changes in the project  delivery provisions—for example, changes in categorical exclusions— included in SAFETEA-LU, MAP-21, and the FAST Act was  challenging according to some selected transit agencies. Further,  some transit agency officials stated that the lag time in receiving  guidance from FTA on the changing provisions also posed challenges  to using some of the provisions.

DOT’s FHWA Has Assigned Six States NEPA Authority, and Two States Reported Time Savings, but FHWA Has Not Provided Guidance on Measuring Effects

DOT, specifically FHWA, has assigned its NEPA approval authority to six  states, and other states are interested in this authority. Of the six states,  California and Texas have completed some NEPA reviews and  determined they have achieved time savings through state approval of  NEPA documents rather than federal approval. However, we found the  reported time savings to be questionable for several reasons, including  challenges faced by California and Texas in establishing sound baselines  for comparison. Despite this finding, the reported time-savings information  is used by other states to seek out NEPA authority and in reporting to  DOT and Congress. FHWA focuses its oversight of NEPA assignment  states on ensuring these states have the processes in place to carry out  FHWA’s NEPA responsibilities, according to a written agreement between  each state and FHWA, and does not focus on determining whether states  are achieving time savings.

FHWA Has Assigned Six States NEPA Authority, and Additional States Are Interested

FHWA has assigned its NEPA authority to six states, enabling those state  DOTs to assume FHWA’s authority and approve state-prepared NEPA  documentation for highway projects, in lieu of seeking federal approval.  California’s NEPA authority began in 2007, as the first state in the then- pilot program, and continued when the program was made permanent in  2012. Once eligibility expanded to all states, Texas became the second  state to be assigned NEPA authority, in 2014, followed more recently by  Ohio in 2015, Florida in 2016, and Utah and Alaska in 2017.

The 2005 Conference Report accompanying SAFETEA-LU indicates that  the NEPA Assignment Authority provision was created to achieve more  efficient and timely environmental reviews, which are a key benefit sought  by participating states. The report states that the NEPA assignment  program was initially created as a pilot program to provide information to  Congress and the public as to whether delegation of DOT’s  environmental review responsibilities resulted in more efficient  environmental reviews. In addition, in MAP-21, Congress declared that  it is in the national interest to expedite the delivery of surface  transportation projects by substantially reducing the average length of the  environmental review process. State DOT officials from the five NEPA  assignment states we reviewed cited anticipated time savings or greater  efficiency in environmental review as a reason for taking on this authority.  For example, Texas DOT officials said they expected to save time by  eliminating FHWA approval processes that they described as time  consuming. With NEPA authority, the state puts in place its own approval  processes to carry out the federal government’s NEPA review  responsibilities, and agrees to take on the risk of legal liability for  decisions made in this capacity.

Additional states have expressed interest and have taken steps to apply  for NEPA authority. Officials from three state DOTs told us they plan to  apply for NEPA authority, and one of these, the Arizona DOT, has taken  the first step in the process and obtained the requisite changes in state  law. In explaining the anticipated benefits of NEPA assignment to the  state legislature, an Arizona DOT official cited time savings reported by  California and Texas as a reason for taking on the application process.  Time savings’ results had been shared by California and Texas DOT  officials during a peer exchange event held by an association of state  highway officials in 2015 for states that are in the early stages or are  considering applying for NEPA authority. Also, the Texas DOT had  testified before a congressional committee in 2015 and described the time  savings for environmental assessment reviews under its NEPA authority  and its role communicating this information to other states pursuing NEPA  authority.

State DOTs Calculate Time Savings, but Reported Savings Are Questionable

The MOUs, signed with FHWA by each of the five states we reviewed, set  out performance measures for comparing the time of completion for  NEPA approvals before and after the assumption of NEPA responsibilities  by the states. To calculate time savings, each state has established a  baseline—of the time it took to complete NEPA review before it assumed  NEPA authority—to compare to the time it takes to complete NEPA  review after assuming NEPA authority. The baseline is to serve as a key  reference point in determining the efficiency of state-led NEPA reviews.  Thus far, the two states that have had NEPA authority long enough to  report results are California and Texas, and only California has reported  results for EISs. The California DOT reported that its EIS reviews now  take about 6 years to approve, which it determined to be a 10-year  improvement over the 16-year (15.9 years) baseline the state DOT  established. For environmental assessment reviews, the California DOT  reported completion times of about 3.5 years, which it determined to be a  1-year improvement over the established baseline. The Texas DOT has  not started and completed an EIS review since assuming NEPA authority  but reported that its environmental assessment reviews have taken about  1.5 years, compared to the baseline of almost 2.5 years.

However, we found California and Texas DOTs’ reported time savings to  be questionable due to the methods used to compare time frames and  challenges associated with establishing baselines. First, there is an  inherent weakness in comparing the NEPA review time frames before  and after NEPA authority because the comparison does not isolate the  effect of assuming NEPA authority on NEPA review time frames from  other possible factors. As discussed earlier, we have previously found  that such factors include the extent of public opposition to a project and  changes in transportation priorities, among other factors. Further,  according to a report from the American Association of State Highway  and Transportation Officials, such a comparison does not include  information to control for non-environmental factors that are important to  project delivery time frames, including delay in completion of design work  necessary to advance the environmental review and changes in project  funding that put a project on hold. Moreover, neither California nor  Texas DOTs’ time frame comparisons isolate the effects of NEPA  assignment from other streamlining initiatives that may have helped  accelerate delivery of projects, such as potential benefits realized from  other project delivery provisions.

Second, California and Texas have faced challenges creating appropriate  baselines. States are responsible for determining how many and which  projects to include in baseline calculations and adopting their own  methodologies. While circumstances and conditions are different across  states and states can be expected to have different experiences,  California’s current 16-year EIS baseline is over double that of Texas’ EIS  baseline. In 2012, we found that for the 32 projects in which FHWA was  the lead agency and signed the EIS in fiscal year 2009, the average time  to complete the process was about 7 years. According to information  contained in California DOT reports to the state legislature from 2007 and  2009, California’s original baseline for EISs was comprised of 1 project  that resulted in an EIS baseline of 2.5 years. In 2009 state DOT officials  increased the number of EIS projects in order to achieve what they  viewed as a more representative mix. This process increased California’s  EIS baseline six-fold, which has been consistently used since that time.  Specifically, California used the median of five projects that had review  times of around 2.5 years, 6.2 years, 15.9 years, 16.6 years, and 17.3  years. These projects were selected because they were among the final  EIS projects that were reviewed prior to California’s assuming NEPA  authority.

However, the EIS baseline may not be meaningful. First, it includes outlier  projects, which are projects that take much longer than usual to complete.  According to California DOT officials, this factor is a limitation to  determining time savings because the outliers increased the EIS baseline  and therefore makes subsequent time savings look greater than they are.  Next, despite the increase in EIS projects included in the baseline, a 2016  California DOT report to the state legislature stated that this new EIS  baseline may still not be meaningful because of the relatively small  sample size, and therefore the inferences that can be made from EIS  analysis on time savings are limited. The report caveats that “the EIS  analysis should not be used as a major indicator of the effectiveness of  NEPA assignment,” but still reports the EIS analysis results. However,  California DOT uses the figure in determining and reporting time savings.  For example, information available on the California DOT’s web site as of  November 2017 presents these data and states that they are evidence of  saving “significant time in reviewing and approving its NEPA documents  since undertaking NEPA assignment.”

Moreover, the California DOT’s reported median time frame of 6 years for  EIS reviews only accounts for those projects that have both started and  completed their environmental review since the state assumed NEPA  authority. As only 10 years have passed since California assumed NEPA  authority in 2007, all EIS reviews started and completed since 2007  automatically have shorter time frames than the 16-year baseline. Thus, it  will be 2023 before any EIS reviews in California could equal the  baseline, let alone exceed it, making any EIS review started after  assumption of NEPA authority and completed before 2023 appear to  demonstrate time savings.

Texas DOT officials stated that they had challenges determining a  baseline for environmental assessments because there is no nationally  accepted standard definition of when an environmental assessment  begins. Moreover, Texas DOT recently revised its environmental  assessment baseline, reducing it from 3 years to 2.5 years and including  projects over a 2-year period instead of a longer 3-year period due to  uncertainties with quality of the older data, according to Texas DOT  officials. Texas also included, then excluded three outliers from its revised  baseline (reviews that took between 6 and 9 years to complete) because  officials determined they were not representative of typical environmental  assessment reviews. While improving project data to create more  accurate baselines is beneficial, it also results in different time savings’  estimates over time and illustrates the challenges of constructing sound  baselines.

As previously discussed, states that are considering or have recently  decided to assume NEPA assignment authority have relied, at least in  part, on time savings reported by California and Texas. As additional  NEPA assignment states begin calculating and reporting time savings as  outlined in their MOUs with FHWA, the inherent weakness of a pre- and  post-assignment baseline comparison, combined with challenges  establishing sound baselines, creates the potential for questionable  information about the program’s effects to be reported and relied upon by  other states considering applying for NEPA assignment. Questionable  information also negatively affects DOT’s and Congress’ ability to  determine whether NEPA assignment is having its intended effect and  resulting in more efficient environmental reviews.

FHWA Has Focused on States’ Compliance and Processes but Has Played a Limited Role in Time Savings Measures

FHWA focuses its oversight of NEPA assignment states through audits  and monitoring to ensure that states have the processes in place to carry  out FHWA’s role in the NEPA process and that they comply with the MOU  agreed to between FHWA and each of the NEPA assignment states.  According to the MOUs, FHWA’s annual audits include evaluating the  attainment of performance measures contained in each MOU. Each of the  five MOUs contains four performance measures including: (1)  documenting compliance with NEPA and other federal laws and  regulations, (2) maintaining internal quality control and assurance  measures for NEPA decisions including legal reviews, (3) fostering  communication with other agencies and the general public, and (4)  documenting efficiency and timeliness in the NEPA process by comparing  the completion of NEPA documents and approvals before and after NEPA  assignment.

According to FHWA officials, the agency interprets evaluating the  attainment of performance measures contained in the MOU as ensuring  that the state has a process in place to assess attainment. For the  efficiency and timeliness measures, FHWA does not use its audits to  measure whether the state is achieving performance goals. FHWA only  ensures that the state has a process in place to track the completion of  NEPA documents and approvals before and after NEPA assignment, and  that states follow the process, according to FHWA officials. For example,  FHWA officials from the California division office stated that they did not  assess the baseline methodology or assess its validity or accuracy.  FHWA’s Texas division officials added that setting the baseline has not  been an FHWA role. FHWA does not assess or collect information on  states’ calculations of their time savings from NEPA assignment.

FHWA officials stated that their focused approach on compliance and  processes is consistent with the authority they have been granted and  that it is not required by statute to measure environmental review  efficiency and timeliness performance of participating states. Moreover,  according to these officials, this authority limits their ability to request  state information on issues related to, and otherwise assess, states’  performance measures, including time savings, specifically:

According to an FHWA program document, FHWA is statutorily  authorized to require the state to provide any information that FHWA  reasonably considers necessary to ensure that the state is adequately  carrying out the responsibilities assigned to the state. Further, a  request for information is reasonable if it pertains to FHWA’s  reviewing the performance of the state in assuming NEPA assignment  responsibilities. However, FHWA officials told us they do not consider  an assessment of efficiency and timeliness measures to be necessary  to ensure that the state is adequately carrying out its responsibilities.

Additionally, FHWA considers timeliness performance measures to be  a state role. FHWA officials told us that the timeliness performance  measures in the NEPA assignment MOUs were added by the states,  not FHWA. For instance, California added a timeliness performance  measure based on its state legislature’s reporting requirements. Each  of the subsequent four NEPA assignment states we reviewed also  included timeliness performance measures in their respective MOUs.  However, the DOT Office of Inspector General reported in 2017 that  while FHWA is not statutorily required to measure performance  regarding the environmental review process for NEPA assignment  states, the lack of data collection and tracking inhibits FHWA’s ability  to measure the effectiveness of NEPA assignment in accelerating  project delivery. The DOT Office of Inspector General recommended  that FHWA develop and implement an oversight mechanism to  periodically evaluate the performance of NEPA assignment states,  which has not yet been implemented.

While FHWA does not, according to officials, have the authority to assess  states’ measurement of timeliness performance, FHWA has a role and  the authority to provide guidance or technical assistance to states to help  find solutions to particular problems and to ensure complete and quality  information is provided to Congress, state DOTs, and the public to help  make informed policy choices. Federal standards for internal control state  that agencies should use quality information to determine the extent to  which they are achieving their intended program outcomes.  Characteristics of quality information include complete, appropriate, and  accurate information that helps management make informed decisions  and evaluate the entity’s performance in achieving strategic outcomes.  FHWA’s mission to advance the federal-aid highway program is  articulated in its national leadership strategic goal, which states that  FHWA “leads in developing and advocating solutions to national  transportation needs.” To carry out its mission, FHWA engages in a range  of activities to assist state DOTs in guiding projects through construction  to improve the highway system. Specifically, according to agency  documents, FHWA provides technical assistance and training to state  DOTs and works with states to identify issues and develop and advocate  solutions. Its broad authority to offer guidance and technical assistance  can include helping states develop sound program methodologies. Such  assistance or guidance could also include sharing best practices and  lessons learned on evaluation methodologies, including creation of  baselines, and potentially result in better quality information to assess the  results of NEPA assignment. Without quality information reported from  NEPA assignment states on time savings, questionable information about  the program effects may be relied upon by other states considering  applying for NEPA authority, and may negatively impact DOT’s and  Congress’ ability to determine whether NEPA assignment is having its  intended effect and resulting in more efficient environmental reviews.

FHWA officials stated that they advise NEPA assignment states on  process improvements and technical assistance, but that no state has  requested assistance developing evaluation methodologies or baselines.  However, offering guidance or technical assistance on evaluation  methodologies to measure time savings can help ensure that states are  basing decisions to participate on reliable information and that, in turn,  those NEPA assignment states can provide reliable information to FHWA  and Congress to help assess whether NEPA assignment results in more  efficient environmental reviews.

A number of factors can affect the time it takes to complete highway and  transit projects, including the NEPA review process. Congress has stated  that it is in the national interest to expedite the delivery of surface  transportation projects by substantially reducing the average length of the  environmental review process, and has taken a number of steps in this  direction, including allowing DOT to assign NEPA authority to the states.  We found that the time savings results publicly shared by current NEPA  assignment states have spurred interest among other states seeking  NEPA authority. However, states are making program decisions—taking  on risk and assuming federal authority—based on questionable  information and reports of success.

Given questions about participating states’ reported time savings, FHWA  can help provide some assurance that the performance measures states  develop and use to report out are based on sound methodologies. FHWA  has the authority to issue program guidance and offer and provide  technical assistance to help state DOTs find solutions to particular  problems, including the development of sound evaluation methodologies.  Without such assistance, states may continue to face difficulties  establishing sound baselines. And without a sound baseline, the time  savings states calculate—which may continue to be subsequently publicly  reported—may be of questionable accuracy and value. And Congress, in  turn, would not have reliable information on whether the assignment of  NEPA authority to states is having its intended effect.

The FHWA Administrator should offer and provide guidance or technical  assistance to NEPA assignment states on developing evaluation  methodologies, including baseline time frames and timeliness measures.  (Recommendation 1)

We provided a draft of this report to DOT for review and comment. DOT  provided a written response (see app. VI), as well as technical comments,  which we incorporated as appropriate. DOT partially concurred with our  recommendation. Specifically, DOT stated that it would clarify  environmental review start times and communicate this to all FHWA  divisions and states. DOT also stated it would provide the NEPA  assignment states with any new federal government-wide guidance  developed on performance measures of environmental reviews. DOT also  stated that it already provides technical assistance to NEPA assignment  states in other areas and that FHWA is not required by statute to measure  the environmental review efficiency and timeliness of NEPA assignment  states. Further, DOT stated that focusing only on timeliness metrics for  environmental reviews overlooks other significant benefits of NEPA  assignment, such as state control over when and how to conduct  environmental reviews, which according to DOT is one of the most  significant factors that a state considers in deciding whether to request  NEPA assignment authority.

We are encouraged that DOT stated it would clarify environmental review  start times. This step can improve the accuracy of environmental  assessment review time frames, which is a part of developing sound  baselines. In addition, while providing general guidance related to  performance measures of environmental reviews would be helpful, we  continue to believe that FHWA needs to provide further guidance or  technical assistance to NEPA assignment states on developing sound  evaluation methodologies. We recognize that FHWA has stated that it is  not required by statute to measure environmental review efficiency;  however, FHWA does have broad authority to offer guidance and  technical assistance to help states develop sound program  methodologies, including sharing practices and lessons learned on  evaluation methodologies. As we reported, Congress indicated its interest  in more efficient and timely environmental reviews when it created the  NEPA assignment program. FHWA can help provide reasonable  assurance that the performance measures states develop and use to  report information are based on sound methodologies, which would in  turn help provide Congress reliable information on whether the  assignment of NEPA authority to states is having its intended effect.  Further, while we acknowledge that other benefits of NEPA assignment  may be important to states, all the NEPA assignment states we reviewed  consistently identified time savings as a reason for taking on this  authority. Offering guidance on evaluation methodologies to measure  time savings can help FHWA ensure that additional states interested in  NEPA authority for this reason are basing decisions to participate on  reliable information.

We are sending copies of this report to interested congressional  committees, the Secretary of the Department of Transportation, and other  interested parties. In addition, this report will be available at no charge on  GAO’s website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-2834 or flemings@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix VII.

Appendix I: Available Information about the Number, Percentage, and Costs of NEPA Reviews for Highway and Transit Projects

Based on 2009 data, we previously reported that 96 percent of  environmental reviews are completed through categorical exclusions and  a smaller number of highway projects undergo EISs and environmental  assessments, 1 and 3 percent respectively. We have previously reported  that government-wide data on the cost of NEPA reviews are not readily  available because agencies do not routinely track the cost of completing  NEPA reviews and there is no government-wide mechanism to do so. To  comply with congressional reporting requirements, FHWA maintains the  Project and Program Action Information (PAPAI) system, which is a  monitoring database that tracks projects’ NEPA review progress at major  milestones. FHWA developed PAPAI in 2013 in response to statutory  reporting requirements on NEPA time frames. PAPAI tracks EIS and  environmental assessment start and end dates, among other information,  allowing FHWA to track the processing time for these reviews. FTA does  not have a similar monitoring system that tracks NEPA reviews, but has  developed a new grant management system, the Transit Award  Management System (TrAMS), which FTA also uses to track EIS and  environmental assessment start and end dates. However, FTA officials  told us that TrAMS is still in the early phases of deployment and may  contain incomplete information on NEPA time frames on transit projects.

While some information is available on the number of NEPA reviews (i.e.,  NEPA review time frames) for highway projects, little to no information is  known about the percentage breakdown of the three types of NEPA  reviews that have been conducted for these projects and their associated  costs.

Number of NEPA Reviews: Some information is available regarding  the number of EIS and environmental assessments; however, less is  known about the number of categorical exclusions. In an October  2017 report to Congress, FHWA stated that 29 EISs were initiated  since 2012, of which 3 EISs were completed and 26 EISs remain  active. In its October 2013 report to Congress and consistent with  MAP-21 reporting requirements, FHWA reported the number of EISs  that state DOTs “initiated” from 2002 through 2012. In this report,  FHWA stated that the number of EISs that initiated decreased over  time. For example, FHWA reported that 38 EISs were initiated in  fiscal year 2002 compared to 15 EISs that were initiated in 2012.

Regarding the number of environmental assessments state DOTs  conduct for highway projects, FHWA’s October 2017 report to  Congress stated 232 environmental assessments were initiated since  2012, of which 103 environmental assessments were completed and  129 environmental assessments remain active. FHWA’s October  2013 report to Congress did not report on the number of  environmental assessments. FHWA officials told us that prior to fiscal  year 2013, FHWA division offices were not required to submit data on  environmental assessments.

While some information on categorical exclusions exists, the total  number of categorical exclusions is unknown. FHWA does not actively  track categorical exclusions because state DOTs process most  categorical exclusions without involvement from FHWA, as allowed by  established programmatic agreements.

Percentage of NEPA Reviews by Type: The percentage breakdown of  EIS, environmental assessments, and categorical exclusions  conducted by state DOTs for federal-aid highway projects is largely  unknown since FHWA has systematically collected numerical data  only on EIS reviews and environmental assessments since fiscal year  2013. We previously reported that, FHWA estimated that  approximately 96 percent of NEPA reviews were categorical  exclusions, 3 percent were environmental assessments, and 1  percent were EISs. While the current percentage breakdown of  NEPA reviews is not known, FHWA officials told us that categorical  exclusions still constitute the vast majority of NEPA reviews for  highway projects. Furthermore, highway projects requiring an EIS  likely remain the smallest portion of all projects and are likely to be  high-profile, complex, and expensive.

Costs of NEPA Reviews: The costs of completing NEPA reviews are  unknown according to officials we interviewed. Officials from FHWA  and the National Association of Environmental Professionals believe  that data on the cost of processing NEPA reviews do not exist and are  not tracked. In our survey of state DOTs, we found that a majority (37  of the 52 state DOTs surveyed) do not collect cost data. For example,  officials from Virginia DOT stated that they do not track NEPA costs  and that compiling this information would be difficult and labor- intensive.

Number and Percentage of NEPA Reviews: FTA has some data on  the number of categorical exclusions that transit agencies process,  but has just begun to collect data on the number of EIS reviews or  environmental assessments. According to an August 2016 report,  FTA reported that 24,426 categorical exclusions were processed for  6,804 projects between February 2013 and September 2015.  However, the same report cited a number of limitations and  challenges with the underlying data, and as a result, the data may not  be accurate. FTA officials told us that its new internal grant  management system, TrAMS, also has the capability to track EIS  reviews and environment assessments, but they are in the early  stages of collecting this information. Given that data on the number of  NEPA reviews are either not available (EIS and environmental  assessments) or potentially unreliable (categorical exclusions), data  on the percentage of NEPA reviews are also not available. However,  FTA officials believe that similar to highway projects, the most  common type of NEPA reviews that transit agencies process are  categorical exclusions.

Costs of NEPA Reviews: FTA and transit agencies do not track costs  of processing NEPA reviews for transit projects. According to FTA and  our previously issued work, separating out the costs for NEPA reviews  (versus “planning” costs or “preliminary design” costs) within the  project delivery process would be difficult to determine.

Appendix II: Objectives, Scope, and Methodology

Our work focused on federal-aid highway and transit projects and the  provisions included in the past three surface transportation  reauthorizations that are intended to accelerate the delivery of such  projects (i.e., project delivery provisions). In particular, this report: (1)  identifies the provisions aimed at accelerating the delivery of highway and  transit projects that were included in the last three surface transportation  reauthorizations; (2) examines the extent to which the provisions were  used by state departments of transportation (state DOT) and transit  agencies and the provisions’ reported effects, if any, on accelerating the  delivery of projects; and (3) evaluates the extent to which DOT has  assigned National Environmental Policy Act of 1969 (NEPA) authority to  states and the reported effects. In addition, in appendix I, we identify  available information on the number and percentage of the different types  of NEPA reviews, and costs of conducting NEPA reviews.

To identify all relevant project delivery provisions, we reviewed language  in the three most recent surface transportation reauthorizations and  included those provisions with the goal to accelerate the delivery of  federal-aid highway or transit projects. The three reauthorizations we  reviewed are as follows:  the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A  Legacy for Users (SAFETEA-LU)—the seven project delivery  provisions we used were derived from provisions we had previously  identified from SAFETEA-LU, Title VI, on Transportation Planning and  Project Delivery;  the Moving Ahead for Progress in the 21st Century Act (MAP-21),  Division A, Title 1, Subtitle C, entitled Acceleration of Project Delivery  (Sections 1301 through 1323); and  the Fixing America’s Surface Transportation Act (FAST Act), Division  A, Title 1, Subtitle C, entitled Acceleration of Project Delivery  (Sections 1301 through 1318).

One provision (MAP-21 §1318(a)-(c)) included statutory language  directing the Department of Transportation (DOT) to develop additional  project delivery provisions through rulemaking. Accordingly, we reviewed  the DOT regulations promulgated in response to that requirement (23  C.F.R. §§ 771.117(c)(24)-(30), 771.118(c)(14)-(16), 771.118(d)(7)-(8) and  identified 12 additional project delivery provisions. We combined  provisions that were modified in later statutory language and did not  specify between different versions of the provisions, as this precision was  not necessary for our purposes. For example, the 150-Day Statute of  Limitations provision was created in SAFETEA-LU (section 6002) as a  180-day statute of limitations and amended in MAP-21 (section 1308) to  150 days, which is the version we used. We also grouped the provisions  into categories for ease of understanding; determined if provisions were  applicable to highway projects or transit projects, or both; and specified if  provisions were required or optional, based on professional judgement  and legal review. We define “required” provisions to mean that federal  agencies or state or local transportation agencies that are subject to a  provision must adhere to the requirements and obligations in the  provision, if all the conditions for its use have been satisfied. We define  “optional” provisions to mean that the relevant entity (a federal agency or  state or local transportation agency) can choose to use the provision if  circumstances allow.

We met with officials from the Federal Highway Administration (FHWA)  and the Federal Transit Administration (FTA) to confirm that we had a  complete list of project delivery provisions for highway and transit  projects.

To determine states’ awareness, use, and perceived effects of the project  delivery provisions on highway projects over the previous 5 years, we  surveyed state DOTs within all 50 states, the District of Columbia, and  Puerto Rico. We directed the survey to officials in state DOTs that  oversee environmental compliance for highway projects under NEPA.  Because these officials do not have responsibilities with respect to three  Advance Planning category’s provisions that allow certain activities to  occur prior to the completion of a NEPA review, we excluded these  project delivery provisions from the survey. We also excluded two  provisions from the survey that are related to DOT assignment of federal  NEPA authority, because their use requires a written agreement between  FHWA and state DOTs, and we addressed those provisions separately  through interviews with states that have such written agreements in  place. Our survey response rate was 100 percent. In order to ensure that  respondents would interpret our questions as intended, prior to  administering the survey, we conducted pretests with state DOTs in four  states: Georgia, Ohio, Texas, and Washington. In each pretest, we  conducted a session with state DOT officials during which the officials  completed the survey and then provided feedback on the clarity of the  questions. Based on the feedback, we refined some questions and  restructured parts of the survey. After the four pretests were completed,  we provided a draft copy of the survey to FHWA and the American  Association of State Highway and Transportation Officials (AASHTO) for  their review and comment. Both provided technical comments that we  incorporated, as appropriate. Based on early interviews with highway  project stakeholders and our pretests, we determined that the survey  should be sent to environmental officials at the state DOTs. Additional  information about our survey methodology includes the following:

To determine whom we should send the pretest and survey to (i.e.,  the survey respondent), we used a list of environmental officials at the  state DOTs compiled by AASHTO. We took steps, such as sending  early notification e-mails, to help ensure that the list of respondents  we created was accurate.

We launched our survey on March 7, 2017. We sent e-mail reminders  and telephoned survey respondents who had not completed the  survey after two weeks, urging them to do so as soon as possible. We  reviewed survey responses for omissions and analyzed the  information provided. The survey and aggregated responses—with  the exception of open-ended responses and information that would  identify individual state DOTs—are provided in appendix IV.

For each of the provisions included on the survey, we included  references to legal citations in order to minimize confusion among  provisions or versions of provisions.

We provided space in the survey for respondents to provide optional  comments for each individual provision and for each category of  provisions. We analyzed these comments primarily for additional  context and as a source of illustrative examples.

Because all state DOTs were included in our survey, our analyses are  not subject to sampling errors. However the practical difficulties of  conducting any survey may introduce non-sampling errors. For  example, differences in how a particular question is interpreted or the  sources of information available to respondents can introduce errors  into the survey results. We included steps both in the data collection  and data analysis stages, including pretesting, to minimize such non- sampling errors. We also sent a draft of the questionnaire to FHWA  and AASHTO for review and comment.

We examined the survey results, reviewed survey responses during  follow-up interviews with selected states, and performed computer  analyses to identify inconsistencies and other indications of error and  addressed such issues, where necessary. A second, independent  analyst checked the accuracy of all computer analyses to minimize  the likelihood of errors in data processing.

Based on the survey results, we conducted follow-up interviews with  officials from 10 state DOTs to discuss their views about the effects the  project delivery provisions had on the duration of highway projects in their  states in the past 5 years. We did not independently verify state DOT  officials’ estimates of time savings. We selected state DOTs that reported  a range of use and effects of the provisions; we also selected  geographically diverse states. The 10 states we selected were Arizona,  California, Colorado, Illinois, Maine, Minnesota, Mississippi, Texas,  Virginia, and Wyoming. We also asked these state DOTs about their use  and experiences with the three Advance Planning category’s provisions  we excluded from the survey. These interviews are not generalizable to  all states but provide additional context for responses.

To determine transit agencies’ awareness, use, and views about the  effects of the project delivery provisions applicable to transit, we selected  a non-generalizable sample of 11 transit agencies, provided a “checklist”  of the provisions to the officials regarding their awareness and use of the  provisions, and interviewed officials at those agencies that oversee NEPA  reviews for transit projects. We selected these agencies based primarily  on the number of times they issued a notice of intent to prepare an EIS in  the Federal Register from 2005 through 2016 to identify those transit  agencies that may have experience preparing EISs or some another  NEPA review and experience using transit project delivery provisions.  While notices of intent to prepare an EIS do not always result in a transit  agency’s conducting an actual EIS review, they indicate instances in  which a transit agency plans to conduct an EIS review. Other factors,  such as ridership and geographic location, were also considered to select  the 11 transit agencies. We identified contacts for the transit agencies by  calling the transit agencies’ Planning and Environmental Review  departments and identifying individuals that had experience with  environmental reviews and project delivery provisions. We interviewed  officials at the following transit agencies:

Los Angeles County Metropolitan Transportation Authority,

Metropolitan Atlanta Rapid Transit Authority,

San Francisco Bay Area Water Emergency Transportation Authority,

San Francisco Municipal Transportation Agency,

Southeastern Pennsylvania Transportation Authority, and

Tri-County Metropolitan Transportation District of Oregon.

Similar to the survey we provided to state DOTs regarding highway  projects, we provided the transit agencies with a “checklist” of the  provisions in which the transit agency officials indicated whether they had  heard of and used the provisions. To understand why the provisions may  not be used by selected transit agencies, we also examined the  frequency in which transit agencies filed a notice of intent to prepare an  EIS in the Federal Register. After discussions with FTA, we used the  number of times transit agencies filed a notice of intent to prepare an EIS  as a proxy because agencies that have performed multiple EISs, which  are typically complex in nature, are more likely to use the provisions and  be able to offer insight. Transit agencies may also have experience using  provisions related to categorical exclusions since transit agencies process  their NEPA reviews more commonly using categorical exclusions.  However, we did not examine the extent to which categorical exclusions  are used by transit agencies as a proxy to identify agencies that have  experience using the provisions in part because FTA’s current database,  TrAMS, does not have comprehensive data on categorical exclusions.  We discussed transit agency officials’ views about the effects of the  provisions during our interviews. These interviews are not generalizable  to all transit agencies but provide anecdotal information and context.

To evaluate the extent that DOT has assigned NEPA authority to states  and the effects states have reported from assuming NEPA authority, we  identified states that have assumed NEPA authority based on information  from FHWA: Alaska, California, Florida, Ohio, Texas, and Utah. We did  not include Alaska in our review because that state did not assume NEPA  authority until November 2017. For the five states we reviewed, we  interviewed state DOT officials and reviewed relevant documentation  including memorandums of understanding and analyses the state DOTs  conducted on NEPA assignment authority, such as methodologies for  calculating NEPA assignment time savings. We also surveyed the state  DOTs that have not yet sought NEPA authority to assess their interest in  assuming NEPA authority. In addition, we interviewed FHWA officials  about procedures to oversee the performance of NEPA assignment  states and interviewed FHWA division officials from those states. We  compared FHWA’s procedures to oversee NEPA assignment states  against standards for information and communication contained in  Standards for Internal Control in the Federal Government.

To determine available information on the number and percentage of the  different NEPA reviews and costs of conducting NEPA reviews for  highway and transit projects, we reviewed relevant publications, obtained  documents and analyses from federal agencies, and interviewed federal  officials and individuals from professional associations with expertise in  conducting NEPA analyses. We also included a question on costs of  conducting NEPA reviews in the survey we administered to state DOTs.

For all objectives, we interviewed agency officials and stakeholders  involved in highway and transit projects from FHWA and FTA  headquarters and transportation industry and environmental  organizations that are familiar with project delivery and environmental  review.

We conducted this performance audit from August 2016 to January 2018  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

Appendix III: Project Delivery Provisions Included in the Three Most Recent Federal Transportation Reauthorization Acts That Apply to Highway and Transit Projects

Appendix IV: Highway Questionnaire and Summarized Responses

This appendix provides a copy of the survey sent to state departments of  transportation in all 50 states, the District of Columbia, and Puerto Rico  concerning their use of the project delivery provisions for highway  projects. The appendix also includes the responses received for each of  the provisions; it does not include information on non-responses, which  resulted either from the survey’s skip patterns or from state officials  voluntarily declining to respond.

GAO also developed names for the provisions in the survey; we  subsequently modified the names of several of the provisions for the text  of our report to make them more intuitive for readers. The following list  matches the provisions that have different names in our report than in the  survey.

• Categorical Exclusion for Projects within the

• Procedures for Initiation of Environmental Review

Appendix V: Transit Agency Provisions Checklist and Responses Regarding Awareness and Use

Description  Authorizes the lead agency of a multimodal project to  apply categorical exclusions from the NEPA implementing  regulations or procedures of a cooperating DOT operating  administration.

Designates the repair or reconstruction of any road,  highway, or bridge that was damaged by an emergency as  a categorical exclusion, subject to certain conditions.

Designates a project within an operational right-of-way as  a categorical exclusion, subject to certain conditions.

Authorizes the designation of a categorical exclusion for  projects receiving less than $5 million in federal funds, or  less than 15 percent federal funds for a project under $30  million, subject to an annual inflation adjustment.

For transit projects, designates bridge removal and bridge  removal related activities, such as in-channel work,  disposal of materials and debris as a categorical  exclusion.

For transit projects, designates preventative maintenance,  including safety treatments, to culverts and channels  within and adjacent to transportation right-of-way as a  categorical exclusion.

For transit projects, designates geotechnical and  archeological investigations to provide information for  preliminary design, environmental analyses, and  permitting purposes as a categorical exclusion  For transit projects, designates minor transportation facility  realignment for rail safety reasons, such as improving  vertical and horizontal alignment of railroad crossings, as a  categorical exclusion.

For transit projects, designates modernization or minor  expansions of transit structures and facilities outside  existing right-of-way, such as bridges, stations, or rail  yards, as a categorical exclusion.

Authorizes a historic site, park land, or refuge to be used  for a transportation program or project if it is determined  that “de minimis impact” would result.

Bars claims seeking judicial review of a permit, license, or  approval issued by a federal agency for projects unless  they are filed within 150 days after publication of a notice  in the Federal Register announcing the final agency  action, unless a shorter time is specified in the federal law  under which the judicial review is allowed.

Description  Authorizes the lead agency for a project to use planning  products, such as planning decisions, analysis, or studies,  in the environmental review process of the project.

Requires that any federal agency responsible for  environmental review to give substantial weight to a state  or metropolitan programmatic mitigation plan, if one had  been developed as part of the transportation planning  process, when carrying out responsibilities under NEPA or  other environmental law.

Allows the lead agency of a project, in order to expedite  decisions, to use an errata sheet attached to a final EIS,  instead of rewriting it, if the comments are minor. Also, to  the maximum extent practicable, combines the final EIS  and record of decision in certain cases.

Authorizes the operating administrations of DOT to adopt  a draft EIS, EA, or final EIS of another operating  administration without recirculating the document for public  review if the proposed action is substantially the same as  the project considered in the document to be adopted.

Establishes a 45-day limit after the notice of intent date for  a lead agency to identify other agencies to participate in  the environmental review process on EIS projects.

To the maximum extent practicable and consistent with  federal law, requires lead agencies to develop a single  NEPA document to satisfy the requirements for federal  approval or other federal action, including permits.

Creates several requirements at the start of a project’s  Section 139 environmental review process, such as 1)  establishing a 45-day deadline for DOT to provide a  written response to the project sponsor on initiation of the  environmental review process; 2) establishing a 45-day  deadline for DOT to respond to a request for designation  of a lead agency; and 3) requiring the development of a  checklist by the lead agency to help identify natural,  cultural, and historic resources, to identify agencies and  improve interagency collaboration.

Authorizes the lead agency to reduce duplication, by  eliminating from detailed consideration an alternative  proposed in an EIS if the alternative was already proposed  in a planning process or state environmental review  process, subject to certain conditions.

Allows a state to use its federal funds to support a federal  or state agency or Indian tribe participating in the  environmental review process on activities that directly  contribute to expediting and improving project planning  and delivery.

Description  Establishes procedures to resolve issues between project  sponsors and relevant resource agencies.

At the request of a project sponsor or a governor of the  state in which the project is located, requires DOT to  provide additional technical assistance for a project where  EIS review has taken 2 years, and establish a schedule for  review completion within 4 years.

Requires DOT to seek opportunities with states to enter  into programmatic agreements to carry out environmental  and other project reviews.

Encourages early cooperation between DOT and other  agencies, including states or local planning agencies, in  the environmental review process to avoid delay and  duplication, and suggests early coordination activities.  Early coordination includes establishment of MOUs with  states or local planning agencies.

Limits the comments of participating agencies to subject  matter areas within the special expertise or jurisdiction of  the agency.

Requires a coordination plan for public and agency  participation in the Section 139 environmental review  process within 90 days of a Notice of Intent or the initiation  of an Environmental Assessment, including a schedule.

Issues that are resolved by the lead agency with  concurrence from stakeholders cannot be reconsidered  unless there is significant new information or  circumstances arise.

Permits states or local transportation agencies to release  requests for proposals and award design-build contracts  prior to the completion of the NEPA process; however, it  precludes a contractor from proceeding with final design or  construction before completion of the NEPA process.

Authorizes states to acquire real property interests for a  project before completion of the NEPA process.

Authorizes the awarding of contracts for the  preconstruction services and preliminary design of a  project using a competitive selection process before the  completion of the NEPA process.

Appendix VI: Comments from the Department of Transportation

Appendix VII: GAO Contact and Staff Acknowledgments

In addition to the contact named above, Steve Cohen (Assistant Director);  Brian Chung (Analyst-in-Charge); Rich Johnson; Delwen Jones; Hannah  Laufe; Ethan Levy; Ned Malone; Josh Ormond; Tina Paek; Cheryl  Peterson; and Joe Thompson made significant contributions to this report.