Legislation, Regulations, & Guidance
FHWA Monitoring Reviews of 23 USC §326 Categorical Exclusion Assignments
The primary objective of Section 6004 Memorandum of Understanding (MOU) monitoring is to determine whether the State is adequately performing the categorical exclusion (CE) decision-making role that, in the absence of the MOU, is carried out by the FHWA. A second purpose is to obtain information on the environmental results of the State's assumption of CE and other environmental responsibilities, so that the FHWA can assess the overall effectiveness of the CE assignment program. The FHWA can undertake monitoring efforts whenever the Division deems appropriate. Minimum frequencies are established by the applicable Section 6004 MOU (Stipulation IV(F)(5)-(6).
Section 6004 (23 U.S.C. 326), the MOU, and this monitoring guidance describe general MOU monitoring practices. Because the responsibilities assigned will vary from State-to-State, the monitoring programs will vary as well. The FHWA Divisions have discretion to tailor a monitoring work plan to meet the specific needs of an individual State that has taken on the CE decision-making role. For example, some assigned CE activities (such as one that complies with 23 CFR 771.117(d), but is not a listed example in that section) may merit more intensive levels of inquiry than others. In some cases, a State's performance of an environmental responsibility assigned under the MOU, such as consultation under the Endangered Species Act, may raise questions that cannot be answered without obtaining information beyond that suggested in this guidance.
The FHWA Divisions should work closely with their State partners to ensure that monitoring actions are not excessively burdensome on either agency, but also that the reviews and resulting reports are credible and provide the public and others with an independent evaluation of the State's performance. A review includes evaluating whether the State provided the resources necessary to carry out its responsibilities under the MOU and 23 U.S.C. 326, and whether the State has complied with the other requirements of the MOU, including compliance with NEPA provisions and other environmental responsibilities assigned under the MOU.
The FHWA reviewers are encouraged to use FHWA CE process review techniques as the basis for creating a 6004 monitoring work plan. Changes to the typical CE process review will be needed to ensure that the work plan adequately addresses Section 6004 tasks and requirements. For example, Section 6004 expressly requires that the FHWA monitor compliance with MOU terms and conditions. The law also requires the FHWA to determine whether the State has provided adequate staff and financial resources. The monitoring information is important because the FHWA must take monitoring results into account when considering renewal of the assignment, and because the FHWA will be expected to report to Congress on the success of Section 6004.
Section 6004 Performance Measures
This guidance outlines below the key performance measures that the FHWA will consider in evaluating the performance and success of Section 6004 MOUs individually and the success of the 6004 assignments across the Federal-aid Highway Program. The performance measures focus on quality and time-savings. Some of the measures (quality measures of State MOU performance numbers1-6) will be important to a Division determination about the adequacy of State performance of its MOU responsibilities. Others (timeliness measure and the FHWA assessment of overall outcome) will produce data that will enable the FHWA to report to Congress and others on the overall success of the 6004 assignments. Also appearing below are some Section 6004-specific guidelines on the standard of FHWA review of State MOU performance and on judging timeliness and overall environmental outcome.
Quality Measures for State MOU Performance
- CE decisions are appropriately and timely documented.
- CE decisions are factually and legally supportable at the time the decision is made.
- CE decision-making procedures comply with NEPA, 23 CFR 771.117, and the MOU.
- The State has met staffing and quality control requirements of MOU.
- The State has complied with other Federal and State legal requirements.
- The State has complied with recordkeeping requirements.
Standard of Review for Quality of State MOU Performance
- The goal is that the State will satisfy quality measures 1-6 in all cases. These measures support the State's fulfillment of its responsibilities under the MOU.
- Where a goal is not attained, the FHWA will evaluate the State's performance on a case-by-case basis to determine the cause of the problem(s) and their importance. The evaluation should include a determination whether corrective measures have been taken to cure the problem and to protect against repetition of the problem.
- On individual projects, the FHWA will look to whether the State knowingly, or through lack of reasonable diligence, incorrectly classified a project as a CE.
- Isolated instances of incorrect CE classification, if the State exercised reasonable diligence and judgment in making the CE decision, may not be indicators of performance problems. However, indicators that the MOU may not be working in a satisfactory manner include cases where there are multiple projects with unsupportable CE decisions (even if unintentional), or repeated failure to meet other Federal and State legal requirements.
The CE assignment reduces the time required for processing assigned CEs, measured by type ("c" list, "d" list examples, other "d" list)
Judging Timeliness Results
Measuring timeliness entails establishment of a pre-MOU baseline for the processing time experienced for PCE and non-PCE CEs in the "d" categories through a process review or other method.
FHWA Assessment of Overall Outcome
Overall, environmental outcomes on CE projects are as good as, or better than, the environmental outcomes on CE projects prior to the assignment to the State (measuring this entails establishment of a pre-MOU baseline for environmental outcomes through a process review or other method).
Judging the Overall Environmental Outcome
- In order to respond to future inquires from Congress and the public, the FHWA will assess whether the assignment has resulted in an overall environmental outcome that is better than, worse than, or the same as the environmental outcomes prior to the assignment. For example, is there evidence that various environmental responsibilities assigned to the State are proceeding faster and with greater accuracy in the identification of environmental impacts and classification of projects as CEs, as compared to when the FHWA was responsible for the CEs and other environmental tasks?
- In doing this outcome assessment, the FHWA will want to take into consideration a broad range of information. In order to enhance the perceived objectivity of this assessment, the Division may consider inviting a representative from a resource agency, the FHWA Resource Center, the FHWA Program Office, or similarly knowledgeable individual to participate. The monitoring steps described in this guidance should help the FHWA gather the information needed to make this judgment.
FHWA Data-gathering, Coordination and Reporting
This section of the guidance offers an operational framework that Divisions may wish to follow when gathering monitoring data relating to Section 6004 performance measures. Also outlined are FHWA coordination and reporting procedures for the monitoring reviews. By following, to the extent applicable, the steps discussed in these two subparts of the guidance, FHWA Divisions will promote agency-wide consistency in monitoring and assessment activities for Section 6004 assignments.
- Scale the level of evaluation effort (i.e., the number of individual project CE determinations reviewed, intensity of document review, etc.) by CE type - i.e., "c" list CEs require lowest level of review, "d" list CEs that are designated under MOU Stipulation I(B)(3) (normally contained in Appendix A to the MOU) require the strongest scrutiny.
- In addition to project-level reviews, gather program-level data on the State's performance of other obligations specified in the FHWA-State MOU. For example, data is needed on the adequacy of State staffing/resources, the scope and effectiveness of the State's quality control processes for the assigned responsibilities, and the State's satisfaction of other environmental review process responsibilities.
- Review the periodic list of CE projects and the full MOU performance reports submitted by the State as required by the MOU (see reporting requirements in Stipulations IV(F)).
- Confirm that the CE analysis, preparation, and decision-making structure operates in accordance with the MOU (interviews may be required).
- Assess staff capability (State's CE preparers and reviewers have appropriate technical expertise, experience, and capacity to handle workflow) to determine whether the State is meeting resource adequacy requirement [see, e.g., the process review questionnaire].
- Review CE documentation and the performance of other assigned environmental responsibilities on randomly-selected projects. The number of selected projects will depend on the State's circumstances and FHWA reviewer's judgment (which should, in turn, be exercised based on State-specific factors).
- Interview State preparers, reviewers, and decision-makers as needed (interviews may be most appropriate for projects that are classified as "d" list CEs under MOU Stipulation I(B)(3) (normally contained in Appendix A to the MOU) or that do not have a long history of CE use on similar projects).
- Review agency and public complaints or indications of concern about the decision-making process under the MOU, as well as State actions in response to those communications. This may require selected interviews with complaining agency staff.
- Coordinate within the FHWA to identify any staff concerns/problems about CE decisions or other aspects of MOU performance.
- Field review selected MOU CE projects to assess whether the type/scope of impacts from the project are consistent with the State's project CE review and documentation and with any other assigned environmental determinations made for the project by the State. For example, if the site visit indicates that an impact occurred, but was not part of the State's CE analysis (i.e., the project CE documentation suggests that the particular type of impact not considered at all, or was considered but the impact in question was missed or not adequately characterized), further inquiry is needed.
- Review the State's gross data on CEs, EISs, EA projects during the periods in question, to look for unexpected trends/anomalies.
- Determine how well the State met the quality and time measures, keeping in mind which measures are applicable to evaluating the MOU performance by the State and which are important to FHWA program evaluation.
- Follow up on the results of the above steps as needed. This may include additional inquiries and/or remedial measures. The nature of the necessary remedial measures will depend on the type and scope of any identified problems. Among the remedial options the FHWA may exercise in appropriate cases are: revision of the assigned CEs to place limits on the State's responsibilities, more extensive FHWA oversight of the State's MOU performance, removal of a particular CE from the MOU assignment altogether, or termination of the MOU.
FHWA Division Coordination and Reporting
- Compile draft report for circulation to the Division Administrator and the Headquarters Program Office. Include in the draft report the Division's evaluation of the State's MOU performance under quality measures 1-6 and the timeliness measure. Discuss also the assessment of the assignment in terms of overall environmental outcomes.
- Provide the State with an opportunity to comment on the draft report.
- Provide any agencies that have expressed dissatisfaction with the State's performance with an opportunity to comment on the draft report.
- Make a final determination of performance issues or other items that need to be addressed by the State.
- Meet with the State to review the findings and establish plan for correction/cure of any identified problems.
- Draft an action plan and circulate the plan to the State and to the Headquarters Program Office for review and comment.
- Complete the final report, including the action plan, and submit the document to the State and the Headquarters Program Office.
- Post a notice of the FHWA report's availability on the State's web site. Arrange for a similar notice on the FHWA's web site or a create link from the FHWA's site to the State's site.
The Program Office will circulate draft reports, final reports, and action plans to other Headquarters offices for review and comment as appropriate. Reports to Congress on the results of Section 6004 assignments will be prepared and coordinated in accordance with applicable FHWA procedures.