REPORT TO CONGRESS ON THE SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM ACTIVITIES

Federal Highway Administration
August 11, 2010 – September 30, 2011

As stated in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU,) Section 6005 (a), codified as 23 United States Code 327(h), the Federal Highway Administration (FHWA) shall submit an annual Report to Congress on the administration of the Surface Transportation Project Delivery Pilot Program (Pilot Program). This is the sixth report submitted to Congress and provides information on the activities of the Pilot Program during its sixth year, from August 11, 2010, to September 30, 2011.

California continues to be the only State participating in the Pilot Program. During the past year, the California Department of Transportation (Caltrans) has functioned successfully under the Pilot Program and has worked on continuous process and procedural improvements, in response to feedback from the FHWA audits and their self-assessments.

Introduction

The Pilot Program, codified as 23 U.S.C. 327, establishes a program to allow the Secretary to assign and the State to assume the Secretary's responsibilities under the National Environmental Policy Act (NEPA) for one or more highway projects. Upon assigning NEPA responsibilities, the Secretary may further assign to the State all or part of the Secretary's responsibilities for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review of a specific highway project. When a State assumes the Secretary's responsibilities under this program, the State becomes solely responsible and liable for carrying out the responsibilities it has assumed, in lieu of FHWA.

The previous Reports to Congress submitted on the Pilot Program are:

This sixth Report to Congress includes the FHWA fifth audit report on the July 2010 audit (Appendix A) that was published in the Federal Register on January 28, 2011 at http://edocket.access.gpo.gov/2011/2011-1870.htm

Activity Since the Last Report

The last Report to Congress discussed that, in accordance with 23 U.S.C. 327(i)(1), “the program shall terminate on the date that is 6 years after the date of enactment of this section,” which would have been on August 10, 2011.

During the month of August 2010, in accordance with the 2007 Memorandum of Understanding (MOU) between FHWA and Caltrans, part 13.1.2, FHWA and Caltrans began the development of a plan to transition the responsibilities that have been assumed by Caltrans back to FHWA. However, on January 21, 2011, the Surface Transportation Extension Act of 2010, Part II, Public Law 111-322, was passed. In accordance with section 2203(c) of that law, 23 U.S.C. 327(i)(1) was amended to terminate the Pilot Program 7 years after the date of the enactment of SAFETEA-LU or on August 10, 2012. Therefore, the development and implementation of the transition plan ceased for a year.

Following the extension of the Pilot Program, FHWA and Caltrans developed and finalized Amendment 1 to the July 2007, MOU between FHWA and the Caltrans. The Amendment modified various sections of the original MOU to reflect the date changes provided by the Surface Transportation Extension Act of 2010, as discussed above. Additionally, various other sections of the MOU were revised to clarify language and specifically to provide a definition of projects that shall be considered to have initiated the NEPA review process by Caltrans (Amendment 1 (5.C)). The Amendment was ratified by FHWA and Caltrans on August 10, 2011.

The FHWA conducted the sixth audit of Caltrans under the Pilot Program October 17-21, 2011. The audit team visited five Caltrans District Offices and Caltrans Headquarters Division of Environmental Analysis office. Following the audit, the draft audit report will be drafted and published in the Federal Register for a 30 day comment period. After responding to any comments received, the final audit report will be published in the Federal Register.

From 4 years of the Pilot Program participation by Caltrans, FHWA continues to find that:

While the Pilot Program has not had the benefit of operating across different States, the strong decentralized structure of Caltrans and the variation across Caltrans' 12 Districts does provide insight into differing and effective approaches to the assumption of the Secretary's responsibilities. The variation across the Caltrans Districts provides a broader perspective for the Pilot Program than a State with a highly centralized or consistent approach would have. However, the highly decentralized structure of Caltrans presents a challenge in the consistent implementation of regulations and guidance.

Lessons learned that should benefit other States that would be interested in participating in the Pilot Program are: