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57 | P a g e 4 Recommendations for Implementing NEPA Risk Management There is a growing body of knowledge of risk management as applied to highway development by State DOTs. In addition to this guide on NEPA risk management, two other guides are under development or recently published: ⢠NCHRP 8-60, which produced a Guidebook on Risk Analysis Tools and Management Practices to Control Transportation Project Costs. This project focuses on managing risk in the cost-estimating process. ⢠SHRP2 R09, which is finalizing a Guide for the Process of Managing Risk for Rapid Renewal Projects. This project addresses risk during all phases of highway projects (pre-construction, construction, operations, and maintenance), but provides particular focus on rapid-renewal project elements. FHWA includes risk management principles as part of many program manuals, including its guidance for the development of Project Management Plans for major projects. The National Highway Institute offers a course in risk management (FHWA-NHI-134065), which provides a two-and-a-half-day instruction program on risk management concepts and practices. And there are many private sector guides as well, such as the Project Management Instituteâs Project Management Body of Knowledge (PMBOK®) Guide. In short, State DOTs which want to develop risk management practices, on a project or program level, have a number of resources to draw on. To further the development of risk management practices in DOTs, this section classifies NEPA risks by their origin (for example, internal or external) and in turn suggests the roles the executive leaders can play in advancing policies and programs to address NEPA risk. Executive Leadership Support to Address NEPA Risks Applying the risk management framework described in Section 2 of this guidance will reduce the consequences of NEPA risks and improve overall project delivery. Implementing risk management processes will require a new focus from various parts of a DOT organization (e.g., project managers, technical staff, etc.), but there are a number of important actions by an agencyâs executive leadership which are necessary precursors to providing project managers and technical staff the knowledge and tools they need to practice project risk management on a daily basis. Such âprogrammaticâ risk management strategiesâwhich necessarily require the sponsorship of the executive leadersâare discussed below. Origins of NEPA Risks Section 3 of this guidance provides a broad registry of NEPA risks and potential risk management actions for each. In addressing NEPA-related risks in project development, the origins of those risks can be characterized as either internal or external.
58 | P a g e Internal Risks Internal NEPA risks are those related to an agencyâs program, staffing or project management processes. They range from how projects are managed on a program-level as a whole, including processes for ensuring that projects are viable (i.e., they can be built), to the agencyâs commitment to a high level of program delivery. Other sources of internal NEPA risk include staffing issuesâthe people responsible for managing the NEPA process, and the tools and technology used as part of the project development process. External Risks External NEPA risks are those which originate from outside the DOT, especially from resource agencies and project stakeholder groups. The NEPA process involves coordination with various resource agencies throughout the process. These agencies can be great partners in working through the NEPA process, however, depending upon the resource agencyâs ability to dedicate personnel to the project, the personnelâs understanding of the project, and the consistency of the personnel throughout the project, numerous delays can occur. Policy and regulatory change can also be an impediment to the efficient development of NEPA documentation. While the direction these changes may take is largely beyond the control of State DOTs, remaining abreast of the changes and their potential impacts to the NEPA process can be a key to minimizing the risks posed by policy and regulatory changes. The tables below describe these broad categories of internal and external risks, along with examples of how those risks are manifested in project development, and specific program-level strategies that DOTs can implement to address them.
59 | P a g e Table 11: Program-level Strategies to Address Internal NEPA Risks Internal Origins of NEPA Risk Manifestation of Risks Program-level NEPA Risk Management Strategies Program Risks Over-programming: DOT does not have the staff to deliver its program; Projects in the program which cannot be built, due to financial or environmental issues; Shifting priorities mean that DOT staff start and stop project development, multiple times Some projects in the program for inordinate amount of time without NEPA approval The DOT should have clear and defensible guidance and criteria for project selection. Sometimes this can take the form of a project selection board or commission, or even legislative oversight panel, which can: ⢠Ensure the program is calibrated to available staff resources ⢠dissuade sponsors from developing projects which are not viable ⢠Prioritize locally if not statewide Commitment to Program Delivery Do the public and resource agencies have confidence that the DOT will deliver its program? Establish and publish metrics for program delivery, such as WSDOT Grey Book; Missouri DOT Tracker; or Virginia DOT Dashboard: ⢠Demonstrates the agencyâs commitment to delivering projects ⢠Highlights projects which are behind schedule and/or difficult to deliver, which perhaps illustrates some projects which should be cancelled
60 | P a g e Table 11: Program-level Strategies to Address Internal NEPA Risks Internal Origins of NEPA Risk Manifestation of Risks Program-level NEPA Risk Management Strategies Staff Risks Problems with NEPA processes can occur when the DOT has ⢠insufficient staffing capacity for program delivery; ⢠lack of specialty skills in technical disciplines and project management ⢠high turnover in staff, either through retirement, moves to the private sector, or shifts within the DOT ⢠Create project management offices composed of all technical disciplines to manage large or complex projects ⢠Perform long-range assessment of internal staffing against o Program forecast o Core competencies of internal staff o Rates of attrition in staff areas of critical technical skill ⢠Implement training programs and certifications for staff, in the fields of project management and other technical disciplines ⢠Assign strong, responsible project managers Project Management The internal processes involved in managing projects can create risks in complying with NEPA processes ⢠Organization structure with silos that are build around technical disciplines instead of interdisciplinary project development ⢠Processes that inhibit collaboration in project developmentâe.g., handoffs from one step in project development to another ⢠Lack of management systems to aid critical functions, including project schedule and budget tracking; and systems to support technical disciplines like NEPA commitment tracking ⢠Create project management offices composed of all technical disciplines to manage large or complex projects o Addresses technical discipline silos o Fosters collaborative project development ⢠Review existing project development process to eliminate redundancy and streamline parallel processes o Is there a published process? o Do resource agencies understand and buy-in to the process? ⢠Assess the value added from management systems ⢠Project management and risk management training programs ⢠Strong/clear, responsible project manager expert in each phase of development; hand-off to next phase project manager
61 | P a g e Table 12: Program-level Strategies to Address External NEPA Risks External Origins of NEPA Risk Manifestation of Risks Program-level NEPA Risk Management Strategies Resource Agency People and Process There are a large number of NEPA risks which derive from a DOTs relationship with external resource agencies, and in turn those agenciesâ: ⢠Capacity to review NEPA documents ⢠Understanding of the project and/or its NEPA issues ⢠Consistency in agency decision making, including different units of the same organization (e.g., US Army Corps of Engineers) or the same organization over time ⢠Resource agency staff turnover ⢠DOT-resource agency relationships ⢠State DOT leadership develops and cultivates ongoing relationships with resource agency leaders ⢠Establish formal MOUs or teaming agreements with resource agencies o Possibly include conflict resolution processes ⢠Joint training exercises with the DOT and resource agencies, in NEPA law and process, project management, and conflict resolution ⢠Develop programmatic agreements to address a specific category of resources (e.g., endangered flora or fauna), with prescribed mitigation ⢠DOT-funded positions in resources agencies, to address o Capacity to review documents o Develop consistency in project reviews o Resource agency turnover ⢠DOT funding for resource agency databases or management systems, which would be of mutual benefit to both parties o GIS mapping of environmental resources o Inventories of historic sites and resources Legal and Regulatory Issues The interpretation of NEPA laws and regulations, and changes in those laws and regulations themselves, is a consistent category of external risk across all projects ⢠Joint training exercises with the DOT and resource agencies, in NEPA law and process ⢠Institute a process of legal sufficiency reviews on all projects of a certain size or level of NEPA documentation (e.g., certain levels of categorical exclusions)
62 | P a g e Table 12: Program-level Strategies to Address External NEPA Risks External Origins of NEPA Risk Manifestation of Risks Program-level NEPA Risk Management Strategies Quality of the âadministrative recordâ associated with the project ⢠Provide staff training on creating and maintaining an administrative record of the project development/NEPA process Federal agency being named as a defendant in NEPA litigation, rather than the state DOT which developed the project ⢠Intervention by the project sponsor, to participate in the defense of the NEPA decision with the federal agency â¢FHWA and FTA seek to minimize litigation risks by conducting legal sufficiency reviews for all EISs and Section 4(f) evaluations; legal reviews also occur on a case by case basis for other types of environmental documents. While these reviews are intended to minimize risks, they can also become a source of risk in the project development process â in particular, schedule risk â because of the time needed to conduct the reviews and because of the tendency for federal agencies to have lower tolerance for litigation risk and thus a greater reluctance to move forward with a project in the face of such a risk. ⢠Project sponsors can mitigate this risk by building strong relationships between their own counsel and the federal agencyâs counsel during the NEPA process.
