TxDOT’s NEPA Assignment

NEPA Assignment is Failing Texans -- Read our full report


Revoke! Reform! 

TxDOT’s NEPA Assignment expires this December, 2024 and a new version of their Memorandum of Understanding (MOU) with Federal Highway Administration (FHWA) is now being drafted. This draft will be posted to the Federal Register, as of July 5, 2024 and be open for public comment for 30 days. Texas advocates call on USDOT and FHWA to revoke TxDOT’s NEPA Assignment. 

The 1970 National Environmental Policy Act (NEPA) serves as an umbrella for relevant laws, executive orders, and regulations for any project using federal funding or property. For transportation, this falls under the jurisdiction of the US Department of Transportation (USDOT), and for highways, FHWA. The process – where potential project impacts must be analyzed – intends to balance transportation needs with people’s social, economic, and environmental needs. 

In 2014, TxDOT joined FHWA’s NEPA Assignment program, which allows the department to approve their own environmental reviews and annually self-audit their compliance. It is no surprise that TxDOT’s self evaluation finds continued success. Yet the experience of Texans in proximity to TxDOT projects tells a much different story. Read our full report — NEPA Assignment is Failing Texans — for examples across Texas.

If revocation is not possible, the MOU must be reformed to ensure regulatory compliance on TxDOT projects so as to uphold NEPA law and protect the Texas communities and land. At minimum:

  1. Improve collaboration with the Environmental Protection Agency (EPA), as it was under federal NEPA jurisdiction, when the Texas FHWA division had an embedded EPA staff that worked in collaboration with TxDOT on major projects.
  2. Require an annual NEPA Compliance Audit be conducted by an independent and unbiased third party. USDOT must ensure TxDOT complies with findings of necessary improvements.
  3. Only assign TxDOT self-certification authority for projects that qualify for Categorical Exclusion (CE) under NEPA, as formerly was the case in Nebraska. Projects designated for Environmental Assessments (EA) or Environmental Impact Statements (EIS) must be under FHWA’s authority. At minimum, NEPA Assignment should only apply to projects with no residential displacements and no takings of conservation easements, wetlands, and parkland.
  4. Prior to the release of a record of decision (ROD) for any project, require FHWA approval for the determination of whether the FEIS has either (1) made substantial changes to the proposed action that are relevant to environmental or safety concerns or (2) significant new circumstances or information relevant to environmental concerns that bear upon the proposed action or impacts of the proposed action.
  5. Mandate a third-party audit for TxDOT projects for which the environmental review has been completed since NEPA Assignment designation (Dec 2014), and which are now constructed. Include a comparison of modeled travel time, number of crashes, air quality, and water quality
    to real data (actual counts).
  6. Require open projects resurrected after more than a three-year delay to include prior impacts in the new environmental analyses. This includes displacements over the life of the project.
  7. Require that community developed and No Build alternatives be studied in full compliance with the NEPA process, and be carried through to the completion of alternatives analysis in the published Final Environmental Impact Statement (FEIS).
  8. Require a Health Impact Analysis, Community Impact Analysis, and Cumulative Impact Alternatives as part of all future EISs.
  9. Require that public comment be analyzed and themes reported publicly to the TTC at a monthly commissioners meeting, and to the FHWA.
  10. In project planning and environmental linkage meetings, require community input on Purpose and Need statements and that public input shape the final statement.
  11. Require TxDOT to model future traffic projections using Dynamic Traffic Assignment (DTA) algorithms as opposed to their current method of Static Traffic Assignment (STA). (TXSC public comment, Connect Texas 2050)
  12. Require TxDOT to study Greenhouse Gas emissions and air quality impacts of a project over the life of the project, not just the expected years of construction. (Connect Texas 2050)
  13. Require TxDOT to perform a modeling analysis to investigate whether project emissions will cause or contribute to violations of the NAAQS for PM2.5, to support the draft conformity determination under the Clean Air Act.
  14. Establish a clear process by which local jurisdictions impacted by TxDOT projects may request that the USDOT intervene or withdraw delegation for a particular project.