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Best Practices in Implementing Environmental Commitments

Description:

Commitments resulting from the environmental clearance document are intended to avoid, minimize, or mitigate impacts to environmental resources. These commitments vary in scope and may be derived from federal environmental laws (National Environmental Policy Act, National Historic Preservation Act, Clean Water Act, Endangered Species Act), permit conditions, or other state-level laws and regulatory requirements. Federal agencies and state DOTs are responsible for ensuring these legally binding commitments are implemented throughout the life of a project and ultimately fulfilled. Proper implementation of environmental commitments impacts project delivery through all phases, including planning, design, construction, and post construction.

While these commitments may be codified in publicly available formal documents and are presumably binding, agencies and DOTs nationwide face challenges in the successful management and implementation of such commitments. Common challenges that result in lost and unfulfilled commitments include DOT size and NEPA assignment status, inventory and access, inconsistencies in MOA/MOU language, successful communication with contractors, ensuring commitments are incorporated into the PS&E, change order tracking during construction, and permit expiration during the construction process. Lost and unfulfilled commitments can lead to bad publicity, legal issues, violations and fines from regulatory agencies, and loss of funding. As a result, DOTs have started developing resources and practices to minimize these challenges and ensure quality control and proper implementation, but no nationwide synthesis exists.

Tracking of commitments is considered the main tool for ensuring that specific commitments are implemented. However, as with design, construction and post construction, the quality of the tracking is dependent on both the tracking system that exists and the actors who are responsible for following that system. In design, construction and post construction, the system includes guidance manuals, specifications, flow charts for review and inspection, as well as a tracking platform. The actors responsible may have specific qualifications and training. In the environmental world, defining and standardizing such things as context sensitive design, restricted areas, or monitoring, is not the same as standardizing rebar, the former being highly specific to the situation and extremely challenging to create specifications for. Writing a manual to consider all or even most situations would seem to be a nearly impossible task. As a result, there can be one or more breakdowns in communication, commitment enactment, contracting, checks and reviews and nearly any and all understandings between the environmental group that establishes the commitment, the contractor responsible for implementing it, and the engineer responsible for inspecting it.

Objective:

All environmental units in all state DOTs have encountered situations where the environmental commitment was not adequately implemented. This can lead to bad publicity and a perception that the DOT does not care about the environment. Both NEPA and Section 106 are both laws with a strong public involvement component. Reaching an environmental commitment often is done openly and transparently and creates a public expectation it will be met. Because negotiation of the commitment may have been predicated on gaining hard-fought agreement among many competing interests, failure to meet a commitment can also lead to demoralization among the environmental staff. Mistakes can lead to lawsuits, loss of project funding, and in some cases loss of delegated review authority from FHWA. Consequently, many environmental units have developed tools and techniques to at least minimize if not eliminate situations where the resulting commitments were incomplete, poorly met, or ignored.

The objective of this study is a nationwide review of how state DOTs have constructed workable systems for tracking and implementing environmental commitments and a compilation of best practices. By systems, we mean more than simply noting a commitment in a handoff document and relying on trust to meet it. Both formal processes (DOT standards, handbooks, punch lists) and less formal processes (pre-construction meetings, on-site inspections) are regularly used to ensure project designs and plans are fulfilled. We seek to capture the full range of processes and systems that integrate these processes used by DOT’s that are targeted to environmental commitments.

Formal examples may include:

  • Generalized environmental specifications and scopes of work that may be in handbooks;
  • Requirements that the contractor sign off on having completed mitigation commitments;
  • Project tracking of the environmental commitments in the same project management platform as other design commitments;
  • Requirements of field inspections and sign-offs by DOT staff at specific stages;

Less formal examples may include:

  • Specific meetings with environmental sub-consultants on the mitigation requirements;
  • Production of and adherence to quality control plans by the prime consultant to ensure communication within the project team;
  • Ongoing training by DOT environmental staff to project engineers and construction team, including inspectors, on typical environmental commitments and what to expect;

This study should produce a compendium of all formal and less formal processes used by surveyed DOTs, best practices in standard environmental specifications (and NSSP), and suggestions for improving the overall systems for meeting environmental commitments, looking at both effectiveness and level of effort.

Benefits:

For the reasons stated above, a compilation of best practices for tracking environmental, commitments, including an analysis of tracking systems, would be widely applicable. A substantial portion of constructible projects have at least minor commitments. On larger projects, environmental commitments are baked into the design and construction process and are often highly visible to the public.

Tasks:

1. Survey State DOTs for the following but not limited to:

  • Types of commitments stated and implemented.
  • Methods and systems used and what guidance is there on it?
  • What training programs exist to teach people how to implement successful commitments?
  • How commitments are implemented and how they are checked?
  • How are commitments translated into construction contracts? What are the penalties for contractors not meeting explicit environmental commitments? How often are these enforced?
  • What methods are there for tracking project commitments from one project phase to the next?
  • What ways are there of tracking commitments for local or private projects when the DOT is the lead agency.
  • What other areas of transportation practice (P3s, et al) are tracking commitments, and what practices are being used?
  • What trainings or certifications are needed for different commitments to be monitored? Does the agency have a process to identify who is responsible for the commitment being completed? For archaeological or historic commitments, how are monitors selected? Do they require training if they are not part of existing DOT or FHWA archaeological/historical staff?
  • What are the staffing allocations for tracking commitments?* What tools are there for management of environmental assets that become the responsibility of the DOT for long term and/or permanent mitigation and maintenance?* Are the commitments disclosed publicly and completion tracked publicly?
  • Is there succession planning for the systems used?2. Summary of existing state of practice, including but not limited to:

  • Standard and nonstandard specification

  • Systems and methods used for tracking commitments

    1. Evaluation of the state of practice.
  • Determine the best practices.

  • Compile a compendium of cases of successful commitments.
Implementation:

This research would primarily be implemented by state DOT environmental programs, including cultural resources, NEPA, 4(f) and permit staff, implemented through review and adoption of research results and participation in a webinar prepared for this project. Training workshops and peer exchanges among practitioners would also be effective in implementing the identified successful practices among state DOTs.

Other organizations that might be interested in the research results and could help support implementation include:

  • Federal Highway Administration
  • Federal Transit Administration
  • Federal Railway Administration
  • Advisory Council on Historic Preservation
  • State Historic Preservation Officer
Sponsoring Committee:AME60, Historic and Archeological Preservation in Transportation
Research Period:12 - 24 months
Research Priority:High
Source Info:AME60 RNS development team
Date Posted:10/05/2021
Date Modified:10/19/2021
Index Terms:Environmental protection, Best practices, Environmental design,
Cosponsoring Committees: 
Subjects    
Highways
Planning and Forecasting
Policy
Law
Environment

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