There is always potential for legal challenge of a NEPA document and/or federal permits that can seriously delay or even cancel a project that TDOT has spent years planning. Managing the risk of possible litigation should be part of good project planning. In addition to diligent adherence to NEPA procedures, careful, coordinated preparation of the Administrative Record by FHWA, TDOT and its contractors is an important component of risk management.
Beginning in the earliest phases of project development, it is wise to begin to develop a project's Administrative Record (AR). The AR is a written record supporting the agency's decisions on a particular project. While there is no statutory requirement for an administrative record, court cases have essentially established the requirement that the project record should contain the agency's files on a project, including everything the agency considered in reaching its decision.
Ultimately, it is FHWA's Administrative Record, thus FHWA should be consulted on what items are included in the AR. The Environmental Division planner will take the lead on setting up the record and informing other TDOT staff and consultants of their responsibilities regarding the AR.
FHWA has an internal guidance document addressing the AR that provides some assistance in understanding and developing the record:
Another recent resource is the AASHTO Center for Environmental Excellence Practitioners Handbook 01, Maintaining a Project File and Preparing an Administrative Record for a NEPA Study. This handbook, and other NEPA related guides, can be downloaded from the AASHTO CEE website.
Finally, the National Highway Institute (NHI) offers a free web-based Administrative Record training course. According to the course website, after taking this one-hour course, participants should be able to describe the purpose of an AR, explain the factors involved in determining what should be included in an AR, and describe best practices for building a defensible AR.