[Senate Hearing 106-961]
[From the U.S. Government Publishing Office]
S. Hrg. 106-961
STREAMLINING: DEPARTMENT OF TRANSPORTATION REGULATIONS ON PLANNING AND
THE ENVIRONMENT
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
PROPOSED REGULATIONS BY THE DEPARTMENT OF TRANSPORTATION RELATIVE TO
STREAMLINING, PLANNING, AND ENVIRONMENTAL IMPACT OF CONSTRUCTION
PROJECTS UNDER THE PROVISIONS OF THE TRANSPORTATION EQUITY ACT FOR THE
TWENTY-FIRST CENTURY
__________
SEPTEMBER 12, 2000
__________
Printed for the use of the Committee on Environment and Public Works
_______
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71-523 WASHINGTON : 2002
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress, second session
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
SEPTEMBER 12, 2000
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 3
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri, prepared statement................................... 50
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 6
Crapo, Hon. Michael D., U.S. Senator from the State of Ohio...... 19
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 17
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 7
Voinovich, Hon. George V., U.S. Senator from the State of Ohio...20, 32
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 1
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......22, 49
WITNESSES
Currie, Jim, deputy director, Montana Department of
Transportation................................................. 40
Frampton, George T., Jr., chairman, Council on Environmental
Quality........................................................ 9
Prepared statement........................................... 50
Responses to additional questions from:
Senator Chafee........................................... 56
Senator Smith............................................ 53
Senator Voinovich........................................ 55
Murray, Carol, Assistant Commissioner and Chief Engineer, New
Hampshire Department of Transportation......................... 38
Prepared statement........................................... 74
Proctor, Gordon D., Director of Transportation, Ohio Department
of Transportation.............................................. 33
Prepared statement........................................... 83
Schiffer, Lois, Assistant Attorney General, Environment and
Natural Resources, Department of Justice....................... 11
Responses by Robert Raben, Assistant Attorney General to
additional questions from Senator Smith.................... 57
Prepared statement........................................... 72
Warne, Thomas R., President, American Association of State
Highway and Transportation Officials (AASHTO), and Director,
Utah Department of Transportation.............................. 35
Prepared statement........................................... 85
Resolution, AASHTO........................................... 88
Responses to additional questions from Senator Chafee........58, 90
Wykle, Kenneth R., Administrator, Federal Highway Administration,
Department of Transportation................................... 27
Prepared statement........................................... 59
Responses to additional questions from:
Senator Chafee........................................... 69
Senator Graham........................................... 68
Senator Voinovich........................................ 62
ADDITIONAL MATERIAL
Letters:
Coleman, Tom J., Jr., Commissioner, Georgia Department of
Transportation, to Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works.................. 100
Johnson, John W., Commissioner of Transportation, Texas
Department of Transportation............................... 103
Raben, Robert, Assistant Attorney General, Department of
Justice, to Hon. Robert C. Smith, Chairman, Committee on
Environment and Public Works............................... 57
White, Patricia A., Transportation Associate, U.S. Nuclear
Regulatory Commission, to Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works.................. 99
Statements:
American Society of Civil Engineers.......................... 92
Association of Metropolitan Planning Organizations (AMPO).... 97
Coleman, Tom J., Jr., Commissioner, Georgia Department of
Transportation, to Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works.................. 101
National Association of Counties and the National Association
of Development Organizations on Highway Planning
Regulations................................................ 91
Stowe, Tim, vice president, Transportation and Planning,
Anderson & Associates, Inc................................. 90
Transportation Departments of Montana, Wyoming, Nevada,
Idaho, North Dakota, South Dakota, Arizona, and Michigan... 75
STREAMLINING: DEPARTMENT OF TRANSPORTATION REGULATIONS ON PLANNING AND
THE ENVIRONMENT
----------
TUESDAY, SEPTEMBER 12, 2000
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:37 a.m., in
room 406, Senate Dirksen Building, Hon. Robert C. Smith
(chairman of the committee) presiding.
Present: Senators Smith, Chafee, Inhofe, Crapo, Voinovich,
Thomas, Baucus, and Graham.
OPENING STATEMENT OF HON. BOB SMITH,
U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Smith. The committee will come to order.
I'd like to welcome the panelists here this morning to our
hearing on the planning and environmental regulations proposed
by the Department of Transportation (DOT). These regulations
cover many cross-cutting issues in transportation, and we're
going to hear from two panels this morning, both the
Administration and the States, on their views.
I certainly want to start off by recalling for a moment the
great work of my predecessor, Senator John Chafee, who, along
with Senator Warner and Senator Baucus and other members of
this committee, passed the so-called ``TEA-21'' (Transportation
Equity Act for the 21st Century) legislation in 1998. This was
landmarked in two ways. First, it marked a 40-percent increase
in transportation funds with guaranteed revenues, but second,
and perhaps more importantly, it gave much-needed flexibility
to the States in meeting the transportation needs, an area that
I certainly agree with.
My involvement in the development of the environmental
streamlining process--it was something that we had worked on
for a long, long time, recognizing that we need to streamline
the process.
I certainly want to also recognize the work of Senator
Voinovich, who has had several hearings on the streamlining
process.
In many areas, the results of the dialog on both the local
and regional level are quite commendable. TEA-21 provides the
statutory basis for making improvements to the process and
relationships, most notably in the northwest in the mid-
Atlantic regions, and even in my own State of New Hampshire.
The Federal Highway Administration has taken an appropriate
role in information sharing and encouraging best practices, but
the ideal vision for transportation planning is one that meets
the needs of all stakeholders and takes environmental concerns
into consideration early, early in the process, with no hidden
agendas in the process and no duplication of effort.
In reaching this vision, we can't expect Federal mandates
to impose a solution for what is ultimately up to the
stakeholders in a particular region to work out.
If there are environmental concerns, let's address them
before we lay out the highway.
In its role as regulators, the Administration has crafted
an umbrella of consultation, data gathering, and planning that
I believe goes well beyond the process refinements contemplated
in the intent of the legislation. I'm sure the Administration
has had advice from competing interests on these issues. It is
certainly difficult to find the middle ground. But what we have
before us today, in my view, is not the best solution, and we'd
like to get into that somewhat this morning.
The environmental streamlining provision called for
concurrent reviews, cooperatively determined time periods for
review, and a formal dispute resolution process between Federal
agencies. I know that the laws and the regulations involved are
complex, but Congress charged the Administration with
establishing a coordinated environmental review process for the
purpose of reducing unnecessary delays.
As proposed, in my view, these regulations do miss the
mark. In TEA-21 Congress directed Federal agencies to jointly
develop and establish time periods for review. The
environmental streamlining section in these regulations directs
the lead Federal agency to identify and distribute a process
schedule. When the results should be to reduce delays, the
regulation asks that agencies confess the delays. Hopefully we
can address that issue here this morning.
We all want early and continuous involvement, but
flexibility must remain, in my view, for each State to build
their own working relationships to make that happen.
Today we have an opportunity to hear how the final
regulations can achieve greater flexibility and less-rigid
mandates.
I know the witnesses have a lot of testimony on these
areas, and I hope the Administration is prepared to take a
serious look at these comments.
[The prepared statement of Senator Smith follows:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
I would like to welcome the panelists this morning to our hearing
on the planning and environment regulations proposed by the Department
of Transportation. These regulations cover many cross-cutting issues in
transportation planning and environmental protection that are important
to the Committee. This morning we will hear testimony in two panels:
the administration and the States.
I want to recall for a moment the great work of my predecessor
Senator John Chafee who along with Senator Warner and other members of
this committee passed TEA-21 in 1998. TEA-21 is landmark legislation in
two important ways. First, it marked a 40 percent increase in
transportation funds with guaranteed revenues. Second, it gave much
needed flexibility to States in meeting their transportation needs. Yet
we are facing increasing congestion on the Nations highways and a
growing need for more transportation choices, especially in our fastest
growing areas. This is good reason to eliminate unnecessary delays that
waste time and millions of taxpayer dollars.
I was directly involved in the development of the environmental
streamlining provisions of TEA-21, in partnership with my colleagues
Senators Wyden and Graham. The implementation of these provisions
remains a top priority for me as chairman of the committee.
Last year, Senator Voinovich's Transportation and Infrastructure
Subcommittee had several hearings on TEA-21 implementation, including
the environmental streamlining issue. At that time, we heard from the
administration on the execution of a Memorandum of Understanding
between Federal agencies to expedite the review process for highway and
transit projects while reaffirming a commitment to the environment.
While it took over a year from that time for the administration to
publish the proposed regulations before us today, the transportation
community has engaged in active dialog on environmental streamlining.
In many areas, the results of such dialog on a local and regional
level are quite commendable. TEA-21 provides the statutory basis for
making improvements to process and relationships and progress has been
made, most notably in the northwest and the mid-atlantic regions, and
in my own State of New Hampshire. The Federal Highway Administration
has taken an appropriate role in information sharing and encouraging
best practices. The ideal vision for transportation planning is one
that meets the needs of all stakeholders, and takes environmental
concerns into consideration early, with no hidden agendas in the
process and no duplication of effort. In reaching this vision, we
cannot expect Federal mandates to impose a solution for what is
ultimately up to the stakeholders in a particular region to work out.
In its role as regulators the administration has crafted an
umbrella of consultation, data gathering and planning that goes well
beyond the process refinements contemplated in TEA-21. I am sure the
administration has had advice from competing interests on these issues.
Well, it is certainly difficult to find a middle ground, but what we
have before us today is not the best solution.
The environmental streamlining provision called for concurrent
reviews, cooperatively determined time periods for review, and a formal
dispute resolution process between Federal agencies. I know that the
laws and regulations involved are complex, but Congress charged the
administration with establishing a coordinated environmental review
process for the purpose of reducing unnecessary delays. As proposed the
regulations miss the mark. In TEA-21, Congress directed Federal
agencies to jointly develop and establish time periods for review. The
environmental streamlining section in these regulations directs the
lead Federal agency to identify and distribute a process schedule. When
the result should be to reduce delays, the regulations just asks that
agencies confess the delays.
The final regulations must not frustrate the intent of TEA-21 for
efficient project development that is still protective of the
environment. We all want early and continuous involvement, but
flexibility must remain for each State to build their own working
relationships to make that happen. Today we have an opportunity to hear
how the final regulations can achieve greater flexibility and less
rigid mandates. I know the witnesses will have detailed testimony on
particular areas for improvements. I hope the administration is
prepared to take a serious look at the comments and take the time
necessary to revise these regulations.
Senator Smith. With that, before I turn to Senator Baucus,
I know that two of the witnesses have a 10:30 time problem, and
so what we're going to do is try to move as quickly as we can,
at least with those two witnesses.
We're going to have a vote at 10 o'clock, I'm told, so that
means at about 10:10 or so, we're going to have to recess
anyway, so at that point, if you have to leave, we understand
that and that's no problem.
Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman.
Mr. Chairman, as you said, we have had two hearings on this
subject and we have been waiting for the Department's
regulations and this is our third hearing. I must say, however,
I'm less than pleased about what I see in these proposed
regulations.
I remember--and you've alluded to it--working with Senators
Warner, Graham, Wyden, and Chafee on TEA-21 in 1990, I guess it
was, and it was difficult. There was a lot there, long
involved. We heard repeatedly from our State DOT's, from
contractors, and from others just how difficult and complex
this system was from planning all the way through to completion
of a project.
In the bill, in TEA-21, we asked the Department to come up
with some streamlining regulations. We did lay out some
considerations. We certainly don't want to give short shrift to
environment. Far from it. But we also clearly directed the
Department to come up with some streamlining regulations, not
regulations that make the process even more burdensome.
I must say that when I look at these proposed regulations
they seem to go backward--not only not forwards, not only not
merely the status quo, but backward, because there are so many
more groups that are to be coordinated with--not consulted, but
coordinated with. I hope the Department can disabuse me of that
assessment by telling me that still the Department makes the
final decisions in all these cases and its various other
agencies, various other groups which properly should be
consulted, which properly should be talked to and listened to,
get their ideas from, but which also should not be co-equal in
making the decisions.
It looks like, from these proposed regulations, that most
of these entities are co-equal in making decisions, so not only
do we have a lot more groups, but the decisionmaking process
looks like it is even more confused than it was in the past.
Now, I don't know where we go from here, frankly. I guess
it depends, in part, on the results of this hearing--that is, what
information we elicit from the hearing and whether some of my
assumptions and assumptions of others are incorrect that could
be corrected by testimony this morning, or, to the degree to
which our assumptions/conclusions seem to be correct, we may
have to go back to the drawing board. I don't know.
It is even more difficult to determine what to do because
we are going to be adjourning here in about a month this year,
and presumably the Department could come up with some revisions
later. We have no way of knowing whether the proposed
regulations will, in fact, streamline or whether, as these
appear, they will go backward again.
Based upon the track record of these, one has to
reluctantly reach the conclusion that the revised, back to the
drawing board, won't be any better, at least not significantly
better than these, and certainly not along the lines that we
had contemplated when we wrote TEA-21.
So, Mr. Chairman, it is with great reluctance that I am
forced to reach the conclusion that I am very disappointed in
these proposed regulations, and I very much hope that the
witnesses can clarify what I see so that we can go forward and
help our people.
We're here to serve people. I don't mean to preach here,
but, my gosh, the contractors, the States, people who construct
highways, I mean, they're our employers. We're the employees.
I'm an employee. You're an employee. We're here to help
streamline this, again, with more than adequate consideration
to the environment and Fish and Wildlife Service and NEPA
process, etc. But NEPA doesn't require these agencies to
decide, you know. It doesn't require that at all.
So, Mr. Chairman, I do look forward to this hearing because
I hope to have some of my assessments clarified, and clarified
in a way which is much more promising.
Senator Smith. Thank you, Senator Baucus.
[The prepared statement of Senator Baucus follows:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you Mr. Chairman.
This committee has held two hearings on the subject of
environmental streamlining since the passage of TEA-21 in 1998. I am
pleased that we are meeting this time to finally discuss actual
proposed regulations. However, I am less than pleased about what I see
in these proposed regs.
I remember working with Senators Warner, Graham, Wyden and Chafee
and with the House members to come to a compromise on environmental
streamlining provisions included in TEA-21. Those provisions are now
Sections 1308 and 1309.
I had heard from my Department of Transportation and from others
about how cumbersome a process it is to come to completion on a highway
project. Everyone who worked on TEA-21 both the House and Senate,
wanted to include a direction to the USDOT to streamline the planning
and project development processes for the States.
We were very clear--the environment and the environmental reviews
should NOT get short shrift! But, we need to find a way to make it
easier to get a project done, eliminate unnecessary delays, move faster
and with as little paperwork as possible.
I cannot over-emphasize that the planning and environmental
provisions of TEA-21 need to be implemented in a way that will
streamline and expedite, not complicate, the process of delivering
transportation projects.
That is why Congress directed the USDOT to include certain elements
in their regulations on Environmental streamlining.
We included concepts to be incorporated in future regulations like
concurrent environmental reviews by agencies and reasonable deadlines
for the agencies to follow when completing their reviews.
Certainly we did not legislate an easy task to the USDOT. Trying to
coordinate so many separate agencies is like trying to herd cats. The
whole concept of environmental streamlining--that is, to make the
permit and approval process work more smoothly and effectively, while
still ensuring protection of the environment--is one of the more
difficult challenges of TEA-21.
So I waited for the rules to come out. And waited. And 2 years
after the passage of TEA-21 I receive these.
I have to tell you Mr. Chairman. I'm very disappointed. I believe
these regulations hit very far from the mark.
I have identified several problems with these regulations and I
will let Jim Currie of MDT go into more detail, but I would like to
mention just a few things that I see as real problems.
First, the raising of the planning process participants to the
roles of decisionmakers. These regs were supposed to help the State
DOTS get their jobs done better and more efficiently. Its one thing to
add more participants to the process. More involvement is a good thing.
But its another thing to give them the authority to make decisions
about how the planning process will work. This decisionmaker role is
currently held by State DOTs and MPOs for a reason.
Second, like the old commercial asked ``Where's the Beef?'' I want
to know ``Where's the streamlining?'' The basic elements of
streamlining the herding of the cats, so to speak is the only thing NOT
in the regs. What statute was the DOT looking at when these rules were
drafted? Certainly not Sections 1308 and 1309 of TEA-21.
These regulations are supposed to answer questions but what is
contained in these documents raises even more questions than before
because they are vague where they need to be precise.
These regs make it even harder, if not impossible to come to a
decision. These regs include initiatives NOT outlined in sections 1308
and 1309 and in many areas serve only to strip States of their
authority.
I would also like to mention that the Montana Department of
Transportation filed comments or wrote letters at every possible
opportunity for the public record. As I read these proposed regs, I see
that MDT's comments were either never read by the USDOT or simply
ignored. I would like to hear from DOT today how it considered the
comments they received on the Options Paper.
Let me close by saying that I believe the proposed rules would add
significant requirements and uncertainty to planning and environmental
review for transportation projects. In practical terms, they would
increase overhead and delay--and delay usually means increased project
costs. These proposed rules could make it difficult for States to
deliver their programs. Contracts won't get let and jobs will be lost.
I know this is a tough task. TEA-21 DOT to streamline a process
while ensuring that we maintain a thorough planning and environmental
review process. Adding requirements to the process is contrary to the
course charted by Congress.
Mr. Chairman, I would have like to have seen representation from
more groups affected by these regulations--like the environmental
community, the MPOs, the highway Community and local governments.
Hopefully we will have an opportunity to hear from them soon.
Regardless, I am very much looking forward to hearing from the
panelists about their views on these proposed regulations.
Senator Smith. Senator Chafee, any comments?
OPENING STATEMENT OF HON. LINCOLN CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. I know we have a time constraint, so I'll
pass and submit my comments for the record.
[The prepared statement of Senator Chafee follows:]
Statement by Hon. Lincoln D. Chafee, U.S. Senator from the State of
Rhode Island
Thank you Mr. Chairman. I have a brief statement I would like to
make on this very important issue.
First, Mr. Chairman, I want to thank you for holding this hearing
today. This certainly is an issue in which an open dialogue between
Members of Congress and the Administration will ensure that any final
rule will be well written and balanced.
I also would like to take a minute to acknowledge the Ranking
Member, Senator Baucus. It was not long ago that you, our current
Chairman and my father were late-night partners putting the final
touches on the landmark TEA-21 legislation. It was a job well done.
As my colleagues are well aware, the Transportation Equity Act for
the 21st Century was approved overwhelmingly in 1998. TEA-21, to which
it is commonly referred, reauthorized surface transportation programs
and funding through the year 2003. Included in TEA-21 was section 1309
entitled ``environmental streamlining.'' As I understand it, the intent
of this section was to make the permit and approval process for highway
construction projects work in a more smooth and coordinated manner,
while still ensuring protection of the environment.
As many know, there is a need to address the concerns raised by
many project applicants, such as our state transportation officials,
about delays in project approvals and the costs that are incurred by
these delays--which are not always inexpensive. However, I believe that
any effort to achieve this goal should not be a means to weaken
existing environmental standards that already have been established. We
are here to discuss ``streamlining'' the process--not ``steamrolling''
it.
This, my colleagues, is where the careful balance to which I
referred at the beginning of my statement comes into play. How can our
transportation projects move forward without circumventing
environmental reviews or limiting a meaningful analysis of
alternatives?
The proposed rule issued by the U.S. Department of Transportation
has generated a great deal of discussion about what the intent was for
section 1309. Further, there is discussion about what exactly
``environmental streamlining'' means to the different parties involved.
In my homestate, this very issue has surfaced. In fact, I have been
contacted by my state transportation director, Dr. William Ankner,
about the need to keep an open dialogue on this issue. According to Dr.
Ankner, the Rhode Island Department of Transportation and the Rhode
Island Department of Environmental Management are hosting a regional
conference next week between the Northeast Association of
Transportation Officials and their counterparts at the Environmental
Council of the States to discuss environmental streamlining and to
develop comments for the proposed regulations. Allowing comments to be
submitted and reviewed will inevitably lead to a improved regulation.
I believe in the shared goal of working collectively to ensure that
(1) environmental concerns are given appropriate and early
consideration in the decisionmaking process, and (2) project delays are
minimized. With that goal in mind, the process for environmental
streamlining will work and our environment will be preserved for future
generations.
In closing, I would like to thank today's witnesses for taking time
out of their busy schedules to be here, and for keeping the dialogue
open for working toward a well balanced approach.
Senator Smith. Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I'm sorry we're a
little bit late here. I won't be able to stay for the entire
hearing. This is the one day a year that the Oklahoma Chamber
of Commerce comes to town, and we call it the longest day of
the year----
[Laughter.]
Senator Inhofe [continuing]. And so we have a lot of
delegations to meet with.
I appreciate, Mr. Chairman, your holding this hearing today
on the Department of Transportation's proposed regulations to
streamlining the planning and environmental review process for
the highway program.
In 1998, I worked with Chairman Smith and other members of
the committee to make changes in the TEA-21 to streamline the
environmental review process for approving highway projects,
particularly the NEPA process, which is within my subcommittee.
With full bipartisan support, the full Senate and the Congress
has, as a whole, worked together to make changes to streamline
this sometimes burdensome process of environmental impact
statements under NEPA.
We came together, crafted a process which would be easier
for the States to implement as they construct new highway
projects, while protecting environment. Unfortunately, the
Administration has completely ignored the law and proposed a
regulation which will make the environmental review program
even more burdensome. These proposed regulations were over a
year late, and with the comment period closing on September 23,
I agree with Senator Baucus that, you know, we're running out
of time in terms of finalizing the regulations.
It seems to me that a political decision was made to punt
this issue to the next administration, perhaps in order to
appease certain constituency groups. Even if this rule was
finalized, as proposed, it would have to be reopened next year
because it does not follow the law. This seems to be part of a
pattern of environmental regulations. The Administration
ignores the law or the science or the facts or sometimes all
three in writing regulations. They get sued. They lose.
Sometimes it is a decree that's entered into. Then they have to
start all over again.
They don't seem to be bothered by the fact that
environmental laws and regulations are in legal limbo for
months or years, nor are they bothered by the cost to taxpayers
in defending these suits. They seem to care only about what has
been scoring a few points with a few groups.
The proposed regulations ignore the clear intent of
Congress and in some cases the clear language of law. I believe
the witnesses on the second panel will do a very good job of
outlining many of these problems insofar as how the States are
impacted.
I believe if the proposed regulations are finalized, the
Government will be sued, they will lose, and the next
administration will have to clean up the mess.
So I think that, even though it is late in the year, I
appreciate the fact that you are having this hearing. They are
bringing these concerns from the States, the ones who are going
to have to be impacted the most by this, so that we can get
them on record this year, if nothing more than that.
Senator Smith. Thank you, Senator Inhofe.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. Jim Inhofe, U.S. Senator from the State of Oklahoma
I appreciate the Chairman holding this important hearing today on
the Department of Transportation's proposed regulations to streamline
the planning and environmental review process for the Highway Program.
In 1998 I worked with Chairman Smith and other members of this
Committee to make changes in Tea-21 to streamline the environmental
review process for approving highway projects; particularly the NEPA
process which is within my Subcommittee.
With full bipartisan support, the full Senate and the Congress as a
whole worked together to make changes to streamline this sometimes
burdensome process of Environmental Impact Statements under NEPA. We
came together, crafted a process which would be easier for the States
to implement as they constructed new Highway projects, while still
protecting the environment.
Unfortunately, the Administration has completely ignored the law
and proposed a regulation which will make the environmental review
program even more burdensome.
These proposed regulations were over a year late and, with the
comment period closing on September 23d, I doubt seriously if they will
be able to finalize the regulations before the end of this
Administration; which might be for the best considering how far off the
proposal is from what is required in the law.
It seems to me that a political decision was made to punt this
issue to the next Administration, perhaps in order to appease a
particular constituent group such as the environmentalists. Even if
this rule was finalized as proposed it would have to be reopened next
year because it does not follow the law.
This seems to be part of a pattern for environmental regulations.
The Administration ignores the law, or the science, or the facts; or
sometimes all three in writing regulations. They get sued. They lose.
Then they have to start over again. They don't seem to be bothered by
the fact that environmental laws and regulations are in legal limbo for
months or years nor are they bothered by the costs to tax payers in
defending these suits. All they seem to care about is scoring a few
points with a few special interest groups with these regulations which
are based more on political science than real science.
The proposed regulations ignore the clear intent of Congress, and
in some cases, the clear language of the law. I believe the witnesses
on the second panel do a very good job in outlining many of these
problems. I believe if the proposed regulations are finalized, the
government will be sued, they will lose, and the next Administration
will have to clean up the mess.
Senator Smith. Let me introduce the three witnesses: Mr.
George Frampton, the chairman of the Council on Environmental
Quality; Mr. Kenneth Wykle, the Administrator of the Federal
Highway Administration; and Ms. Lois Schiffer, Assistant
Attorney General, Environmental and Natural Resources Division
of the Department of Justice.
Welcome to all. As you know, your statements are made part
of the record formally, and I know two of you at least have
time constraints, so feel free to summarize and make the points
you'd like to make, and we'd like to have a few questions
before you have to go.
We'll start with you, Mr. Frampton.
STATEMENT OF GEORGE T. FRAMPTON, JR., CHAIRMAN, COUNCIL ON
ENVIRONMENTAL QUALITY
Mr. Frampton. Thank you, Mr. Chairman and Senator Baucus. I
appreciate the opportunity to testify today, and I greatly
appreciate your courtesy in recognizing that I have another
hearing today.
This spring the Department of Transportation published
notices of proposed rulemaking for new transportation planning
regulations and also for new NEPA procedures to implement those
regulations separate and apart from the rulemaking on the new
planning regulations. With Assistant Attorney General Schiffer,
we're going to devote our attention to the NEPA part of this.
The NEPA regulations obviously spring, in part, from the
streamlining provisions in TEA-21, section 1309, streamlining,
but they're broader than that. The proposed NEPA regulations
actually rewrite all of the NEPA regulations for this area for
DOT, which hadn't been done since the mid-1980's, so they go
somewhat broader than simply the streamlining provisions in
TEA-21.
There are also some aspects of the streamlining provisions
here that DOT has been working on that are not incorporated in
the regulation. For example, the streamlining provisions, the
1309 provisions from TEA-21, talk about setting up a dispute
resolution process, and DOT has done that as contracted with
the U.S. Institute for Environmental Dispute Resolution, the
Udall Institute, to set up that process. That is not embodied
in the regulations.
As you know, Mr. Chairman, the staff of CEQ worked with the
committee on these streamlining provisions and the
Administration supported them. We have worked to try to
implement those and realize the promise of those provisions in
the proposed NEPA regulations, worked with DOT.
The goal of the new proposed NEPA regulations is
streamlining. It is effective early collaboration. It is to try
to achieve the kinds of outcomes that are reflected in this
recent AASHTO case study, a book called, ``Best Practices and
Environmental Partnering: Raising the Bar.'' This is what we're
trying to get at here.
Prior to the hearing, the principal concern that I think we
had heard about the NEPA regulations, proposed regulations, was
that in some way they embody some sort of new substantive
mandate under the procedural parts of NEPA; that instead of
process, this is setting some new substantive requirements that
will need to be met.
I hope that this hearing can set the record straight on
that. There is no intent to do that. I don't think the language
in the proposed regulations does that. I do deal with that in
my written testimony. Certainly, if there are from the later
panels today--since the comment period is still open on the
regulations, you know, if you would be willing to leave the
record of the hearings open, we'd like a chance to hear from
these folks and respond.
But I think the concerns that have been raised about the
language in the NEPA regulations--for example, defining
``practicable'' as ``common sense''--or setting a series of
seven goals that simply reflect the statute and existing
guidance, these are not things that set new substantive
mandates. In fact, we have 20 years of court opinion saying
that the NEPA process provisions, environmental review
provisions, do not create a substantive mandate. We have no
intention to do that. I don't think the new regulations do
that.
Now, Senator Baucus raised the issue of whether the
environmental provisions in some way require consultation with
or greater clout for more decisionmakers in the process. Again,
I think if there are specific concerns about that that will be
expressed later today, we'd like to have a chance to respond to
those.
But my reading of the NEPA regulations doesn't indicate
that the NEPA procedures, themselves, do that. In other words,
the purpose of the NEPA procedures is to try to make NEPA work
better by making sure that everybody who has to be in, who is
going to be in, is in early and is working in one environmental
review process that is collaborative from the very beginning.
If you don't have that, what you have is years of delay. If
you don't get everybody in at the beginning, that's what causes
the delay, in many cases, so that's what we're trying to do.
That's the intent of the regulations. The way I read them,
that's what the NEPA procedures do.
Whether there are provisions in the planning rules that in
some way cause a more-complicated process, I think
Administrator Wykle could better respond to that than I could.
But there's nothing in the NEPA regulations--to me, my reading
is that the NEPA regulations actually do streamline the
process, do simplify the process, and do make sure that anybody
who is going to be in the process is there at the beginning,
with some guaranteed time deadlines.
If the regulations don't accomplish that, then obviously we
want to hear those concerns, specific provisions of the NEPA
regulations that don't accomplish those goals, and see if we
can't work on those problems.
I appreciate very much the opportunity to be here and hope
that we can have the chance after the subsequent panels to
respond to concerns that are expressed.
Thank you, Mr. Chairman.
Senator Smith. I'm going to go a little bit out of order
here and go to you, Ms. Schiffer, because I know the two of you
have to leave.
Mr. Wykle, you don't have to leave; is that correct?
Mr. Wykle. No, I do not.
Senator Smith. Unfortunately for you.
Ms. Schiffer. I'll actually volunteer and say I don't have
to leave, either.
Senator Smith. Let me just say, in response to you, Mr.
Frampton, we will certainly keep the record open for any
response to any panel two concerns so that you have a chance to
respond to that.
Mr. Frampton. Thank you.
Senator Smith. Ms. Schiffer.
STATEMENT OF LOIS SCHIFFER, ASSISTANT ATTORNEY GENERAL,
ENVIRONMENT AND NATURAL RESOURCES DIVISION OF THE DEPARTMENT OF
JUSTICE
Ms. Schiffer. Good morning, Mr. Chairman and members of the
committee.
I am appearing before you today to testify about the
Department of Transportation's proposed rule implementing the
National Environmental Policy Act, or NEPA. This is an ongoing
rulemaking, and ordinarily I do not speak publicly during the
course of a pending rulemaking because the Justice Department
may have to defend the final regulation in court if it is
challenged. I appreciate the committee's sensitivity to this
concern as we proceed here today.
I must say, as a small point of pride, in response to
Senator Inhofe, we actually win more cases than we lose when we
are defending regulations.
Today I will focus on three points: That NEPA is effective
as a statute that, through providing for effective public
participation and development of relevant environmental
information and alternatives, has caused better, more
environmentally-protective decisionmaking throughout the
Federal Government; second, that NEPA has an important role in
decisionmaking about highway projects, and the Federal Highway
Administration and the Federal Transit Administration are
taking an important step in implementing NEPA and the
streamlining provisions of TEA-21 in their proposed
regulations; and, third, the best approach to reducing the
possibility that a transportation project may be slowed by
court challenge is undertaking an effective environmental
review.
NEPA was enacted in 1969, and became effective on January
1, 1970, to address increasing public concern about the
worsening state of the environment. While NEPA has a number of
sections, including important statements about national
purposes and goals, many people have focused on section
102(2)(C), which is the section that requires agencies to
prepare for environmental impact statements for major Federal
actions significantly affecting the quality of the human
environment.
In the early days of NEPA, agencies did not take this
section seriously and courts were free with advice and
injunctions. Eventually, through hard work and effective
guidance from the Council on Environmental Quality, agencies
got the message and developed effective approaches to this
environmental review requirement.
In 1978, CEQ published regulations and virtually every
agency adopted implementing regulations following those of CEQ.
Courts, including the U.S. Supreme Court, have recognized
CEQ's expertise in this area and have given it deference in
interpreting NEPA.
Over time, the number of NEPA cases nationwide has dropped,
as have the number of injunctions. A quick check of my docket--
and this is approximate--shows that I have approximately 13
pending NEPA cases nationwide involving highways. That's quite
a small number, and certainly way down from the 1970's.
In the late 1970's, I actually worked with the Federal
Highway Administration on NEPA cases when I was at the Justice
Department before, and the number of cases was greater and the
EIS's far less effective. The agency has come a long way.
Courts have repeatedly held that the environmental review
provisions of NEPA are procedural only, that they require the
agency to develop and evaluate environmental information,
including social and economic impact information, to develop
and evaluate reasonable alternatives for a project, and to
provide for effective public participation.
National Environmental Policy Act does not dictate a
substantive outcome to an agency, but the expectation is that,
with effective information available, the agency will make
better decisions that are likely to be more environmentally
protective.
Because transportation projects can have widespread impacts
on the physical environment and on communities, NEPA is
important for these projects.
The public participation component of NEPA is also crucial.
It gives those people with interest in and concern about a
project the opportunity to participate in developing
information that will be available to the agency when it
decides how to proceed.
The streamlining provisions of TEA-21 underscore the
importance of early and effective coordination among Federal
agencies and with the States. These are useful provisions that,
when implemented, should avoid delay and assure better
decisionmaking.
I must say I've had many meetings around my conference
table with different agencies who have a role in making
decisions about a permit necessary for a project, and the idea
that they coordinate early is a very effective one that could
well be a model.
A review of the Department of Transportation proposed NEPA
rule, including the preamble to the proposed rule, reflects
great interest in and concern for both NEPA and the
streamlining provisions. Department of Transportation uses a
NEPA umbrella to carry out these goals. That should be a very
good approach. It stresses that streamlining must be about
better compliance, not about weakening environmental
protections and public participation.
A word about environmental justice--and I just have a
moment more. I understand the committee has concerns about the
environmental justice provisions of the draft regulations.
Without getting into detail, I note that in February 1994,
President Clinton issued an executive order and accompanying
memorandum stressing that paying attention to the effect of
Federal actions related to the environment on minority and low-
income communities is imperative. DOT'S draft NEPA rules
emphasize the importance of considering environmental justice
issues during the environmental review process.
Council on Environmental Quality has issued environmental
justice guidance to which courts will give deference, and
generally the proposed DOT regulations follow that guidance.
Certainly highways and mass transit projects can have a
significant effect on minority- and low-income communities, and
regulations that assure public participation and development of
information are useful. The committee may choose at some future
time to hear from the environmental justice community or the
environmental community about their views of these proposed
regulations.
Since the enactment of TEA-21, we have been meeting
regularly with the Federal Highway Administration--and I must
say this happened right after the statute was passed--to talk
about effective ways to implement NEPA, streamlining, and other
environmental laws so that if DOT is sued we will have a good
defense.
The most effective defense to a concern about NEPA
challenges is an effective NEPA process with effective
development of information, a number of reasonable
alternatives, good public participation, and sound coordination
among Federal and State agencies that have a role. These
proposed regulations, in general, will help serve that purpose.
Thank you. I would, of course, be pleased to answer any
questions the committee may have.
Senator Smith. Thank you very much, Ms. Schiffer.
I'm told that the vote at 10 o'clock, that we were going to
have has been vitiated, so that gives us a little more time.
What I think I'll do is change the procedure just a bit and
have Members ask a question or two. Instead of going with any
minute rule, let's just ask one or two questions of each of the
two witnesses who have to leave at 10:30, and then we can go
back to regular order and we'll hear from Mr. Wykle.
Let me just start, Mr. Frampton, with you.
I certainly share the frustration that Senator Baucus and
Senator Inhofe and others have outlined here. You know, we
spent a lot of time on this, and the intention was to
streamline, not to go around environmental concerns, but rather
to get those concerns addressed early on in the process, and
yet it seems, as you look at these proposed regulations, that
it is--and we'll hear in a moment from the States, but it seems
as if it is worse.
Let me just give you two examples that I'd like you to
respond to.
In the proposed regulations there is a requirement for DOT
to manage the NEPA process in order ``to maximize attainment''
and ``environmental ethic.'' Where in language of TEA-21 do we
come to any conclusion that there should be language like that
in the law? In other words, where is there any authorization
for that kind of requirement?
Second, under the proposed regulations, they also suggest
that a transportation decision should be made through ``a
collaborative partnership involving Federal, State, local, and
tribal agencies, communities, interest groups, private
businesses, and interested individuals.''
Now, the public has a right to comment. That's in the law.
What's the legal authority for this expanded role?
I mean, those are the kinds of things that I think have
caused us some problems, so if you'd just comment on those
briefly, and then I'll yield to Senator Baucus.
Mr. Frampton. Mr. Chairman, the first--you raised two
issues. The first is the provision of section 1420.107 of the
proposed regulations, which says that it is the intent that
NEPA principles of stewardship and TEA objective of timely
implementation should guide the decisionmaking, and that the
process be managed to maximize attainment of seven different
goals: Environmental ethic, environmental justice, integrated
decisionmaking, streamlining, collaborative process, practical
transportation problem solving, and financial stewardship.
To me, that's a sort of preambular provision that simply
reflects the kinds of goals that are in NEPA, itself, and in
various other laws and requirements that have, you know, over
time, since 1970, become a part of this process.
When you say ``where is the authority,'' it seems to me--I
would like an opportunity to sort of submit a more-detailed
statement in response to your questions--but it seems to me
that is basically a preamble that outlines the overall goals of
the process, just as NEPA, itself, outlines overall goals.
Senator Smith. They're pretty general phrases.
Mr. Frampton. Pretty general.
The second quotation that you made, is that referring to--
is that a rephrase of the preamble, where it talks about
guiding Federal, State, local, and tribal decisionmaking?
Senator Smith. I don't know if it is a rephrase of the
preamble, but it's just a--the point I was making was that I
think you've added--you've gone beyond, in this collaborative
process, gone beyond the law.
Mr. Frampton. If the NEPA regulations appear to create new
decisionmakers, then they shouldn't do that. The NEPA
regulations are a framework for the process of doing an
environmental review. So I would be surprised if there is
language in the proposed NEPA regulations that creates new
decisionmakers, but if there is, I think that's obviously
something that we would want to take a look at, because that's
not the intent of the regulations, and I don't think the courts
would ordinarily allow that kind of substantive mandate to be
created in NEPA regulations.
Senator Smith. I think that goes to the heart of what we
think we intended and what maybe you think we intended, or
that's the issue here.
I think I read it as it does expand the legal authority for
these other groups, which I think goes beyond the statute, but
that's an area I want you to look at.
Senator Baucus.
Senator Baucus. Yes.
Section 1308 of TEA-21, the last line reads, ``The scope of
the applicability of such regulations shall be no broader than
the scope of such section.''
Now, your proposed regulations delete the major investment
studies, and the alternatives basically say that the
alternative analysis applies to any investment, any size, not
just major, but any.
Now, that clearly to me is broader than the scope of the
section. Why did you do that? Why does the proposed regulation
delete ``major'' from investment alternatives, instead,
therefore, any alternative, regardless of size, must be
investigated?
Mr. Wykle. Would you like for me to respond to that?
Mr. Frampton. I think that Administrator--I don't think
your question is directed to the environmental review
regulations.
Senator Baucus. They are directed to the Administration.
Mr. Wykle. I will respond to that. Perhaps a little unfair
to ask Mr. Frampton.
Senator Baucus. It is probably more properly addressed to
you.
Mr. Wykle. As directed in TEA-21 and as shown in our
regulations, we have completely eliminated the requirement for
major investment studies.
TEA-21 guidance did ask us to integrate the planning and
NEPA processes, bring them more closely together. And so we
emphasize the importance of the planning process and the fact
that the products from the planning process could be, should be
used as part of the NEPA process, itself, in terms of doing the
environmental reviews.
Experience has shown us that really the failure to do good
work in the planning process--and if those documents or
products are not used in the NEPA process, that's where you
have your redundancy, that's where you have your duplication,
and that's where you slow down your project delivery.
Now, we certainly can't guarantee that everything developed
in the planning process would be accepted in the NEPA process,
but we feel the majority, if not all, will, and that, in
itself, then will speed up the overall process.
So the intent is to follow the TEA-21 guidance, integrate
the planning and NEPA process, eliminate the major investment
studies, and in doing that we would deliver projects more
quickly.
Certainly, if organizations feel that there are some words
or phrases that we should change to make that more clear, we
are more than happy to do that because this is a proposed rule,
so it is a proposal out for comment.
Senator Baucus. I appreciate that. I do not find that
answer persuasive, but I appreciate your giving the answer.
Second, many times throughout these regulations the word
``consultation'' has been deleted, and the word either
``collaborate'' or ``cooperate'' has been inserted, leading one
to at least wonder whether, instead of consulting--and
consulting generally means you give somebody information on
what you're doing and you consult that person, whereas
``cooperate'' has the connotation that you have to have
agreement.
Can you give me, Mr. Administrator, your reasons for the
switch?
Mr. Wykle. Again, it was our, I guess you'd say,
interpretation to follow the intent of Congress in terms of
TEA-21 because TEA-21 outlines three types of, I guess you'd
say, activities, organizations, people--locally-elected
officials, those that are affected officials, locally-affected
officials, and local transportation officials. So, in following
that guidance, we were trying to cover the groups that needed
to be talked to, consulted with, get input from because a
project affects a lot of people that's going through a given
area, so our attempt was to identify those groups that would be
affected.
If there is another way to say that, in terms of an overall
umbrella term or less listing of specific types, we're
certainly willing to take a look at that.
Senator Baucus. I appreciate that, but I have a very strong
belief, in looking at these regulations, that has the effect,
at best, of being confusing, not knowing how much power these
groups have.
Mr. Wykle. Sure.
Senator Baucus. Which will increase litigation, clearly;
or, at worst, does give these groups a lot more power, which
slows down this process.
I might also add, Mr. Administrator, there's a lot of--the
proposed rules inject, I believe, new substantive
considerations into NEPA. One section required the Department
to ``manage'' the NEPA process in order to maximize attainment
of, among other things, goals of environmental ethic, maximize
environmental ethic. I don't see that in NEPA anywhere in the
law, but that's what the regulations do. Also environmental
ethic--maximize attainment of, among other things,
environmental ethic.
Another stated goal or collaboration, not consultation, is
that the transportation decisions are made through a
collaborative partnership. Boy, that's vague. What in the heck
does that mean? Lots of lawsuits there involving Federal,
State, local, tribal agencies, communities, interest groups,
private businesses, interested individuals. What in the world?
Mr. Wykle. Well----
Senator Baucus. If I might, Mr. Administrator, it also has
the effect of taking a lot of authority away from elected and
appointed officials, the degree to which collaboration and/or
cooperation means co-equal decisionmaking. That's the worst
case.
The best case out of all this is it is even more confusing
than the current regulations.
To be honest with you, I am baffled.
Mr. Wykle. Well, that concern----
Senator Baucus. Given the charge of Congress, I'm just
baffled at the proposed regulations.
Mr. Wykle. That certainly was not our intent, in terms of
making it more confusing, so I appreciate your comments.
Senator Baucus. Good.
Mr. Wykle. And we certainly will look at the comments that
come in from the others, because, as has been mentioned, the
comment period has not been closed yet, and so we expect to get
considerably more comments by the 23rd.
But, again, in terms of tribal organizations or tribal
governments, if there is a project that impacts on their lands
or their areas, then certainly we would expect for them to be
involved in the planning process earlier.
Senator Baucus. Mr. Administrator, it says much more than
``tribal governments,'' your regulations. It says communities,
interest groups--interest groups? That's right in the
regulations--private businesses, interested individuals. You
have to go out and collaborate with everybody who seems to be
interested and give them co-equal power? I mean, it has that
implication.
Again, at best, it is----
Mr. Wykle. Sure. I appreciate that, sir, and that certainly
was not the intent, but, as I mentioned, TEA-21 had the three
categories, and the one was affected local individuals,
officials, so----
Senator Baucus. If it's not the intent----
Mr. Wykle [continuing]. Let's get it out of there. We're
getting that guidance. That's not the intent, so we'll take a
look at that.
Senator Baucus. Thank you. Thank you, Mr. Chairman.
Senator Smith. I know that, just for the benefit of the
Senators who came in a little late, Mr. Frampton and Ms.
Schiffer have to leave at 10:30 for another testimony over on
the House side, I believe, so if you have a couple of quick
questions for each of those two witnesses, I'll try to get to
each Member, and then we can come back to Mr. Wykle.
Senator Chafee.
Senator Chafee. It just sounds as though these new
regulations are taking bipartisan torpedoes, and I haven't
really heard the defense as to how we are streamlining, and I
look forward to--we haven't heard your testimony yet, Mr.
Wykle, but we look forward to it, and hopefully there will be
further answers either through your testimony or through
answers of other questions.
I don't have any questions.
Senator Smith. Senator Graham.
OPENING STATEMENT OF HON. BOB GRAHAM,
U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Graham. Well, I'd like to convert Senator Chafee's
comment into a question, because clearly one of the motivating
forces behind this provision in TEA-21 was a series of
experiences which had a common theme, and that was that people
did not get together at the beginning of the process,
substantial amounts of time and dollars were expended on a
project which seemed to be feasible by people who were
professional and experienced in the field, only to find, toward
the end of the process, when permits were requested from a
variety of Federal agencies, that the permits were denied, and
they were denied on grounds that were knowable at the beginning
of the process.
So the question is: How do we avoid that situation so that
people who have responsibilities, particularly at the State and
local level, can get a clear green light that what they are
proposing to do is going to be permittable, a yellow light that
what they are proposing to do is potentially permittable but
will require modifications, or a clear red light that no matter
what you do you cannot get this project permitted and you'd
better spend your time doing something more constructive?
To what degree is it your interpretation--and I ask this to
any member of the panel who would like to comment--that we've
accomplished that objective of getting the decisionmakers, in
terms of those people who will have eventual Federal regulatory
authority, such as the Corps of Engineers or various components
within the Department of Interior, at the table at the
beginning of the process to give that green, yellow, or red
light signal before all this investment is made in a project
that may be doomed from the beginning?
I can tell you, as one of the co-authors of this section,
we may not have been Shakespearian in our communicative
ability, but that was what the Congressional intent was. How
has that intent been captured and realized? And how would a
specific situation such as I outlined in a hypothetical sense
be treated differently under these regulations than they have
been in the past?
Mr. Frampton. Senator, let me take that from the
environmental review side of this.
My understanding is that the planning regulations
streamline and simplify the planning process, to some extent,
certainly eliminate at least one major step that TEA-21
envisioned would be eliminated.
I think the NEPA procedures are designed to try to
accomplish exactly what you describe by saying, ``We want to
pull in all of the State and Federal permitting, processing.''
All these agencies have got their own independent statutory
authorities and have to give permits. We're going to try to
pull that all into one process. At the beginning, make it a
public process and satisfy the independent statutory
authorities of a number of State and Federal agencies who have
a stake in this.
So certainly the NEPA part of this is designed to be a much
more streamlined process. Indeed, there is a provision in the
regulations which is, I think, unusual, if not unprecedented,
that imagines that there might be an alternative process
proposed by States or other parties that would fit a particular
project that would be different from these regulations. Plus,
you have timelines and you have a dispute resolution process.
So the part of it that is the environmental review that
fits the planning is supposed to integrate with the planning,
is really designed to make this a one-stop, one-process kind of
thing. That, as I understand it, is a major step forward here
on the environmental review.
The concerns that I have heard this morning have to do with
language in the preamble and in some of the other portions of
the NEPA regulations that talk too much about collaboration,
too much about cooperation, too much about meeting goals. I
think we need to look at those concerns and review those
provisions.
It is designed to take a multi-faceted process and turn it
into a single process.
Senator Graham. Are you saying that an agency like the
Corps of Engineers would have to come in at the beginning of
the process, outline what their requirements for permitting
would be, and then be held to those commitments at the time the
actual permit was requested, which might be at the middle or at
the end of the process?
Ms. Schiffer. Certainly, as I read the proposed
regulations, they talk about using NEPA as an umbrella, which
means that all of the agencies that have to permit would come
in, including, in your example, the Corps of Engineers. It is
quite explicit about using the NEPA process as the umbrella for
all of the permitting processes.
Then, in addition, there's a requirement that timeframes be
established at the front end, which I think is also something
that certainly, in my experience, I haven't seen and should be
very helpful to assuring that the process moves forward in an
effective way.
The one other thing I might add, there was discussion
earlier about use of the terms ``partnership'' and
``collaboration,'' and certainly, as Mr. Frampton has said, he
will take a look at this again. But I might add that the
opposite of that is the adversary process, and I think that one
of the concerns that has generally been expressed as government
agencies make decisions is that it gets to be too adversarial,
and that lands us up in court, and so an approach which is
looking at getting concerns out on the table early and then
seeing how they can be most effectively addressed, consistent
with statutory authorities, would appear to help to avoid
litigation down the road.
Senator Smith. I'd like to just get to the last two
Senators before they have to leave.
Senator Crapo.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you very much.
Just a quick comment on the collaboration issue.
I, for one, am a strong proponent of efforts to move toward
collaboration. The concern that I think I see and that I think
is being expressed by others here is that what appears to be
done in these regulations is that, in the name of
collaboration, the amount of potential adversaries in an
adversarial process is being dramatically expanded, and so I
think that when we talk about collaboration we have to use more
than just the word and look at whether we truly get a real
collaboration.
But let me just ask one quick question. I'll hold back on
my other questions for you, Mr. Wykle.
I think, Ms. Schiffer, this is probably more of a
legalistic question.
It seems to me, as I review these proposed rules and
regulations, that we have a very interesting use or
circumstance in which an Executive order is being used now to
impose a massive new Federal mandate on the States.
What I'm talking about is that it appears that the rules
transpose Executive Order 12898 on environmental justice into
now a regulatory requirement that requires the States to
collect and provide to the Federal Government--States and
MPO's--to analyze and collect huge amounts of data on the
distribution of transportation funds to meet this Executive
order's objective.
I have a problem in the first place with whether this
Executive order is authorized by law, but, second, to the
extent that it is, the real question I'm asking is: Can an
Executive order serve as the basis for the imposition of a
Federal mandate on States and individuals?
Ms. Schiffer. Well, Senator, without addressing the issue
of the authority that I think the President did have to issue
that Executive order, and without really taking on the question
of whether it imposes a mandate, what I think is responsive to
your question is that to implement that Executive order the
Council on Environmental Quality has issued guidance for how to
implement NEPA to take a look at the information about the
impact of environmental projects on minority- and low-income
communities and, in general, what I think these proposed
regulations do is put into these regulations what is in that
guidance.
Courts will, in general, defer to the Council on
Environmental Quality and its guidance for what NEPA means, and
really what CEQ has done is just say that NEPA provides the
opportunity to look at the kind of information about impacts on
minority- and low-income communities, and, in general, these
regulations seem to carry forth that CEQ guidance.
Senator Crapo. Well, it would seem to me it will be
interesting to find the core issue here, which is whether there
is any Federal law which supports this Executive order, and, if
so, then it would be that Federal law which would justify the
imposition of this Federal mandate on the States. But it does
seem to me to be an interesting circuit that we're following
where an Executive order is issued, agencies then take the
Executive order and create rules and regulations that implement
that Executive order, which then, in turn, impose a Federal
mandate on States and other individuals. I think that is
stretching to the maximum the system of law that we have in
this country, particularly in terms of our efforts here in
Congress to try to reduce the impact of mandates on States.
Senator Smith. I want to particularly compliment Senator
Voinovich for the hearings that he's held on this issue at the
subcommittee level and recognize Senator Voinovich at this
time.
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. I apologize that I wasn't here, but I
had to preside this morning.
I'm just going to ask one thing. TEA-21 states that the
replacement for the major investment study shall be no broader
than it was before. That's what it says. Why do the proposed
regulations require that the new MIS-type study be required for
all urban projects, not just major projects, as the current
rules require? Why are all of them included?
Mr. Wykle. Well, I addressed that question earlier when
Senator Baucus asked it, but I will----
Senator Voinovich. I'm sorry.
Senator Baucus. I'd like to hear it again, the answer.
Mr. Wykle. I was going to say I'll be happy to give it
another go. I don't know that it was overly successful the last
time.
But, from our perspective, we eliminated all references,
all requirements to major investment study. TEA-21 asked us to,
in essence, eliminate that and integrate the planning and the
NEPA process together.
So what we tried to do was emphasize the importance of the
planning process and using planning documents in the
environmental process. So the products, if you will, that came
out of the planning process would be used in the NEPA process.
By doing that, we felt we would address this earlier, we
would eliminate duplication and redundancy when we got to the
NEPA process because we would use those documents throughout
the entire process because our experience shows that really the
failure to use the planning products as you get to the next
stage of the NEPA process is one of the reasons projects are
slowed down and they are delayed, because we start over or we
don't give credibility to those documents that have been
prepared in the planning process and/or they are not complete
enough to use in the NEPA process.
So we can't guarantee that everything that is done in the
planning process will be used in the NEPA process, but that's
our intent. That's the philosophy that we're trying to get
through in these proposed regulations.
So we were not looking to broaden in any way or add
requirements over and above the congressional direction. We
thought we were simplifying it. Eliminate the major investment
study, integrate the planning and NEPA documents, do this work
up front, use those products throughout, and in doing that you
eliminate duplication, redundancy, and speed up the process.
Not convincing.
Senator Voinovich. The fact of the matter is that you're
saying that the MIS is going to be involved in all of these
projects because you want to get everything integrated in the
beginning, and so you'd better include that in in the beginning
rather than doing it in one and not in another?
Mr. Wykle. I would hope we're not saying that, sir. We have
eliminated the MIS. There is no reference to it or requirement
for that in any of the regulations. We're saying the work you
do in the planning process should be detailed enough and
complete enough that it can be used in the NEPA process, and
when you get to the NEPA process it should be much easier and
go faster because you addressed these concerns and issues in
the planning process.
Senator Voinovich. But there is consideration of the MIS
in----
Mr. Wykle. I don't think you'll find any reference to the
MIS.
Senator Voinovich. But it is implicit in the beginning in
terms of the NEPA process, so by--is that what you're saying?
Mr. Wykle. Well, we're certainly saying that some of the, I
guess, technical work or actions that are taken under ``the old
MIS process'' are still needed, and so you would do that in the
planning process, and then the results of that, that product,
should make it much easier and more efficient when you get to
the NEPA process--the environmental impact statement, doing all
of that environmental work--because you did a good job in the
planning process.
I mean, our experience has shown one of the difficulties
now, in terms of delaying projects, is when you have a
disconnect between the planning process and the NEPA process.
The documents and the work that you do in the planning process
are not used in the NEPA process, so you start over again. You
haven't involved groups early in the planning process so, as
Senator Graham mentioned, the first time they hear about it is
when they come to the NEPA process and they raise the flag in
saying, ``This is a surprise to us. You didn't consult with us.
We weren't aware of this project, or we weren't aware of the
impact of this project.''
We're saying do all of that early in the planning process,
get them all on board, in agreement, or at least know where the
disagreements are as you move forward, and you carry that all
the way through and that should significantly improve the
process and speed up project delivery.
Senator Voinovich. I'd like to talk to you about it later.
Mr. Wykle. Sure. I'll be happy to, sir.
Senator Smith. Senator Thomas, you just came in. Two of the
witnesses, Mr. Frampton and Ms. Schiffer, have asked to leave
about 5 minutes ago.
[Laughter.]
Senator Smith. What is your timeframe? When do you have to
testify?
Mr. Frampton. I've got a few more minutes.
Senator Smith. A few more minutes. Mr. Wykle has not yet
given his statement, so if you have questions of either of the
other two witnesses you can proceed right now, or of Mr. Wykle,
if you wish.
OPENING STATEMENT OF HON. CRAIG THOMAS,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Thomas. Thank you, sir. I appreciate that, and I'm
sure I will be duplicative.
I guess the question is, there was an effort made here over
the years, and particularly in TEA-21, to make this whole
process more simple, more efficient, to blend in to getting the
job done. We've had some very long projects right where I live,
as a matter of fact.
I guess my question, Mr. Frampton--and I've been dealing
with NEPA with your organization long before you were there,
with very little success, frankly. There has been very little
change ever made. Why would State departments, and so on, think
that these proposed rules are probably going to be more
burdensome rather than less?
Mr. Frampton. I'm not sure, Senator, and I'm eager to
review the testimony.
Senator Thomas. You haven't heard any of these----
Mr. Frampton. I have not reviewed the testimony from the
later panels this afternoon and asked before that the hearing
record be kept open. But I think, from our read of the
environmental review, proposed regulations, they do try to
centralize and integrate permitting processes from other
agencies into one single process, and that should mean better,
as well as more efficient environmental review.
The concerns that I think I have heard here have to do with
whether language in the NEPA regulations creates new mandates
or endows new parties with some substantive decisionmaking
authority. That's not our intent. I don't think these
regulations do that, but obviously they are proposed and we'll
take a look at that.
For example, there is concern expressed that somehow there
is a new mandate imposed on the States to collect information
relating to environmental justice. I don't read the regulations
that way. But, aside from the legal point that Senator Crapo
raised, I guess I would say we're dealing with a practical set
of problems, and that is how to have an integrated, streamlined
environmental review that fits with the planning, satisfies the
statutory requirements, and gets to an end result.
In identifying seven goals of the NEPA process, one of the
goals is to take account of the fact that highway projects and
mass transit projects have impacts on people. They have impacts
on communities. They have impacts on minority- and low-income
communities. We can't pretend that they don't.
An EIS that doesn't take account of those factors--agencies
today, with or without these regulations, that do an EIS on a
major highway or mass transit program that don't take account
of potential impacts on minority- or low-income communities,
you know where that EIS is going? Down.
The goal here is to try to make sure that the factors that
have to be taken into account at the beginning will be taken
into account at the beginning. That is the central problem, it
seems to me, that you all sought to address with section 1309
and that we are trying to address.
Now, I realize there is concern from the State highway
folks about language here, mandates, too much collaboration.
We'll need to look at those issues. But I do think that the
regulations and the environmental provisions that relate--
review provisions that relate to them do create a much better
process here, and if we need to tinker with this or we need to
be careful about the language, we'll do that. But this is a
major step forward.
A big part of that is making sure that the people who have
to be in and the concerns that have to be in are there at the
beginning, because if they're not then the process is longer
and the process is more likely to fail, and that is what we've
had in the past.
Trying to pretend that you can't--you want to eliminate
some of these issues because they're a little bit
uncomfortable----
Senator Thomas. Mr. Frampton, I don't think that's the
issue. The issue is that Congress----
Mr. Frampton. That's what we're trying to avoid.
Senator Thomas [continuing]. That Congress said to you,
``Try and make these more streamlined. Try and make this more
efficient,'' and my question is--and you don't need to answer
it. We'll hear some more people. Did that happen or didn't it?
Mr. Frampton. I think these regulations and the
environmental review provisions that relate to them implement
your intention and make a major step forward.
Senator Thomas. OK. We'll see.
Mr. Frampton. Now, if there are issues or concerns that
somehow we have made it more complicated or we've created new
substantive mandates or we've endowed new decisionmakers in the
process, then we want to be careful about that because that's
not the intent of any of these sets of proposed regulations.
Senator Thomas. Thank you.
Senator Smith. Somebody else may have one more question of
the witnesses, but let me just pick up on what Senator Thomas
was just asking you, Mr. Frampton.
You said, when I asked these questions earlier, you
mentioned ``preamble.'' This is not preamble language. These
are in your goals.
Now, under the law, the law allows for comments on the
proposals, but here is your language under your proposed rule:
``The applicant must have a continuing program of public
involvement which actively encourages and facilitates the
participation of transportation and environmental interest
groups, citizens groups--'' as Senator Baucus pointed out
before--``private businesses, the general public, including
minority and low-income populations, through a wide range of
techniques for communicating and exchanging information.'' Now,
our goal was to streamline this process. That's not
streamlining. That is absolutely not. And that's not a
preamble. That's language, direct language that ``USDOT
agencies will manage the NEPA process to maximize attainment of
the following goals: Environmental ethic, environmental
justice--'' not defined, and on and on and on--``a
collaborative partnership involving Federal, State, and local,
tribal agencies, communities, interest groups--'' again, as
Senator Baucus said, could be anybody. It could be anybody.
And ``this decision shall be made.'' There is no question
about what you're doing here. This makes no sense. I mean, with
all due respect, I think you've totally violated the spirit and
the intent of Congress in streamlining.
We tried to make the process better, not to avoid any
environmental impact studies or anything else, but just simply
to streamline the process, get the environmental concerns dealt
with in a manner so that we can proceed, or, if it can't be
dealt with, then don't proceed, but not to have this kind of
language here.
I mean, for you to--I don't see how you can defend this.
``We're going to work on it. We're going to do this.'' Get it
out. That's not the intent here, and everybody has said this on
both sides of the aisle.
I don't mean to sit here and beat on you, but, I mean, it
is really clear that this language is just not going to work.
It is going to totally violate what we are trying to do. So I
would ask you to consider that when you go back and work on
this.
Senator Baucus. Mr. Chairman, if I might, this is not
really probably very fair, but it is an anecdotal experience.
In Montana, one of the environmental review problems very
clearly was a bridge, the Thorn Street Bridge in Missoula, MT.
It turned out it was an Endangered Species Act problem. But the
Fish and Wildlife Service did not get enough information to the
Montana Department of Transportation early enough so that their
bridge could be designed in a way to conform with the
Endangered Species Act--that is, it would not destroy habitat.
So I am agreeing with you that a lot of this is more up-
front consultation and exchange of information, but the problem
was budget. There's only, I think, one or two Fish and Wildlife
people in the State of Montana. There are, like, 116 in
Seattle. It's just nuts. That had the effect of slowing down
the building of a needed bridge in my State.
So, again, part of this is budget, part of this is agency
allocation. If we want to streamline, really streamline, then
that information would have been received by the Department of
Transportation much more quickly and earlier, but it wasn't,
partly because of budget constraints, at least in Montana.
I agree that it makes sense to get out and talk and
consult, and so forth, but I have a problem when I see words
here in the proposed regulation which at least make it appear
that perhaps the people that you are consulting with, that the
Department would be consulting with, are people that have an
equal say or a near-equal say or a significant say in the final
decision.
You've many times here said, ``That's not our intent.
That's not our intent.'' I'd like to know what is your intent.
What is your intent with respect to the congressional mandate?
Is the intent to have a greater environmental review than
currently exists in current law? Is it your intent to really
streamline?
I can give you some ideas how to streamline--that is, give
all of the relevant agencies 30 or 60 days to comment, and if
they don't comment then the State construction can go ahead. If
there is a failure by one of the agencies, then there's
probably going to be a lawsuit, and if there is a lawsuit,
pretty soon the departments will get the message and make sure
the agencies do their job. Things will get done.
This world is run by deadlines, dates and deadlines and
quantifying information. I can come up with some streamlining
regulations pretty easily, I think, and give these agencies
deadlines, for example. They don't have deadlines now.
They are also sequential, seriatim. Some agency, you know,
looks at it first and then comments, and then another agency
looks at it and comments, and that is a significant problem
that states are facing in trying to get these projects out.
I don't see anything about that in your proposed
regulations. Instead, your proposed regulations seem to be a
new exercise of chaos theory, you know, just get everybody,
consult, talk to everybody in a kind of feel-good kind of
intent of just everybody is in on this, kind of one big, happy
family. Boy, it just seems to me that is going to not
streamline. That's going to delay.
I'd like to know what is your intent.
Mr. Frampton. I think we've heard----
Senator Baucus. What is your intent here?
Mr. Frampton. I think our intent is to find the balance
that you and Mr. Chairman have described here between, on the
one hand, a streamlining which--as you said, one way to
streamline this is to give everybody 60 days and have done with
it. You don't provide opportunities for collaboration, you
don't encourage that----
Senator Baucus. Include the consultation.
Mr. Frampton. The problem of going too far in that
direction is, No. 1, you may end up with substance that is not
defensible, and, No. 2, you create a lot of people who are
unhappy because they were pushed out of the process. To some
extent, that may have been what has happened in the past.
To deal with that problem, the regulations attempt to have
an integrated, single process with time lines, but to make sure
everybody comes in at the beginning.
Now, as the chairman has pointed out, if you go too far in
that direction, you are expressing concern that too much
collaboration then creates----
Senator Baucus. How much power do you intend these other
groups to have?
Mr. Frampton. We're trying to find a balance between----
Senator Baucus. How much power? How much decisionmaking
power do you intend these other groups to have?
Mr. Frampton. The proposed NEPA regulations don't create
any new rights. They're not designed to, I think, create new
rights or substantive----
Senator Baucus. So is it your intent not to?
Mr. Frampton [continuing]. Mandates for additional players
to make sure that the people who are going to be at the table
anyway----
Senator Baucus. You didn't answer my question, Mr.
Frampton.
Mr. Frampton. I'm sorry.
Mr. Wykle. I'll respond to that, sir. The intent is not to
give additional decisionmaking authority to anyone. The intent
was to draw them in, get their comments and concerns, but they
are not in the decisionmaking chain.
Senator Baucus. That's helpful. Thank you.
Mr. Wykle. So if we need to change the word
``collaboration'' to something else----
Senator Baucus. Well, the word ``consultation'' has been
stricken and in its place ``collaboration'' and
``cooperation.'' You know, somebody did that for a reason.
Senator Smith. Senator Voinovich, did you have a question?
Senator Voinovich. Yes. This is on the same point. We're
getting into the issue of are you making it easier or more
difficult. You get in the area of environmental justice--you
know, as a former mayor and a Governor of a State, the
regulations mandate data collection, identifying low-income
minority groups, yet fail to reveal the standards by which
individuals are classified. How are the groups defined? Whether
a group is minority may change with each community around the
State. For example, in cities African Americans may be in the
majority, while they may not be in the suburbs. You know,
what's the threshold?
What constitutes a denial or reduction of benefits? For
example, if a ramp is not available to a specific neighborhood,
does that mean that that highway project is not going to go
forward? How do you define these things?
I know for sure that you have all these little things in
this thing, and if somebody makes up their mind, ``We're not
going to let this thing happen,'' they can drag this thing out
forever and ever and ever. Where's the close-off date? Where's
the time line?
I mean, when you look at this stuff--and I was part of TEA-
21--this is not streamlining it. I think you are making it a
lot more difficult to move projects ahead. At least it isn't
what we anticipated streamlining to be.
I want to say that I am in favor of putting a moratorium on
this. I am in favor of--frankly, I don't think you've met what
we've asked you to do, and I think that maybe we are going to
have to revisit this issue, ourselves, and pass some
legislation that does accomplish what we intended to do in TEA-
21 and 1309.
Senator Smith. Does any other Member have a question of Mr.
Frampton or Ms. Schiffer?
[No response.]
Senator Smith. If not, if you folks need to leave, that
would be fine.
Mr. Frampton. Thank you, Mr. Chairman.
Ms. Schiffer. Thank you for accommodating us, Mr. Chairman.
Senator Smith. Thank you for coming.
Mr. Wykle, you have been involved in the Q and A here
pretty extensively, but if you have anything that you'd like to
say that you didn't get to say because you didn't give your
opening, please feel free to do that now. Of course, your
statement is part of the record.
STATEMENT OF KENNETH R. WYKLE, ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION
Mr. Wykle. If I could, sir, I would like to summarize some
things that I had in my opening statement.
Senator Smith. Sure.
Mr. Wykle. Obviously, I am very pleased to be here today,
seriously, in terms of responding to your questions.
As Mr. Frampton indicated, in May we put out three notices
of proposed rulemaking, one on planning, one on NEPA, and one
on ITS architecture, and through these rulemakings the intent
is really to improve the project delivery process and get the
projects delivered more quickly. We think we can do that by
better integrating the planning and the NEPA requirements,
getting the two integrated together.
So our proposals--and, as I indicated earlier, they are
proposals, because they are out for comments. They are not
final rules yet. Our proposals respond, we believe, to the new
statutory requirements in TEA-21, while attempting to align our
regulations with the laws and with the recent court decisions
in these areas.
We developed these proposals through an open process, an
inclusive process that began almost immediately after the
passage of TEA-21. We had regional forums, we had focus groups,
and we had workshops getting input from the various interest
groups and the States and others and getting their comments.
Our outreach effort identified three main areas of concerns
from these groups: No. 1, a need for early involvement of a
variety of parties in the planning and project development
process, so early involvement was No. 1; No. 2 was flexibility
for the States to create their own custom-tailored procedures;
and No. 3, improve the linkage between the planning and NEPA
processes.
We listened carefully to our stakeholders and have
attempted to provide options that will assist States, local
governments, and transit operators in identifying ways to
improve their transportation planning and decisionmaking.
We definitely have tried to avoid a one-size-fits-all
mandate. We think there is considerable flexibility in these
proposed regulations.
It is certainly clear that achieving some of the results
will be difficult, and one we have talked about, the
elimination of the major investment study. We deleted this
required study from all major projects. We focused simply on
improving the relationship between the planning and the
environmental processes.
In our view, being able to use the planning products more
effectively in the environmental process should, as I have
mentioned, eliminate duplication, reduce cost, and shorten
project delivery time.
Our recommended changes to the environmental rules
recognize that the work done in the planning process will be
used in the environmental process stage. We know that there are
some concerns about perceived broadening in the range of
projects affected for subjecting the planning process to NEPA
analysis.
We will review these and other comments to ensure that, in
our effort to reflect congressional intent, we have not created
unintended consequences nor failed to give appropriate
recognition to the many interests affected by transportation
decisionmaking. We want to work with our stakeholders on their
issues.
In TEA-21, Congress directed the Department to streamline
both the planning process and the environmental review process.
Our proposed regulatory changes are only part of our
streamlining efforts. Guiding projects through the planning and
review process faster, without compromising environmental and
civil rights safeguards, is a complex undertaking for which
there is no easy solution.
DOT regulatory revisions, alone, will not provide a total
solution for reducing delays, because the majority of
environmental laws and regulations are under the authority of
other Federal agencies, but we are working with our Federal
partners, with the State DOT's, and with other stakeholders on
multiple approaches to streamlining.
We are developing national and regional memoranda of
understanding; programmatic agreements, as was mentioned;
dispute resolution procedures; reimbursement procedures for
Federal resource agency staffing to get at the issues that
Senator Baucus mentioned in terms of shortage of Fish and
Wildlife folks in Montana; and performance measures so that we
can report back to you on streamlining progress over time.
We are encouraging the expanded use of the Federal
agencies' ability to delegate authority to State agencies, to
act on its behalf of carrying out Federal regulations.
This has occurred in Vermont, with the historic
preservation responsibilities, and in Michigan and New Jersey
for wetland permitting.
Our regulatory proposals are now in the public review and
comment stage. In response to many requests, we have extended
the comment period to September 23. We assure you that the
Department will carefully evaluate all the concerns and the
proposed changes that are submitted and make changes as
appropriate before we finalize these rules.
We certainly look forward to continuing to work with you,
with the interested parties that have commented on our NPRM's,
and to improve the planning and environmental review process.
We hope that this cooperative effort will lead to the
development of regulations that will successfully implement our
shared goals of streamlining the environmental approval
process.
The Department is certainly open to all sound alternatives,
and the outcome of this rulemaking is in no way predetermined.
We think we have made a significant improvement in terms of
flexibility, as Mr. Frampton mentioned, for the first time
providing the States the option of submitting an alternative.
If they think there is a better way on a project, they can come
to us and submit that and we will certainly take a look and
help them find a more objective and flexible way.
That concludes my remarks, and I will continue with
questions.
Senator Smith. Mr. Wykle, I don't have any further
questions. If any other Member does, they can feel free to
question you.
Let me just say this, though. You've heard across the board
here a lot of frustrations----
Mr. Wykle. Right.
Senator Smith [continuing]. From the authors of the
language. I think we know pretty well what we intended. I don't
think that the intent has been captured in what you're doing,
and I hope you will take that back and make appropriate
adjustments. That's just my advice, for what it is worth.
Mr. Wykle. We will do that, sir.
Senator Smith. Does any other Member have a question of Mr.
Wykle?
Senator Baucus. Mr. Chairman, I have no more questions. Mr.
Chairman, just a couple of points.
One is that when the DOT put out its options paper for
comment, various State departments of transportation did
comment. I know my State of Montana did, and I know others did,
too. It seems like their comments were not considered in this
proposed regulation, which raises the question of what
assurance does the public have that those kinds of comments
will be considered in the future.
But, apart from all that, I know, Mr. Wykle, you've got a
tough job, and it is just my suggestion that if you have the
time that you listen to the next panel, because I think if
you'll listen to the next panel personally and if you could
stay for the hearings in the audience here that that would be
very helpful and help the Department to know what steps to take
next.
Mr. Wykle. Thank you very much, sir. We will do that.
Senator Baucus. Thank you.
Mr. Wykle. I will give you my assurance we will consider
the comments and certainly make contact with the appropriate
staff here to ensure that we are meeting your intent, because
that's what we want to do.
Senator Baucus. Thank you.
Senator Smith. Senator Graham, did you have another
comment?
Senator Graham. Yes. Thank you, Mr. Chairman.
I want to go back to my Corps of Engineers question. In
reviewing your statement, where you talk about improving the
linkage between planning and the NEPA process, you give three
principal goals: Early involvement, flexibility, and
integration of planning and environmental review process.
I may have missed it, but what I am looking for is the
process by which the Federal permitting agencies, such as the
corps, will be required at that early involvement stage to give
a clear indication as to whether this is a permittable project
that is about to be commenced; if not, is it subject to
remediation that would make it permittable? Or, if not, is it a
fatally flawed project and, therefore, should be abandoned.
Second, once having made that assessment--green, yellow, or
red--and the State having come into compliance if it is a
yellow situation, that the permitting agency--in my example,
the corps--would be committed to permit the project at the
appropriate time during the process of design and development
of the details of the project.
Mr. Wykle. Well, certainly it is our hope and our intent
with these revisions that the corps and the other Federal
resource agencies will be involved in this process early, and
that's the intent of trying to get them up in the planning
process, so we can all get in a room, we can lay out the
purpose and need of this project, and then we can find out
right up front very early whether or not there are any concerns
from any of those Federal resource agencies. If so, then we
want to talk about that and see what action can be taken to
mitigate that or to resolve their issue.
The one key point I believe you are getting at, sir: Can we
require them to attend and participate? We cannot. We cannot
require another Federal agency to come and attend. We can
encourage them. We are working to get memorandums of agreement
where they will agree and state that they will come and
participate.
Once they come and participate we get their concerns, we
work to resolve those. But, again, there is no iron-clad
guarantee that later on in the NEPA process they may want to
make some refinements or change something. We would hope that
would not occur, because we ask to document consultations as we
go along, so we know what is agreed to and what the comments
are, but we cannot guarantee that they will not change or
modify later on in the process, and I think that is perhaps
what you are getting at.
Senator Graham. You do not believe that the statute that
was passed in TEA-21 provides the authority to require the
participating agencies to make such a binding commitment?
Mr. Wykle. We do not believe that the current statute gives
us the authority to require other Federal resource agencies to
come to the table and abide by a decision that's made early in
the process.
Senator Graham. If that is the case, either our objective
is a futile one, in my opinion, or we need to then ask the
question: What law changes would be required so that those
permitting agencies would, in fact, be required to make a
determination at the beginning of the process whether this was
a permittable project and then be bound by that early
determination?
Mr. Wykle. Our experience has certainly been that when
requested and asked they come and participate, but our
experience also shows that there are occasions when different
agencies change their position or modify it as you go through
the process.
As of now, our interpretation is we have no authority to
require them to stand by a given decision.
Senator Graham. Who would you ask to draft the legislation
that would be necessary in order to achieve that goal of
requirement for early stage involvement, participation, and
then commitment, and to be bound by that commitment?
Mr. Wykle. I don't know, sir. I will provide that for the
record after consulting with my legal staff. But I think it is
going to be very difficult because there are 40 different
statutes out there and these agencies respond to different
oversight committees, so we will need to work to see if there
is a way to do that. I just cannot answer that right now.
Senator Graham. I'll look forward to your response.
Mr. Wykle. For the record.
Senator Smith. Senators Voinovich or Thomas or Chafee, do
you have any other questions?
[No response.]
Senator Smith. Let me just conclude, Mr. Wykle. In New
Hampshire, Interstate 93, we've had a couple of meetings, and
people are working very well together to use this as a model of
streamlining. As you know, there was another highway in our
State, 101, that took--it is still not completed after 20
years. There have been a number of fatalities as a result of
environmental--late environmental implications to that. We're
trying to use this as a model. Frankly, the headquarters level
of the Federal Highway Administration and the regional people
have been very, very cooperative and seems to go against what
you are putting in the language here, which I'm very grateful
for.
So let me just put that on your radar screen to make sure
that we can see to it that these projects go along at a
reasonable manner without these unnecessary delays.
As I say, your regional people are working very well with
us on that project, but, again, the language--we'll hear more
about that in the next panel, but the language seems to
indicate a different direction, and I don't want to see that
change, not only in New Hampshire but anywhere else.
Thank you very much for your time.
Mr. Wykle. Could I just say one thing, sir?
Senator Smith. Yes.
Mr. Wykle. We appreciate those comments, and we have pilot
programs with several other States to look at various ways to
improve the process. Certainly, the intent of our regulations
is to do the types of things we are doing in New Hampshire and
the other pilot programs, so I very much appreciate the
feedback this morning, certainly the view of some of our terms
and definitions of those terms, and I look forward to hearing
the comments from the panel coming shortly.
One final thing, sir, just to kind of give you a
quantifiable basis. Of all the projects, 97 percent are
approved in 2 years or less. Now, 2 years is still too long for
many. Many of those are environmental exclusions, but they move
fast. We want to even shorten that time. Only 3 percent of the
projects take over 2 years, and certainly those are the large,
visible, complex projects. We want to shorten that time period,
and that is the purpose, certainly, of your interest and the
interest of this committee in terms of working to streamline
the process, and we are committed to working to do that.
Thank you very much.
Senator Smith. Thank you, Mr. Wykle.
I will now call the next panel.
Senator Graham. Mr. Chairman, while the next panel is
coming, if I could just comment on that last statement?
Senator Smith. Yes, Senator Graham.
Senator Graham. The problem is not, at least in my
experience, getting initial approval of a project so that the
State moves forward with more-detailed design and land
acquisition, all the things that go on with a big project. The
problem is 5 years later, when they apply for the permit and
then are denied, and all of that effort that they've expended
is for naught.
I'd like to know how many projects fell into that category
of what I call the ``post-approval gotcha'' project.
Mr. Wykle. We're working to get some of that data, sir, and
we will provide that to you, in fact, because we have an effort
underway to identify those projects that have been open more
than 5 years since a record of decision and why, and so when we
get that compiled I'll give you a copy of it.
Senator Graham. And how many projects are either terminated
or require extensive renovation because of requirements which
were not known until the project was deep into development.
Mr. Wykle. OK, sir. Thank you.
Senator Voinovich. Mr. Chairman.
Senator Smith. Yes, Senator Voinovich.
Senator Voinovich. Mr. Chairman, I had an opening statement
that I'm not going to have read because I want to hear from
this panel.
[The prepared statement of Senator Voinovich follows:]
Statement of Hon. George V. Voinovich, U.S. Senator from the State
of Ohio
Thank you, Mr. Chairman, for conducting this important hearing this
morning on the Department of Transportation's proposed regulations on
planning and environmental streamlining. When I was Governor of Ohio, I
witnessed first-hand the frustration of many of the various State
agencies because they were required to complete a myriad of federally-
required tasks on whatever project they initiated.
With my background as a local and State official, I bring a unique
perspective to this issue. While environmental review is good public
policy, I believe that there are more efficient ways to ensure adequate
and timely delivery of construction projects, while still carefully
assessing environmental concerns.
Congress recognized the frustration of the States and enacted
planning and environmental provisions to initiate environmental
streamlining and expedite project delivery. These programs are embodied
in sections 1308 and 1309 of TEA-21. Section 1308 calls for the
integration of the Major Investment Study, which had been a separate
requirement for major metropolitan projects, with the National
Environmental Policy Act (NEPA) process. Section 1309 of TEA-21 calls
for the establishment of a coordinated review process for the
Department of Transportation to work with other Federal agencies to
ensure that transportation projects are advanced according to
cooperatively determined time-frames. This is accomplished by using
concurrent rather than sequential reviews, and allows States to include
State-specific environmental reviews in the coordinated process.
Last year, I conducted two hearings as Chairman of the Subcommittee
on Transportation and Infrastructure on streamlining and project
delivery. During those hearings I stressed how important it is that the
planning and environmental streamlining provisions of TEA-21 be
implemented in a way that will streamline and expedite, not complicate,
the process of delivering transportation projects. A year after these
hearings and nearly 2 years after the passage of TEA-21, the Department
of Transportation finally published its proposed planning and NEPA
regulations on May 25, 2000. Frankly, I am very disappointed with how
long it took to propose these rules, and I believe many of my
colleagues feel the same way. More importantly, there is a lot of
disappointment with the proposed rules in general.
I strongly believe these proposed regulations are inconsistent with
TEA-21 and congressional intent and do little, if anything, to
streamline and expedite the ability of States to commence
transportation projects. The proposed rules create new mandates and
requirements, add new decisionmakers to the process, and provide
endless fodder for all kinds of lawsuits, especially with regard to
environmental justice.
In Ohio, the process of highway construction has been dubbed: ``So
you Want a Highway? Here's the Eight Year Hitch.'' My hope has been
that in the future we could say ``So you Want a Highway? Here's the
Five Year Hitch.'' I don't see that happening with the proposal we have
before us. For that reason, I am willing to support a moratorium on the
proposed regulations should any be attached to an Omnibus
Appropriations bill this year.
I welcome each of the witnesses who have come to testify on the
proposed regulations at this morning's hearing. I look forward to their
testimony and answers to any questions that may follow.
Thank you.
Senator Voinovich. But I would like to put up a poster that
we had in Ohio, if we could. ``So you want to build a
highway?'' It's an 8-year hitch. We'd like to put it up here.
As you mentioned, we had two hearings on the 1309 process,
and I came here to Congress with the idea that we might be able
to shorten it up, and we had hoped that we maybe would have,
``So you want to build a highway,'' maybe just a 5-year hitch,
you know, maybe 3 years off of it.
But I must tell you that, after reading these proposed
rules, that I don't think that chart is going to be changed one
iota and that we'll still have the same problems and, in fact,
in some instances more problems than we have now to move
forward with major highway problems.
I'm interested in the answers to the same questions that
you asked. They say 3 percent, but the 3-percent probably are
80 percent of the major highway projects in the country.
Senator Smith. Is the next panel here? Come on up, please.
The next panel consists of: Ms. Carol Murray, the assistant
commissioner of the New Hampshire Department of Transportation;
Mr. Jim Currie, the chief of staff of the Montana Department of
Transportation; Mr. Gordon D. Proctor, the director of
transportation of the Ohio Department of Transportation; and
Mr. Thomas Warne, the president of the American Association of
State Highway and Transportation Officials.
Welcome to all of you. Why don't we start with you, Mr.
Proctor, and work down the table.
STATEMENT OF GORDON D. PROCTOR, DIRECTOR OF TRANSPORTATION,
OHIO DEPARTMENT OF TRANSPORTATION
Mr. Proctor. Mr. Chairman, members of the committee, my
name is Gordon Proctor. I am the director of the Ohio
Department of Transportation.
Senator Smith. Excuse me for interrupting. Let me just say
all of your statements will be made part of the permanent
record, and please summarize in a few minutes, if you can.
Mr. Proctor. Yes, Mr. Chairman, I will.
On behalf of Governor Bob Taft, I appreciate this
opportunity to be here. I will summarize even my summarized
statements.
I came here today trying to convince you that these
regulations needed to be sent back for fundamental revision,
and I can see that the committee is certainly ahead of me
there, so I will not belabor the point.
I will touch on just a few highlights, though, and one is
that I think the vast majority of the AASHTO States have called
upon USDOT to fundamentally rewrite these provisions.
As you know, the current process is one of excessive
overlap, delay, and redundancy. We think that with these
additional requirements that have been added that there will be
more delay, more redundancy, and more overlap.
As other speakers have said, the new rulemaking attempts
some streamlining; however, these attempts are more than offset
by establishing broad and very vague new tests which must be
met before transportation projects can be approved. These new
tests far exceed anything currently in law.
Ironically, when Congress ordered USDOT to streamline its
current regulations, the DOT, instead, created some new
regulations and new tests for transportation projects to meet.
Instead of making the process more efficient, these rules can
make it more excessive.
Just three quick examples. The MIS requirement, as we have
heard--we think the implication is that MIS type studies will
need to be done for a broader array of projects, and I think
this clearly is not the intent that the committee or the
Congress had.
Second, the proposed regulations greatly expand the role
for non-elected, unaccountable advocates to establish
themselves as decisionmakers in the transportation process. We
think that direction seriously erodes the ability of State,
city, county, and other local elected officials who participate
in the planning process.
Currently, the people who are accountable to the local
electorate make the zoning plans, they make the annexation
plans, they comprise the metropolitan planning organization
boards which vote on transportation plans and programs. Even in
Ohio, where we have home rule before we can build a project in
a community, we must get consent legislation from that
community, which takes a specific vote by city council.
All of that is not taken into consideration in these rules,
and so we then create a duplicative Federal process to second
guess the local decisionmakers who have already set their
priorities, and we think this clearly goes beyond the intent of
the committee.
Third, the regulations commingle the explicit congressional
intent under title six with the ambiguous Executive order for
environmental justice, and it creates a new field of litigation
for transportation projects that has never existed.
Under the title of environmental justice, the new rules
seem to create new protected classes which have special
standing in the transportation process.
We do not have clear definition on who these groups are or
how they are identified; however, State DOT's will have to
become
census-like agencies who analyze these demographic groups and
ensure that not only do we not discriminate against them, but
that there are no unintended consequences of projects which
could create ``disproportionately high and adverse impacts.''
We applaud title six and all that it stands for. As Senator
Voinovich knows, when he was mayor of Cleveland and then Ohio's
Governor, Ohio went to great lengths to create opportunity for
all protected classes; however, these new rules provide endless
fodder for lawsuits by any group which can infer that it has
received disproportionately high and adverse impacts by any
action taken by a department of transportation, or, more
importantly, by any action not taken by a DOT.
Any presumed reduction in benefit by a DOT could be
actionable under this overly broad and vague environmental
justice requirement. In effect, a decision not to fund a
project could become actionable under this regulation. This new
concept that a reduction in benefit was created, that new
concept is not recognized in the President's Executive order,
and I think it clearly goes beyond the intent of this Congress.
I know that there are a lot of speakers still ahead of me,
and I will try to be very brief.
The Federal decisionmaking process for transportation
projects churns endlessly. It never stops. The rule book never
stops changing. No sooner do we adapt to a new Federal rule
than it changes.
Ohio just published our new policy for complying with the
President's Executive order on environmental justice. Now these
new proposed changes change the environmental justice policy.
We at the DOT are wrestling with new Corps of Engineers
nationwide permits for wetlands. Those, in turn, triggered new
water quality interpretations, which are further clouding our
decisionmaking process, and we are also waiting new rules on
something called ``total daily maximum load'' for storm water
runoff.
We, at the State Department of Transportation, try to be
sensitive and responsive to environmental concerns; however,
these new regulations are yet another example of the endlessly
changing and increasingly complicated Federal rules which
evolve each year.
I applaud you for holding this hearing and for listening to
our concerns. I appreciate your efforts at streamlining.
Streamlining certainly is needed. A good way to start is to
reject these proposed regulations.
Thank you for this opportunity. At the appropriate time and
at the wish of the chair, we will be happy to answer any
questions.
Senator Voinovich [assuming the chair]. Thank you very
much.
We will now hear from our next panelist. We appreciate the
fact that you are limiting your time so we can ask some
questions.
Mr. Warne.
STATEMENT OF THOMAS R. WARNE, PRESIDENT, AMERICAN ASSOCIATION
OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS (AASHTO), AND
DIRECTOR, UTAH DEPARTMENT OF TRANSPORTATION
Mr. Warne. Thank you very much.
Mr. Chairman, members of the committee, I am Tom Warne. I
am the executive director of the Utah Department of
Transportation and currently serving as the president of the
American Association of State Highway and Transportation
Officials, AASHTO. AASHTO is an association of the 50 State
Departments of Transportation and Puerto Rico and the District
of Columbia.
Let me state up front here that we care deeply about the
environment and we take our responsibility of stewardship for
transportation and the environment very, very seriously.
Two years ago, when TEA-21 was enacted, the Congress had a
very good idea. You not only increased highway and transit
funding by 40 percent; you also recognized that in order for
these investments to pay off in real transportation
improvements, we in the States have to have some help in
overcoming the layer upon layer of Federal reviews that can add
5 and 10 years to the life of a project.
You directed the Department of Transportation to work with
other agencies to trim and streamline the Federal red tape.
We are here today to tell you that these 235 pages of
proposed regulations are not streamlining.
I have no doubt that our partners at the Federal Highway
Administration and the Federal Transit Administration started
out with the best of intentions, but after toiling on this
proposal for 2 years what they have produced are regulations
that will add still more delays to what we are already
experiencing, introduce new requirements, and, frankly, expose
us to new mine fields of potential litigation.
We feel so strongly about the threats these regulations
contain that the AASHTO Board of Directors, representing the 50
States, passed a resolution asking for your intervention and
clarification during these hearings to return the agencies to
the original course that you set in TEA-21.
We also urge that the regulations be substantially
rewritten and put out for a new round of public comment.
We have provided for the record details of our concerns and
only highlight a few of what we see as the sins of omission and
commission in these regulations.
Let me just State briefly, in terms of what you said versus
what we got.
You said you wanted to see the requirement for the major
investment studies of large metropolitan projects eliminated as
a stand-along planning component, but integrated as a linkage
between the regular planning and the NEPA process without
expanding the scope of the previous MIS requirements. What we
got was an even broader mandate that requires MIS-type
analysis. Yes, the word ``MIS'' has been eliminated from the
regulations, but, in fact, what is required is exactly the same
set of conditions for all projects in metropolitan areas,
regardless of size, scope, and cost. Frankly, we don't see that
as streamlining.
You said that you wanted States to consult with their local
governments and to document how they do so, but you did not
dictate the one-size-fits-all approach requiring local sign-
off, subject to Federal review and approval. What we got was a
rule that requires that the local government sign off on the
consultation process and allows the USDOT to subjectively
approve or reject statewide transportation improvement programs
based on whether they have local concurrence or not. Frankly,
we don't see that as streamlining.
You did not ask for any new requirements in TEA-21 for data
gathering to demonstrate how States comply with the
nondiscrimination requirements of Title six of the Civil Rights
Act. What we got was a new mandate requiring States to show not
only that we have not discriminated, but also that the impacts
and the benefits of the transportation system are distributed
proportionately across an entire State or metropolitan area.
Unfortunately, it may prove to be virtually impossible to
define even the basic concepts of terms like
``proportionality,'' ``benefits,'' ``burdens,'' and
``reduction,'' across large population groups or geographic
areas and time periods in any meaningful way. These terms are
vague. They are ambiguous. They certainly will be the subject
of litigation.
We believe that this new proportionality test is
unworkable, would impose enormous new data collection and
analysis requirements, and would expose the States and MPO's to
major new legal risks. Frankly, that's not streamlining.
You said you wanted specific timeframes established for
reviews to be completed by Federal agencies and disputes to be
resolved so that projects would not languish for months or even
years. That was not even addressed in the regulations.
We also believe that the regulations have totally missed
the mark in applying the NEPA process to projects both large
and small. Based on the FHWA's own 1998 data on environmental
impact statements, 84 percent of such statements--these are the
EISes, the most complicated documents--84 percent of those
statements required 4 to 10 years to complete the process.
Completing sign-off by the Corps of Engineers on wetlands
permits, section 4F, historic review processes, and endangered
species review takes years longer.
We believe these regulations would only worsen that record.
For large projects, the regulations require that enhancements
get major engineering analysis and that every possible
alternative, regardless of cost or applicability or rational
approach, would be given equal amounts of engineering and
environmental analysis in this EIS process, further
complicating the EIS process.
For small and uncontroversial projects, the regulations
mandate that the same kind of coordinated review process
required for a full-scale EIS also would now be conducted for
hundreds and hundreds of projects now handled by the
categorical exclusion in our environmental assessment.
Section 4F--that's a review process for historical sites--
is in urgent need of reform and should be a top priority. This
regulation asks for comments but makes no efforts to streamline
that very, very cumbersome process which has become
tremendously burdensome to us.
Let me just give you a couple of examples of how this is
proceeding.
In Tucson, AZ, the MPO, the Pima Association of
Governments, they have 300 projects a year. They've never done
an MIS. Under these regulations, they would have to do the MIS-
like work for every one of those projects.
In Illinois, they estimate that, in fact, these regulations
will infuse a 2-year delay into their urban projects,
increasing the cost by 5 percent a year because of that delay.
What I've said this morning, Mr. Chairman, is that this
proposal is just not streamlining. We know that it was intended
to help. We appreciate your language that was the genesis for
this effort, but this is the kind of help we don't need,
frankly. We're looking for streamlining.
We appreciate the interest of this committee and hope that,
in fact, the process here will take us to the point where we
can go back and start over and work with our partners at the
Federal Highway Administration and Federal Transit
Administration to, in fact, produce regulations that will help
us deliver the products and services you expect us to deliver
to our customers.
Thank you very much.
Senator Voinovich. Thank you very much.
Ms. Murray, assistant commissioner, New Hampshire
Department of Transportation.
STATEMENT OF CAROL MURRAY, ASSISTANT COMMISSIONER AND CHIEF
ENGINEER, NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION
Ms. Murray. Thank you very much.
Mr. Chairman and members of the committee, I am Carol
Murray, the assistant commissioner and also the chief engineer
of the New Hampshire Department of Transportation. The New
Hampshire DOT joins with the other State Departments of
Transportation from across the country in objecting to the
impact of the proposed rules from the Department of
Transportation addressing both the planning process and the
process for environmental review of proposed transportation
projects.
Without getting into detail, we believe these rules to be
contrary to the spirit of the Transportation Equity Act for the
21st Century, TEA-21, and would further set back efforts aimed
at making these processes more timely and efficient.
In spite of noble intentions and considerable efforts, the
current project development process remains complicated, overly
burdensome, and frustrating. Objective reviews of project
impacts and consensus building are often severely hampered by
the failure of the resource agencies to be appropriately
represented at meetings during project development. This also
results in the need to revisit issues, which leads to delays
and additional costs.
Also, resource agencies often defer decisions until very
late in project development, rather than to sign off at major
milestones.
The current process is, frankly, not very good, but it
remains better than what is being proposed. We are all in the
business of serving the public, yet this process is viewed by
the public as very complex and frustrating, a sort of endless
series of loops.
The proposed rules do nothing to relieve these frustrations
and will, in fact, make them worse.
I would like to focus for a few minutes on the direction
where we believe the transportation planning and environmental
process should be headed to better serve the American public.
TEA-21 espouses the concept of environmental streamlining,
emphasizing the need for timely and responsible decisionmaking.
This is a concept that I know Chairman Smith strongly supports.
The goal of environmental streamlining is to advance worthy
transportation improvement projects that support and nurture
the economy, without unnecessary detrimental effects on the
environment.
Environmental streamlining is not foreign to the New
Hampshire DOT. A number of initiatives have been advanced
through the years to facilitate project development and
expedite inter-agency coordination. Monthly project review
meetings with the resource and regulatory agencies have been in
place for more than a dozen years. These meetings afford the
opportunity for the project purpose and need, alternative
courses of action, environmental effects, and mitigation
strategies to be discussed in open forums. It is about building
trust, to get all agencies and parties involved
sooner.
I would like to offer two examples in New Hampshire of how
we see the concept of environmental streamlining improving the
quality of life in the State.
The first, in which Senator Smith has taken a leadership
role, is the proposed expansion of 18 miles of Interstate 93
from the Massachusetts border north to Manchester, the State's
largest city. This busy stretch of four-lane divided highway
handles 100,000 vehicles a day and experiences serious
congestion during peak driving hours.
In early August, Senator Smith coordinated a meeting of
State and Federal regulators aimed at streamlining the approval
and construction process for the I-93 project. Among those
attending the meeting were representatives of the Environmental
Protection Agency, Federal Transit and Federal Highway
Administrations, the Army Corps of Engineers, Fish and
Wildlife, and the State Departments of Transportation,
Environmental Services, Fish and Game, and the Offices of
Emergency Management and State Planning.
Senator Smith made it clear that he wanted regulators to
come up with transportation and environmental goals, to
establish timelines and milestones for the project, and to
establish a dispute resolution process. All of the agencies in
attendance signed a partnering agreement pledging mutual
cooperation, open and honest communication toward delivering a
safe, effective, environmentally sensitive solution for
transportation in the I-93 corridor.
This is a very positive step that we hope will expedite the
review of this project and will, in fact, be a pilot that can
be expanded into other States.
Another example is in Concord, the State's capital, where a
project called ``Concord 20/20'' is an effort by the city to
look at a vision for the future of the city 20 years from now.
This project includes three quality of life issues: Economic
development, the natural environment, and, of course,
transportation.
The goal is to look at the interaction of those issues and
achieving improvements within each without negatively affecting
any of the others.
This is a TCSP-funded project that I believe meets the
purpose and goals of that program.
It is time to work toward building these kinds of
cooperative efforts. When it comes to reviewing proposed
transportation projects, it is not in the public interest to
delay, frustrate, and increase the price tag of worthwhile
transportation projects.
To be effective, incentives for resource agency involvement
and cooperation must be tangible. The threat of the big stick
may bring short-term results, but will only engender mistrust
and resentment. Through inter-agency forums, cross-training of
agency personnel is essential to develop a mutual understanding
and appreciation of agency initiative, plans, and goals.
The aim is not to convert each other, but to work
collaboratively and responsively to pursue our separate yet
related public mandates and to integrate them effectively.
Again, the key is building a trust between all parties.
These regulations do not speak to those goals.
Thank you for the opportunity to appear before you today.
When appropriate, I would be glad to answer any questions you
may have.
Senator Voinovich. Thank you very much, Ms. Murray.
Senator Baucus. Mr. Chairman, can I introduce the next
witness?
Senator Voinovich. Absolutely.
Senator Baucus. He is from the great State of Montana.
Jim Currie is the chief of staff to the administrator of
our State Highway Department, Marvin Dye. They do excellent
work, and I am very honored that Jim is here.
It is good to have you here, Jim.
STATEMENT OF JIM CURRIE, DEPUTY DIRECTOR, MONTANA DEPARTMENT OF
TRANSPORTATION; ACCOMPANIED BY JOHN DeVIERNO
Mr. Currie. Thank you. Thank you, Mr. Chairman, Senator
Baucus, and members of the committee. My name is Jim Currie,
and I am the deputy director for the Montana Department of
Transportation. With me today is John DeVierno, who advises our
department and four other State DOT's. We appreciate the
opportunity to appear here today.
Montana and seven other States, including Wyoming, Idaho,
Nevada, North and South Dakota, Arizona, and Michigan, have
jointly submitted a statement to the record on this issue.
Our position on the proposed rules is straightforward: We
strongly oppose these proposals and want help from Congress to
prevent them from becoming final rules. Why? Because the
proposed rules will add burdensome and costly requirements.
Even worse, the proposed rules are vague and open-ended. This
means confusion, delay, and even uncertainty that systems
planning, programming, and project-level decisions could ever
be reached and, if reached, it is uncertain whether they could
be defended in court.
This is certainly not what Congress intended, and in
several key places the proposals are directly contrary to
statutory provisions.
Let me be specific. First, Montana is also concerned about
the alternatives analysis provisions of the proposals, which
look a lot like major investment study provisions of the
current regulations, except they are broader.
Senators to date there has never been an MIS required for
any urban project in Montana, and when we recently met with all
of our larger cities, there was not a single local official
advocating more planning-level studies. To the contrary, our
local officials want the process speeded up.
We estimate that this single aspect of the proposed rules
would cost an average of $2 million a year in Montana, expand
the bureaucracy at both the urban area and State DOT levels,
and take 3 years to comply with. Moreover, it would effectively
move money from real projects to unnecessary paperwork and
process. This is not what our citizens want.
Our second area of concern is that the proposed rules will
confer important rights on new groups, including undefined
planning process participants, at the expense of elected local
officials and State authority. We are committed to working
closely with local officials and all interested parties, but
the proposed changes would alter the inter-governmental balance
established by Congress in TEA-21.
These proposals also seem likely to confer leveraging or
veto authority on a wide range of unelected officials and
groups over decisions Congress vested with States and MPO's.
We are particularly concerned that when a large number of
new entities are essentially given cooperative or joint
decisionmaking authority in the process, the ability of the
States to address state-wide transportation priorities or to
invest in major projects is seriously diminished. We are
fearful that any decision could be held hostage.
I'd like to read you a quote from Vern Peterson, the
chairman of the Montana Association of Counties' Transportation
Committee and a commissioner from Fergus County, MT. In
February 2000, he wrote the following to FHWA regarding its
study on rural transportation consultative processes.
We are confident that as problems arise within the
transportation planning process in Montana it will be much
easier to resolve issues by working at the State level rather
than through a Federal process. Consequently, we urge USDOT to
respect current relationships between local governments and
State transportation departments and in no way require
additionals procedures or bureaucratic processes.
In addition, since we have State statute regarding
transportation planning with our counties, I'm concerned these
proposed rules could preempt the existing process and downgrade
the authority of our elected county commissions.
The last topic I will touch on is an across-the-board
concern that there could well be a vast increase in litigation
against project and planning decisions because the rules are
vague, open-ended, and contain undefined terms related to
various tests.
For example, while NEPA has always been found to be
procedural, the proposed rules would now require management of
NEPA to substantively maximize things like environmental ethic
and integrated decisionmaking. This kind of language is an
engraved invitation to lawsuits to test whether or not these
aspirational goals are maximized in any decision.
NEPA decisions would now also have to be made through
maximizing decisionmaking through a collaborative partnership,
including all regulatory agencies, involved governmental
entities, communities, interest groups, interested individuals,
and private businesses.
With such a test, we are concerned that it will never be
possible even to reach a decision, and if one is reached anyone
could obstruct it by claiming they were excluded from the
collaborative decisionmaking process.
Montana DOT, along with all other State DOT's, strongly
opposes discrimination and supports title six. We firmly
believe there is no systemic discrimination within the Federal
aid transportation program. Certainly, the additional program
risk and additional data burden provided by the provisions in
the proposed rules is not warranted. No case has been made for
such a massive change in the present rules in this area.
In summary, we support a thorough planning and
environmental review process, but we oppose processes that are
unjustifiably complicated, costly, and likely to delay the
delivery of sorely needed transportation improvements. That's
why we oppose the proposed planning and environmental rules.
Finally, I want to make clear why we think Congress has an
important role to play in this matter. We, AASHTO, and other
States will submit comments to FHWA and FTA on these and other
topics of concern on this proposal, but, frankly, we have no
confidence that the substantive changes that need to be made
will be made.
In 1999, in response to USDOT's paper on options for
implementing TEA-21, AASHTO and the individual States made
their views known on these very issues, and the proposed rules
still turned out as they have, so we are far from certain that
USDOT will change its approach to these regulations in response
to our comments.
Accordingly, we respectfully request Congress' assistance
in preventing these counter-productive proposals from becoming
final rules.
Thank you again for the opportunity to appear today. When
appropriate, I'll take questions.
Senator Smith [resuming the chair]. Thank you very much,
Mr. Currie.
Mr. Warne, let me start with you.
Would you say that the testimony that we've heard here this
morning from your fellow panelists represents the other States,
as well, across the country?
Mr. Warne. Yes, Mr. Chairman, it certainly does. We've had
the regional associations--the four regions in the country have
banded together and, in fact, we have a resolution that the
AASHTO Board of Directors has passed, and that has allowed me
to speak and offer this testimony here as the president of
AASHTO today.
Senator Smith. Have you, in that capacity, presented any
formal response from the States collectively on this issue?
Mr. Warne. Mr. Chairman, we are in the process of preparing
our response. It is actually a very detailed document, given
how detailed the proposed regulations are, and we plan to
submit that prior to September 23, which is the filing
deadline.
Senator Smith. That's all 50 States have been put into
that?
Mr. Warne. It will be a combined statement from the 50
AASHTO States. Yes, sir.
Senator Smith. I think that would be very helpful.
I want to point out, too, that Mr. Wykle, to his credit,
has stayed. Oftentimes witnesses from a previous panel leave,
but I think he is obviously interested in your testimony and
also interested in listening to what your concerns are.
I don't think I've ever seen a hearing where it has been
this unanimous or this overwhelming, anyway, on the concerns
raised by what the intent of Congress was by those who are
basically going to be the beneficiaries or the victims of our
legislation. Sometimes it is both, unfortunately.
Ms. Murray, it is hard to call you that. I think, Carol,
we've tramped over so many roads and by-ways up in the cold and
the heat of New Hampshire over the years. I appreciated your
comments on I-93.
Let me just ask you if you could be specific--not
necessarily specific to the highway. We all know what the
situation is there with the widening. But if you could
demonstrate specifically how these regulations, as proposed,
might impact what we are trying to do there as a streamlining
pilot program for I-93.
Ms. Murray. Certainly, Senator. I'm much more comfortable
when you call me Carol, I must say.
Senator Smith. That's fine.
Ms. Murray. It feels much more comfortable and much more in
spirit with our past relationships.
The regulations, in a number of ways, would disrupt what we
are doing on I-93, but let me pull out a couple of immediate
concerns that I would have.
First off, the MIS-like requirement--yes, it is not an MIS
requirement, but it is close enough--would build in a delay of
2 to 3 years into that project while we step back to prepare
that document. The rules, as proposed, do not have a
grandfather provision, so it would apply immediately to the
work on I-93.
The other concern, and perhaps the larger concern, is the
role of the new consultation partners. They are given a new
name, and I feel, from reading the regulations, a new status.
As you know, we have a number of advocacy groups in New
Hampshire that would very much love an opportunity to, for lack
of a better phrase, rise to the status of a regulatory body.
These regulations would give them that inroad.
I also share the concern, if you excluded a group through
oversight or through not even knowing of their existence, very
late in the process they could then stand up and say, ``Excuse
me. We were not included in the consultation and in the
outreach.''
All of our projects, I-93 included, involve a large public
outreach component. Those groups that are not formally
recognized in the process have every opportunity to State their
concerns. To formalize that relationship and actually provide
them with an inroad into the process I think would be extremely
detrimental to the I-93 project.
Senator Smith. Do all of you view these proposed rules as
going beyond advisory in capacity and more into direct
involvement in the decisionmaking?
Mr. Proctor. Right.
Ms. Murray. Yes.
Mr. Warne. Yes, sir.
Mr. Currie. Yes.
Senator Smith. I think that is my concern, as well, as I
read them, but we heard differently from the witnesses on the
other panel, but I think it seems to me that's the way the
language reads.
Senator Baucus.
Senator Baucus. Yes. Thank you, Mr. Chairman.
Jim, could you just give us a sense of how much more costly
you believe these regulations will be to, say, the State of
Montana, or generally to other States as they try to go through
this process and take projects from concept design out to bid
and actually moving dirt?
Mr. Currie. Yes, Senator Baucus, it is kind of hard to say
exactly how costly it will be with regard to every project. For
the MIS component of the regulations, alone, we have calculated
the cost to be about $2 million a year.
One thing that we are very concerned about is that there
will be project delays. As you know, an issue in our State
right now is the time it takes to get a major project out. With
these regulations, we will have further delays, particularly in
the complicated projects, and delays mean increased costs on
projects.
We anticipate that, if, in fact, the MIS provisions go
through, we would not only be doing the alternative analysis at
the planning stage, but we would also have to again do those
same analyses at the project stage. That would add cost and
delay to the project.
We feel that, with the language that is currently in these
rules, there would certainly be more legal challenges to our
decisions. Of course, when you get into litigation, the costs
skyrocket. So this certainly would be a significant impact from
that point of view.
Senator Baucus. What process does the State have in prior
consultation with affected groups? We all want to make sure
that we talk to people in advance in a solid, legitimate way.
It's not just a brush-off, but it is really serious, because
that's what our job is.
Could you outline for us what Montana does and what other
States do, as best you can?
Mr. Currie. Yes, Senator. We are very aggressive in Montana
to try to reach out to all groups and get their views on
projects, and we use a number of different ways to do this. We
have formed focus groups, as you are aware, in the Bitterroot
Valley, to try to get citizen input on what they would like to
see for projects through their communities. We use public
hearings. We have advisory committees. We have an 800-line that
we publish so people can call with their concerns. We use the
Internet. We use customer surveys. Our Transportation
Commission meets six times a year. Of course, that's the policy
body for the Department. That's a meeting that is advertised,
and it is very rare that our Transportation Commission meets
that we don't have several delegations there providing input on
transportation issues for their particular areas.
We were specific in making sure that our local governments,
cities and counties, received proportionate increases in TEA-
21. We wanted to make sure that the TEA-21 increase for our
State was spread around to the local governments.
Our concern is not that we don't want input from all of
these different groups and people. We do want their input. We
want to consider their views. Our concern is that if all of
these parties have decisionmaking authority, then we are going
to be into a situation where there is chaos, and perhaps no
decision can be made that would be defendable.
Senator Baucus. These proposed regulations have been
criticized a bit today, to say the least. Is there anything
good in them? Is there some part of the regulations that you
think is a step forward? Can you find anything in there that
might make some sense, you know, ``That's not bad, but the rest
of it is not so good''?
Mr. Currie. Senator, what I think needs to happen to these
regulations is they need to be put on hold, they need to be
reviewed by Congress, and FHWA needs to start over with
regulations that truly streamline the process and not make it
more difficult for us to deliver this program.
It is hard enough now with the environmental regulations.
We go through endangered species, as you know. That's a major
issue in Montana. It is difficult enough to deliver a
construction program with the existing regulations, let alone
having rules that are promulgated that will make the job more
difficult.
These rules will make our job more difficult. We will have
a very difficult time delivering the transportation program,
and it will take longer to do so. We need rules that truly
streamline.
Senator Baucus. You're right about delay in our State. Just
coincidentally, I was looking at some clips from Montana
newspapers of yesterday, and there is a big article about this
very subject in the paper.
When you gave your comments to the Federal DOT, did you get
comments back? Was there any give and take?
Mr. Currie. Senator, we are in the process of the comment
period. We haven't yet submitted comments. We're working with
AASHTO and other States on that. So we have not yet received
comments back.
I will say, though, that in 1999 all States had the option
of commenting on the options paper.
Senator Baucus. That's what I was referring to.
Mr. Currie. I'm not aware that we got comments back on
that. The rules, I think, that are before you today are the
comments that came back, and they certainly did not take into
account the input that came from most States.
Senator Baucus. Mr. Chairman, I see other heads at the
table nodding affirmatively. They must have had the same
experience.
Is there someone, some State who did get a response back on
the options paper, to your comments on the options paper?
Mr. Warne. Senator, may I comment----
Senator Baucus. Sure.
Mr. Warne [continuing]. That AASHTO did, in fact, comment
to the options paper, which is essentially the precursor to
these regulations.
Senator Baucus. Right.
Mr. Warne. But to my knowledge we received no formal
feedback to that.
Senator Baucus. Thank you very much. Thank you, Mr.
Chairman.
Senator Smith. Senator Chafee.
Senator Chafee. I'd like to ask Mr. Warne--you reacted to
these regulations with your resolution. Do you have the
staffing to be proactive and to propose your own regulations
that would streamline the process, your organization, AASHTO?
Mr. Warne. If that's an invitation to essentially propose
and submit for adoption, we would be happy to engage in that.
Yes, Senator.
Senator Smith. Senator Voinovich.
Senator Voinovich. Yes, Mr. Chairman.
I was just thinking that we have the Federal gas tax that
is collected by the Federal Government and we redistribute it
back to the States, and there seems to be an arrogance in
Washington that they care more about people and problems and
issues than we do on the State and local level. The idea of
someone--one of the panelists brought up the issue of all of
the requirements that we have--we have our A95 process, we have
to get city council resolutions, we go through this whole
process and people have input, and yet we have this Federal
Government that comes in and says, you know, ``What you guys
are doing isn't adequate to protect this group, that group,
this issue, that issue,'' and so on and so forth ad infinitum.
I thought that one of the reasons why we put 1309 into the
TEA-21 was to try to work at streamlining that process and
moving it along so that we didn't have this gigantic maze that
one has to go through to get anything done.
I know in our State, Mr. Chairman, Gordon Proctor was part
of our management team in the Department of Transportation.
Gordon, we reduced your budget, I think, $55 million a year so
that they could put the money--that's money in the department.
They take that money and put it in the highway construction.
When you finally get to a certain point, you can't reduce any
more because you have to have these people to comply with all
these Federal regulations that one has to comply with in order
to get a project done.
There seems to be a disconnect with what Mr. Wykle had to
say and what I heard from you at this table in regard to this
MIS, and I would like any one of you to comment about what he
has said to me--and previously, I guess, to Senator Baucus. I
wasn't here to hear that--because what I heard was that there
isn't--MIS has been eliminated in the new rules and
regulations, and what I hear from you and what I hear from
Gordon and your people is that that MIS now is being required
on just about every urban project.
Could you explain this to me so I can more fully understand
it?
Mr. Warne. Senator, do you want me to respond to that?
Senator Voinovich. Sure, or anybody.
Mr. Warne. Let me just speak from the AASHTO perspective on
this. In fact, the AASHTO States have found that under the
original requirement for the MIS, essentially when you went
through the NEPA process and then you ended up redoing
everything you did in the MIS, which is essentially the reason
why we said this is a duplicative process and it should be
eliminated.
What has been stated here earlier is that this MIS-like
process would help some controversial projects go through.
The fact is, I use the example in Tucson, AZ. Of those 300
projects, in fact, the vast majority of them, if not all of
them each year are not controversial, and they just go right
through the process and you're not lacking any more public
involvement and you're not lacking any more analysis that this
MIS-type requirement would add, and yet now you put this
requirement on those projects. You essentially delay projects
that wouldn't have been delayed otherwise.
Senator Voinovich. Mr. Wykle said that the MIS is not
mentioned in the rules.
Mr. Warne. It is an MIS-like process, but it walks like a
duck and it quacks like a duck.
Mr. DeVierno. Senator Voinovich, I'm John DeVierno. I'm
here with Jim Currie. I guess I may as well really try to be
pretty specific to nail this down. The proposed rule literally
struck the definition. There is a definition for ``major
investment'' in the rules. And it really is for major projects.
It talks about whole corridors and large amounts of money. That
was struck as a definition in the proposal.
The operative place where the definition works is still the
same section. It is .318(a). It requires right there a major
investment study, and the essence of the major investment study
is an alternatives analysis. That's the essence.
So now what you have proposed in .318(a) is that States
shall provide alternative analysis with respect to investments,
and they deleted--what you had is deletion not of requirement
but of an adjective.
So now for all investments we would have to do an
alternatives analysis, and that is what we are talking about.
It is right in the same section. It is the successor. They
deleted the adjective, deleted the definition, but the whole
requirement is an alternatives analysis, and it is right there.
Senator Voinovich. So the alternatives analysis is
basically an MIS?
Mr. DeVierno. Yes. That was what it was about.
One other thing I guess I'll add in comment. I appreciate
that there were some sympathetic sounds that came out of the
first panel, and a comment was made that somehow requiring this
further analysis at the first stage would be helpful. The point
is that you do have a requirement to do alternatives analysis
in NEPA, as you know. So, by writing in an alternatives
analysis in the first section, the only thing you've definitely
done is required it twice. You may or may not get to subtract
anything out at the back end.
If the rules were really to do something constructive, what
really has to be done is some kind of very strong provision at
the back end, for NEPA, that says that if anything is done in
the front end it will be accepted.
You don't have to actually write in any requirement that
something be done in the front end in planning, which is,
unfortunately, what has been done in these proposed
regulations, because the point is that if the authorities would
actually accept the analysis in the back end the States would
do it voluntarily. They wouldn't have to require it.
Senator Voinovich. Does anyone else want to comment on
that?
[No response.]
Senator Smith. Thank you, Senator Voinovich.
I think the record is pretty clear here, from not only
Members but the panelists, in terms of the concern.
Picking up on Senator Voinovich's line of questioning, I
would just point out that on proposed rule 1410.318, relation
of planning and project development processes, under the
intention, the intention of the Congress was to make this an
advisory matter, yet it says,
In order to coordinate and streamline the planning of NEPA
processes, the planning process, through the cooperation of
MPO, the State DOT and the transit operator shall provide the
following to the NEPA process.
We then have two long pages of requirements, which is
classic bureaucratese. It goes just on and on, with even sub-
categories of each.
I'm just going to enter this as part of the record and not
read it all.
[The information referred to follows:]
Sec. 1410.318 relation of planning and project development processes
(a) In order to coordinate and streamline the planning and NEPA
processes, the planning process, through the cooperation of the MPO,
the State DOT and the transit operator, shall provide the following to
the NEPA process.
(1) An identification of an initial statement of purpose and need
for transportation investments;
(2) Findings and conclusions regarding purpose and need,
identification and evaluation of alternatives studied in planning
activities (including but not limited to the relevant design concepts
and scope of the proposed action), and identification of the
alternative included in the plan;
(3) An identification of the planning documents that provide the
basis for paragraphs (a)(1) and (a)(2) of this section; and
(4) Formal expressions of policy support or comment by the planning
process participants on paragraphs (a)(1) and (a)(2) of this section.
(b) The following sources of information shall be utilized to
satisfy paragraph (a) of this section at a level of detail agreed to by
the MPO, the State DOT, and the transit operator:
(1) Inventories of social, economic and environmental resources and
conditions;
(2) Analyses of economic, social and environmental consequences;
(3) Evaluation(s) of transportation benefits, other benefits,
costs, and consequences, at a geographic scale agreed to by the
planning participants, of alternatives, including but not limited to
the relevant design concepts and scope of the proposed action;
(4) Data and supporting analyses to facilitate funding related
decisions by Federal agencies where appropriate or required, including
but not limited to 49 CFR part 611.
(c) The products resulting from paragraphs (a) and (b) of this
section shall be reviewed early in the NEPA process in accordance with
Sec. 1420.201 to determine their appropriate use.
(d) In order to streamline subsequent project development analyses
and studies, and promote better decisionmaking, the FTA and FHWA
strongly encourage all Federal, State, and local agencies with
subsequent project level responsibilities for investments included in a
transportation plan to do the following:
(1) Participate in planning analyses and studies to the extent
possible;
(2) Provide early identification of key concerns for later
consideration and analysis as needed; and
(3) Utilize the sources of information identified in paragraph (b)
of this section.
(e) The analyses conducted under paragraph (b)(3) of this section
may serve as the alternatives analysis required by 49 U.S.C. 5309(e)
for new fixed guideway transit systems and extensions and the
information required under 49 CFR part 611 shall be generated.
(f) Any decision by the Secretary concerning a transportation plan
or transportation improvement program developed in accordance with this
part shall not be considered to be a Federal action subject to review
under NEPA (42 U.S.C. 4321 et seq.). At the discretion of the MPO, in
cooperation with the State DOT and the transit operator, an
environmental analysis may be conducted on a transportation plan.
(g) The FHWA and the FTA project level actions, including but not
limited to issuance of a categorical exclusion, finding of no
significant impact or final environmental impact statement under 23 CFR
part 1420, approval of right of way acquisition, interstate interchange
approvals, approvals of HOV conversions, funding of ITS projects, final
design and construction, and transit vehicle acquisition, may not be
completed unless the proposed project is included in a plan and the
phase of the project for which Federal action is sought is included in
the metropolitan TIP. None of these project-level actions can occur in
nonattainment and maintenance areas unless the project conforms
according to the requirements of the US EPA conformity regulation (40
CFR parts 51 and 93).
Sec. 1410.320 congrestion management system and planning processes
(a) In TMSs designated as nonattainment for ozone or carbon
monoxide, Federal funds may not be programmed for any project that will
result in a significant increase in carrying capacity for single
occupant vehicles (a new general purpose highway on a new location or
adding general purpose lanes, with the exception of safety improvements
or the elimination of bottlenecks) unless the project results from a
congestion management system (CMS) meeting the requirements of 23 CFR
part 500. Such projects shall incorporate all reasonably available
strategies to manage the single occupant vehicle (SOV) facility
effectively (or to facilitate its management in the future). Other
travel demand reduction and operational management strategies, as
appropriate for the corridor, but not appropriate for incorporation
into the SOV facility itself, shall be committed to by the State and
the MPO for implementation in a timely manner, but not later than the
completion date for the SOV project.
Senator Smith. Whether these people want to participate or
not, they shall. This is really unbelievable to me that we are
at this point.
I would just, in closing, say to Mr. Wykle, who is still
here, you know, there is a billboard that I saw when I was
traveling around the country a few years ago. I saw it in Iowa,
actually. It said, ``Don't make me go down there. God.'' I
think, ``Don't make us go there and block a rule that you
shouldn't implement.''
I think you've heard a lot of information here. I think you
need to go back to the drawing board after you get the input by
September 23 from the State folks and the Senate. You've
already gotten that, so I hope that you will go back to the
drawing board and not force us to go into blocking a rule
rather than implementing what we wanted to do, which was to
streamline.
Does anybody have any further comments?
Ms. Murray. Mr. Chairman, if I might, the States certainly
appreciate the congressional intent of environmental
streamlining. That was certainly a ray of hope that came to us
as part of TEA-21. On behalf of certainly the New Hampshire
DOT, and I think the other States, I'd like to express our
appreciation.
Senator Smith. That was our intention. We're going to do
our best to make the intention of the Congress prevail here.
Thank you all for coming. I know many of you traveled long
distances. Thank you for being here. We appreciate it.
Just a reminder that FHA and CEQ and others had asked for
the opportunity to respond to the witnesses here. The record
will be kept open until close of business Friday for
appropriate response to that for the record.
The hearing is adjourned.
[Whereupon, at 11:53 a.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
Mr. Chairman, thank you for holding this hearing today. I think it
is important that we examine these proposed rules thoroughly and
convince the Department of Transportation and other interested Federal
agencies to substantially re-write these rules.
The current planning and environmental review process is extremely
thorough. The question we face is how do we make it work better and
faster, while not cutting out any necessary analysis.
During the consideration of TEA-21, Congress passed several
provisions directing the executive branch to streamline the process of
environmental review of transportation projects. Unfortunately, the
proposed rules by DoT go in the opposite direction and would delay
rather than speed up project delivery. It seems that this is yet
another example of the executive branch defying the intent of Congress.
I see that the State of Wyoming has joined the testimony of Jim
Currie, head of the Montana Department of Transportation. I look
forward to hearing his testimony.
The bottom line is that TEA-21 provides with the opportunity to
streamline and simplify the project delivery process while maintaining
substantive environmental protections. We should take advantage of it.
That will ensure that American taxpayers will get more for their fuel
tax dollars.
Again, Mr. Chairman, thank you for holding this hearing.
__________
Statement of Hon. Christopher S. Bond, U.S. Senator from the State
of Missouri
Mr. Chairman--I thank you for holding this hearing today. It is
imperative that we not only work on crafting good legislation and work
on its passage, it is imperative that we follow and monitor the actions
of the implementing agencies to ensure that congressional intent, and
the intent of the statute, is complied with.
I know that it must be a difficult job trying to revise regulations
to reflect all the changes that have occurred in transportation laws,
environmental laws, and unfortunately court-interpretations of laws.
However, it is often not difficult to see and hear the opposition to
what one might be doing. In the case of why we are here today, it would
be impossible not to hear the concerns and opposition to the proposed
planning and environmental rules issued by the DOT.
My State DOT contacted me right after the issuance of the proposed
rules expressing their dismay and frustration. I have read the
testimony that is on behalf of the American Association of State
Highway and Transportation Officials and this statement sums it up. ``
. . . the bottom line is that the proposed rules will not fundamentally
reform and streamline the planning and project development process as
Congress intended; rather, the proposed rules could add years to the
process, significantly increase costs, and could cause some projects to
simply be abandoned.''
Quite honestly, I often wonder if that isn't the intent of this
Administration. There are too many examples of where this
Administration's actions would cause significant delays, increased
costs, and other unnecessary hurdles related to transportation
projects. These proposed rules and the conformity issue are two such
areas that come to mind.
I guarantee you that delays, hurdles, and increased costs are not
my intent and not the intent of TEA-21. I spent countless hours and a
tremendous amount of energy working on TEA-21 with the goals being
increased resources, streamlining, and flexibility provided to those
``on the ground''.
Mr. Chairman--I believe that the DOT and the other Federal agencies
involved must do a better job on these rules and in following the
intent of TEA-21. They must not miss the opportunity to make the
improvements and to utilize the experts in the States to make the
necessary changes.
__________
Statement of George T. Frampton, Jr., Chairman, Council on
Environmental Quality
Thank you for the invitation to testify before you today regarding
the U.S. Department of Transportation's Proposed Regulations on
Planning and Environment. I greatly appreciate the courtesy the
Committee has shown in accommodating my schedule this morning.
This spring, the Department of Transportation published notices of
proposed rulemaking: for metropolitan and statewide transportation
planning rules and for rules implementing the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321 et seq., and related procedures for
transportation decisionmaking, protection of public parks, wildlife and
waterfowl refuges, and historic sites. My testimony will focus
specifically on the proposed NEPA regulations, how they relate to the
environmental streamlining provisions of the Transportation Equity Act
for the 21st Century (TEA-21), P.L. 105-178 (1998), and some concerns
that I understand have been raised about the proposed regulations.
Having said that, I note that at, as I understand it, the request of
the American Association of State Highway and Transportation Officials
(AASHTO), among others, the comment period was extended to September
23, 2000, so we do not yet have the benefit of full public input.
CEQ worked closely with staff of this Committee in crafting the
environmental streamlining provisions of TEA-21, and the Administration
supported the provisions. In spirit and in many places the language of
the provisions mirror CEQ's interpretation of the procedural provisions
of NEPA. As the CEQ regulations themselves state, ``Federal agencies
shall to the fullest extent possible . . . implement procedures to make
the NEPA process more useful to decisionmakers and the public; to
reduce paperwork and the accumulation of extraneous background data;
and to emphasize real environmental issues and alternatives.'' 40
C.F.R. Sec. 15002(b). The environmental streamlining provisions capture
the direction in the CEQ regulations for close interagency coordination
among the various levels of affected government, the desirability of
concurrent reviews, and the need for an efficient dispute resolution
process.
Following passage of TEA-21, CEQ worked with FHWA and FTA in
reviewing their draft regulations prior to publication for review and
comment. From my perspective, the Department of Transportation and the
other Federal agencies involved in the environmental streamlining
effort--the Department of Agriculture, the Department of the Army, the
Department of Commerce, the Department of Interior, the Environmental
Protection Agency and the Advisory Council on Historic Preservation--
have engaged with vigor and sincerity in attempting to translate the
mandates of Section 1309 into workable regulations that will achieve
the goals of TEA-21. Many of these efforts are not directly reflected
in the proposed regulation because they involve the kind of
administrative, programmatic or implementation activities that are not
typically the subject of regulation but are key to successful
management. For example, the Department of Transportation has engaged
the U.S. Institute for Environmental Dispute Resolution to develop a
specific model for an efficient dispute resolution process and to
engage stakeholders in a series of executive summits on environmental
streamlining. There are other actions underway, and I believe
Administrator Wykle will speak to some of those.
Let me turn now to the proposed NEPA regulations themselves.
Generally speaking, we believe they are going in the right direction.
They can and will be improved. However, we concluded this spring that
the time was ripe to publish them for comment so that further changes
would be informed by the reactions of the interested public, State,
tribal and local agencies, and we encouraged the Department to do so.
I understand that one of the concerns that has been raised is the
fear that some provisions of the proposed regulations would turn NEPA
from a procedural statute into a substantive law. CEQ believes this
fear is misguided. In Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519 (1978), the U.S. Supreme
Court stated that:
NEPA does set forth significant substantive goals for the
Nation, but its mandate to the agencies is essentially
procedural. It is to insure a fully informed and well
considered decision, not necessarily a decision the judges of
the Court of Appeals or of this Court would have reached had
they been members of the decisionmaking unit of the agency.
Administrative decisions should be set aside in this context,
as in every other, only for substantial procedural or
substantive reasons as mandated by statute. Id. At 558.
Literally hundreds, if not thousands, of NEPA decisions cite this
statement in the context of decision in a case challenging an agency's
compliance with NEPA. It is by now black letter law that Federal courts
only enforce the procedural provisions of NEPA.
The issue, of course, is whether these proposed regulations will
change that black letter case law. I believe they would not do so. I
also believe that they are consistent with both NEPA and the CEQ
implementing regulations.
The NEPA process was not intended to be a paperwork production
process as a goal unto itself. The congressionally-mandated purposes of
this statute--often referred to as America's environmental magna
carte--are to declare a national policy which will encourage productive
and enjoyable harmony between man and his environment, to promote
efforts which will prevent or eliminate damage to the environment and
biosphere and stimulate the health and welfare of man, and to enrich
the understanding of the ecological systems and natural resources
important to the Nation. 42 USC Sec. 4321. The law goes on to
eloquently articulate national policy intended to achieve a balance
between human beings and nature and fulfill the responsibilities of
each generation as trustee of the environment for succeeding
generations. 42 USC Sec. 4331. The NEPA process was intended to be a
mechanism to ensure that Federal agencies would incorporate those goals
into their policies and regulations and everyday decisionmaking. The
CEQ NEPA regulations sum up the relationship between the substance and
process of NEPA by stating that:
Ultimately, of course, it is not better documents, but better
decisions that count. NEPA's purpose is not to generate
paperwork-even excellent paperwork-but to foster excellent
action. The NEPA process is intended to help public officials
make decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and
enhance the environment. 40 CFR Sec. 1500.1.
CEQ's regulations explicitly state that the purpose of the NEPA
process to is achieve the substantive requirements of section 101.
CEQ's authority to interpret NEPA in general and in the context of the
regulations binding on all Federal agencies has been upheld several
times by the U.S. Supreme Court. Andrus v. Sierra Club, 442 U.S. 347
(1979), Robertson v. Methow Valley Citizens Council, 490 U.S. 332
(1989), Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989),
and numerous lower court cases have reflected these holdings. No court
has interpreted these provisions of CEQ's regulations as subjecting
Federal agencies to judicial scrutiny for failure to achieve NEPA's
substantive goals.
On the other hand, the fact that NEPA's goals are not reviewed by
Federal courts does not make them meaningless. When Congress wrote
NEPA, it clearly intended for agencies to strive toward fulfillment of
those goals. Indeed, to go through the NEPA process without the
underlying policy rationale would be a hollow reflection of this august
body's deliberations. Nor would it seem to be a wise use of the
taxpayer's funds. Merely going through the process for the sake of
process or a defensible administrative record leads to the very kind of
conflict, delay and litigation decried by this Committee. However,
taken seriously in the course of decisionmaking, the policy goals of
NEPA can help to avoid those kinds of conflicts.
Section 1420.107 of the proposed regulations addresses the ``Goals
of the NEPA process.'' It states that the DOT agencies will manage the
NEPA process to maximize attainment of seven goals: environmental
streamlining, environmental ethic, environmental justice, integrated
decisionmaking, collaboration, transportation problem solving, and
financial stewardship. This is precisely the kind of broad policy
articulation that takes NEPA's even broader policy mandates and
translates them into goals specific to the mandate of the DOT agencies.
The language of the regulation is crafted to avoid the articulation of
any regulatory standard, and is very much the type of language the
courts have already indicated is unenforceable in the statute itself.
Section 1420.109, ``The NEPA umbrella,'' is an environmental
streamlining provision. It provides the agency and the public with the
mandate to use the NEPA process as an organizational mechanism for
compliance with Federal responsibilities applicable to the decision for
a proposed action. The CEQ regulations require agencies, to the fullest
extent possible, to prepare draft environmental impact statements
concurrently with and integrated with environmental impact analyses and
related surveys and studies required by other environmental review laws
and executive orders. Failure to do so is certainly one of the
principal causes for administrative delays, and will certainly doom
environmental streamlining efforts. The draft DOT regulation does not
alter in any way the agencies' responsibilities regarding compliance
with these laws; it does implement CEQ's mandate for concurrent review.
I also understand that there is concern regarding a statement in
the proposed regulation that defines ``practicable'' as meaning a
``common sense balancing of environmental values with safety,
transportation needs, costs, and other relevant factors in
decisionmaking.'' The proposed regulation specifically states that no
additional findings or paperwork are required to demonstrate this
balancing. I find it impossible to discern any judicially enforceable
law to apply this language. Indeed, it reflects Congress' mandate to
the Federal agencies, ``to use all practicable means and measures,
including financial and technical assistance, in a manner calculated to
foster and promote the general welfare, to create and maintain
conditions under which man and nature can exist in productive harmony,
and fulfill the social, economic, and other requirements of present and
future generations of Americans.'' 42 USC Sec. 4331(a).
I know that Committee members have expressed frustration that DOT
has not done more in the way of streamlining. However, I must note that
DOT has incorporated into the proposed regulations some provisions that
are unprecedented in that regard. For example, Section 1420.209
provides that an applicant may propose alternative procedures to the
DOT agency for compliance with NEPA and related responsibilities. No
other Federal agency has ever proposed this invitation to regulatory
creativity before in the context of NEPA procedures. DOT also has spent
considerable time crafting and updating their categorical exclusions.
I would be remiss if I did not take note of the growing number of
success stories that are emerging as the Federal agencies begin
implementing environmental streamlining measures. The ``Best Practices
in Environmental Partnering'' cases spotlighted by AASHTO last year
showcased excellent examples of transportation decisionmaking from
State transportation agencies in Florida, Kentucky, Nevada, New York,
Pennsylvania, South Carolina, Washington, and Wisconsin. As AASHTO
President Tom Warne stated in the context of that national competition,
these examples ``demonstrate that collaboration, not polarization,
breaks down barriers so that projects can be expedited while protecting
the environment.'' I encourage AASHTO to continue this program and I
urge the Committee to look at those case studies in detail. I believe
you will find that they reflect an achievement of NEPA's goals and the
objectives of DOT's proposed regulations.
I have no doubt that the DOT regulations can and will be improved
with the benefit of the public's comments. CEQ will work with DOT as
they move toward promulgation of final NEPA regulations. We will pay
close attention to this Committee's concerns and views as we do so.
Responses by George Frampton to Additional Questions From Senator
Bob Smith
Question 1. In the proposed NEPA regulations the term
``environmental enhancement'' is introduced as something to be
incorporated in transportation projects. Although the preamble uses the
examples of transportation enhancement activities--projects such as
bikepaths, historic preservation and landscaping--the regulations
define an environmental enhancement as ``a measure which contributes to
blending the proposed project harmoniously with its surrounding human
communities and the natural environment, and extends beyond those
measures necessary to mitigate the specific adverse impacts.''
Environmental enhancements are made eligible for Federal funds to the
fullest extent authorized by law.
What basis is there in law is there to introduce environmental
enhancements, beyond what is necessary for mitigation, as a required
element of transportation projects?
Response. CEQ had not interpreted the regulation to mandate the
addition of ``environmental enhancements'' in all projects. Our
understanding of the intent of the regulation is that environmental
enhancement measures could be included in proposals to the extent
considered appropriate by the applicants and FHWA or FTA.
There are provisions in the various transportation authorities that
refer specifically to enhancement activities (for example, 23 U.S.C.
Sec. 133(b)(8), 23 U.S.C. Sec. 149, 49 U.S.C. Sec. 5324).
``Transportation enhancement activities'' are defined quite
specifically in some of these provisions; for example, in the Federal
Intermodal Surface Transportation Act (ISTEA), 23 U.S.C. Sec. 101(35),
states that the term ``transportation enhancement activities'' means,
with respect to any project or the area to be served by the project,
any of the following activities if such activity relates to surface
transportation: provision of facilities for pedestrians and bicycles,
provision of safety and educational activities for pedestrians and
bicyclists, acquisition of scenic easements and scenic or historic
sites, scenic or historic highway programs (including the provision of
tourist and welcome center facilities), landscaping and other scenic
beautification, historic preservation, rehabilitation and operation of
historic transportation buildings, structures, or facilities (including
historic railroad facilities and canals), preservation of abandoned
railway corridors (including the conversation and use thereof for
pedestrian or bicycle trails), control and removal of outdoor
advertising, archaeological planning and research, environmental
mitigation to address water pollution due to highway runoff or reduce
vehicle-caused wildlife mortality while maintaining habitat
connectivity, and establishment of transportation museums.''
As the question notes, the examples pointed in the preamble were in
the context of transportation enhancement activities, and we understood
the intent of the regulation to be reflected by that PAGE
2 deg. language. We do believe that the intent can be roe specifically
spelled out in the regulation, and we will urge the agencies to do so
in their final rulemaking.
Question 2. Early involvement of the environmental community in
project development is a goal of the proposed regulations. If issues
are raised and resolved early, better decisions can be made in a
collaborative way. This idea is reflected in the Memorandum of
Understanding between the Federal transportation and environmental
resource agencies signed last year. Has the MOU succeeded in bringing
environmental agency staff together with transportation agency staff
earlier in the process? What steps are you taking to see that the
regional staff if the Federal environmental agencies follow through on
the commitments in the MOU?
Response. The DOT agencies have told CEQ that they are generally
very pleased with the seriousness of purpose and commitment by the
environmental resources to the principles set forth in the Memorandum
of Understanding signed last year. That said, there are, of course,
issues that inevitably arise and need to be resolved. One such issue
involving the appropriate interpretation of cumulative effects and
connected actions under the National Environmental Policy Act surfaced
earlier this year between regional staff of the Federal Highway
Administration and the Environmental Protection Agency. CEQ convened a
series of meetings to address the issues, including both regional and
headquarters staff. The immediate issues were resolved and we continue
to meet to ensure that steps are put into place to avoid future
problems of this nature. We also look forward to participating in a
workshop on National Environmental Streamlining for Federal Agencies in
St. Louis next month. The workshop will include participation from the
Advisory Council on Historic Preservation, the Environmental Protection
Agency, the National Marine Fisheries Service, the Forest Service, the
Fish and Wildlife Service and the Army Corps of Engineers, as well as
the DOT agencies. The workshop will focus on identifying and
implementing improvements under the MOU.
Question 3. Although the proposed regulations were supposed to have
been issued in the spring of 1999, they were delayed until this May by
ongoing consultations between the FHWA, FTA, the Environmental
Protection Agency, the Council on Environmental Quality, US DOT and
other administration agencies.
Can you explain why such extensive consultations have not resulted
in more concrete proposals to streamline excessive and overlapping laws
and regulations?
Response. Our interpretation of the environmental streamlining
mandate, shared by the DOT agencies and other Federal agencies involved
in this process, was that Section 1309 called for regulations that put
into place an efficient, effective mechanism for implementing the broad
spectrum of laws and regulations applicable to these projects. We
realize that many Members believe the regulations miss the mark, and
CEQ will work with FHWA, FTA and the other agencies to improve the
regulations prior to publication in final form.
Question. 4. From your perspective, why have the NEPA regulations
failed to implement the congressional intent for Federal agencies to
develop and establish time periods for environmental reviews?
PAGE 3 deg.
Response. CEQ did not interpret the Congressional intention to be
that the DOT agencies establish across-the-board timelines, nor do we
think that would be advisable. In fact, the vast majority of DOT
projects proceed through the NEPA process very quickly. At our request,
the FHWA and FTA recently tasked the Volpe National Transportation
Systems Center to perform a nationwide review of recent past use (1998
and 1999) of projects that were categorically excluded from NEPA
documentation requirements. That review shows that from 85-90 percent
of Federal Highway Administration projects were categorically excluded
from NEPA documentation during 1998 and 1999, and that those
categorical exclusions were processed, on the average, in under 3
weeks. For the Federal Transit Administration, approximately 80-95
percent of projects during the same period fell under categorical
exclusions, with processing running between one and three months. While
the report contains some modest and worthy suggestions for improvements
and suggestions for the final NEPA regulations, FHWA and FTA staff did
not suggest anything that they indicated would substantially reduce
these time periods.
Obviously, the concern that lead to passage of Section 1309 was not
these projects, but the remaining five to fifteen percent of highway
projects that take substantially longer. Our interpretation of the
mandate to establish time periods was that for these more complicated,
controversial projects, the DOT agencies, along with the other Federal
permitting and environmental resource agencies and their partners,
would develop a project specific time schedule. CEQ's regulations
already require an agency to set time limits if an applicant for a
proposed action requests them, but in our experience, very few
applicants make such requests. Our view is that the specific mandate in
Section 1309 shifts the burden to set timelines to the Federal agencies
rather than waiting for an applicant to ask the agency to do so, but
that the schedule would be set in the context of a particular proposal.
Question 5. How will a dispute resolution process as called for in
Section 1309 of TEA-21 be incorporated into these existing regulations?
Response. The U.S. Institute for Environmental Conflict Resolution,
a Congressionally established agency that has expertise in conflict
resolution processes, is developing such a process now for FHWA and
FTA. CEQ understands that they will have a proposed to circulate in
November. Apparently some stakeholders recommending developing this
process outside of the regulatory procedures to provide for more
flexibility. CEQ believes an assessment should be made of whether this
process should be added to the rulemaking process once the Institute's
initial proposal is available.
Responses by George Frampton to Additional Questions From
Senator Voinovich
Question 1. Would you please comment on how you believe the
Administration's proposed regulations will shorten, rather than
lengthen the process of highway consultation? Do you believe your
proposed regulations reflect Congressional intent to Sections 1308 and
1309 of TEA-21?
Response. CEQ believes the proposed regulations were intended to
reflect what was understood to be the Congressional intent of Sections
1308 and 1309 of TEA-21. Given the reaction to the proposed regulations
from Members of the Committee, we also understand that additional work
is needed. Features of the proposed regulations that CEQ believes would
streamline the environmental review requirements include the proposed
requirements to involve other Federal agencies early in the process
regarding issues, methodologies, information requirements, timeframes
and constraints, to establish a process schedule for the project at the
beginning of the process, early identification and resolution of
interagency disputes, the optional inclusion of State agencies in the
above actions, explicit direction not to include analysis in NEPA
documents to issues that are not implicated in the proposed action and
need not make explicit findings on such issues, quality assurance
steps, and the ability of an applicant to propose alternative
procedures for NEPA compliance should a State transportation agency
have a proposal that it believes will expedite the process more than
the process outlined in the proposed regulations.
Question 2. What is your timetable for implementation of the
proposed regulations at this point?
Response. The timetable for implementation depends on when DOT
publishes final regulations. Given the very recent closure of the
comment period and the need to review the extensive comments, DOT has
not announced its schedule for publishing a final regulation. In
general, implementation would occur thirty days following publication
of a final regulation.
Question 3. What are your feelings about the role of elected
officials versus unelected officials in the planning process for
highway construction? Do you believe that there is a difference?
Response. There is a difference between State and local officials
and others in that they represent another level of government within
the Federal system. Under NEPA, State highway departments, for example,
are authorized to prepare NEPA analysis, and both State and local
agencies may be designated as either joint or cooperating agencies. I
have strongly encouraged Federal agencies to proactively solicit the
participation of State and local agencies as partners in the NEPA
process. Non-governmental entities and citizens certainly participate
in the public involvement aspects of these processes, but not in the
same manner as governmental entities.
Within the context of State and local agencies, there appears to be
wide variance between which officials are elected and which are
appointed. Ultimately, of course, all government employees work for
someone who is elected by the people. To the extent the law makes a
specific distinction between elected and non-elected officials, the
implementing regulations should, of course, reflect that direction.
Question 4. What do you think are the most significant impediments
which make it difficult to move forward with a road project? Do you
believe that the proposed regulations address these impediments?
Response. CEQ defers to the Federal Highway Administration's
expertise and experience in addressing this question. We understand
from them that lack of agreement on the need for a project and
community support for it, right of way acquisition issues, lack of
funding and environmental issues identified late in the process are
among the contributing factors for delay. CEQ does believe that the
proposed regulations addressed the major causes delay in the context of
the environmental review process, although we believe the specific
wording of the regulations can be improved in final regulations.
Question 5. How do you measure performance in terms of the average
project? What length of time do you believe should be a target of goal?
Response. The FHWA is currently developing baseline data so that
performance in terms of timelines can be responsibly measured. We do
have information from the FHWA, developed by the Volpe National
Transportation Systems Center, that shows that the vast majority (85-90
percent) of projects during 1998 and 1999 were handled under
categorical exclusions in under three weeks. Obviously, the concern is
not focused on these projects, but rather the few projects that are
large, controversial and complex. FHWA is working to refine data about
these types of projects.
I am reluctant to suggest an overall timeframe for completion of
transportation projects, because many of the factors that influence
such projects are outside of CEQ's area of expertise. Certainly, some
projects are substantially delayed by factors having nothing to do with
the environment. In other cases, environmental issues are a major
concern. The NEPA process serves to identify all of those concerns. To
the extent that the DOT agencies can resolve significant environmental
issues in a manner that unites interested and affected parties in
support of the project, I would consider that time well spent. To the
extent that achieving such unity is not possible, the agencies must
proceed in a manner that ensures they have the best information
possible on which to base their decision and a defensible record on
which to base that decision.
Question 6. What provisions do the proposed regulations include to
ensure that environmental review, permits, licenses, and approvals are
conducted concurrently, rather than sequentially?
Response. The DOT agencies have submitted a specific list of the
citations in the context of the proposed regulations that were intended
to ensure concurrent rather than sequential review. I would like to add
to that the CEQ regulation at 40 CFR Sec. 1502.25 that requires that to
the fullest extent possible, agencies shall prepare draft environmental
impact statements concurrently with and integrated with environmental
impact analyses and related surveys and studies required by
environmental review laws and executive orders. The regulation also
requires agencies to identify in a draft EIS all Federal permits,
licenses, and other entitlements which must be obtained in implementing
the proposal.
Question 7. What mechanisms will be used to deal with disputes
between Federal agencies so that such disputes can be resolved in a
timely manner?
Response. The DOT agencies have engaged the U.S. Institute for
Environmental Conflict Resolution to help develop this mechanism. The
Institute was established by Congress in 1999 and employs dispute
resolution experts to work on these types of issues. The Institute has
been working with a number of transportation stakeholders in developing
a proposed mechanism, and we understand they will be distributing a
draft to stakeholders for review next month.
Question 7. Did you look at pilot projects when developing these
proposed regulations? Do you think there would be any benefit to pilots
in areas of major disagreement to streamlining, for example, a wetland
pilot project, a National Historic Preservation pilot, etc.?
Response. CEQ has discussed this issue with FHWA. FHWA is
proceeding with pilot projects in several parts of the country, and CEQ
has had an opportunity to review some of these projects in the context
of the ``Best Practices in Environmental Partnering'' cases highlighted
by the American Association of State Highway and Transportation
Officials. The rationale for not including pilot projects as a discrete
section of the proposed regulations was simply the DOT agencies
interpretation that environmental streamlining practices were supposed
to apply to all DOT projects, not just a select few. CEQ concurred with
this rationale.
__________
Response by George Frampton to Additional Question From Senator Chafee
Question 1. If reducing time is the most important factor to
environmental streamlining, then do you believe that the environmental
community must be brought into the planning process early in order to
be effective?
Response. Yes. Public interest organizations, whether neighborhood
associations, or those focused on the environment or historic
preservation, clearly have a high degree of interest and often valuable
perspectives that can contribute to the transportation planning
process. Developing a common understanding and acceptance of the
purpose and need of a proposal at the beginning of the process can go a
long way in setting the stage for constructive dialogue about
alternative means of achieving the transportation need to be addressed
by the proposal. Virtually all of the ``best practices'' studies in the
transportation field and elsewhere show that this kind of early
involvement is a good indicator of likely completion of a project in an
efficient and effective way that avoids post-decisional conflict.
Department of Justice, Office of Legislative Affairs,
Washington, DC, October 20, 2000.
Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works,
Washington, DC.
Dear Mr. Chairman: This letter responds to your letter of September
21, 2000, to Lois Schiffer, Assistant Attorney General for Environment
and Natural Resources. You posed questions relating to the hearing of
September 12, 2000, before the Committee concerning the Department of
Transportation's proposed NEPA streamlining regulations. We have
enclosed responses to your inquiry.
If you have any questions regarding the submission of this package,
please do not hesitate to contact this office. The Office of Management
and Budget has advised us that from the perspective of the
Administration's program, there is no objection to submission of this
letter.
Sincerely,
Robert Raben,
Assistant Attorney General.
__________
Responses by Robert Raben to Additional Questions From Senator
Bob Smith
Question 1. The proposed regulations require transportation
projects to avoid impacts to low income and minority populations. If
Title VI is the statutory basis for these environmental justice
regulations, do these regulations attempt to create a new protected
class?
Response. The statutory basis for the regulations is 23 U.S.C.
Sec. 109(h). Section 109(h) authorizes the Secretary to promulgate
guidelines designed to assure that possible adverse economic, social,
and environmental effects relating to any proposed transportation
project are fully considered, and that the final decisions on the
project are made in the best overall public interest.
The environmental analyses of transportation projects have been
required to address the impacts on affected communities, including low
income areas for years prior to the environmental justice Executive
Order. For example, Section 3 of FHWA Technical Advisory T6640.8A
(October 30, 1987), which provides guidance in the preparation of
environmental documents, indicates that the documents should discuss
``changes in the neighborhood or community cohesion for various social
groups'' specially benefited or harmed by the proposed project. Section
4 states that discussions regarding relocation impacts normally should
include an ``estimate of the number of households to be displaced,
including the family characteristics (e.g., minority, . . . income
levels . . . ),'' unless the low number of displacees would raise a
privacy issue. These documents also are directed to include a
``discussion of the measures to be taken where the existing housing
inventory . . . is not within the financial capability of the
displacees.''
The focus on environmental justice in the proposed regulations is
simply an emphasis on an existing obligation. It is also consistent
with Executive Order 12898 and the Council on Environmental Quality's
1997 Environmental Justice Guidance under the National Environmental
Policy Act.
Question 2. The Environmental Justice executive order and these
regulations (Section 1420.11) specifically do not create any judicial
review of any agency action. Are the States likewise protected from
potential legal actions, which would be yet another source of project
delay?
Response. The Executive Order applies only to Federal agencies and
it does not create a cause of action, so no lawsuit could be brought
against a State for alleged violations of the Executive Order. The
proposed NEPA regulation also applies only to the FHWA and the FTA, so
no cause of action would be created against the State. Furthermore,
most challenges to highway projects, including all NEPA challenges, are
brought under the Administrative Procedure Act which applies only to
actions by Federal--not State--agencies. Of course, a State may have
its own laws that impose NEPA-like and other obligations on that State
and such obligations can be the subject of actions against the State
under State law.
Question 3a. With the increased threat of litigation under these
proposed regulations, there is interest in the transportation community
for a statute of limitations on challenges to transportation projects.
Environmental plaintiffs typically wait as long as possible to bring
legal challenges in order to delay transportation projects.
Is there a statute of limitations for lawsuits that can be brought
under NEPA as a challenge to a transportation projects?
Response. At the outset we do not agree that there is an increased
threat of litigation under the proposed regulations. The draft rules'
emphasis on early planning and early inclusion of all interested and
affected agencies and officials should help to reduce, not increase,
litigation.
There is no specific statute of limitations applicable to lawsuits
brought under NEPA as a challenge to transportation projects. The 6-
year statute of limitations under 28 U.S.C. 2401(a), which is
applicable to all challenges of agency action under the Administrative
Procedure Act, would apply to challenges to transportation projects
under NEPA.
Question 3b. What would you consider to be a timely filling for a
lawsuit on challenges to a transportation project?
Response. A ``timely filing'' is one that is commenced within the
applicable statute of limitations and if the plaintiff is seeking
equitable relief and does not seek it promptly the government may have
a defense of laches. Laches is an affirmative defense against an
equitable relief claim based on findings that plaintiff delayed
inexcusably and unreasonably, and that the delay was prejudicial to the
defendant. The analysis is in large part fact-based and addressed to
the discretion of the trial court.
Question 3c. What is the typical statute of limitations for
lawsuits under other environmental laws, such as the Clean Water Act or
the Clean Air Act?
Response. Citizen suits against the Federal Government under the
Clean Water Act (33 U.S.C. 1365), the Resource Conservation and
Recovery Act (42 U.S.C. 6972), and the Clean Air Act (42 U.S.C. 7604)
are governed by the same 6-year statute of limitations as NEPA--28
U.S.C. Sec. 2401(a)). As in response to (b), a laches defense may also
be available.
__________
American Association of State Highway and Transportation
Officials,
Washington, DC, October 6, 2000.
Hon. Bob Smith, Chairman,
Committee on Environment and Public Works,
Washington, DC.
Dear Chairman Smith: On behalf of the American Association of State
Highway and Transportation Officials, I wish to express our sincere
appreciation for your leadership in conducting a hearing to consider
the Department of Transportation's proposed regulations regarding
statewide and metropolitan transportation planning and NEPA. As I
indicated at the hearing, we are concerned that the proposed
regulations add layers of requirements and complexity beyond the
current rules, and should be revised and reissued for public comment.
AASHTO's member transportation departments are committed to
upholding their responsibilities for preserving and protecting the
environment. We believe that we can streamline and simplify the project
development process without sacrificing our commitment to environmental
stewardship. We look forward to working with the Administration,
Congress, our partners and stakeholders to move forward with developing
and implementing commonsense regulations.
Enclosed is our answer to the question submitted by Senator Lincoln
Chafee for the hearing record. If you, your staff or Senator Chafee
need additional information or wish to discuss this further, please
contact John Horsley, AASHTO's Executive Director or Janet Oakley,
Director of Policy and Government Relations at 202-624-5800.
Sincerely yours,
Thomas R. Warne,
Director, Utah Department of Transportation,
President, AASHTO.
__________
Response by Thomas R. Warne to Additional Question From Senator Chafee
Question 1. If timely permitting is your critical issue for
environmental streamlining success, then how do you ensure that the
environmental mandates required by Congress, which often require time
to analyze and understand the impacts, are not compromised?
Response. AASHTO believes that environmental streamlining can be
accomplished in a manner that will not compromise Congressional
environmental mandates. We believes that the best way to ensure both
thorough and complete analysis and understanding of impacts and
avoidance, minimization and mitigation opportunities is for the studies
necessary for permitting to be done as part of and simultaneously with
the National Environmental Policy Act (NEPA) studies for transportation
projects. If the appropriate Federal and State environmental resource
agency staff participate as part of the NEPA process, then their issues
and concerns can be raised early in the process, when there is time to
ensure that the issues can be studied and. understood in detail. Too
often what happens today is that these issues are not raised until
after decisions have been made and there is less flexibility or time to
deal with the issues.
The key to environmental streamlining is that all environmental
resource agencies are involved early, raise issues and concerns early,
and that these issues and concerns are dealt with and resolved when
there is time to ensure they can be dealt with effectively. Too often
today, because there are not requirements for early participation and
early identification and resolution of issues, environmental resource
agencies wait until the subsequent permitting processes to raise issues
or concerns, and the effect is to delay the process and increase the
likelihood of conflict. The effect can be that there is less
environmental protection in the end than there would have been with
earlier participation.
In those States where environmental streamlining agreements have
been implemented and resource agencies have agreed to early
participation and early identification and resolution of issues, the
environmental mandates required by Congress have been more thoroughly
analyzed and more thoroughly understood before transportation decisions
have been made. Environmental resource agencies have also been more
involved in the actual transportation decision making process. The net
effect in these cases has been that environmental streamlining has
worked to increase environmental protection, rather than compromising
it.
In the enclosed publication AASHTO has documented examples of
successful environmental streamlining practices. These case studies are
from States that were identified in a national competition organized
and sponsored by AASHTO to recognize excellence in environmental
streamlining practices. These case studies demonstrate that
environmental streamlining can be successful without compromising
Congressional mandates.
__________
Statement of Kenneth R. Wykle, Administrator, Federal Highway
Administration, Department of Transportation
Mr. Chairman and Members of the Committee, I am pleased to appear
before you today to discuss the Department of Transportation's (DOT)
implementation of the Transportation Equity Act for the 21st Century
(TEA-21), focusing on proposed revisions to planning and National
Environmental Policy Act of 1969 (NEPA) rules.
PLANNING, NEPA, ITS NPRM'S
On May 25, 2000, the Federal Highway Administration (FHWA) and the
Federal Transit Administration (FTA) issued three interrelated notices
of proposed rulemaking (NPRM's). The proposed regulatory revisions
reflect statutory changes made by TEA-21 in the areas of: (1)
metropolitan and statewide planning, (2) consistency with the National
Intelligent Transportation System (ITS) Architecture and Standards, and
(3) NEPA implementation, for projects funded or approved by FHWA and
FTA. Through this coordinated approach to rulemaking, the Department of
Transportation seeks to ensure that environmental concerns are
addressed efficiently and effectively, that the planning and NEPA
processes are better integrated, and that ITS is appropriately
considered throughout the process.
The proposed revisions respond to new statutory requirements under
TEA-21, while attempting to align our regulations with other laws,
court decisions, and Presidential directives. In drafting these NPRM's,
we sought to: (1) implement statutory provisions and reflect
congressional intent; (2) provide flexibility to transit operators,
States and Metropolitan Planning Organizations (MPO's), emphasizing
outcomes and not procedures; and (3) reflect key Federal priorities:
Environmental Justice, Environmental Streamlining, and Intelligent
Transportation Systems. We have attempted to offer options for State
and local decisionmakers that give them the flexibility to operate most
efficiently. One of our principal aims with these proposed rules is to
streamline transportation decisionmaking by strengthening the link
between the planning and environmental processes, thus improving
project delivery while maintaining environmental protections.
The proposed rules were developed by an interagency task force of
planners and environmental specialists from FHWA and FTA, with input
from the Office of the Secretary of Transportation, other DOT modal
agencies, and other Federal agencies, including the Environmental
Protection Agency (EPA). The task force relied on comments received
through an open and inclusive outreach process. This outreach listening
to a variety of stakeholders, partners to and customers of our
regulations began shortly after the enactment of TEA-21 on June 9,
1998. The outreach effort included a series of regional forums, focus
group sessions, and workshops, which resulted in the ``Options Paper
for Discussion on the Planning and Environmental Streamlining
Provisions of TEA-21'' released in February 1999. We then used the
approximately 150 comments received on the options paper, along with
additional suggestions made through consultation with our Federal
partner agencies, to create our proposal. Several themes emerged from
our outreach effort. They are: early involvement of a variety of
parties in the transportation planning process done by States, maximum
flexibility for States to create their own custom-tailored processes
and procedures, and improved linkage between the planning and NEPA
processes.
Early Involvement.--One primary objective of our proposals is to
facilitate better and earlier involvement of all interested parties in
planning and project development, including early consultation with
other agencies that may have jurisdiction over a federally assisted
transportation activity. This objective is reflected in many of our
draft provisions, including proposals that a cooperatively developed
process for consultation with local officials in rural areas be
developed; that a cooperative, interagency approach to early estimation
of revenues available to support project implementation priorities set
forth in plans and programs be used; and that special efforts to reach
out and engage all communities in planning processes be made. The
proposals also support initiating decisionmaking for ITS investments
during the planning process to enhance interagency cooperation in
management and development of the transportation system, and ensure
systems that work together without equipment conflicts. In project
development, the NPRM's propose involvement of resource agencies early
in the planning of a project that is likely to involve detailed
environmental review.
Flexibility.--The draft rules seek to provide a framework for
planning and NEPA review that allows flexibility. The intent of our
revised regulations is to provide options that will assist States,
local units of government, and transit operators in identifying
efficiencies that they can build into their transportation planning and
decisionmaking processes. State and local agencies can determine the
means of accommodating TEA-21 statutory requirements that best work for
them. The section of the NPRM addressing Alternate Procedures would
specifically allow for innovation in meeting NEPA requirements;
applicants can propose alternate procedures that more effectively
integrate with State or local project development processes. New
Hampshire, for example, in its I-93 Pilot Project, offers a model for a
more streamlined NEPA review using ``Partnering'' concepts that have
been effectively used in the construction industry to expedite
decisionmaking. Our proposed regulations provide the flexibility for
this and other such innovative approaches.
Integration of Planning and Environmental Review Processes.--By
linking the NEPA and planning processes, our proposal would allow the
results of planning stage analysis to be more effectively used to
support project development. We aim to provide a policy and regulatory
framework to allow decisions made in the planning process to be
utilized in the NEPA process. Documentation of planning actions would
eliminate redundancy and enable States, MPO's, and transit operators to
advance environmentally sound projects more expeditiously.
The Planning and NEPA linkage is also intended to encourage
consideration of environmental and economic impacts earlier and on a
systems level, and to involve the environmental agencies and affected
communities earlier in the planning process. For example, in Montana,
Oregon, Idaho, Washington, and Wyoming, collaboration with the Fish and
Wildlife Service to address endangered species on a systems level
promises to give us a streamlined approach that can shorten the
required coordination on individual projects. This approach offers
options for increasing project development efficiency where States,
MPO's, and transit agencies deem such systems-level action appropriate
and desirable. As TEA-21 confirms, we would not require the NEPA
process to be done in planning, and the degree of detail in the
planning analyses is left to the planning participants' discretion.
It is clear that achieving some of these desired outcomes will be
difficult. An example is our proposed elimination of the Major
Investment Study (MIS) as a stand-alone requirement. We dropped all
references to studies for major projects and instead focused simply on
improving the relationship between the planning and environmental
processes. In our view, being able to use planning products more
effectively in the environmental process should reduce redundancy,
duplication of effort, and costs in transportation decisionmaking. We
know that the American Association of State Highway and Transportation
Officials (AASHTO) has several concerns regarding perceived
``broadening'' in the range of projects affected, or subjecting the
planning process to NEPA analyses. We will review these and other
comments to ensure that, in our effort to reflect congressional intent,
we have not created unintended consequences nor failed to give
appropriate recognition to the many interests affected by
transportation decisionmaking. We want to work with our stakeholders to
resolve their issues.
STREAMLINING ACTIONS
In TEA-21, Congress directed the Department to streamline both the
planning process and the environmental review process for
transportation projects funded by FHWA and FTA. Our proposed regulatory
changes, however, are only a part of our streamlining efforts. Guiding
projects through the planning and review processes faster, without
compromising environmental and civil rights safeguards, is a complex
undertaking for which there is no easy solution. DOT regulatory
revisions alone will not provide a total solution for reducing delays
that is not within our regulatory power because the majority of
environmental laws and regulations are under the authority of other
Federal agencies. Instead, we are working with our Federal partners,
State DOT's, and other stakeholders on multiple approaches.
In addition to the proposed regulations, we are developing national
and regional memoranda of understanding, programmatic agreements,
dispute resolution procedures, reimbursement procedures for Federal
staffing, and performance measures so that we can report back to you on
streamlining progress over time.
Although Federal resource agencies have been working with us to
implement streamlining, we have to recognize that TEA-21 brought a 40
percent increase in highway-transit funding, which generates a roughly
comparable increase in the highway-transit project workload for
environmental agencies. This has occurred during a time when there has
been a significant increase in the complexity of environmental issues
and the environmental expectations of the American public. We support
use of the TEA-21 provision that allows States to reimburse Federal
resource agencies to augment their staff to address this additional
workload.
In July 1999, DOT and Federal environmental review and permitting
agencies entered into a national Memorandum of Understanding (MOU). The
MOU formalized the agencies' commitment to streamline the environmental
review process to expedite Federal highway and transit projects, while
fulfilling their responsibilities to protect the environment. An
interagency group was then formed to develop an Environmental
Streamlining Action Plan. This Action Plan provides a national
framework for activities that require national leadership for
successful implementation. It calls for issuance of an annual report to
assess how deadlines are being met and will serve as a tracking tool.
The plan is a living document that will be regularly updated to reflect
State and local activities. FHWA and FTA are pleased that AASHTO, at
our request, designated a streamlining working group to coordinate with
the Federal interagency streamlining group. AASHTO also hosted the
first of our Environmental Streamlining Executive Sessions with State
and Federal agencies and with transportation and environmental
stakeholder groups to facilitate an open dialog on streamlining best
practices. We believe that working collaboratively we will be able to
define appropriate national and local solutions for reducing project
delays. For example, the Mid-Atlantic States have worked with our field
offices and with a number of other Federal agencies at the field level
to develop a guide for environmental streamlining in this part of the
country. By all accounts, this has been a highly successful endeavor.
Additionally, we are working with State DOT's to improve the
quality of their environmental analysis, mitigation measures, and
planning in the area of environmental issues. We are working with
Federal, State, local, and transit planning partners to create and
enhance intermodal systems and to support projects that can improve the
natural and human environments for low income and minority communities.
We are encouraging the expanded use of Federal agencies' administrative
authorities to achieve process efficiencies and concurrent reviews.
This includes delegation of authority from Federal agencies, such as
the Army Corps of Engineers and the Advisory Council on Historic
Preservation, to State agencies to act on their behalf in carrying out
Federal regulations, partnership agreements for conducting concurrent
reviews, and project agreements for specific time commitments. In
Vermont, for example, certain Federal historic preservation
responsibilities have been delegated to the Vermont Agency of
Transportation. We are especially focusing on coordination with EPA and
other Federal environmental agencies to get their field staff involved
early in planning and project development, to ensure that field staff
carry out environmental streamlining commitments, and to elevate and
resolve differences quickly.
The Federal agencies initiated regional streamlining summits in
which more than half the States participated. Many of the State and
Federal executives met face-to-face with their counterparts for the
first time. These meetings have led to at least 15 States initiating
pilot efforts and another 12 developing programmatic agreements for
process streamlining.
In testimony before Congress earlier this year, the Department
committed to improving the streamlining process. But, we still have a
long way to go. Environmental streamlining merits the continued close
attention of all of us if we are to fulfill the American people's
interest in both improved transportation and an improved environment.
We are definitely open to all your suggestions for accomplishing this.
CURRENT STATUS OF RULEMAKING
Our proposals are now in the public review and comment stage. FHWA
and FTA have conducted a series of public briefings on our proposals in
seven locations with more than 700 participants; hosted a national
teleconference on June 15 with approximately 4,000 video participants;
and made several presentations at national and regional transportation
conferences and meetings. The purpose of these outreach sessions was to
clarify the content of the NPRM's and encourage public input. We are
now continuing to solicit and accept comments to the docket from all
interested parties. We are hopeful that the intense interest shown in
commenting on the proposed regulations is indicative of the level of
constructive recommendations that we will find in the comments.
In response to numerous requests received from State DOT's, transit
operators, MPO's, and other interested groups and individuals, we have
extended the comment period for the proposed planning, environmental,
and ITS rules, from August 23, 2000, until September 23, 2000. We
recognize the complexity of the proposed revisions and believe that
more time for in-depth analysis is beneficial. However, we must
continue moving forward on these issues, as TEA-21 requires. I can
assure you that the Department will carefully evaluate all of the
concerns and the proposed changes that are submitted.
CONCLUSION
We look forward to continued cooperation to improve the planning
and the environmental review processes, with this Committee, with the
organizations and agencies represented here today, and with the other
interested parties that have commented on our NPRM. We believe that
this cooperative effort can lead to development of regulations that
will successfully implement our shared streamlining goals. Let me
reemphasize that we have issued proposals not final rules. You have my
assurance that we are open to all sound alternatives and that the
outcome of this rulemaking process is in no way predetermined.
This concludes my testimony, Mr. Chairman. I would be happy to
answer any questions you, or other members of the committee, may have.
__________
Responses by Mr. Wykle to Additional Questions From Senator Voinovich
Question 1. Would you please comment on how you believe the
Administration's proposed regulations will shorten, rather than
lengthen the process of highway construction? Do you believe that your
proposed regulations reflect Congressional intent in Sections 1308 and
1309 of TEA-21?
Response. The Department of Transportation's proposed regulations
will shorten the environmental review process by: (1) establishing an
environmental streamlining process that calls on the Department, in
partnership with the applicant, to coordinate Federal environmental
reviews and to use dispute resolution measures to reduce delays; (2)
offering applicants the opportunity to use alternate procedures tailor-
made to their business practices; (3) establishing by regulation the
option of using programmatic approvals as a faster way of dealing with
recurrent situations; (4) allowing States the time-saving option of
using the same contractor for NEPA work and subsequent design work; (5)
integrating the planning process with the NEPA process; (6) encouraging
early involvement of resource agencies; (7) expanding the use of
categorical exclusions; and (8) allowing the use of the highly
expedited ``automatic'' categorical exclusion for some actions, such as
routine resurfacing projects.
However, while the proposed regulations actively encourage the
engagement of other Federal agencies in early coordination activities,
the Department cannot, as a matter of law, issue regulations which
require such engagement. Congress has enacted over 40 environmental
laws that incidentally apply to transportation, and these laws are
carried out by other Federal agencies. For example, the Army Corps of
Engineers must approve a Clean Water Act Section 404 permit for
projects involving the discharge of dredged and fill materials in
waters of the United States. Similarly, the Fish and Wildlife Service
or the National Marine Fisheries Service must make explicit legal
findings under the Endangered Species Act for projects affecting
threatened or endangered species or their habitat. Without these
approvals and findings, such projects cannot move forward whether they
are federally funded or not.
It was our goal to have our proposed regulations fully reflect
Congressional intent, as manifested in Sections 1308 and 1309 of the
Transportation Equity Act for the 21st Century (TEA-21). The following
chart, an adaptation of an exhibit used by Senator Voinovich at the
hearing, illustrates how our proposed rules can shorten the pre-
construction process.
Question 2. What is your timetable for implementation of the
proposed regulations at this point?
Response. The comment period for the FHWA/FTA proposed rules on
planning and the National Environmental Policy Act (NEPA) process
closed on 9/23/00. As is standard practice, we will consider comments
that come in after the deadline, to the extent feasible. We will be
analyzing the comments in more detail in the coming weeks.
We know that you, other members of Congress, State Departments of
Transportation (DOT's), the American Association of State Highway and
Transportation Officials (AASHTO), and other interested parties have
requested that we reconsider our proposed rules. We are weighing those
requests, along with the comments to the docket, and we assure you that
we appreciate the depth of concern expressed. The Department could
proceed to issue a final rule these areas, or could decide that further
procedures to obtain information and views would be beneficial. We will
make every effort to reconcile the differences among the comments
before deciding the next steps to take.
Question 3. What are your feelings about the role of elected
officials versus unelected officials in the planning process for
highway construction? Do you believe that there is a difference?
Response. TEA-21 provided increased emphasis on the participation/
involvement of local officials in transportation planning and
programming. It emphasized the importance of consultation in the
transportation planning process, while not changing the basic
decisionmaking ``balance of power.''
There is a difference in the roles of elected and unelected
officials, in that elected officials are basically decisionmakers while
unelected officials serve basically in an advisory or consulting role.
However, unelected officials might be delegated decisionmaking
authority at times. When this is the case, the unelected officials
should be treated as elected officials, since they are acting on the
behalf of the elected officials.
Question 4. What do you think are the most significant impediments
which make it difficult to move forward with a road project? Do you
believe that the proposed regulations address these impediments?
Response. Factors that can make it difficult to move forward with a
road project include: lack of available funding; lack of consensus on
the need for the project or the alternative to be selected, right-of-
way acquisition, particularly if the parcels are held in trusts or
under multiple ownerships; the comprehensive set of environmental
regulations that impact highway projects, whether or not Federal funds
are used; and changing priorities, which cause projects to be shelved
and later reinstated, triggering a new NEPA process. The following
table, ``So You want a Highway,'' summarizes the current processes and
the opportunities offered in our proposed rule for overcoming some
impediments.
Question 5. How do you measure performance in terms of average
project? What length of time do you believe should be a target or a
goal?
Response. First, we have to establish good baseline data to measure
performance before we can set a goal. Currently there is some anecdotal
information but little quantitative data available for measuring
performance of the ``average project'' on a national scale. FHWA is
working to identify performance indicators that can be used to track
baseline information and evaluate future actions. Our initial data is
limited to information about pre-construction activities, primarily the
NEPA process, because most of the activities that streamlining targets
occur during the NEPA process. The results of a baseline study of
historical trends, conducted over the past year by an outside
consultant, will be available by the end of the year. FHWA also intends
to examine the quality and effectiveness of the environmental review
process in setting performance targets or goals.
Response. To get some understanding of timeframes required for an
``average project'' to complete pre-construction activities, FHWA
reviewed basic data on those projects requiring the most rigorous level
of environmental review, i.e., those requiring Environmental Impact
Statements (EIS). Timeframes were tracked for all FHWA projects that
had received a record of decision in 1998, beginning with the date the
notice of intent (NOI) was announced. The NOI formally initiates the
NEPA process. Of the 37 projects that fell into this category, most of
the projects (51 percent) took 4-6 years to process the EIS. The 4-6
year timeframe is probably typical for highway construction projects
requiring an EIS. A comparison of the same baseline assessment for
projects that completed the NEPA process in 1999 revealed a similar
range of results. Please bear in mind, however, that only about 2.4
percent of projects require an EIS. Projects that are categorically
excluded, or found to have no significant impact following an
environmental assessment, usually clear the environmental processes in
about 2 years. (Charts following Question 2 from Senator Graham show
the percentage of projects under each NEPA class of action and compare
timeframes for completing the NEPA process.)
While it is too early to identify a target length of time for
processing average projects, we do believe that there are opportunities
to shorten the average time for all projects.
Question 6. What provisions do the proposed regulations include to
ensure that the environmental review, permits, licenses and approvals
are conducted concurrently rather than sequentially?
Response. Section 1420.109 of the draft NEPA regulation, ``The NEPA
Umbrella,'' proposes using the NEPA process as a means of satisfying
the various Federal environmental mandates in a single, coordinated
process. Section 1420.203, ``Environmental Streamlining,'' indicates
how DOT and the project sponsor will work together to assure that
projects faithfully execute this coordinated environmental review.
Based on comments received, we see the need to further underscore the
concurrent nature of this process.
In addition, our proposed NEPA regulation allows planning products
to be used in the NEPA process. The extent to which a State or project
sponsor chooses to engage in rigorous planning, that includes some
environmental analysis, will determine how much information will be
needed in the NEPA process. We point out that a State can open the NEPA
process while conducting the planning study, but a State is not
required to do this. By doing so, however, all of the planning
decisions and analysis become part of the NEPA record. This can narrow
the range of alternatives explored in detail during NEPA, would reduce
duplication, and would encourage concurrent reviews.
Provisions in our proposed regulations which create opportunities,
to the extent our authority allows, for moving the participating
agencies toward a concurrent review process include:
FLEXIBILITY IN PROPOSED NEPA REGULATIONS
State is encouraged to conduct activities within framework
of integrated and efficient decisionmaking (NEPA umbrella)
(1420.109(b)).
State may request all State agencies with environmental
review/approval to coordinate in NEPA process (1420.203(b)).
Coordinated environmental review process need not be
applied to actions not requiring EIS (1420.203(c)).
Nothing shall prohibit approvals which apply to future
actions consistent with conditions established for programmatic
approvals (1420.205(a)).
Applicant may propose alternate procedures for complying
with the intent of this part (1420.209).
Other USDOT agencies may use specific actions/categories
of actions under this part (1420.211).
May select contractors for NEPA process (1420.301(c)(1)).
May procure services of consultant under single contract
for NEPA and engineering/design work (1420.301(c)(2)).
flexibility in planning/nepa linkage
PLANNING PRODUCTS SHALL BE CONSIDERED EARLY IN NEPA
process (1420.201(a)); applicants shall, to the maximum extent useful
and practicable, incorporate and utilize analyses, studies, documents,
developed in the planning process (1420.201(b))--these provisions
intend to maximize the usefulness of the planning products for the NEPA
process and eliminate duplication.
As to the coordination with agencies consulted in
planning, appropriate frequency and timing of coordination will depend
on interest of agencies consulted (1420.303(a)).
Shall use products of public involvement from planning
whenever it is reasonably available and relevant (1420.305(a)).
existing flexibility
Proposed actions be developed to fullest extent
practicable (1420.113);
Categorical Exclusions;
LList of actions reflect changes in FHWA/FTA programs
and incorporate new actions, such as ITS, transportation
enhancement activities, mitigation banking, resurfacing
(1420.311(c));
LList of actions include additions such as some
approaches to bridges and tunnels, parking facilities, ferry
facilities, advance land acquisitions, storm water retention
ponds, transportation enhancement activities (1420.311(d));
Able to issue revised Record of Decision if wishes to
approve alternative not selected as preferred yet fully evaluated in
FEIS (1420.321 (b));
Lists circumstances when supplemental EIS is not necessary
(1420.325(b)).
Question 7. What mechanisms will be used to deal with disputes
between Federal agencies so that such disputes will be resolved in a
timely manner?
Response. We are in the process of developing a policy and
procedures for expediting conflict resolution among Federal agencies,
as directed in Section 1309(c) of TEA-21. We are using the Institute
for Environmental Conflict Resolution to help us develop this policy.
We have obtained ideas from other Federal agencies, State
transportation and resource agencies, MPO's and other interested
parties who helped us to pinpoint key elements that need to be
addressed in the policy. A draft dispute resolution policy is expected
to be ready for review by our stakeholders in November.
Besides the specific policy and procedures that fulfill the intent
of Section 1309(c), we will be working with the Federal agencies and
State agencies to compile guidance, strategies, and approaches,
including benchmarking, to give interested parties insights on how to
manage conflict and potentially controversial project issues early in
the process.
Question 8. Did you look at pilot projects when developing these
proposed regulations? Do you think that there would be any benefit to
pilots in areas of major disagreement to streamlining, for example a
wetland pilot project, a National Historic Preservation pilot, etc.?
Response. FHWA did look at pilot projects and other streamlining
initiatives underway when developing the proposed regulations. We opted
not to initiate a formalized pilot program because a number of
stakeholders feared that this would slow down the broad scale
implementation of environmental streamlining provisions of TEA-21.
Instead, we are participating in pilot efforts on a case-by-case basis.
We were active participants in the Mid-Atlantic Transportation and
Environment Task Force (MATE) effort. We facilitated streamlining
projects in Florida and North Carolina and provided technical
assistance to the selection of the AASHTO pilot efforts. We are
currently serving on a Transportation Research Board panel with AASHTO
to oversee pilot implementation and evaluation efforts.
Each pilot uses a very different approach, each has different
goals, and each uses some different criteria for measuring success. For
example, the Mid-Atlantic States adapted their merged NEPA and 404
permitting processes to incorporate the entire project development
process under a streamlined approach. In doing so, the affected
agencies pledged to get involved early and have committed to reach a
consensus on major NEPA decision points. They defined a time-limited
review period for each of the major steps, which, if not honored, would
trigger a dispute resolution process at the State level. They have cut
out two steps from their normal process. They were able to do this
because of an existing level of trust and positive relationships among
the agencies. The MATE process represents a process improvement that
can be useful for States who have or who are willing to work through a
NEPA/404 merger process, but it will not work for all States.
Florida has chosen to integrate its environmental resources
inventory as part of its long-range transportation planning process.
They are doing this to pursue flexible mitigation packages that result
in better environmental protection in priority locations. In return
they will do less mitigation at specific project sites. This results in
faster approval of a mitigation package and use of mitigation and
avoidance investments on higher priority resources. Not everyone can,
nor wants to, follow Florida's example. But, it works for them.
In North Carolina, State laws emphasize stream bed restoration.
North Carolina has invested State DOT dollars in stream bed protection
as a way to receive mitigation credit for projects. This is one aspect
of their approach to streamlining. It works for them because the State
determined that stream protection is a high priority. In other States,
their streamlining priorities for environmental resource impact
mitigation may incorporate watershed management approaches or flood
plain restoration or wetlands banking. These examples are the reasons
why FHWA has avoided one size fits all streamlining specifics. We
believe good practices and pilot experiences show what works. By not
constraining the environmental streamlining provisions with
predetermined timeframes and tightly prescribed procedures, our
proposed rules attempt to offer the kind of flexibility that adapts
innovations as States propose them.
We believe that continuing to support pilots is beneficial. Because
there are so many factors that may vary from State to State, or project
to project, pilots on wetlands or pilots on historic preservation would
have to be customized for a project or State effort to really have an
impact. A number of generalized approaches, to the extent they can be
useful, are being advanced outside the regulatory process through the
interagency streamlining group or by various agencies.
Responses by Mr. Wykle to Additional Questions From Senator Graham
Question 1. We discussed during your testimony your feeling that
current law and current regulation do not give the Department of
Transportation the authority to require other Federal agencies to come
to the table early in the planning process. As I understand it, nor do
you feel that current law or regulation gives the DOT the authority to
require that Federal agencies either approve, disapprove, or
``conditionally'' approve a project, and then be bound by that
commitment. Can you indicate who would be best in the Department of
Transportation to submit suggestions to me and the Committee on what
legislative language would be needed to accomplish these goals? Would
you task that point-person to submit such language to me for review?
Response. Federal agencies are charged with administering Federal
statutes in their areas of responsibility. The Department of
Transportation (DOT) does not have the authority to require other
Federal agencies to either approve, disapprove, or ``conditionally''
approve a project, and then be bound by that commitment.
In response to your request for a contact person at DOT on this
matter, I will ask Rosalind A. Knapp, Acting General Counsel, to ask
our legislative counsel to call your office to discuss these issues
further with your staff.
Question 2. You indicated during your testimony that, as I
understand it, all but a small percentage of transportation projects
are approved by the needed Federal agencies during a two year time-
frame. Could you share with me the data that supports that conclusion?
Do you have data to show the number of transportation projects that are
withdrawn, or given up, because of the complexity of getting needed
permits? Do you have data that would show how many transportation
projects that seek appropriate Federal permits eventually shift to
using all State funding because of difficulties or time delays in the
Federal process?
Response. The percentage of projects that do not require a review
process that goes beyond 2 years was derived from a review of FHWA's
1998 Federal Management Information System database which tracks
information provided by the States to our Federal-aid program office.
We conducted an initial baseline assessment through our field offices
to arrive at the data shown in the attached charts. (4 Charts
attached.)
The data shows that 91.5 percent of federally funded projects are
categorically excluded from detailed environmental analysis, 6.1
percent are found to have no significant impact after an environmental
assessment is completed, and only 2.4 percent of all federally funded
projects require a full environmental impact statement. Our data
further shows that federally funded projects that are categorically
excluded or found to have no significant impact following an
environmental assessment, usually clear the environmental processes in
about 2 years. Typical projects that require an environmental impact
statement can be processed in about 4-6 years, although there are
examples of projects which have taken much longer and others that have
taken less time. Future research will attempt to identify the reasons
for delay.
We currently do not have data that tracks how many projects are
withdrawn or given up or shift to State funding because of difficulties
and delays in the permitting process.
Responses by Mr. Wykle to Additional Questions From Senator Chafee
Question 1. If reducing time is the most important factor to
environmental streamlining, then do you believe that the environmental
community must be brought into the planning process early in order to
be effective?
Response. We believe the environmental community must be involved
early in the process to be effective in reducing environmental review
time. The Federal resource and permitting agencies, many State
Departments of Transportation (DOT's), and Metropolitan Planning
Organizations (MPO's) also believe this. Our interagency National
Memorandum of Understanding (MOU) on streamlining, executed July 1,
1999, and our action plan reflect these goals and commitments.
Question 2. In your view, what assurances can be provided to the
environmental community that a State Department of Transportation does
not change the subject of a project in the design stage that was
reviewed under the early planning scenario?
Response. The State cannot refine the subject of a project in the
design stage that was reviewed under the early planning scenario
without triggering a NEPA re-evaluation. Consultation early and
throughout the process, and documentation of the consultation and
decisions made during the process, should minimize the likelihood of
such design changes occurring late in the process.
Question 3. How can a conflict resolution process be developed that
meets the needs of all of the policies?
Response. In accordance with TEA-21, the conflict resolution
process must meet the needs of all of the policies. The language of
1309(c) calls for the Secretary to make a finding and close the record
only after notice and consultation with the Federal agency which has
jurisdiction over the environmental issue causing the conflict. The
conference report language further clarifies that the Secretary's
authority to close the record does not extend to analyses, opinions, or
decisions conducted by another agency on any permit license or approval
issued by that agency.
We are in the process of developing a policy and procedures for
expediting conflict resolution among federal agencies, as directed in
Section 1309(c) of TEA-21. We are using the Institute for Environmental
Conflict Resolution to help us develop the policy. We have obtained
ideas from other Federal agencies, State transportation and resource
agencies, MPO's and others who helped us to pinpoint key elements that
need to be addressed in the policy. A draft dispute resolution policy
is expected to be ready for review by our stakeholders in November.
Besides the specific policy and procedures that fulfill the intent
of Section 1309(c), we will be working with the Federal agencies and
State agencies to compile guidance, strategies, and approaches,
including benchmarking, to give interested parties insights on how to
manage conflict and potentially controversial project issues early in
the process.
__________
Statement of Lois Schiffer, Assistant Attorney General, Environment and
Natural Resources Division, Department of Justice
Good morning. Mr. Chairman and Members of the Committee, I am
pleased to appear before you today regarding the Department of
Transportation proposed rule on environmental review. Federal agency
compliance with the environmental review requirements of the National
Environmental Policy Act, 42 U.S.C 4321 et seq., (``NEPA'') is a topic
I have worked on for well over 20 years.
On May 25, 2000, the Department of Transportation issued two
related notices of proposed rulemaking to revise both its NEPA and
related procedures for transportation decisionmaking, and also its
statewide and metropolitan transportation planning procedures. (65 Fed.
Reg. 33959 and 65 Fed. Reg. 33922, respectively). These proposed rules
were drafted in response to the recent passage of the Transportation
Equity Act for the 21st Century (``TEA-21), P.L. 105-178 (1998), to
update the existing environmental review procedures that were last
amended in 1987.
With the comment period on the draft regulations still open, it is
premature to discuss in any detail the Department of Transportation's
revisions to its NEPA rules. At the Department of Justice we do not
ordinarily comment publically before regulations become final because
we often must defend final regulations under court challenge.
Today, my statement will focus on: (1) NEPA's continued importance
in Federal agency decisionmaking more than 30 years after it was
enacted; (2) why the NEPA process is well suited and so important for
assessing transportation projects and including the public in such
assessment; and (3) the concern I understand has been raised about
incorporating environmental justice guidance into the new NEPA
regulations.
As detailed below, a strong NEPA process is extremely important for
reviewing major proposed Federal transportation projects. NEPA has two
central components: (1) careful consideration by the decisionmaker of
the environmental consequences of a proposed major Federal action that
may significantly affect the quality of the human environment by the
decisionmaker, and (2) meaningful public participation during the
project review process. Properly done, a successful NEPA process better
informs the decisionmaker and gives the public an effective channel to
express concerns and influence what is before the Department. These are
both important requirements, and compliance can help to streamline
project review and reduce litigation and litigation risk.
NEPA was enacted in 1969 as part of a response to increasing public
concern over the worsening state of the environment. NEPA's legislative
history notes that by 1969, Congress had already passed ``a procession
of landmark conservation measures on behalf of recreation and
wilderness, national recreational planning, . . . air and water
pollution control, noise abatement, preservation of endangered wildlife
. . . and other related areas.'' And in fact, long before the
environmental crises of the 1960's, many States had passed various
measures addressing the management, protection and regulation of water
and other natural resources, such as forests and wildlife. But NEPA was
different from many of these resource-specific statutes.
What made NEPA different from other environmental statutes enacted
to protect specific resources, such as clean air and clean water, was
the growing sense that the Nation needed an overarching national policy
on the environment. As NEPA's legislative history further describes,
Congress was establishing ``a national policy to guide Federal
activities which are involved with or related to the management of the
environment or which have an impact on the quality of the
environment.'' NEPA thus became a legal expression of something that
scientists had already known for a long time--to arrive at the
``overall goal of a quality life in a quality environment for all
Americans,'' we cannot look at or, for that matter, protect one aspect
of the environment in isolation from other environmental factors. NEPA
arose not so much out of the aftermath of disaster as out of a growing
sense that we needed a national environmental policy that would take a
longer and broader view of where we were going, and this statement of
policy formed the nucleus of the Act.
The early focus of NEPA was Section 102(2)(C), the section that
requires Federal agencies proposing major Federal actions significantly
affecting the quality of the human environment to undertake
environmental reviews. That process, through court decisions and
regulations issued by the President's Council on Environmental Quality
(CEQ), has evolved over the past 30 years into a well-defined set of
procedures. The 1978 CEQ regulations reflected the early experience
with the NEPA process and issues that were addressed by the courts. The
regulations continue to serve as a guide for agencies and are a model
upon which agencies develop their own agency-specific regulations.
Since their first publication, the CEQ regulations have been modified
to keep them up to date. They have withstood legal challenge and are
accorded deference by the courts. Since 1978, virtually all Federal
agencies have adopted their own regulations based on the CEQ model.
One indication that NEPA continues to have vitality today can be
seen by examining how thoroughly agencies have embraced NEPA's
requirements. It has not always been this way. In the beginning,
agencies were hesitant, and even resistant, to complying with NEPA.
NEPA was essentially thrust upon a reluctant bureaucracy committed to
missions that traditionally regarded environmental values (if regarded
at all) as subordinate to the specific statutory goals of the agency.
Over time, however, it is has become clear that NEPA, in effect, has
been grafted into all Federal agency goals. This transition took some
time, but has generally been successful.
The Federal Government has made great strides since the early
1970's in promoting and improving NEPA compliance. While agencies
sometimes find themselves behind the curve and subject to a court
injunction for non-compliance, most agencies have made great progress.
Agencies have come to know that if they comply with NEPA effectively,
courts will scrutinize their decisions less closely, and the proposed
action will likely proceed more quickly. Our experience with
implementing the statute includes three decades of defending Federal
agencies' NEPA decisions when they are challenged in court. Thorough
environmental reviews are an effective way to reduce litigation and
litigation risk. An ounce of prevention is worth a pound of cure.
NEPA compliance is critical for transportation projects because of
the widespread impacts transportation decisions can have on the
physical environment and on communities. These projects affect many
people on a daily basis. Through the NEPA process, effectively
coordinated with the States, careful consideration can be given to
developing and assessing: the environmental impacts of a proposed
project, alternatives with varying impacts, how the proposed project
meets a community's needs, where will the project be constructed, how
it is constructed, and who is affected by the project during and upon
completion.
The NEPA process also provides a good mechanism for public
involvement. Because of the profound impacts that a transportation
project can have on communities and the physical environment, hearing
from the public about possible concerns before a final agency action is
selected can result in better informed decisions. It can also provide
an outlet for the public to present perspectives that may otherwise not
be known to the decisionmaker. From a streamlining perspective it is
also preferable to provide meaningful public participation during the
NEPA process to reduce the likelihood that a citizen will challenge a
decision in court.
The goal of streamlining the environmental review process is to
assure better compliance with NEPA, not to weaken the NEPA.
Streamlining NEPA cannot be about cutting corners, or trying to narrow
artificially the environmental and social consequences that must be
studied. Rather, streamlining means making sure that, from the earliest
stages of project scoping through issuance of a record of decision,
agencies meet NEPA's important analysis and public participation
requirements. Early and effective coordination between State and
Federal agencies, for example, is an effective streamlining approach.
One of the most effective ways for an agency to meet NEPA's goals
and requirements is to have sufficient staff, in addition to the
designated NEPA liaison required by CEQ regulations, to assist with
educating co-workers about NEPA and achieving compliance. Several of
our client agencies have recently assigned individuals specifically to
fill these roles and this assignment should make a positive difference
in how those agencies implement their NEPA obligations. There is the
added benefit of creating an institutional framework within the agency
for considering environmental issues in decisionmaking, thereby weaving
NEPA compliance into the fabric of the agency.
The NEPA process is also a good tool to develop and provide
information that is useful to decisionmakers trying to address and
limit urban sprawl. Newspapers reflect the contemporary public concern
about urban sprawl, and there continues to be a healthy debate about
the role of the Federal Government in responding to this issue. During
an environmental review of a proposed major Federal action a
decisionmaker must consider the environmental and ecological impacts,
as well as other effects, including economic and social impacts. These
are precisely the types of impacts that are typically implicated in any
discussion of urban sprawl.
As a flexible decisionmaking framework, NEPA is also well tested to
address another issue: environmental justice. On this point I am
responding, in particular, to questions raised about the
appropriateness of including environmental justice considerations in
the proposed regulations. Executive Order 12898 and the CEQ guidance on
environmental justice already require that Federal agencies take these
matters seriously and address them in environmental reviews. In
addition, CEQ's guidance will be given deference by the courts. By
revising its NEPA regulations to require consideration of environmental
justice concerns, DOT is simply reflecting the requirements that
already exist under the Executive Order and CEQ Guidance.
In addition to the Executive Order and CEQ Guidance, agencies have
good policy reasons to take environmental justice concerns seriously.
There are well documented instances where environmental costs are
disproportionately borne by low-income and minority populations. For
example, there is a much higher rate of lead poisoning among African-
American and low-income children than in other populations. There is
also anecdotal evidence, including right here in Washington, DC, that
low-income and minority populations endure higher rates of illegal
dumping, dilapidated housing, and a lack of safe parks for their
children.
A proposed transportation project may implicate environmental
justice in a variety of ways. There may be an issue about how
environmental burdens resulting from a proposal, such as air and noise
pollution, may be distributed. Another commonly cited environmental
justice concern is the lack of public participation from low-income and
minority populations during project review. Careful consideration of
these, and other environmental justice concerns, is consistent with the
President's Executive Order and the CEQ guidance. With the dramatic
funding increases approved in TEA-21 and the enhanced concerns about
links between transportation projects and environmental justice, the
proposed rule appropriately clarifies that the affected public,
including minority and low-income citizens, has an opportunity to
participate and present their views during the planning and
environmental review processes. The CEQ Guidance emphasizes the
importance of meaningful public participation throughout the NEPA
process, and how better to reach traditionally under-represented groups
by using nontraditional means of providing notice, and accessible and
convenient meeting times and locations. Just as NEPA can provide a
framework for providing meaningful information to a decisionmaker about
the urban sprawl implications of transportation investments, it also
can assist in improving the participation from minority and low-income
populations, and assuring careful consideration of their environmental
concerns.
NEPA has brought about enormous changes in the last 30 years it has
led to widespread consideration of environmental values in
decisionmaking, increased public participation and involvement, and has
made a substantive, positive difference in how the Federal Governmental
acts. Implementing the projects funded by TEA-21 in conjunction with
strong NEPA compliance will help DOT to fulfill Congress' mandate
declared more than 30 years ago that: ``It is the continuing policy of
the Federal Government [in cooperation with others] . . . to use all
practicable means and measures . . . to create and maintain conditions
under which [hu]man[s] and nature can exist in productive harmony, and
fulfill the social, economic and other requirements of present and
future generations of Americans.''
__________
Statement of Carol A. Murray, Assistant Commissioner, New Hampshire
Department of Transportation
Mr. Chairman and members of the committee. I am Carol Murray,
Assistant Commissioner and Chief Engineer of the New Hampshire
Department of Transportation.
The New Hampshire DOT joins with other State Departments of
Transportation from across the country in objecting to the impact of
the proposed rules from the US Department of Transportation addressing
both the transportation planning process and the process for
environmental review of proposed transportation projects.
Without getting into detail, as some of my colleagues are
effectively making the argument against the proposed rules revisions
before you today, we believe these rules would be contrary to the
spirit of the Transportation Equity Act for the 21st Century (TEA-21)
and would further set back efforts aimed at making these processes more
timely and efficient.
The New Hampshire DOT is concerned about the adoption of any one-
size-fits-all approach to the transportation planning and environmental
process across the country.
In spite of noble intentions and considerable efforts, the current
project development process remains complicated, overly burdensome and
frustrating. Objective reviews of project impacts, and consensus
building, are often severely hampered by the failure of resource
agencies to be appropriately represented at meetings during project
development. This results in the need to revisit issues, which leads to
delays and additional costs. Also, resource agencies often defer
decisions until very late in project development, rather than sign off
at major milestones.
The current process is not very good, but it remains better than
what is being proposed. We are all in the business of serving the
public. Yet this process is viewed by the public as very complex and
frustrating, sort of an endless series of loops. The proposed rules do
nothing to relieve these frustrations and in fact will make them worse.
I would like to focus for a few minutes on the direction where we
believe the transportation planning and environmental process should be
heading to better serve the American people.
TEA-21 espouses the concept of environmental streamlining,
emphasizing the need for timely and responsible decisionmaking. This is
a concept that I know Chairman Smith strongly supports. The goal of
environmental streamlining is to advance worthy transportation
improvement projects that support and nurture the economy, without
unnecessary detrimental effects on the environment.
Environmental streamlining is not foreign to the New Hampshire
Department of Transportation. A number of initiatives have been
advanced through the years to facilitate project development and
expedite interagency coordination. Monthly project review meetings with
the resource and regulatory agencies have been in place for more than a
dozen years. These meetings afford the opportunity for the project
purpose and need, alternative courses of action, environmental effects
and mitigation strategies to be discussed in open forums. It's about
building trust to get all agencies and parties involved sooner.
I would offer two examples in New Hampshire of how we see the
concept of environmental streamlining improving quality of life in the
State. The first, in which Senator Smith has taken a leadership role,
is the proposed expansion of 18 miles of Interstate 93 from the
Massachusetts border north to Manchester, the State's largest city.
This busy stretch of four lane, divided highway handles 100,000
thousand vehicles a day and experiences serious congestion during peak
driving hours.
In early August, Senator Smith coordinated a meeting of State and
Federal regulators aimed at streamlining the approval and construction
process for the I-93 project. Among those attending the meeting were
representatives of the Environmental Protection Agency, Federal Transit
and Federal Highway Administrations, the Army Corps of Engineers, U.S.
Fish and Wildlife, and State Departments of Transportation,
Environmental Services, Fish and Game, and the Offices of Emergency
Management and State Planning.
Senator Smith made it clear that he wanted regulators to come up
with transportation and environmental goals, to establish timelines and
milestones for the project, and to establish a dispute resolution
process. All of the agencies in attendance signed a ``partnering
agreement'' pledging mutual cooperation, open and honest communication
toward delivering a safe, effective, environmentally sensitive solution
for transportation in the I-93 corridor. This is a very positive step
that we hope will expedite the review of this project.
Another example is in Concord, the State capital, where a project
called ``Concord 20/20'' is an effort by the city to look at a vision
for the future of the city 20 years from now. This project includes
three quality of life issues--economic development, the natural
environment, and transportation. The goal is to look at the interaction
of those issues and achieving improvements within each without
negatively affecting one of the others.
It is time to work toward building these kinds of cooperative
efforts when it comes to reviewing proposed transportation projects. It
is not in the public interest to delay, frustrate and increase the
price tag of worthwhile transportation projects.
To be effective, incentives for resource agency involvement and
cooperation must be tangible. The threat of the ``big stick'' may bring
short-term results, but will only engender mistrust and resentment.
Through interagency forums, cross training of agency personnel is
essential to develop a mutual understanding and appreciation of agency
initiatives, plans and goals. The aim is not to convert each other, but
to work collaboratively and responsibly to pursue our separate, yet
related public mandates to integrate them effectively. Again, the key
is building a trust between all parties.
Thank you for the opportunity to appear before you today. I will be
glad to answer any questions you may have.
__________
Statement of the Transportation Departments of Montana, Wyoming,
Nevada, Idaho, North Dakota, South Dakota, Arizona, and Michigan,
Presented by Jim Currie, Deputy Director, Montana Dept. of
Transportation
Mr. Chairman, Senator Baucus, and Members of the Committee: I am
Jim Currie, Deputy Director of the Montana Department of
Transportation. I am pleased to appear here today and pleased that the
transportation departments of seven other States--Wyoming, Nevada,
Idaho, North Dakota, South Dakota, Arizona, and Michigan--have joined
in the statement I am presenting. With me today is John DeVierno, who
serves as counsel to our Department and four of the other State
transportation departments that have joined in this statement.
We have been asked to address proposed rules issued by the Federal
Highway Administration (FHWA) and the Federal Transit Administration
(FTA) that would revise the transportation planning process and the
process for environmental review of proposed transportation
projects.\1\
---------------------------------------------------------------------------
\1\ The proposed planning rules were published at 65 Federal
Register 33921 (May 25, 2000); the proposed environmental rules at 65
Federal Register 33959 (May 25, 2000).
---------------------------------------------------------------------------
Let me get right to the point. We strongly oppose these proposals
and want help from the Congress to prevent them from becoming final
rules.
Why? Because the proposed rules would add burdensome requirements
and uncertainty to planning and environmental review for transportation
projects. They would increase overhead and delay--and delay usually
means increased project costs. Frankly, these proposed rules could make
it difficult for States to deliver their programs. We support a
thorough planning and environmental review process, but today's process
is already too long and complex. Adding requirements to it is contrary
to sound policy--and contrary to the course charted by Congress when it
passed TEA-21.
For these and other reasons we hope the Congress will join us in
working to prevent these proposals from becoming final rules.
MAJOR PROBLEM AREAS AND OVERVIEW
Let me turn now to an overview of our concerns, including four
major problems with the proposed rules.
New Alternatives Analysis Requirement.--Most projects in
metropolitan areas would be subject to new, excessive planning
requirements, particularly preparation of alternatives analyses. Today
only ``major'' projects are subjected to these analyses at the planning
stage. This expansion of regulation is contrary to very clear language
in the major investment study (MIS) provision of TEA-21.
Process Complications Would Burden States and Diminish the Relative
importance of Elected Local Officials.--The authority of States would
be severely undercut as the proposed rules would confer new procedural
or substantive powers upon various entities, including unnamed
``planning process participants.'' States are committed to working
closely with local officials and interested parties. But the proposed
changes would upset the intergovernmental balance set by Congress in
the law. These proposals could effectively confer on a wide range of
unelected officials or groups, the ability to veto or leverage project
decisions that Congress vested in the States. These changes would
overburden a process already replete with comment and consultation
requirements. They would put many unelected officials on the same level
as elected ones in the planning process. They would make it hard for
States to address statewide concerns or major projects. Again, many of
these proposed changes are directly contrary to statute.
Vague New Data Development and Analysis Requirements Would Increase
Costs and Uncertainty. The proposed rules would impose upon States and
metropolitan planning organizations (MPO's) new, unfunded mandates to
develop data and prepare analyses on the relationship of transportation
spending to various socioeconomic classes of persons, or locations
where such persons live. These proposed ``environmental justice''
requirements are not well defined. They use highly judgmental phrases
like ``reduction in benefits'' and ``interrelated social and economic
impacts'' of environmental impacts. Yet these proposals would require
States and MPO's to develop data to address those issues. States could
well be required to become mini-Census agencies, and develop data
beyond that which is available from the Census Bureau. Failure to
comply, which seems to include not being able to satisfy USDOT
officials with respect to transportation investment patterns, could
result in disapproval of plans and programs and the cutoff of Federal
highway or transit funds. Senators, States abhor discrimination and
strongly support Federal and State anti-discrimination laws. We are
aware of no record presented to Congress, in the development of TEA-21,
indicating that States were not in compliance with anti-discrimination
laws. Yet the proposed rules would impose undefined new burdens on
States, and do so in a way that does not seem to provide States
standard procedural protections against the cut off of funds.
Confusing New Substantive Environmental ``Goals'' Seem More Likely
to Increase Rather Than Decrease Disputes and Litigation.--The proposed
environmental rules would inject new substantive considerations into
the NEPA process. One section would require USDOT to ``manage'' the
NEPA process in order to ``maximize attainment'' of, among other goals,
an ``environmental ethic.'' Another stated ``goal,'' ``collaboration,''
is that ``transportation decisions are made through a collaborative
partnership involving Federal, State, local and tribal agencies,
communities, interest groups, private businesses and interested
individuals.'' Congress already delineated in the planning statutes
that States must ``consult'' with certain entities and ``cooperate''
with others. And NEPA has long provided the public with the right to
comment. Yet here the proposal seems to be to manage the NEPA process
to make every person in the country a ``partner'' in making
transportation ``decisions.'' Needless to say, these kinds of vague
rules could open a Pandora's Box of disputes and litigation, as parties
challenge whether the NEPA process was ``managed'' to maximize such
goals.
These problems are the heart of our objections to the rules.
However, before addressing them more specifically, let us take a moment
to put these objections in context.
Mr. Chairman, Federal law and regulations have established a
process for transportation planning and for environmental review of
proposed highway and transit projects that is not just thorough. It is
also complicated, costly and slow. This is not something that happened
since TEA-21 was enacted. It was the case when Congress was developing
TEA-21.
Having considered the situation, Congress made clear, in the 1998
Conference Report accompanying TEA-21, that it had ``concerns'' with
``the delays, unnecessary duplication of effort, and added costs often
associated with the current process for reviewing and approving surface
transportation projects.''\2\ And Congress did more in TEA-21 than
agree on report language that expressed concerns. Congress:
---------------------------------------------------------------------------
\2\ Conference Report on TEA-21, H. Rep. No. 105-550, at 450
(1998).
---------------------------------------------------------------------------
passed a provision directing the Executive Branch to
streamline the process for environmental review of transportation
projects;
protected the planning process from complication by
prohibiting the application of NEPA to planning/programming approvals;
eliminated a separate planning step known as a ``major
investment study'' (MIS);
reduced the number of planning factors States and MPO's
must consider from roughly 20 down to 7, and precluded court challenges
based on alleged lack of consideration of any planning factor; and
protected the planning process from complication by not
enacting proposals to dilute State authority, such as proposals to
newly require States to ``cooperate with'' (regulatory-speak for
``agree with'') certain entities in formulating portions of the State's
transportation program.
As a result, we were pleased with the planning and environmental
review provisions of TEA-21. Congress recognized the need for a
thorough planning and environmental review process--but also recognized
the need to expedite that process. This is certainly the view of
States. As the American Association of State Highway and Transportation
Officials (AASHTO) explained in its recent resolution regarding these
proposed rules:
``States agree that the planning and environmental review process
for transportation projects should include ample public participation
and careful review of impacts and issues, and further agree that
present processes already go beyond this standard.'' Accordingly,
AASHTO called for final rules that would ``streamline'' present
processes.
The proposed FHWA/FTA rules, however, go in the opposite direction.
Key elements of these proposals would complicate and delay current
processes. Most troubling, in several instances, the rules would add
major requirements that are contrary to statutory provisions.
In considering both the proposed rules and our suggestions, we also
ask that Congress keep in mind that States are the primary subject of
regulation under these proposed rules. States are public entities. They
do not have a profit motive or other narrow focus. State DOT's are
vitally concerned with the full range of public policy issues in
transportation--from providing efficient transportation to meet the
mobility needs of people and business, to protecting the environment,
to ensuring that all interested parties have the opportunity to comment
on proposals. And we should not lose sight of the fact that States take
steps that are not required by Federal law or rule. States have
features in their individual planning processes, some required by State
statute, that respond to particular circumstances. For these and other
reasons, we believe that it represents sound Federal policy for Federal
agencies to refrain from regulating States except where clearly
directed to do so by Congress. The proposed rules do not follow that
approach. The final rules should.
Before turning to specifics of the proposed rules, we'd also like
to make clear that we see the issues raised by these proposed rules as
readily distinct from the environmental streamlining issues that were
the focus of the hearings held in April 1999 by the Transportation and
infrastructure Subcommittee of this Committee. At that time the focus
was improvement of the environmental review process for transportation
projects that require NEPA or other environmental approval by Federal
agencies in addition to USDOT. That is an important area of concern. We
feel much more needs to be done in that area, in terms of deadlines and
other issues, even though we do see some reports of improved
communication between agencies.
Today, however, the focus is on USDOT's own rules pertaining to
alarming and environmental review. Whether or not other agencies have a
role with respect to a particular project, USDOT rules are always very
important to the ability of States and others to move projects from
concept to reality. That is why we are so concerned about these
proposed rules, independent of the also important need to improve the
coordination of the environmental review process when more than one
agency is involved.
MAJOR PROBLEMS WITH PROPOSED REGULATIONS
Let us turn now to a more specific explanation of our concerns.
MAJOR INVESTMENT STUDY REFORM HAS BEEN RECAST INTO AN INCREASE
IN REGULATION
After passage of ISTEA in 1991, FHWA and FTA administratively
developed a non-statutory requirement known as the ``major investment
study'' (MIS). This requirement, 23 CFR Sec. 450.318, is an extra layer
of planning for major projects in metropolitan areas.
The requirement has been unpopular and for good reason. States and
MPO's have long done planning and have long conducted alternatives
analysis at the project level as part of the NEPA process. The MIS was
essentially an extra layer of alternatives analysis, undertaken at the
planning stage, that did not eliminate the need to do alternatives
analysis at the project level, as required by NEPA.
Appropriately, Congress, in Section 1308 of TEA-21, directed USDOT
to eliminate this extra layer of review and integrate MIS requirements
into the planning or NEPA process ``as appropriate.''
Mr. Chairman, integrating MIS into the regular processes to the
extent ``appropriate'' raises a very serious concern. If it is not done
properly, the result could be that all metropolitan area projects, not
just major ones, become subject to MIS type review, on top of other
reviews.
Congress, however, anticipated this problem and further directed,
in Section 1308, that after integration of any retained MIS
requirements into planning or other rules, ``[applicability of such
regulations shall be no broader than the scope of [the former MIS
regulation].'' In short, Congress made clear that, to the extent USDOT
found it ``appropriate'' to continue MIS-type requirements as part of
the regular planning regulations, the MIS aspects of the planning
regulations could not apply beyond so-called ``major'' projects.
The proposed rule, however, completely misses this requirement.
Proposed 23 CFR Sec. 1410.318 would amend the planning rules to require
preparation of an ``initial statement of purpose and need'' and an
``evaluation'' of ``alternatives'' for ``investments,'' not just major
investments. This is a very major regulatory increase for all non-major
projects, contrary to an explicit statutory directive.
This portion of the proposed planning rule is particularly
disappointing to us because, after the passage of TEA-21, but before
the rules were proposed, we wrote to FHWA on future rules and one of
our points was that Congress had precluded expansion of the reach of
MIS requirements.
INTEGRATION OF NEPA AND PLANNING CAN BE A PROBLEM, NOT A SOLUTION
Let us add that our opposition to this regulatory expansion is not
diminished because the proposed planning rules have couched it in the
superficially appealing language of an effort to ``coordinate and
streamline the planning and NEPA processes.''
It is our experience that discussion of the ``coordination'' or
``integration'' of NEPA and planning focuses too much on labels and not
enough on what that means in practice. Simply put, when someone says he
or she is for ``coordinating'' or ``integrating'' NEPA review and
planning, we don't agree or disagree. Instead, we ask what it really
means. We have seen two very different approaches to integrating
planning and NEPA: one that advances streamlining, and one that sets it
far back.
The positive approach to integration of planning and NEPA is to
allow a State or MPO to take relevant work done in the planning process
and use it in the NEPA process, so that the work is done only once, not
twice.
A very different way of integrating planning and NEPA is taken in
the proposed rules. The proposal would require increased work at the
planning level (development of a purpose and need statement and
alternatives analysis), but would not guarantee any reduction in work
at the NEPA level. In essence, a significant amount of work likely
would have to be done twice, not once.
This is a u-turn from the direction set by Congress, and we would
oppose it even if it were not directly contrary to Section 1308 of TEA-
21.
To actually advance streamlining in the planning rules, those rules
should not require any new analysis by the States or MPO's at the
planning level. Nor should the MIS-type analysis continue to be
required for major projects. What USDOT needs to do is provide States
and MPO's incentives to perform further analysis at the planning level
voluntarily.
How? Simply by providing real assurance that any relevant work done
at the planning stage will receive credit in the form of streamlined or
expedited processing at the project NEPA stage.
And if, in practice, USDOT does not give States or MPO's meaningful
credit at the NEPA stage for planning work, States and MPO's would at
least be free to fashion a response. As long as any additional planning
work is voluntary, streamlining will not be undercut because States and
MPO's would still be free to choose not to do that work at the planning
stage and move more quickly to the NEPA stage. Work would still be done
thoroughly--but just once.
COMPLICATING AND SLOWING DOWN THE PLANNING PROCESS BY REDUCING THE
AUTHORITY OF STATES
Public participation is a hallmark of the transportation planning
process. Literally everyone is invited to comment on plans and
projects. States and MPO's make major efforts to be sure citizens and
groups are aware of their chance to comment.
Beyond the opportunity to comment, Congress has specified that
States cooperate or consult with certain entities with respect to
certain transportation issues. ``Consultation'' and ``cooperation'' are
not defined by statute, but they were defined by regulation in the
early '90s, shortly after the enactment of ISTEA.
As currently defined, a ``consultation'' requirement imposed on a
State with respect to an entity, such as an elected local official
representing a unit of general purpose local government, means that the
State must ``confer'' with that entity and ``consider'' its views.
Under the Federal rules ``cooperation'' is a much stronger
requirement than ``consultation.'' It requires parties to ``work
together to achieve a common goal or objective.'' It can be a very time
consuming process. In practice, it has been hard to distinguish
``cooperation'' from a requirement that a State reach agreement with
the ``cooperating'' party.
These were the established meanings of these terms when Congress
developed and drafted TEA-21.
The degree to which consultation or cooperation rights are bestowed
is a critical issue in the planning process. If a State has to consult
with or reach agreement with an ever-larger number of groups, on a
greater number of issues, the planning process inevitably is
overburdened. It is also balkanized. As individual groups or entities
leverage their consultation or cooperation authority to insist on
solutions (usually money) for their own areas, the ability of a State
to address statewide priorities or invest in major projects is
seriously diminished.
In developing TEA-21, one area that Congress considered closely was
the relationship between States and officials in non-metropolitan
areas. Congress decided that, in non-metropolitan areas,with respect to
certain projects, States should ``consult'' with ``local elected
officials representing units of general purpose local government'' and
also with ``affected local officials with responsibility for
transportation.'' Congress did not adopt proposals to require States to
``cooperate'' with such officials.
FHWA and FTA have proposed a major change from the legislation. The
proposed rules would also require States to consult with officials,
whether elected or appointed, ``with jurisdiction/responsibility over
community development activities that impact transportation'' and
``elected officials for special transportation and planning agencies,
such as economic development districts and land use planning
agencies.'' The precise limits of the types of officials that would
newly receive consultation status are not clear, but it is definitely a
large group. Many, many cities and counties have economic and land use
officials.
The proposed rules also would effectively change the meaning of
consultation by requiring that the State and the non-metropolitan
officials being consulted with must ``cooperate'' in developing the
form of the consultation and provide documentation to USDOT that they
have agreed on the form of consultation.
So, under the proposal, every single consultation would become a
two-step process, one consultation, preceded by another of
``cooperation'' on the form of consultation. And the proposed rules
would also newly require that both parties document to USDOT their
agreement on the process. So, ``consultation'' parties would be
provided the power to withhold agreement,and documentation of agreement
on the consultation process to USDOT. So, the two parts of the process
are hardly unrelated and not purely procedural. Parties will inevitably
leverage the ``cooperation'' status on the form of consultation to
obtain funding, project priority, or other favorable action from the
State.
Let us be absolutely clear. We think it is good practice to consult
with and listen to local officials. We consult with local officials
throughout our States beyond the extent required by Federal law. We
certainly consider all comments and funding requests that we receive
from local officials, even if they are not designated as consultation
parties. States also work with local officials in important ways not
addressed by the rules. In Montana and many other States, for example,
we have statutory guarantees that local units of government receive
certain portions of Federal and State highway funds. So, we support
working closely with local governments and other interested parties.
But we do object to regulatory changes that could make the overall
process unworkable. When very large number of entities are given
``cooperation'' power in the process, power that can be used as
leverage for more funding, it is hard to see how States can make
effective decisions on statewide issues. We're aware of no State DOT
that has enough funding to come close to meeting the project funding
requests it receives from every area of the State. Yet every area would
seem to be empowered to withhold documentation of agreement on the form
of consultation. It is not clear that, under this system, States would
be empowered to provide areas less than they demand. In particular,
States would be at risk of losing the ability to address large and
costly projects if planning becomes nothing more than several hundred
negotiations--if we can even complete that many negotiations.
Fortunately, there is a straightforward response to these problems.
Congress should order the agency to follow the law. In TEA-21, Congress
required each State to submit to USDOT ``the details of the
consultative process developed by the State for non-metropolitan
areas.'' The Congress further provided that USDOT ``shall not review or
approve such process.'' See 23 USC 135(f)(1)(B)(ii). In short, Congress
made clear that States develop the consultative process, not USDOT. The
proposed rules are not in accord with this provision.
The listing of land use officials as required consultation entities
is particularly contrary to congressional action. Before TEA-21, States
and MPO's were required by statute to consider land use issues in
planning. The new list of seven planning factors does not reference
land use. And that omission was deliberate. Many State DOT's had
advised Congress that, in their States, they did not have authority
over land use issues. So, Congress deleted that requirement, allowing
States to decide whether they will consider that issue in
transportation planning.\3\ Now, the agency proposes a regulation that
requires consultation with land use agencies and provides those
authorities a de facto veto over the form of consultation. Thus, the
proposed rules would essentially write in a requirement that the
Congress struck.
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\3\ See former 23 U.S.C. Secs. 135(c)(14) and 134(f)(4).
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Mr. Chairman, the proposed rules contain other changes that would
be contrary to law or sound policy by reducing the authority of States
and complicating the planning process.
Perhaps most startling, at a number of points the proposed rules
would confer authority to make procedural decisions upon an undefined
group of ``planning process participants'' rather than maintaining
State authority. Under these proposals, Federal land management
agencies and Indian tribes also would be given ``cooperation'' status
as to the form by which a State ``consults'' with them. So, with
respect to these entities the proposed rules present the same issues of
substantive leverage on States that was discussed earlier with respect
to various local officials.
Another section in the proposed planning rules would require the
development of State transportation plans to be ``coordinated'' with
``related planning activities'' being undertaken outside of
metropolitan areas. ``Coordination'' is another term defined by
regulation and it means that the coordinating agencies adjust their
plans ``to achieve general consistency.'' So, States would be required
to adjust transportation plans for consistency with an undefined set of
``related'' planning activities. This is not in accord with the
planning statute, which specifies that States are to ``consider'' such
coordination. See 23 USC Sec. 135(d). The proposed rules would turn a
consideration into a requirement.
We will not try to list here all the aspects of the proposals that
would restrict States or dilute their authority. We wanted to identify
a number of them, however, so that the Committee could appreciate our
concern that proposed rules would undercut the authority of States in a
significant and pervasive way. We feel strongly that such changes would
not advance our Nation's transportation system. They would, instead,
delay and complicate, perhaps greatly, the ability of States to
deliver--and citizens to benefit from--transportation projects and
programs.
The Proposed Rules Would Impose Unfunded Mandates Upon States to
Implement an Executive Order on Environmental Justice and Would Do So
in Ways That Exceed Statutory Authority and May Deny States Basic
Procedural Protections.
In a variety of ways, the proposed rules would transpose into
regulatory requirements concepts contained in a 1994 Executive Order on
``Environmental Justice,'' (Executive Order 12898).
The proposed rules would require States and MPO's to collect and
analyze data comparing the distribution of transportation funds to
various socioeconomic classes of persons, or places where they live.
Failure to comply with these environmental justice (EJ) initiatives,
which appears to include not being able to satisfy USDOT staff with
respect to how States or MPO's invest transportation funds, can mean
disapproval of the transportation investment program. This means the
cutoff of Federal funds.
We have both general and specific objections to these proposed
requirements.
As an across-the-board matter, we disagree with the apparent
implication that State transportation departments are not adequately
enforcing or implementing the Civil Rights Act of 1964 or other anti-
discrimination statutes. States abhor discrimination and are committed
to full compliance with anti-discrimination laws. If a claim of
discrimination should arise, it can be dealt with under existing rules.
No case has been made for major change in the present rules in this
area.
More specifically, several aspects of the EJ proposals are
particularly objectionable and suggest to us that the proposal may not
be workable.
The data collection requirements are open ended and undefined. In
response to questions, we have been told informally that the proposed
rules would certainly require States and MPO's to collect and review
existing data, such as Census data, but could also require them to go
further and develop new data. So, there is a real prospect of grant
recipients being forced to act as mini-Census agencies and develop
demographic data that do not currently exist. We're not sure that there
are any limits as to how much we could be asked to do in this regard.
States and MPO's also would be required to develop data and perform
analyses regarding ``low income'' populations as well as other classes
of individuals. Aside from the fact that this term is not defined in
the proposed rules, ``low income'' people are not a protected class
under the Civil Rights laws, making the proposed data and analysis
requirements even more problematic.
Another troubling feature of the proposal is the requirement for
assessment of ``any denial or reduction in benefits.'' \4\ If a State
makes a significant transportation investment that might be said to
have benefited a particular group, as well as the population as a
whole, then, the year after that investment, there usually is a
reduction in the level of investment made in that area. Is that a
``reduction in benefits?'' Analysis of these types of issues is
conceptually very difficult and highly judgmental. Consider some
possibilities:
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\4\ Proposed 23 CFR Sec. 1410.206(a)(6)(i)(D); see also proposed
Sec. 1410.316(c)(1)(iii) as to MPO's.
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Will States feel coerced into not making large investments
in certain areas so that they don't have to explain ``reductions?''
Transportation investments have long life spans and the
planning and project delivery process is lengthy already. When does
further investment have to occur (or not occur) to satisfy these
proposals?
Will investments be considered ``benefits?'' We certainly
believe that all the investments we make have been carefully considered
and confer benefits. But there are some who perceive burdens and
adverse impacts from projects. What are the ground rules here? Will
different USDOT officials charged with oversight of different States
see the same project type as a benefit in one case and as adverse in
another? The proposed rules create such possibilities.
We doubt we have identified all the questions raised by these data
and analysis requirements, but have identified enough to be concerned
about the burden and uncertainty they would cause. We are also
concerned that such uncertainty could lead to litigation and other
program disrupting disputes.
Beyond problems with substantive EJ requirements that would be
imposed, there are serious procedural concerns.
The EJ Executive Order included Section 6-609, a provision typical
of Executive Orders. It specified that the order was intended for the
internal management of the Executive Branch and was not intended to
``create any right to judicial review.''
However, the proposed rules are not an internal matter for the
Executive Branch. They are expressly intended to regulate States and
MPO's. Thus, we were troubled by provisions such as proposed 23 CFR
1410.206(a)(6)(vi), which states that no aspects of the paragraphs in
the proposed rule requiring States to develop and analyze data ``are
intended to nor shall they create any right to judicial review of any
action taken [to comply with Executive Branch Orders].''
The Civil Rights Act of 1964 has long provided for judicial review
of any rules implementing that act. 42 USC Sec. 2000d-2. And the law
also clearly extends the right of judicial review to any USDOT decision
to deny Federal funds to a State for noncompliance with the act. 42 USC
Secs. 2000d-1, 2000d-2.
Moreover, the law has long provided that, in the case of any agency
action ``terminating, or refusing to grant or continue, assistance
because of failure to comply with a requirement imposed pursuant to
this section'' a State is entitled to an on-the-record hearing.
Further, even when such a hearing finds a violation, no cut off of
funds may take effect until 30 days after the Department files a
written report with the Congress. See 42 USC Sec. 2000d-1.
Mr. Chairman, the point behind these legal citations is that we are
concerned that these proposed rules seem to leave open the prospect of
USDOT staff cutting off a State's funding without providing a hearing.
There is no indication in the proposals that acknowledges the
procedural rights of States in this area. Of course, if pressed, USDOT
would certainly say that it would not violate the law. Nevertheless,
the provisions proclaiming no intent to provide judicial review and the
absence of any express affirmation of States' procedural rights make us
concerned that USDOT may try to implement EJ requirements without
providing States with standard procedural rights that Congress
established long ago.
REVISION OF ENVIRONMENTAL RULES CREATES LITIGATION RISK
We are also very concerned about the uncertainty and litigation
risk that we see in proposed changes to the rules implementing NEPA.
The courts have long held that NEPA is a procedural statute. It
ensures consideration of environmental impacts before decisions are
made--but does not require any particular substantive result.
The proposed rules, however, set forth ``goals'' for the NEPA
process that are substantive in nature, such as ``maximizing
attainment'' of an ``environmental ethic,'' ``environmental justice,''
``transportation problem-solving,'' ``financial stewardship,'' and
``collaborative decision making.''See proposed 23 CFR Sec. 1420.107.
We are very concerned that promulgating these ``goals'' as final
rules could lead to confusion, revised administrative process,
litigation, and other disputes as parties struggle over what the goals
mean, how to apply them, and the extent of their rights to have them
applied. How many projects would be ensnared in the net of such
changes, and for how long?
We have similar concerns with the directive that the final decision
at the end of the NEPA process ``shall be made in the best overall
public interest.'' See proposed 23 CFR Sec. 1420.109. And also of
concern are repetitive references to environmental ``enhancements''
that appear to push expenditures on enhancement features in a project
in the direction of being a requirement rather than a State option.
89Further Concerns
While we have tried today to highlight major concerns with the
proposals, we have others. Many, many wording changes have been made in
these proposed rules. So that the Committee can more readily appreciate
the scope of these changes, we have provided Committee staff with
lengthy comparative text documents that enable the reader to see,
without embellishment, the wording changes that would be made in the
proposed rules.
This, we think, is an important tool, for it allows a reader to go
behind our statements that the proposals would result in significant,
adverse change and look at the changes directly. We are confident that
anyone who undertakes that exercise will see that the extent of
proposed changes is very significant.
We also want to be clear that we believe that these rules would
impose significant costs, even if hard to estimate precisely. The
additional process, data, and analysis requirements in these proposals
are major. They cannot be absorbed for free. Yet, as I'm sure Congress
knows, the mood in State capitols does not favor increased
administrative budgets to enable civil servants to comply with Federal
directives. We are being asked to do more with the same, or less.
Simply, these are costly rules, and we will either have to give up
other activities, or redirect project funds to overhead in order to
comply. And we see an impact on projects. When projects are delayed,
costs usually go up, sometimes a lot. So, we expect that, under these
rules, we won't be able to do as much with the increased funding that
Congress worked so hard to provide in TEA-21. Some of the funding may
well have to be redirected to process compliance.
Let me say again that we necessarily can't be specific about how to
price the cost of compliance with these proposals. But we will say that
we are frustrated to even have to think about it. To achieve
streamlining, the proposed rules should have provided positive answers
to important questions, not more burdens and questions. Moreover, if
questions were to be raised, they should have been questions about the
extent to which the proposals would expedite and simplify the process.
Before concluding, we also note that, despite its many changes, the
proposed rules (with one minor exception) would not provide for any
transition or delay before they take effect. We raise this point with
mixed feelings, because we want to be clear that we oppose these rules,
period.
Providing a transition period before they take effect will not
address our basic concerns. However, even if all our major objections
are properly addressed in the final rules, the scope of changes at
issue here is such that a transition should be provided.
CONCLUSION
We support a thorough planning and environmental review process,
but we oppose processes that are unduly complicated and costly, and
that would delay the delivery of sorely needed transportation
improvements. That is why we oppose these proposed planning and
environmental review rules.
Later this month, before the comment period closes, AASHTO and
individual States will file hundreds of pages of comments with FHWA and
FTA regarding these proposed rules. Senators,if every suggestion made
by the States in their comments is accepted by USDOT, we would still
have a very thorough Federal process for planning and environmental
review of transportation projects, but a more streamlined one. That is
what we should be trying to achieve.
We hope that FHWA and FTA, upon review of our comments, AASHTO's
comments and others, will make major changes and issue a substantially
revised notice of proposed rulemaking that will accommodate our
concerns and that we can review before it becomes final.
However, we have made our views clear to USDOT before, and the
proposed rules still turned out as they did. Thus, we are far from
certain that USDOT will change its views. Accordingly, we respectfully
request the assistance of Congress in preventing the promulgation of
these counterproductive proposals as final rules.
Thank you again for the opportunity to appear today. We'd be
pleased to respond to any questions the Committee may have.
__________
Statement of Gordon Proctor, Director, Ohio Department
of Transportation
Mr. Chairman, members of the Committee, I am Gordon Proctor,
Director of the Ohio Department of Transportation. On behalf of
Governor Bob Taft, thank you for this opportunity to address you today
regarding these draft rules published by the Federal Highway
Administration.
I join my colleagues from the other states and from AASHTO in
urging you to order the USDOT to halt this rulemaking and send it back
to them for a fundamental revision. We at the State departments of
transportation are grateful to Congress for ordering the Federal
agencies to streamline the decisionmaking process for transportation
projects. As you all well know, the current process is one of excessive
overlap, redundancy and delay. Decisions made at one stage of the
process are not recognized at the next stage. Decisions made in the
transportation planning process are not recognized at the environmental
impact analysis stage and decisions made in the environmental impact
analysis stage may not be recognized when the project reaches the
water-quality permitting stage. As cumbersome and confusing as the
current process is, it is preferable to the process outlined in the
proposed rulemaking. Instead of streamlining, the new rules create yet
new hurdles which will lead to delay, litigation and uncertainty.
As other speakers have said, the new rulemaking attempts
streamlining. However, those attempts are more than offset by
establishing broad--and very vague--new tests which must be met for
transportation projects before those projects can be approved. These
new tests far exceed anything currently in law. Ironically, when
Congress ordered the USDOT to streamline its current regulations it
instead created new regulations and new tests for transportation
projects to meet. Instead of making the process more efficient, these
rules make it more excessive.
Let me give you three examples. In TEA-21 Congress clearly told the
USDOT to merge the Major Investment Study (MIS) into the transportation
planning process and no longer require the MIS to be a redundant,
stand-alone study. However, in the new rules, it appears that the MIS-
type study will be required for all urban projects, not just major
projects as the current rules require.
Secondly, these proposed regulations greatly expand the potential
role for non-elected, unaccountable advocates to establish themselves
as decisionmakers in the transportation process. This direction
seriously erodes the ability of state, city, county and other local
elected officials who participate in the transportation planning
process. Currently, the people who are accountable to the electorate
play a large role in the transportation planning process. Local elected
officials comprise the boards of metropolitan planning organizations.
Local elected officials develop city and county zoning plans and
economic development strategies. These local aspirations, these local
plans, these local decisionmakers all play a large role and help DOTs
reach consensus on transportation decisionmaking. I firmly believe that
local elected officials are best able to help states reach agreement on
which projects and which solutions best serve their area. Under these
rules, State and local elected officials can be reduced to just one-
more participant--and not the primary decisionmakers--in the
transportation process. I do not believe that democracy has failed the
transportation process. Those elected by the people and those
accountable to the people should be entrusted to lead the
transportation planning process. Unaccountable bureaucrats and self-
appointed advocates should not override the decisions of local elected
officials.
Third, the regulations co-mingle explicit Congressional intent
under Title VI with the ambiguous Executive Order for Environmental
Justice and creates a new field of litigation for transportation
projects that has never before existed Under the title of Environmental
Justice, the new rules seem to create new protected classes which have
special standing in the transportation process. These classes are
``minority populations'' and ``low-income populations.'' These two new
classes are not the same as those specifically referred to in Federal
statute but are broader potential groups which will have to be
identified on a case-by-case basis in the planning process. We do not
have clear definitions on who these groups are and how they are
identified. However, State DOTs will have to become census-like
agencies who analyze these demographic groups and ensure not only do we
not discriminate against them, but there are no unintended consequences
of projects which could create ``disproportionately high and adverse
impacts'' to them.
We applaud Title VI and all that it stands for. As Senator
Voinovich knows, when he was Mayor of Cleveland and then Ohio's
Governor, Ohio went to great lengths to create opportunity for all
protected classes. However, these new rules provide endless fodder for
lawsuits by any group which can infer that it has received
``disproportionately high and adverse impacts'' by either an action
taken by a department of transportation or more importantly by an
action not taken by a DOT. Any presumed ``reduction in benefit'' by a
DOT could be actionable under this overly broad and vague Environmental
Justice requirement. In effect, a decision not to fund a project could
be actionable under this regulation.
Also, under these proposed regulations there are no due process
provisions for a state, as there are under Title VI. In other words,
the USDOT could withhold funding from a State for violation of these
expanded provisions without any appeal or review process. These
regulations also create a new concept--that is a reduction in benefit--
not recognized in either the President's Executive order nor under
Title VI. Clearly, this goes beyond the intent of Congress.
Let me close by pointing out what I think the Federal rule-writers
have forgotten. State DOT's do not act in a vacuum. Every project Ohio
funds is subject to approval by metropolitan planning organizations, by
the city and county in which the project is located, by various State
and Federal environmental agencies and ultimately by the Ohio General
Assembly and the Governor of Ohio who appropriates our budget. On a
daily basis, the Ohio Department of Transportation is involved in
consultation with the states local elected officials and the citizenry.
These new rules are not needed. They are a solution in search of a
problem. This is very unfortunate because Congress clearly identified
the problem which does need solved--that is the excessive and
overlapping regulations which often stymie the wishes of local citizens
for transportation projects to be provided reliably and predictably.
Instead of streamlining the Federal process, these rules create new
processes which will only further delay decisions and delay projects. I
ask you to urge the USDOT to consider our concerns and to reject this
proposed rulemaking.
Mr. Chairman, members of this committee, the Federal process for
approving transportation projects churns endlessly. No sooner do we
adapt to a new Federal rule, then it changes. Ohio just published our
new policy for complying with the President's Executive Order on
Environmental Justice. Now these new proposed rules change the Federal
environmental justice policy. We at the Ohio DOT are now wrestling with
the U.S. Army Corps of Engineer's new nationwide permits for wetlands.
Those, in turn, triggered new interpretations regarding the Section 401
water quality standards. And we are also awaiting new rules on
something called total daily maximum load for storm water runoff, which
will also affect our projects in new ways. We at the State departments
of transportation must be sensitive and responsive to environmental
concerns. I believe we are. However, these new regulations are yet
another example of the endlessly changing and increasingly complicated
Federal rules which evolve each year. I applaud you for holding this
hearing and listening to our concerns. I appreciate your efforts at
streamlining. Streamlining is certainly needed. A good way to start is
to reject these new proposed regulations.
Thank you again for this opportunity. At the appropriate time as
the Chairman wishes, I will be happy to answer any questions.
__________
Statement of Thomas R. Warne, Executive Director, Utah Department
of Transportation
Mr. Chairman and Members of the Committee, my name is Thomas Warne.
I am Executive Director of the Utah Department of Transportation and
President of the American Association of State Highway and
Transportation Officials (AASHTO). I am here today to testify on behalf
of AASHTO, and want to thank you for your leadership in holding this
oversight hearing to address the U.S. Department of Transportation's
proposed rule implementing the provisions of the Transportation Equity
Act for the 21st Century (TEA-21).
Mr. Chairman, I want to begin by thanking you for your
responsiveness in crafting a reauthorization bill that addressed our
concerns about the unnecessary and intolerable delays in getting
projects through the planning, environmental and permitting processes
and into construction. Earlier this year the U.S. Federal Highway
Administration identified 23 recent and pending environmental statutes,
regulations and executive orders that have been added to our regulatory
burden since TEA-21's enactment. Recognizing the challenges this
presents to transportation project delivery, in TEA-21 you provided
some useful tools to give the states additional flexibility to
streamline the planning and project development process.
It has now been more than 2 years since TEA-21's enactment and we,
as you, have been awaiting guidance to implement TEA-21's streamlining
provisions. On May 25, 2000, the U.S. Department of Transportation
(U.S. DOT) issued its proposed planning and environmental regulations.
We are dismayed and disappointed with the results: the proposed rules
are completely at odds with the planning and environmental review
process reforms Congress intended to be implemented. Rather than
reducing delays, costs and unnecessary duplication of effort, the
proposed rules do just the opposite. We see complex and burdensome new
requirements for data collection, analysis, and reporting as well as
new procedural and policy hurdles to be cleared.
Mr. Chairman, the bottom line is that the proposed rules will not
fundamentally reform and streamline the planning and project
development process as Congress intended; rather, the proposed rules
could add years to the process, significantly increase costs, and could
cause some projects to simply be abandoned.
We feel so strongly about the problems with this regulation that
the AASHTO Board of Directors passed a resolution asking for your
intervention and clarification during these hearings, to return the
agencies to the original course you had set in TEA-21. We also urged
that the regulations be substantially rewritten and put out for a new
round of public review and comment.
Let me provide you with some examples of our concerns.
Major Investment Studies.--In Section 1308 of TEA-21, the Congress
directed the U.S. Secretary of Transportation ``to eliminate the major
investment study as a separate requirement, and promulgate regulations
to integrate such requirement, as appropriate, as part of the analysis
required to be undertaken under NEPA. The scope of the applicability of
such regulations shall be no broader than the scope of such section.''
The existing major investment study (MIS) regulations apply only to
major investments and regionally significant projects.
However, the proposed rules replace the major investment study
(MIS) with an even broader mandate that applies to all projects in
metropolitan areas, regardless of size, scope or cost. This clearly and
directly violates the directions of Congress explicitly stated in TEA-
21.
Perhaps more significant is the fact that this component of the
rule does not treat the fundamental flaw of the MIS as originally
conceived and implemented--that is, that the results of even the most
rigorous planning studies are rarely given any significant weight in
the NEPA process. Therefore, instead of reducing the total amount of
time needed to make a decision, the process ends up taking longer and
public confidence in the relevance and reliability of planning-level
decisions is undermined.
AASHTO believes that the way to make real progress toward curing
the defects of the MIS is to provide incentives for the development of
an optional process that actually delivers on the promise of the MIS--
that is, a process capable of producing planning-level decisions that
are consistently accepted as the starting point for NEPA studies.
Consulting Local Governments.--In making changes to the
transportation project planning process in TEA-21, Congress kept in
place the institutional relationships that are currently involved in
developing transportation projects. Recognizing the diversity among the
states, Congress chose not to disrupt existing relationships with a
one-size-fits-all mandate, but rather to let the states decide how best
to structure their consultation processes. Congress simply said that
states must document their processes, but explicitly required no U.S.
DOT review and approval.
In its proposed rule, U.S. DOT made a number of changes that taken
together will alter well-established existing institutional
relationships and arrangements in the statewide planning process. For
example, the proposed rule changes the ``consultation'' procedures and
participants in a way that significantly expands the manner in which
states and MPOs must consult with other parties. This becomes
especially problematic because the proposed rule gives U.S. DOT the
power to review and veto the States' consultation procedures when
making their planning finding called for in Sec. 1410.222(b).
AASHTO recommends that existing definitions or new statutory
definitions remain in place.
Title VI and Environmental Justice.--AASHTO members strongly
support efforts to prevent discrimination and to promote fairness in
transportation decisionmaking. Our members recognize the importance of
strengthening the public involvement element of the transportation
planning process, with particular emphasis on providing opportunities
for involvement by low-income groups, minorities, and others that have
traditionally been under-represented in the planning process. For this
reason, AASHTO members are working on a variety of initiatives to
increase opportunities for public participation in the planning
process, and will continue to do so regardless of the outcome of the
proposed rules.
Unfortunately, AASHTO members have significant reservations about
the requirements included in the U.S. DOT's proposed rule that would
weave together Title VI requirements and Executive Order 12898, which
guides Federal agencies on Environmental Justice (EJ). This weaving
together expands the legal standard for demonstrating compliance with
Title VI under which the states and MPOs can only certify Title VI
compliance by showing that they comply with the Executive order.
The EJ Executive order extends beyond the well-established concept
of non-
discrimination, introducing the concept of disproportionate benefits
and burdens. Under the proposed rule, states would have to show that
the impacts and benefits of the transportation system are distributed
proportionally across the entire State or metropolitan area.
Unfortunately, it may prove to be virtually impossible to define even
the basic concepts of ``proportionality,'' ``benefits,'' ``burdens,''
and ``reduction'' across large population groups, geographic areas, and
time periods in any meaningful way.
We believe that this new proportionality test is conceptually
unworkable; would impose enormous new data collection and analysis
requirements; and would expose the states and MPOs to major new legal
risks.
AASHTO will urge the FHWA and FTA to maintain the existing
regulations relating to Title VI compliance, while addressing
environmental justice issues through guidance materials. If this
recommendation is not followed, AASHTO will recommend that the
regulations be revised to establish clear, reasonable, consistent
standards for data gathering and analysis. In addition, the regulations
should be clarified so that they in no way expand the States' or MPOs'
legal obligations, or undermine in any way the existing legal
protections for States and MPOs.
Expediting the NEPA Process for Large, Complex Projects.--There has
been considerable discussion about the percentage of all projects that
represent the largest and most controversial projects, and the range of
time frames for projects requiring an EIS. We appreciate U.S. DOT's
efforts to begin tracking this baseline information. However, the fact
remains that we can and should do more to reduce the time it takes to
deliver projects. This was certainly the clear and unmistakable message
that Congress sent in enacting TEA-21.
In Section 1309 of TEA-21, Congress directs the U.S. DOT and other
Federal agencies to develop a ``coordinated review process'' that
integrates all of the Federal environmental review requirements for
transportation projects. Section 1309(b)(2) requires U.S. DOT and other
Federal agencies to ``jointly establish time periods for review'' or
enter into an agreement to establish such time for review with respect
to a class of project.''
Unfortunately, U.S. DOT's proposed rule simply fails to incorporate
key elements of the ``coordinated review process'' mandated in TEA-21.
There is no mention of deadlines for submission of agency comments;
there is no mention of deadlines for dispute resolution; and no mention
of U.S. DOT's ability to ``close the record.''
In addition, the proposed rule imposes new requirements for
preparing an EIS. For example, the requirement to consider alternatives
to avoid, minimize and mitigate impacts would be expanded to require
consideration of enhancements. And equally detailed engineering and
environmental analyses would be required of all alternatives. The net
result will be to increase the size and complexity of every EIS.
AASHTO recommends that the regulation acknowledge and include the
statutorily mandated elements of the coordinated review process, and
that changes are made to reduce--not increase--the size and complexity
of EISs.
Expediting the NEPA Process for Small, Non-Controversial
Projects.--The vast majority of Federal-aid projects are
uncontroversial and require limited review, usually in the form of a
categorical exclusion (CE) or an environmental assessment (EA).
Expediting the approval of these projects has attracted wide support,
from transportation agencies and public interest groups alike.
There are several new provisions in the NPRM that will expedite the
approval of small and uncontroversial projects. These include the use
of programmatic approvals and allowing States to obtain U.S. DOT
approval of alternative procedures.
However, several new requirements proposed in the rule will not
prove helpful. For example, extending the TEA-21 mandated ``coordinated
review process'' for EISs to CEs and EAs will involve a series of new
consultation and documentation requirements. We believe that the
process is not well suited for CEs and EAs, and more appropriately,
should be limited to larger, complex projects that require an EIS.
In addition, there are several new notice and reporting
requirements that collectively impose a substantial burden on the use
of CEs, further complicating a process that is intended to be the
simplest of all procedures for complying with NEPA. These will
substantially increase the paperwork burden, given that many states
have literally hundreds of CEs approved each year.
Overall, I think it is safe to say that states would prefer the
current system remain in place for CEs and EAs rather than what has
been proposed by the DOT. AASHTO is recommending that the new
requirements be substantially reduced, and that steps be taken to
strengthen, not reduce, the streamlining that currently exists.
Section 4(f) Requirements Regarding Historical Sites.--In issuing
its final rule, we hope that the U.S. DOT does not miss a golden
opportunity to reform a process that has been a substantial burden to
states--the Section 4(f) review for projects that abut historical
properties.
Planning for projects that involve historical sites are regulated
under Section 4(f). It has been consistently cited by states as a major
source of burdensome, unnecessary paperwork, and it also delays
environmental reviews for transportation projects. Often, it adopts an
``avoid at all costs'' mentality, under which any impact on any
resource must be avoided no matter the significance of the resource or
the size of the impact. In some cases, this attitude has served not
only to slow the process down and increase costs; it stands in the way
of making sound, balanced transportation decisions.
Reformation of Section 4(f) is urgently needed and should be a top
priority for the Department of Transportation. The proposed rule does
invite suggestions for modifications to the program, which we have
prepared and will be presenting to U.S. DOT as part of our comments on
the proposed rule. AASHTO strongly recommends that the Section 4(f)
regulations be comprehensively revised as an integral part of the
overall streamlining effort. If necessary, this can begin with
incremental improvements to the existing 4(f) regulations. However, a
comprehensive, inclusive, high-priority effort aimed at fundamentally
reforming the regulations should be initiated soon.
CONCLUSION
Mr. Chairman, the bottom line is that the result of the proposed
rules will be a more burdensome, costly and time-consuming planning and
project development process. For example, we learned from the Tucson,
Arizona MPO that out of the 300 projects per year they plan and
program, no MISs have been done. Under this rule, they would be
required to conduct MISs on all three hundred.
Similarly, neither Montana DOT nor its three MPOs have ever
prepared an MIS. Under the proposed rules, 3 years would be added to
the planning and project development process, costs would increase by
$5 million--$7 million, and 5 additional staff would be needed.
Based on FHWA's 1998 data on environmental impact statements, 84
percent required from 4 to 10 years to complete the process. Completing
sign off on Corps of Engineers wetlands permits, Section 4(f) historic
review and endangered species review takes years longer. We believe
these regulations would only worsen that record.
Mr. Chairman, this is just not streamlining. Therefore, we believe
that the proposed rules need to be substantially modified and
recommend, therefore, that modified rules be reissued for further
public review and comment.
AASHTO stands ready to work with this Committee and the
Administration to implement a common sense approach to reform of the
current project delivery process. At the same time, we pledge to
maintain our commitment to meeting transportation mobility needs while
protecting the natural environment and the social fabric of our
communities.
Thank you for the opportunity to testify. I am prepared to answer
any questions you or the Members of this Committee may have.
__________
Policy Resolution PR-10-00
TITLE: REGARDING THE PROPOSED STATEWIDE AND METROPOLITAN PLANNING AND
NATIONAL ENVIRONMENTAL POLICY ACT REGULATIONS
WHEREAS, on May 25, 2000, the U.S. Department of Transportation
issued a notice of proposed rulemaking to revise regulations governing
the development of metropolitan and statewide transportation plans and
improvement programs (proposed 23 CFR 1410); as well as a rulemaking to
revise the implementing regulation for the National Environmental
Policy Act of 1969 (NEPA) and related statutes with respect to projects
funded or approved by FHWA and FTA (proposed 23 CFR 1420 and 1430); and
WHEREAS, States agree that the planning and environmental review
process for transportation projects should include ample public
participation and careful review of impacts and issues, and further
agree that present practices already go beyond this standard; and
WHEREAS, these proposed regulations would significantly modify and
disrupt the statewide and metropolitan planning process and the project
development process for transportation and safety projects; and
WHEREAS, the Notices of Proposed Rulemaking state that no
additional costs would be incurred due to these proposed regulations
but, in fact, these proposed regulations will significantly increase
both the time and expense of delivering transportation projects at the
Federal, State and local agency levels; and
WHEREAS, the clear intent of Congress as illustrated by Section
1309 (Environmental Streamlining) of the Transportation Equity Act for
the 21st Century (TEA-21) was to reduce the time it takes to conduct
environmental reviews, but under these proposed regulations, the
process will become significantly more complicated and time consuming;
and
WHEREAS, in the treatment of many critical issues, particularly the
replacement of major investment studies, local consultation
requirements, and environmental justice, the proposed regulations
exceed or contradict statutory requirements; and
WHEREAS, several of the anticipated consequences of implementing
these proposed regulations include:
increased project review requirements,
erosion of authority of states and metropolitan planning
organizations,
new unfunded mandates to collect and analyze data, and
significant risk of litigation which is likely to disrupt
program delivery; and
WHEREAS, AASHTO strongly supports sound participative planning and
full compliance with the letter and spirit of the environmental laws,
but rushing to implement these proposed regulations fraught with
additional requirements that both obscure and complicate the planning
and NEPA processes will result in the unnecessary delay of
transportation improvements that would otherwise improve transportation
system safety and efficiency for the traveling public; and
WHEREAS, AASHTO stands ready to work with Congress, Federal
agencies, and other appropriate groups to develop improved regulations
that will efficiently deliver important transportation projects and
services in an environmentally sound manner while providing for
important communications with local officials and interested citizens.
NOW, THEREFORE, BE IT RESOLVED that AASHTO requests that (1) work
on these proposed regulations be suspended; (2) the relevant committees
of Congress hold oversight hearings; and (3) USDOT comprehensively
revise the proposed planning and environmental regulations and then
issue a revised notice of proposed rulemaking, before proceeding with a
final rule; and
BE IT FURTHER RESOLVED, that Congress hold these hearings for the
purpose of reviewing the content and direction of these proposed
regulations and providing additional guidance to the responsible
Federal agencies charged with implementing these regulations; and
BE IT FURTHER RESOLVED, that any final rules in the areas of
statewide and metropolitan planning and environmental review must
streamline, and not complicate or delay, the process of delivering
transportation and safety projects.
Responses by Thomas R. Warne to Additional Questions From
Senator Chafee
Question 1. If timely permitting is your critical issue for
environmental streamlining success, then how do you ensure that the
environmental mandates required by Congress, which often require time
to analyze and understand the impacts, are not compromised?
Response. AASHTO believes that environmental streamlining can be
accomplished in a manner that will not compromise Congressional
environmental mandates. We believe that the best way to ensure both
thorough and complete analysis and understanding of impacts and
avoidance, minimization and mitigation opportunities is for the studies
necessary for permitting to be done as part of and simultaneously with
the National Environmental policy Act (NEPA) studies for transportation
projects. If the appropriate Federal and State environmental resource
agency staff participate as part of the NEPA process, then their issues
and concerns can be raised early in the process, when there is time to
ensure that the issues can be studied and understood in detail. Too
often what happens today is that these issues are not raised until
after decisions have been made and there is less flexibility or time to
deal with the issues.
The key to environmental streamlining is that all environmental
resource agencies are involved early, raise issues and concerns early,
and that these issues and concerns are dealt with and resolved when
there is time to ensure they can be dealt with effectively. Too often
today, because there are not requirements for early participation and
early identification and resolution of issues, environmental resource
agencies wait until the subsequent permitting processes to raise issues
or concerns, and the effect is to delay the process and increase the
likelihood of conflict. The effect can be that there is less
environmental protection in the end than there would have been with
earlier participation.
In those states where environmental streamlining agreements have
been implemented and resource agencies have agreed to early
participation and early identification and resolution of issues, the
environmental mandates required by Congress have been more thoroughly
analyzed and more thoroughly understood before transportation decisions
have been made. Environmental resource agencies have also been more
involved in the actual transportation decision making process. The net
effect in these cases has been that environmental streamlining has
worked to increase environmental protection, rather than compromising
it.
In the enclosed publication AASHTO has documented examples of
successful environmental streamlining practices. These case studies are
from states that were identified in a national competition organized
and sponsored by AASHTO to recognize excellence in environmental
streamlining practices. These case studies demonstrate that
environmental streamlining can be successful without compromising
Congressional mandates.
__________
Statement of Tim Stowe, Vice President, Transportation and Planning,
Anderson & Associates, Inc.
Good afternoon Mr. Chairman and members of the committee, my name
is Tim Stowe, I am representing the American Consulting Engineers
Council and we are here to ask for changes to the proposed regulations.
I am Vice President of Transportation and Planning for Anderson and
Associates, a consulting firm in Blacksburg, VA. I presently serve as
chair of the Transportation Committee for the American Consulting
Engineers Council. I am pleased to have the opportunity to address you
on behalf of ACEC, the largest and oldest organization representing
engineering firms. The American Consulting Engineers Council (ACEC) is
the largest national organization of engineers engaged in the
independent practice of consulting engineering. ACEC has more than
5,700 member firms, employing nearly 250,000 engineers, land surveyors,
scientists and technicians. Together they design over $250 billion in
construction projects annually. More than 75 percent of these firms are
small businesses, employing fewer than 30 people each.
ACEC's involvement in the areas covered by the proposed regulations
is not new. ACEC played an important role in the enactment of TEA-21
where our Transportation Committee was a major participant in the
formulation of provisions in the legislation relating to simplification
of planning requirements, and the streamlining of the NEPA process as
well as environmental permitting. Working as professionals on behalf of
our clients, our member firms experience first hand the compelling need
to reduce, and hopefully eliminate duplicative efforts, overly
complicated and cumbersome processes, and inordinate delays that have
become obstacles to the timely delivery of transportation projects.
ACEC has frequently testified on these matters before the appropriate
congressional subcommittees of both the Senate and the House.
The ACEC Transportation Committee has reviewed and analyzed the
proposed regulations, and in particular, evaluated them in light of
what Congress had intended. Regretfully, we can only conclude that
these regulations are a missed opportunity.
TEA-21 provided a unique opportunity to accelerate the existing
planning process, streamline environmental approvals, and ensure the
continued high quality of America's transportation system all the while
fulfilling the intent of Congress that protection of the environment
not be diminished or compromised in any way. Regrettably, and much to
our dismay, the proposed regulations, unless drastically revised,
squander the unique opportunity of TEA-21 to streamline and simplify
the planning and environmental processes. The proposed regulations
fail, in our view, to follow the clear direction set forth by Congress
and in fact, steer the process away from streamlining and simplifying.
The proposed regulations not only miss the opportunity to address
the general intent of environmental streamlining, they also fail to
address very specific provisions in TEA-21 relating to time
limitations, concurrent reviews, and dispute resolution. While the
narrative accompanying the regulations discusses environmental
streamlining, the regulations themselves are virtually silent on this
issue. It is difficult to understand how the proposed regulation could
fail to support and amplify the intent of, and the specific provisions
of Section 1309, and instead move further away from achieving the goal
of streamlining the environmental review process.
The attempt to establish a relevant linkage between the planning
process and the NEPA environmental review and project development
process, while laudable, falls way short in many respects. The
application of a mandatory MIS-type effort in metropolitan areas is
completely contrary to TEA-21. Furthermore, the failure to provide any
assurance that if project level environmental work (such as the MIS-
type study and the preliminary purpose and need statement) is carried
out in the planning phase that it will carry any weight and avoid re-
visiting in the NEPA process is glaring.
Mr. Chairman, ACEC has been and continues to be, willing to work
with your committee and with Federal Highway Administration officials
in developing the kind of regulations envisioned in TEA-21 and desired
by the citizens of this country. Regulations that will allow needed
transportation projects, vital to our economy's continued growth, to
move forward expeditiously and economically.
Mr. Chairman, I think it is important that I make one other point
before ending. ACEC is asking for changes to the proposed regulations
because, we feel that it is the right thing for the country. By
promoting concurrent environmental approvals, we have chosen to
emphasize broad societal interest over individual corporate gain.
ACEC supports the efforts of both the Federal Highways
Administration and this Committee to promote environmental
streamlining, but we do not feel that these regulations, as written,
will accomplish the goals set out in TEA-21. We urge the Agency to stop
the rule making process and to amend their proposal so that the goals
of TEA-21 achieved. We stand ready to work with Committee staff and all
interested stakeholders to make sure that happens.
At the appropriate time, I would be happy to answer any questions
you may have.
__________
Statement of the National Association of Counties and the National
Association of Development Organizations on Highway Planning
Regulations
This statement is being submitted on behalf of the National
Association of Counties (NACo) and the National Association of
Development Organizations (NADO) in support of the proposed rulemaking
issued by the Federal Highway Administration that implements changes in
the surface transportation law allowing local officials in non-
metropolitan or rural areas greater authority in the statewide
planning. The proposed rule reflects accurately the change in the law
included in TEA-21 and Congressional intent to provide more authority
and enhanced consultation for non-metropolitan local officials to
participate in the formulation of the Statewide Transportation
Improvement Program (STIP). The proposed rule also closes the gap
between urban and rural local officials in regard to participation in
the planning process.
Two years ago when Congress passed the TEA-21 legislation, a key
change in the law was a provision allowing local officials in non-
metropolitan or rural areas to be given more authority in deciding how
TEA-21 highway funds were spent. Our associations, along with other
local government groups, worked very hard to include this change in the
law. We believe that members of the Environment and Public Works
Committee understand our concerns. In fact, the rural planning
provision included in the TEA-21 bill passed by the Senate was
substantially stronger than what was agreed to in conference.
The impetus for this change was a feeling expressed by rural local
officials that some states, specifically the state departments of
transportation/highways, were ignoring them or not providing adequate
avenues for input in the planning process that determined how federal
highway funds were distributed within a state. State bureaucracies that
shutout local officials, particularly elected officials, were not
getting the full picture of the transportation needs in a state. A
second reason was that urban local officials had been granted
substantial authority in the planning process in ISTEA and that the gap
needed to be closed between rural and urban officials. There is no
rationale, for instance, why rural elected local officials should have
less of a say over how federal funds should be spend or programmed than
their urban counterparts.
We believe that requiring a documented process for consultation as
required by the statute is essential and support the language in this
rulemaking. It is particularly vital in the development of the STIP.
Without opportunities for input, local nonmetropolitan officials are
totally at the mercy of state transportation officials in regard to the
selection of projects for inclusion in the STIP. Requiring that the
process be developed cooperatively is key. Local officials are very
interested in participating with the state in identifying and
implementing a process that will work for both parties. A process
developed only by the state is not likely to meet the requirements of
TEA-21 nor will it meet the needs of local governments. By requiring
cooperation a level playing field is created during the decision making
process. The likelihood of successful outcomes increases through
consultation.
Both NACo and NADO are pleased that the proposed rulemaking retains
state flexibility. While it does require each state to have a
documented process for consultation with local officials that is to be
developed cooperatively with local officials, there is no one process
identified that each state must adopt. Local officials have always been
clear that they do not want a ``one-size-fits-all'' solution. They
recognize that a process that works well in one state may not work in
another. Finally, while the rulemaking does not allow the FHWA or the
FTA to review or approve the process in each state, we fully agree that
local official participation must be considered when certifying the
STIP. If any state fails to follow the law regarding participation by
nonmetropolitan local officials, local officials must have the ability
to raise this issue with the FHWA or the FTA and ask that the STIP not
be approved.
Thank you for the allowing NACo and NADO to submit this statement.
__________
Statement of the American Society of Civil Engineers
Mr. Chairman and Members of the Committee: The American Society of
Civil Engineers (ASCE) is pleased to offer this statement for the
record on the notice of proposed rulemaking by the Department of
Transportation (DOT) regarding changes in the National Environmental
Policy Act (NEPA) procedures as mandated by the Transportation Equity
Act for the 21st Century (TEA-21). \1\
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\1\ NEPA and Related Procedures for Transportation Decisionmaking,
Protection of Public Parks, Wildlife and Waterfowl Refuges, and
Historic Sites, 65 Fed. Reg. 33,960 (May 25, 2000) (to be codified at
23 C.F.R. parts 771, 1420 and 1430 and 49 C.F.R. parts 622-623).
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I. ASCE INTEREST AND CONCLUSIONS
ASCE was founded in 1852 and is the country's oldest national civil
engineering organization. It represents more than 125,000 civil
engineers in private practice, government, industry and academia who
are dedicated to the advancement of the science and profession of civil
engineering. ASCE is a non-profit educational and professional society
organized under part 1. 501(c) (3) of the Internal Revenue Service
rules.
ASCE opposes the NEPA regulations as they were proposed. We believe
the proposed regulations are faulty because (1) they fail, at a
minimum, to establish firm deadlines for the completion of the federal
portion of the transportation streamlining process and (2) they open
the door for pilot projects in contravention of the intent of Congress.
We urge the Committee to conduct a vigorous oversight of the
Department's NEPA streamlining process and we will ask the Department
to revise the proposed regulations accordingly.
II. STATUTORY BACKGROUND
Congress enacted the Transportation Equity Act for the 21st Century
(TEA-21), Pub. L. 105-178, June 9, 1998, 112 Stat. 107, to authorize
funds for federal-aid highways, highway safety programs, and transit
programs. The legislation provides $218 billion for highway
construction and maintenance and other surface transportation projects
through fiscal year 2003. The bulk of the funding goes for highway
projects ($162 billion) and transit projects ($36 billion).
Concerned about the frequently lengthy project-delivery process for
federal-aid highways, Congress added section 1309 to the Act.\2\
Section 1309 was necessary to remove the bottlenecks in the
environmental review process. As a Senate supporter explained the
problem:
\2\ The environmental review process involves as many as 30
federal, state and local highway and environmental agencies and
requires 2 to 8 years to complete on average. U.S. General Accounting
Office, Highway Planning: Agencies Are Attempting to Expedite
Environmental Reviews But Barriers Remain (1994 WL 836265).
Mr. President, another way to describe this amendment, which
deals with the transportation and environmental review process
that is central to getting these projects on line and dealing
with our transportation issues, is the ``do-it-right-once''
amendment. What we have in this country today is essentially a
disjointed process for doing transportation and environmental
reviews. In effect, you have one track going down the road
trying to address the various requirements essential to OK'ing
a project from the transportation side. You then have a
separate effort going forward to deal with environmental
reviews. Instead of the two efforts being combined at every
step of the process, time and money is wasted as these separate
undertakings go forward. So what you have is an extraordinary
amount of duplication. You have duplication as it relates to
the environmental side and as it relates to the transportation
side, and you waste an extraordinary amount of time as it
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relates to getting these projects actually constructed.
144 CONG. REC. S1391 (daily ed. Mar. 5, 1998) (statement of
Sen. Wyden).
The amendment created new requirements for the Department of
Transportation (DOT) to implement ``environmental streamlining'' in
order to accelerate the planning, design and construction process for
federal-aid highways by means of a ``coordinated environmental review
process.'' Pub. L. 105-178, 112 Stat. at 232 (codified at 23 U.S.C.A.
109 note (West 2000)).
A key provision of section 1309 called for the DOT to work with
federal, state and local agencies in unison to establish clear
schedules for completing the environmental review process. The section
states that ``[t]he coordinated environmental review process for each
project shall ensure that, whenever practicable (as specified in this
section), all environmental reviews, analyses, opinions, and any
permits, licenses, or approvals that must be issued or made by any
Federal agency for the project concerned shall be conducted
concurrently and completed within a cooperatively determined time
period. Id. (emphasis added).
Although the Act itself does not establish deadlines to complete
the NEPA review process, TEA-21 does require the Department to
establish a mandatory schedule for completing the federal portion of
the environmental review and strongly encourages state and local
agencies to establish some sort of mutually agreeable timetable for
each federal-aid project subject to the provisions of section 1309.
The Act requires the DOT to ``identify all potential Federal
agencies that * * * have jurisdiction by law over environmental-related
issues that may be affected by the project and the analysis of which
would be part of any environmental document required by the National
Environmental Policy Act of 1969 * * *. '' Id.
At the same time, the DOT and the relevant federal agencies must
``jointly develop and establish time periods for review for * * * all
Federal agency comments with respect to any environmental review
documents required by'' NEPA as well as every other federal agency
environmental analysis, review, opinion, and decision on any permits,
licenses, and approvals required for the project. It is essential that
``each such Federal agency[] review shall be undertaken and completed
within [the] established time periods for review. '' Id. at 233.
The state and local agencies also may play a role in the
streamlining of the projects, albeit their participation is entirely
voluntary. Regarding the states, the language of the Act is permissive:
Participation of State Agencies.--For any project eligible
for assistance under chapter 1of title 23, United States Code,
a State by operation of State law, may require that all State
agencies that have jurisdiction by State or Federal law over
environmental-related issues that may be affected by the
project, or that are required to issue any environmental-
related reviews, analyses, opinions, or determinations on
issuing any permits, licenses, or approvals for the project, be
subject to the coordinated environmental review process
established under this section unless the Secretary determines
that a State's participation would not be in the public
interest. For a State to require State agencies to participate
in the review process, all affected agencies of the State shall
be subject to the review process.
Id. At 234 (emphases added).
Thus the statute contemplates a mandatory federal system of
coordinated environmental reviews coupled with compulsory deadlines for
completing the NEPA process among the federal agencies involved in
highway and transit project approvals.
Finally, the House initially considered a provision in TEA-21 that
would have required the DOT to establish a state environmental review
pilot demonstration program. Under the original bill language, the DOT
would have been required to delegate to at least eight states ``all of
the responsibilities for conducting the federal environmental review
process required by the National Environmental Policy Act of 1969 in
the manner required if the projects were undertaken by'' the
Department. See 144 CONG. REC. H1976 (daily ed. Apr. 1, 1998).
This language was removed from the final legislation. See 144 CONG.
REC. H10, 502 (daily ed. Oct. 10, 1998) (statement of Rep. Shuster).
Since there is no discussion in the legislative record on the reasons
for the change, all we know for sure is that TEA-21 contains no
provisions requiring or authorizing pilot projects at the state or
federal level for the streamlining of the NEPA process.
III. THE PROPOSED REGULATION
On May 25, 2000, the Federal Highway Administration (FHwA) and the
Federal Transit Administration (FTA) jointly proposed regulations to
implement, among other things, the provisions of section 1309, 65 Fed.
Reg. 33, 960 (2000) (NEPA and Related Procedures for transportation
Decisionmaking, Protection of Public Parks, Wildlife and Waterfowl
Refuges, and Historic Sites).
If adopted, the regulation would add new section 1420.203 to title
23 of the Code of Federal Regulations to fulfill the environmental
streamlining provisions of TEA-21. In largely hortatory language, the
key provision of the proposed new section states:
Sec. 1420.203 Environmental streamlining.
(a) For highway and mass transit projects requiring an
environmental impact statement, an environmental assessment, or
an environmental reviews analysis, opinion, or environmental
permit, license, or approval by operation of Federal law, as
lead Federal agency, the DOT agency, in cooperation with the
applicant, shall perform the following:
(1) Consult with the applicant regarding the issues involved,
the likely Federal involvement, and project timing.
(2) Early in the NEPA process, contact Federal agencies
likely to be involved in the proposed action to verify the
nature of their involvement and to discuss issues,
methodologies, information requirements, time frames and
constraints associated with their involvement.
(3) Identify and use the appropriate means listed in 40 CFR
1500. 4and 1500. 5 for reducing paperwork and reducing delay.
(4) Document the results of such consultation and distribute
to the appropriate Federal agencies for their concurrence,
identifying at a minimum the following:
(i) Federal reviews and approvals needed for the action,
(ii) Those issues to be addressed in the NEPA process and
those that need no further evaluation,
(iii) Methodologies to be employed in the conduct of the NEPA
process,
(iv) Proposed agency and public involvement processes, and
(v) A process schedule.
(5) Identify, during the course of completing the NEPA
process, points of interagency disagreement causing delay and
immediately take informal measures to resolve or reduce delay.
If these measures are not successful in a reasonable time, the
DOT agency shall initiate a dispute resolution process pursuant
to section 1309 of the TEA-21.
(b) A State may request that all State agencies with
environmental review or approval responsibilities be included
in the coordinated environmental review process and, with the
consent of the DOT agency, establish an appropriate means to
assure that Federal and State environmental reviews and
approvals are fully coordinated.
(c) At the request of the applicant, the coordinated
environmental review process need not be applied to an action
not requiring an environmental impact statement.
(d) In accordance with the CEQ regulations on reducing
paperwork (40 CFR 1500. 4), NEPA documents prepared by DOT
agencies need not devote paper to impact areas and issues that
are not implicated in the proposed action and need not make
explicit findings on such issues.
Id. at 33, 980.
Although the proposed regulation describes a seemingly
straightforward approach, the preamble to the proposal clouds the
picture.
We are proposing to implement the environmental streamlining
requirements largely outside of the regulatory process through
* * * memoranda of understanding with Federal or State agencies
* * * dispute resolution processes * * * streamlining pilot
efforts * * *authorization of the DOT to approve State DOT or
transit agency requests to reimburse Federal agencies for
expenses associated with meeting expedited time frames and * *
* performance measures to evaluate and measure [the] success
[of] * * *environmental streamlining.
Id. At 33, 967-33, 968 (emphases added).
IV. SUGGESTED REVISIONS
A. The Regulations Must Establish Firm Deadlines for the Completion of
the Environmental Review Process by Federal Agencies
The proposed regulation eschews any directive for deadlines. It is
cast in permissive language. It speaks in terms of coordinated federal
efforts at ``consulting,'' ``identifying,'' ``contacting,'' and
``documenting'' federal activities during the NEPA review process. To
be sure, section 1420.203(a)(4)(v) requires the FHwA and the FTA to
``distribute * * * a process schedule'' following consultations, but
such a schedule would be required on a case-by-case basis and would not
definitively address the long-term problem of lengthy and duplicative
environmental reviews.
The three classes of actions described in the proposed regulation
suggest the obvious solution to the scheduling problem. Class I
projects (those requiring a full environmental impact statement),
should have a 270-day deadline, with one or two 90-day extensions, thus
ensuring that every major project's NEPA process could be completed in
nine to fifteen months.
Class II projects (those allowing for a categorical exclusion from
the NEPA process because they do not involve a significant
environmental impact) should have a 30- or 60-day deadline, with no
extensions. Class III projects (those requiring a limited environmental
assessment) might qualify for a 180-day deadline, with a single 90-day
extension possible in unusual cases. A waiver process should be
included in the regulation for unusual or extremely difficult Class I
and Class III projects.
We are concerned that the Department and the other agencies--having
received DOT's blessing in advance to go ``outside of the regulatory
process''--could well cripple the statutory deadline requirement under
the unofficial memorandum of understanding (MOU) signed by the DOT, the
Department of Interior, the Department of Commerce, the Department of
Agriculture, the Army Corps of Engineers, the Environmental Protection
Agency and the Advisory Council for Historic Preservation last year. It
is to be the ``framework for * * * streamlining the environmental
process * * *.'' 65 Fed. Reg. at 33, 967.
The MOU seeks a coordinated environmental review process to
expedite federal highway and transit projects. The seven agencies have
agreed to seek solutions to the delays inherent in the current project
planning process, including efforts to ``[s]upport and encourage
[agency] field offices to explore flexible streamlining opportunities
on their own and with state transportation and environmental partners *
* *.'' DOT, Environmental Streamlining National Memorandum of
Understanding 1, . One of the ``opportunities'' to be encouraged is
a series of mini-MOUs to establish ``concurrent review within
cooperatively determined time frames.'' Id.
The national MOU does not require project review deadlines for
individual highway or transit projects or explain how the federal
signatories are to achieve the TEA-21 requirement to ``jointly develop
and establish time periods for review.'' More importantly, the MOU is
not in any sense law that limits the discretion of the DOT or other
agencies.
By and large, we are concerned that the DOT and the other agencies
may revert to the softer, non-binding language of the national MOU in
the absence of a firm regulatory regime for the setting of deadlines.
We believe that the DOT must revise the proposed regulations to allows
system of fixed deadlines for the completion of environmental reviews
by the federal agencies involved in highway and transit project
planning. The DOT must set flexible environmental review deadlines in
the regulation for each class of project toward which federal agencies
must aim.
Of course our idea is not to lock the DOT or the other agencies
into prescriptive deadlines in every instance. We grant that they
certainly need to remain somewhat flexible during the NEPA process to
allow for unforeseen circumstances. But government agencies, being run
by human beings, can lose focus without fixed goals, and we predict
further delays during NEPA if the government does not place itself on
some sort of predictable regulatory timetable.
If doubt remains on the need for firm deadlines, the history of
section 1309 makes it clear that Congress wanted and expected the
Department to establish explicit schedules in order to expedite the
necessary federal environmental reviews under NEPA.\3\
---------------------------------------------------------------------------
\3\ As we have noted, TEA-21 does not impose NEPA review deadline
requirements on the state or local agencies.
The fundamental goals of the environmental streamlining
provisions are to establish an integrated review and permitting
process that identifies key decision points and potential
conflicts as early as possible; integrates the NEPA process as
early as possible; encourages full and early participation by
all relevant agencies that must review a highway construction
project or issue a permit, license, approval or opinion
relating to the project; and establishes coordinated time
---------------------------------------------------------------------------
schedules for agencies to act on a project.
H.R. CONF. REP. NO. 105-550, printed in 144 CONG. REC. H3910-
3911 (daily ed. May 22, 1998) (emphasis added).
The DOT ought to comply with this clear statutory directive and
ensure that fair, flexible and rational deadlines are contained in the
final Department regulation.
B. The DOT Should Avoid Any Use of Streamlining Pilot Projects
The proposed regulation appears to reopen the question of pilot
projects. See 65 Fed. Reg. 33, 967-33, 968, supra (preamble
contemplating streamlining pilot efforts). Nevertheless, the DOT
cautions that:
[W]e are not proposing to establish a formal process for
pilots at this time, through regulation or any other means.
Instead, we will participate in pilot efforts on a case-by-case
basis. These pilot efforts might be focused on a single project
or on improving a particular process, but would not include the
delegation of Federal NEPA responsibilities to States that was
considered but not enacted in the TEA-21.
Id. at 33, 968 (emphasis added).
As Congress has foreclosed the delegation of federal NEPA review
pilot projects to the states, we presume from the preamble discussion
that the FHwA and the FTA intend to use Federal pilot projects in the
streamlining of federal NEPA reviews. We encourage the Committee to
ensure that the Department not carry out any pilot projects at all.
ASCE believes that pilot projects would unduly burden the
implementation of section1309's mandate to complete the federal NEPA
review process for TEA-21 projects in a timely manner. Additionally,
they simply are not authorized by TEA-21.
Pilot projects on ways to expedite federal NEPA reviews are
pointless. The NEPA process itself, which is ``essentially
procedural,'' Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council 435 U.S. 519, 558 (1978), should be well known to FHwA
and FTA after more than 30 years. Experience ought to suggest numerous
ways to reduce the time and effort required to complete a NEPA review.
Indeed, the Department already has concluded on the basis of its
experience that it may safely eliminate from the environmental impact
statement documentation of impacts that are unlikely to occur.
Nor does the Department explain what help the data from pilot
projects will be in the streamlining of TEA-21 projects. It may be that
the DOT is concerned that, absent information gained from pilot
studies, the federal government cannot be sure that an expedited NEPA
process would provide the requisite protection to the environment. But
that assessment seems to be contradicted by rule's proposed section
1420.35, which specifically authorizes the use of supplemental
environmental impact statements.
Of course the Department would be protected from an incomplete EIS
in any case. The NEPA process is not discrete; it allows for the
gathering of data even after the environmental impact statement is
written.
Supplemental environmental impact statements are not expressly
addressed in NEPA, but such a duty is supported by NEPA's approach to
environmental protection and its manifest concern with preventing
uninformed action as well as by regulations of the Council on
environmental Quality and the Army Corps of Engineers, both of which
make plain that, times, supplemental data are required. Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371 (1989) (``NEPA ensures
that the agency will not act on incomplete information, only to regret
its decision after it is too late to correct.'').
In conclusion, ASCE believes the Department must revise the
streamlining regulation to include fixed deadlines for all classes of
highway and transit projects and to preclude the use of Federal pilot
projects to study the NEPA streamlining process.
Mr. Chairman, that concludes our statement. Thank you for your
attention to our concerns. If you or Members of the Committee have any
questions, please contact Michael Charles of our Washington Office at
(202) 789-2200 or by e-mail at [email protected]
__________
Association of Metropolitan Planning Organizations (AMPO)
OVERALL COMMENTS
AMPO fully supports the intentions behind the NPRM's on
planning and environment, but believes the NPRM's should not be
implemented without extensive rewriting.
AMPO believes that implementation of the NPRM's without
amendments aimed at providing more specific guidance will:
LCause confusion, delay, extra expense and potential
for litigation on project and plan development
LLead to inconsistent application of regulations
across different US DOT regions
LSignificantly increase MPO costs
LUndermine achievement of some of the objectives of
the NPRM's
AMPO is also concerned that in two areas, cooperative
revenue forecasting and the creation of annual listings of obligated
projects, MPO's are given responsibilities without necessarily having
the information required to carry out these responsibilities. The NPRM
on planning needs to be modified to provide mechanisms that ensure that
MPO's get the information they need to carry out their responsibilities
in these areas.
ENVIRONMENTAL JUSTICE
AMPO supports the proposal to clarify and strengthen
requirements for compliance with the President's Executive Order on
Environmental Justice and Title VI of the Civil Rights Act.
The NPRM's do not give guidance about how environmental
justice requirements may be met, nor do they set performance criteria
or provide best practice case studies. This is particularly problematic
since MPO actions could be subject to legal challenge under Title VI,
notwithstanding the wording of the NPRM's.
AMPO would welcome specific environmental justice
requirements with regard to data collection and analysis, and public
outreach. Without any limit on how much data and research is enough to
satisfy compliance, research and analysis could be endless.
AMPO believes the content of long range plans, as opposed
to the process of creating such plans, should be explicitly exempt from
legal challenges on environmental justice grounds, because the
demography of areas will change dramatically over the life of the
plans.
The Executive Order on Environmental Justice, Title VI of
the Civil Rights Act, and ADA each provide different types of
protection and rights to different groups. The NPRM's, by intertwining
these three rules and combining compliance requirements for all three,
will create confusion for agencies trying to comply. Each of these
three sets of issues needs to be separately addressed in the NPRM's.
The NPRM makes use of terms, such as ``reduction in
benefits'', that are not used in Title VI or the Executive Order, and
could give rise to new rights not afforded by statute. This new
terminology may be subject to differing interpretations, and could
increase agencies' exposure to litigation. The NPRM should adhere to
existing language.
MERGING OF MIS AND NEPA PROCESSES
In eliminating the requirement for separate Major
Investment Studies (MIS), the NPRM's provide no specifications of the
requirements for planning studies to be recognized in the NEPA process.
Without amendment, the NPRM's are likely to promote two
kinds of outcomes:
Lduplication of effort and delay, where projects go
through a thorough planning process, which then has to be
duplicated because it does not meet unknown and unspecified
NEPA requirements, and,
Llimited public participation and consideration of
alternatives, because planning activities are curtailed in
order to minimize exposure to duplication of effort at the NEPA
stage.
The NPRM could be interpreted as requiring MIS-type
analyses on nearly all projects in metropolitan areas; mandatory MIS-
type analyses should only be required for specified categories of
project, which can be defined by cost, length, physical
characteristics, and social or environmental impact.
The planning stage is typically where multi-modal options
and the most creative alternatives are developed, and where the public
can be most easily engaged in the process; by the NEPA stage, there is
typically significant commitment to a narrow range of options. But the
NPRM's will tend to discourage expenditures on planning, because there
is no way of knowing whether money and time spent on planning will have
to be duplicated at the NEPA stage. The NPRM's should include
incentives that will encourage MPO's and project sponsors to undertake
the type of planning studies called for in the NPRM.
The NPRM should clarify the role of MPO's in the NEPA
process: there is no reference to MPO's as agencies that can enter an
agreement regarding the NEPA stage of a project.
COOPERATIVE REVENUE FORECASTING
Because funding available in future years is a key
component of MPOs' financially constrained long range plans, TEA-21
requires State DOT's, transit agencies and MPO's to ``cooperatively
develop estimates of funds that are reasonably expected to be
available''. The NPRM's weaken this requirement by requiring the
parties to agree only on the procedures to be used to develop revenue
estimates.
A survey of 56 MPO's in July 2000 indicated that:
L40 percent did not have cooperatively developed
revenue forecasts
L70 percent did not have a document that explained
how their share of future federal funding was calculated
Lnearly 40 percent did not have enough information
about future federal funding figures used in long range plans
to explain them to the public
L30 percent said future federal funding had been a
significant issue in public discussion of long range plans
Under these circumstances, it is important for the
integrity of the planning process, and for high public confidence in
the credibility of long range plans, that the NPRM on planning be
strengthened by adding processes to ensure that all MPO's have
cooperatively developed revenue forecasts that are documented and can
be readily explained to the public.
ANNUAL LISTING OF OBLIGATED PROJECTS
AMPO strongly supports the TEA-21 requirement that MPO's,
as an important part of their feedback to the public, produce annual
listings of projects for which federal funds have been obligated in the
previous year.
MPO's typically do not have the project status information
necessary to provide the listings. State DOT's and transit agencies,
the agencies that have access to the information, often do not provide
it to MPO's.
A provision should be added to the NPRM to ensure that
MPO's get the information they need to fulfill their responsibilities
in this area.
__________
U.S. Nuclear Regulatory Commission,
Washington, DC, March 2, 2000.
Hon. Robert Smith, Chairman,
Committee on Environment and Public Works,
Washington, DC.
Dear Mr. Chairman: The following comments are submitted for the
record, for Senate Committee on Environment and Public Works Full
committee hearing. DOT regulations on Environmental Streamlining,
September 12, 2000.
Defenders of Wildlife is a national nonprofit conservation
organization with over 400,000 members, committed to preserving the
integrity and diversity of natural ecosystems, preventing the decline
of native species and restoration of threatened habitats and wildlife
populations. Recently, Defenders launched a new campaign to address the
conflicts between transportation and wildlife. Our objective is to
reduce the impact of surface transportation on wildlife and habitat,
and to incorporate conservation into transportation planning to avoid
or minimize the effects on wildlife and habitat.
We are submitting the following views for the hearing record
because neither conservation groups or Federal resource agencies
testified at the hearings, and we believe it is important that this
perspective be articulated in this context. If additional hearings are
held on this matter, we would welcome the opportunity to testify.
1. The NEPA review process for transportation projects has
sometimes been subject to delays, elevated costs and litigation. At the
same time, NEPA is the foundation for environmental protection in this
country, and is largely credited for the level of environmental quality
we enjoy today. The rule in question attempts to codify measures to
reduce unnecessary costs and delays without diluting the strength of
NEPA. We fully concur with the intent of the rule, to the extent that
project times can be reduced without jeopardizing the health of our
environment.
2. We understand the concerns of other stakeholders and agree that
the NPRM does lack a certain degree of clarity. However, we believe
this was in response to constituents' demand for flexibility and
aversion for ``one-size-fits-all'' regulations. Such ambiguity can and
should be removed via the public comment and response procedure, as
well as individual State customization of the rules.
3. We trust that the DOT will heed our comments and those of other
interested parties as they revisit the NPRM, following the close of the
comment period on September 23. Finally, we ask that you let the system
of public participation take its course before you consider
intervention.
As written, we support three general, but key elements of
environmental streamlining:
1. EARLY INVOLVEMENT
Sec. 1420.203(2) ``Early in the NEPA process, contact Federal
agencies likely to be involved in the proposed action to verify the
nature of their involvement and to discuss issues, methodologies,
information requirements, timeframes and constraints associated with
their involvement.
Sec. 1420.203(5) ``Identify, during the course of completing the
NEPA process, points of interagency disagreement causing delay and
immediately take informal measures to resolve or reduce delay.''
Defenders supports the facilitation and reimbursement of agency
representation at the early stages of NEPA engagement. The additional
cost is a wise investment--pennies on the dollar--if said involvement
prevents delays and/or litigation further along in the project.
2. INTEGRATE PLANNING AND NEPA
Sec. 1420.201(b) Applicants preparing documents under this part
shall, to the maximum extent useful and practicable, incorporate and
utilize analyses, studies, documents, and other sources of information
developed during the transportation planning processes . . . in
satisfying the requirements of the NEPA process.''
Defenders supports the integration of NEPA procedures into the
planning stages of transportation projects. As Chairman Smith so
eloquently stated, ``The ideal vision for transportation planning is
one that meets the needs of all stakeholders, and takes environmental
concerns into consideration early, with no hidden agendas in the
process and no duplication of effort.'' We believe that projects that
are planned in mind and in the spirit of NEPA's goals are more likely
to meet the needs of the American people and less likely to pose a
threat to wildlife habitat. Many of the questions posed during NEPA
review are especially valid during planning, specifically the
articulation of the project's purpose and need. Finally, documentation
produced during planning should be applicable during NEPA review,
provided it meets the standards of validity, public participation,
coordination and endorsement.
3. COLLABORATIVE PROCESS
Sec. 1420.107 ``(5) Collaboration. Transportation decisions are
made through a collaborative partnership involving Federal, State,
local, and tribal agencies, communities, interest groups, private
businesses, and interested individuals.''
Defenders supports an inclusive and collaborative planning and
development process. Transportation decisions are necessarily complex
and multidisciplinary endeavors. They include economic, social,
ethical, historic, technical, cultural and environmental factors.
Transportation projects have pervasive and permanent effects at many
levels, from personal to regional and national. To that end, we contend
that the best decisions are those that are informed by all
stakeholders.
There is no question that America's transportation infrastructure
is imperative to our mobility, productivity and success. However, we
cannot deny that it has also had significant impacts on our
environment. Four million miles of roadways cover no less than 1
percent of our total land area, approximately the size of the State of
South Carolina. Unfortunately, not all of those roads were planned
wisely, leaving a destructive--and permanent--footprint on our
landscapes and wildlife habitat. That is why it is imperative that
transportation decisions are not made in haste, but after careful
consideration of not only the immediate need and purpose, but also the
long term and cumulative effects.
In closing, we urge you to allow the public participation process
take its course, and allow DOT the chance to respond to these and other
concerns. Defenders of Wildlife looks forward to reviewing the revised
rule, and working with the DOT on implementing environmental
streamlining in the future. We would like to meet with you and your
staff to discuss the above and any questions you may have on our
position.
Sincerely,
Patricia A. White,
Transportation Associate.
__________
Georgia Department of Transportation,
Washington, DC, March 2, 2000.
Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC.
Dear Chairman Smith. Please accept the enclosed testimony regarding
the Georgia Department of Transportation's position on new regulations
issued by the Department of Transportation. We join other States in
expressing the concern that the new regulations supplant and distort
the congressional language and intent of the Transportation Equity Act
for the Twenty-first Century (TEA-21).
In summary our position includes the following major points:
Required consultation with local officials has expanded to
include a variety of officials well beyond the law to the point where
the process is unwieldy.
The consultation process must be approved by the Federal
agencies, a direct contradiction with TEA-21.
TEA-21 eliminated the need for Major Investment Studies
(MIS) for urban transportation projects. The proposed regulations, at a
tremendous cost, reinstate the requirement for MIS-type studies on all
projects for no apparent reason and will create additional time and
cost burdens.
The proposed regulations implement vague Environmental
Justice considerations based only on Executive Order 12898 without
congressional consent and judicial review.
Intelligent Transportation System (ITS) regulations are
proposed without clarity and definition of terms leaving States
somewhat in the dark about how to comply.
Georgia's testimony is designed to help improve the process of
providing needed transportation services to the traveling public. We
are compelled to be heavily involved in the process and vow to follow
through with every means available to continue to complete our mission.
On behalf of the Georgia Transportation Board and the Department of
Transportation, thank you very much for your attention and any
consideration. Please contact me if you have any questions or concerns
as you contemplate the proposed regulations.
Sincerely,
Tom Coleman, Jr.,
Commissioner.
Statement of J. Tom Coleman, Jr., Commissioner, Georgia Department
of Transportation
With the passage of the Transportation Equity Act for the 21st
Century on June 9, 1998, Congress sent a strong message to the States
that it wanted to improve the way our Nation's transportation system
develops. Unfortunately, the draft regulations issued on May 23d of
this year compromise the intention of the legislation and of this body.
As written, these regulations if adopted will cause the planning and
construction process to face drastic cost increases and serious time
delays.
Regulations are important; they represent the rules of engagement
for how the Federal Government proposes to implement legislative
requirements and deem how we get our work done.
The proposed regulations cover four elements: planning,
environment, intelligent transportation (ITS), and environmental
justice. Today, I would like to highlight the impacts those new
regulations will have on Georgia's transportation program. Since their
release by the United States Department of Transportation, we have
worked closely with the American Association of State Highway and
Transportation Officials (AASHTO) in examining the proposed
regulations. My comments on possible shortcomings and potential
pitfalls reflect the concerns of the Georgia Department of
Transportation and to a large extent those of other AASHTO member
States.
The regulations take liberty with TEA-21. It is astonishing that
the drafters of these rules would change definition of terms, changes
not reflected in the statutory language of TEA-21.
We take a great deal of pride in the extent of coordination we have
with locally-elected officials. As part of the statewide transportation
planning process, ISTEA required consultation, cooperation and
coordination with locally-elected officials. We meet annually with
representatives from all 159 Counties and more than 540 cities in the
State of Georgia to review projects, consult on needs and address
concerns.
TEA-21 did not change this requirement--BUT, the regulations do
propose to change the participants. The new regulations require that we
consult, cooperate and coordinate with locally-elected officials, just
as before. This is not cause for concern. What is troubling is that the
regulations have expanded the requirements to embrace local land use
planning agencies, non-elected special transportation agencies,
economic development agencies and many more. This means that FTA/FHWA
can take the `self ' out of `self certification' by withholding
approval of a State Transportation Improvement Program (STIP) based on
their review of a State's process.
Congress wrote into TEA-21 the condition that USDOT ``shall not
review or approve'' the State's consultation processes with non-
metropolitan local officials. The proposed regulations propose the
exact opposite by requiring review during annual planning certification
assessments.
If these regulations are adopted, the consultation process must be
``documented and cooperatively developed'' in consultation with non-
metropolitan officials, (again language not included in legislation)--
all of them, transit authorities, regional development centers,
economic development authorities, and more. Obviously the drafter of
the regulations never worked outside the beltway--nor do they
understand the time, energy, money and effort that is part of any good
consultation process. Georgia has a documented process in place with
elected officials that works. The new regulations will do nothing more
than needlessly aggrandize the process.
Another Concern--Section 1308 of TEA-21 called for the elimination
of major investment studies. The legislation said that the analysis
should be part of the transportation planning and project development
processes, as appropriate.
The proposed regulations miss the opportunity to streamline the
process--they extend the MIS-type study requirements to all projects in
MPO areas, regardless of size or cost. This means that all projects
could require an MIS type study similar to the Northern Arc project in
Metropolitan Atlanta, which required 3 years and several million
dollars to complete. This will increase the cost and time of
implementation of capital projects. Another concern is that the
proposed regulations require that States ``shall consider . . . other
factors and issues in the planning process.'' ISTEA required
consideration of 23 planning factors. TEA-21 streamlined the process by
reducing the 23 into 7 factors. Instead of streamlining the process,
the proposed regulations open the door to any issues any participants
may suggest. As I mentioned earlier, the regulations give ``planning
process participants'' discretion to introduce additional planning
factors, although they do not have fiscal involvement or program
accountability.
Taken altogether, the change in definition of local officials; the
requirement for MIS-type studies and the role given to the ``planning
process partners'' all add up to increased time and resources required
for planning approval of needed projects. And the question for all of
us as stewards of the public trust is--does it add value? I will answer
that for Georgia, NO it does not.
Project development from idea to letting is currently 5 to 6 years,
if the project is not controversial. Add 2 or more years for
construction and you have 7 to 8 years from idea to fruition. If the
proposed regulations are approved, additional delay will result.
Next I would like to address Environmental Justice; I want to begin
by saying that Georgia supports concern for and protection of the human
environment. In fact, we have for years felt that the Federal resource
agencies have ignored impacts to human beings quality of life in favor
of marginally valuable natural and historic resources. We support a
balanced approach that weighs all of the issues equally rather than
taking a ``thou shalt not'' approach to certain sacred icons of singly
focused resource agencies.
As a preface to discussing the Environmental Justice regulations,
let me review what we do for Title VI. As you know, DOT's currently
comply with Title VI, the Americans with Disabilities Act and other
anti-discrimination laws adopted by Congress--as well as with State
laws that complement and further define equal opportunity and equal
treatment. Those requirements are well understood and have been tested
over time--there is guidance in regulations and in case law that we
follow. In addition, measures for compliance have been defined for
Title VI and ADA compliance. FHWA's annual review follows a structured
process documenting compliance in employment, transportation projects,
purchasing, contracting, and more.
The Environmental Justice regulations state a broad goal, but lack
clarity of objectives and lack definition of what are measures of
compliance. Environmental justice is based on Executive Order 12898,
which, because it is an order from the President to his Department
Heads, applies to Federal agencies. Executive orders are not
established in statute and therefore not subject to judicial review.
The absence of judicial review may be fine for the President when he
deals with his Departments, but it doesn't work for States that have to
prove compliance.
The goal of the Executive Order is to address ``human environmental
effects.'' The EJ regulation adds new protected groups--``low income''
and ``traditionally underserved''. These are not part of the Title VI
or any other legislatively protected group. Complying with the EJ
requirements will be a condition of Federal approval of the STIP. FHWA
and FTA will ask us to document that we have met Environmental Justice
goals--but what those goals are is not clear. The lack of regulatory
definition of what are environmental effects, burdens and benefits and
how to measure compliance will very likely be challenged in practice
and in the courts. When is a burden or benefit disproportionate? When
measured at the State, county, municipality or project level? Does that
mean if a single project places some burden on a protected community
because it runs through that community that it is automatically
disproportionate? What are burdens and benefits? How are they defined?
Again, this lack of definition can be cause for delay as we wrestle
with ill defined terms, and more importantly, legal fodder for any
opponent of any project who can take issue with what these terms mean.
The proposed Intelligent Transportation System regulations are hazy
about many points and will cause potentially costly interpretation
during enforcement. The proposed regulations require the use of a
``system engineering process'' and an ``interoperability test.'' They
also require that ``ITS projects funded from the highway trust fund
conform to the National ITS Architecture, applicable or provisional
standards, and protocols.'' The problem--``System Engineering
Processes,'' ``interoperability test,'' ``Conformity'' and
``provisional standards'' are not defined or existing nor has anyone
been assigned to define them.
The proposed regulations lack a clear definition of what is an ITS
``project.'' Are all ITS investments considered ``projects'' for
purposes of planning, programming and conformity determination? For
instance, will every traffic signal project be subject to the proposed
regulation even if it is simply replacement or maintenance of existing
equipment? Again, the regulations lack definition.
AASHTO has drafted a resolution which requests that work be
suspended on the proposed regulations and that USDOT comprehensively
revise the regulations. AASHTO also requests that any final rules
streamline, not complicate or delay the transportation process. Georgia
supports the AASHTO resolution.
In summary, the proposed regulations have many shortcomings: they
will cause more delay, expend more resources, and create more
opportunities to challenge the transportation process. The proposed
regulations will not serve the transportation program in Georgia nor
does it serve the congressional intent of TEA-21. Please consider
suspending this work. Please inject reason into this process. Please
exercise congressional authority and order USDOT to work with the
States to develop regulations that will achieve the national purpose
and provide transportation mobility.
__________
Texas Transportation Commission,
Washington, DC, September 12, 2000.
Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works
Dear Chairman Smith: The Texas Department of Transportation (TxDOT)
is delighted that the Committee on Environment and Public Works will
hold a hearing this month on proposed regulatory changes issued on May
25 by the Department of Transportation (USDOT). The proposed changes
affect regulations governing the development of metropolitan and
statewide transportation plans and improvement programs and regulations
implementing the National Environmental Policy Act of 1969 (NEPA) and
related statutes with respect to projects funded or approved by the
Federal Highway Administration and the Federal Transit Administration.
We have some apprehensions about those proposed regulatory changes.
TxDOT will file detailed comments with USDOT expressing our concern
with the regulations as presently drafted, but as commissioner of
transportation for Texas. I want to summarize my concerns for you prior
to your hearings.
TxDOT strongly supports sound, participative planning and full
compliance with the letter and spirit of the environmental laws. We
have made great progress in recent years toward balancing the many
competing demands on transportation planners--from expanding public
involvement, to improving traffic modeling techniques, to addressing
increasingly complex air quality requirements. Current planning and
environmental review processes for transportation projects include
ample opportunities for public participation and careful review if the
issues raised by those projects and their effects on the areas they
serve. We may need to listen more carefully to one another; that will
be achieved, however, through the continued commitment of all parties
involved, not through regulation.
It is TxDOT's commitment to making the transportation process more
inclusive, and more effective, and more efficient that gives rise to
our deep concerns about USDOT's proposed regulations. Instead of
providing a catalyst for innovation, they significantly increase the
regulatory burden on TxDOT and on those responsible for planning
transportation improvements for metropolitan areas in Texas, while
reducing their authority to make transportation decisions. The
significant changes these proposed regulations make would disrupt the
planning and project development processes amd make them more
bureaucratic, more document-driven, and less responsive to demands of
organized special-interest groups. However well intentioned, they would
impede State efforts to improve transportation planning and
significantly increase both the time and expense of delivering
improvements for the safety and efficiency of our transportation
system.
When it enacted the Transportation Equity Act for the 21st Century
(TEA-21), Congress clearly indicated its intention to reduce the delay
experienced by transportation solutions through extended and
duplicative environmental reviews that add no real value. These
proposed regulations would complicate that review process
significantly, consuming even more time but still with no insurance of
added value. Even under current procedures, the resources available to
Federal agencies involved in environmental reviews of tansportation
projects seem insufficient to support timely reviews, postponing much
needed transportation improvements. The added complexity of the
processes in these proposed regulations can only extend, not reduce,
the delay in project delivery.
I request that this letter be included in the record of comments
received at your hearing. The TxDOT and I recommend that USDOT be
directed to suspend its current rulemaking effort and to work
cooperatively with State DOT's and metropolitan planning organizations
to develop alternative procedures. We stand ready to work with you and
all Members of Congress and with USDOT to deliver important
transportation projects and services in an environmentally sound
manner, in full and open communication with local officials and
interested citizens.
Sincerely,
John W. Johnson,
Commissioner of Transportation.