[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

=======================================================================

                                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


                                _______

                  U.S. GOVERNMENT PRINTING OFFICE
71-523                     WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001


               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

                              ----------                              
                                                                   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.
---------------------------------------------------------------------------
    \3\ See former 23 U.S.C. Secs. 135(c)(14) and 134(f)(4).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \4\ Proposed 23 CFR Sec. 1410.206(a)(6)(i)(D); see also proposed 
Sec. 1410.316(c)(1)(iii) as to MPO's.
---------------------------------------------------------------------------
     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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                    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 
---------------------------------------------------------------------------
        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.

                                
