[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
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                                (112-6)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                          HIGHWAYS AND TRANSIT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 15, 2011

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure


               Available online at: http://www.fdsys.gov/


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                    JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska                    NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin           PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
FRANK A. LoBIONDO, New Jersey        Columbia
GARY G. MILLER, California           JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois         CORRINE BROWN, Florida
SAM GRAVES, Missouri                 BOB FILNER, California
BILL SHUSTER, Pennsylvania           EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia  ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio                   LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan          TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California            RICK LARSEN, Washington
TOM REED, New York                   MICHAEL E. CAPUANO, Massachusetts
ANDY HARRIS, Maryland                TIMOTHY H. BISHOP, New York
ERIC A. ``RICK'' CRAWFORD, Arkansas  MICHAEL H. MICHAUD, Maine
JAIME HERRERA BEUTLER, Washington    RUSS CARNAHAN, Missouri
FRANK C. GUINTA, New Hampshire       GRACE F. NAPOLITANO, California
RANDY HULTGREN, Illinois             DANIEL LIPINSKI, Illinois
LOU BARLETTA, Pennsylvania           MAZIE K. HIRONO, Hawaii
CHIP CRAVAACK, Minnesota             JASON ALTMIRE, Pennsylvania
BLAKE FARENTHOLD, Texas              TIMOTHY J. WALZ, Minnesota
LARRY BUCSHON, Indiana               HEATH SHULER, North Carolina
BILLY LONG, Missouri                 STEVE COHEN, Tennessee
BOB GIBBS, Ohio                      LAURA RICHARDSON, California
PATRICK MEEHAN, Pennsylvania         ALBIO SIRES, New Jersey
RICHARD L. HANNA, New York           DONNA F. EDWARDS, Maryland
STEPHEN LEE FINCHER, Tennessee
JEFFREY M. LANDRY, Louisiana
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma

                                  (ii)

  
?

                  Subcommittee on Highways and Transit

                JOHN J. DUNCAN, Jr., Tennessee, Chairman

DON YOUNG, Alaska                    PETER A. DeFAZIO, Oregon
THOMAS E. PETRI, Wisconsin           JERROLD NADLER, New York
HOWARD COBLE, North Carolina         BOB FILNER, California
FRANK A. LoBIONDO, New Jersey        LEONARD L. BOSWELL, Iowa
GARY G. MILLER, California           TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois         MICHAEL E. CAPUANO, Massachusetts
SAM GRAVES, Missouri                 MICHAEL H. MICHAUD, Maine
BILL SHUSTER, Pennsylvania           GRACE F. NAPOLITANO, California
SHELLEY MOORE CAPITO, West Virginia  MAZIE K. HIRONO, Hawaii
JEAN SCHMIDT, Ohio                   JASON ALTMIRE, Pennsylvania
CANDICE S. MILLER, Michigan          TIMOTHY J. WALZ, Minnesota
ANDY HARRIS, Maryland                HEATH SHULER, North Carolina
ERIC A. ``RICK'' CRAWFORD, Arkansas  STEVE COHEN, Tennessee
JAIME HERRERA BEUTLER, Washington    LAURA RICHARDSON, California
FRANK C. GUINTA, New Hampshire       ALBIO SIRES, New Jersey
LOU BARLETTA, Pennsylvania           DONNA F. EDWARDS, Maryland
BLAKE FARENTHOLD, Texas              EDDIE BERNICE JOHNSON, Texas
LARRY BUCSHON, Indiana               ELIJAH E. CUMMINGS, Maryland
BILLY LONG, Missouri                 NICK J. RAHALL II, West Virginia
BOB GIBBS, Ohio                        (Ex Officio)
RICHARD L. HANNA, New York, Vice 
Chair
STEVE SOUTHERLAND II, Florida
JOHN L. MICA, Florida (Ex Officio)

                                 (iii)



                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                               TESTIMONY

Kempton, Will, Chief Executive Officer, Orange County 
  Transportation Authority.......................................     7
Margro, Thomas, Chief Executive Officer, Transportation Corridor 
  Agencies.......................................................     7
Mendez, Victor M., Administrator, Federal Highway Administration, 
  U.S. Department of Transportation..............................     7
Miller, Debra L., Secretary, Kansas Department of Transportation.     7
Replogle, Michael, Policy Director and Founder, Institute for 
  Transportation and Development Policy..........................     7

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Cohen, Hon. Steve, of Tennessee..................................    43
DeFazio, Hon. Peter A., of Oregon................................    44
Duncan, Hon. John, Jr., of Tennessee.............................    46
Johnson, Hon. Eddie Bernice, of Texas............................    48

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Kempton, Will....................................................    54
Margro, Thomas...................................................    59
Mendez, Victor M.................................................    94
Miller, Debra L..................................................   104
Replogle, Michael................................................   120

                       SUBMISSIONS FOR THE RECORD

Kempton, Will, Chief Executive Officer, Orange County 
  Transportation Authority, response to questions from the 
  Subcommittee on Highways and Transit...........................   148
Margro, Thomas, Chief Executive Officer, Transportation Corridor 
  Agencies, response to questions from the Subcommittee on 
  Highways and Transit...........................................   150
Mendez, Victor M., Administrator, Federal Highway Administration, 
  U.S. Department of Transportation:

  Response to request from Hon. Shuster, a Representative in 
    Congress from the State of Pennsylvania, for the status of 
    Missouri's toll pilot project................................    19
  Response to request from Hon. Richardson, a Representative in 
    Congress from the State of California, for an explanation of 
    the Federal Highway Administration's use of statute of 
    limitation (SOL) notices.....................................    25
  Response to questions from the Subcommittee on Highways and 
    Transit......................................................   180
  Response to questions from Hon. DeFazio, a Representative in 
    Congress from the State of Oregon............................   184
  Response to questions from Hon. Eddie Bernice Johnson, a 
    Representative in Congress from the State of Texas...........   185
Miller, Debra L., Secretary, Kansas Department of Transportation, 
  response to questions from Hon. Duncan, Jr., a Representative 
  in Congress from the State of Tennessee........................   188
Replogle, Michael, Policy Director and Founder, Institute for 
  Transportation and Development Policy:

  Response to questions from Hon. Duncan, Jr., a Representative 
    in Congress from the State of Tennessee......................   194
  Response to questions from Hon. DeFazio, a Representative in 
    Congress from the State of Oregon............................   196

                        ADDITIONS TO THE RECORD

American Public Works Association, John Davis, Member, and Chief 
  Engineer, Jacksonville Transportation Authority, written 
  statement......................................................   204
American Society of Civil Engineers, written statement...........   213
State of Oklahoma, Hon. Gary Ridley, Secretary of Transportation, 
  written testimony..............................................   217
Texas Department of Transportation, written testimony............   226

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                        ACCELERATING THE PROJECT
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                       Tuesday, February 15, 2011

                  House of Representatives,
              Subcommittee on Highways and Transit,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Subcommittee met pursuant to notice at 10:02 a.m. in 
The Rayburn House Office Building, Room 2167, the Hon. John J. 
Duncan, Jr. [chairman of the subcommittee] presiding.
    Mr. Duncan. The Subcommittee will come to order. I was just 
set to announce that Mr. Boswell was going to sit in for Mr. 
DeFazio, who I heard was on the house floor, but we're glad to 
have Mr. DeFazio, the former chairman of the Subcommittee here 
with us. And this is the Subcommittee's first hearing of the 
112th Congress, although Chairman Mica and nine others have 
been going around holding some field hearings and listening 
sessions, and we'll do quite a bit of that next week.
    I want to thank all of our witnesses for being here, and so 
many of the Subcommittee members already here. Some people know 
I try to start these meetings right on time. It's a sign and 
respect for those who do come on time, and I especially want to 
introduce and welcome the new vice chairman of the 
Subcommittee, Congressman Hanna from New York. He will be 
sitting in the chair frequently during some of these hearings 
as we go through the year.
    We are meeting this morning to receive Federal, State and 
local input for streamlining the surface transportation project 
delivery process. There has never been a greater need for 
professional advice and expertise, and we need that expertise 
from this very distinguished panel here today. We have to get 
this right and we need a lot of help to do it from people all 
over the country.
    As the reauthorization of the Federal Surface 
Transportation Programs moves forward, the committee will be 
looking at potential reforms to the project delivery process. 
Funding for infrastructure is hard to come by with each passing 
day, so we must find ways to do more with less. According to 
the highway planning and project development process timeline 
put together by the Federal Highway Administration, the project 
delivery process can take up to 15 years from planning through 
construction.
    We have held many hearings. We have had many hearings where 
it is estimated that we take about three times as long, and 
usually at three times the cost, to do almost every kind of 
infrastructure project that comes out of this committee--three 
times longer than any other developed Nation. We have got to 
speed those projects up, not only to save money, but so that we 
can do more with less.
    Limited financial resources for transportation 
infrastructure can be more effectively utilized by speeding up 
the process for project approval. SAFETEA-LU made small, 
focused changes to the existing project delivery process, and 
we have seen some improvement in delivery times as our 
witnesses will testify. For example, the State of California 
participated in the Surface Transportation Pilot Program, which 
allows FHWA to delegate its responsibilities for NEPA to the 
State.
    Through this delegation pilot program, California has been 
able to shave approximately 17 months off the approval process 
for a standard transportation project. While these improvements 
are a good start, we can do more. We should be doing more, not 
just in California, but all over the country. With the highway 
trust fund unable to keep up with infrastructure demands, and 
with States facing dire financial situations, the time is right 
to take a hard look at the existing process.
    There is no silver bullet for speeding up the delivery of 
transportation projects, but we simply must do better. I look 
forward to working with Chairman Mica, ranking member Rahall, 
and ranking member DeFazio and other members of our committee 
on approving this process. And I believe the witnesses today 
will provide us with valuable information on how we can do 
that.
    With that, I yield to my good friend, ranking member Mr. 
DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman. And congratulations 
upon assuming the chair. And I look forward to continuing to 
work together with you to rebuild and improve our Nation's 
infrastructure.
    Bottom line, there is no excuse for unnecessary 
bureaucratic delays, and we have got to look at ways to 
eliminate those sorts of things. I think the pilot program, 
which was extended to California and four other States should 
be extended. The opportunity should be extended to all the 
States. Obviously, they have to develop a plan, a framework, 
and show they will adequately and have the capability of 
complying with the overarching Federal laws. But then the 
Department of Transportation moves into an oversight mode as 
opposed to a direct sort of command and control mode over the 
State's actions.
    I want to hear more about section 6002, and whether or not 
we have fully utilized all of the flexibilities. I mean these 
are only recent changed. The Bush administration refused to use 
any of the flexibility in 6002, and the Obama administration 
has apparently embraced them and made some progress in the last 
two years, but could more be done? And are there other ways to 
improve the process?
    I note that at one point one of the witnesses says how 
paperwork sits, because the agencies which must participate in 
the decision, the other concurring agencies are often 
understaffed, or transportation is the low priority with, say, 
Fish and Wildlife or somebody else. We've got to figure out 
ways to deal with that.
    I think Section 214 that we used for the Corps of Engineers 
would possibly deal with that where you have a major project 
that a State wants to move forward, and you have to have the 
concurrence of these agencies like we have with the Corps of 
Engineers. The authority could actually help to pay the cost 
for the Corps of Engineers in the case of 214, or in the case 
for Fish and Wildlife or other agencies, which are understaffed 
or have other priorities to move the paper work along.
    I just had an example last week in my office where there's 
a critical rail project in my district, a reopening of a rail 
line to a port in my district that had been closed by a hedge 
fund. It needed substantial repair, because it had been 
neglected by the hedge fund. And in order to finish the repairs 
we have got some Federal money, but we couldn't get the Federal 
agencies Fish and Wildlife to sign off on the Federal money 
because some guy was on vacation from the Roseberg office, and 
the paperwork had been sent down to sit on his desk.
    It just happened that the State director was in my office 
that day, the same day that the people from the Port, ICTSI--
they were in my office. I put the two of them together, and 
they immediately resolved the problem. It wasn't a question of 
waiving environmental laws or anything else, but the 
bureaucracy was going to grind on for four or six weeks. So 
this guy came back from vacation, went through his inbox, and 
then decided to check the box and send it back to Portland, and 
let it get to the top of the pile there. And someone was going 
to check the box and then send it on; and then it gets to the 
Department of Transportation and by then it might be too late.
    So that kind of stuff's just had to stop, and we have to 
figure that out. We have proposed some ways to coordinate these 
activities better, to have a lead agency in, to urge these 
folks on, and detailing people from agencies. Again, they might 
have to be paid for by the sponsoring agency, but there are 
innovative ideas out there and I want to hear them from the 
panel, and I'm very open to seeing them adopted.
    With that, thank you much, Mr. Chairman. I will be going to 
the floor, but I will be back. Thank you.
    Mr. Duncan. Thank you very much, Mr. DeFazio.
    And I ask unanimous consent that all members be allowed to 
submit written statements for the record. Hearing no objection, 
so ordered; and I will now ask vice chairman Hanna if he has 
any statement that he would like to make at this time.
    Mr. Hanna. [No response.]
    Mr. Duncan. All right. He does not wish to do so. Does any 
other member wish to make a brief opening statement on our 
side?
    Mr. Boswell. I'm coming now.
    Thank you, Mr. Chairman, and just briefly, and I look at 
Mr. Mendez and I have got to say it is a short statement, 
because we both have seen the situation. First off, I want to 
say regarding this Fifth Avenue, up there, that I want to refer 
to in a minute. I have got no quarrel with any of the folks 
that you've had on the scene. They have been following their 
instructions, and they have been cordial.
    And they have stayed on it, but we still haven't got it 
done. So the story is when we rebuilt the freeway through my 
capital city, of course, there is the access road, and there is 
all these rules, regulations and safety and so on and 
distances. You all know that. But it came up that the industry 
wanted to access that--alights there. It would be only entering 
it with right-hand turn, traffic coming from the other 
direction that would come up there to that light and make a 
left turn, already, anyway.
    The light is already there. It would be readjusting the 
light. There is no expense. It doesn't take a rocket scientist 
to figure out it would be safe, and there is no cost. And it 
has just taken months and months and months to get it done, 
because first-off, it wasn't considered when they did the 
reconstruction. We understand that, but then it came up that 
there was this need and this opportunity, and required taking a 
cyclone fence down and opening up to make right-hand turns onto 
that situation.
    We have had a delay from the industry of putting up 
buildings. The jobs it would have created would have been 
extensive. It still will, but it is going to be delayed well 
over a year as we went through this. I don't say this to 
criticize, Mr. Mendez, and I want you to really understand 
this. This is not a criticism. This was pointing out that good 
people, following their instructions and going through a 
process, it really bogs down. And, you know, the city, the 
county, the State, and finally the nationals say well, we can 
do that.
    But, it has taken so long, and it has cost us a lot of 
jobs. It has cost us a lot of delay; and, to me, I'm not a 
transportation engineer and some of you are, would have been 
around a long time and it made sense, and it's made sense all 
the way through and it's going to happen, but it's been delayed 
months and months and months and months. So I just make that 
point, and I look across this panel there with all the 
experience you bring to this table. I suspect you could tell 
stories all day long, and I see your heads nodding. So I think 
this is very timely, Mr. Chairman, and I appreciate it.
    And I want every one of us, both sides, to go into this 
with a very objective let's see, as my son would say, let's get 
her done. Let's keep safe. Let's don't do things we don't need 
to do, and protect the taxpayer's investment. We can do that; 
but, surely, there's a way to do it better, and I think that 
that's what your goal is, and I am here to help, if I can.
    Mr. Duncan. Well, thank you very much, Mr. Boswell.
    Mr. Miller would like to introduce a couple of the 
witnesses who are from his area. Mr. Miller?
    Mr. Miller of California. Thank you, Mr. Chairman.
    With OCTA we have Will Kempton and Peter Buffa here, and 
they have done a really good job, and I welcome them to 
Washington. And TCA, we have also got Tom Margro here, and it 
is good to have all of you here today.
    I agree on the environmental comments that were made. In 
fact, in the SAFETEA-LU in 2005 I introduced an amendment that 
allowed States that either had an environmental process that 
equaled what the Federal Government did in NEPA, or they 
exceeded it. And Californians really went along with that and 
it has worked very well.
    We are saving about 17 months on the review process right 
now, which means we are getting projects completed in the 
review process, and getting them started much sooner than we 
did in the past. And even though there is a time saving, the 
integrity of NEPA has never maintained the degradation in any 
fashion. In fact, we have kept the standards, and they have 
exceeded what we believe we have before.
    The goal we have today is we need to create jobs in this 
country. We have a huge problem on our highway systems 
throughout the entire system we deal with on this committee; 
and, if we can do something to streamline the process, I think 
we should do that. I would like to welcome our witnesses today, 
and I yield back the balance of my time.
    Mr. Duncan. All right. Thank you very much, Mr. Miller.
    Is there anyone else who wishes to make an opening 
statement? Mrs. Napolitano?
    Mrs. Napolitano. Thank you, Mr. Chairman.
    And I agree with my colleague, Mr. Miller, in welcoming the 
witnesses, especially the California ones. I have worked with 
Mr. Kempton many a time when he was in Los Angeles 
transportation.
    We have many, many issues dealing with transportation in 
California, and California is the only State to participate in 
the surface transportation project delivery pilot program and 
authorized in SAFETEA-LU. We want to continue to be able to 
hear where we can be able to cut, and somehow our Federal 
agencies need to understand.
    California has more stringent standards than the Federal 
when you are talking about NEPA. And it would help, not only 
that extra money, that extra time not only can save money, but 
as was pointed out, it can also provide additional jobs that we 
so sorely, so desperately need.
    I have in my area, the Alameda Quarter East, 54 crossings. 
Only 20 are going to be separated. Well, the sooner we can get 
those built, the sooner the rest of the Nation is going to get 
their on-time delivery from the goods coming out of Los Angeles 
and Long Beach Ports. So those are critical for us, yet we 
sometimes time it. And we spent additional time, and because 
right now the projects are coming in under budget, because 
everybody needs the jobs, needs to spend that to be able to put 
people to work.
    Somehow, we need to put the two together and be able to see 
how we can cut the time and be able to provide those local 
authorities moving forward on the projects. So with that I 
thank you, Mr. Chair, for holding this, and I totally agree. 
Yield back.
    Mr. Duncan. Thank you very much. Does anyone else on the 
Republican side wish to make an opening statement?
    [No response.]
    Mr. Duncan. And Mrs. Johnson, I think, wants to make one.
    Mrs. Johnson of Texas. Thank you very much, Mr. Chairman.
    I agree that we do need to look at ways to improve the 
environmental review process for highway projects, and we also 
need to be careful not to unravel the Federal Highway 
Administration's and the other agency's oversight 
responsibilities. Last year I heard from several mayors in the 
southern sector of Dallas County about a project known locally 
as Loop 9. The idea for this project was first raised in 1957.
    In 1991 Dallas County voters approved a bond program 
authorizing over $175 million in bonds for transportation 
improvements, and that included the funding for Loop 9 
feasibility and route alignment study. The Notice of Intent for 
this study was filed in 2004. Three years later the first draft 
environmental impact statement was submitted to the Texas 
Department of Transportation's environmental division; and, 
finally, last year, the Federal Highway Administration received 
it for the first time.
    More recently, I heard from the city of Bull Springs 
regarding their concerns with seven outstanding issues that 
were only recently raised by the Federal Highway 
Administration. These concerns are regarding a project that 
began in 2005, and I site these examples to demonstrate that we 
need to find out why completing and reviewing environmental 
studies has taken so many years. During this delay, the cost of 
construction, and the purchase of rights away continue to 
increase.
    Last week, I introduced legislation, H.R. 551, that would 
provide help in the environmental review process. And my bill 
would allow States to use their own funds to assist the Federal 
Highway Administration in completing its review of 
Environmental Impact statements. Currently, States may only use 
certain funds that they receive from the Federal Department of 
Transportation for this purpose. And, I hope as we consider the 
next highway bill, we will consider my legislation and other 
proposals that will move the environmental study process along 
more quickly, while ensuring that the protection of our 
environment is intact.
    Thank you, Mr. Chairman, and I yield back.
    Mr. Duncan. Thank you very much Ms. Johnson.
    We will now proceed with the panel and we are very honored 
to have a very distinguished panel here with us this morning. I 
ask unanimous consent that our witnesses' full statements be 
included in the record. Hearing no objection, so ordered. Since 
your written testimony will be made a part of the record, we 
request that you limit your oral testimony to no more than five 
minutes.
    We have one panel of witnesses today, starting off with 
Administrator Victor Mendez, who is the top official, the 
Administrator of the Federal Highway Administration; Ms. Debra 
L. Miller, who is the Secretary for the Kansas Department of 
Transportation; Mr. Will Kempton, who is the Chief Executive 
Officer of the Orange County Transportation Authority.
    Mr. Kempton is accompanied by Mr. Buffa, who is not 
providing testimony, but will be available to answer any 
questions. And Mr. Tom Margro, who is the Chief Executive 
Officer of the Transportation Corridor Agencies, and Mr. 
Michael Replogle, who is the policy director and founder of the 
Institute for Transportation and Development Policy. I want to 
thank all of you for coming to be with us today, and 
Administrator Mendez, you may begin your testimony.

  TESTIMONY OF VICTOR MENDEZ, ADMINISTRATOR, FEDERAL HIGHWAY 
 ADMINISTRATION; DEBRA L. MILLER, SECRETARY, KANSAS DEPARTMENT 
      OF TRANSPORTATION; WILL KEMPTON, CEO, ORANGE COUNTY 
   TRANSPORTATION AUTHORITY; TOM MARGRO, CEO, TRANSPORTATION 
 CORRIDOR AGENCIES; AND MICHAEL REPLOGLE, POLICY DIRECTOR AND 
   FOUNDER, THE INSTITUTE FOR TRANSPORTATION AND DEVELOPMENT 
                             POLICY

    Mr. Mendez. Thank you and good morning, Chairman Duncan and 
members of the Subcommittee. I want to thank you for this 
opportunity to appear before you today.
    I am very pleased that my first appearance before this 
Subcommittee as the Federal Highway Administrator is at a 
hearing that is focused on a subject that I have made one of my 
top priorities at FHWA, and that is accelerating project 
delivery. As you know, the President's budget was released 
yesterday outlining some of the administration's ideas for 
investing in infrastructure, and my colleagues and I at DOT 
look forward to having discussions with you on this topic in 
the future.
    The year 2011 is a very busy and important year for the 
transportation community. We start the year in a very strong 
position. Our roads are the safest they have ever been, and we 
have a track record of success that includes improving our 
infrastructure and putting our people back to work. But, we 
also face many challenges--economic challenges, safety 
challenges, congestion and environmental challenges.
    Delivery time in this country currently stands at an 
average of about 13 years for a major project. We do need to do 
better. We need to speed up project delivery while maintaining 
and improving project quality. We need to find ways to make our 
roads safer and maintain environmental quality.
    My Every Day Counts initiative is designed to help us meet 
these challenges. We have engaged our State and local partners 
and those in the private sector in this effort from the very 
beginning, including the State DOTs through AASHTO, the 
construction community through AGC and ARTBA, the consulting 
community through ACEC, and the National Association of County 
Engineers.
    We have built Every Day Counts on two pillars. First, we 
have a tool kit that contains a number of specific strategies 
to shorten project delivery time. This tool kit includes 
opportunities to explore and exhaust flexibilities under 
existing law. For example, on the planning side we can minimize 
some of the duplication of effort that currently delays 
projects. We can do that while still protecting the environment 
and delivering top-quality projects. On the construction phase 
of a project, we have encouraged the use of innovative 
contracting practices like Design-Build and Construction 
Manager/general contractor. There is a real opportunity to save 
delivery time by doing some things concurrently that under the 
traditional approach have to be done in sequence.
    Our second pillar of Every Day Counts encourages the use of 
five technologies that deserve to be widely deployed into the 
field today--warm-mix asphalt, prefabricated bridge elements 
and systems, adaptive signal control technology, the Safety 
Edge, and geosynthetic reinforced soil. Every Day Counts is 
about taking effective, proven and market-ready technologies 
and ensuring their widespread use to improve safety, reduce 
congestion, and keep America moving and competitive. But it's 
also important to focus on the bigger picture beyond specific 
technologies or initiatives.
    Through Every Day Counts, we started essential dialog 
throughout our entire industry. We now have people discussing 
not whether we can shorten delivery time, but how we are 
actually going to do that. That brings us closer to my real 
goal within Every Day Counts, which is to create an innovative 
culture in our community, one that is open to new ideas and new 
ways of doing business. Every Day Counts challenges the way we 
have been doing business, and proposes a better, faster and 
smarter approach for the future.
    As President Obama has indicated, maintaining and improving 
our infrastructure is vital to our economic competitiveness and 
the ability to create good jobs. If we are going to ``win the 
future,'' as the President has challenged us, we are going to 
have to out-innovate, out-educate and out-build the rest of the 
world.
    Thank you very much for inviting me here today. I look 
forward to continued work with our transportation partners, 
this Subcommittee, and other Members of Congress as we move our 
innovative ways through the industry. Mr. Chairman, I conclude 
my remarks and thank you.
    Mr. Duncan. Thank you very much, Mr. Administrator.
    Ms. Miller.
    Ms. Debra Miller. Good morning, Chairman Duncan. Thank you 
for the opportunity on behalf of the State DOTs to share our 
views on expediting project delivery. On behalf of AASHTO, I 
want to thank you and Chairman Mica for your commitment to 
expediting Project Delivery through the 437-day plan and for 
your willingness to consider potential statutory changes to 
achieve that goal.
    We offer our support and any technical assistance you may 
need from the State DOTs. I also want to commend Administrator 
Mendez for his Every Day Counts initiative. We see this as a 
great opportunity, and we fully support the initiative. And I 
would say I think it is well-named as it sets a good tone and 
reminds all of us that every day, in fact, does count.
    Let me summarize four points for you. First, the 
environmental process has been and continues to be a major 
contributor to the delay in moving projects from conception to 
completion. We have made progress, because of the reforms in 
SAFETEA-LU, but there is still much progress to be made. Today, 
a major highway project can still take 10 to 15 years or more 
to complete. That delay results in real costs, not just from 
inflation, but the opportunity costs from continued congestion, 
loss productivity and accidents, and, one of the issues I'm 
very concerned about, the potential loss of public confidence 
that comes when we have excessive delays.
    State and local governments are also over burdened with the 
excessive paperwork and process it takes to advance even the 
least controversial projects with no environmental impacts. 
Second, any effort to expedite project delivery should focus on 
making the process more efficient without compromising 
environmental projection or opportunities for public 
participation. The success of the reforms in SAFETEA-LU shows 
that it is possible to both speed up the process and still 
preserve and enhance the environment.
    Third, the environmental process reforms of SAFETEA-LU have 
been effective in accelerating project delivery. Nevertheless, 
more can and should be done to refine those provisions to make 
further progress to the existing process. For example, we can 
improve upon the pilot program that authorizes delegation of 
FHWA's full NEPA authority to five States. This program was 
successfully implemented in one State, California, and I'm sure 
you'll be hearing more about that.
    Other States, though, have been reluctant to take this on 
because of one catch. By assuming U.S. DOT's responsibilities, 
the States give up the ability to undertake design and right-
of-way activities during the NEPA process, a very important 
mechanism for speeding up the delivery of projects. For many 
States the flexibility to advance these activities in parallel 
with NEPA is a critical project delivery tool. In addition, in 
order to take on delegation, States must waive their sovereign 
immunity, which many State legislatures are reluctant to agree 
to.
    We have three recommendations to improve this program. One, 
extend it to all States, which will lend certainty to the 
program that is needed to encourage States to make the 
substantial investment and time and resources needed to take on 
delegation. Two, clarify that the States can assume U.S. DOT 
responsibilities without reducing flexibility to acquire right-
of-way and perform design work prior to the completion of the 
NEPA process. And, three, establish a new pilot program that 
would give State DOTs the opportunity to take on the increased 
role in document preparation and agency consultation, but FHWA 
would retain ultimate approval authority.
    Finally, refinements to the existing programs to expedite 
project delivery will help, but we also need to focus on new 
innovations, policies and practices to make a quantum leap in 
accelerating project delivery. We have several recommendations 
to build on the successes of SAFETEA-LU. Let me just mention 
one.
    We urge you to consider empowering agencies to experiment 
with innovation. You can do this by giving U.S. DOT and the 
Federal resource agencies the authority on a pilot basis to 
waive existing procedural requirements for certain projects; 
those that are being developed through an integrated planning 
process at an ecosystem scale. Requirements could only be 
waived if the agencies could demonstrate that environmental 
outcomes are not compromised. A model for this approach is a 
special experiment program authority that FHWA has used in 
recent years to encourage innovation in contracting, and has 
played a critical role in encouraging the greater use of 
public-private participation.
    Mr. Chairman and Members of the Committee, it is not only 
possible, but it is essential that we seek and implement 
creative new ways to accelerate project delivery. It is 
essential to find ways to deliver a better product faster, 
cheaper, and with better environmental results. We need more 
tools and ideas to stretch our precious resources, and to 
enable us to deliver the best possible value to our customers 
for their transportation investments.
    Thank you very much for this opportunity. I will be happy 
when it's appropriate to answer questions.
    Mr. Duncan. Thank you very much, Secretary Miller.
    And Mr. Kempton?
    Mr. Kempton. Thank you, Mr. Chairman, and thanks for the 
opportunity to address the Subcommittee today. My name is Will 
Kempton. I am the Chief Executive Officer of the Orange County 
Transportation Authority, and I am here today with Peter Buffa. 
He is a past-year and present director of the OCTA board of 
directors, and he was really the inspiration and the architect 
of the OCTA's Breaking Down Barriers initiative.
    And by way of background, I just wanted you to know that I 
served five years as the State director of transportation in 
California. I don't mean to speak for the Department of 
Transportation in my testimony today, but I think it's 
important that you know about my background in that area in 
terms of what I am going to be talking about this morning.
    The Breaking Down Barriers initiative grew out of a 
combination of the current recession, where scarce capital 
investment has led to double digit unemployment and the long-
held knowledge that federally funded projects, as the chairman 
indicated, often can take an extraordinary length of time to 
process, some 14 years in many cases. This isan effort to 
unlock the jobs tied up in the Federal project delivery process 
and create those new opportunities for employment in California 
and across the Nation without the expenditure of additional, 
massive amounts of Federal funding.
    Discussion with Congress and the administration over the 
past few months has revealed that others in Washington share 
this point of view. As you've heard from Administrator Mendez, 
the Federal Highway Administration has the Every Day Counts 
initiative. Chairman Mica has his 437 plan, which refers to the 
shortened timeframe it took to rebuild the collapsed Interstate 
35 West bridge in Minneapolis. And President Obama recently 
published an op-ed piece in the Wall Street Journal criticizing 
``absurd and unnecessary paperwork requirements,'' and he 
issued an Executive Order to review existing rules that stifled 
job creation. This house has passed Resolution 72, calling for 
regulatory reform.
    Our stakeholder outreach has included State and local 
government representatives, key transportation industry and 
business associates, such as the American Association of State 
Highway Transportation Officials, and the American Public 
Transportation Association, and the U.S. Chamber of Commerce 
for their assistance in our initiative. These efforts have 
yielded broad support.
    The initiative is not intended to eliminate necessary 
environmental protections related to Federal projects, but 
rather to expedite the process in an environmentally friendly 
way. OCTA has contracted with Susan Binder and the firm of 
Cambridge Systematics to conduct in-depth interviews with 
transportation providers and to coordinate the results to find 
the most promising areas to seek specific changes in statutes 
or regulations to expedite project delivery.
    Cambridge Systematics has conducted over 40 confidential 
interviews over the past four months with project implementers 
and trade associations to collect the widest sampling of 
situations where changes in the status quo can expedite project 
delivery. We have identified more than 22 changes in existing 
Federal laws or regulations or practices, which could speed up 
the project delivery process. We have found that delay in 
project delivery is generally attributable to the following 
causes: a misplaced Federal focus on what I am calling 
micromanagement in the name of good control; on document length 
in the name of quality; and on processing in place of advancing 
projects.
    A failure to adopt a Federal, State and local partnership 
effort to replace the highly risk averse attitude presently 
associated with Federal oversight, where delay is considered to 
be evidence of diligence, is absolutely a problem facing us in 
the delivery of projects. We also see a failure to penalize 
delay and reward innovation at the Federal and State or local 
level.
    The specifics of our recommendations are being finalized, 
and we will report back to Congress and the administration when 
the final report is available, but let me take a moment to 
highlight a few of these changes that we are talking about. 
First, as you have heard today, we need to expand and continue 
the NEPA delegation, which was authorized by SAFETEA-LU. 
California, again, as you know, is the only State which took 
advantage of the provisions that were provided for five States 
across the country.
    The delegation eliminates a layer of document review, and 
retains all NEPA and CEQA project review authority within the 
State. The statewide average time savings for these projects, 
as Administrator Mendez indicated, is about 10 to 17 months. 
That's huge. That's a year in terms of getting jobs to the 
economy sooner. The pilot program, rather, is limited only to 
highway projects, and it expires on August 10, 2012, and it 
should be extended and delayed.
    Second, the planning process should not delay project 
implementation. We believe there should be greater delegation 
to the metropolitan planning organizations in terms of 
amendments to the Federal TIPs. We ran into that problem as we 
tried to implement the American Recovery and Reinvestment Act. 
Third, there should be a prompt action provision in law, 
whereby, Federal agencies will be required to act on project 
approvals within a set deadline.
    We are interested in the concept of programmatic 
environmental review. Where that focus will accelerate project 
level documentation, but we think a cultural change in the way 
the Federal Government does business is needed.
    Mr. Chairman, I am happy to answer any questions during the 
appropriate timeframe, but appreciate again the opportunity to 
testify before the Subcommittee today.
    Mr. Duncan. Thank you very much, Mr. Kempton.
    And now we will hear from Mr. Margro.
    Mr. Margro. Thank you, Chairman Duncan and Members of the 
Committee. My name is Tom Margro. I am the Chief Executive 
Officer of the Transportation Corridor Agencies, and we are two 
joint powers authorities formed by the California legislature 
to plan, finance, construct and operate three toll roads in 
Orange County, California.
    I want to thank you for the opportunity to speak before you 
today to discuss our agency's ongoing challenges over more than 
15 years to secure the Federal approvals needed to complete the 
241 toll road. Not only is this project critical to alleviating 
congestion in Orange County, but it will create over 34,000 
jobs, and it requires no Federal or State funding.
    Based on our experiences with the 241 project, we have 
recommendations for improving the environmental review process. 
Our agency completed the first 51 miles of our planned 67-mile 
toll road system in 12 years; however, we have spent the last 
15 years trying to accomplish and finish the last 16 miles, as 
it has been mired in the Federal environmental review process.
    This project was intended to be a model for improving the 
complex, Federal environmental process by integrating reviews 
under NEPA, the Clean Water Act, the Endangered Species Act, 
and other Federal environmental laws. The process was 
undertaken through the formation of a collaborative of State 
and Federal agencies working through a memorandum of 
understanding among the FHWA, the EPA, Corps of Engineers, and 
U.S. Fish and Wildlife Service with the FHWA acting as the lead 
Federal agency.
    This process gave all of the Federal environmental agencies 
a seat at the table, and decisionmaking authority throughout 
the environmental review process. A key aspect of the MOU is 
the commitment by all agencies to reach consensus on key 
decision points throughout the process, and also not to go back 
in revisiting their concurrence, except in limited 
circumstances related to significant new information or other 
significant changes.
    In our case, this process involved two stages for our 
project. In the first stage, a facilitator was hired to assist 
the collaborative in their process, and develop the purpose and 
need statement, and the alternatives for initial evaluation. 
This stage took four years to accomplish. The second stage took 
six years, during which technical studies were prepared, 
alternatives developed and evaluated, and decisions were made 
about which alternative to carry forward for full analysis in 
the environmental impact statement.
    The last two steps of stage 2 included the identification 
of an environmentally preferred alternative, and an agreement 
on mitigation measures. In November 2005 the collaborative 
agencies confirmed in writing their earlier agreement on the 
preliminary LEDPA, also known as the Least Environmentally 
Damaging Practicable Alternative. Subsequently, National Marine 
Fisheries Service concurred with FHWA that the project would 
not likely adversely affect endangered or threatened fish 
species.
    Since the Fish and Wildlife Service had been at the table 
throughout the collaborative process, the MOU contemplated that 
the Service would be able to prepare a biological opinion 
within the 135-day deadline established by the Endangered 
Species Act. While Fish and Wildlife eventually did produce a 
biological opinion and a Finding of No Jeopardy, it did so 
nearly three years after the collaborative agencies had 
identified the environmentally preferred alternative.
    When we applied for consistency certification under the 
Coastal Zone Management Act, certain project opponents, 
including environmental groups, objected to the project despite 
the fact that they offered no credible evidence that the 
project would impact the coastal zone. At this first hint of 
controversy, Federal agency members of the Collaborative, with 
the exception of FHWA, questioned the preferred alternative 
previously identified by these very same agencies, asserted the 
need for additional environmental studies, and reopened the 
debate concerning other alternatives.
    Thus, rather than serving as a model for how to make the 
Federal environmental process more efficient, our experience 
with the Collaborative demonstrates that the Federal 
environmental process is broken and needs fundamental reform. 
Despite over a decade of effort by these agencies, and 
expenditures of over $20 million by the project sponsor, 
ourselves, the process failed as there was no agreement on a 
preferred alternative.
    Now, we do have several recommendations and proposals for 
improving this process, some of which you have heard from the 
previous speakers. These include allowing States like 
California with stringent environmental laws to provide NEPA 
compliance. Prohibit agencies from rescinding their previous 
concurrence, unless there are significant new facts. Require 
FHWA to develop an MOU with EPA regarding a reasonable range of 
alternatives to be examined.
    Revise regulations to provide that in subsequent NEPA 
documents you do not have to go back and reconsider issues 
addressed in prior NEPA documents, and limit resource agency 
determinations to issues within their own jurisdiction and 
expertise. We have appended to the testimony a chronology of 
events associated with this project and certain relevant 
letters and documents.
    I thank you for the opportunity to provide testimony, and 
look forward to answering your questions.
    Thank you.
    Mr. Duncan. Thank you very much, Mr. Margro.
    Mr. Replogle.
    Mr. Replogle. Good morning, Chairman Duncan, Congressman 
DeFazio, members of the Subcommittee.
    I am Michael Replogle, founder of the Institute for 
Transportation and Development Policy, a non-profit group that 
helps cities implement transportation and urban development 
projects worldwide. The Environmental Defense Fund, the Natural 
Resources Defense Council, and the National Recreation and Park 
Association have also indicated support for my testimony today.
    What causes federally-funded transportation projects to 
suffer delay? The biggest problems are usually lack of funding, 
or lack of consensus about what project is needed or how a 
project should be designed. Environmental reviews account for 
only a small share of transportation project delays; and, in 
most cases, this is associated with a few highly controversial 
and complex projects entailing large adverse impacts.
    Typically, only three percent of projects need an 
environmental impact statement. Nine out of ten federally 
supported transportation projects undergo little or no NEPA 
review and are approved as categorical exclusions or findings 
of no significant impact. SAFETEA-LU has begun to cut delays by 
ensuring environmental, land management and natural resource 
agencies are routinely invited to participate in all planning 
studies. Early involvement and dialog leads to earlier issue 
identification and discussion to resolve important issues 
collaboratively.
    Critically flawed projects are more likely to be identified 
and removed from consideration, cutting costs. But cuts in 
resource agency budgets pose an increasing risk to progress in 
reducing project delays. A recent GAO report noted that funding 
constraints hamper the ability of resource agencies to take on 
extra responsibilities beyond their core regulatory duties, and 
limit their capacity to respond to concurrent requests from 
multiple metropolitan planning organizations and State DOTs.
    To curb project delays, Congress should first protect 
resource agency budgets. Second, it should in the next 
transportation bill authorize a set-aside of Federal 
transportation funds to ensure land management, environmental, 
and resource agencies, will be involved in State and 
metropolitan planning and project reviews. Such funding could 
also ensure agencies map known areas of environmental, historic 
or other sensitivities.
    EPA supports such efforts with its NEPAssist, an innovative 
tool that facilitates streamlined environmental review and 
project planning. In the face of widespread budget cuts to 
resource agencies, Congress should not impose more stringent 
time limits on agency comments and transportation project 
reviews, or fine agencies that fail arbitrary timelines.
    Third, Congress should create new incentives for timely 
project delivery. Strong partnership and coordination among 
stakeholders, supported by financial incentives, have been 
successful in engendering early project completion. Congress 
should allow DOT to reward States and metropolitan areas that 
consistently deliver projects on time while meeting or 
exceeding environmental standards.
    Fourth, Congress should create new incentives to better 
link transport planning and project reviews. A voluntary pilot 
program should be created in which U.S. DOT, EPA and other 
agencies work with certain States or metropolitan areas to 
determine how to accelerate project delivery through more 
thorough Federal review of State or metropolitan long-range 
transportation plans, satisfying NEPA requirements through the 
planning process so that fewer NEPA requirements need to be 
satisfied at the project review level. In this way, concerted 
deliberations about projects might take place earlier in the 
process. This could be done through new kinds of programmatic 
agreements or program delivery partnering plans.
    Fifth, increased use of mitigated findings of no 
significant impact and categorical exclusions under NEPA could 
help provide a basis for advancing some transportation projects 
faster. Recent CEQ guidance on this subject is helpful.
    Sixth, Congress should encourage greater transportation 
project design flexibility. Currently, the Federal Highway 
Administration requires all projects to meet the highest design 
standards, even when potential traffic volumes may never be 
realized. This can lead to over-design of projects and bog down 
projects in drawn out exception requests. Inflexibly applied 
State DOT design standards can also get in the way of project 
implementation.
    I invite the committee to consider the much more detailed 
analysis in my written testimony, and thank you for the 
opportunity to testify today.
    Thank you.
    Mr. Duncan. Well, thank you very much, Mr. Replogle, and I 
want to thank all the witnesses for their very helpful and very 
informative testimony.
    When we hear that everyone, even President Obama, having 
written the op-ed for the Wall Street Journal, everybody wants 
to speed up the process. Nobody wants to hurt the environment, 
but when we talk about the 13-year average that Mr. Mendez 
mentioned and various studies show similar figures.
    I have sat on this committee for 22 years now, and no 
matter what it is--I chaired the Aviation Subcommittee for six 
years, the Water Resources and Environment Subcommittee for six 
years--no matter what it is, we hear that we are taking at 
least two times, usually three times as long as any other 
developed nation to do these projects, and we all want to speed 
these things up so we can do two projects where we could have 
just done one. It's pretty much that simple, but I will never 
forget years ago when I was chairing the Aviation Subcommittee.
    We heard the newest runway at the Atlanta Airport, which is 
several years old, took 14 years from conception to completion. 
It took over 99 construction days, and they were so relieved to 
finally get all the approvals that they completed the project 
in 33 24-hour days. And we always hear that it's always the 
environmental rules and regulations that are causing most of 
the delay, so we need some suggestions.
    But I am going to go first to members for questions, 
because members sometimes have to leave, and I will be here for 
the whole hearing. And so I believe----
    The Clerk. [Sotto voce.]
    Mr. Duncan. Mr. Mendez is going to have to leave, and so 
what we are going to do, we are going to go first to questions 
just for Administrator Mendez.
    Is there anyone on the Republican side who wishes to ask 
Administrator Mendez a question? Does anybody have a question 
for--Mr. Miller?
    Mr. Miller of California. Yeah. But the problem is 
questions for him relate to many on the panel. I don't know how 
we are----
    Mr. Duncan. Well, we are just trying to help him get on his 
way, so just go ahead.
    Mr. Miller of California. Well, you talked about 13 years 
to deliver a project. I come from the building industry, and I 
mean I've watched the process for 40 years, and much of it has 
to do with repetitive paperwork and many projects you have on 
transportation. And I think some of the authorities you 
mentioned, they go through this lengthy process and the 
paperwork when they're completed just gets put aside in some 
filing cabinet and sits there.
    That does not do anybody any good. It just protracts 
projects. And, you know, I look at projects that we have tried 
to move forward. And the Maglar project--it was improved in 
2005 funding--that would have gotten a lot of the preliminary 
work moved ahead. Yet that funding has never even been released 
after six years. How do we maintain a global competitiveness 
and yet deal with the 13-year delivery project stream we have 
to deal with today?
    Mr. Mendez. Yes, sir. Thanks for the question.
    As I mentioned in my opening remarks, and I have a little 
more detail in the written remarks, at FHWA we have begun 
looking at various strategies and I refer to Every Day Counts 
as the over-arching umbrella for the strategies. It's important 
for all of us, and I do agree with you. That's why I started 
the initiative. Thirteen years is way too long. In today's 
society, we have to do something about that and my goal is to 
cut that in half.
    There are about 10 strategies that we have outlined under 
Every Day Counts that really speak to several of the issues 
that I think all of us here at the panel are really trying to 
address. We are trying to eliminate duplication of effort 
through some of those strategies and encourage the use of 
existing flexibility within the existing regulations.
    I believe within the framework of what we do, we haven't 
really tapped all the flexibility within the existing rules, 
regulations and laws, and so we are attempting to do that as 
well. And finally, as I mentioned, we are also looking at the 
construction phase. There are some strategies out there that 
simply are not deployed on a national basis, including Design-
Build, and some other procurement-type issues that I know from 
my own experience really move our major projects forward very 
quickly. I think it is important for all of us to think about 
all of these other strategies that I believe provide a lot of 
flexibility. Throughout the industry we have not really taken 
advantage of that flexibility.
    Mr. Miller of California. Well, the problem I have is that 
I introduced the language in the TEA-LU bill in 2005 that 
allowed States to avoid the NEPA process if they met or 
exceeded those standards, and California is the only State that 
took advantage of it.
    I know, Ms. Miller, you mentioned we need to do something, 
but will the administration's authorization proposal include 
concepts for accelerating project delivery similar to what we 
try to do in the pilot program in California? And, as we have 
discussed, in California it is, say, between 10 and 12 months 
of process time, which is significant to moving projects.
    Is the administration going to do something then on a 
national basis?
    Mr. Mendez. Well, as you are aware, yesterday the President 
released the budget. Within the transportation framework you 
see some of the principles that we outlined. Very clearly, we 
are looking at reducing some of that red tape, if you will. We 
did consolidate over 55 programs down to five in our proposal.
    The other thing that we are looking at are some project 
delivery ideas, and we want to continue that discussion as we 
move forward.
    Mr. Miller of California. Love to work with you on that, 
and I yield back, Mr. Chairman, because I asked specific to 
this one individual.
    Mr. Duncan. Thank you very much.
    Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Mr. Administrator, the full delegation of authority which 
California has assumed, which has saved considerable time, that 
was a pilot for five States. Do you have any concerns about 
that program? Would you support extending that program to the 
other States should they so request?
    Mr. Mendez. Mr. Chairman, ranking member, should they so 
request, the option is there for the other four States.
    Mr. DeFazio. Well, not under existing law. There are five 
States eligible under the pilots, but I'm saying if we made it 
a part of permanent law that States could request that 
authority, you would not object to that.
    Mr. Mendez. The benefits are very clear in that regard, 
given the California experience.
    Mr. DeFazio. OK. What is the reluctance of other States, 
given we had five States eligible for pilots. And I don't 
believe five States----
    Mr. Miller of California. Would the gentleman yield?
    Mr. DeFazio. Yes.
    Mr. Miller of California. The five States were chosen 
because there were only five States that met NEPA standards at 
that point in time.
    Mr. Mendez. Right.
    Mr. Miller of California. But that's a very good question, 
and I hope we can expand it.
    Mr. DeFazio. And as I understand it, there is a major 
barrier that States don't want to waive sovereign immunity. 
They want the Federal Government to be able to be sued for the 
project, and they want to take authority to do the project, but 
they don't want to be sued if they do the project and there's a 
problem.
    Mr. Mendez. Yes, sir. That is a big impediment.
    Mr. DeFazio. OK. All right. That is something we would have 
to work through. And then Mr. Replogle raised the issue of 
practical design, and this is a problem both at the Federal 
level and I believe the State level. And at the AASHTO level in 
terms of their green book, where everybody said--what I hear 
most commonly from States is ``If I don't do what they say, 
which is I don't care if you can serve that area with two-lane 
road, the book says six lanes, sidewalks, guardrails, and 
this.''
    So what if that's in everybody's front yard? You know, 
would the feds adopt the idea of practical design standards, 
which I believe would help encourage the States to move in that 
direction and, you know, try and get projects that are more 
appropriate, less expensive to construct, and more appropriate 
for the communities. We took some considerable testimony on 
this last year.
    Mr. Mendez. Mr. Chairman, ranking member, certainly we are 
all trying and striving to reach some of those benefits that 
you mentioned. Practical design does make sense, but I can 
assure you that within the current rules and regulations, we do 
have a process for design exceptions that are available.
    I know from my experience we used to do that back in 
Arizona, and so it is not a set rule on everything. But there's 
a process to allow you some exceptions.
    Mr. DeFazio. Right. But I think we need to perhaps elevate 
that issue higher or look at whether the exception process is 
the right way to go, and then also deal with the problems that 
have created potential legal barriers, because AASHTO publishes 
something and then the States adopt it, and then the States are 
reluctant to change. I mean just looking at how we can sort of 
facilitate this whole process, and it may be that we need to 
have the States, AASHTO and the feds sit down and work it out. 
But I just think there's a lot to be gained and saved through 
practical design.
    Thank you, Mr. Chairman.
    Mr. Duncan. All right. Thank you very much.
    Mr. Shuster.
    Mr. Shuster. Thank you, Mr. Chairman.
    The question deals with the tolling of roads. I know that 
in TEA-21 there were three pilot projects proposed to be 
approved. Two of them were approved; one was not, and I just 
wondered what the current status of Virginia and Missouri is. I 
understand Virginia is going back to the drawing board, but it 
seems to me the need to find dollars, if States are willing to 
come forward with a plan, to toll in those three pilot 
projects. We should move them forward if we can, if it's 
possible.
    Mr. Mendez. Mr. Chairman, Congressman, yes. On the Virginia 
tolling concept, we are working very closely with them to make 
sure that happens within the framework of the rules, 
regulations and the law. I am not up to speed on the Missouri 
ones, so I apologize for that, but certainly I can get back to 
you on that.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T5450.006
    
    Mr. Shuster. And I know what the outcome of Pennsylvania 
was. States lined up to want to get into that queue. If 
Missouri or Pennsylvania or Virginia, obviously, doesn't move 
forward, are there other States that are interested in looking 
at that?
    Mr. Mendez. I am not aware that they are in the actual 
queue. I'm sure everybody is thinking about how they may get 
into that queue, but I am not aware that there is a formal 
list.
    Mr. Shuster. And another question; I don't believe this is 
in Federal law that has to be done, but I know that in 
Pennsylvania when an engineering firm designs a bridge or a 
roadway, then PENNDOT takes it in and reviews the whole thing 
again. But once they put that stamp on the engineering firm, 
they're responsible. They're liable for it, and I just 
wondered.
    Across the country, s that general practice that happens? 
Because it slows the process way down by several months when 
that occurs, and I just wondered. Is that something that's 
general practice in other States, or is it something that 
States contract with an engineering firm, get their stamp, and 
then say let's move forward?
    Mr. Mendez. Normally, the engineering firm or the engineer 
will stamp the project plans and then you move forward. But 
there is a level of review, because the States have to ensure 
for themselves that they agree with what's within that project 
plan.
    Mr. Shuster. All right. Thank you very much.
    I yield back.
    Mr. Duncan. Thank you very much.
    Ms. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman, and this question 
is both for administrator Mendez and Mr. Kempton. As we've been 
hearing among the surface transportation project delivery pilot 
program, what are the perspectives on the pilot program from 
the Federal-State level, and how long has this pilot been in 
place?
    Has it been successful, and should it be expended to other 
modes of transportation and what are your recommendations, if 
any? That's one question all wrapped up in one. The second one 
is what are you doing to train, educate, and have input from 
your respective staffs to be able to speed up the process, 
change mindsets, because sometimes that's where a lot of the 
boggling down comes in.
    Mr. Mendez. OK. I will go first, if you don't mind.
    Mrs. Napolitano. Please.
    Mr. Mendez. Mr. Chairman, Congresswoman, let me address 
your second question first. I have talked quite a bit about 
Every Day Counts today, and I do totally agree with you that 
within our industry--not just FHWA--we really need to begin 
looking at a new way of doing business, and part of that is how 
do you move the culture forward.
    My ultimate goal, when I am done in my tenure here, is to 
have in place throughout the industry a culture of innovation--
not just within FHWA, but I think everybody in the industry 
needs to get on board. In terms of what we have done more 
recently, late last year, the final three months of the year, 
we actually held 10 regional innovation summits where we 
engaged the private sector, consultants, contractors, and 
people from the State DOTs and my folks that actually are on 
the ground--not headquarters people, not people from D.C., 
people out on the ground--to really begin looking at not only 
the strategies that I outlined under Every Day Counts, but to 
begin thinking about what does that culture really look like.
    I want people to really engage in finding new ideas, being 
creative, and being innovative and bring those ideas and flush 
them out and make them happen every day that they come to work.
    Mrs. Napolitano. Where do they go from there?
    Mr. Mendez. Well, we did lay out a strategy where every 
State will go back in concert with FHWA to develop a specific 
plan to see which of the strategies they will implement. Now, 
one thing I can tell you, which is part of my philosophy, I 
understand very clearly that not everything is the same in 
every State. So that's why we decided every State should go 
back and work with our folks to develop a State-specific 
implementation strategy, because what happens in California may 
not be the same solution in Virginia, for example.
    Mrs. Napolitano. That is correct. But are you also working 
on that internally?
    Mr. Mendez. Certainly, yes we are.
    Mrs. Napolitano. To what extent?
    Mr. Mendez. Well, like I said, we have had a lot of 
internal training. Before we actually began the summits, we had 
internal training for our division administrators. In every 
State we have a division administrator and we did our internal 
training with some of our other key folks to make sure they 
understood what we are attempting to do within this new Every 
Day Counts approach.
    Mrs. Napolitano. Thank you. Mr. Kempton?
    Mr. Duncan. All right. What we agreed to do earlier was 
just question Mr. Mendez at this time. We will come back to you 
for questions to other witnesses.
    Mrs. Napolitano. Thank you.
    Mr. Duncan. Does anybody over here have a question for Mr. 
Mendez? Yes, sir, Mr. Southerland.
    Mr. Southerland. Thank you, Mr. Chairman.
    Mr. Mendez, thank you for being with us today. I am 
curious. What is the single greatest impediment from allowing 
the States to do more in accelerating project delivery?
    Mr. Mendez. Mr. Chairman, Congressman, I don't know that 
there is one single impediment.
    Mr. Southerland. Yeah. But there has got to be something 
that just irritates you. I mean, and I am a small business 
owner and I get irritated daily. And there's got to be just one 
overriding thing, that if you were king for a day, what could 
you eliminate and open the door for a greater working 
relationship between the Federal Government and the States in 
satisfying the American taxpayer and moving people and products 
down the road.
    Mr. Mendez. I suppose if I looked at the world as king for 
the day, the biggest impediment that I would see is throughout 
the country we need to really bring our level of coordination 
and partnership to a higher level. I believe the inability of 
people to actually sit and meet, and resolve issues on the spot 
rather than sending reports and e-mails and letters. If we can 
find a way to get people in, I think it's part of the culture. 
Bring people together to resolve issues today--not three months 
from now, not six months from now, but today--we would make a 
big headway on that.
    Mr. Southerland. Did you, when you met with the State DOT 
experts, did they say the same thing? I don't want to put words 
in your mouth. What do they say as that single, greatest 
impediment? Is it we are too large, because when you talk about 
the culture, the culture is large and unfortunately in charge?
    I mean if you want to simplify things, common sense would 
say you would have fewer that you have to communicate with, but 
what do they say to you? What do the State DOT experts say to 
you regarding the same issue?
    Mr. Mendez. I can't speak for the States, of course. A lot 
of concerns have been expressed by the panel here, but I really 
believe that if you take the project delivery process and you 
look at the decisionmaking process at every phase, all the way 
through construction, just our coordination and our ability to 
resolve issues takes too long. Are there other issues? I will 
let some of the other panel members address that at the 
appropriate time.
    Mr. Southerland. Thank you.
    Mr. Miller of California. Would the gentleman yield?
    Mr. Southerland. I yield, yes.
    Mr. Miller of California. You talk about project delivery. 
Mr. Replogle talked about lack of funding and EIRs only impact 
a small amount of projects, early involvement in dialog, which 
you talked about. Set aside funding for agencies regarding 
environmental review. That's kind of like paying off the mafia 
to me. I'm sorry. It really is, but I don't mean to insult the 
mafia.
    But the 241 toll road was a great example. They met with 
every environmental group possible. They met with, I guess, the 
best was fish and Wildlife. Fish and Wildlife studied every 
environmental option available. They met with every 
environmental group to call the impact back, and all they ended 
up getting at the end was a lawsuit.
    The problem I see out there, and being a builder for 40 
years, is you will go through a process. Get the area approved, 
and then three different environmental groups will see you. Two 
want cash, and the other one will take you to court. How do you 
deal with that?
    Mr. Mendez. Well, let me kind of step back on the broader 
issue, just to make sure we are all on the same page. Now, 
obviously, the major projects that do require an environmental 
impact statement are where we faced some of these broader, 
bigger issues.
    Mr. Miller of California. Let's take the 241 example: 15 
years of process; they met with every environmental group that 
had a name, and Fish and Wildlife addressed their concerns. 
What can you do to stop those problems from occurring?
    Mr. Mendez. You mean in terms of lawsuits?
    Mr. Miller of California. No, in terms of a process that 
continues forever to end up at the end of it with nothing, 
there's got to be some resolution on the part of government. We 
have laws in place that enable these groups to do that, and all 
they do is hamstring the entire process as government tries to 
go through local agencies in delivering projects.
    Mr. Mendez. I think in most cases--and there may be some 
exceptions--it is the ability to resolve with the appropriate 
people.
    Mr. Miller of California. That's what I'd like to see you 
address. That's my question. We are looking to you in the 
administration for opportunities and options to problems, and 
to resolve those problems. We have discussed the problems, but 
have not seen any proposals that address the problems.
    Mr. Mendez. If you look at some of our strategies within 
Every Day Counts, they're attempting to resolve these problems. 
Will the 10 strategies resolve everything? No, but I think it's 
a step in the right direction.
    Mr. Miller of California. I yield back. Thank you for 
yielding.
    Mr. Duncan. All right. Mr. Sires?
    Mr. Sires. Thank you, Chairman, for holding this hearing. 
It's very important, and having been a local elected official, 
I have been involved in some projects.
    Mr. Mendez, you have a recommendation here that I don't 
really agree with. You have a recommendation that says get 
involved. Get the environmental attorneys involved early in the 
process.
    I have to tell you. My experience in dealing with some of 
the State environmental attorneys is one issue after another 
that they seem to come up with. It's like the kiss of death of 
a project. I wonder if your experience is different than mine 
that you make the suggestion that getting involved in 
environmental attorneys early is really helpful, because I just 
find it just very difficult.
    I come from the State of New Jersey, and there seems to be 
more issues added every time you talk to them. They came up 
with issues that you never saw there before; and many times 
they're inflexible. I don't know if whether the instructions 
that you have given your attorneys is to be a little more 
flexible and understanding to move these projects forward, but 
they're like the B team.
    They'll be there when you're there. They'll be there when 
you're gone. So can you just give me a logic behind this? I 
think I understand it, but thus it hasn't been my experience.
    Mr. Mendez. Mr. Chairman, Congressman, yes. My philosophy 
on that is similar to what I expressed earlier. It seems to me 
that when you bring the right people together at the earliest 
possible time to resolve the issues, things move faster. I 
think somebody here suggested earlier that after you've gone 
through so many years and somebody comes in at the end and 
raises new issues, I believe that was Congresswoman Johnson, 
that's what I am trying to avoid.
    If you bring the attorneys to the table early to identify 
those potential legal impediments that we need to resolve 
today, not three years from today, I believe that really gets 
us in the game early and helps us resolve issues faster and 
earlier.
    Mr. Sires. But they are so inflexible, that in many 
instances I disagree with that. I am sorry.
    Thank you, Mr. Chairman.
    Mr. Duncan. All right. Thank you very much. Administrator 
Mendez has to leave, so we will let Ms. Richardson ask the last 
questions to the administrator.
    Ms. Richardson. Thank you, Mr. Chairman, and thank you for 
having this very timely hearing. And I remember when we had 
this a year ago, and out of the hearing I actually introduced a 
bill called Jobs through Environmental Safeguarding and 
Streamlining Act of 2010 (JESSA). And I would encourage all my 
colleagues to maybe consider how we could work together to 
bring that forward, because we spent a lot of work, and that's 
my understanding in the committee.
    I was very well aware of it and it helped us to frame many 
of the comments we hear today. Mr. Mendez, I just have two 
questions for you. To your knowledge, have there been any 
instances of adverse environmental impacts in California or any 
of the other pilot States due to the alternative process under 
Section 6005, the pilot project.
    Mr. Mendez. Mr. Chairman, Congresswoman, no. That I am 
aware of, we have not had any adverse impact.
    Ms. Richardson. OK. And then my second and last question, 
trying to adhere to the chairman's pleasure here, I'd like to 
build upon Ms. Miller's testimony where she stated the statute 
of limitations, and I think it's building upon some of my other 
colleagues, where it's my understanding the purpose of the 
statute of limitations is to expedite the resolution to affect 
any transportation projects.
    Issuing the notice in the Federal Registry is 
discretionary. If a notice is not issued, the NEPA approval or 
decision remains subject to the general six-year statute of 
limitations for civil actions against Federal agencies. Why 
wouldn't you just do it?
    Mr. Mendez. I didn't bring the information with me, but we 
do have information statistics on how many times we actually 
have issued the notice. And we happened to do it quite often. I 
just simply don't have the numbers.
    Ms. Richardson. But why wouldn't you just do it in form if 
they have met the requirements? If the project is consistent 
with the approvals, why wouldn't you just normally do it? Why 
would it be discretionary?
    Mr. Mendez. I can offer a couple of examples from my 
experience here at FHWA. I can tell you there has been one 
arena where we simply didn't have an alternative that we 
thought would be viable, that from an environmental standpoint 
would actually move things forward.
    And rather than issuing a final notice and closing out the 
determination, if they're in the future, 10 years from now if 
there's still a need, and there might be some other alternative 
out there, we didn't want to close out that potential.
    Ms. Richardson. OK, sir. Would you be wiling to give to the 
committee and to also those who are testifying the details that 
you have about this particular issue and why you're not doing 
it on a consistent basis? And what might you do to consider 
changing that in the future?
    Thank you very much.
    Mr. Mendez. Absolutely.
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    [GRAPHIC] [TIFF OMITTED] T5450.007
    
    Ms. Richardson. Thank you, Mr. Chairman.
    Mr. Duncan. Thank you. And Mr. Mendez, one last request. 
All of the witnesses here today are from the government or 
academic backgrounds; and most of your working day is spent 
working with other government officials. I would appreciate if 
you would do something very simple and easy.
    Have somebody on your staff write up one letter that you 
would send out to at least 100 businesses across the country 
that are in this area and ask for their suggestions as to how 
we can speed up and simplify the process. And then in about 30 
days after you do that, or maybe 60 days, give us a report on 
any suggestions or a list of suggestions that you've gotten 
from that process. Would you be willing to do that?
    Mr. Mendez. Absolutely.
    Mr. Duncan. Thank you very much. And you are excused now, 
and we thank you for being with us.
    Mr. Mendez. Thank you.
    Mr. Duncan. And we will go now to questions for the other 
members of the panel, and I believe that we are going to do 
this in order. We have been asked to do this in the order in 
which the members appeared. And Mr. Crawford was here first, 
but he is gone.
    Mr. Gibbs?
    Mr. Gibbs. Thank you, Mr. Chairman.
    I want to probably address Secretary Miller. I appreciate 
her comments about how we can move forward. Some of the things 
I see concurrently versus in sequence, and you might want to 
expand on that a little bit.
    One thing that's really been bothering me, and you 
mentioned environmental process is a big part of the problem, 
and I know Mr. Replogle kind of countered that, went the other 
way on that. But, you know, the bridge that collapsed up there 
in Minnesota came in under budget and, I guess, years ahead of 
time. And it seems to me that the bureaucracy made decisions, 
because they were forced to make decisions. And I see this all 
across the board, not just on highway projects, but businesses.
    We are getting permits from the EPA or whoever to operate. 
They can't get answers. They just go on and on and on and adds 
to cost. So I am beginning to think that there is a culture in 
our bureaucracy not to get excited and not to move things 
forward, and you might want to talk about that. And then the 
second part of my question is you talk about waiving States' 
sovereign immunity and you mentioned right-of-way procurement. 
Can you expound on that a little bit, because I am new to this 
committee. This is a new area to me.
    Ms. Debra Miller. Sure.
    Mr. Gibbs. Is there something that maybe we should address 
specifically dealing with right-of-way procurement?
    Ms. Debra Miller. Sure. Let me start with your first 
question. I do think there are some cultural issues. I think 
there are cultural issues inside State DOTs. I can say the head 
of my State DOT is one of my highest priorities. I mean, you 
know, I tell our people, you know, every day you ought to feel 
like the hounds of hell are at your backs. You know, I mean 
that notion of urgency needs to be driving all of us. And I 
think that you see the newer leadership, I think, throughout 
State DOTs who are very much of that mindset. But, certainly, 
we have long term employees, and I think you see it on the 
Federal level as well. So I think there are cultural issues we 
all need to address, and there is no question. Across the board 
leadership is so important. If you are not providing leadership 
and directing your staff that what they ought to be concerned 
about every single day is moving things forward, then you're 
probably going to get delay. You've maybe heard this before, 
but there is so much in this environmental arena that in so 
many of the Federal approaches that is process driven, not 
outcome driven; and, you know, increasingly, we are all talking 
about that language, and I think it is much easier to assess 
whether or not a process has been met than to make the more 
judgmental call about whether or not you are reaching the right 
outcome. So it's very easy to fall back on process; but, 
certainly, we only defined ways to push forward and be focused 
on outcome. You know. I think we are at varying levels in our 
State DOTs. I can just tell you we spend a lot of time with 
those sorts of conversations. I think the leadership issues are 
very big, whether it's at the Federal level or at our State 
levels in terms of making these projects move forward.
    In terms of the second question about right-of-way for 
instance, our State always purchases right-of-way with State 
dollars, because we can do that. It's considered at risk, but 
we can do it. We cannot use Federal dollars to purchase right-
of-way until we are all the way through the environmental 
process. And that so delays a project when you're doing it 
sequentially in that linear format.
    So what we will do is we'll finish our final design, and we 
will do our right-of-way acquisitions using State dollars, 
knowing full well that they are at risk. But at least we can do 
it. And either the way the section has been written or the way 
it's been interpreted by Federal highway, if you have the 
delegation, you can't do it even at risk. And States just 
haven't been willing to give that up, because it's such an 
important way to speed up the process.
    Mr. Gibbs. Just to follow up on the right-of-way, eminent 
domain, you know, Ohio the Department of Transportation has 
what they call ``Quick Take,'' where they can go in, use 
eminent domain and then start the project. And if a property 
owner is contesting it, it will go through the process. Does 
Kansas have a similar, or the Federal Government, is that a 
problem where they don't have the ability to move the project 
forward by using an expedited eminent domain process like we do 
in Ohio?
    Ms. Debra Miller. Well, I can tell you one of the things 
that we do is we follow the Federal Procurement requirements. 
We just find whether we're using State dollars or Federal 
dollars. It's a better way to do it, but we always try to 
purchase right-of-way with our own dollars, because we can use 
expedited processes we could not use under Federal 
requirements.
    Mr. Gibbs. OK. Thank you.
    Thank you, Mr. Chairman.
    Mr. Duncan. Thank you very much.
    Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Just to follow up on that with Ms. Miller, you know, I have 
heard various discussions by various State DOTs about why they 
don't want to engage in these more alternate design, practical 
design, context sensitive designs. Whatever you want to call 
it, it has a lot of names. A couple of States have made it very 
clearly State policy, Pennsylvania among them and others. But 
one thing I hear is they're concerned about liability. It's not 
just cultural, but there is a liability concern. How could we 
address that?
    Ms. Debra Miller. Well, Congressman DeFazio, I don't know 
if this will be a good answer to your question. I would say 
from my perspective, and one of the things we have told our 
people is, you know, liability shouldn't be our number one 
concern when we're making these decisions.
    We have what we call a practical improvement approach. We 
have been pushing very aggressively to do it, and I think if 
you are weighing up all the benefits and costs to the State, to 
the cost of infrastructure, even if in fact you end up being 
sued in some situation, you know, that consequence and that 
cost may come nowhere near outweighing the benefit you got from 
moving forward. So our direction has been, you know.
    I'm not saying we're not following good, sound engineering 
principles, but don't let every decision be driven by some fear 
you might be sued, because there are other losses that are more 
significant. And one of the things I am very concerned about in 
everything that we do revolves around public credibility and 
public enthusiasm. And so, you know, I think sometimes if we 
are counterbalancing our fear about a liability versus looking 
rationale and reasonable to the public, moving forward in a way 
that makes sense to the public, that in my mind oftentimes 
outweighs the liability issues.
    Now, I might also say in Kansas we have tort reform that 
our outward loss, you know, is limited, and so it might be 
easier for us to make that decision. It may be different in 
some other States, but again, I think that's a bit of a 
cultural issue. It's not that there aren't some liability risk, 
but I believe that gets overplayed in people's minds in terms 
of being a decisionmaking factor.
    Mr. DeFazio. Wouldn't normally in your experience or in 
looking at this issue, would normally these sorts of practical 
design, context sensitive design, whatever solutions, wouldn't 
they often be less expensive than the optimized?
    Ms. Debra Miller. Absolutely. Absolutely.
    Mr. DeFazio. OK. So, maybe, part of what we should look at 
from the Federal level is to provide an incentive for people to 
look at this with a little different cost sharing ratio when 
States adopt something, which is going to save both the State 
and the feds money in the end, but the feds will give a little 
bit of the premium for that.
    Ms. Debra Miller. I think that's an interesting thing to 
pursue. I think the other thing, you know, certainly in a 
safety arena, we all begin thinking about this, and that is 
there used to be such a notion. You were working on a project 
and you were going to build the best project you could build 
right there at that area. Now, we're much more likely to think 
about the overall system, and how can we expend our dollars in 
a way that gives us the best system. And, sometimes, the best 
system means not doing the best individual projects, and so 
there might be some ways to incentive a system perspective 
versus a very project-focused perspective.
    Mr. DeFazio. OK. And then, Mr. Replogle, do you have any 
thoughts about this since you raised this issue, about either 
the liability issues, or, some way to incent, taking a look at 
these sorts of alternate solutions?
    Mr. Replogle. This is something that comes up in the area 
of alternative design standards, and could be addressed in the 
Federal Highway Administration's program for innovation in 
administration of the Federal code. It was referred to earlier 
as the Special Experimental Program, and has been used a lot in 
public-private partnership development. That could also be used 
in coming up with some ways of reducing this concern about 
liability among the States in applying design standards.
    Mr. DeFazio. Well, and what you are saying is perhaps at 
the point, which if it's an experimental program or it's an 
exception under Federal rules. I think that immediately raises 
some flags with people at its exception, as opposed to using a 
range of accepted standard practice. I think it's important to 
put an emphasis on looking at lower cost, more appropriate 
alternatives, that doesn't require you to take an exception or 
not be part of an experimental program, because I think some 
lawyer is going to say, ``Wait a minute, wait a minute. 
Exception, exception, we don't like the word exception. We're 
going to get sued on that, you know, if there's an accident or 
something.''
    Mr. Replogle. Yeah. But this special experimental program 
has been widely used in the Federal Procurement process, 
enabling States to use innovative design bill procedures and 
other kinds of approaches to expedite project delivery.
    Mr. DeFazio. Right. But we want to make it mainstream.
    Mr. Replogle. Right. But using that program to start 
getting more routine exceptions, instead of having to go 
through a long paperwork process for design exceptions, that 
special experimental program might be used to facilitate having 
States take on, with some Federal handholding, to do deviations 
without having to go through a lot of paper.
    Mr. DeFazio. Right. And Mr. Kempton, we will certainly look 
forward to your final report, and I assume that we will look at 
issues like this when it comes out. Right. When might we expect 
it?
    Mr. Kempton. Mr. DeFazio, we are actually planning to start 
circulating that document, hopefully, by the end of this month, 
first of next month. We will have something out probably by 
mid-March.
    Mr. DeFazio. Well, we'd love to be on the early 
distribution list so that we can incorporate some of the ideas 
into our reauthorization working with the chairman because we 
need to address this situation.
    I just wondered, if the chairman would--just one other. I 
believe there are many cases of inordinate and extreme delay 
that exceeds the bounds of, shall we say, reasonableness. I am 
not certain, Mr. Margro, that your project goes there, because 
as I understand it, it was the California Coastal Commission, 
which has unbelievable power in your State--which is not 
extended to entities in any other States I am aware of. I mean 
we have an LCDC, but they don't have the power of the 
California Coastal Commission, who opposed the project, and 
that's what brought it to a screeching halt. In addition, the 
United States Marine Corps' opposition from the outset, which I 
think was somewhat problematic. So I don't know that it was 
just the NEPA that caused you these problems.
    Mr. Margro. Mr. DeFazio, thank you. The Coastal Commission 
was an issue and is an issue, but the points that I made in my 
testimony we never were able. As soon as we got to that point, 
that was when the agencies, the EPA and the Corps of Engineers 
backtracked from what they had originally agreed upon.
    So before we even had our hearing with the Coastal 
Commission and their decision, those agencies were already 
backtracking and were already asking for more studies and the 
reopening of those studies and wanted to do more work, despite 
the fact that we had spent 10 years and $20 million examining 
every alternative that they had put on the table.
    Mr. DeFazio. Right. But I think maybe--I'm not sure it's a 
solvable problem. And, I mean, when you start out being opposed 
by the Marine Corps and you're going to run into problems with 
the California Coastal Commission, I'm not sure. I agree that 
there are often inordinate delays and we need to deal with 
that. We're not going to do away with NEPA, but we need to look 
at how States, and California is a State that has taken 
jurisdiction.
    And you've got CEQA, and I am fully willing to accept the 
equivalence of CEQA, because in many cases it seems to exceed 
NEPA. But I am not sure whether this project is the best 
example of these kind of problems, but I am willing to work 
with anybody who has ideas on how we can obviate unnecessary 
delays in the future.
    Thank you, Mr. Chairman.
    Mr. Duncan. Well, I don't know. I hope we don't get any 
worse examples.
    Mr. Farenthold.
    Mr. Farenthold. Thank you very much, Mr. Chairman.
    When Mr. Mendez spoke and answered Mr. Southerland's 
question, if he were king for a day what would he do, and it 
would be basically get everybody in a room to decide what it 
is, rather than government by memo.
    I know in my experience working in the private sector, once 
you got beyond about five letters or memos, it was time to sit 
down or you weren't getting anywhere. I would appreciate just a 
brief response from a couple of the other panel members on 
whether or not they think this would solve that or not.
    Mr. Kempton. Mr. Chairman, if I work through their day, the 
one in direct response to Mr. Southerland's question relative 
to what is the major impediment, I think I can say it in a 
word. It's ``trust.'' And, if we could be more trusting of our 
partners in this effort, both with the environmental groups--
both with the regulatory agencies with the implementing 
agencies--if we had performed our responsibility in a way that 
developed our credibility to a point where we could achieve 
trust in the process, I think we would have gone a long way to 
correcting that cultural issue that we have been talking about.
    And, you know, we want to be very careful and make sure we 
are providing some specific recommendations to the Subcommittee 
on how you can approach this problem, but it really does 
involve a cultural change. And I'll site, just briefly, the 
example of the NEPA delegation in California. I can tell you 
when we first implemented that process and when our legislature 
did in fact agree to forego a sovereign immunity in the case of 
transportation projects.
    There was a great deal of reluctance--not from the 
leadership of the Federal Highway Administration, but from some 
of the staff people, because they had grown up in a culture 
which was looking very specifically at how we were doing 
business. Now, I will tell you, and in response to Ms. 
Napolitano's question, we've had that process in place now for 
three and a half years, and you've heard the results. And the 
response from the Federal Highway Administration has been very 
positive, and I think we have gone a long way in this process 
to developing that credibility leading to trust.
    Mr. Farenthold. All right. Now in the written testimony or 
background material I was provided, there was a document from 
the Texas Department of Transportation, Texas being my State. 
That's the first one I read, but, you know, they list the 
amount of time it takes to get through some of these Federal 
agencies and Federal processes, signing up to six years dealing 
with Fish and Wildlife Service, Austin office. I mean that just 
seems insane.
    One of the things that I learned growing up is a promise 
isn't a promise unless it's got a deadline and maybe a review 
isn't a review unless it's got a deadline. And when it gets 
out, would anyone on the panel like to comment about the 
possibility of looking at some of these laws and regulations 
requiring reviews by various agencies in saying, all right. 
You've got `x' amount of time, and if you haven't come up with 
it then, sorry.
    Mr. Margro. I'd like to comment. I believe that's a very 
excellent idea. There are in some cases Fish and Wildlife. They 
have 135 days to give you a biological opinion, and in our case 
it took over three years after there was a preliminary 
determination that had already been made that there was No 
Jeopardy.
    There are those issues. The same thing with EPA and Corps 
of Engineers. There's no time limit set. You have to continue 
to do the study and to do the analyses that are put on the 
table, if you ever have any hope of being successful.
    Mr. Farenthold. Go ahead.
    Mr. Replogle. Yeah. I would say that time limits can be 
workable, but only if the agencies have the resources needed to 
meet those time limits. And at a time when, for example, EPA is 
being asked to take a 36 percent budget hit in the remainder of 
this fiscal year, their capacity to deliver on timely project 
reviews is going to be handicapped by those budget cuts.
    Across all of the States today, we have massive cutbacks in 
the resource agency budgets, which impairs their ability to go 
beyond what is their core regulatory missions to get involved 
in the planning process early, which can often help forestall 
the kinds of delays that alarm everyone here in the room. And 
so I think we have to look at how these pieces connect to each 
other, and budget decisions do impact the ability of agencies 
to deliver on time.
    Mr. Farenthold. Even with a limited budget, however, or 
maybe a limited budget is a good thing. Then it forces an 
agency to set priorities about what they are going to want to 
deal with. So I just leave that, and I see I'm out of time. So 
thank you all very much.
    Mr. Duncan. Thank you very much.
    Ms. Napolitano.
    Mr. Kempton. Mr. Chairman?
    Mr. Duncan. Oh, yes?
    Mr. Kempton. I just wanted to say that what you've 
suggested to the member from Texas is exactly what we're 
proposing in our Prompt Action provision, which would require a 
deadline and would require agencies to meet their 
responsibilities within a specific timeframe.
    Now, this issue of staffing is something that we have taken 
very seriously in California, and it is a problem. And I really 
recognized what Mr. Replogle is saying. The fact of the matter 
is in our case, in California, many times the State would 
provide the consultant support or a staff person to actually 
aid the regulatory agency in conducting the review.
    That did help speed activity along, and so that is one step 
that there should be a great amount of flexibility on.
    Mr. Duncan. Thank you.
    Ms. Napolitano.
    Mrs. Napolitano. Thank you. And Mr. Kempton, if you 
wouldn't mind, the question that I had posed to Mr. Mendez and 
an answer in regard to staff training input internally, I know 
that a lot of things have been done on the outreach. But, what 
about internally?
    Mr. Kempton. Ms. Napolitano, I think you hit the nail on 
the head with respect to we have talked in general about this 
cultural change that needs to occur, and it really does need to 
be a separate focus. So I liken it to construction management.
    You can do construction management where you're being the 
construction inspector where you're down there telling the 
contractor you don't like the mix of concrete or the width of 
the rebar; or, you can be assuring quality assurance, which is 
sort of setting the standards and the frameworks.
    The Federal Government should be the quality assurance 
agency, and the State should be the quality control or the 
construction inspection piece of the equation; and that, I 
think, is the kind of internal educational process that needs 
to be pursued with a great deal of vigor.
    Mrs. Napolitano. Well, it goes back to what you pointed out 
in trust, because if you've been able to build up that 
relationship where you know that what you put on paper is 
actual fact that is being carried out, then there is that level 
of trust that you can begin to build on and work for.
    The problem is, sometimes, as you stated, there are budget 
cuts every single State. So how are we going to be able to deal 
with it? And it isn't budget cuts that were 10 years ago. We 
were flush 10 years ago. So what's happened between then and 
now? And what have we learned are we going to be able to do to 
ensure in the future we are utilizing that as a lesson to be 
learned so that we can move forward. And we are downsized, 
already, and there are going to be more. How do we work 
together on that?
    Gentleman? Anybody?
    Mr. Replogle. There is one key thing that could be done--to 
set aside a portion of the Federal Transportation dollars that 
go to States and metropolitan areas to help ensure that the 
resource agencies have the funding to be involved in the 
planning process, just as funding is set aside for State DOTs 
for their planning process and set aside for metropolitan 
planning organizations for their planning process--have a 
similar set-aside for resource agencies. And then everybody's 
at the table; everybody's in the room and the job can get done.
    Mr. Buffa. And through the chair, Mrs. Napolitano.
    When you see some of the specifics that we'll bring forward 
to you shortly in terms of what we're proposing for the process 
in a very specific sense, there are a significant number of 
duplicative efforts, which will help in a time of shrinking 
resources that the agencies themselves, there is a much smarter 
way to do this that will require much less of an effort on 
their part, not more of an effort.
    Oftentimes, when people hear talk about the compression of 
timelines, they get worried that we're going to have to go into 
overtime and hire additional people, and whatever, if you just 
get smarter on how to do this, there will actually be less of a 
demand on their resources than more.
    Mrs. Napolitano. But isn't it something that, internally, 
you can identify? Because we wouldn't be able to tell you what 
those areas are that you can prevent that duplicity.
    Mr. Buffa. Absolutely, and that's exactly----
    Mrs. Napolitano. Which is going back to staff training 
input, being able to identify and be able to look at them and 
see if that is one of the areas that you may be able to move 
forward to. Answer, Mr. Margro.
    Mr. Margro. Yes, thank you, Congresswoman Napolitano.
    I would just say one additional thing. You know, there's 
this old expression that, you know, people pay attention to 
whatever the boss pays attention to, and I think one way to 
make sure that we're aware of how things are progressing with 
this whole environmental process and project delivery would be 
to make sure that there's transparency and reporting back to 
committees like yourselves, so that we can see examples of 
what's happening with these projects, how long are they taking, 
and call us. Call other people on these projects to come and 
testify why these are being held up, including the agencies 
themselves.
    Mrs. Napolitano. Thank you.
    Ms. Miller?
    Ms. Debra Miller. Yes, I'd just like to add a couple of 
additional thoughts. Included in our recommendations that's 
contained in the written testimony are some ideas that I think 
would be helpful in this area. And this could be done through 
law. One is having one lead agency at U.S. DOT. Sometimes the 
fact that there might be more than one modal administration 
involved, I think, can lead to delay. And if there were one 
lead agency was clearly the lead agency and was calling all the 
shots, things would move much quicker.
    I think picking up on something that Mr. Kempton said, what 
we'd like to see is moving to the place that States are doing 
the project by project level analysis, and the Federal Highway 
Administration is doing the oversight, moving towards more 
programmatic determinations. If we lay out a program of how we 
will handle certain things and get Federal Highway to sign-off 
on that, that as long as we're handling it according to our 
plan, then we can proceed.
    I think that that will speed things up too, so I think 
there are both cultural, attitudinal and leadership issues that 
could be helpful, and then I think that there are some real, 
practical, both changes in law and changes in procedures that 
could also go hand-in-hand in terms of making things speed up.
    Mrs. Napolitano. Thank you. And thank you, Mr. Chair.
    Mr. Duncan. Thank you.
    Mr. Hanna is next on our side.
    Mr. Hanna. Mr. Kempton. I found a few of your comments very 
insightful. It matches my 30 years in construction in terms of 
project delay.
    Your comments were fairly nuanced, but I thought very 
insightful, that micromanaging in the name of good project 
control, that document length has a measurement somehow of 
quality or purpose, focusing in place of advancing processing. 
But one that was particularly interesting to me, an erroneous 
belief that delay is evidence of diligence, also a failure to 
penalize delay and reward innovation at the Federal and State, 
local level.
    Those are fundamentally cultural, but they're also very 
human traits; and, my personal experience is that people do 
avoid risk and that bureaucracies--and it's not their fault, 
necessarily--avoid risk more than most. We always used to say 
that if you wanted to hold a project up ask a question. And I'm 
just curious if that's kind of the general experience of the 
panel, and how do you get around a thing like that?
    Because it is deeply nuanced. It is cultural, and it also 
is the natural human element to avoid risk, since basically 
their checks are the same and their rewards are down. So how do 
you unwind a thing like that? And, furthermore, how much do you 
think that adds to the delay, generally, of these processes. 
Your Orange County Transit Authority seems to think quite a 
bit.
    Mr. Kempton. Well, they do if I can be very candid, Mr. 
Hanna. The fact of the matter is if you look at the history of 
the project delivery process--and California is an example that 
is representative of the country, I think--in our own CEQA 
process, the California Environmental Quality Act, every time 
the State is sued on a document, that document grows in size, 
not just for that project, but for every other project that 
comes after it.
    There is an additional step that's taken to avoid that 
legal challenge that was made; and, so, you take a process that 
may have resulted in the document this thick, and now it's a 
process that results in a document that is that thick. And, as 
I said in my comments, I don't think the size of the document 
relates necessarily to the quality of it.
    So I am sorry that I don't have another solution, then, to 
say it is a cultural or an attitudinal issue that needs to be 
developed, but leadership can, and the Congress and the 
administration can certainly set a tone for accelerating 
project delivery. That's the outcome that we are looking for, 
is getting projects to construction sooner.
    That will take some time to move down in the process, but 
it can work. When I was at Caltrans, I focused on being good 
partners. In my judgment, the Department of Transportation when 
I became director was not a good partner. Everybody looked 
inward and not outward at our customers. And so I spent five 
years trying to change that culture, and I think I made some 
progress in that regard, but it is a leadership requirement.
    We are going to have to have, I think, the Congress and the 
administration saying to the Federal Highway Administration and 
to the States it's OK to focus on accelerated output.
    Mr. Hanna. But, implicit in that isn't there the idea that 
you have to add not just accountability, but an allowance for 
risk.
    Mr. Kempton. I agree with that, and I think with respect to 
the comments that Mr. DeFazio was making, I think that there 
are some ways. And I hate to say this and my attorneys would 
probably be very upset with me, but maybe there's a form of 
design immunity that comes with making decisions within a 
reasonable framework in terms of flexibility and design 
standards, which can result in shorter processing times.
    Mr. Hanna. Thank you.
    Mr. Duncan. All right. Thank you very much.
    Mr. Barletta is next.
    Mr. Barletta. Thank you, Mr. Chairman.
    And my question will be to Mr. Kempton. I have the pleasure 
of hosting a listening session in my district this Friday as 
part of this committee's drafting of a new, long-term Surface 
Transportation Reauthorization bill. I want to thank Chairman 
Mica for including my district in his series of meetings 
behind, held across the Nation, looking at many of the same 
issues we were discussing here today; namely, improving 
performance and cutting government red tape.
    One of the attendees at this Friday's listening post in my 
district is Thomas Lawson. He is the co-founder of an 
engineering design firm that designs, builds roads and bridges 
in Pennsylvania. He recently told me that during the flood of 
2006 an emergency bridge project that normally would take up to 
four years to complete from design to completion, because of 
the streamlining of regulations from all agencies involved they 
were able to design, build and complete the bridge in four 
months.
    Now, I know that the time from when a contract is awarded, 
a bid is awarded to the notice to proceed, that in itself could 
take a few months. My question is that streamlining project 
delivery seems to be an ongoing topic for prior and current 
reauthorization bills. What is different about today's climate 
versus previous authorization bills that indicates that we 
should make some substantial movement in accelerating project 
delivery?
    Mr. Kempton. I think our focus has been on jobs and the 
economy. When we went through the American Recovery and 
Reinvestment Act process, we had a large sum of money that was 
made available to the States and to local agencies for funding 
projects, many of which had not gone through the Federal 
process.
    So in order to spend those dollars quickly, we had to go 
back and pick up the process to qualify those projects for 
Federal funding, and we found that that process was onerous and 
took a considerable amount of time. I referenced that on my 
testimony relative to amendments to the transportation 
improvement programs, the Federal TIPs from a conformity 
perspective.
    Those are the kinds of things that can be shortened. But, 
the environment today, Mr. Barletta, that you've referenced, is 
the economy. We've got projects that if we can get them out to 
bid, we are achieving 25 to 40 percent savings on the 
engineer's estimates for those projects. We have a very hungry 
construction industry out there, and we want to get everything 
out but the kitchen sink so that we can take advantage of that 
environment.
    And I think that that along with the developing notion of 
regulatory reform that's taking place, both within the 
administration and the Congress, is a very positive thing. And 
I know Director Buffa wanted to add to that as well.
    Mr. Buffa. Yeah. Through the chair. Mr. Barletta, you used 
the example of a flood in your district. Two examples we quite 
often use are the 1994 earthquake which flattened huge portions 
of the I-10 freeway through Los Angeles that connects downtown 
Los Angeles to the coast.
    Just much more recently, a horrific fire on the Bay Bridge 
while Mr. Kempton was in the close of his tenure in Caltrans, 
which he turned around--not in a matter of months, but 
literally a number of days. That bridge is critical to the 
circulation of the entire bay area. What we're trying to say is 
those were natural disasters. We are in an economic disaster.
    All of you spend a lot of your time trying to figure out 
how to create jobs. If you'll accept the economic crisis in the 
same terms as a natural disaster, those same efforts that 
expediting mean that you hold, as Members of this Committee, 
you hold hundreds of thousands of jobs in your hand. You just 
have to open your hand. They're there. Those of us who have 
been policymakers in transportation for a long time, I've been 
at this game since the mid-1980s.
    The position we are typically in is coming back here 
begging for money. Give us money for our project. We are not 
begging for money. We are talking about projects that are paid 
for. They are stuck in processing. If you will free that 
process up and you have to leave all of the environmental 
safeguards in place, if you'll free that process up and make it 
smarter, there will be an explosion of jobs nationally.
    You hold that many jobs in your power, so that's the point 
we are trying to make; whether you want to make it analogous to 
the 1994 earthquake in our area or the flood in your district, 
the economic crisis is what we're asking to substitute for the 
motivation to finally, finally make this happen in a big way.
    Mr. Barletta. Thank you.
    Mr. Duncan. Thank you very much.
    Mr. Southerland is next on our side.
    Mr. Southerland. Thank you, Mr. Chairman.
    You know, I find a really screwed up system when given more 
money just becomes a really well-funded, screwed up system. And 
I find that the American people have very little patience with 
better funding for really screwed up systems.
    As a small business owner and one who ran and has never 
been a member of elected office before, I am telling you 
there's a great impatience. OK? And oftentimes, and I have 
heard members from the panel today talking about we need more 
money, and that bothers me.
    You know, when you talk about 13 years to complete a 
project and you want more money, OK, I find that much of 
government, they've got to prioritize. OK? You've got to 
distinguish the same thing the American people are having to 
distinguish.
    The difference between what is good and what is best, and 
what I am seeing in its amazing site to be exposed to for the 
first time, I am seeing a whole lot of activity, but not nearly 
enough productivity. And I think that the American people want 
to see results before they sign off on billions upon billions 
upon billions of more dollars so that we can perpetuate a 
really screwed up system into a really, really, really screwed 
up system.
    So there've been some wonderful ideas here today. I love 
the idea of time. Put a time--if you've got an objection to a 
project. That's probably the single, greatest idea that I've 
heard today. You know, if I don't put my college children on a 
budget and say you just come to me whenever you need another 
$50, well, they're going to keep coming.
    If I tell them that $50 has got to last you for, you know, 
a week, well, they know what the rules are. It really comes 
down to leadership, though. And I've heard Mr. Kempton. You've 
mentioned leadership, good leadership, servant leadership 
perpetuates trust. Great leadership also has the element of 
communication. OK. Well defined projects; you can't get your 
hands in every project. And, yet, at all levels of government, 
the American people feel like the government is involved in 
every part of our lives.
    So, I asked earlier the question, you know, if you were 
king for a day. I would say Mrs. Miller, I would like to ask 
you, if you don't mind, because you represent a State. OK? And 
Mr. Mendez didn't want to speak for you, so I ask you to speak 
for yourself. If you were queen for the day, what would you get 
from the Federal Government that would allow the States to not 
have their future 15 years down the road, to be able to shrink 
that timeline.
    What is the greatest impediment that you see right now for 
project delivery time?
    Ms. Debra Miller. I think the issue that I would put on the 
table is this issue of allowing programmatic plans so that 
we're not doing project by project reviews, and that States are 
doing the project by project analysis. And the Federal Highway 
Administration or the Federal Government, whichever resource 
agency it might be, would be doing the oversight of what we're 
doing.
    Mr. Southerland. I will say I live in Panama City, Florida, 
and over the last 10 years we've been affected by a couple 
disasters that have made some front page news: the hurricanes, 
obviously, and the most recent, Deepwater Horizon. And I will 
tell you in the recovery--and somebody that lives on the beach, 
OK--I would concur what you just said. All right?
    If the Federal Government would have come in and provided 
assistance, this is our town. We know every nook, every cranny. 
We know the people in need. We need support, and so I would 
love to see us going forward, but the Federal Government 
realized that they have a part and they have to play.
    But the people on the ground, OK, the local citizens, the 
local communities, the States know far better what they need 
for their communities and their State. So I like hearing what 
you're saying. You've got some great ideas here. It needs to be 
a partnership, but they needed to be in more of an oversight 
and supporting role while the States themselves take the ball 
and run down the field.
    So thank you for your input, and I yield back.
    Mr. Chairman?
    Mr. Duncan. Thank you.
    Mr. Shuster.
    Mr. Shuster. Thank you, Mr. Chairman, and thank all of our 
witnesses for being here today.
    I would just like to make a comment on what Mr. Southerland 
said about putting a timeframe in place. You know, that makes a 
lot of sense. One of the things we have to do in legislation is 
to stop these groups from putting lawsuits one after the other 
and slow walking these things, because that's what I saw.
    A highway in my district, 60 miles, took 38 years to build, 
and it was mainly due to the--you know, first it was the 
Indiana bat. Then it was a fern. Then it was some pyrite we 
found, so it just takes forever to do this, and we've got to 
limit them on allowing them to go to court after court 
challenge after court challenge. So, but Mr. Southerland is 
absolutely right. If you put a time limit and the laws line up, 
I think we can get things done quicker.
    My question is concerning--it's very specific, because when 
we're talking about these things, I like to delve into very 
specific projects and try to get a sense of how the Federal 
programs slowed us down. The Anaheim regional transportation 
intermodal center, which is an important transit site for rail 
in downtown Anaheim, it's a cost of $184 million; and, of that, 
the Federal Government is providing $11 million, which is to my 
calculation about six or seven percent.
    How are those Federal funds going to affect the project 
from moving forward, slow it down? Speed it up, I doubt, but if 
that's the case, let me know.
    Mr. Kempton. Thank you, Mr. Shuster.
    Frankly, any time there's a penny of Federal money in 
there, you're subject to the Federal process and we anticipated 
that, certainly wanting to maximize the amount of available 
funding coming to that project. We are looking at, 
programmatically, for our local sales tax measure, a pretty 
significant shortfall going out into the future based on the 
decline of the economy that we've just experienced, and so we 
have to take advantage of every other dollar that might be out 
there.
    However, we have gone through that process. I am happy to 
say that we have completed the environmental process, and that 
project will be going to construction this spring. And so, but 
your point is very well made, and a State or a local agency has 
to really give careful consideration from a delivery 
perspective as to whether or not they want to involve the 
Federal Government.
    When there is a fiscal imperative that you need those 
Federal dollars, that's when you get caught in the dilemma, 
because the process does take longer when you have the Federal 
requirements. Now, we've been talking a lot about the 
environmental process, and from our perspective this is not 
just about the environmental process.
    It's really about some of the other processes that are in 
place administratively, regulatory and in some cases statutory. 
And we are trying to focus on some of the very obvious 
solutions to the problem, to move project delivery overall 
ahead faster, and that means jobs will be created sooner.
    Mr. Shuster. All right. And can you quantify that at all, 
how much more you had to spend, how you slowed it down from 
just this project? But also, can you quantify what it does 
economically or in employment? I don't know if anybody's come 
in there and sat down with you and made those.
    Mr. Kempton. I'm not sure that there's necessarily an 
increase in cost, other than the time-related cost, because 
process adds dollars to a project. So, for example, the NEPA 
delegation, which is taking a year or so off the environmental 
process for many projects in California, at a three or four 
percent inflation rate, you are saving a significant amount of 
dollars on a hundred-million-dollar project as an example; so 
getting it out sooner.
    And as I mentioned earlier, to the degree that we can get 
projects to work right now, we're taking advantage of a very 
good bid environment and we're helping stimulate the national 
economy by getting people back to work sooner.
    Mr. Shuster. Right. Well, thank you for the answer, and 
just real quick to both Secretary Miller and to you, Mr. 
Kempton, and your years at the Department of Transportation, 
California.
    I asked the question earlier about this review process. And 
in Pennsylvania, you get it. The engineers--they stamp it. And 
I'm told if that stamp should be good enough to allow things to 
go forward, unless of course it's maybe some multi-billion-
dollar where the State wants to just do a little followup, but 
in Kansas and in California what's the process there as far as 
projects and engineering, and their review?
    Mr. Kempton. I'll start, Mr. Shuster.
    California is, I think, very interested in what's going on 
in Pennsylvania. Your design standard flexibility program and 
practical design, I guess, is the name that we're calling that, 
has we think worked very effectively. And, again, I know that 
Caltrans, not to speak for them, is looking very carefully at 
that approach. It's been more selective or individually focused 
in terms of project by project attention. A program such as 
what Pennsylvania and other States are adopting is something 
that I think would have great application in California.
    Ms. Debra Miller. If this is responsive to your question, 
you know, one of the things, like many DOTs, we do in-house 
design, but we also do a great deal of design with outside 
consultants. And we've had to work, again, culturally, with our 
own design engineers, because, you know, my feeling is if we've 
hired a qualified engineering firm and they have stamped the 
plans, then our engineers don't have to review every single 
decision that was made by that design engineer.
    And I think we've made great progress, but I can tell you 
eight years ago they would have spent a great deal of time 
looking at every single calculation that was made; and, so, 
there is a tendency at every level, I think, for people to 
think I need to redo it, and we've tried to change that 
attitude in our department.
    Mr. Shuster. Thank you very much.
    Mr. Duncan. All right. I understand that Mr. Long and Ms. 
Herrera Beutler don't have any questions. Is that correct? Oh. 
All right. Go ahead, Mr. Long. All right. Go ahead.
    Mr. Long. Thank you, Mr. Chairman.
    I've got a question. I asked Mr. Margro first.
    You were talking about the delay of up to three years, and 
was that environmental delays?
    Mr. Margro. The three-year delay was waiting for the U.S. 
Fish and Wildlife Service to complete their biological opinion 
and give a report back on that. What happened was when the----
    Mr. Long. And it was supposed to take 145 days?
    Mr. Margro. 135 days.
    Mr. Long. OK. And what happened? I'm sorry I interrupted 
you.
    Mr. Margro. Oh, sure. What happened is they don't do their 
final determination until there's a selection of the least 
environmentally damaging, practicable alternative, which is 
made by the Corps of Engineers and agreed to with EPA. Once 
that happens, that triggers the formal consultation that Fish 
and Wildlife then goes ahead and does their evaluation. It's 
supposed to be completed in 135 days. In our case, it took a 
little bit over three years.
    Mr. Long. OK. I've dovetailed that end of the question for 
Mr. Buffa. You remind me of the attorney, Jerry Spence, when 
you say in our hands as he would do to the jury, you hold 
thousands of jobs; and, in this thousands of jobs, if I 
understood you right, you said the money is there for those 
projects. All you have to do is open that, but then they did 
not also say that we have to follow each environmental rule, or 
did I misunderstand that? And, if so, it doesn't work with your 
seat right there.
    Mr. Buffa. I'm sorry, Mr. Long, I didn't understand the 
very last thing you said. We have to follow what?
    Mr. Long. You have to follow--I'm from Missouri. It's 
probably my New York accent that's throwing you off.
    Mr. Buffa. That's OK.
    Mr. Long. But we have to follow the EPA rule. You say we've 
got the money for these projects. We're holding in our hands 
thousands of jobs, but yet we need to--we can expediate these. 
I'm trying to paraphrase what you said.
    Mr. Buffa. Sure.
    Mr. Long. But you said we can expediate these projects; 
however, we still need to follow the environmental rules. Is 
that correct? And, if so, how in the world are we going to do 
that with what Mr. Margro just went through?
    Mr. Buffa. That comment, Mr. Long was kind of dovetailing 
something that Mr. Klempton said, that when you see--and we 
hope that's very shortly--the specifics of what we're 
suggesting in this breaking down barriers plan, a lot of it is 
process related. It would be changes in the process that 
doesn't affect the environmental process. It would have made 
Tom's journey shorter and easier only because the whole process 
would get more efficient. And the best expression I've heard of 
this problem, we've met with the White House on three separate 
occasions. We'll be back there tomorrow on this program. 
They're quite interested.
    One of the gentlemen we met with early on, I could see the 
moment of realization in his eyes when his eyes popped open and 
he realized what we were talking about: process. There are 
hundreds of thousands of jobs held up nationally, just because 
of process. He said I don't think the American people would 
like to know that hundreds of thousands of jobs in this economy 
right now are being held up because of paperwork on somebody's 
desk.
    Mr. Long. I don't like hearing that either, so that's why I 
earlier said I didn't have any questions, but I've changed my 
tune.
    Mr. Buffa. And that's what we're talking about. If we are 
going to proposed changes and process that leave the 
environmental processing, the environmental examination, in 
place, you just do it smarter.
    Mr. Long. It sounds like you're dreaming in color to me.
    Mr. Buffa. Well, I've spent a lot of time dreaming.
    Mr. Long. So these projects not only are funded, they're 
ready to go, thousands of jobs in our hands. They've already 
cleared the environmental hurdles.
    Mr. Buffa. No, they're in the process----
    Mr. Long. Well, they go back to say they're really not in 
our hands. We can't open up our hands tomorrow and produce 
these jobs like you said earlier, correct?
    Mr. Buffa. If you put just one measure out of this whole 
hearing, if you enacted one measure, which is time limits and 
expiration dates.
    Mr. Long. That's what we're here for, and I appreciate it, 
and we will work towards that.
    Mr. Buffa. That, by far, in my humble opinion is the most 
concrete suggestion that came out of this discussion. But keep 
in mind again I've been at this a long time. You're tampering 
with the primal forces of nature with regulatory agencies when 
you suggest time limits.
    Mr. Long. That's where the dreaming in color part comes in, 
but as Mr. Buffa would say, if you've got all the jobs, let's 
get ready to rumble.
    And, Ms. Miller, real quickly, I apologize. In your 
testimony--I want to make sure I got the right question here. 
OK. Go to this one. In Kansas do all projects go through the 
Federal process, and if not are there any State or local ones, 
just go through a State process? And, if so, do you see a time 
or cost savings when you don't have to go through this Federal 
malaise?
    Ms. Debra Miller. Well, I'd have to say most of our 
projects go through something that's called a categorical 
exclusion, and we have a programmatic agreement with Federal 
Highway, so we make that determination on our own. And, you 
know, we end up we're a small rural State. We end up with just 
a handful of projects, typically, that go into environmental 
assessments or environmental impact statements.
    So the vast majority of our projects, they're moving 
forward. They're moving forward in meeting deadlines and 
timeframes. There's no question about that.
    Mr. Long. They're going through the Federal process, most 
of them, and on the State ones, you notice a big--is there 
anything you do on the State level that we could change on the 
Federal level, I guess. Is one of them tying into your projects
    Ms. Debra Miller. Well, if we follow the Federal process, 
that's what we use for environmental work. We follow the 
Federal process.
    Mr. Long. OK. OK. OK. I yield back, although I'm a minute 
over.
    Mr. Duncan. That's all right. Well, my goal is to try to 
complete these hearings in a couple of hours, and I see Mr. 
DeFazio has come back.
    Do you want to make closing comments?
    Mr. DeFazio. No, Mr. Chairman. I want to say I think we've 
got a good framework from this. We'll look forward to Mr. 
Kempton's report as being instructive. I think there are places 
where we should be streamlining the process. I was attempting 
to do that last year. Be happy to share what I thought might 
work, and then build with what you want to do on top of that. 
So I'm really pleased, and I think we got a lot of information 
in a short period of time. Appreciate your respect for 
everybody's time.
    Mr. Duncan. All right. Thank you very much.
    I think we've heard some very helpful and very informative 
testimony here today. I do think that we're going to need to do 
much, much more to penalize delays and reward or incentivize 
innovations or innovation, or companies that complete projects 
ahead of schedule.
    Finally, as a formality, I would ask unanimous consent that 
the record of today's hearing remain open until such time as 
our witnesses have provided answers to any questions that may 
be submitted to them in writing, and unanimous consent that 
during such time as the record remains open, additional 
comments offered by individuals or groups may be included in 
the record of today's hearing.
    That means, ladies and gentlemen, that all of you on the 
panel and anyone in the audience wishes to submit any 
additional opinions, suggestions, ideas or testimony can do so, 
and that will go in the formal record of this hearing. That 
will conclude this hearing.
    Thank you very much.
    [Whereupon, at 12:08 p.m., the subcommittee was adjourned.]
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