[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
SURFACE TRANSPORTATION INFRASTRUCTURE PROJECTS: CASE STUDIES OF THE
FEDERAL ENVIRONMENTAL REVIEW AND PERMITTING PROCESS
=======================================================================
(113-81)
HEARING
BEFORE THE
SUBCOMMITTEE ON
HIGHWAYS AND TRANSIT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 9, 2014
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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______
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
BILL SHUSTER, Pennsylvania, Chairman
DON YOUNG, Alaska NICK J. RAHALL, II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina ELEANOR HOLMES NORTON, District of
JOHN J. DUNCAN, Jr., Tennessee, Columbia
Vice Chair JERROLD NADLER, New York
JOHN L. MICA, Florida CORRINE BROWN, Florida
FRANK A. LoBIONDO, New Jersey EDDIE BERNICE JOHNSON, Texas
GARY G. MILLER, California ELIJAH E. CUMMINGS, Maryland
SAM GRAVES, Missouri RICK LARSEN, Washington
SHELLEY MOORE CAPITO, West Virginia MICHAEL E. CAPUANO, Massachusetts
CANDICE S. MILLER, Michigan TIMOTHY H. BISHOP, New York
DUNCAN HUNTER, California MICHAEL H. MICHAUD, Maine
ERIC A. ``RICK'' CRAWFORD, Arkansas GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania DANIEL LIPINSKI, Illinois
BLAKE FARENTHOLD, Texas TIMOTHY J. WALZ, Minnesota
LARRY BUCSHON, Indiana STEVE COHEN, Tennessee
BOB GIBBS, Ohio ALBIO SIRES, New Jersey
PATRICK MEEHAN, Pennsylvania DONNA F. EDWARDS, Maryland
RICHARD L. HANNA, New York JOHN GARAMENDI, California
DANIEL WEBSTER, Florida ANDREE CARSON, Indiana
STEVE SOUTHERLAND, II, Florida JANICE HAHN, California
JEFF DENHAM, California RICHARD M. NOLAN, Minnesota
REID J. RIBBLE, Wisconsin ANN KIRKPATRICK, Arizona
THOMAS MASSIE, Kentucky DINA TITUS, Nevada
STEVE DAINES, Montana SEAN PATRICK MALONEY, New York
TOM RICE, South Carolina ELIZABETH H. ESTY, Connecticut
MARKWAYNE MULLIN, Oklahoma LOIS FRANKEL, Florida
ROGER WILLIAMS, Texas CHERI BUSTOS, Illinois
MARK MEADOWS, North Carolina
SCOTT PERRY, Pennsylvania
RODNEY DAVIS, Illinois
MARK SANFORD, South Carolina
DAVID W. JOLLY, Florida
(ii)
Subcommittee on Highways and Transit
THOMAS E. PETRI, Wisconsin, Chairman
DON YOUNG, Alaska ELEANOR HOLMES NORTON, District of
HOWARD COBLE, North Carolina Columbia
JOHN J. DUNCAN, Jr., Tennessee PETER A. DeFAZIO, Oregon
JOHN L. MICA, Florida JERROLD NADLER, New York
FRANK A. LoBIONDO, New Jersey EDDIE BERNICE JOHNSON, Texas
GARY G. MILLER, California MICHAEL E. CAPUANO, Massachusetts
SAM GRAVES, Missouri MICHAEL H. MICHAUD, Maine
SHELLEY MOORE CAPITO, West Virginia GRACE F. NAPOLITANO, California
DUNCAN HUNTER, California TIMOTHY J. WALZ, Minnesota
ERIC A. ``RICK'' CRAWFORD, Arkansas STEVE COHEN, Tennessee
LOU BARLETTA, Pennsylvania ALBIO SIRES, New Jersey
BLAKE FARENTHOLD, Texas DONNA F. EDWARDS, Maryland
LARRY BUCSHON, Indiana JANICE HAHN, California
BOB GIBBS, Ohio RICHARD M. NOLAN, Minnesota
RICHARD L. HANNA, New York ANN KIRKPATRICK, Arizona
STEVE SOUTHERLAND, II, Florida DINA TITUS, Nevada
REID J. RIBBLE, Wisconsin, Vice SEAN PATRICK MALONEY, New York
Chair ELIZABETH H. ESTY, Connecticut
STEVE DAINES, Montana LOIS FRANKEL, Florida
TOM RICE, South Carolina CHERI BUSTOS, Illinois
MARKWAYNE MULLIN, Oklahoma NICK J. RAHALL, II, West Virginia
ROGER WILLIAMS, Texas (Ex Officio)
SCOTT PERRY, Pennsylvania
RODNEY DAVIS, Illinois
BILL SHUSTER, Pennsylvania (Ex
Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Hon. Carlos M. Braceras, P.E., executive director, Utah
Department of Transportation................................... 2
Hon. Lynn Peterson, secretary, Washington State Department of
Transportation................................................. 2
Carlos Swonke, director, Environmental Affairs Division, Texas
Department of Transportation................................... 2
Michael Kraman, acting chief executive officer, Transportation
Corridor Agencies.............................................. 2
PREPARED STATEMENT SUBMITTED BY MEMBER OF CONGRESS
Hon. Eleanor Holmes Norton, of the District of Columbia.......... 33
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Hon. Carlos M. Braceras, P.E..................................... 37
Hon. Lynn Peterson............................................... 41
Carlos Swonke.................................................... 49
Michael Kraman................................................... 53
SUBMISSION FOR THE RECORD
Lee G. Gibson, AICP, executive director, Regional Transportation
Commission of Washoe County, Nevada, written testimony......... 62
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
SURFACE TRANSPORTATION INFRASTRUCTURE PROJECTS: CASE STUDIES OF THE
FEDERAL ENVIRONMENTAL REVIEW AND PERMITTING PROCESS
----------
TUESDAY, SEPTEMBER 9, 2014
House of Representatives,
Subcommittee on Highways and Transit,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m., in
Room 2167, Rayburn House Office Building, Hon. Thomas E. Petri
(Chairman of the subcommittee) presiding.
Mr. Petri. The subcommittee will come to order.
Good morning. And welcome to this hearing before the
Subcommittee on Highways and Transit.
We spent the summer working on the surface transportation
reauthorization bill and the HTF Act, which provides funding
certainty and extends MAP-21 through the end of next May.
However, as we continue working on the surface
transportation reauthorization bill, it is important that we
hear from practitioners and project sponsors in order to gain
their wisdom and insight.
Today's hearing focuses on the Federal environmental review
and permitting processes for transportation projects. As
project sponsors deliver Federal surface transportation
projects, they must meet complex requirements at the Federal
and State levels during every stage of the process. The
environmental review and permitting processes are major
components of project delivery.
The Federal level, the National Environmental Policy Act of
1969, or NEPA, provides a framework for environmental planning
and decisionmaking.
NEPA requires the consideration of potential impacts of a
project on the social and natural environment and, if
necessary, includes steps to limit or mitigate those impacts.
NEPA also identifies any Federal environmental permits that the
project must secure in order to proceed.
While a necessary and important part of the project
delivery process, the environmental review and permitting may
involve significant time, money and staff resources, especially
for complex projects. MAP-21 made significant reforms to the
project delivery process which maintained our strong
environmental protections while improving the efficiency and
effectiveness of the process.
I know that many of our witnesses today plan to discuss
these reforms and how they have benefited from them. Staff
informed me this morning that the U.S. Department of
Transportation plans to publish a notice in the Federal
Register tomorrow on the MAP-21 provision that links planning
activities to the environmental review process. I welcome this
effort and look forward to the continued implementation of all
of the MAP-21 provisions.
Yet, the complexity of this issue necessitates our
continued examination of the environmental review and
permitting process. As the committee continues its work on
drafting the next surface transportation reauthorization bill,
we want to consider how the process is working well and what
ways it can work better.
We have an excellent panel of witnesses before us today,
and I am confident that they will be able to help us understand
the important issues by discussing how the process has worked
for specific projects in their State.
And before I introduce--or I will introduce the witnesses.
Our first witness is Carlos Braceras. He is executive
director of the Utah Department of Transportation.
Welcome, sir.
And next we will hear from Lynn Peterson, secretary of the
Washington State Department of Transportation, who is
developing the Cascadia Project and a whole variety of other
things out in the northwest part of the United States and
southwest part of Canada.
And we also have Carlos Swonke, who is director of the
Environmental Affairs Division of the Texas Department of
Transportation.
Finally, we have Michael Kraman, acting CEO of the
Transportation Corridor Agencies in southern California.
I thank you for being here. I thank you and those in your
organizations who worked on your testimony. And we invite you
to summarize that as best you can in approximately 5 minutes.
And my partner, Eleanor Holmes Norton, is on her way and we
may interrupt when she arrives. I am sure she will have an
opening statement.
And we will begin with Mr. Braceras.
TESTIMONY OF HON. CARLOS M. BRACERAS, P.E., EXECUTIVE DIRECTOR,
UTAH DEPARTMENT OF TRANSPORTATION; HON. LYNN PETERSON,
SECRETARY, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION;
CARLOS SWONKE, DIRECTOR, ENVIRONMENTAL AFFAIRS DIVISION, TEXAS
DEPARTMENT OF TRANSPORTATION; AND MICHAEL KRAMAN, ACTING CHIEF
EXECUTIVE OFFICER, TRANSPORTATION CORRIDOR AGENCIES
Mr. Braceras. Thank you very much. Good morning.
Mr. Petri. Turn your microphone on.
Mr. Braceras. Thank you. And good morning.
Chairman Petri, Ranking Member Norton and members of the
subcommittee, thank you for the opportunity to provide input on
the Federal environmental review and permitting process.
My name is Carlos Braceras. I am the executive director of
the Utah Department of Transportation. As a registered
professional engineer and a geologist, I have been with the
Utah DOT since 1986, including service as the deputy director,
chief geotechnical engineer and chief value engineer.
I also served as the team leader through the environmental
review and permitting process for the Legacy Parkway Project, a
new freeway north of Salt Lake City that created a shared
solution that addressed multimodal transportation, community
and environmental needs. In addition, I am currently chair of
the AASHTO Center for Environmental Excellence.
For more than 15 years, the Utah DOT has actively
institutionalized context-sensitive solutions in all phases of
our work. As the executive director, I have established
integrated transportation as a Department emphasis area to
ensure we provide Utahns with balanced transportation options
by actively considering how best to meet the transportation
needs of transit users, bicyclists, pedestrians, in addition to
automobile users and freight shippers.
At the Utah DOT, all aspects of decisionmaking are driven
by a set of strategic goals and strong performance management.
We know this approach yields better outcomes for the public's
investment. We were pleased that, as part of MAP-21, Congress
embraced the Federal transition to a performance- and outcome-
based program.
To meet the Nation's transportation goals, we need to
remove the obstacles that inhibit our ability to deliver
projects that achieve these goals, including obstacles to
project delivery.
While the Utah DOT continues to assertively innovate and
streamline project delivery, we do not seek to truncate
environmental review. We need to stop thinking of NEPA as an
inconvenient process to get through, but think of it as a
decision tool that brings interested citizens to actively
participate in the process. A properly administered process
yields better results.
However, too often the silo mentality interferes with that
process. Each agency has its own goals and missions which
fosters exclusive focus on that agency's goals. Instead,
Federal agencies need to understand and support their sister
agency missions and goals. We can meet the Corps of Engineers'
goal to protect the environment while still meeting the Federal
Highway Administration's goal to improve mobility.
The Provo Westside Connector Project in Utah was, in my
view, a victim of silo mentality. The project provides a new
direct link to the Provo Airport and supports local land use
planning. However, the project became stuck in the permitting
and environmental review process.
Eventually, the project was selected by the White House as
one of the 14 projects included in the Federal Infrastructure
Projects Permitting Dashboard. While a need for increased
coordination is often cited as the reason for inclusion on the
Dashboard, in reality, a fundamental disagreement with Federal
resource agencies on the need for the project was the cause for
the impasse.
Resource agencies were dug in, protecting agency goals. The
Dashboard process provided the link needed to nudge
participants to find a solution. But it did come with a price:
A permitting requirement for increased mitigation associated
with indirect impacts and an unfortunate erosion of
relationships with local regulatory agencies.
Despite that price, the larger goal with the Dashboard was
achieved. The project secured the needed permits and
environmental clearances and proceeded to construction funded
primarily with State dollars.
The success of our Nation is measured when progress is made
towards all agency goals, not just individual agency goals.
When that expectation becomes the norm, I am confident we will
see better outcomes for transportation, communities and the
environment.
The Dashboard process provided a framework for agencies to
find a systemic solution that met a variety of agency goals,
enabling the project to move forward. I encourage the
subcommittee to ensure we continue making progress towards our
Nation's transportation goals, including more efficient project
delivery.
Thank you.
Mr. Petri. Thank you.
Secretary Peterson.
Ms. Peterson. Good morning. Thank you, Chairman Petri, and
thank you, Ranking Member Norton, for inviting me to
participate in this morning's meeting.
I came to WSDOT about 18 months ago with a diverse
transportation experience, having now worked at two State DOTs,
for an MPO, a transit agency in the private sector and as a
local city- and county-elected official.
I have three points to make today.
One, NEPA is not broken. Small changes to NEPA have been
extremely helpful, but the single most important thing to take
away today is that NEPA is not broken. It allows us to get
better outcomes by looking at all potential solutions in an
open, public arena.
Washington State legislative audits have revealed that NEPA
and our State equivalent, SEPA, are not the most common project
factors for delay. A January 2014 State legislative report, in
fact, found that environmental review increases public
acceptance and leads to improved efficiency in overall project
design and is not a significant driver of project cost.
Two, NEPA allows for complex conversations in a complex
world. All DOTs are weaving our way around and through complex
urban and rural environments. Each specific context has a
unique problem and needs unique solutions. There is no way
around having these difficult conversations, and best practices
for planning techniques used by different States should be
shared so that all of the NEPA conversations that we have are
well worth everyone's time and resources.
When we look further into these complex problems, they are
usually not fully defined prior to starting NEPA. And the
necessary consensus building does take time. NEPA requires a
commitment to real collaboration.
States should be held accountable to conducting their
business and making decisions that benefit a diverse set of
users and markets, which means we have a responsibility to make
sure that all voices are heard as we go through these very
complex decisionmaking processes. And the design should reflect
those who are in the room and those who are not in the room in
the end.
Other techniques applied prior to NEPA can help, including
alternative analysis using multimodal scenario planning,
including land use and transportation system level of analysis;
least-cost planning, similar to what the utilities have used;
and practical design.
Using these approaches, WSDOT has engaged local
stakeholders at the earliest stages to ensure their input is
included at the right stage of the design. It also focuses our
efforts on more cost-effective solutions.
Lastly, FHWA has really made good changes to be able to
allow for flexibility. Please keep in mind that the vast
majority of WSDOT's work--94 percent, in fact--is excluded from
NEPA through categorical exclusions. Only 2 or 3 percent of our
projects require an environmental impact statement.
We have had programmatic agreements in place since the
1990s that allow WSDOT to sign off in very simple categorical
exclusions on behalf of FHWA. We appreciate the expanded list
of activities for programmatic agreements that Congress
authorized in MAP-21.
In February of last year, WSDOT and FHWA signed an updated
agreement and we became one of the first States to be able to
comply completely with the MAP-21 requirements. With this
insight, we hope to find quick improvements we can do today
while establishing clear purposes and need and alternatives for
NEPA analysis.
In conclusion, I would be remiss if I didn't take this
opportunity to thank you for your recent efforts to pass a
short-term patch for the Highway Trust Fund. We encourage you
to act before the May 2015 deadline to provide stable funding,
and we believe that there is a Federal role in transportation
funding in the future.
Thank you for the opportunity to share Washington's
experience with the Federal environmental review process.
Mr. Petri. Thank you.
Director Swonke.
Mr. Swonke. Thank you. And good morning. Again, my name is
Carlos Swonke. I am director of TXDOT's Environmental Affairs
Division.
The Texas Department of Transportation appreciates the
opportunity to provide testimony to the subcommittee meeting
here today and to share our experiences with the Federal
environmental review and permitting process.
To begin with, TXDOT would like to thank the committee and
staff for its work on MAP-21. Since its passage, TXDOT has
worked diligently to implement many of the streamlining
provisions of MAP-21 and looks forward to the provisions still
undergoing rulemaking by FHWA.
Streamlining opportunities, even small ones, can have far-
reaching benefits to TXDOT. As you can imagine, TXDOT's
environmental program is a large one. Total dollar amount of
construction projects that TXDOT awarded last year approached
$6 billion.
Another measure of the program volume is the number of
TXDOT actions that underwent environmental review and approval.
Last year, there were 1,796 environmental approvals for TXDOT
projects. To put that in perspective, the Bureau of Land
Management nationwide had 1,091 NEPA approvals last year.
Of the TXDOT environmental approvals, 98 percent were with
categorical exclusion determinations. As I am sure you are
aware, the categorical exclusion is the NEPA tool intended to
provide expedited review and approval for minor routine
projects.
The benefits of the categorical exclusion have not always
materialized for TXDOT. Up until recently, a certain number of
TXDOT categorical exclusions--about 40 to 60 a year--were
prepared as documents that would include a full NEPA analysis.
These documents could reach a length of 100 pages or more. Of
particular concern was that it would take, on average, over a
year to get these documents reviewed and approved.
We have since addressed this issue with meaningful results,
and it is here where I would like to jump to our implementation
of the MAP-21 streamlining provisions.
Although it was conceived in earlier legislation, the
provision in MAP-21 relating to States assuming the
responsibility of categorical exclusion determinations prompted
TXDOT to pursue this opportunity. TXDOT received this authority
last December. Having responsibility for categorical exclusions
allows TXDOT to not only expedite the decisionmaking, but also
retool our program.
In this transition, we have realized efficiencies in two
areas.
First, TXDOT eliminated categorical exclusion documents
that looked like a full NEPA analysis by going to checklists.
Today we no longer produce 100-plus-page categorical exclusion
documents and, instead, have a 2-page checklist, sometimes
supplemented by technical reports. Our review time for these
documents has been reduced from over a year to less than 45
days.
The second efficiency has been by eliminating the Federal
review of the categorical exclusions because TXDOT now has this
authority. One measure of this efficiency is that we have saved
a minimum of 30 days of certain types of reviews--CE reviews.
Here is an example of the savings: About 1,000 projects on
the TXDOT 4-year plan are a type of categorical exclusion that
would have had 30 days of minimum review by FHWA. Doing the
math here, this would have amounted to 82 years of cumulative
waiting time. Today, under NEPA assignment for CEs, TXDOT is
now required to wait the minimum 30 days.
Another streamlining provision of MAP-21 being utilized by
TXDOT is the new categorical exclusion for projects within the
operational right-of-way. Since this new categorical exclusion
was issued through rulemaking earlier this year, TXDOT has used
it on 627 project approvals. It has been a timesaver and a
moneysaver.
Here is an example: A few years ago, there was a project in
Houston to widen an existing four-lane road to a six-lane road.
No additional right-of-way was needed for the widening. At the
time, a full NEPA analysis was needed and an environmental
assessment was prepared. There were no unusual circumstances
about the project. There was no public opposition to the
project.
The environmental assessment took 3 years for review and
approval. The cost to prepare the environmental assessment was
$100,000, and that was borne by the city of Houston. Today that
project could be approved with a categorical exclusion in a
fraction of that time and at a fraction of that cost.
TXDOT is currently pursuing full NEPA assignment beyond
categorical exclusions, to include environmental assessments
and environmental impact statements. We have spent a year
preparing our program for the responsibility and preparing the
required application to FHWA. We submitted the application this
past April. It was approved.
Now we are working on the required memorandum of
understanding between TXDOT and FHWA. We began negotiating this
MOU at the end of last year. The status of the MOU today is
that we are still in discussion on two remaining points of
contention, but as of late yesterday, we have gotten positive
news on these issues. It is possible that we may be able to
work out these issues in the next few days.
Beyond NEPA, we still run into delays related to other
regulatory procedures. Among these issues, there are the Clean
Water Act, Endangered Species Act, Clean Air Act, and
environmental justice issues. We understand that sometimes
projects are just complicated, but the added procedures of
other regulations can require substantial time and effort to
meet compliance requirements.
I would like to conclude by saying that TXDOT is very
appreciative of the NEPA tools that have been provided by
Congress, FHWA, and the Council on Environmental Quality. These
tools, combined with proper planning, good judgment and
sufficient resources, will allow us to be more effective as we
guide our projects through the environmental review process.
Thank you. And I look forward to answering any questions.
Mr. Petri. Thank you.
Mr. Kraman.
Mr. Kraman. Good morning, Mr. Chairman, members of the
committee. Again, my name is Mike Kraman, acting chief
executive officer of the Transportation Corridor Agencies.
In 1986, the California State Legislature formed the TCA as
a joint powers authority to plan, design, finance and construct
a toll road network as part of the State highway system in
Orange County, California.
Construction of these roads is being accomplished without
the use of taxpayer dollars. TCA collects tolls for the purpose
of repaying the bonds issued to finance the roads. With more
than 250,000 customers per day, the toll roads generate over
$220 million in annual toll revenue.
Additionally, TCA has investigated nearly $225 million in
environmental programs to restore and preserve over 2,000 acres
of open-space habitat.
Now fast-forward to where we are today. We successfully
constructed 51 miles during our initial 12 years, but we have
spent the last 20 years trying to complete the final 16 miles.
During this period, TCA embraced policies introduced under
ISTEA and TEA-21, including the major investment study process
and the NEPA/404 collaborative process.
The need to complete the toll road network was reaffirmed
in the South Orange County major investment study.
For the project's NEPA process, TCA formed a NEPA/404
collaborative. The collaborative brought together State and
Federal agencies to address issues regarding environmental
impacts in a coordinated fashion. The collaborative spent
nearly 10 years reviewing alternatives and unanimously agreed
on a preferred alternative.
The next step was for TCA to obtain a consistency
determination under the Coastal Zone Management Act. When TCA
applied for this consistency determination, project opponents
objected to the project.
At this first hint of controversy, Federal agency members
of the collaborative, with the exception of the Federal Highway
Administration, abandoned the unanimous selection of the
project's preferred alternative, asserting the need for
additional environmental studies.
The Corps of Engineers, EPA, National Marine Fisheries and
Fish and Wildlife all submitted comments that criticized the
preferred alternative previously agreed to by these same
agencies.
The California Coastal Commission sided with project
opponents and denied TCA's request for consistency
determination. U.S. Department of Commerce affirmed the
decision. At that point, TCA reevaluated options for the road.
After 3 years of public outreach, TCA proceeded with a
shorter 5.5-mile project that is wholly outside of the coastal
zone, but still serves a critical role in providing congestion
relief.
Despite the fact that this project, which we call the
Tesoro Extension, has negligible impacts, Federal and State
agencies are delaying their approvals because of pressure from
the same group of opponents who objected to the original
project.
As an example, to comply with section 7 of the Endangered
Species Act, Fish and Wildlife was tasked with completing a
biological opinion. Since they had issued an opinion for the
original project, they should have been able to prepare a new
opinion within the 135-day regulated timeframe.
In December 2012, the Federal Highway Administration
initiated formal consultation with Fish and Wildlife. In 2013,
the draft opinion was circulated for internal review. TCA was
then notified by Fish and Wildlife that they did not have
sufficient staff resources to continue their work. TCA agreed
to fund $75,000 for staff in order to restart the work.
In 2014, well beyond the 135 days, Fish and Wildlife
notified the Federal Highway Administration that, due to
project opposition, it would not issue the opinion unless the
Federal Highway Administration confirmed in writing that the
project had independent utility. This setback is yet another
example of subjectivity impacting the process, since this is
not required to issue a biological opinion.
In conclusion, I would like to highlight a few key
recommendations for improving the environmental review and
permit approval processes:
First, allow projects in States with stringent
environmental review laws, such as California, to meet Federal
environmental review requirements through compliance with State
laws.
Second, require that all Federal agencies responsible for
funding, permitting or approving a project collaborate on,
adopt and use a single NEPA process. The process should be
integrated and occur in a coordinated parallel workflow.
Third, prohibit an agency from changing its position
without the discovery of critical new information.
Fourth, limit resource agency comments to issues within the
jurisdiction and expertise of that agency.
And, finally, speed up and enforce strict deadlines for the
NEPA review and permit approval process.
Thank you for the opportunity.
Mr. Petri. Thank you.
Chairman Shuster.
Mr. Shuster. Well, thank you, Mr. Chairman.
And thank our witnesses for being here.
I want to take a point of personal privilege. I became
aware that this most likely will be Chairman Petri's last
hearing, since he has decided to retire from Congress, and I
just wanted to take this opportunity to thank him for his 36
years of service in the United States Congress.
He has had quite a distinguished career, starting off in
the Wisconsin State Senate, doing a stint at the Peace Corps
and the USAID. So he has really served the Nation in a number
of ways.
But on this committee, where he served ably for 36 years,
he has been in a leadership role in almost every subcommittee.
I think railroads is the only one you haven't--economic
development, building public works.
He was in a leadership role, water resources, this
committee a number of times. He helped shepherd through TEA-21
and SAFETEA-LU as the chairman of this subcommittee. He was
chairman of the Subcommittee on Aviation when we did the
reauthorization in 2012. So, again, he has served the people of
the Sixth District very well, Wisconsin, served the Nation.
We thank you for that service and thank you for a job well
done, although I do have one question. And my family history--
as most people know, I have been around here--not in Congress,
but I have been around this building for a while. I have known
him for over 30 years, and I have never asked anybody the
question.
Why do they call you ``Tim''? How did you get the nickname
``Tim''?
Mr. Petri. Well, I am a ``junior,'' and they sat around and
decided they were going to call me ``Junior'' or ``Buddy'' or
``Tom II'' or this or that. Finally, my grandmother said I was
very small, like Tiny Tim. So they called me----
Mr. Shuster. OK. Well, finally--after 30-some years, I
finally know the answer to that. My father called you ``Tim''
and I never--I kept saying--``His name is Tom,'' I kept
thinking to myself. But, you know, I don't know.
But, again, I just want to take this opportunity again to
thank you, congratulate you. We wish you well in whatever your
endeavor is. You have really been one of the great leaders in
Transportation and certainly someone that I have looked to for
advice over the years. So thanks for a job well done.
Mr. Petri. Thank you.
Ms. Norton.
Ms. Norton. Mr. Chairman, I have never called you ``Tim.''
I called you ``Tom.'' And I really appreciated the opportunity
to call you ``Mr. Chairman.''
When I learned that Tom Petri was going to leave us, I
could only think what a sad day for this subcommittee and
committee, what a sad day for Wisconsin. And, surely, it is a
sad day for the Congress of the United States.
In Tom Petri, we have a Member who has a fountain of
knowledge that takes many years to accumulate. And with that
knowledge, Chairman Petri has accumulated great wisdom, wisdom
about the many varied modes of transportation and
infrastructure in our committee, wisdom which is not easily
replaced. It is not just somebody else moves up and, therefore,
you will just fill in. It is knowledge and wisdom and a great
model of stability and collegiality that this Congress needs.
When you put all of that together, Mr. Chairman, I can only
say: Why in the world did you do that to us? We will miss all
that you have offered us. We will look to you, I know, as we
continue down this road. I have enjoyed working with you not
only in my role as ranking member, I have enjoyed working with
you as a man, as a human being.
I worked with Chairman Petri, who told me about his work
with British parliamentarians and asked me if I would like to
join him, and I did. It was a wonderful experience. I remember
we went through--to Great Britain and everybody went except Tom
Petri because he had something he had to do in his district.
That is just like Chairman Petri.
So, Chairman Petri, if I could just speak from this side of
the aisle, I hope you understand, as you leave the Congress,
you are going with the deepest respect and admiration not only
from your own side, but especially from this side of the aisle.
Thank you very much.
Mr. Petri. Thank you.
And let's return to regular order. That is a little
embarrassing. And you exceeded your 5 minutes. I didn't have
the heart to interrupt.
I have a couple questions for the panel, and some of you
have touched on this in your testimony. And we were wrestling
with this idea of interagency coordination. And it works--if
everyone wants to cooperate, the objectives can be met and the
thing can be telescoped and it works great. And if it is not a
top priority, there can be lots of problems and delays for a
variety of different reasons.
And so we are trying to wrestle with figuring out how to do
incentives or reasonable ways of avoiding unnecessary abuse of
the process, basically, making it more efficient for everyone.
So I am curious to know if--and we have seen examples of
huge projects done very quickly because there was a public
focus on it. The Olympics in Utah were a mess, and people came
in and focused on it and rescued the situation. We had the
earthquakes in Los Angeles. Things had to be fixed up and
people got together and went through the process and met the
public's need.
But most projects don't have that level of public focus,
and the result ends up being an opportunity for people who have
other agendas to use the process to delay things.
And it is frustrating because we want to be good stewards
of the environment and recognize legitimate--raise legitimate
concerns. But to have that sort of abuse of the process is an
impediment to achieving those good objectives and raises a lot
of objections to legislation that does try to do that.
So I was curious if you could tell us what--the top two or
three policy priorities that you have for the reauthorization
bill and how we could improve the Federal environmental review
or permitting process.
I know some of you touched on this in your testimony
already, but if you would just repeat the top things that we
should be focusing on as we draft this legislation with our
colleagues in the Senate, we would much appreciate it, starting
with Mr. Braceras.
Mr. Braceras. Thank you, Mr. Chairman.
From a policy perspective regarding the reauthorization,
there is the components that I think we are talking about here
today in this committee regarding the environmental process and
how to move that forward in a way to get better outcomes.
And I think everyone--all my partners and CEOs of the DOTs
all want to see outcomes that both benefit the transportation
system, but also benefit the environment and the community.
These are our homes. These are the communities that we live in.
And we can find a way to get to yes.
When we look at the Federal agencies, I think sometimes it
is easy to criticize the Federal agencies if they are not going
along with the way we want them to go along.
When I look at the Federal agencies--I used the term
``silos.'' I think it may be more appropriate to use the term
``cylinders of excellence.'' They are all excellent agencies
with people trying to do the right thing, but they are very
focused on trying to achieve their mission.
And there is very little recognition or reward given to
those agencies if they step out a little bit and try to help
another sister agency to be successful. It is almost a demerit
against that agency.
I believe there are as many ways within the rules,
regulations and the spirit of what Congress has intended for
Federal agencies to find a way to say yes as there is to say
no. It is sometimes more difficult to say yes because you have
to go out and extend yourself.
If you find Federal agencies working in a way that is
cooperative, trying to help another agency be successful, it is
almost like they have to defend themselves within their agency.
Even though other resource agencies are environmental peers.
So I would suggest that Congress look for ways to provide
not only motivation and accountability to these agencies, not
just ask ``How are you doing with your mission?'', also ask,
``What are you doing to help the other agencies be
successful?'' and see what comes out of that type of
accountability. I believe there are very good opportunities
here for us to improve the environment.
And when I use the word ``mitigate,'' I am not necessarily
saying let's try to make the mitigation equal the impacts.
Let's try to do the right thing by the environment. Let's try
to do the right thing by our communities and to try to help
move transportation forward. The economy of this country is
dependent on a well-functioning Federal Government and a well-
functioning transportation system.
So provide incentives that help Federal agencies work with
other agencies to help them be successful. And I think, if we
can bring to the attention of communities and Congress, what
agencies are doing to help other agencies be successful, it
would be a step in the right direction, Mr. Chairman.
Mr. Petri. Secretary Peterson.
Ms. Peterson. Well, thank you, Chairman. Born in the Sixth
District of Wisconsin, I appreciate your leadership as well.
The Skagit Bridge collapsed after it was struck by a truck
about a year and a half ago, 6 weeks after I joined WSDOT. That
would be a good example of the MAP-21 provisions that allowed
for the emergency categorical exclusions. And so that really
worked well.
But to your specific question on what could be done
differently, we have a good example within the State of
Washington on the Point Defiance Bypass. It is a rail bypass
project where we had received Federal--FHWA money to begin the
project. FHWA required us to complete a Documented CE for our
environmental review process work.
And when we got the Federal Rail Administration money a
couple years later, FRA required us to complete new
environmental work and required an environmental assessment,
even though FHWA had already approved the Documented CE for the
exact same project.
So it would be nice if a one DOT approach would be
followed, that if you already have a categorical exclusion or
an approval, that another modal administration within USDOT
could accept that environmental work for the same project. So
that would be my first thing.
The second one would be, to follow on the comments, the
type of training for those at the local level in the regions on
how to work within and out of those silos.
You know, one of the things I learned when I went from
engineering into planning is that we have multiple vague and
conflicting goals that we all have to work within.
And being allowed the flexibility within the workplace of
these agencies to do problem solving alongside is probably
something--that kind of conversation and that value needs to be
imposed on this process so that we are not working at odds on
our missions of excellence, but we are actually working to come
to compromise on those multiple vague and conflicting goals.
Mr. Petri. Mr. Swonke.
Mr. Swonke. Thank you.
First off, I wanted to echo the sentiments that my peers
have said. I think those are good suggestions. And something
that--was mentioned earlier about the NEPA process working. And
so I think the tools available to us today with the NEPA
process allows us to do some pretty substantial things.
It takes a lot of other commitments and a lot of things to
come together and a lot of people to pull in the right
direction, but the tools we do have today are able to allow us
to do our work fairly well.
But looking forward, I think there are some areas where we
can make improvements. And one of the things--one of the issues
came up in MAP-21, and that is combining the planning and NEPA
processes together and get some advantages out of the planning
process.
I think MAP-21 took a good cut at that, but it did leave us
with--I think it is about ten conditions that need to be met
before some planning decisions can be brought forward into the
NEPA process. That is not exactly a facilitation step.
I think the idea that we should have more flexibility in
bringing forward planning decisions and to allow those to
account for NEPA decisions or some part of NEPA process moving
forward would be extremely advantageous.
In our case in Texas, we have got a few congested corridors
today that we are performing planning studies on, and we see
some opportunities there to--when we get to the NEPA step of
those corridors, that we could and should be able to use some
of those planning decisions in the NEPA process to help
facilitate the review and approval of the NEPA documents when
we get to that step.
Another issue that comes up fairly often is mitigation. And
MAP-21 spoke towards programmatic mitigation. That is certainly
great in concept, but getting it to the ground--getting it on
the ground and having agencies make efforts in that area,
providing incentives to go forward on that--and I am talking
about mitigation in all areas. We are talking about Clean Water
Act mitigation, Endangered Species Act mitigation, even
environmental justice mitigation right now.
We have got a project right now that is going on where we
are really trying to find out where the threshold is for
mitigating for environmental justice impacts and how far do you
have to go. It is really--there is no good indication about
when we have done enough on that subject.
And I don't know how programmatic applies to environmental
justice, but programmatic can certainly help us with Clean
Water Act 404 issues. We spend quite a bit of time and money on
wetland mitigation, stream impact mitigation, and it consumes a
lot of our resources.
And, thirdly, conformity, Clean Air Act, in general. There
are a lot of aspects to the Clean Air Act that are affecting
transportation projects these days, and it seems to be
happening more and more.
One in particular that I think we would suggest looking
into further would be the effectiveness of regional conformity.
Is that really working towards cleaning up air quality? How
effective is regional conformity?
Because, again, we spend a lot of effort and time in
particular that, if we get changes later on in the project that
has already been through conformity, we have to go back to
conformity. It is getting to be a pretty constant aspect of our
work. Is it in conformity? Was it approved in conformity? Has
it changed since conformity was made? And having to go back and
revisit that issue.
So those are our three items that we would suggest.
Mr. Petri. Mr. Kraman.
Mr. Kraman. Thank you.
We certainly support the goals of the NEPA process, but it
is too easy to take the process in different agency directions.
There needs to be protection to the project sponsor in
following the lead agency process, and the process should be
integrated.
And when we are talking about the EIS document and the
permitting, it should be a single process that is integrated
and in a parallel workflow, not starting all over again each
time you are dealing with a different agency.
The other part would be to limit the resource agency
comments and involvement to the issues that are within the
jurisdiction and expertise of that agency.
Thank you.
Mr. Petri. Thank you. To the point and specific. Thank you.
Appreciate your comments.
Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman.
I have reason, given a recent experience, to particularly
value the public participation aspect of the NEPA process. The
CSX railroad is engaged in work in my district involving a
tunnel along Virginia Avenue.
Now, this project was very controversial, in large part
because it runs through not only a residential neighborhood,
but a brand-new residential neighborhood.
Now, there may be other jurisdictions like my own who
reclaimed parts of their city that used to be for railroads or
for industrial uses. This meant that the NEPA process and all
that it entailed was important to my constituents.
Now, the prevailing wisdom is that the reason for the
length of these projects is frivolous lawsuits and the like,
but the Congressional Research Service has found that more
often the delays come precisely because of the reason the
delays are coming in my own district, because of local or State
or project-specific factors.
For example, in my own case, when my communities came and
asked for delays, I recognized that that would have an effect
on the project, but I really didn't think--especially when the
proposed record came out, and it was very thick--that I could
say they didn't need more time. They were very assiduous, very
well educated in going at it. So I asked for an extension. I
asked for 90 days. I think I was given 60. I asked for another
public meeting.
Now, you know, the constituents may lose their struggle,
but I hardly think--the process would be better if they hadn't
had that opportunity. It would have been quicker. We would have
saved a little money, a little time. This is the reason for
most of these delays. I have just experienced them.
Less than 1 percent of the projects have been subject,
according to the CRS, to litigation. So we ought to face who
you are talking about. You are talking about your own
constituents. You are talking about your own local and State
governments. They are holding things up, they think, for good
reasons.
That is why I have a question for Mr. Swonke. He speaks
about the environmental process in the State of Texas and the
reduction from a 100-page document to a 2-page document.
Actually, that intrigues me. And if it works, I am very much
for it.
If you are for an environmental process that has meaning
and you think that the American people are better off for an
environmental process, you want to take all the encumbrances
that people object to out of it and just get down to the raw
meat.
But, Mr. Swonke, has your public participation process in
the project been reduced also by 98 percent? This reduction
from a 100-page document to 2 pages, I can understand that in
pages. But what about the public participation? The public is
going to have to live with the highway or the aftermath of the
particular project.
Mr. Swonke. Yes, ma'am. Thank you for allowing me to
clarify that.
Definitely not. The public participation process and our
public participation obligations are the same for before and
after that transition of how we document our decision.
And so the times when we go out for a public meeting and
times we reach out to stakeholders, the occasions through the
process when we have had those discussions with the locals, it
is still the same. And so the idea that we have whittled down
our documentation did not affect the amount and the frequency
at which we reach out to the public.
And, also, again, just to clarify as well that it also did
not affect or does not affect the other regulatory standards
that we have to meet as well.
It is just that the NEPA documentation does not have to go
into depth on all of the statutory requirements that are
necessary, just the only ones that are in effect on this
particular project, so we can focus our attention on to the
important issues.
But definitely, to go back to your question, no, the public
participation process was not reduced in that transition.
Ms. Norton. And I do not think you can find any State or
local official that is not going to stand with his constituents
in making sure there is a robust public process, and we have to
understand that is where the delay is.
One more question. You raised an issue regarding the
involvement of DOJ and the Federal Highway Administration
because of your delegation.
Now, I think it is important to note that, in delegating to
a State, essentially, you become the proxy for the Federal
Government. It is not as if, you know, it is all yours and
there is no more Federal jurisdiction.
But you seem to object to the Federal Government being
involved, in the case of DOJ, in the settlement--in
determinations whether to settle a lawsuit or to appeal an
adverse judgment. You seem to imply that that ought to be left
solely to the State of Texas and not to DOJ.
Does your MOU, which assigns responsibility for categorical
exclusion and determinations, contain similar provisions
regarding settlements and appeals? Are settlements and appeals
taken out of what your responsibilities are?
Mr. Swonke. On that particular issue, I don't recall. But I
have got someone behind me I could ask quickly for a yes or no,
if that is OK.
Ms. Norton. Well, I just want to make sure that you don't
regard Texas as being treated any differently from any other
jurisdiction or, for that matter, any other Federal agency. A
Federal agency, if it wants to appeal--and it may feel
strongly--it has to go to DOJ. DOJ makes that determination for
the Federal Government.
And I would think that the same thing would be understood
by the State of Texas, that, essentially, all the Federal
Government has done is to say, ``We are essentially allowing
you to be our proxy. We are delegating to you. But we delegate
to you responsibilities and we also delegate to you all the
rules that encumber us who are the Federal agency.''
Do you understand that as well, Mr. Swonke?
Mr. Swonke. Yes, ma'am. The idea that we are working on the
MOU for the full assignment, the full delegation, is that, in
the program, the way it is being set up, that the Federal
Highway Administration has the ability to intervene at any time
on any of the cases so that, if they feel like--if we are going
in the wrong direction, they have the ability to take over and
be the lead. And so that--that is, I think, the safety valve
that we are looking at that covers your concern, covers the
concern of DOJ and Federal Highway Administration.
And so they are allowed to intervene at any time and to
take over the case, and we are fine with that. It is just those
times when they don't intervene, if they choose not to
intervene on the case. Then we feel like, well, that gives us
the ability that we are in charge of our own decisionmaking at
that point if they do not intervene.
So those are the time cycles. If you don't intervene, then
we should be allowed to move forward. When you do intervene, it
is all on the DOJ or Federal Highway Administration.
Ms. Norton. Now, Mr. Swonke, they will know when to
intervene. So be assured of that.
Thank you very much, Mr. Chairman.
Mr. Petri. Thank you.
Mr. Farenthold.
Mr. Farenthold. Thank you, Mr. Chairman.
And in response to what--Ms. Holmes Norton, I wanted to add
just a little piece.
When I was first elected to Congress in 2010, I represented
from Brownsville to Corpus Christi. I now have the privilege to
represent from Corpus Christi north to Wharton, which covers
about probably a third of the route of Interstate 69 that is
being improved along Texas.
And I can tell you, since the day I was elected until last
month, there is probably a public hearing every couple of weeks
on I-69, and I will tell you that there is no lack of
opportunity for public input.
And I really am proud to be here as a Texan as we are
looking at the Texas model for improvements and efficiencies.
And I wanted to talk to Mr. Swonke about some of the Texas
experience.
It is my understanding that Texas has decided to petition
the Federal Highway Administration for full NEPA delegation
like California did under SAFETEA-LU.
Why did you all decide to do that?
Mr. Swonke. Well, we have got a couple of incentives to
move in that direction.
The first one is that it is really a discussion about
resources and availability. Across TXDOT, we have about 150
folks who practice in the environmental area of getting the
projects environmentally cleared.
When we talk about our FHWA division office, you are
talking about five or six or seven environmental folks who are
in charge of processing these documents.
So when--you are talking about having the resources to
carry out the program, to review the program, and oftentimes
we--you know, we change our priorities with FHWA and the
discussion goes towards, ``OK. Well, what is the priority you
want us to review? Because we only have so many folks to put on
this assignment.''
Secondly, we think our program is robust. It is mature
enough to handle this decisionmaking, given the fact that we
have got, as I mentioned, the folks available and the resources
available to carry out the program. We have got experienced
people available as well and----
Mr. Farenthold. So----
Mr. Swonke [continuing]. Again, just ability and
responsibility to do that.
Mr. Farenthold. So how is the process going?
Mr. Swonke. So as I mentioned earlier, that--we are
discussing the MOU, which is the final document that would
allow us to move forward. And working with our FHWA division
office in Austin, it has been very productive, and we are
appreciative of the response we have gotten from them.
And given the news that we received yesterday on the last
two points of our MOU, I think that is very positive as well.
And so today we see it working very well.
Mr. Farenthold. And so we have also in Texas gone through
and gotten delegation for categorical exclusions.
Do you have any improvements that you would recommend for
the process either for full or categorical exclusion
delegation? Is there anything we need to do to improve that
process?
Mr. Swonke. We feel like going through the process for the
categorical exclusion delegation was fairly simple. And we got
there pretty quickly, and we were very happy with the way that
was set up.
For the full assignment, I think, given that we moved
forward fairly well up until the point where we reached
somewhat of an impasse on those two remaining issues--which,
again, I think we may be able to move forward on it here
recently--that has moved fairly smoothly as well.
The one point on the implementation of the full delegation
was the steps and public notice of the application. There are
as many as three steps for public notice of the application,
and we weren't sure if that was intended or not.
But in applying for full NEPA assignment, there is a step
for the State to put out its draft application on public
notice. And there is--the request from the Federal Highway
Administration was then, once they received that application,
that they would put out that application on public notice and
then, once the MOU was in place, that the MOU would be public
notice as well.
Mr. Farenthold. So that is the web designer's full
employment act. Right?
Mr. Swonke. Yeah.
Mr. Farenthold. I assume most of that goes on the Internet.
Mr. Swonke. Yes. Yep.
Mr. Farenthold. And one of the issues, I know, in these
negotiations--and I think you talked about it some--was the
relationship with the DOJ and the Federal Government.
Can you talk a little bit about--I don't think under the--
if I am correct--and correct me if I am wrong--under the CE
delegation, the Federal Government wasn't looking for access to
your attorney-client-privileged information, and it was
different under the full--I mean, can you talk a little bit
about that.
It seems--I understand the need for the Federal Government
to be involved in the process, but you still need to be able to
talk to your attorneys. I mean, you don't want to deal with the
Federal Government without involving the attorneys at some
point, I would think.
Mr. Swonke. Yes. One of the points of contention that I had
mentioned had to do with the request from the Federal Highway
Administration about TXDOT turning over client privileged
information as part of our obligation.
And so we were a little concerned with that, the idea that
we would have to be able to turn over attorney-client-
privileged documents that we had, you know, internal
discussions about decisionmaking in the audit process.
And, you know, there would be times that that would be, you
know, I think, OK with us. But just requesting that across the
board and us being obligated to turn that over any and all the
time that they asked was a concern.
It could have a bit of a chilling effect on our ability to
have our own confidential internal discussions, realizing that
this could be made, you know, available to the Federal Highway
Administration and then, once it is disclosed there, where it
might else would be disclosed.
And so that was a big concern with us. And so--but, again,
as I mentioned that--as of just yesterday, I think we have got
some language in our MOU that addresses the concern on both
sides.
And then the other point you mentioned, the DOJ's concern,
we fully understand that, even when TXDOT receives NEPA
assignment, that this is still a Federal program.
And so the idea that decisions made in the Federal program
could have implications beyond Texas are understandable to us
and that the Federal Highway Administration's concerns are
valid, DOJ's concerns are valid, and we want to honor those
concerns.
Mr. Farenthold. All right. I see my time has expired.
Appreciate your being here to testify.
Mr. Chairman, thank you.
Mr. Petri. Thank you.
Representative Johnson.
Ms. Johnson. Thank you very much, Mr. Chairman. And I am
going to preface my questions and remarks by saying I am very
emotional about your departure. My entire 22 years on this
committee has been served with you. I have served on a number
of the subcommittees. And I can't think of anyone that I
respect more. I appreciate the service you have given. I am
certain your constituents do. And I will miss you greatly.
Thank you for being a great role model.
Now, on to Texas. Nobody handed me any questions to ask,
and if they did, they know it wouldn't make any difference
anyway. I am a native, and I have served with every one of
these pictures on the wall as chairman, and not a single one of
them has ever given me any trouble trying to represent Texas on
this committee. And I am serving now with the son of one of
those pictures up there, and he has not as well.
But you know I am a native of Texas and I know how
resistant Texas is to rules. And I am a nurse, and I know about
the environment, I know about the effects of environment with
children, old people, and middle-aged people, too. And I am
concerned about whether TXDOT is really working with Fish and
Wildlife, the Corps of Engineers, the EPA to try to make sure
that we are not hiding, we are transparent in following the
rules.
We don't have a good track record. Are we improving it?
Mr. Swonke. Yes, ma'am, I would definitely say that we are
improving it over the past few years, our relationships with
EPA and Fish and Wildlife Service and the Corps of Engineers.
Actually, I would say with the Corps of Engineers and the Fish
and Wildlife Service, we have established a very good working
relationship very recently. One of the things we have done with
the Fish and Wildlife Service and Endangered Species Act issues
is designate and fund a liaison at that agency, and he now is
almost an extension of one of our own employees in that he is
very aware of the issues that go on, and he communicates that
to the Fish and Wildlife Services offices in our State.
The Corps of Engineers, I think we have always had a fairly
good relationship with. We have been open with them, they
understand our program.
EPA, it has run hot and cold, honestly. And so there are
times when we are able to engage EPA and they are able to
attend a lot of our early scoping meetings and communications,
and other times when they are not able to, it sometimes leads
to problems later. So we see that sometimes their limitation of
resources limits their ability to engage, and then they also
have the disparity amongst their various offices that get
involved in our programs. If and when they don't communicate to
folks within their side, it leads to communication problems
down the road. But I think even that relationship with EPA is
getting better as we get to know them and the folks we are
dealing with over there.
Ms. Johnson. Sometimes I wonder if Texas understands that
EPA actually is there to protect people and not necessarily to
protect agencies. But our EPA in Texas have mostly protected
industry, not people, and that is my major concern with the
streamlining. I want to see streamlining, but I also want to
make sure that we don't ignore the almost 30 million people
that breathe that air every day in Texas, and that is a major
concern.
We cannot compare ourselves to California, who had made an
effort to try to comply. I haven't seen as much effort in
Texas, and I think the record speaks for itself. You know, I
don't want to sit here and tell you all about the various
complaints, but the record speaks for itself. So I am concerned
about that, and I am concerned about transparency, and I just
want you to know that.
Thank you, Mr. Chairman. I yield back.
Mr. Petri. Thank you.
Mr. Hanna.
Mr. Hanna. Thank you. Thank you very much.
As cochair of the Subcommittee on Railroads, Pipelines, and
Hazardous Materials, I would just like to remind everyone of
something that most of us are aware of. Even though the
railroad projects are largely financed with private money, they
can still be subject to Federal environmental review. Long
delays can be burdensome, expensive, ultimately discouraging
private investment, which we need for our growing economy and
to grow our economy. So we do put at risk long-term job
creation that enhances service to our constituencies by
creating some barriers.
Ms. Peterson, one of the things we have heard from you in
your opening statement is that NEPA is not broken. What we have
heard from Mr. Kraman and Mr. Swonke is that things don't have
to be broken to have wide opportunities for improvement. So I
don't find your statement inconsistent with those necessarily,
I doubt if you do, but clearly there is always room to look and
improve.
I want to ask you, Mr. Kraman, you mentioned something that
I will just use the term mission creep. You talked about
agencies not minding their own business, to be less than
polite. Can you give me an example of how that would happen,
and why it could happen, and if you believe there is some
philosophical drive behind that? Go ahead.
Mr. Kraman. The process as designed in the collaborative
process was to involve all of the agencies, because they each
do have slightly different agendas, if you will, as they
approach these complex projects, the Federal Highway
Administration being the lead on our particular project.
Once we got through that process and had unanimous
agreement on the preferred alternative, the wheels came off
pretty quickly after there were challenges to the project, and
the way that took place was around agency issues. For example,
EPA or the Corps of Engineers, while we had a very robust
public outreach process for the constituents that live around
the project, there is the whole level of professional
organizations that work with EPA on their agenda or work with
the Corps of Engineers on their agenda. So it very quickly
unravels despite a 10-year process of collaboration.
Mr. Hanna. So what you are suggesting is that there is a
war of attrition that can be fought from a number of different
angles that ultimately--go ahead.
Mr. Kraman. And I think the biggest weapon that is used is
to delay. So it is not necessarily that easy to stop a project,
but in the current process it is very easy to delay a project.
And I think the major weapon we see is to use each of the
agencies in the slightly different way they would each look at
that in order to throw in delays to the process.
Mr. Hanna. So that you welcome the input, but it is hard to
bring to conclusion because of all these other dynamics.
Mr. Kraman. Right. And perhaps what is lacking is a more
robust appeal process, if you will, or some sort of an
administrative process to raise the level of disputes in order
to keep the projects moving forward.
Mr. Hanna. So how would you suggest you cap input? Ms.
Peterson is suggesting it is a wonderful thing. We all agree
that it is part of the process, you need it. But how do you end
something like that?
Mr. Kraman. We agree that it is an important part of the
process and the process allows for that input. However, having
followed the procedures outlined in the process, we need to
move ahead.
Mr. Hanna. So you had a 16-mile agreement. That didn't work
out. You went to a 5.5-mile agreement, and you thought that
was--because everybody had already signed out, and then they
jumped back in because ultimately what they are really saying
is, we don't want this to happen.
Mr. Kraman. Correct.
Mr. Hanna. And you think we could find a way around that?
Mr. Kraman. Yes. It depends on who it is we are talking
about when say they, we don't want this to happen. Certainly
the people of Orange County and the people who are sitting on
the 5 freeway in San Clemente and San Juan Capistrano, where we
are spewing all sorts of air pollution into the air while they
sit there, would rather have a free-flowing alternative route
where our vehicle hours traveled decreases, and where as a
transportation control measure, it supports the air quality
conformity for the entire L.A. Basin, we want to be able to
move towards that as opposed to having people stuck in traffic,
because we have an alternative. By the way, the main thing that
typically stops a project is they can't fund them. We are
paying for this project without using taxpayer dollars to build
this facility.
Mr. Hanna. So you would like to see these agencies have
this input. I don't know how to end this, because this is
bureaucratic, it is the way bureaucracies go.
But then my times has expired. Thank you very much.
Mr. Petri. All right. Let's see. We have Mr. Rice.
Mr. Rice. Thank you, Mr. Chairman.
Mr. Kraman, Mrs. Peterson earlier said that NEPA is not
broken. With respect to your toll road projects, how much time
have you spent trying to get this final part permitted?
Mr. Kraman. Close to 20 years.
Mr. Rice. Do you think NEPA is broken?
Mr. Kraman. I think NEPA is a process that can lead to a
solution. I think there are components of it, particularly when
it involves the coordination between the other agencies not
being the lead agency, that can easily delay a project. I think
the element of delay, which leads to more costly projects,
which leads to that benefit not being available to the users
and the benefiters of that project, I think that part of it is
broken.
Mr. Rice. All right. Would you agree with me that
transportation and infrastructure are important to our economy
and jobs?
Mr. Kraman. Yes, sir, I would.
Mr. Rice. Do you think that delaying critical
transportation and infrastructure projects helps America's
competitiveness in the world?
Mr. Kraman. It does not.
Mr. Rice. And do you think that that results in jobs going
overseas?
Mr. Kraman. Well, certainly out of certain States to other
States, and I would agree overseas as well.
Mr. Rice. Thank you, sir.
Mr. Swonke, with respect to Texas, so does NEPA or MAP-21
specifically allow for States to be delegated this authority to
oversee the NEPA process?
Mr. Swonke. Yes, it does.
Mr. Rice. How many other States have been granted this
authority?
Mr. Swonke. California has been working under this
authority for the full assignment, that includes EISs,
environmental impact statements, and environmental assessments,
for I think going on 7 years.
Mr. Rice. So they received the delegation or they are
trying to get the delegation?
Mr. Swonke. They received it just over 7 years ago, and
they have been working under that authority for that time.
Mr. Rice. How long has Texas been trying to get that
delegation?
Mr. Swonke. Oh, about a year, just about a year when we
decided, we got the State legislation passed and moved forward
spring of last year.
Mr. Rice. How many other States have gotten it?
Mr. Swonke. And then for the limited assignment that is
just for categorical exclusions, there is Utah and Alaska who
have been operating under that authority for some time.
Mr. Rice. Do you know of any other States that are trying
to get it?
Mr. Swonke. I have talked to some of my peers, and they are
interested. I don't know that they are actively today pursuing
it, but they are interested and somewhat preparing for it.
Mr. Rice. Mr. Kraman, do you know how much money has been
spent on complying with the NEPA process with respect to the,
what did you call it, TCA project?
Mr. Kraman. I don't have that number. I can get that for
you.
Mr. Rice. Mr. Swonke, do you all have any breakdown on
that, on what it costs? You said earlier that--I am trying to
remember the exact phraseology--but I am trying to get from the
Federal Government a breakdown on a project that doesn't get a
categorical exclusion, what the percentage cost of complying
with the NEPA process was versus the cost of actually putting
pavement on the dirt.
How much money are we spending of our very limited
resources, when we don't even have enough money to take care of
what we have already got, much less build any roads? How much
money of that are we diverting to this NEPA process and not
putting pavement on the ground?
Mr. Swonke. Of course, I don't have those numbers
available, and it would be very project specific. But we could
come back with some examples, I am sure.
Mr. Rice. OK. You could come back with what you are
spending, but you can't tell me what the EPA is spending and
what all these other--the Federal Highway Administration and
all these other various--the Army Corps of Engineers--you can't
tell me what they are spending, right?
Mr. Swonke. Correct. I wouldn't be able to.
Mr. Rice. Do you think it would be helpful if we required
some breakdown on a cross-agency basis so we could at least
understand how much, in addition to the time and the lost
productivity and all, the lost benefits, delay of benefits, do
you think it would be helpful to know what it has cost us in
hard dollars across all these agencies?
Mr. Swonke. Yes, sir. I think cost-benefit is always
helpful.
Mr. Rice. Can you, I know I am putting you on the spot with
this, because I don't know that I could even come close, but
can you give me any kind of an approximate breakdown, 10
percent, 20 percent? You can't do that, can you?
Mr. Swonke. No, sir, I can't, off the top of my head.
Mr. Rice. All right.
Mr. Braceras, do you think that NEPA process is broken?
Mr. Braceras. Mr. Congressman, I do not believe the process
is broken. I think there are improvements that we could make in
the administration of the process. The process is actually very
good and can yield excellent outcomes if people come to the
table with a willingness to have honest, open discussions and
they reach a point at which they are willing to make a
decision. And I believe the process works if it is administered
appropriately. But that really comes down to people.
Mr. Rice. You know, I want to thank every one of you for
being here. And I have the utmost respect for every single one
of you. And thank you for your work and thank you for trying to
help your individual States and push these projects through.
I think when it takes 20 years to get a much-needed road in
California, 24 million people in southern California moved
around, when it takes 10 years to get a permit for a road we
have been working on in South Carolina, I-73, I think the
process is horribly broken, I think it costs millions of jobs,
and I think it affects American competitiveness, and we can do
much, much better. Thank you very much.
Mr. Petri. Thank you.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
I think the summary of the testimony is the expansion of
the CEs, which I have advocated for, for a number of years, has
worked quite well in Texas and Washington and elsewhere. We do
have before us an issue, which actually when I chaired the
subcommittee, was the subject of a hearing, which is the
unbelievably controversial SR 241 road to the coast. I have
just got a couple of questions on that, Mr. Kraman. Do you want
the Federal Government to preempt your State's laws, yes or no?
Mr. Kraman. No.
Mr. DeFazio. OK. So it is my understanding that actually
this road was the most controversial issue ever heard by the
Coastal Commission, they had more comments than on anything or
perhaps all their other proposals in history, and yet you are
proposing--and that is what brought it to a halt--but you are
proposing changes to Federal law, giving a long litany of
interactions with the Federal Government, for something that
was ultimately blocked by the State. Isn't that correct?
Mr. Kraman. Well, what I testified----
Mr. DeFazio. Well, I mean, isn't that true? At this point,
you are blocked by the State.
Mr. Kraman. What I testified today to is how we have
reevaluated the project and the difficulties we are having with
a 5.5-mile project, which doesn't impact the coastal zone.
Mr. DeFazio. OK. But generally the lengthy litany of things
that we are talking about here and the changes you want relate
mostly to the problems you have had with 241, which relate to
the State California Coastal Commission, which of course is not
the jurisdiction of this committee, and you haven't recommended
that it should be, so I appreciate that.
Ms. Peterson, let's go back to people who are a little more
successful in working through the process. You know, we have
talked before about appropriate design. I mean, if one has
appropriate design and adequate public input, do you see the
need for further streamlining beyond what we have already
delegated through the last, whatever they called it, MAP-21?
Ms. Peterson. Chairman and Congressman, the specifics on
streamlining, I think we have had great success in Washington
State on continuous improvement on streamlining and permitting,
so I would hesitate to say no, we don't ever need to continue
moving forward on streamlining. I think there are always ways
in which we can improve the process, but public participation
would not be one that I would want to streamline out.
Mr. DeFazio. Well, the most notable failure in the
Northwest, of course, is the Columbia River Crossing, which
didn't have anything to do with a failure brought about by
Federal agencies.
Ms. Peterson. No. That was a project for the committee that
went through extensive environmental impact statement, had a
record of decision, and then due to the fact that the
Washington State Legislature considered but did not move on a
transportation package to fund projects across the State, that
is not moving forward at this time.
Mr. DeFazio. So we had proposed and went through and were
able to work with the various Federal stakeholders before the
streamlining process and get approval to go ahead from the
Feds, but it was a failure of the region, much like 241 in
California is a failure because of California State law.
Ms. Peterson. It was certainly a long process to get to a
conclusion. And having been somebody who worked on both sides
of the river----
Mr. DeFazio. Both sides of the border.
Ms. Peterson [continuing]. On this project, and also as a
person who was----
Mr. DeFazio. I am not trying put you on the spot here.
Ms. Peterson. No.
Mr. DeFazio. I am just making an observation. You can just
say yes.
Ms. Peterson. As somebody who just has a perspective from
inside and outside, the process worked.
Mr. DeFazio. OK. But you do say at the end,
``subcommittee's support encouraging Federal resource and
regulatory agencies.'' You list ``examine their review
processes, look for ways to expedite programmatic agreements.''
Could you expand on that, because I don't know what that means.
Ms. Peterson. Where are you?
Mr. DeFazio. At the end of your testimony.
Ms. Peterson. OK. Could you read it?
Mr. DeFazio. It says, ``We seek the subcommittee's support
in encouraging Federal resource and regulatory agencies (Fish
and Wildlife, NMFS, Corps) to examine their review processes
and look for ways to expedite programmatic agreements.''
What is the problem we are trying to get at there? There is
a problem you are pointing to.
Ms. Peterson. That is to reduce the time that it takes for
the review.
Mr. DeFazio. OK. So it is a lack of coordination still
among the agencies?
Ms. Peterson. I think that we have done a good job at
Washington State doing that for our folks that we work with,
reducing from 90-day review to 3 days. We would essentially say
that should happen across the country.
Mr. DeFazio. So the Feds aren't able, even with the CE
process, to meet the kind of expedited process that you can put
forward?
Ms. Peterson. I think we should be used as the best
practices.
Mr. DeFazio. Yes. OK. So they need direction, or what
changes do you----
Ms. Peterson. I think many of our programmatic MOU's and
MOE's should be looked at in terms of how they could be used in
other States.
Mr. DeFazio. OK. All right. Well, we need to follow up on
that, because I am looking to whatever we can do for continuing
problems. I have struggled with this lead agency, agencies
wandering in later and saying, gee, wait a minute, oh, we
should have been here and we haven't been and now we have a
concern at the end. I mean, there has got to be----
Ms. Peterson. Correct.
Mr. DeFazio. And it seems like there are still some
vestiges of that problem.
Ms. Peterson. Yes.
Mr. DeFazio. OK. Thank you.
Thank you, Mr. Chairman.
Mr. Petri. Thank you.
Mr. Duncan.
Mr. Duncan. Well, thank you, Mr. Chairman.
And, Mr. Braceras, you mentioned in your testimony that the
Interstate 15 construction project in Utah was completed in an
unprecedented 35 months, making it the fastest billion-dollar
project ever built. Maybe you have testified about this, but I
have had to be in and out. Would you tell me a little bit more
about how you did this, and are there lessons that you learned
that could be helpful to other States?
Mr. Braceras. Thank you, Congressman, for the question. The
timeframe that we referred to in the project was in relation to
the fact that Utah DOT has been very progressive in
streamlining project delivery. The environmental process and
approval preceded the 35 months to construct the project.
Now, the environmental document, I believe, was unique in
the sense that when we began the document we began it as a
multimodal document and we carried forward into the draft EIS
as both a transit component and a highway component. But as was
testified earlier, one of the improvements that could be made
as we move forward is to be able to complete a decision on both
modes of transportation within the same document.
What happens, and it is what happened to us on the I-15
project in Salt Lake County in 1995 where both the light rail
solution and a highway solution came out of the environmental
process, is when we get to the draft EIS you have to split the
documents apart because there are different formatting
requirements required from Federal Transit Administration
versus Federal Highway Administration.
So that does not really, I believe, send the right message.
Our agencies want to be truly multimodal, and so you would have
to split the documents apart. That is an inefficiency. But in
terms of the timeframe mentioned in my testimony, it was in
reference of supporting the fact that we are doing everything
within our powers to try to move projects forward quickly.
That was a design-build project. Utah is the first DOT in
the country to utilize design-build back in the 1990s. We
continue to use it probably more so than most States. That
process allowed us to achieve incredible outcomes for the
public at a very, very short timeframe with very little impacts
to the traveling public. We kept all the traffic lanes open
during construction when we did it. That total project was a
$1.725 billion project in terms of program costs.
Mr. Duncan. Well, thank you very much. I have not been here
as long as Chairman Petri, but this is my 26th year on this
committee. And I chaired the Subcommittee on Aviation for 6
years and the Subcommittee on Water Resources and Environment
for 6 years and for 2 years this subcommittee when we were
writing MAP-21. And all through all those years we would hear
all these officials come on all the different types of
projects, aviation projects, water projects, highway projects,
and they would tell us it was taking three times as long on
average as any other developed nation to do these different
projects, and of course that made it three or four times as
much in cost. And so we have tried real hard, we tried real
hard in MAP-21 to put in these environmental streamlining
provisions and do more than just lip service.
I was pleased, Mr. Swonke, to hear some of the examples you
gave. You talked about the thousand projects, that you saved 82
years of accumulated waiting time. I mean, it is not just in
Texas. It is all over the country that these delays were taken.
And, Secretary Peterson, I noticed in your testimony you
said that programmatic negotiations have received very low
priority in the Federal agencies' workload. You started to get
into this just a minute ago, and I was interested. You said you
could cut 90 days down to 3 days. Would you tell me a little
bit more specifically what you were talking about or how you
were able to do that?
Ms. Peterson. In general terms, basically between the
different agencies that play a role around how we do different
things, like stormwater management, which is a very, very
important issue within the Puget Sound area of Washington
State----
Mr. Duncan. It is all over.
Ms. Peterson [continuing]. In certain projects we have,
which is the majority, we have reduced the time from 90 days to
3 days for complete review of those projects, because we have
agreed that if it is a project of such and such type, then this
is the type of solution and the type of work that we will do in
response.
Mr. Duncan. Well, my time is up, but I do want to say, Mr.
Swonke, I appreciate your example on the right-of-way, the use
of the right-of-way provisions that we had in MAP-21, because
in this one where you say that you would have had to spend
$100,000 on a very unnecessary environmental assessment. So
thank you very much for the work you are doing in that regard.
Thank you. Thank you, Mr. Chairman.
Mr. Petri. Thank you.
Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman, and thank you to the
panelists.
I am from Illinois, and obviously I think when you look at
this committee, we want to work together. And the T&I Committee
is an example of bipartisanship when it comes to making reforms
that are going to actually lead to more infrastructure
investment and making those Federal dollars that we are able to
spend go further. And that was the goal in MAP-21.
I wasn't here nearly as long as Jimmy Duncan. Heck, I have
only been here a year and a half. So my experience is listening
to you tell us how those changes in the policies that the
people that have served here longer than I have and how they
are actually being implemented.
And, Mr. Kraman, you mentioned something earlier about a
robust appeal process, and that got me thinking, because when
you get to me on freshman row here, most of the questions are
asked, so I want to turn it back over to you. You have seen
some of the policy changes that we have made. If you look at
WRRDA, another example of bipartisanship coming out of this
committee, I was excited as a freshman to even be able to serve
on that conference committee, but changing policies in WRRDA is
projected to reduce what I call the paperwork process that the
Corps of Engineers uses, which is design engineering, and we
all know, and the environmental reviews and the different
studies, is projected to change it from an average of 15 years
right now to 3 years. Which I think we all agree that saves
taxpayers billions, because you are getting to the
infrastructure investment sooner and you are not spending
precious Federal dollars on studies that can be run
concurrently.
So looking now at MAP-21 and what has been done, can each
of you tell me a recommendation you would have, a policy change
that could make the process even better as we move into this
discussion on a complete reauthorization for highways and
transit. So we will start with you, Mr. Kraman, because you did
mention the robust appeal process.
Mr. Kraman. OK. Well, the first suggestion I would have is
that it needs to be a single NEPA process that we go through
that includes the development of the environmental document and
is then utilized in the Federal permits that are needed for
each project. So often we get through a NEPA document, and yet
when we get into the permitting process, like, for example, a
biological opinion from Fish and Wildlife Service, that really
grinds over old ground again and eats up a lot of time in the
process despite the 135-day regulated timeframe that they have
to act within.
I think the appeal process is important, but I would
preface it by saying, if each of the agencies were confined to
their area of expertise as opposed to drifting all over the
map, it may be less necessary, but certainly the lead agency,
which for our project would be the Federal Highway
Administration, when we get disagreements from other agencies,
whether it would be the Corps of Engineers or EPA, there should
be an appeal process that is within the confines of that lead
agency who has the expertise in the type of facility we are
looking at.
It gets gray. I mean, EPA obviously is very interested in
air quality, which is related to traffic, but the Federal
Highway Administration is the expert on traffic. So having the
ability when there is a dispute over traffic that we could
appeal through the Federal Highway Administration in order to
get to resolution.
All of my suggestions are related to putting more of a
timeframe to the process. We do have a great process, public
input being the best part of that process, but we get bogged
down in the time. And from our perspective, a lot of the time
that gets eaten up and added to the process are the different
Federal agencies weighing in from a different point of view
where they would not normally be the lead agency.
Mr. Davis. OK. And that would be your number one priority
in changing some policies, right, in the future?
Mr. Kraman. Yes.
Mr. Davis. OK. I don't have lot of time left, so if you
could just tell me what your number one policy change would be
to make the process even better, that would be great. Go ahead,
Mr. Swonke.
Mr. Swonke. Yeah. Very quickly. I think it goes back to
what I mentioned earlier about the allowance to combine the
planning decisions in the NEPA process. It is conditional now.
It should be more flexible to bring in more decisionmaking from
the planning process into the NEPA process.
Mr. Davis. Thank you.
Ms. Peterson.
Ms. Peterson. Preplanning is essential and bringing
everybody to the table. But the one thing that needs to be
changed is the ability for modal administrations at USDOT to
accept environmental documents approved by other USDOT modal
administrations.
The one thing I would be remiss in not stating is Governor
Inslee, Washington Governor Inslee, serves on the Presidential
task force for climate change, and they are looking at
recommendations for climate and GHG guidance within the next
reauthorization and work on NEPA. So what should we be doing as
States? And that is probably a longer conversation that will
need to be had, but how does that apply to planning and
projects?
Mr. Davis. OK.
Mr. Braceras. Yes. I think we all agree that we want better
outcomes for the public's investment, both from the
environmental, the community, and the transportation
perspective. I think that one of the things we can continue to
do is continue down the path of an outcome-based performance
management process for all of our processes that we do within
the administration of the Federal Highway Program and the NEPA
process as well.
We really need to increase the transparency and the
accountability of how these decisions are being made. Too many
times I see things hiding behind the term of predecisional. It
is difficult for the public to know what is going on behind the
screen, as well as it is difficult maybe for the project
sponsor.
Mr. Davis. Thank you, each of you.
Mr. Petri. Mr. Williams.
Mr. Williams. Thank you, Mr. Chairman. Also, thank you for
your leadership. Appreciate you.
I want to thank all of you for being here today. And, Mr.
Swonke, thank you for being here. Thank you for your leadership
in working through some difficult times.
I am a business guy. My district goes through Texas, goes
from Fort Worth through Austin, a lot of highways, a lot of
action going on. And I wish that the Federal Government would
treat the States more like customers rather than adversaries.
The first question to you is, as we hold this hearing,
examining the impact of environmental reviews on transportation
projects, the House Natural Resources Committee is meeting as
we speak to mark up legislation on the Endangered Species Act.
Would you tell us how the Endangered Species Act and its
requirements impact transportation projects?
Mr. Swonke. Certainly. I think we have got quite a few
listed species in the State of Texas that we deal with when it
comes to transportation projects, and we often run into the
impacts of these species and have to go through Fish and
Wildlife Service for the ability to move forward on these
projects. And so on a case-by-case basis when we run into the
problem of a listed endangered species. Right now we are
working on a project in south Texas that has to do with the
endangered ocelot and the idea that that ocelot is being hit by
passing cars crossing the roadway and what kind of a mitigation
we can do. And we have been having discussions on this issue
for over a year now. And certainly something needs to be done,
we are moving forward with some mitigation options, but it is
just the course of the discussions having been in place for
well over a year.
We have got instances of that around the State, that you
enter into this coordination process, and we have to follow
that path to completion. As I mentioned earlier, we are getting
better at that with the liaison we are working with. I know
other States probably have a similar success story with working
with the Fish and Wildlife Service liaison on this, and we have
seen similar improvements in that process.
Mr. Williams. Thank you. My second question would be to
explain how regulations beyond NEPA, like the Clean Air Act,
Clean Water Act, National Historic Preservation Act, and so
forth, are impacting transportation projects. And do you have
any recommendations on how to streamline the approval process
under these laws?
Mr. Swonke. Starting with the Clean Air Act, there are a
number of aspects of the Clean Air Act that affect our work.
And without being able to go into the details right now, that I
think one of the top ones is the idea of regional conformity
and how and when that applies, and then also the effectiveness
of regional conformity, are we seeing real improvements in air
quality when it comes to the compliance with regional
conformity. Also compare that to the improvements in air
quality you are talking about when you are talking about
cleaner fuels, more efficient engines, and things like that.
And so what is the relative improvements that we are getting
out of conformity. And then there are upcoming Clean Air Act
rulemaking that we are expecting, and those could have some
pretty big implications on our work as well.
The second regulatory issue is the section 404 of the Clean
Water Act and working with the Corps of Engineers on that. The
working relationship is fine, but it is just the steps
necessary for compliance and the time taken for discussions
regarding alternatives, which we usually address in the NEPA
process and going all the way through mitigation, which is an
iterative process as well and can take 2, 3, 4 years to get
through an individual permit, for a 404 permit.
Mr. Williams. Well, thank you for what you are doing. You
have got a great team down there. I enjoy working with you. And
you would agree with me when I said, God bless Texas, wouldn't
you?
Mr. Swonke. Yes, sir.
Mr. Williams. Thank you.
I yield back. Thank you, Mr. Chairman.
Mr. Petri. Thank you.
Mayor Barletta.
Mr. Barletta. Thank you. Looks like I am the last man
standing here today. I would like to congratulate the chairman
on his retirement and thank you for your service and great
work.
Many of the streamlining reforms in MAP-21 were optional,
and you as State officials have the choice to take on new
environmental authorities. I am going to ask all of to touch on
this. Are there any optional MAP-21 reforms that as a State you
are choosing not to use, and if so, why not?
Mr. Braceras. There are none that we are choosing not to
use. Some of them are taking a little bit to progress through
our State legislative process, honestly. As was mentioned
earlier, we have had a delegation for categorical exclusions
for quite some time. It has been very successful.
We made a conscious decision at that time to work with the
State legislature to waive sovereign immunity. It sounds scary.
In fact, it is not. At the end of day it won't result in any
change in the way we operate, so we only went forward with the
CATEX. So now we are trying to obtain sponsors and work with
our legislature to get the full delegation authority for EAs
and EISs as well.
So we applaud the Congress for providing flexibility to the
States, but also holding us accountable for administering and
adhering to the laws of this country. So I believe application
and decisionmaking closest to the customer usually yields the
best results.
Mr. Barletta. Ms. Peterson.
Ms. Peterson. The portion that we are not pursuing, the
only portion we are not pursuing is complete delegation, while
other States may want to do that. We find that FTA and FHWA as
partners at the table with us is the most appropriate way for
us to move forward. And we also have worked with our attorney
general's office on the cost and benefits of taking on that
risk and liability. So we choose to prefer to go the
programmatic categorical exclusion way, but not pursue full
delegation.
Mr. Barletta. Mr. Swonke.
Mr. Swonke. Yes. I don't think there are any that we are
choosing not to pursue, although the conditional requirements
for the combining of planning and NEPA documents is something
that we can move forward with the planning document and get
some NEPA-like decisions out of that planning document before
we get the NEPA document to where we don't use the MAP-21
provision because of the conditions, but we try to achieve the
same effect going somewhat around that and getting some early
decisionmaking.
So it is not that we don't choose to use it, it is just
that it is not as applicable as we would like for it to be.
Thank you.
Mr. Barletta. Mr. Kraman.
Mr. Kraman. Well, certainly as a local agency I can't speak
for the State, but already having the pleasure of delegation,
the staffing levels for that and keeping up with the workload
is something that is very important within the State, and we
look forward to continuing improvements in each version of the
bill, as it helps us work through this process.
Mr. Barletta. Mr. Kraman, when I read that the Fish and
Wildlife Service took eight times longer than the deadline in
the Endangered Species Act, I couldn't help but remember my
days as mayor. I was running for office in 1999, and the main
street in downtown Hazleton was getting a total reconstruction,
and I thought how lucky was I. You know, I am running for
office, I am going to get elected mayor and people are going to
think that I actually had something to do with this new
downtown.
Well, I won one term and served, I won my second term and
served, I won my third term, and the project still wasn't done.
Because of the delays, that $10 million project ended up being
a $26 million project and the scope of the project was
drastically cut down because of all those delays.
We all know that we need to be investing in infrastructure
now. As we delay projects, whether it is due to insufficient
funds or burdensome studies and reviews, the project becomes
more expensive. Can you tell me about the cost overruns of your
project?
Mr. Kraman. The construction costs that we are looking at
now after this is probably $700 million to $1.4 billion higher
in order to finish a 16-mile project.
Mr. Barletta. Again, I want to thank you all for what you
do. It is not easy work, right? I certainly appreciate it.
Thank you.
Thank you, Mr. Chairman.
Mr. Petri. Thank you.
Before we wrap things up, I just thought I would ask Mr.
Braceras, who is here also as chair of the National Center for
Environmental Excellence, if there is anything that you had to
add to the discussion that we haven't discussed at this point?
Mr. Braceras. Mr. Chairman, I appreciate the question.
Nothing specific comes to mind. The AASHTO Center is very
focused on trying to help States and other partners just do a
better job in the NEPA process. That is the complete focus that
we have. I know we have seen the benefits of the center, and we
appreciate the Federal Highway Administration being a partner
in helping fund that center.
Mr. Petri. Thank you. Thank all for your testimony.
I would like to ask unanimous consent 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 the record remain open
for 15 days for additional comments and information submitted
by Members or witnesses to be included in the record of today's
hearing. And without objection, I guess we can proceed.
If no other Member has anything to add, this subcommittee
stands adjourned.
[Whereupon, at 11:46 p.m., the subcommittee was adjourned.]
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