[Senate Hearing 113-730]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 113-730

                   IMPLEMENTING MAP	21'S PROVISIONS 
                     TO ACCELERATE PROJECT DELIVERY

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 18, 2013

                               __________

  Printed for the use of the Committee on Environment and Public Works




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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED THIRTEENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware           JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     MIKE CRAPO, Idaho
TOM UDALL, New Mexico                ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon                 JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York         DEB FISCHER, Nebraska
MAZIE K. HIRONO, Hawaii

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                            C O N T E N T S

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                           SEPTEMBER 18, 2013
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     2
Udall, Hon. Tom, U.S. Senator from the State of New Mexico.......     3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     5
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska.......    20

                               WITNESSES

Porcari, Hon. John D., Deputy Secretary of Transportation, U.S. 
  Department of Transportation...................................    21
    Prepared statement...........................................    24
    Responses to additional questions from Senator Boxer.........    30
    Response to an additional question from Senator Whitehouse...    32
    Responses to additional questions from:
        Senator Vitter...........................................    33
        Senator Inhofe...........................................    35
Ashe, Hon. Daniel M., Director, U.S. Fish and Wildlife Service...    41
    Prepared statement...........................................    43
    Responses to additional questions from Senator Boxer.........    49
    Response to an additional question from Senator Whitehouse...    51
    Responses to additional questions from Senator Inhofe........    52
Sutley, Hon. Nancy, Chair, Council on Environmental Quality......    53
    Prepared statement...........................................    55
    Responses to additional questions from Senator Boxer.........    64
    Response to an additional question from Senator Whitehouse...    65
Come, Joseph, Assistant Inspector General for Highway and Transit 
  Audits, U.S. Department of Transportation......................    67
    Prepared statement...........................................    69
    Responses to additional questions from:
        Senator Boxer............................................    88
        Senator Vitter...........................................    90

                          ADDITIONAL MATERIAL

May 10, 2013, New York Times article, Heat-Trapping Gas Passes 
  Milestone, Raising Fears.......................................   133

 
                   IMPLEMENTING MAP-21'S PROVISIONS 
                     TO ACCELERATE PROJECT DELIVERY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 18, 2013

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full Committee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Building, Hon. Barbara Boxer (chairman 
of the full Committee) presiding.
    Present: Senators Boxer, Vitter, Inhofe, Barrasso, Cardin, 
Udall, Whitehouse, and Fischer.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. We are here to conduct oversight on the 
bipartisan Moving Ahead for Progress in the 21st Century, MAP-
21, which President Obama signed into law on July 6th, 2012. 
The U.S. Department of Transportation is charged with 
implementing the many policy improvements included in that law, 
which is expected to save or create nearly 3 million jobs 
throughout all sectors of the economy.
    As the authorizing committee of jurisdiction, we all have a 
great interest in ensuring that the transformational reforms 
included in MAP-21 are properly implemented. Senator Udall has 
expressed concerns and I promised him we would have this 
hearing to focus on project delivery.
    During the development of MAP-21, one of the most common 
messages we heard was that transportation projects take too 
long to be completed, years and years and years. Delays in 
project completion drive up costs while delaying the benefits 
to travelers and benefits to the environment which will result 
from a more efficient transportation system. To address these 
delays, MAP-21 included nearly two dozen provisions addressing 
project delivery while preserving public health and 
environmental protections.
    It is important to note that transportation projects are 
delayed for a wide number of reasons, including lack of 
funding. MAP-21 includes policy reforms that should help all 
aspects of project delivery from the planning process to early 
consultation to more efficient and innovative contracting and 
construction methods. Examples of the key improvements include 
accelerating Federal agency decisions through the establishment 
of meaningful deadlines and the use of an effective issue 
resolution process, promoting early coordination, and I think 
that is key. I know some agencies don't like it, but I think 
early coordination is critical. And encouraging reviews to be 
conducted concurrently and allowing planning materials to be 
better integrated into the review process.
    I do believe that these provisions will have a meaningful 
impact to help deliver thoroughly reviewed transportation 
projects more quickly. In fact, we have already seen tangible 
benefits from projects that have utilized the MAP-21 
provisions. I will give you an example.
    Following the collapse of the Interstate 5 bridge in 
Washington State early this year, State officials were able to 
utilize one of the MAP-21 provisions, a new categorical 
exclusion for emergency repairs of roads and bridges damaged in 
a disaster. Now, I want to make a point here. As we see the 
climate change, and we see the flooding increasing, and we see 
the problems we are facing, we need to have this categorical 
exclusion for emergency repairs of our roads and our bridges 
that are damaged in a disaster.
    And that is what we did. I am very proud of the work that 
we did, because it allowed for a very fast repair and a 
rebuilding of a permanent span across the Skagit River.
    While some of MAP-21's project delivery provisions were 
implemented in short order, many of the other provisions 
require DOT to develop and issue new regulations. It is 
important that DOT stay focused on completing these rulemakings 
in order for the public to benefit from these reforms. Remember 
what we want is speedier delivery with all the protections for 
the environment and public health built in.
    Today we will get an update on the status of the MAP-21 
provisions, and I do look forward to hearing from all the 
witnesses here and the Inspector General. And now I call on my 
ranking member, Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Madam Chair, very much, and 
thanks to all of our witnesses and the members here. I 
certainly agree, this is an important hearing. Any legislation 
is only as good as its implementation. That is why we are 
having oversight hearings to make sure we stay on track with 
regard to implementation. And certainly a key goal and focus of 
MAP-21 was accelerating project delivery. So I really applaud 
and welcome this focus.
    The desire for that reform grew from something pretty 
simple and basic, real frustration over projects stuck in 
bureaucratic purgatory. In Louisiana, just as an example, the 
Houma-Thibodaux to LA 3127 connection, that is a project 
designed to serve as a primary north-south artery to provide 
direct access to the I-10 corridor and serve as a critical 
evacuation route for emergency and disaster situations.
    As this poster shows, this project has been bogged down in 
an analyst EIS process for over 9 years, with really no end in 
sight. After a very costly, very long process, the project has 
gone through 25 NEPA steps but has yet to produce one job. And 
again, to underscore what the Chair said, nobody is saying get 
rid of the NEPA process, nobody is saying get rid of the review 
process. But it needs to be far more efficient and 
straightforward.
    So before the passage of MAP-21, there was a growing 
consensus on all levels that a project delivery and that NEPA 
process was broken and in real need of reform. First, the 
average delivery of major highway projects was 14 years from 
start to finish. Second of that, the average time for 
environmental review for major transportation projects had 
increased to a staggering 8 years, up from 3 and a half years a 
decade before.
    Third, in spite of the fact that the average EIS spanned 22 
pages in length when NEPA was first written, today major 
projects often seen these documents at over 1,000 pages. That 
is just unacceptable. And it translates into this bureaucratic 
purgatory and increased costs and endless delay that we are 
talking about. So we included real concrete provisions in MAP-
21 to make changes to that. That is what we are going to see 
today, what progress there has been.
    I want to underscore two things. First of all, we have 
already seen some success stories. For instance, last Sunday 
Washington reopened its new I-5 bridge just 4 months after its 
collapse because of provisions in MAP-21 to allow projects 
damaged in an emergency situation to have expedited review. In 
addition, projects such as I-69 in Indiana, the Highway 62 
corridor in Oregon and the Illiana Parkway in Illinois and I-90 
avalanche bridges in Washington have all benefited from another 
MAP-21 provision that allows for documents to be published 
concurrently, a simple step that streamlines the process.
    But I think more needs to be done. In particular, I want to 
strongly encourage DOT to set concrete target dates for the 
implementation of both specific provisions and overall 
implementation of the streamlining we are talking about. My 
understanding is that within DOT, there are not specific target 
dates for this implementation. I think that has to change.
    So I look forward to all of the testimony and a very 
productive discussion. Thank you, Madam Chair.
    Senator Boxer. Thank you, Senator.
    Senator Udall.

             OPENING STATEMENT OF HON. TOM UDALL, 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Udall. Thank you, Madam Chair. I want to thank you 
and your staff for working so hard on putting this hearing on 
today, and thank you for your mention in your opening.
    I think we all want to be responsive to an issue that 
frustrates many of our constituents and project developers, 
that is, project delays. This Committee is seeking solutions to 
accelerate and streamline important infrastructure projects in 
all of our States.
    But here is my concern. We are going down this road 
assuming that NEPA is the problem, without fully understanding 
that impacts that NEPA streamlining can have. And we are 
applying provisions developed for highway projects to a variety 
of other situations, such as the WRDA bill. A one size fits all 
solution is not the answer. I strongly believe that NEPA 
reviews are often unfairly blamed for project delays. The No. 1 
concern I hear in New Mexico is about funding. That is what is 
holding back our infrastructure development.
    For over 40 years, the National Environmental Policy Act 
has been the foundation for sound Federal decisionmaking. NEPA 
reviews ensure that environmental consequences of Federal 
actions are fully evaluated and fully accounted for before 
decisions are made. That saves taxpayer funds from being wasted 
on destructive projects.
    NEPA reviews foster robust evaluations of Federal 
activities by Federal resource agencies, and perhaps most 
critically, NEPA makes sure that the public has a say, has a 
voice in decisions that affect the health, safety and economic 
well-being of millions of Americans, decisions that impact the 
Nation's treasured natural resources, provide transparency in 
the use of their hard-earned tax dollars. It is crucial that 
the public be heard.
    Critics of NEPA complains that the reviews are too long, 
too time-consuming. There is always room for improvement. But 
NEPA reviews also expose the true costs of ill-conceived 
proposals and environmentally damaging proposals. More often, 
NEPA leads to better projects and substantial savings for 
taxpayers.
    Last July, President Obama signed into law the 
Transportation Authorization bill, MAP-21. MAP-21 provided 
funding for surface transportation in 2013 and 2014. It also 
made some significant policy changes. The goal was to improve 
project delivery and cut costs.
    Many legal experts and conservationists have expressed 
concern about these provisions, that they limit the time for 
review, that they remove the public from the process, they 
endanger and that they endanger the environment, and that they 
may allow agencies responsible for projects to pressure 
agencies like EPA and the Fish and Wildlife Service into 
approvals. That can lead to litigation, more delays and more 
costs.
    While we are looking into these issues, Congress is looking 
to use the streamlining reforms in MAP-21 as a template for 
many other projects. For example, we recently passed a Water 
Resources Development Act that applies these provisions to all 
Army Corps projects. The Energy Committee is considering 
similar approaches for a forestry bill and energy 
infrastructure, like pipelines. All told, over 30 pieces of 
legislation, counting both House and Senate, have been 
proposed, all aimed to streamline or limit environmental 
reviews. This is hasty, it is premature, and it may do more 
harm than good.
    These bills now under consideration would limit public 
input and government transparency and environmental review. 
NEPA guarantees that all stakeholders, which includes 
businesses, private property owners, tribes, low income 
populations and all variety of taxpayers, have a say. They have 
a voice in Federal decisions affecting their communities.
    Streamlining review of a reconstruction of an existing 
highway may make sense. But I am concerned that applying these 
proposals much more broadly will undercut this crucial process 
and that there could be profoundly dangerous repercussions for 
energy permitting, our fresh water supplies, for how our 
infrastructure is built, how public lands are managed, and how 
the Nation responds to climate change, one of the critical 
issues of our century.
    So again, Madam Chair, I know we are looking for solutions 
and I am hopeful that we can work together to find them. We 
must take the time to understand the impacts of the proposals 
and craft the kinds of solutions that will truly increase 
efficiencies and promote smarter projects. I hope that is what 
this hearing is, the beginning of looking at that.
    Thank you, Madam Chair.
    Senator Boxer. Thank you, Senator.
    Senator Inhofe.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Madam Chair. My staff has put 
together a brilliant opening statement for me, which I am not 
going to use, but I ask unanimous consent that it be made a 
part of the record at this time.
    I want to mention a couple of other things. I know a lot of 
my alarmist friends, a lot of whom are in this audience today 
and around this table, are a little distressed with recent 
findings in the science that has come out from the Mail and the 
Telegraph, both of being from London, and the Wall Street 
Journal, and scientists from all around who have observed that 
the Arctic ice cap has increased by 60 percent just this last 
year, and that they are projecting now that we are already into 
a cooling period.
    I only bring that up, because I know that is a topic that 
is always very prevalent here in this group.
    Anyway, I will ask unanimous consent to make part of the 
record three of the documents that I just referred to.
    Senator Boxer. Without objection, so ordered.
    [The referenced information follows:]
  
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    Senator Inhofe. Thank you very much.
    The other thing I want to just mention, if I could, and you 
can see, I think the audience already knows, we have both 
occupied the same position that you are occupying today, so we 
both know it pretty well.
    Senator Boxer. We know what, that climate change is real?
    [Laughter.]
    Senator Inhofe. No. Procedures.
    I know that, Ms. Sutley, I will just kind of forewarn you, 
I have a couple of questions I will be asking at question time 
having to do with some of the alleged conflict of interest or 
maybe violation of the Hatch Act, as a result of two things 
coinciding at the same time: one, your event that you had, two 
events I guess in Providence and Hartford, and at the same 
time, the Organizing for Action, the executive director was 
your former chief of staff, coming out with criticism of a lot 
of Republicans. That is purely a political organization. In 
fact, they hold that thing, all the Republicans at this table, 
along with 131 others, received this award. Actually, it is 
kind of a nice award, the unicorn award.
    But as a result of those accusations, I have sent you a 
letter and I would appreciate very much if we could get a 
response to the specific questions that we asked. I think it is 
something that at least needs to be addressed. There may not be 
anything to it. But any time two things happen simultaneously, 
there is always room for suspicion and I think people 
understand that.
    So I will be asking that we make a part of the record the 
three letters, two from me to you, and then one from you to me, 
at this time. That is a unanimous consent request.
    Senator Boxer. It is so ordered. But I will also allow you 
to answer in my question time.
    [The referenced information follows:]
 
 
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    Senator Inhofe. The other thing that I think is very, very 
significant is something that no one has talked about. That is, 
I have to criticize some of my fellow Republicans. When we had, 
Madam Chairman, we had on the floor the authorization bill, 
transportation authorization a year ago, quite frankly, we had 
a lot of demagogues that went down to the floor, or I call them 
born-again conservatives, a lot of whom had supported the $700 
billion bailout. They were talking about the fact that this is 
too much money and all this.
    Clearly, the conservative position in the Highway 
Reauthorization Bill a year ago was to support it. Because the 
alternative was to have extensions. And we know that extensions 
cost about 30 percent off the top. In fact, even the American 
Conservative Union agreed with that.
    Well, I have to say to you, Madam Chairman, that I went 
over, right as soon as we passed that from the Senate, to the 
House, anticipating we might have objections over there. And I 
got all 33 Republican members of the T&I Committee, that is 
Transportation and Infrastructure Committee of the House, in 
one room where I explained to them what the real, true 
conservative position was, and that was to give us a well 
thought-out transportation reauthorization bill.
    I this I outlined, and I have to say this publicly, and I 
have said this before, that I admire and respect so much our 
Chairman for going along with a lot of the reforms that I don't 
think she was all that comfortable with. We all gave a little 
bit to have this bill a year ago now.
    The reason I bring that up is that this meeting is about, 
maybe we are dragging our feet a little bit on implementing 
these changes. But when I told them about all of the changes 
that took place in this bill, and I am talking about the NEPA 
reforms, the streamlining, the ET reforms, they all were 
shocked to find that out, because they hadn't had a lot of 
publicity.
    So I would say this. We can have just as much support from 
the Republicans in the House of Representatives if we are 
successful in coming up with a transportation reauthorization 
bill, as we did last time. But if we don't move on all of these 
reforms, and that is the subject of this Committee hearing, we 
are not going to have a chance at getting it done. So we are 
going to be really trying to do that in hopes that we will be 
able to get a robust highway reauthorization bill, which I 
think we all want, at least at this table.
    Thank you, Madam Chair.
    [The prepared statement of Senator Inhofe follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    Thank you, Chairman Boxer. Thank you to our panelists. I 
appreciate this opportunity to check in on the significant 
strides MAP-21 made in accelerating project delivery.
    I recognize this hearing is highway focused, however with 
my good friend Dan Ashe on the panel, I can't miss this 
opportunity to address an ESA issue regarding two species which 
negatively affect development in Oklahoma and nine other 
States. Although we have a good story to tell on NEPA 
streamlining in MAP-21, ineffective Endangered Species laws not 
only endanger the accomplishments of this bill, but damage many 
other industries and private landowners in Oklahoma.
    The hallmark of MAP-21 is its streamlining provisions. 
Government regulations slow down projects and delay progress. 
MAP-21 created hard deadlines to lessen red tape, to create 
greater certainty for project sponsors and eliminate costly 
delays, which waste taxpayer money.
    Despite these reforms, I am concerned that they are not 
being implemented properly. In July of last year the Oklahoma 
Department of Transportation notified the Oklahoma Division of 
the Federal Highway Administration of their intent to begin 
processing projects as automatic NEPA exemptions based on the 
clear language of Sections 1316 and 1317 of MAP-21. ODOT was 
immediately met with some hesitation from DOT pending the 
completion of rulemaking and the release of guidance from 
Washington. Over a year later ODOT is still waiting for 
clarification, which we should already have. In fact, halfway 
through this reauthorization, we are still waiting for a final 
rule on these sections--almost a full 7 months overdue.
    Furthermore, the Federal Highway Administration has 
released proposed rulemaking which seems to narrow the NEPA 
exclusions Congress wrote into MAP-21. This has created 
uncertainty, confusion, and further delays--the exact 
conditions MAP-21 is supposed to improve. This Committee should 
not give any consideration to, should not even discuss another 
highway reauthorization until the MAP-21 reforms are finalized 
and implemented.
    It is my hope that these issues will be addressed to today. 
I appreciate you all being here and look forward to your 
testimony.

    Senator Boxer. Thank you very much.
    Senator Fischer.

            OPENING STATEMENT OF HON. DEB FISCHER, 
            U.S. SENATOR FROM THE STATE OF NEBRASKA

    Senator Fischer. Chairman Boxer and Ranking Member Vitter, 
thank you for holding this hearing today to discuss 
accelerating delivery of transportation projects.
    This is an important topic that we must continue to examine 
as we seek to balance transportation and infrastructure needs 
with environmental protection and community concerns.
    I am pleased that this Committee will be meeting again soon 
to discuss the need to invest in America's infrastructure and 
preserve Federal transportation funding. In an age of very 
limited funding for transportation projects, we must ensure 
that our resources are devoted to tasks that truly add value to 
the projects and are not wasted on piling up paperwork that 
only serves to fulfill bureaucratic requirements.
    The point should be to maximize results, not process. Our 
own State's department of roads will attest that the 
environmental process often does not appear to have outcomes in 
mind. They have urged us to consider ``bearing in mind the 
scope of the project: is the process proportional to the risk 
of actual environmental, historical or social harm? If the 
process is not outcomes or performance based, what is its 
purpose and what is being achieved?''
    All too often, unfortunately, the process is not 
proportional to the risk of harm. Time and resources are 
expended on exercises that add no meaningful environmental, 
historical or social benefit. Our Governor, Dave Heineman, 
recently wrote to Secretary Foxx to voice concern about one 
particularly troubling situation that the Nebraska Department 
of Roads encounters all too frequently, a problem that our 
State hopes can be addressed, at least in part, by ongoing 
rulemaking under MAP-21.
    Nebraska develops hundreds of projects each year that meet 
the criteria of the state of good repair project within the 
existing right of way. Currently, the amount of time, effort 
and expense required to document in a categorical exclusion 
that such projects will not cause significant impact to the 
environment is far out of proportion to the environmental and 
social risk of the undertakings. These CE documents typically 
run in excess of 20 pages, require consultation with multiple 
regulatory agencies, and add many months to the project 
delivery schedule.
    Our State has implored the Department of Transportation for 
help in resolving this issue as DOT undertakes rulemaking for a 
new categorical exclusion for any project within an existing 
right of way. I look forward to discussing this and other ways 
that we can work together so we can ensure our limited 
infrastructure resources are focused on meaningful outcomes and 
transportation projects are delivered in a timely manner. Thank 
you.
    Thank you, Madam Chair.
    Senator Boxer. Thank you so much.
    We are going to move to our esteemed panel, and we are 
going to start on this end, with Hon. John Porcari, who is 
Deputy Secretary of Transportation of the U.S. Department of 
Transportation. Please begin.

    STATEMENT OF HON. JOHN D. PORCARI, DEPUTY SECRETARY OF 
       TRANSPORTATION, U.S. DEPARTMENT OF TRANSPORTATION

    Mr. Porcari. Chairman Boxer, Ranking Member Vitter and 
members of the Committee, thanks for inviting me here today to 
discuss the Department of Transportation's work to improve the 
delivery of transportation projects.
    At DOT, we are committed to providing the American people 
with a safe and efficient transportation system. We never stop 
looking for better ways to do our jobs. That is why we are 
working to deliver infrastructure projects more efficiently and 
to stretch the value of every dollar.
    We are accomplishing this through the implementation of our 
current transportation bill, MAP-21, as well as the 
Administration's ongoing efforts to expedite environmental 
permitting and reviews. As you know, MAP-21 laid out a number 
of provisions designed to move infrastructure projects from 
conception to completion more efficiently.
    Immediately after passage, we began working aggressively to 
fulfill all of these requirements. We have an internal working 
group that I chair that is focused on doing that.
    The Federal Highway Administration estimates that annually, 
about 9,700 projects are covered by categorical exclusions 
which involve no significant environmental impacts and require 
limited documentation, analysis or review under NEPA. 
Approximately 130 environmental assessments are processed in a 
year, which can take just a couple of months to complete, if 
done right. And 37 projects on average require a full 
environmental impact statement, which is the most rigorous form 
of NEPA analysis.
    While the EIS projects represent only a tiny minority of 
projects, they also tend to be the most important and 
transformational projects. They are the same changers. Of the 
projects completed each year, it is estimated that 98 percent 
are CEs, 1.7 percent are environmental assessments and only .3 
percent are environmental impact statements.
    One of our highest priorities under MAP-21 was to establish 
a new categorical exclusion for emergency projects that allows 
us to get to work repairing and reconstructing infrastructure 
faster. As both the Chairman and Ranking Member have mentioned, 
when a section of the I-5 bridge in Washington State collapsed 
in May, we had this exclusion in place to restore the critical 
piece of infrastructure. The temporary bridge was in place 
within 3 weeks, and just a few days ago, last weekend, I am 
pleased to say that the new permanent bridge was slid into 
place, and it is now open to traffic.
    Another accomplishment under MAP-21 is the new combined 
final environmental impact statement and record of decision, 
which cuts down on the review time. That has already allowed 
four major projects to be completed a month faster.
    Additionally, we have published a proposed rulemaking on 
the Surface Transportation and Project Delivery program, which 
allows States to assume responsibility for certain 
environmental reviews. For example, we are already working with 
the State of Texas to take on those authorities.
    Our efforts to speed project delivery go far beyond MAP-21, 
including the Federal Highway Administration's Every Day Counts 
initiative. Every Day Counts shares best practices with project 
sponsors around the Country to shorten project timelines, save 
money, enhance safety and protect the environment. Communities 
around the Country are already benefiting from this. This is an 
ongoing process for us.
    One of those best practices that we would like to see 
employed by everyone is the development of programmatic 
agreements. These agreements allow project sponsors to 
collaborate with resource agencies to develop a broad approach 
to addressing common environmental problems, rather than 
repeatedly developing individual mitigation plans for repeated 
projects. A great example of that partnership with the U.S. 
Fish and Wildlife Service is the Indiana bats, a larger 
approach which protects both the resource and permits projects 
to move more quickly.
    We have also worked with the advisory council on historic 
preservation to address historic assets while making 
improvements on bridges built after 1945. These are concrete 
and steel bridges, these are not old wooden covered bridges. 
But the advisory council has jurisdiction over them. So we now 
have a pre-approved process that applies to every project like 
that that lets the projects comply with Section 106 in advance.
    President Obama has called on us to clear away the red tape 
that slows down too many construction projects. We are proud to 
answer the President's call on that. We are committed to 
achieving this goal by cutting the review and permitting 
timelines in half for major infrastructure projects. In 2011, 
we worked closely with our partners to establish aggressive 
environmental and permit review timelines for the first six 
high priority transportation projects. Thanks to these efforts, 
we were able to complete the environmental impact statement for 
one of those six, New York's Tappan Zee Bridge, in 1 year. That 
is reducing the overall timeline for a major EIS by as much as 
3 or 4 years. So we have built on this progress by identifying 
an additional 15 projects that have national or regional 
significance for expedited reviews. We are making it easier for 
everyone to track these projects by approving the public 
dashboard, which displays nationally and regionally significant 
project schedules and helps institutionalize the best 
practices.
    Senator Boxer. Could you sum it up? We are running out of 
time.
    Mr. Porcari. Yes. Chairman, in short, we believe that we 
can bring measurably better outcomes in return for a faster, 
more predictable process. That is our mission statement.
    [The prepared statement of Mr. Porcari follows:]
    
    
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    Senator Boxer. Thank you very much. We turn to Hon. Dan 
Ashe, Director of our Fish and Wildlife Service. Welcome.

          STATEMENT OF HON. DANIEL M. ASHE, DIRECTOR, 
                 U.S. FISH AND WILDLIFE SERVICE

    Mr. Ashe. Thank you, Chairman Boxer, Ranking Member Vitter 
and members of the Committee. It is a pleasure to be here 
today, and thanks for the opportunity to testify and present 
our views on MAP-21, which of course is the law, and the Fish 
and Wildlife Service and our employees stand ready to help 
effectively implement this law and other laws related to 
delivering infrastructure projects throughout the country.
    I think that I would start off by giving kudos to my 
colleagues at the Department of Transportation. I think they 
have taken effort to build a good and cooperative relationship 
with the Fish and Wildlife Service and other resource agencies 
in the implementation of the MAP-21 provisions. As with the 
agreement that John Porcari mentioned, the Indiana Bat Multi-
State Habitat Conservation Plan, where we see these cooperative 
efforts being grown up and being supported within the different 
agencies, and they have worked with the Fish and Wildlife 
Service to help partner and fund liaison positions between the 
Fish and Wildlife Service and the Transportation Department, we 
have seen material efforts and success in expediting these 
projects.
    That is really the importance and the provisions in MAP-21 
that focus on early collaboration and trust, communication and 
respect for one another's mission, I think those are the 
provisions that really help build success and lasting success. 
I think our major concern about MAP-21 is really focused on 
what we like to call the penalty provisions. Because I think 
those provisions really are the antithesis of building a 
cooperative relationship. They seem to subordinate the mission 
and the purpose of natural resource agencies. They are the 
opposite of building trust and collaboration. They seem to be 
based on the assumption that transportation project delays are 
due to the environmental review process.
    And at least from the standpoint of the Fish and Wildlife 
Service, the data don't bear that out. In the Endangered 
Species Act, Section 7 consultations on transportation projects 
between 2008 and 2012, our median response date on Section 7 
consultations is 69 days. Our median response date on NEPA 
comments is 12 days.
    So I think, again, from our perspective in the U.S. Fish 
and Wildlife Service, the data don't bear that out. I think it 
is because the Department of Transportation has built a 
cooperative relationship with the U.S. Fish and Wildlife 
Service.
    So I think also that these kinds of streamlining 
provisions, and again, I'm talking here about the penalty type 
provisions in MAP-21. They haven't been implemented to date, 
and I hope they don't need to be implemented. But I think if 
they are, it is because it is a project where there is 
significant concern and disagreement.
    Usually in those cases time is the thing that allows people 
to come together to reconcile their differences and get a 
project completed. If we are put on a strict timeline with a 
financial penalty at the end of that timeline, it is likely to 
not get to a yes, it is like to get to get to a faster no. 
Because people simply will not have the ability to come 
together using the streamlining and other provisions, and work 
out their differences. And we have seen that work with regard 
to potentially very controversial projects.
    So I think I will just conclude by saying, my father-in-law 
was a tradesman, a sheet metal tradesman. He built over his 
lifetime a very successful business. He helped me a lot and 
taught me a lot about life and about home improvement. And one 
of the things that he taught me, and one of the axioms he 
taught me was, Dan, measure twice, cut once. That I think is 
something to bear in mind here. When we are dealing with 
complex, controversial projects, sometimes speed is not what is 
necessary. Sometimes the investment in time and relationship is 
the most important thing. I think that we can build success 
around that.
    Thank you very much.
    [The prepared statement of Mr. Ashe follows:]
    
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    Senator Boxer. Thank you.
    The Honorable Nancy Sutley, Chair, Council on Environmental 
Quality. Welcome.

STATEMENT OF HON. NANCY SUTLEY, CHAIR, COUNCIL ON ENVIRONMENTAL 
                            QUALITY

    Ms. Sutley. Thank you, Chairman Boxer, Ranking Member 
Vitter and members of the Committee. Thank you for the 
opportunity to discuss the Administration's efforts to 
implement MAP-21.
    We take seriously the development of our Nation's 
transportation infrastructure to improve the mobility of our 
communities and to foster economic growth.
    I would like to discuss the Administration's broader 
efforts to expedite permitting of infrastructure projects and 
the importance of NEPA. NEPA serves an important purpose by 
giving communities the opportunity for input into Federal 
decisions that affect them and ensuring that those decisions 
are informed by good analysis of project impacts. Better agency 
collaboration, as you noted, Madam Chair, combined with good 
guidance to efficiently implement existing authority leads to 
better outcomes for project applicants, for communities, a 
healthier environment and savings for the taxpayers.
    Under this Administration, CEQ has focused on increasing 
efficiency and infrastructure permitting, and identifying new 
areas to improve the performance of the Federal Government, 
including by establishing interagency rapid response teams to 
expedite key projects and by issuing new guidance to improve 
the overall NEPA process.
    I think today sometimes we take for granted that the public 
has a right to participate in Federal decisions. But in fact, 
it was in NEPA that Congress and the President clearly 
established this right. Before NEPA, there was little to 
prevent the Federal Government from simply ignoring the 
environmental concerns of affected communities. At its heart, 
NEPA recognizes that we need to look before we leap into making 
a decision and that the public, business, tribes and State and 
local governments all have a vital interest in Federal actions. 
Their unique knowledge of the risks, consequences and possible 
alternatives to a project can produce better decisions. And 
better decisions reduce the risk of future litigation and 
further delay.
    A few facts about NEPA: More than 90 percent of all Federal 
actions are quickly handled through categorical exclusions, the 
least intensive form of NEPA review. And only a very small 
fraction of projects or decisions require a full environmental 
impact statement.
    Since today's hearing is focused on MAP-21, I wanted to 
provide you with some facts about transportation projects and 
the NEPA process. The Federal Highway Administration estimates 
that annually about 9,700 projects are covered by categorical 
exclusions, 130 use environmental assessments and just 30 
projects, or .3 percent of the projects, require a full EIS. 
And the Federal Transit Administration reports very similar 
percentages.
    Many challenges, as you heard, in major project development 
are often, we believe, incorrectly attributed to the NEPA 
process. Securing funding, local opposition, project complexity 
or changes in scope are more often responsible for delays.
    Major projects often require permits and reviews that cut 
across many agencies and jurisdictions. Under a March 2012 
executive order, CEQ is working closely with OMB and Federal 
agencies to speed the review process. Efforts to modernize 
infrastructure permitting provide important lessons for 
enhancing the efficiency of permitting processes overall and 
maintaining the integrity of NEPA. Bringing agencies, project 
applicants and stakeholders to the table at the beginning of 
the process saves time and money. Establishing mutually agreed-
upon project schedules rather than arbitrary deadlines fosters 
coordination that saves time and money. Concurrent and 
collaborative reviews, as has already been noted, across 
Federal agencies and with other stakeholders saves time and 
money. And making this information available to the public 
through Project Dashboard provides transparency and 
accountability.
    As a result of this work, we have been able to improve 
permitting timelines by several months to several years and 
improve environmental and community outcomes.
    Infrastructure continues to be a priority for the 
Administration. In May, the President issued a Presidential 
memorandum that called on agencies to cut Federal permitting 
timelines for major infrastructure projects by up to 50 
percent.
    We are eager to work with Congress to identify ways to 
expedite transportation project permitting in a manner that 
protects public input and the environment. There are many 
commendable provisions in MAP-21. But we share the concern 
about financial penalties on agencies; arbitrary deadlines are 
meant to permit projects more quickly. In our view, these 
efforts can be counterproductive and may slow project approval 
and increase litigation risk. We are committed to working with 
Congress to focus our efforts on what works and get to the root 
causes of project delays.
    Again, I appreciate the opportunity to appear before you 
and look forward to answering your questions. Thank you.
    [The prepared statement of Ms. Sutley follows:]
    
    
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    Senator Boxer. Thank you. We will now hear from Joseph 
Come, Assistant Inspector General for Highway and Transit 
Audits, U.S. Department of Transportation. Welcome, sir, and 
thank you for your work.

   STATEMENT OF JOSEPH COME, ASSISTANT INSPECTOR GENERAL FOR 
 HIGHWAY AND TRANSIT AUDITS, U.S. DEPARTMENT OF TRANSPORTATION

    Mr. Come. Thank you, Chair Boxer, Ranking Member Vitter and 
members of the Committee. Thank you for the opportunity to 
testify on DOT's actions to address project delivery 
acceleration provisions in MAP-21.
    My statement today is based on our May 2013 letter to the 
Committee, along with some updated information that DOT 
provided last week. We want to let you know our initial 
assessment of DOT's plans for implementing these provisions. 
This initial assessment will serve as a baseline and scorecard 
for future, more comprehensive work which we are mandated to 
conduct under MAP-21. Our mandate extends through fiscal year 
2016.
    As we reported in May, DOT's plan addressed all required 
elements of the law and includes 42 actions, such as issuing 
regulations and guidance, as well as reports to Congress. DOD 
had completed 5 of 42 planned actions, including issuing a 
final rule on categorical exclusions for expediting projects 
after emergencies, we have heard several mentions of that one 
here, and interim guidance on accelerating environmental 
reviews. According to DOT, as of last week, it had completed 
two other actions.
    For most other actions, DOT said it had made progress even 
though more was needed. For example, it met the statutory 
deadline for issuing a combined proposed rule on the use of 
categorical exclusions for projects within an existing right of 
way and for projects with limited Federal assistance, but the 
final rule has yet to be issued. Our scorecard is a tough one, 
you have to issue the final rule before it is considered 
finished.
    We observed in our May letter that for some planned 
actions, DOT hadn't yet assigned estimated completion dates, 
making it difficult to gauge progress and ensure 
accountability. DOT officials noted that they were focusing 
first on statutory rulemakings and required reports. And we 
agree, this is a reasonable priority.
    However, establishing milestone dates whenever feasible 
across all planned actions would serve as an important 
management tool for department leadership to promote 
accountability and provide useful status information to key 
stakeholders. For example, if targets are set for issuing 
guidance on a certain topic and made known, officials in the 
States you represent can more readily make plans for 
incorporating new provisions. DOT did tell us last week that 
since our report in May they have set milestones for two more 
final rules and two more of the pending guidance actions, 
showing progress in this area.
    Still, our May review showed that DOT was already 
experiencing delays with implementing some required rules. For 
example, it missed the January 2013 congressional deadline to 
issue a notice of proposed rulemaking on additional categorical 
exclusions suggested by stakeholders. And publication of the 
rule continues to be delayed. Last week, DOT reported some 
further delays.
    We recognize that the rulemaking process can be time-
consuming, sometimes taking several years, especially when 
interagency coordination and a range of stakeholders are 
involved, as they are often here. Given these challenges, it is 
important for the Department to provide sustained management 
attention on implementing these MAP-21 provisions. The plan 
they have established addresses the required elements, but the 
sooner the provisions are put in place, the sooner States and 
others managing Federal projects can realize the intended 
benefits.
    We will continue to assess DOT's actions and report to the 
Committee on its progress as we carry our statutory mandate to 
assess the Subtitle C provisions for accelerating project 
delivery.
    This concludes my statement, and I would be happy to answer 
any questions that you have.
    [The prepared statement of Mr. Come follows:]
    
    
    
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    Senator Boxer. Thanks.
    So I am going to put a few things in the record, then I am 
going to ask some questions. The first thing I want to put in 
is a letter to us from the American Road and Transportation 
Builders Association. Without objection, we will put their 
comments in the record.
    Then there are three publications. One is a Reuter's 
article saying,scientists are surer than ever that climate 
change is real and happening; a new peer-reviewed report finds 
at least 95 percent likely that human activities such as 
burning of fossil fuels, chiefly, are the main cause.
    And then the next one is a NOAA report that says, 
industrial carbon pollution reached its highest level in human 
history in 2013. And then the third one is the Guardian 
article, suggestions that climate change has slowed look only 
at isolated indicators like surface temperature and ignore 
other important evidence concerning the overall heating of the 
globe, including rapid heating of the world's oceans.
    [The referenced information follows:]
    
    
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    Senator Boxer. So then as usual, Senator Inhofe and I will 
have our articles in the record, and people can make their own 
decisions on where they want to stand.
    I want to start with you, Mr. Ashe. You talked about your 
dad. My dad said, get it done.
    [Laughter.]
    Senator Boxer. He said, get it done. Do it right, don't 
leave anything out, work hard, get it done. So I approach this 
in a very simple way, get it done. And here is the thing. I 
assume that you read Section 1306 of the law, which gives you 
more time. Have you read that section?
    Mr. Ashe. I have.
    Senator Boxer. OK. So I want for the record to show that 
when we worked together, it was hard, we did come from 
different places. But at the end of the day, we did say that 
very clearly, if there was no fault of an agency, and there 
wasn't the information necessary to make the decision, and they 
didn't have the ability to finish their work and there is 
significant new information, I mean, we fought over these 
words. Significant new information, or circumstances including 
a major modification.
    The point is, I hear you. But I honestly think the attitude 
that you are showing to me today is one that is premature. 
Because I think we have handled your problem here. And you are 
absolutely right when you say, the beauty of this and what we 
did is to make sure that every agency is working with the other 
one. This is what we are trying to achieve. This is why I like 
this reform. We have EPA, Corps of Engineers, Fish and 
Wildlife, NOAA, Department of Transportation, all subjected to 
fines.
    But let's be clear: not one penny of fine until 180 days 
after the mutually agreed-upon schedule has not been met. Let 
me say that again. There is a mutually agreed-upon schedule by 
all these folks, am I right, Mr. Come? That is what the law 
says. And not until 180 days after you miss the deadline do 
fines kick in.
    So I guess my question to you is, are you concerned because 
of the way DOT is proceeding? Are you concerned that this 
exception isn't broad enough? Do you have some ideas to us that 
say, make it a broader exception? What are you really worried 
about here?
    Mr. Ashe. Thank you, Chairman Boxer. I guess I would go 
back to my statement. I think with the financial penalty 
provisions, and they haven't been exercised, they haven't had 
to be exercised, I think that what that tells me is the 
streamlining, the emphasis on cooperative work, the emphasis on 
programmatic level planning, that is the solution.
    I think that what I am concerned about is that if those 
financial penalty provisions are exercised, they will have an 
extraordinarily cooling effect. They will destroy years and 
years of work on building productive relationships between 
agencies.
    Senator Boxer. But do you believe that these timetable are 
agreed upon by your agency and every other agency at the 
beginning of the process? That is what has to happen. Do you 
agree with that, that that is the process right now? You have 
to sign off on the timetable.
    Mr. Ashe. No, not necessarily do I have to sign off on the 
timetable. The regulations that are being developed provide a 
timetable under which we would presumably have to act. So I 
think that what we are talking about here again is a process, 
is it a process of collaboration?
    Senator Boxer. I am going to interrupt you. We have a 
disagreement on what the law says. And we are going to get you 
the section of the law. We intend that all the agencies come 
together and there is a mutually agreed-upon timetable that is 
signed off by all the parties involved.
    Now, you don't agree with that, so there is no point in 
continuing this line of question. Why don't I show you? I have 
the cite for you. Bring me the cite, because I think when you 
reach the cite, you will understand. You have the power, along 
with all the other agencies involved, to sign off on the 
timetable.
    Now, President Obama has been very, very clear. This is 
what he said in an Executive order. I want to make sure that 
you all agree with him who work for him. And if you don't, this 
is your chance to say you don't agree with him. It is very 
important. So listen. I am going to ask the three of you.
    He issued an Executive order to expedite permitting for 
infrastructure projects for States: ``Our Federal permitting 
and review processes must provide a transparent, consistent and 
predictable path for both project sponsors and affected 
communities. They must ensure that agencies set and adhere to 
timelines and schedule for completion of reviews, set clear 
permanent performance goals and track progress against those 
goals.''
    Does everyone from the Administration agree with what the 
President has laid out here, and agrees to carry that out?
    [No audible response.]
    Senator Boxer. OK. Well, if I could say, because my time 
has gone over, and I apologize, what we did in this bill, with 
all the hoopla about it, is carry out the vision that President 
Obama suggested here, which is going to be in the record for 
you to look at. And in the law, we gave every agency the power 
to sign off on the deadline.
    Believe me, we had arguments about it. There were some that 
didn't want to do that, but we managed to do that. So let's 
continue this. And I just would say that I take what Mr. Come 
said very seriously. And we are going to keep DOT's feet to the 
fire on this, because this has to be done, because we have to 
do another bill, another highway bill. And if things aren't 
going well here, it is going to create problems for us.
    Thank you, Senator Vitter. I apologize, everyone who needs 
an extra minute has it.
    Senator Vitter. Thank you, Madam Chair, and I certainly 
agree with what you are saying. Let me further that discussion 
a little bit. There was a fair amount of testimony, 
particularly from Mr. Ashe and Ms. Sutley, which talked about 
overall statistics and suggested this isn't a big problem, 
because overall the average is here, or so many non-
controversial projects move this quickly.
    What we are really focused on, I think everybody knows, are 
major transportation projects. And those are relatively few in 
number, but they are enormously important in impact. I don't 
want that to be lost. So let's focus on the real issue, which 
is major highway projects.
    Now, in those major highway projects, the average delivery 
time is 14 years from start to finish. In those major highway 
projects, the average time for environmental review is 8 years. 
And that is up from 3 and a half years just in 2000. And in 
those major highway projects, the average EIS went from 22 
pages when that process started to over 1,000 pages today.
    So my first question is to all of you: Does anyone think 
that reality today on major highway projects is appropriate?
    Mr. Porcari. Senator Vitter, if I may start, we don't think 
it is appropriate and we don't think it is the reality for all 
projects. I come at this as a practitioner, I have twice served 
as a State DOT secretary in Maryland, delivering major 
projects, multi-billion dollar projects and smaller ones. The 
process does not have to be that long. I mentioned the Tappan 
Zee example where a very complicated environmental impact 
statement, with concurrence from all the environmental resource 
agencies and others was basically done in 12 months or less. 
That requires a lot of things: top-level elected official 
support; a project financing plan; front-loading the process so 
all the stakeholders are actually working together and we 
understand each other's needs and interests from the beginning, 
and a real commitment to getting it done.
    One of the venues we have for that, the President put in 
place with the Permits Rapid Response Team that Nancy 
mentioned, she and I co-chair that. It meets bi-weekly. 
Everyone is around the table. We are working our way in a 
positive way to a solution for very complicated projects. 
Because as you point out, these are the game-changer projects.
    Senator Vitter. Right. So just to underscore, Mr. Porcari, 
you agree that those average figures I cited, which are 
accurate, those shouldn't be the averages. We should bring 
those averages way down.
    Mr. Porcari. We should absolutely bring them down. And 
again, my contention is we could have measurably better 
outcomes and a shorter and more predictable process at the same 
time.
    Senator Vitter. Does anyone disagree that on major highway 
projects we should absolutely bring those averages way down?
    [No audible response.]
    Senator Vitter. OK. There was also a lot of discussion 
about 1306, which is what we are talking about, and a lot of 
concern, again, particularly from Mr. Ashe and Ms. Sutley, 
about some of these provisions. I just want to underscore 
again, we are here to talk about implementation. Mr. Come, 
isn't it correct that the provision that they are so concerned 
about has not been implemented? There have been no fines, and 
in fact, there is no concrete implementation plan yet at DOT?
    So I just want to make clear that these are fears, this is 
not experience, is that accurate?
    Mr. Come. Correct. That is not a provision that has been 
fully implemented at this time.
    Senator Vitter. And in fact, has any agency been fined 
under that section?
    Mr. Come. None that I am aware of.
    Senator Vitter. And in fact, has any final guidance been 
issued by DOT about those sorts of fines, et cetera?
    Mr. Come. I don't believe any final guidance has been 
written.
    Senator Vitter. OK. So just to underscore, this is the same 
pushback we got when we talked about this originally. This is 
no experience, we are here talking about implementation, this 
is no experience, positive, negative or anything else about 
implementation. We have yet to get the implementation.
    And then a final question, which I guess is for Mr. 
Porcari, but it comes out of Mr. Come's work. Shouldn't DOT 
have dates for all of these implementation requirements of the 
bill, which we do not have internally yet?
    Mr. Porcari. It is a fair question, Senator. We are 
developing dates for every part of it. Just the magnitude of 
the issue, we thank the Committee for MAP-21, which has a lot 
of great innovations in it. But there are approximately 100 
mandates, and somewhere between 50 and 60 rulemakings embedded 
in MAP-21.
    What we have done is prioritize those. We talked about the 
emergency relief provision being one of the most important.
    We are developing dates and timelines for all of those. We 
have tried to do it in a priority way. I would point out that 
the staff doing this work is the same staff that is working on 
the Permits Rapid Response Team. We don't want to deter them 
from getting these projects out the door.
    Senator Vitter. Well, in closing, I would simply encourage 
you all to finish that work. We are talking about life mottoes, 
I will throw one into the mix, which is, lots of times things 
just don't happen until and unless you have an effective 
deadline. That goes to 1306. Until you have a real deadline, an 
effective deadline, some consequence if you miss the deadline, 
sometimes things never happen.
    So I also bring that up in terms of encouraging DOT to have 
dates follow this implementation. Thank you.
    Mr. Porcari. Thank you.
    Senator Boxer. I agree with that.
    Senator Udall.
    Senator Udall. Thank you, Madam Chair. Since we are all 
quoting our dads here, my dad used to say get it done, but get 
it done right. I think the important thing here is sometimes it 
takes a good solid collaborative effort to get it done right. 
Sometimes that takes a little bit of time. I think all of you 
should be congratulated on working in a collaborative way to 
try to meet deadlines.
    But I think the other thing that I am hearing is that 
timelines with penalties that cannot be altered force you to 
know. We don't want to see that. We want to see the 
collaboration continue. I think that is very important.
    Ms. Sutley, can you tell me how often projects are delayed 
because of environmental review, as opposed to those delayed 
because of funding shortfalls?
    Ms. Sutley. Based on the work that we have seen in our 
experience, in most cases the reason that projects are delayed 
is not related to NEPA specifically, but more related to issues 
around project funding, project complexity, changes in project 
scope and other things, as well as that many projects require 
review at the State and local levels.
    Senator Udall. And if shortfalls are the main cause, have 
we gained or lost anything by streamlining?
    Ms. Sutley. Well, we think that effective streamlining, the 
kind of early collaboration that we have all been talking 
about, the kind of programmatic reviews that are in the 
legislation, these are things that are effective in making sure 
that agencies are leveraging their resources and getting 
through the process faster. I think there are some other parts 
of streamlining which cannot address the funding shortfall 
issues.
    Senator Udall. Thank you.
    Director Ashe, is the sequester affecting your ability to 
do NEPA reviews in an efficient and timely manner?
    Mr. Ashe. Senator, as a result of general budget reductions 
and exacerbated by this sequester, I have 500 fewer employees 
today than I had 18 months ago. This time next year, it will be 
800 fewer employees than I had 2 years ago. And people in the 
field to build cooperative and trust-based relationships is a 
significant liability in terms of getting our work done, 
getting it done promptly, getting it done well.
    Senator Udall. And Director Ashe, in your opinion, is the 
review process broken, or do we just lack the resources? Will a 
deadline help overcome that?
    Mr. Ashe. I don't believe the process is broken. I believe 
that as Deputy Secretary Porcari mentioned, and Chair Sutley 
has mentioned, innovations like the RRT at the Federal level 
are bringing people together so that we can share common 
objectives and we can build common objectives. I think that is 
the key to delivering projects. We need skilled people, we need 
liaisons between Federal agencies. We are learning these 
lessons, we are putting them all to work.
    That is why I really believe that the notion that somehow 
environmental review is the enemy here I think is wrong. I 
think good environmental review supports the development of 
projects that can be delivered and can be delivered on time. It 
is when we ignore those things or try to rush through them that 
I think in the long run we cause delay.
    Senator Udall. And I recognize we are still early in the 
implementation stage. But how do you anticipate the fines 
having impacts on your planning and budgeting?
    Mr. Ashe. Honestly, I don't know how to plan for them in 
terms of budgeting. We haven't seen implementation of the 
provision. But I really believe in my heart of hearts that the 
Fish and Wildlife Service will never see a penalty under these 
provisions, because if we are faced with a hard deadline that 
we can't meet and we are going to face a penalty, then we are 
going to say no. That will be our default position, would be, 
well, if you want a quick answer, then the quick answer is not 
one that you are going to want to hear. So when we are dealing 
with these kinds of complex projects, it is time, and again, 
people who have relationships, trust-based relationships that 
can get us through this.
    Senator Udall. Ms. Sutley, do you have any concerns the 
reviews are less thorough, complete or impactful because of the 
provisions in MAP-21?
    Ms. Sutley. I think that as Mr. Ashe said, the concern is 
that with those kinds of deadlines, if a deadline is looming, 
the natural response, I think, would be to cut the review off 
and get to a no answer. I think we have seen over the life of 
NEPA and other environmental statutes that the kind of working 
together, the kind of collaboration and transparency and public 
input surfaces issues that need to be addressed. When you 
successfully address those you can reduce the time and the 
litigation risk associated with projects, so they can move 
forward.
    Senator Udall. Thank you. Thank you, Madam Chair.
    Senator Boxer. Thank you very much.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chair.
    Mr. Porcari, first of all, I want to make sure that you 
share with your boss, Secretary Foxx, how much we appreciate in 
Oklahoma his participation, which was really the way that we 
should be doing things, going to the source and getting a good 
look. I know he is doing that all over the country. So I 
appreciate it. He was a big hit in Oklahoma.
    Mr. Porcari. I will be happy to do that.
    Senator Inhofe. I would also ask, did you understand what I 
was trying to get to when I talked about politically speaking, 
we are talking here that it is important we cover the things we 
are covering. But the politics is important, as the Chairman 
knows. We need a bill. And a bill, quite frankly, it is more 
difficult dealing with Republicans than Democrats in the 
Senate. But we have overcome that problem in the House.
    The point I was trying to get across is, their support was 
predicated on the assumption that these reforms that we have 
would be taken care of in a very timely fashion. Did that make 
sense to you?
    Mr. Porcari. It does, Senator. And I will tell you, we take 
this very seriously, because we see really a two-fer out of 
this. We can improve the process and get better outcome.
    Senator Inhofe. Good. I agree with that.
    Mr. Ashe, the Fish and Wildlife Service has been working 
with five States' range-wide plan, addressing the Lesser 
Prairie Chicken, and I will sure be glad when we get that 
resolved. I understand the Service will receive the latest 
version today. I believe there is sufficient evidence to avoid 
a threatened listing, and appreciate the Service extending the 
final rule until March 14th. I am sure that Senator Udall 
agrees with me and some others do too, it would be nice if we 
could get that extended to June 2014.
    Service approval of the range-wide plan and the oil and gas 
CCA as soon as possible, it is really crucial to prevent the 
threatened listing following submission of the final draft of 
the range-wide plan today or this week. How early in, let's say 
October, do you think the Service could issue a judgment on 
whether to approve the range-wide plan?
    Mr. Ashe. Thank you, Senator. As we have spoken about 
before, I really applaud the five range States, New Mexico, 
Texas, Colorado, Kansas and Oklahoma, for their work in 
developing a comprehensive strategy for conservation of the 
sage grouse. We had agreed on a timeline with the States, 
cooperatively, sitting down together and working on a timeline. 
The States are a couple of weeks behind their timeline in terms 
of submitting the range-wide plan to us. But we have committed, 
when they get it to us, we will get them an answer in 10 days.
    Senator Inhofe. That is good. That is what I wanted to 
hear, and I appreciate that very much. I think you should be 
getting that today. I know that Senator Udall is on top of 
this, the same as I am.
    That is not the only issue, however. I can't let this go 
without talking about the American Bearing Beetle. On the 15th 
of April, the Oklahoma Department of Wildlife Conservation sent 
you a letter asking that the Service revise the American 
Bearing Beetle recovery plan for the first time in 22 years so 
we can begin the delisting. I wrote you on July 22d, because 
the scientific integrity investigation currently underway at 
the Service involves the American Bearing Beetle in the 
Service's Tulsa and District Office.
    We have not received a response yet. Supervisors at the 
Tulsa Office overrode the decision of biologists to leave the 
trap and relocate the trap, that method, until an alternative 
or a general conservation plan could be reached.
    Now we have our landowners, our developers, our farmers in 
a situation where, in Eastern Oklahoma, they have to withdraw 
from what they normally would be doing, their drilling, their 
farming, their activities, pipelines, and so forth, until the 
Service issues the guidance. So we are kind of in a dilemma 
there. I would ask if the Service planned on a general 
conservation plan in December 2013, which is now slipping into 
April 2014. What will you do to re-evaluate the recovery plan 
and more immediately expedite Service guidance for economic 
development in the range of this insect?
    I know you have heard this before, but the dilemma of 
people out there, time costs a lot of money. What do you think?
    Mr. Ashe. I will try to respond quickly. There is no 
disagreement in the scientific integrity issue and 
investigation that was ongoing is unrelated to the issue of the 
trap and relocate methodology. There was no disagreement and is 
no disagreement within the Service about the science on that. 
The State has requested that we revise the recovery plan. We 
will open discussions with the State about that. Of course, 
going back to Senator Udall's question about the sequester, we 
are an organization under severe stress and have lots of people 
that want us to do lots of things. I think that is a 
significant challenge that we will need to talk about, how to 
resource that effort.
    I think that as regards advice, in the meantime, about the 
American Bearing Beetle, we have to advise avoidance. And trap 
and relocate is a method to avoid and minimize take of Bearing 
Beetle, but it is not an authorization for take. So I think we 
need to continue to work with industry, I think we are, and we 
produced a conservation plan for the southern segment of the 
Keystone Pipeline in record time. So I think we will make a 
commitment to continue working on that issue. But we are where 
we are right now.
    Senator Inhofe. I appreciate that very much. Very good 
answer.
    Madam Chair, my time has expired, but rather than get into 
any questions, Ms. Sutley, I would like just to ask if you 
could respond to my letter, page 2, letter of August 14th. List 
three specific areas of questions, I would appreciate a 
response. Will you do that?
    Ms. Sutley. Senator, we responded to your letter of August 
14th on September 6th.
    Senator Inhofe. Well, you didn't specifically respond to 
the questions. It was a generalist thing saying, no, we did not 
organize that particular event. That is not what I asked. If 
you just don't mind personally reading these three specific 
questions and trying to respond to them, could you do that?
    Ms. Sutley. Yes, Senator. We are also in receipt of your 
letter of September 13th, and we will provide a response.
    Senator Inhofe. Thank you very much.
    Senator Boxer. So now we are going to go to Senator Cardin, 
if he is ready, or Senator Whitehouse. Senator Whitehouse.
    Senator Whitehouse. Thank you.
    Let me ask Ms. Sutley, in your role at CEQ, overseeing NEPA 
throughout all the various Federal agencies, can you identify 
provisions that were included in MAP-21 that would be helpful 
or useful for other types of Federal programs, like water 
projects or energy siting, or any cautionary tales that you 
would offer us about replicating the NEPA provisions for MAP-
21?
    Ms. Sutley. Thank you, Senator Whitehouse. There certainly 
are principles that are embodied in MAP-21 which we think are 
very useful in terms of encouraging up-front collaboration and 
coordination among the agencies, and looking at programmatic 
issues. We believe that under NEPA those are very effective 
tools for ensuring that we are getting through the 
environmental reviews thoroughly and quickly.
    As we discussed, I think we have some concerns about the 
role of penalties and arbitrary deadlines that appear in MAP-
21. I think based on our experience of over 40 years with NEPA, 
these are very different projects, and they have different 
characteristics. We are not convinced that one size fits all--
things that may work in a transportation context don't 
necessarily work in other contexts. We have been working very 
closely with our colleagues across the Administration under the 
President's direction to look at how we do infrastructure 
permitting to employ methods that we know work, to look at 
specific projects as well as categories of projects to try to 
apply some of those principles. So we believe we are making a 
lot of progress there. Thank you, Senator.
    Senator Whitehouse. OK, thank you.
    Madam Chair, let me make a point for the hearing here, 
which is that while I am no fan of bureaucratic of any name, 
nature or kind, the experience that I have in Rhode Island is 
not that NEPA is a barrier to getting infrastructure projects 
done, it is the Congress that is a barrier to getting 
infrastructure projects done, because we won't fund 
infrastructure projects. And I think the lion's share of the 
blame for that goes to the other side of this building, to the 
House of Representatives. I note that we passed a bipartisan, 
comprehensive transportation spending bill and the House can't 
manage that. They can't legislative, it doesn't seem, on 
anything except to repeal Obamacare 40-plus times.
    So one example, we just got the Apponaug Circulator in 
Rhode Island, $10 million through a TIGER grant, that has been 
waiting with its NEPA no significant impact approval for nearly 
a decade now. So it is important, I think, that voices in 
Congress that are saying, oh, it is this environmental 
protection problem that is fouling up our infrastructure, we 
have to look at ourselves. It is Congress' failure to pass 
infrastructure funding. The House hasn't passed our WRDA bill, 
which came out of here with strong bipartisan support. The 
House hasn't passed the transportation bill. These are not 
complicated, ideologically divisive, confrontational type 
issues.
    We can always pass highway bills. We can always pass water 
bills. The problem is we have one body of Congress that has 
become thoroughly dysfunctional in the hands of its extremists 
and so the money isn't there. And that really is the battle 
that I think we need to put our focus on; how do we put the 
money behind infrastructure funding when our engineers give us 
a D for infrastructure, when everybody drives over bumpy roads 
and out of date bridges, when EPA says we have $600 billion in 
water infrastructure deficit that we need to catch up with for 
the sake of our national water infrastructure?
    Please, let's focus on where the problem really is, which 
is Congress and Congress refusing to fund American 
infrastructure. That is the real problem, in my view. Thank 
you, Chairman.
    Senator Boxer. Thank you very much.
    Senator Cardin.
    Senator Cardin. Thank you, Madam Chair. I thank you very 
much, and we know you are trying to get the balance right 
between timely delivery of projects and public expectation, and 
making sure we get it right.
    So I want to start off by giving an example of how I think 
we got it right because of NEPA. It involves, in my State, the 
CSX terminal, regional terminal. Now, there was a strong 
likelihood that that terminal would have been located in 
Elkridge, Maryland, because that was the preferred site. And 
what concerns me, it was the wrong site. It was the wrong site 
and the community had an opportunity under NEPA to make that 
case.
    But I can assure you that under the procedures that are 
contemplated under MAP-21, that would have been in jeopardy. 
Because there was a lot of political forces moving toward 
Elkridge. And there weren't alternatives at that time available 
that would have worked.
    But because of the NEPA process, because we got involved in 
it, yes, the politicians did get involved in the process, there 
was an opportunity to point out that there was a site that was 
even better in the southern part of Baltimore that would work, 
that was an industrial area rather than a community area. At 
the end of the day, it was more cost-effective, efficient, to 
locate it there, and the process worked and everyone is happy.
    So I guess my concern and my question is, how do we ensure 
under the procedures that are included in MAP-21 that 
communities will have adequate input into the process? Do we 
run a risk that because deadlines become so consequential, and 
are determined outside of a negotiated process that takes into 
consideration the complexity of projects, do we run a risk that 
we are really shutting out communities and the public from 
comment under these new procedures? How do we try and make sure 
that doesn't happen? Secretary Porcari, you are very familiar 
with this one.
    Mr. Porcari. I am, Senator. Thank you for your leadership 
on it. As you point out, I think we ended up with a great 
outcome.
    The two things that you mention are not irreconcilable of a 
faster, more predictable process. But also measurably better 
outcomes. And those outcomes can be measured in environmental 
terms, but also community and other terms as well. In that 
specific example, there were very significant environmental 
issues and impacts from the proposed site. By frontloading the 
process, one of the things we are trying to do together is make 
sure that the stakeholders, rather than in a sequential way, 
are involved from the beginning. That includes communities. And 
having them involved earlier in the process gives them a voice 
earlier in the process, where all of the different issues can 
actually be weighed and evaluated and everybody with an equity 
in that project can be represented. We think there are 
significant opportunities for these better outcomes through 
this re-engineered process.
    We all need to be mindful what communities value and what 
the environmental values of a project are important 
considerations that have to be baked in from the beginning.
    Senator Cardin. I would just challenge one statement. You 
are familiar, I am familiar with this project. It was going to 
be in Elkridge. And the timeframe would have been geared toward 
an Elkridge decision.
    But for the process, and we slowed it down a little bit, we 
got the right outcome, we did get the right outcome here?
    Mr. Porcari. We did get the right outcome.
    Senator Cardin. How do we ensure, in the re-engineered 
process, that we are going to be able to get the right outcome?
    Mr. Porcari. The frontloading, from my perspective, also 
includes making sure elected officials are involved.
    Senator Cardin. Now you are stretching the ability here. We 
would like to be involved more.
    Mr. Porcari. Senator, if you go with the alternative, which 
is what has typically happened in the past, and elected 
official involvement is toward the end of the process, then you 
have often down-selected alternatives.
    Senator Cardin. I want to give Director Ashe a chance to 
reply; he looks anxious to reply.
    Mr. Ashe. Excuse me for that.
    [Laughter.]
    Mr. Ashe. I would just say, I think your basic premise is 
right. I think we have been talking about that here today, that 
with good coordination, good communication of expectations with 
regard to deadlines, all good things. I guess my rebuttal to 
that is, can you have too much of a good thing, meaning too 
harsh of a deadline, where a good transparency is lost, public 
then loses the ability to understand and participate in a 
process, I think you can.
    Those are the cases we are oftentimes aware of, the 
environment and natural resources suffer the consequences of 
that. In the long run, communities suffer the consequence of 
that.
    Senator Cardin. Thank you both. I appreciate it very much.
    Senator Boxer. Senator Fischer, I apologize. I skipped over 
you. Please go ahead.
    Senator Fischer. Thank you, Madam Chair. I am tucked over 
here on the end, so I appreciate your recognizing me. And I do 
appreciate your comments earlier when you were questioning. I 
think it was right on target.
    Mr. Porcari, our concern, I think, is with the limited 
resources that we have, and especially at the State level, in a 
big State like Nebraska that has a lot of roads and a lot of 
bridges. How are we going to follow a process and really 
receive some outcome-focused results that meet the 
environmental concerns, that address the social benefits as 
well, when there is so much paperwork? I have a copy here of a 
CE from the Department of Roads. It is 20 pages long, on both 
sides. It was for less than 5 miles, a 3R project, less than 5 
miles between two very rural communities in the State of 
Nebraska, one a population of 577, the other a population of 
57. Very sparsely populated area. Took a lot of time, 10 
months. Took a lot of resources, took a lot of money.
    How are we going to speed that process up and use really 
some common sense, where the impacts aren't going to be that 
great? Of course we want community involvement. But a lot of 
this, it is just paperwork. It is for resurfacing. These are 
projects we see in the rural areas again and again and again. 
And the impacts aren't there, that we've heard from some of the 
other members of this Committee.
    So how are we going to address projects that need to happen 
where there aren't that great of concerns with?
    Mr. Porcari. It is a very good question, Senator, and I 
think the answer is two-fold. First, on projects that are, for 
example, state of good repair projects, where you are 
resurfacing or doing something, that don't currently qualify 
for categorical exclusions, and there are some of those, we 
think broader use of categorical exclusions helps. Then to your 
specific question, within projects that currently qualify for 
categorical exclusions, how can we streamline the process. 
Governor Heineman commented on that with Secretary Foxx at the 
National Governors Association. It is something that we are 
working on right now in our MAP-21 implementation and 
rulemaking process. We are actually looking at the stakeholder 
input on that right now. We have a variety of people that have 
weighed in on every side of that issue. But we believe even 
within existing categorical exclusions, the process itself can 
be easier. And we are looking for early wins on that.
    Senator Fischer. I would hope so. Even when you have a 
minor change to a project, to have to start all over again, 
whether you are changing a culvert or whatever, don't you think 
that is kind of ridiculous?
    Mr. Porcari. Well, there are thresholds below which it 
doesn't constitute a major change. As you point out, the 
application of common sense is important in this process. We 
think that we can do that. And we think that with the input of 
the States, we are prioritizing that right now.
    Senator Fischer. Thank you very much. I appreciate that.
    Thank you, Madam Chair.
    Senator Boxer. Thank you so much.
    Senator Barrasso.
    Senator Barrasso. Thank you, Madam Chairman.
    I would like to follow up with Senator Fischer's question. 
While she was in the Nebraska legislature, I served time in the 
Wyoming legislature. Both of us chaired our State's 
transportation committees. So these are issues that people deal 
with at home, are familiar with.
    And just along those lines, both to Mr. Porcari as well as 
to Mr. Come, the GAO says on average it takes the Federal 
Government 4 years to complete the Federal rulemaking process. 
They also found that it took the Federal Highway Administration 
and the Federal Transit Authority an average of 5 years to 
complete the rulemaking process. So MAP-21 is going to expire 
next year, and it is very unlikely that the bill would be fully 
implemented by the time that it expires.
    What are your views, as we try to draft another 
reauthorization bill before the current bill has even been 
fully implemented?
    Mr. Porcari. First, Senator, we will continue to share 
feedback with the Committee on what our progress is and what 
some of the issues are that have come up. I testified earlier 
that there are likely to be between 50 to 60 rulemakings 
embedded within MAP-21, which is a very large number. It is 
very difficult to do in a 2-year timeframe.
    And as you pointed out, the rulemaking process has 
substantial input opportunities for public input. And it tends 
to be a long process.
    What we have done as a result is prioritize. And we are 
working, completing and working on the MAP-21 requirements that 
we think we get the most efficiency gains the quickest for. So 
we will continue to work through the list, we think that there 
are some early wins, some of which you have already seen, 
others imminent. And we are very mindful that a surface 
transportation reauthorization is right around the corner.
    Senator Barrasso. Mr. Come.
    Mr. Come. Our observation on that, and it is a more 
practical suggestion than a profound one, was that establishing 
milestone dates, conclusion dates for as many actions as 
possible, would help expedite the process as well as providing 
useful information for the stakeholders. I was happy to hear 
from the Department that they are in the process of developing 
those for all the Subtitle C provisions.
    Senator Barrasso. For my friend Dan Ashe as well as for Mr. 
Porcari, if I could. With the U.S. Fish and Wildlife Service's 
potential September 2015 listing determination of the sage 
grouse under the Endangered Species Act, it is a serious 
concern, certainly in my home State of Wyoming, but the 
potential habit, if listed, would cover most of Wyoming, most 
of Idaho, most of Montana, most of Nevada and parts of Oregon 
and Colorado. Sage grouse is a sagebrush dependent species. 
Most roads in my State have sagebrush on either side of the 
road.
    So I am just wondering how the project streamlining gains 
that we have made with MAP-21 would be impacted by such a 
listing in terms of expediting highway projects, such as 
repaving highways, expanding highway capacity, improving safety 
measures on highways and so on.
    Mr. Ashe. Should sage grouse be listed, and as you know, 
Senator Barrasso, we have all 11 States, the Bureau of Land 
Management, the Forest Service, the Natural Resource 
Conservation Service, all working on comprehensive strategy to 
conserve the sage grouse. So we have yet to certainly make that 
decision, and we have a good amount of time yet to make that 
decision.
    But if it were listed, I think we have processes in place, 
and I think our record on consultation on highway projects is 
very good, and we have a very good relationship with the 
Department of Transportation. As Deputy Secretary Porcari 
referenced earlier, we have recently developed a multi-State 
habitat conservation plan with regard to the Indiana bat.
    So I would say that I think we have a very good track 
record and we will make it work.
    Senator Barrasso. Thanks. Mr. Porcari.
    Mr. Porcari. Just to echo Director Ashe's comments, we have 
a very good working relationship, and should the sage grouse be 
listed, the first thing we would look to do is work out a 
programmatic agreement with U.S. Fish and Wildlife. So on a 
corridor-wide basis, projects could proceed and it would better 
protect some resources as well.
    Senator Barrasso. Thanks. A final question, Ms. Sutley. The 
White House CEQ announced draft guidance for greenhouse gas 
emissions and climate change impacts back in February 2010. In 
your opinion, to what degree would incorporating climate change 
in NEPA work against some of the streamlining gains that have 
been achieved by MAP-21?
    Ms. Sutley. Senator, thank you for that question. We don't 
believe that that kind of guidance would have any particular 
impact on streamlining. We believe that greenhouse gases, as 
other environmental effects, are things that agencies should 
consider as they look at the proposed actions.
    But I think as for any environmental effect, it really has 
to do with the significance of the Federal action and the 
significance of those environmental effects associated with it. 
We believe that guidance would help agencies to sort of tailor 
their reviews to the appropriate scale.
    Senator Barrasso. Thank you. Thank you, Madam Chair.
    Senator Boxer. Thank you.
    Before I start my questions, I want to give you a chance, 
Ms. Sutley. My understanding after reading your letter, your 
response to Senator Inhofe, is that you were there on official 
business and there were Governors and Congress people there as 
well. Is that correct?
    Ms. Sutley. Thank you, Senator. Yes. That was correct, in 
fact, Senator Whitehouse joined us at one of the events. So it 
was official business to discuss the Administration's 
priorities on climate change.
    Senator Boxer. I wanted to make sure you had an 
opportunity.
    Ms. Sutley. Thank you, Senator.
    Senator Whitehouse. If I might, because you mentioned Rhode 
Island and me?
    Senator Boxer. Absolutely.
    Senator Whitehouse. This was about as non-secretive as 
possible. We had press conferences, we were delighted that 
Chair Sutley was able to come. It was a great opportunity. 
Governor Chafee, who used to serve on this Committee, was an 
important part of the group that was present. I hope that she 
will come again.
    Senator Boxer. Excellent. So we will tell Senator Inhofe 
that we pursued this and send him the record.
    First of all, I would say, Ms. Sutley, I thought your 
comments were very productive today. I think you recognized 
what we have done in these reforms, something that has not been 
done before. And there is misunderstanding, and there are 
reasons for it, because people didn't read it. This reform, 
which is so important that I would like to extend it as far as 
I can, says that there can be no arbitrary deadline set. The 
deadlines are set by the agencies involved. It is not just 
about environmental agencies, Senator Whitehouse. I know you 
were mentioning it, but I agree with this, mostly the problem 
is with the funding.
    What we are saying, when the deadlines are set, the 
following agencies must agree to the deadlines: EPA, Corps of 
Engineers, Fish and Wildlife Service, NOAA, Department of 
Transportation. That is the law. And there is no deadline set 
unless there is an agreement.
    Mr. Ashe, did you read Section 1305 of this law? Shall we 
send it to you?
    Mr. Ashe. I have read the law. I know that in the 
particular instance of MAP-21, the implementing guidelines tell 
us that we have 180 days from the date that we receive a 
Section 7 consultation. We have up until the record of decision 
is made and 180 days after that. We don't get to negotiate that 
deadline.
    Senator Boxer. Mr. Ashe, you do not understand the law. I 
am so frustrated. Because you set the deadline with Mr. 
Porcari. You set the deadline with the court. There is no 
deadline set until you agree. It is there. It says, the 
concurrence of your agency. Read Section 1305. Because 
everything you are saying here is based on the fact, this woe 
is me, I am not consulted, and then you go on to say, I am just 
going to say no. That is a very strange thing to say to the 
American people, when our President has said, we want to work 
together. We are not going to stamp our feet and say no. The 
reason we got an agreement is, we all fought for our position. 
I can guarantee you there are people in that room who wanted to 
give DOT sole authority to set a date, and we said, that is not 
how it is going to work. Read Section 1305.
    I believe this is much ado about something good.
    Mr. Ashe. Chairman Boxer.
    Senator Boxer. Yes, go ahead.
    Mr. Ashe. I think that we are making it work, and I think 
that is the message that you have heard here today. We are 
making it work without penalty provisions.
    Senator Boxer. I didn't hear that from you. What I heard 
from you is a complaint about the deadline and then the fine. 
And misunderstanding is what I heard from you.
    Mr. Ashe. You definitely heard from me----
    Senator Boxer. Let me finish, please.
    You didn't seem to know, I have a lot invested in this. I 
have 100 percent environmental record, OK? So please let me 
finish. And I will stop legislation that hurts our people and 
hurts our environment. And I will tell you that this provision 
is amazingly good for this reason. It gets you in the room with 
the EPA, with the Department of Transportation, with the Corps 
of Engineers that you are often in contention with, and rightly 
so. It puts you in the room with NOAA. And you have to set the 
deadline. Read Section 1305. We changed the law. Before DOT set 
the deadline without the concurrence of these agencies, it was 
just consultation. We changed it, concurrence of your agency.
    So we have set up a process where you have the power. I 
don't think, frankly, maybe I am wrong, that you completely 
understood it. Because if you did understand it, you wouldn't 
have said, and we are just going to say no, take our marbles 
and walk out the door. That is not what we want to hear. Let me 
say, it is not what I want to hear.
    I want you to be in the room. I supported you. I want you 
in the room when deadline are set.
    Now, the other thing you didn't seem to be so aware of is 
what it takes to extend the deadline. Before any penalty kicks 
in, if there is any information that hasn't been received by 
the agency, any necessary information, if there are approvals 
lacking from any entity such as the project sponsor in a manner 
that affects the ability of the agency to meet any requirements 
under State or local or Federal law, if there is significant 
new information, which reaches to Senator Whitehouse's very 
important point. It is significant new information if Congress 
isn't funding a project.
    There is no deadline and there is no fines. If there is a 
major modification to an aspect of the project, there is no 
deadline, there is no fine. Or if there is additional analysis 
needed for the agency to make a decision.
    So to sit there and say, in the face of the fact that you 
have been given more power than you have ever had before to be 
in the room and set the deadline, and then more power to talk 
to Mr. Porcari and say, you know what, we haven't received the 
information, don't hold us to this, of course you will get an 
extension.
    So I guess, what I am saying to you, from the bottom of my 
heart, is please re-read this law. Please re-read this reform. 
I believe you will come to the conclusion that you have more 
power than you have ever had before to be in the room and to 
stay in the room and to have a major impact. Because frankly, 
if that wasn't the case, to me it wouldn't have been worth 
pursuing this reform.
    So will you promise me, and let's talk more about this. 
This is not a happy moment for me. Could you take another look 
at the law with your attorneys? If they disagree with me, I 
would like to sit down and talk with you and then with my chief 
counsel, Bettina. Can we do that?
    Mr. Ashe. We can do that.
    Senator Boxer. Thank you so much. It would mean a lot to me 
if we could do that.
    Senator Whitehouse, do you have anything? OK. I want to 
thank everybody for being here. This is a very important moment 
for us. The President has said what he wants to do, he wants to 
make sure we move and speed ahead with all the right 
protections. All the right protections. That is my 
interpretation of what we have done. And I want to thank 
Senator Udall, he has concerns and he is going to be a tiger 
watching what happens. We are going to be watching you, those 
of us who support these reforms, are going to be watching you, 
Mr. Porcari. And I heard in your voice, it sounds like maybe 
you don't have enough folks to put on this, but do you have 
enough people in there in place to carry these reforms out?
    Mr. Porcari. Chairman Boxer, this is a priority. We will 
carry it out. And I will tell you, this is something that many 
of us feel personally very strongly about, because we can do 
both a better job of environmental and community protection and 
have better process at the same time.
    Senator Boxer. That is how I feel. If I didn't feel that 
way, I wouldn't have supported the reforms.
    And Mr. Come, may I just thank you very much. Because I 
think what you have done, you have been an honest messenger. 
You have said, they have done right here, but they are lagging 
here. I hope the two of you will work together. And Mr. Ashe, I 
hope that after looking at all of this, you will feel better 
about what we have done and not be nervous about it and have a 
very positive attitude.
    And Ms. Sutley, I am sorry that you got attacked on 
something extraneous, but I think you answered it well. Thank 
you. We stand adjourned.
    [Whereupon, at 11:38 a.m., the Committee was adjourned.]
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