Streamlining Environmental Reviews of Highway and Transit Projects: Analysis of TEA-LU (H.R. 3) and SAFETEA (S. 732)
CRS Report for Congress
Streamlining Environmental Reviews of
Highway and Transit Projects: Analysis of
TEA-LU (H.R. 3) and SAFETEA (S. 732)
Updated July 22, 2005
Linda G. Luther
Environmental Policy Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Streamlining Environmental Reviews of Highway and
Transit Projects: Analysis of TEA-LU (H.R. 3)
and SAFETEA (S. 732)
Summary
Before final design activities, property acquisition, or construction for a
federally funded surface transportation project can proceed, the Department of
Transportation (DOT) is required by law to comply with environmental review
provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321, et
seq.). In addition, any surface transportation project will potentially require
compliance with a variety of federal, state, and local environmental laws, rules, and
regulations, in turn requiring the cooperation of federal, state, and local agencies.
Some Members of Congress have expressed concerns that the interagency
coordination required to complete the environmental review process for large,
complex transportation projects can lead to project delays. To address this concern,
“Environmental Streamlining” provisions were included in legislation that
reauthorized federal surface transportation programs for FY1998-FY2003 in the
Transportation Equity Act for the 21st Century (TEA-21; P.L. 105-178).
During the 108th Congress, House- and Senate-passed legislation to reauthorize
surface transportation programs for FY2004-FY2009 (H.R. 3550 and S. 1072) again
included streamlining provisions. Conferees failed to reach an agreement on finalth
reauthorization legislation before adjournment of the 108 Congress. Essentially the
same streamlining provisions were included in legislation passed in the 109th
Congress by the House (H.R. 3) and the Senate (S. 732). The House passed its bill,
the Transportation Equity Act: A Legacy for Users (TEA-LU), on March 10, 2005.
On May 17, 2005, the Senate passed its amended version of H.R. 3 (previously S.
732), the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of
Streamlining provisions include the designation of DOT as the “lead agency”
in the environmental review process; the designation of authority to the lead agency
to define a project’s purpose and need, and to determine the range of alternatives to
be considered; the creation of a dispute resolution process to address issues of
concern between agencies; amendments to current statutory requirements to
potentially allow for the use of certain public lands or historic sites for transportation
projects; delegation of certain authority to state agencies; and the establishment of
a statute of limitations on final agency actions or comment deadlines applicable to
agencies and the public.
This report provides background and detail on streamlining provisions proposed
during the 109th Congress. This report will be updated. For more information on
issues regarding the environmental review process, see CRS Report RL32024,
Background on NEPA Implementation for Highway Projects: Streamlining the
Process.
Contents
Environmental Review Requirements: Current Status.................2
The Environmental Review Process...........................2
Interagency Cooperation....................................3
Project “Purpose and Need” and Alternatives....................4
Designation of Categorical Exclusions.........................5
Requirements Applicable to Parks, Refuges, and Historic Sites......6
Streamlining Environmental Reviews Under TEA-21.................7
Legislative Efforts to Expedite Project Delivery......................8
Establishment of a New Environmental Review Process...........9
Delineation of Authority of the Lead Agency....................9
Delegation of Authority to State DOTs........................11
Amendments to Section 4(f) Provisions.......................12
Establishment of Deadlines.................................13
Pilot Program for States....................................13
Requirement to Promulgate Regulations.......................14
Streamlining Environmental Reviews of
Highway and Transit Projects: Analysis of
TEA-LU (H.R. 3) AND SAFETEA (S. 732)
In 1998, Congress passed the Transportation Equity Act for the 21st Century
(TEA-21, P.L. 105-178), which reauthorized federal surface transportation programs
for FY1998-2003. During the reauthorization process, some state transportation
departments and transportation construction organizations reported to Congress that
the process required to obtain various federal, state, and local environmental
approvals and permits, often needed for major highway projects, was sometimes
inefficiently implemented and overly time-consuming. In particular, stakeholders
expressed concern about the lack of effective interagency cooperation when multiple
federal or state agencies were required to participate in a project. Congress attempted
to address these concerns by including “Environmental Streamlining” provisions in
TEA-21.
Although not defined in statute, FHWA defines environmental streamlining as
the timely delivery of federally funded transportation projects, while protecting and
enhancing the environment. Because major transportation projects may be affected
by dozens of federal, state, and local environmental requirements, administered by
multiple agencies, improved interagency cooperation was identified by Congress as
a critical element to the success of environmental streamlining. The streamlining
provisions of TEA-21 required the Department of Transportation (DOT) to develop
and implement a “coordinated environmental review process” for highway projects
that either do have or may have a significant impact on the environment
(approximately 9% of all highway projects fall into one of these categories). This
coordinated review process encourages full and early participation by all relevant
federal and state agencies required to participate in a highway project.
Since the passage of TEA-21, numerous administrative activities have been
undertaken to facilitate streamlining. However, regulations to implement the
streamlining provisions have not been promulgated. Some Members of Congress
have expressed the need for further legislation to expedite the environmental review
process required of highway construction and transit projects. As a result, legislation
to reauthorize surface transportation programs for FY2004-FY2009, passed in both
the House (H.R. 3550) and the Senate (S. 1072) during the 108th Congress, included
provisions intended to further streamline the environmental review process.
Conferees failed to reach an agreement on final reauthorization legislation beforeth
adjournment of the 108 Congress.
Early in the 109th Congress, legislation with essentially similar policy provisions
was introduced. The House passed its bill (H.R. 3), the Transportation Equity Act:
A Legacy for Users (TEA-LU), on March 10, 2005. On May 17, 2005, the Senate
passed its amended version of H.R. 3 (previously approved by the Senate
Environment and Public Works Committee as S. 732), the Safe, Accountable,
Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA).
TEA-21 expired on September 30, 2003. Congress has passed a series of
extension bills to continue funding for federal highway and transit programs at
FY2003 levels, while work proceeds on a final reauthorization bill. The most recent
extension (H.R. 3377) extends funding for surface transportation programs until July
27, 2005. Until new reauthorization legislation is enacted, streamlining provisions
in TEA-21 will continue.
Environmental Review Requirements: Current Status
Before final design, property acquisition, or construction on a highway or transit
project can proceed, the Federal Highway Administration (FHWA) and the Federal
Transit Administration (FTA) must demonstrate compliance with all applicable state
and federal legal requirements regarding the environment, including the National
Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). Discussed below
are selected elements of the environmental review process relevant to the current
debate regarding transportation reauthorization legislation. (For more detailed
information about the NEPA process, see CRS Report RL32024, Background on
NEPA Implementation for Highway Projects: Streamlining the Process.)
The Environmental Review Process. The “environmental review
process” generally refers to the procedures required to comply with NEPA, but may
also refer to the process for compliance with any other environmental law applicable
to a given transportation project. NEPA requires the preparation of an environmental
impact statement (EIS) for all major federal actions “significantly” affecting the
environment. An EIS is a full disclosure document that provides a description of the
proposed project, the existing environment, and an analysis of the anticipated
beneficial and adverse environmental effects of all reasonable alternatives.
Preparation is done in two stages, resulting in a draft and final EIS.
Projects for which it is not initially clear whether impacts will be significant
require the preparation of an environmental assessment (EA). If it is determined, at
any time during the EA, that a project’s impacts will be significant, an EIS must be
prepared. However, if the EA determines that the project creates no significant
environmental impact, a Finding of No Significant Impact (FONSI) will be issued by
DOT. The FONSI must briefly present the reasons why the project will not have a
significant effect on the environment. According to FHWA, in FY2001, projects
requiring an EA, and a subsequent FONSI, accounted for approximately 6% of
FHWA-funded highway projects (representing approximately 15% of the $17.6
billion in federal funding distributed to states in FY2001); approximately 3% of
highway projects required an EIS (accounting for just under 9% of FY2001 federal
funding); the remainder were categorically excluded from the requirement to prepare
either an EA or and EIS.1
1 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp 3-4.
The Council on Environmental Quality (CEQ), in the Executive Office of the
President, promulgated regulations specifying NEPA compliance procedures
applicable to all federal agencies.2 At CEQ’s direction, DOT promulgated its own
regulations governing the preparation of EISs and related environmental
documentation required for FHWA and FTA projects.3 In addition to formal
regulations, DOT has issued a variety of guidance documents and technical
advisories to assist decision makers in completing the NEPA process for
transportation projects.4
NEPA compliance fits into the overall project delivery process as a subset of
one or more of the following four major elements generally considered to be part of
the full transportation project delivery process: preliminary engineering, final or
construction engineering, right-of-way acquisition, and construction. Any delays in
completion of the NEPA process could also impact upon the cost of project delivery
if the delays are extensive enough for inflationary cost increases to result.
Interagency Cooperation. Projects requiring NEPA documentation involve
the participation of a “lead agency” and “cooperating agencies.” The lead agency is
defined in CEQ regulations as the federal agency that has taken responsibility for
preparing the NEPA documentation.5 For federally funded highway and transit
projects, the lead agency will usually be DOT (specifically FHWA or FTA). The
project applicant, such as a state DOT, will likely participate in the NEPA process
as a joint lead agency. The project applicant is required to initially develop
substantive portions of the environmental document, while DOT will be responsible6
for its scope and content.
DOT requires that the draft and final EIS demonstrate that appropriate
comments and coordination were solicited from relevant federal, state, and local
cooperating agencies. Cooperating agencies (also referred to sometimes as
“participating” agencies) required to provide input during the environmental review
process are those that are obligated to provide comments within their agency’s
jurisdiction, expertise, or authority. This means that an agency with jurisdiction over
or expertise regarding any identified environmental consequence anticipated from a
project is required to provide DOT with the appropriate input. For example, if
historical and archeological preservation consequences are identified, the Advisory
Council on Historic Preservation or the state historic preservation officer will likely
2 40 C.F.R. §§ 1500-1508.
3 40 C.F.R. § 771; final rule at 53 Federal Register 32646.
4 The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project
Development Process,” which includes information regarding FHWA’s environmental
policy, FHWA Technical Advisories, and a variety of guidance materials to facilitate
compliance with NEPA at all stages of the process. The site is accessible at [http://
environment.fhwa.dot.gov/projdev/index.htm] as of May 27, 2005. Information regarding
NEPA compliance for FTA is available on the agency’s Environmental website at
[http://www.fta.dot.gov/1243_ENG_HTML.htm] as of May 27, 2005.
5 40 C.F.R. § 1508.16.
6 23 C.F.R. § 771.109(c).
be included as a cooperating agency during the environmental review process. If
farmland impacts are identified, the EIS should summarize the results of comments
and analyses from the U.S. Department of Agriculture (USDA) and, as appropriate,
state and local agriculture agencies. If impacts to wetlands are identified, the U.S.
Army Corps of Engineers may need to issue a permit before a project may proceed.
For any given transportation project, compliance with a wide variety of
legislative and regulatory requirements, enforceable by multiple agencies, may be
required. DOT regulations require that the final EIS or the FONSI document
compliance with all applicable environmental laws, executive orders, and other
related requirements.7 It is DOT policy that compliance with all applicable
environmental requirements be coordinated under the “NEPA umbrella.” This means
that, for any given transportation project, any study, review, or consultation required
by law, that is related to the environment, should be conducted within the framework
of the NEPA process.
Depending upon the complexity of the project or resources impacted, a
significant number of environmental requirements, in addition to NEPA, may be
applicable. According to FHWA, legal requirements frequently applicable to highway
projects are:
!Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
!National Historic Preservation Act (16 U.S.C. 460 et seq.);,
!Clean Water Act (33 U.S.C. 1251 et seq.); and
!“Section 4(f)”of the Department of Transportation Act of 1966 (40
U.S.C. 303) (see “Requirements Applicable to Parks, Refuges, and
Historic Sites” section, below) .
For the requirements listed above, the U.S. Fish and Wildlife Service, the
Advisory Council on Historic Preservation, the U.S. Army Corps of Engineers, or the
Environmental Protection Agency (EPA) may be required to participate in the NEPA
process as a cooperating agency. That participation may take the form of providing
comments on DOT documentation, performing scientific analysis, issuing permits,
or providing an assessment of project impacts, to name a few.
The role of a cooperating agency is frequently set out in a memorandum of
agreement with the lead agency. That agreement may involve the cooperating agency
drafting certain portions of the EIS that relate to its jurisdiction or expertise. For
example, if a highway project has the potential to impact prime farmland, USDA may
agree to provide FHWA with an analysis of those impacts.
Project “Purpose and Need” and Alternatives. As required under both
CEQ and DOT regulations, the EIS must include a statement clarifying the project’s
“purpose and need.” This section of an EIS is the foundation upon which subsequent
sections of the EIS are built. DOT requires the discussion to be clear and specific and
support the need for the project. Further, it is the purpose and need section that
drives the selection of the range of alternatives that will be considered and analyzed
7 23 C.F.R. § 771.133.
for a given project. CEQ regulations require agencies to discuss a range of
alternatives that will include all “reasonable alternatives” under consideration as well
as any other alternatives that were considered but subsequently eliminated from
consideration. Reasonable alternatives include those that are practical or feasible
from the technical and economic standpoint and using common sense, rather than
simply desirable from the standpoint of the agency or a potentially affected
stakeholder.
In his capacity as the Chairman of the Interagency Transportation Infrastructure
Streamlining Task Force (established under Executive Order 13274, “Environmental
Stewardship and Transportation Infrastructure Project Review”8), Transportation
Secretary Norman Mineta sought guidance from CEQ Chairman James Connaughton
regarding the role of lead and cooperating agencies with regard to developing a
highway project’s “purpose and need.”9 Secretary Mineta referred to the sometimes
extended interagency debates over purpose and need statements as a reason for delay
in highway project development.
In his response, Chairman Connaughton cited excerpts of NEPA itself as well
as CEQ regulations that specify that the lead agency has the authority for and
responsibility to define a project’s purpose and need. Further, Chairman
Connaughton referenced previous federal court decisions giving deference to the lead
agency in determining a project’s purpose and need. While not addressed in this
correspondence, CEQ regulations also specify the selection of reasonable alternatives
as within the authority of the lead agency.
Designation of Categorical Exclusions. Transportation projects that do
not individually or cumulatively have a significant social, economic, or
environmental effect, and which DOT has determined from past experience with
similar projects have no significant impact, are excluded from the requirement to
prepare an EA or EIS. Such actions are processed as categorical exclusions. In
FY2001, almost 91% of all FHWA projects were classified as categorical
ex clusions. 10
A common misconception is that such projects are categorically excluded from
compliance with NEPA. Such projects do require a certain level of NEPA
compliance, but are excluded only from the requirement to prepare an EA or EIS.
Unlike EAs or EISs, categorical exclusions are not a type of document, but are
classes of DOT actions that may be, in effect, pre-approved. For example,11
“transportation enhancements” often fall into this category of action.
8 This Executive Order is available at [http://www.fhwa.dot.gov/stewardshipeo/index.htm],
as of May 27, 2005.
9 Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,
as of May 27, 2005.
10 GAO-03-534.
11 Activities classified as “transportation enhancements” are specifically listed by Congress
(continued...)
DOT regulations specify two groups of categorical exclusions. Whether or what
type of documentation will be required will depend upon which of the two groups the
project falls. The first group includes projects that call for no or limited
construction.12 Examples include the construction of bicycle and pedestrian lanes,
landscaping, emergency repairs, and the installation of pavement markings, or traffic
signals. The second group consists of actions with a higher potential for impacts than
the first group, but are generally determined to meet the criteria for a categorical
exclusion because environmental impacts are minor.13 An example of such a project
is the modernization of a highway through resurfacing, reconstruction, adding
shoulders, or adding auxiliary lanes.
Since the second group of actions has a higher potential for impacts than the
first, DOT may require that the state or local project sponsor provide analyses or
documentation to allow DOT to determine if the categorical exclusion designation
is proper. Further, although a categorically excluded project’s environmental impacts
may not be “significant” as defined under NEPA, requirements of other laws may
still apply. For example, the installation of traffic signals is generally considered an
action with no environmental impacts. However, if those traffic signals will be
installed in a historic district, compliance with provisions of the National Historic
Preservation Act may apply. Also, for example, if the proposed route of a bicycle
path borders endangered species habitat, a biological assessment, in compliance with
the Endangered Species Act, may be required.
Requirements Applicable to Parks, Refuges, and Historic Sites.
Requirements of “Section 4(f)” of the Department of Transportation Act of 1966
apply to the use of publicly owned parks and recreation areas, wildlife and waterfowl
refuges, and to publicly or privately owned historic sites of national, state, or local
significance. Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. §
138, applies specifically to Federal-aid highways. In 1983, as part of a general
recodification of the DOT Act, 49 U.S.C. § 1653(f) was formally repealed and
codified in 49 U.S.C. § 303 with slightly different language. This provision no longer
falls under a “Section 4(f),” but DOT has continued this reference, given that over
the years, the whole body of provisions, policies, and case law has been collectively
referenced as Section 4(f).
Under the law, any use of a Section 4(f) resource for a transportation project is
prohibited unless there is no “prudent and feasible” alternative to do otherwise, and
the project includes all possible planning to minimize harm to the resource. When a
project proposes the use a Section 4(f) resource, a separate “Section 4(f) evaluation”
must be prepared and included with the appropriate NEPA documentation. The
11 (...continued)
under 23 U.S.C. §101(a)(35). For more information, see FHWA’s Transportation
Enhancement website at [http://www.fhwa.dot.gov/environment/te/index.htm], as of May
12 Specified under 23 C.F.R. § 771.117(c).
13 Specified under 23 C.F.R. § 771.117(d).
evaluation must analyze alternatives and design shifts that avoid the protected
resource. If Section 4(f) land is subsequently chosen for use in a project, the
evaluation must demonstrate that the use of other alternatives would have resulted
in unique problems. “Unique problems” are present when there are truly unusual
factors or when the costs or community disruption reach “extraordinary magnitude.
This test was introduced in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971), and subsequently referred to as “Overton Park Criteria.”
Streamlining Environmental Reviews Under TEA-21
Section 1309 of TEA-21, “Environmental Streamlining,” was intended to lead
to better coordination of agency involvement in the NEPA process. It directed the
Secretary of DOT to develop and implement a “coordinated environmental review
process” for highway construction projects that require an EIS or an EA, under
NEPA, or for the conduct of any other environmental review, analysis, opinion,
issuance of an environmental permit, license, or approval required under federal law.
The Secretary of Transportation (the Secretary) was directed to identify all agencies
required to participate in the coordinated environmental review process at the earliest
possible time, and to require those agencies, whenever practicable, to conduct
required reviews concurrently, rather than sequentially, in accordance with
cooperatively established time periods. The review process could be incorporated
into a memorandum of understanding between DOT and participating federal and
state agencies.
DOT has undertaken a variety of actions to meet the goals of TEA-21’s
streamlining requirements. However, no final regulations were promulgated. In May
2000, under the Clinton Administration, DOT proposed a rule on “NEPA and
Related Procedures for Transportation Decisionmaking.”14 Some commenters
indicated that the proposed rule failed to streamline the review process. Elements of
the rule presented an increased burden of paperwork and procedural requirements,
they said, and increased the potential for litigation. There was also a concern that the
proposed rule lacked specific provisions addressing time frames, comment deadlines,
dispute resolution, and “closing the record” on decisionmaking at an appropriate
stage. Due to these concerns, the proposed rule was withdrawn by DOT in
September 2002.15
Since withdrawal of the proposed rule came within a year of the legislative
reauthorization of surface transportation programs, the agency stated it would wait
for the outcome of the legislative process to see what further regulatory changes were
needed. In lieu of final regulations, DOT has implemented a variety of administrative
actions in response to TEA-21’s streamlining requirements. (For detailed information
regarding the streamlining provisions of TEA-21 and the Administration’s activities
to implement those provisions, see CRS Report RL32024, Background on NEPA
Implementation for Highway Projects: Streamlining the Process.)
14 65 Federal Register 33960.
15 67 Federal Register 59225.
Several elements of the coordinated environmental review process exist in
current CEQ and DOT regulations. For example, CEQ regulations require agencies
to reduce paperwork and delays by:
!Integrating the NEPA process into early planning.
!Emphasizing interagency cooperation before the EIS is prepared,
rather than submission of adversary comments on a completed
document.
!Insuring the swift and fair resolution of lead agency disputes.
!Using the scoping process for an early identification of what are and
what are not the real issues.
!Establishing appropriate time limits for the EIS process.
!Preparing EISs early in the process.
!Integrating NEPA requirements with other environmental review
and consultation requirements.16
On September 30, 2003, the day TEA-21 expired, the President signed the first
in a series of extension bills. Under those extensions, all existing surface
transportation programs continue to operate according to provisions of TEA-21 while
Congress considers reauthorization proposals. The most recent extension, the
Surface Transportation Extension Act of 2005, Part IV (H.R. 3377), extends funding
for surface transportation programs until July 27, 2005. Since the environmental
streamlining provisions of TEA-21 are not tied to highway funding, the provisions
of Section 1309 will continue until new legislation is enacted.
Legislative Efforts to Expedite Project Delivery
During the 108th Congress, both the House (H.R. 3550) and Senate (S. 1072)
passed legislation to reauthorize federal surface transportation programs for FY2004-
2009. However, conferees were unable to reach agreement on a final bill before the
During the 109th Congress, both the House and Senate again passed legislation
to reauthorize surface transportation programs for FY2004-FY2009. The House
passed H.R. 3, the Transportation Equity Act: A Legacy for Users (TEA-LU). The
Senate inserted language from its bill, S. 732, the Safe Accountable, Flexible, and
Efficient Transportation Equity Act of 2005 (SAFETEA), into its version of H.R. 3.
It was passed on May 17, 2005. Each bill has policy provisions essentially the same
as those included in bills passed during the 108th Congress.
Each bill had distinct provisions related to the environmental review process.
Provisions common to each bill included:
!A statutory designation of DOT as the lead agency for the
environmental review process under NEPA;
!A statutory delineation of the roles and responsibilities of the lead
agency and cooperating agencies;
16 40 C.F.R. 1500.5
!A requirement to involve the public and agencies in defining the
purpose and need statement and in developing the range of project
alternatives;
!A requirement to follow specified procedures to identify and resolve
issues or disputes that could lead to the delay of a project or the
denial of any needed approval required by law;
!Authorization for the DOT Secretary to approve the use of highway
or mass transit funds to assist participating agencies to meet time
limits for the environmental review (previously included in the
streamlining provisions of TEA-21);
!An exemption of the Interstate System from consideration as a
“historic site” under provisions of Section 4(f); and
!A repeal of the streamlining provisions in Section 1309 of TEA-21.
Details of each bill, particularly details that differed from one bill to another, are
discussed below. Also, briefly discussed below are the positions taken by various
interest groups on selected legislative proposals. Groups interested in the
streamlining provisions generally include “transportation improvement stakeholders”
(i.e., state departments of transportation or transportation advocacy or construction
organizations) and “environmental stakeholders” (i.e., state or federal resource
agencies, historic preservation agencies or advocacy organizations, and
environmental advocacy organizations).
Establishment of a New Environmental Review Process. Each bill
delineates a new environmental review process for certain types of surface
transportation programs. Under Section 1511, the Senate bill proposes to establish
a new “transportation project development process” (as opposed to building upon the
TEA-21’s “coordinated environmental review process”). This process, applicable to
highway and transit projects, could be implemented at the request or with the
concurrence of the project sponsor and carried out by the lead agency. Otherwise, the
environmental review process required under current CEQ and DOT regulations
would be implemented.
The House bill includes its version of streamlining provisions under Title VI,
“Transportation Planning and Project Delivery,” Section 6002, “Efficient
Environmental Reviews for Project Decisionmaking.” TEA-LU’s environmental
review process was referred to as “project development procedures.” The procedures
in the House bill are similar to, but in some instances not as detailed as, those found
in the Senate bill. Unlike the Senate bill, the project development procedures in the
House bill are applicable to all highway projects, public transportation capital
projects, and multimodal projects that require an EIS. If determined appropriate by
the Secretary, the procedures may also be applied to projects that require an EA or
a categorical exclusion.
Delineation of Authority of the Lead Agency. Each bill proposes to
designate DOT as the lead agency for certain surface transportation projects requiring
compliance with NEPA. The Senate bill proposes to designate DOT as the lead
agency for highway and transit projects and to allow the project sponsor to serve as
a joint lead agency. SAFETEA proposes to give authority to the lead agency to carry
out certain responsibilities when implementing the transportation project
development process. For example, the Senate bill would authorize the lead agency
to develop a “coordination plan” to coordinate public and agency participation in the
environmental review process. As part of the coordination plan, the lead agency
would be required to develop a workplan and schedule, in consultation with
cooperating agencies and the project sponsor, for completion of the environmental
review process and the collection of information needed to complete that process.
The schedule would be required to include deadlines on specific milestones in the
environmental review process. Criteria for establishing those deadlines are specified
in the Senate bill, and include the establishment of deadlines on agency comments,
procedures for extending comment deadlines, procedures for accepting late
comments, and procedures applicable to deadlines for decisions under other laws.
Further, in the Senate bill, the lead agency would be authorized to determine the
purpose and need and the range of alternatives to be considered for the project. Each
of these elements of the environmental review process would require the solicitation
of comments from agencies and the public for 30 days. The bill specifies factors that
may be considered by the lead agency in determining the project’s purpose and need
and alternatives. These factors include transportation, land use, economic
development, and environmental protection plans adopted by the state, local, or tribal
government.
Responsibilities of cooperating agencies are also delineated in the Senate bill.
For example, cooperating agencies involved in the transportation development
process would be required to conduct required environmental reviews concurrently,
to the extent practicable.
Similar to the Senate bill, the House bill would designate DOT as the “federal
lead agency.” In addition, the project sponsor, if a state or local government (as
opposed to a private entity), would be required to be the “joint lead agency” for the
environmental review process. The joint lead agency may prepare any required
environmental documents, if the federal lead agency provides guidance and
assistance and approves the documents. The environmental review process must be
initiated by the project sponsor after proper notification to the Secretary.
After participating agencies and the public had an opportunity for involvement,
the House bill would require the lead agency to define the project’s purpose and need
and the range of project alternatives. However, unlike the Senate bill, specific criteria
for involving the public and agencies are not specified. The House bill would require
the purpose and need statement to specify the project’s objectives (such as supporting
a transportation objective identified in a statewide transportation plan). With regard
to defining a project’s alternatives, the lead agency would be authorized to
collaborate with participating agencies to determine methodologies that would have
been used for alternatives analysis and the level of detail required for each
alternative. Also, the lead agency would be given the discretion to develop a
preferred alternative to a higher degree of detail in order to facilitate development of
mitigation measures or concurrent compliance with other applicable laws, if that
determination would not prevent the agency from making an impartial decision.
Transportation advocacy groups such as the American Association of State
Highway and Transportation Officials (AASHTO)17 argue that the authority of
participating federal and state agencies, particularly that of the “lead agency,” should
be more clearly defined in statute. They have supported establishing statutory
authority that would reiterate the lead agency’s authority to delineate a project’s
purpose and need, and the range of alternatives to be considered. Environmental
stakeholders are concerned that, if the lead agency is afforded specific rights in
statute, the opinions or contributions of cooperating agencies will be diminished or
dismissed. They acknowledge that establishment of lead agency authority in law may
serve to reassert DOT’s authority to participating agencies. However, since this is a
right already afforded DOT under current law and regulations, some environmental
groups contend that such provisions may not significantly streamline the NEPA
process.
Delegation of Authority to State DOTs. Section 1512 of the Senate bill
would authorize the Secretary to assign to a state DOT the responsibility for
processing the environmental reviews for projects classified as categorical
exclusions. The criteria for making such a determination would be established by the
Secretary and would apply only to projects designated by the Secretary. Such
authority would be determined through a mutual agreement between the state and the
Secretary and delineated in a memorandum of understanding. Under the House bill,
similar authority would not be delegated to the states. However, in effect, certain
authority would be extended to the states insofar as they would be designated as joint
lead agencies, allowed to prepare environmental documents and initiate the
environmental review process.
In practice, project sponsors already assemble documentation that allows DOT
to make the categorical exclusion determination. If enacted, provisions of the Senate
bill would have the effect of omitting the final step in the process. This final step
currently requires DOT to assure that necessary documentation or required analyses
to determine a project’s categorical exclusion determination is legally sound and
accurately reflects a project’s status.
Transportation stakeholders such as AASHTO have argued that project review
may be expedited if states were given the authority to process categorical exclusions.
Such stakeholders argue that delegation of this authority to the states could speed up
the environmental review process for highway projects by eliminating a significant
layer of bureaucracy that federal approval entails. However, environmental
stakeholders have expressed concern that the delegation of authority to the states
would create a “fox guarding the henhouse” scenario. They argue that if a state,
which has a vested interest in moving a project forward, is allowed to make certain
determinations, those determinations would not have the level of scrutiny that would
be provided with federal oversight. Further, they are concerned that any legislation
that would reduce or eliminate federal oversight may ultimately limit public
participation in the environmental review process.
17 AASHTO represents highway and transportation departments in the fifty states, the
District of Columbia, and Puerto Rico.
Amendments to Section 4(f) Provisions. Both the House (§ 6003) and
Senate (§ 1514) bills would amend current statutory provisions related to Section 4(f)
protection of publically owned parks, recreation areas, wildlife and waterfowl
refuges, and to public or privately owned historic sites. The main differences
between the bills concern the categories of resources to which the amendments would
apply.
Provisions in the Senate bill would allow for the use of Section 4(f) resources
if it is determined that such use would have “de minimis impacts.” If the resource
involved a park, recreation area, or wildlife or waterfowl refuge, the Secretary’s
finding of de minimis impacts would be required to receive concurrence from the
official with jurisdiction over that resource (e.g., the U.S. Fish and Wildlife Service,
the National Park Service, or applicable state or local park authorities). If the
resource involves a public or private historic site, the finding of de minimis impacts
would have to be determined in accordance with the consultation process required
under Section 106 of the National Historic Preservation Act (NHPA, 16 U.S.C. §
470f). As such, it would be required that the transportation program or project would
have no adverse effect on the site or property. That finding would be required to
receive concurrence from the Advisory Council on Historic Preservation or the state
or tribal historic preservation officer, as applicable.
Further, within a year of enacting the Senate bill, the Secretary must promulgate
regulations to clarify existing Section 4(f) requirements. In particular, provisions of
the Senate bill would require the Secretary, in consultation with affected agencies,
to clarify standards required to determine the “prudence and feasibility” of a project’s
alternatives (see “Requirements Applicable to Parks, Refuges, and Historic Sites”
section, above).
Amendments to Section 4(f) included in the House bill would apply only to
historic sites. Provisions of TEA-LU would allow for the use of a historic site if that
use is determined, in accordance with provisions of Section 106 of the National
Historic Preservation Act, to have no adverse effect on the site.
Some environmental stakeholders have expressed concerns at what they
perceive as an overall weakening of the current protections. Most transportation
stakeholders are in favor of the Senate’s proposed revisions to the current Section
4(f) requirements, which have been identified by state transportation agencies as a
significant deterrent to timely environmental reviews of transportation projects.18
Further, AASHTO has argued that the problem with Section 4(f) is what it perceives
as the law’s lack of flexibility, particularly with regard to privately owned historic19
sites. AASHTO has expressed concern with the requirement to avoid Section 4(f)
resources even when the impact is minor, resulting in situations in which a historic
property is protected at the expense of other, more sensitive environmental resources
or communities. Historic preservation groups, such as the National Trust for Historic
18 FHWA newsletter “Successes in Streamlining,” January 2002.
19 AASHTO statement for the record regarding “Stewardship and Streamlining Proposals
for Reauthorization of the Surface Transportation Program,” before the Senate Environment
and Public Works Committee, September 19, 2002.
Preservation (NTHP), counter that changes to the law are not needed and any
problem with Section 4(f) is with improper interpretation by FHWA. NTHP asserts
that FHWA sometimes avoids a Section 4(f) resource “at all costs” and has
interpreted situations in which there are “no prudent and feasible” project alternatives
too narrowly.20
Establishment of Deadlines. Each bill either requires or allows for the
establishment of deadlines on certain project milestones. The House bill includes
provisions that would establish various definitive deadlines applicable to agencies
and the public. For example, under Section 6002, the House bill would establish an
extendable 60-day deadline on comments to a draft EIS and an extendable 30-day
deadline on all other comment periods in the environmental review process. Also, the
House bill would establish a 90-day statute of limitations on legal challenges related
to final agency actions.
The Senate bill would not set specific deadlines applicable to all projects.
However, one component of the “transportation project development process” is the
development of a project work plan that includes a schedule with deadlines
negotiated by the lead and cooperating agencies.
Environmental groups argue that public involvement in highway projects will
likely be restricted if deadlines are applied to the interagency processes. Further, they
argue that deadlines of 30 to 60 days are not sufficient to fully consider and consent
on the major questions of impact exposed throughout the NEPA process.
Transportation stakeholders are in favor of the adoption of extendable deadlines on
agency comments.
With regard to the creation of a statute of limitations on legal challenges,
transportation stakeholders such as AASHTO are in favor of the adoption of time
limits for legal challenges to project approvals. They argue that the absence of a
statute of limitations in current law allows plaintiffs to file suit when a project is at
an advanced stage. They are in favor of limits that would facilitate the resolution of
legal disputes more promptly after the conclusion of the environmental review
process. Some environmental groups have argued that the proposed statute of
limitations of 90 days is too restrictive and does not allow sufficient time to prepare
an appeal. They argue that, as a result, this time limit may lead to preemptive suits
in an effort to preserve the right to sue.
Pilot Program for States. Section 1513 of the Senate bill proposes to
establish a “surface transportation project delivery pilot program” that would delegate
certain federal environmental review responsibilities (in addition to categorical
exclusion determinations) to no more than five states, including Oklahoma.
Responsibility could be assumed for environmental reviews required under NEPA,
or any federal law, for one or more highway projects within the state. Federal
responsibility for any conformity determination required under the Clean Air Act
could not be assigned to the state. The program would be administered in accordance
20 The National Trust for Historic Preservation newsletter, “Forum News,” Volume IX, No.
with a written agreement between the participating state and the Secretary. The
Secretary is directed to promulgate regulations to implement the pilot program within
Requirement to Promulgate Regulations. The Senate bill would require
the Secretary to promulgate regulations to implement each of the provisions
discussed above, unless otherwise specified, within one year of enacting the law. This
provision relates to the concerns of some Members of Congress that regulations to
implement the streamlining provisions in TEA-21 were not finalized after its
enactment. The House bill does not include a similar requirement.