Segment 2 Of 2 Previous Hearing Segment(1)
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TEA 21 ENVIRONMENTAL STREAMLINING PROVISIONS
Tuesday, July 27, 1999
House of Representatives, Subcommittee on Ground Transportation, Committee on Transportation and Infrastructure, Washington, D.C.
The subcommittee met, pursuant to call, at 2:00 p.m., in Room 2167, Rayburn House Office Building, Hon. Thomas E. Petri [chairman of the subcommittee] Presiding.
Mr. PETRI. The subcommittee will come to order. We are meeting today to examine how the environmental streamlining provisions combined and contained in section 1309 of the Transportation Equity Act for the 21st Century, or TEA 21, are being implemented by the Department of Transportation and other Federal agencies.
During the reauthorization of ISTEA, State and local governments reported that the numerous Federal environmental approvals and permits needed to build a highway or transit project were often cumbersome, inefficient, and overly time-consuming. So the legislative solution provided for in section 1309 of TEA 21 directs Federal agencies to work together to better coordinate their many environmental approval and permitting requirements in order to accelerate the project approval process without altering environmental standards or laws.
Indeed, the fundamental goal of the environmental streamlining provisions are to establish an integrated review and permitting process that identifies key decision points and potential conflicts as early as possible, to encourage full and early participation by all relevant agencies involved, and to establish mutually agreed-upon deadlines for agencies to act on an project.
To implement these provisions, the current Transportation Secretary has entered into a memorandum of understanding with other Federal environmental and resource agencies involved in the review process. Our first panel of witnesses will present testimony from the Department of Transportation, the EPA, and the Corps of Engineers, and we expect to hear about the process of the Federal agencies in developing and integrating an efficient environmental permitting process.
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The second panel of witnesses will give us a nongovernmental perspective on the implementation of TEA 21 and the environmental streamlining process. With that statement of introduction, I would like to yield to the Ranking Democrat on our subcommittee, Mr. Rahall, from West Virginia.
Mr. RAHALL. Thank you, Mr. Chairman. As you have noted, today's hearing, oversight hearing, is on the environmental streamlining provisions of TEA 21. While there are many aspects of these provisions, I would like to briefly focus on one element today, the Corps of Engineers' section 404 permitting system, since the T&I committee has jurisdiction over the Clean Water Act.
These permits are essential to just about any construction action these days, and section 404 continues to be fodder for controversy.
The Tulloch rule. Or, for that matter, the replacement of Nationwide Permit 26, which is one of the topics on the House floor today as we consider the energy and water appropriations bills. The appropriations measure seeks to delay the implementation of the replacement permitting requirements, pending additional study and report.
Folks like the National Association of Counties believe that the proposed new permits, or having to seek an individual permit, would impede routine water and bridge improvements in places like floodplains. For its part, the administration and the environmental community claim that any delay in these permits would result in loss of valuable wetlands.
In the book, The Control of Nature, John McPhee wrote, and I quote, ''In addition to all of the things that the Corps actually does and does not do, there are infinite actions it is imagined to do, infinite actions it is imagined not to do, and infinite actions it is imagined to be capable of doing, because the Corps has been conceded the almighty role of God,'' end quote.
Now, I realize the Environmental Protection Agency thinks that is its role, the role of almighty God, but I happen to agree with Mr. McPhee. It is the Corps of Engineers which reigns supreme. One would think, then, that it would not be all too difficult to streamline the section 404 process and allow it to work more efficiently, whether it be in the highway construction program or, for that matter, Mr. Davis, as you are so well aware, for mountain-top removal mining operations. That just happens to be an issue Mr. Davis, the Corps, and I share a common interest in and he has been in my office on.
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Indeed, there are all kinds of things the Corps of Engineers does and does not do. But when you have been conceded the role of some divine entity, I would hope the one thing you could do is to conduct environmental review and permitting process for construction projects in a timely and efficient manner. This, then, is the challenge facing the Corps not only in terms of the environmental streamlining provisions of TEA 21 but in all respects.
With that, Mr. Chairman, I look forward to hearing today's witnesses. Thank you.
Mr. PETRI. Thank you. And statements from our Chairman, Mr. Shuster, and Ranking Democrat, Mr. Oberstar, will be made a part of the record.
Mr. PETRI. The first panel consists of Mr. Eugene Conti, Jr., Assistant Secretary for Transportation Policy at the Department of Transportation; Mr. Steve Herman, the Assistant Administrator for Enforcement and Compliance Assurance at the EPA; and Mr. Michael Davis, Deputy Assistant Secretary of the Army, Civil Works, for Policy and Legislation, U.S. Corps of Engineers.
Gentlemen, you all know the drill, and your full statements will be made a part of the record and we look forward to your presentations here today. Let's see, who should start? Mr. Conti.
TESTIMONY OF EUGENE A. CONTI, JR., ASSISTANT SECRETARY FOR TRANSPORTATION POLICY, U.S. DEPARTMENT OF TRANSPORTATION; STEVEN A. HERMAN, ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY; AND MICHAEL L. DAVIS, DEPUTY ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) FOR POLICY AND LEGISLATION, U.S. ARMY CORPS OF ENGINEERS
Mr. CONTI. Thank you, Mr. Chairman, members of the subcommittee. I certainly claim no higher status than a lowly angel here today.
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I am pleased to be here before you to speak about our Department's implementation of TEA 21, specifically the project delivery and streamlining provisions, and I have a longer statement submitted for the record.
The committee is obviously to be commended for its leadership role in TEA 21 and shaping it. It reflects the commitment of the Congress and the administration to invest in America's infrastructure in a fiscally responsible way while increasing safety, providing for a cleaner environment, and expanding opportunity.
The environmental streamlining provisions reflect the Congress's reaction to concerns expressed about potential delays, unnecessary duplication of effort, and added cost associated with past processes of reviewing and approving transportation projects. The chief objective is to focus our efforts on better and earlier coordination among the Federal, State, and local agencies involved in these projects.
I can assure you that we at DOT and our Federal partners are listening to the direction provided to us by this committee.
We must also ensure, however, that during the project development process we comply with the more than 40 environmental laws that are on the Federal statutes and streamlining the environmental review process must not lead to degradation of the environment.
In March of this year Secretary Slater invited his counterparts to cooperate in a multiagency effort to develop joint review processes. We have produced a national memorandum of understanding that has been agreed to by all of the participating agencies and it sets a national cooperative framework for future State and regional efforts.
The agencies have agreed to identify solutions to reduce project delays by amending rules and policies where needed, defining a national process for dispute resolution, and committing to establish performance measures and benchmarks to evaluate our decision-making. We are planning to host an event in the fall that will formally recognize the importance of this MOU, and we will keep the committee advised as to our plans in that regard.
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Last month, DOT distributed a successful practices tool kit to our field offices. This tool kit gives information on past and current successful programmatic agreements, memoranda of understanding, and partnering efforts. We also provided a copy to the committee of that successful practices tool kit. It is just one example of how we believe that we are working with State and local partners towards effective, creative, and flexible solutions, not waiting for some final rulemaking, but moving forward in conjunction with our partners.
We are committed to public participation in this process in keeping people and our stakeholders informed about our activities. We have Web site information available through our Internet connections and we also plan to have periodic public discussions and meetings open to stakeholders.
In addition, we have asked the resource agencies and project sponsors to identify ways of collaborating on removing obstacles to efficient project development. We believe, as I have said, that programmatic agreements, regional memoranda of understanding, less formal partnering efforts, support of pilot projects and training provide excellent opportunities for collaboration. Problems often stem from lack of early involvement and consensus about the scope of the project, a lack of trust at the working level, and a lack of understanding of other agencies' missions and the development of poor-quality documents.
Allowing the added costs of Federal agency compliance with deadlines as eligible Federal project expenses will also help project sponsors and their resource agency partners address some of these problems. We worked with these agencies to develop draft guidance and circulate it to our field offices in terms of those reimbursement policies early in May. Repeatedly, we have been encouraged to avoid prescribing a one-size-fits-all requirement for streamlining. We have been cautioned that streamlining initiatives need to be specific to the area and the partnership that exists in those areas. They need to accommodate change easily and allow for flexibility.
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We do expect to publish this fall a notice of proposed rulemaking regarding the integration of our planning and environmental requirements. We will continue to vigorously pursue the many viable strategies that are being implemented in the field such as those I have already described. We fully recognize the need for better performance, and better baseline performance information so that we can gauge our progress.
The American Consulting Engineers Council has come forward with some creative ideas on that front, and I think that you will hear from Mr. Kassoff later about that. We have had good discussions with them and we intend to pursue some of their ideas with them.
As a part of measuring progress, we have compiled some information about our past experience. The average duration of the EIS process, from the notice of intent to prepare an EIS to the record of decision, was approximately 4 years for highways, 3-1/2 years for Federal transit projects. Projects that require EIS's are the most complex projects, those with significant environmental impacts.
To look at our program in 1998, 1998 showed that over 90 percent of the projects did not have to go through that process. They were categorically excluded. Others were handled with findings of no significant impact, and so less than 3 percent of the projects were required to go through the full EIS process.
Of the total amount of Federal aid to States, 13 percent of the program dollars went through that process; so, 3 percent of the projects, 13 percent of the dollars.
We will as I said, continue to track our progress. We are proposing to hold some executive sessions each year with stakeholders, Federal and State government agency people, a whole range of people, to assess our progress. We are developing, following the MOU, a specific action plan with our interagency headquarters and field group input.
On August 10, Mr. Chairman, we are sponsoring an environmental streamlining teleconference, videoconference, through the University of North Carolina Center for Transportation and Environment, and that will be chaired by your Secretary of Transportation in Wisconsin, Chuck Thompson. So we are actively engaged in a number of areas. We have agreed on the MOU, we will pursue the action plan, and we will move forward aggressively on this issue. Thank you.
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Mr. PETRI. Thank you.
Mr. Herman.
Mr. HERMAN. Thank you, Mr. Chairman, and members of the committee. I am very pleased to be here today. We at EPA actively support streamlining efforts and making it part of our everyday way of doing business. We believe that we can streamline the review process while still meeting our statutory mandates to protect the environment.
With the earlier involvement of all Federal, State, and local stakeholders, streamlining will allow us savings in both time and money and will create better transportation solutions for the country.
Section 1309 enhances the direction in which EPA was headed with our State and Federal partners. We have worked with them to integrate the requirements of NEPA and the section 404 permit program and this has made the approval process flow more smoothly. With section 1309, Congress has given agencies the mandate to work at additional aspects of environmental review and permitting to see what other efficiencies can be gained.
To meet the goals laid out by TEA 21, EPA has established transportation teams in each of our regional offices. In fact, this past January, our Region 3 office in Philadelphia, which also covers West Virginia, hosted a TEA 21 summit in Philadelphia for all of the mid-Atlantic States. The region is building on the streamlining momentum of the past in order to improve the future of transportation in this, one of the more heavily traveled parts of our country.
The assembled State and Federal transportation and environmental officials signed the cooperative agreement to work on transportation solutions for the region, and they expect to have specific streamlining procedures in place by this mid-October. We hope to reproduce this model elsewhere in the country.
In fact, in September we are holding a similar session in Texas. EPA has met with representatives from the American Association of State Highway and Transportation Officials on several occasions since the passage of TEA 21, and we were pleased to be invited to their environmental session this spring.
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We are eager to continue to collaborate on further joint pilots with AASHTO and with the Department of Transportation. We were pleased to join with the Department of Transportation in signing a letter outlining our mutual commitment to streamlining. We also participated in the development of DOT's national memorandum of understanding and we signed it on July 1.
Will a streamline process solve all project delays? Absolutely not. However, often environmental issues are not the real stumbling block when a project is delayed. Rather, local land use debates or clashes of competing special interests could derail or unduly delay projects. Better planning and meaningful public involvement must go hand in hand with streamlining environmental reviews if we are to avoid litigation and costly delays.
I want to emphasize, however, as committed as EPA is to environmental streamlining, we cannot compromise our responsibilities under the Clean Air Act and NEPA to conduct thorough reviews of significant projects. Congress gave EPA the responsibility to comment on the environmental impact statements of all major Federal actions. We rate an impact statement both on its potential environmental impact as well as on how well it discloses pertinent information to the public.
As my colleague Mr. Conti testified, only 2.4 percent of the Federal highway projects for 1998 required the preparation of an environmental impact statement. Eight out of 10 of these proceeded expeditiously from planning to a record of decision. These projects have few environmental impacts because FHWA and other agencies have addressed them during the development of the draft EIS.
The other 20 percent of the EISs are more contentious and do require additional work to avoid or minimize impacts to the environment. Often these can be modified to meet the transportation needs as well as the environmental goals of the community. But again, the earlier we and other environmental agencies provide feedback to the Department of Transportation and the State, the fewer delays there will be.
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While EPA gave only 6 adverse ratings to highway EISs between 1994 and 1998, and that is only 6 out of the universe of 252, we know that we can do more to avoid these and to expedite the remaining projects. We are excited about the opportunity in section 1309 for States to earmark a portion of their highway funds to expedite Federal reviews.
We are working on agreements with 3 States so far: Pennsylvania, Maryland, and the State of Washington. We and these States have learned that expediting environmental reviews requires getting the transportation, planning, engineering, and environmental review staff at the table at the earliest stage of project conception. While this is resource-intensive for EPA and other agencies, it holds the promise of saving time and dollars over the life span of the project.
Thank you for the opportunity to testify today in support of environmental streamlining, not just because it is the law, not just because it is good for the economy, but also because it makes good sense for the environment. I will be pleased to answer any questions. Thank you.
Mr. PETRI. Thank you.
Mr. Davis.
Mr. DAVIS. Mr. Chairman and members of the subcommittee, I am Michael Davis, Deputy Assistant Secretary of the Army for Civil Works. While I am not here today representing the higher authority referenced by the Ranking Member, I am pleased to be here today to present the Department of the Army's view on the environmental streamlining provisions of TEA 21. My testimony will focus on the importance of early coordination between the Army Corps of Engineers, the Federal Highway Administration, and other Federal and State agencies involved in transportation projects.
A quick overview of the Army's regulatory program and its relationship to transportation projects will set the stage for my comments on the environmental streamlining provisions. The Army's regulatory program is one of the oldest such programs in the Federal Government, having its legislative origins in the Rivers and Harbors Act of 1899. This act established a regulatory program to prevent unauthorized obstruction or alteration of any navigable water of the United States, and included under section 10 the regulation of structures to prevent them from adversely affecting navigable capacity of our waters.
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Perhaps the most significant Army regulatory authority pertaining to transportation projects is section 404 of the Clean Water Act. Under section 404, the Corps of Engineers is authorized to issue permits for the discharge of dredge or fill material into the waters of the United States, including wetlands. Highway and mass transit projects frequently involve the disposal of dredge material or the placing of the fill material in waters of the United States and, in particular, wetlands.
The Corps permit decisions are based on compliance with several environmental laws, including the National Environmental Policy Act, and on compliance with two substantive regulatory tests. The Corps must determine that a project is not contrary to the public interest and that it complies with the Clean Water Act section 404(b)(1) guidelines. This evaluation process provides a sound foundation for the Corps' decisions concerning the use of the Nation's aquatic resources. Early involvement by the applicant, the State in the case of most highway projects, and interagency coordination can go a long way to make these evaluations as comprehensive and efficient as possible.
It is very clear that the Army's regulatory program can and does play a significant role during the development and approval of highway and mass transit projects that involve impacts to aquatic resources. Therefore, as outlined in section 1309 in TEA 21, the Corps is one of the Federal agencies that has independent legal jurisdiction over a wide range of environmental, social, and cultural issues.
For this reason, we agree that there is a need to work with the Department of Transportation to consider options for improving interagency coordination and efficiency. Improved coordination, and especially concurrent NEPA work, should reduce delays, minimize the emergence of last-minute issues and help keep highway construction and mass transit projects on schedule, while improving environmental protection.
The Corps has a long history of working with the Federal Highway Administration to streamline the interaction between the regulatory program and the Federal Aid Highway Program. In 1988 the Corps, the Federal Highway Administration, the Environmental Protection Agency, and other agencies published a guidebook entitled ''Applying the Section 404 Permit Process to Federal Aid Highway Projects,'' commonly known as the Red Book. This formed the basis for improving the timing of permanent decisions. The Red Book promoted programmatic and process changes, including interagency training, general permits, frequent interagency meetings. The most significant change recommended, however, was moving the Corps' permit process deliberations and interagency coordination to the forefront of the Federal Highway Administration NEPA process. This allowed the Corps to complete permit decisions concurrent with the Federal Highway Administration EIS, saving time and avoiding duplication of effort.
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Since the publication of the Red Book in 1988, many Corps districts and local Federal Highway Administration offices have adopted the recommended programmatic changes in coordination with State DOTs. These changes have in fact helped reduce the time required to permit decisions in highway projects. One of the limitations on reducing the time is the availability of staff for reviewing an evaluation. We believe that section 1309(e) of TEA 21 which allows States to contribute funds to Federal agencies could help a duressed staffing and research problems that may be delaying reviews and approvals.
In March 1999, the Corps issued guidance on implementation of TEA 21 provisions that allow State DOTs to transfer funds to the Corps. We felt that it was important to let the Corps districts know early on about our support generally for TEA 21 streamlining provisions and the acceptance of funds to expedite highway and mass transit projects.
On July 1, 1999, Dr. Joseph Westphal, the Assistant Secretary of the Army for Civil Works, signed an interagency memorandum of understanding along with 5 other Federal agencies. This MOU outlines the important principles that we will use to ensure that highway construction and mass transit projects are protective of and more compatible with the natural and human environment, and the decisions are made in a timely manner.
Mr. Chairman, we agree there is a need for improving interagency coordination to reduce delays, minimize the emergence of last-minute issues, and help keep transportation projects on schedule. We also recognize that decisions about those projects must reflect the importance of protecting the Nation's's aquatic environment.
The merger process does work. In 1996 the National Performance Review's Hammer Award was presented to 12 agencies from Pennsylvania for implementing the provisions of the Red Book. Both the Corps' Baltimore and Pittsburgh districts were included. The team set new standards of excellence by reinventing the process of planning and designing of effective, safe, and environmentally sensitive transportation systems while fully satisfying NEPA and Clean Water Act requirements. This process resulted in a total savings of $119 million and reduced by 11-1/2 years the project review, design, and permit process times for three major highway projects in Pennsylvania.
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There are many other examples of success around the country, including the highway methodology developed by the Corps' New England District and a partnership agreement between the Corps and CalTrans. Unfortunately, the consequences can be serious when interagency coordination breaks down and the NEPA section 404 merger procedures are not followed.
Recently, a State DOT did not heed the Corps' advice that less damaging wetland filling alternatives were available and should be evaluated during the EIS process. Consequently, after the State's EIS was finalized, information and comments from other agencies and the public led the Corps to reaffirm that practicable alternatives did in fact exist. As a result, the permit requests were denied.
Examples like this illustrate clearly why all parties must work together from the beginning of the highway planning process. It is in all of our interests to adopt streamlining principles and to work cooperatively together to protect the environment.
In conclusion, the process for evaluating the environmental consequences of our decisions naturally requires a balancing of information-gathering and deliberation. It requires a clear understanding of the importance of natural resources protection. It also requires effective communication and coordination at all levels of government. When Federal agencies implement their programs according to the principles addressed in TEA 21 and the interagency MOU, the resulting projects will reflect a high degree of environmental sensitivity and a timely approach to decision-making.
The States' DOTs must also step up and do their part to support this effort by providing environmentally sound projects for construction consideration. This will only happen if coordination is early, often, and continues until the decisions are made.
Mr. Chairman, members of the subcommittee, we appreciate your continued interest in our efforts to increase the effectiveness of the Army's regulatory programs in support of the Nation's transportation projects. That concludes my testimony and I would be pleased to answer any questions that you may have.
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Mr. PETRI. Thank you.
Mr. Rahall.
Mr. RAHALL. Thank you, Mr. Chairman. Mr. Chairman, noting the large number of members on our side of the aisle interested in this very important hearing on streamlining environmental provisions versus your side of the aisle, I will be rather brief in my questions.
Mr. PETRI. When you are in the Majority, you have got so many duties.
Mr. RAHALL. But again, this is a very important issue, streamlining environmental provisions and processes.
Let me ask the panel— the goal, as you know, of the environmental streamlining provisions when we crafted them were to ultimately move transportation projects along faster, get the facts on the table earlier, have everyone coordinated, get a better decision in less time.
I appreciate everything that has been said here this morning and the studies and the efforts to follow these provisions, but I guess I want to get down to specifics. What in the memorandum of understanding signed by the agencies will accomplish this, and specifically, what about benchmarks? What about time lines for accomplishing these goals?
Mr. CONTI. I would be happy to start commenting on that question. We are pursuing a number of different ways to do benchmarks. One of them is obviously to look at the historical record on projects. The other is pursuing something that the American Consulting Engineers Council came up with, doing some baseline surveys on perceptions from stakeholders, interest groups of various sorts, from a number of people to understand how they perceive the process and do follow-up surveys as you move along to see if the process is changing in people's minds.
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There are a number of ways objectively to try to look at specific projects and to look at benchmarks for how long they take and then also to try to survey people's perceptions of the process and see where there are problems and fix them. We are pursuing several benchmarking strategies because I think that you need to look at that in different ways. We intend to start those immediately. As I said, we have had discussions with the ACEC about their proposal. We are gathering the information on the historical record, some of which I presented earlier.
Mr. RAHALL. Do you have any time lines?
Mr. CONTI. In terms of—.
Mr. RAHALL. Complete this part or that part of it? What time do you want to reach those benchmarks?
Mr. CONTI. One thing we have to do is establish the benchmarks. We have a benchmark, of sorts, that it takes 4 years for a highway project to go through the full EIS process, if that is necessary. We would like to reduce that amount of time. That is obviously one benchmark that we are focused on. We don't have the specific date at which we will say we have now reduced it by a month or 2 years or whatever, but we are moving in that direction to reduce the level of review or that time of review anyway.
Mr. HERMAN. We are going to work very closely with the Transportation Department on this. We consider measurement and benchmarking very important. I think that we set up the transportation committees in each of our regions to give a higher profile to this issue, although I don't have any specific figures yet. I know that the assignment, for instance, of EPA personnel to some State agencies, which has been arranged in Pennsylvania and is being negotiated now with Maryland and, I believe, with West Virginia, will have to result in expediting of the process. But we, too, think that the point you are raising is very critical to making sure that we are in fact succeeding.
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Mr. RAHALL. Mr. Davis.
Mr. DAVIS. I think the MOU is important in other ways as well, in addition to beginning to establish some benchmarks to measure from. I think for the first time, it sends a very clear signal that the executive branch supports the principles of TEA 21 and we expect our respective field staffs to respect those and implement those principles as well. I think it sends a great signal from the leadership in the Federal Government.
Mr. RAHALL. Thank you, Mr. Chairman. I will come back on the second round.
Mr. PETRI. Mr. Horn.
Mr. HORN. Thank you, Mr. Chairman. You have a marvelous panel there and Mr. Rahall is on the right direction on the benchmarks and the timing.
I would ask the basic question: When are you going to complete the timing at the various levels? The Corps of Engineers has a delegation in many of these areas from Secretary of the Army to Chief of Engineers to District Engineer. Do the other two agencies, Transportation and EPA, have a parallel delegation, so that you are dealing down at the local level where everybody knows you, and how does that work with EPA and Transportation?
Mr. CONTI. In terms of transportation, those decisions are made at the local and State level in terms of specific projects. They have to go through the planning process that is outlined for the metropolitan areas by the metropolitan planning organizations, in rural areas by the State DOTs. So those decisions in terms of projects moving forward are not—are done at the State and local level. We have district engineers in the Federal Highway Administration. For transit projects, we have a variety of arrangements but most of the time we do have somebody on the ground, and every transit project is subject to FTA oversight.
Mr. HORN. Do they have the delegation authority at the district engineer level for you?
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Mr. CONTI. They have the authority to move projects forward based on the States' recommendations and the States following through on the planning and environmental processes.
Mr. HORN. Mr. Davis, I don't think this one was on your watch, but as I recall, the district engineers switched over in Chicago, I think three times, and a decision on a major project was not made. Now, has the Corps straightened that type of thing out, or what is happening on that?
Mr. DAVIS. I think that was probably an artifact or consequence of the Gulf War, when we had to reassign very quickly several colonels and lieutenant colonels to other parts of the world. For the most part, I think assignments have stabilized and now they are back on the normal 2- and 3-year rotation that we had for many years in the Corps.
Mr. HORN. Now, does the Corps keep data on how long it has taken to reach a particular decision? Is it 6 months, 1 year, is it 2 years on average? Do you have any material on that?
Mr. DAVIS. We have a very extensive database on which we track regulatory actions, literally 80, 90, 100,000 actions each year. If you look at everything that comes in the door to a Corps of Engineer's office nationally, the average time to get a permit decision is about 21 days nationally. If you break out the more complicated individual permit process from that universe, the average time is about 85 to 87 days. It has been consistent for the last 3 or 4 years.
Mr. HORN. How about EPA?
Mr. HERMAN. I don't have the time line. I will tell you, though, that responsibility for the review and comment on environmental impact statements is, for the most part, delegated to our regional administrators, with one exception; and that is if a draft EIS or draft supplemental environmental impact statement is going to be rated unsatisfactory. Then that has to be concurred in by myself.
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Mr. HORN. How about transportation? Do you keep any time lines or know what the average time is to reach a decision on this?
Mr. CONTI. Well, most of those decisions are made at the State and local level. We are not involved in approving specific projects on that basis.
Mr. HORN. I am thinking when it enters your door, there must be a date stamp when it goes in. What is the date stamp when it goes out, on average?
Mr. CONTI. I do not have that data. If we have it, we can provide it to the committee.
Mr. HORN. Mr. Chairman, if we might at this point in the record have letters both from EPA and Transportation on the average time, overall, on some of these particular cases? And I will let the staff of the Chairman worry about the equities of the type of programs, et cetera.
Mr. HERMAN. Mr. Horn, if I may, we are dependent on when we get the information from other agencies. However, once we get the Draft EIS information, we are required to respond within 45 days. We can get you information as to whether or not—how many times we need it or whatever, if you like. But we are required to get back to them within 45 days with any comments.
Mr. HORN. Let me ask you, Mr. Davis, Secretary Davis, under the Nationwide Permit 26, what is the impact on the review process? Would it lengthen the time needed to reject or approve the plan in your judgment?
Mr. DAVIS. Nationally it will have some effect. It will, we believe, increase our time somewhat. We think it is a manageable, acceptable level of increase in light of the environmental benefits we will achieve from that. For transportation projects, we are not really sure. I think, overall, that it probably will not have a large effect. Many of these highway projects that you are talking about are larger projects that require individual permits anyway. In fact, we have done some things that will help increase the use of the nationwide permits for highway projects.
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For example, for public linear transportation projects, we increased the acreage which would require an individual permit from one-third of an acre to 1 acre for those types of projects. I don't want to mislead you; there will be some restrictions, such as restrictions on the 100-year floodplain, times, and restrictions in critical resource waters, that may require actions that have in the past been approved by general permit to now require an individual permit.
Mr. HORN. Mr. Chairman, I don't know if we are going to have a second round, but if we are, fine. I have several more questions along that line.
Mr. PETRI. Very good. Mr. Blumenauer.
Mr. BLUMENAUER. Thank you, Mr. Chairman. I just have one item that I had hoped the panel may respond to. I had been interested in the testimony that has been submitted by Mr. Kienitz from the Surface Transportation Policy Project, who is going to be on the next panel, where he makes the distinction between the two categories of projects. Basically in the vast majority of them, consensus is reached, things move forward. There are a relatively small number where there is not a consensus in terms of environmental, socioeconomic, practical implications, and sometimes things just get bogged down.
It raises the question in my mind as to the extent to which we have the necessary resources developed that not only bring to the table local governments, engineers, Federal agencies, but also the citizenry who many times have deep concerns. What are we doing in terms of developing the citizen infrastructure, particularly in some of the rural areas or smaller communities where there may be difficulties and we may get bogged down? Do you have observations or thoughts about that?
Mr. CONTI. I would be happy to comment on that, Congressman. We do have, as I said, a planning process which is relatively uniform around the country in terms of its Federal requirements. But, of course, local governments and State governments can implement it somewhat flexibly. But in metropolitan planning areas, there are many provisions for public input.
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In rural areas under TEA 21—and I believe this committee had a strong role in putting this into place—there is a requirement for States to seek public input in rural areas and to make sure that that is done. Now, we don't have at the Federal level any enforcement. We can't go out and say to State A, you are not doing this right. But we do have the requirement to report back to this committee, I believe, within the next year or 18 months, on how States are doing to implement that provision.
So there are a lot of public input provisions under TEA 21 and before that in ISTEA. We are very cognizant of that. We work with our State and local partners very actively on that, and I think that is part of the message here, that early input from the public as well as the various State and local officeholders is important in building the kind of consensus that you need to move the projects forward expeditiously.
Mr. HERMAN. Mr. Blumenauer, NEPA provides for an extensive public comment period and the public participation. And we are very supportive of that. We have tried to encourage public participation in many other of our activities, from brownfields and some other projects. One of the problems that comes up often is that local citizens don't have the technical expertise that might be necessary in some areas. In some areas for example, under Superfund, we have been able to provide funding for local assistance. But we certainly are encouraging our regional offices to do as much as possible to encourage citizen participation in this process and in many of the other processes.
Mr. BLUMENAUER. Mr. Chairman, I appreciate the reactions. I guess I would draw the distinction between the input, per se, and the ability of people to have the tools, the resources to be involved in a constructive and knowledgeable fashion. I appreciate what you are saying, Mr. Herman. I would hope that the committee could take a step back, either with some of our witnesses or as we go through this process, to identify areas where we have seen creative uses of these resources to help empower people to be active participants. I think it might show where people have been investing in helping citizens and also areas where more work needs to be done. Time and money is extraordinarily well spent and will do far more than our tinkering from a distance with time lines and rules and regulations if we can empower people locally to meet the intent of the legislation.
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I appreciate your scheduling the panel in this fashion and hope that we can focus in on what we are doing to really build that capacity at the local level.
Mr. PETRI. Thank you. Mrs. Kelly.
Mrs. KELLY. Thank you, Mr. Chairman. Did I understand you gentlemen to say—correct me if I am wrong—that you are going to have a meeting in August to make some decision about the comment period? Is that what I understood you to say?
Mr. CONTI. I don't believe I said that.
Mrs. KELLY. Are you having a meeting soon?
Mr. CONTI. There is a videoconference on August 10 that is going to involve stakeholders from around the country. It is being run through the University of North Carolina.
Mrs. KELLY. You are involved in that?
Mr. CONTI. I am not involved personally in it, but there are Federal Highway and other Federal officials involved in it.
Mrs. KELLY. Your agencies—are your agencies involved?
Mr. CONTI. Yes.
Mrs. KELLY. What are you going to do with that comment when you get that? What are you going to do after that conference? You will be getting comments at that conference, I assume; is that correct?
Mr. CONTI. This is a videoconference set up as part of the process to develop the rulemaking and understand the issues involved in environmental streamlining. It is not a decisional type of conference in that sense.
Mrs. KELLY. That is what I wanted to clarify. So basically what you are having is a focus group in a sense; is that correct?
Mr. CONTI. It is somewhat like a nationwide focus group. There is fairly broad participation, I believe.
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Mrs. KELLY. Once you get a draft, when are you going to open it for comment?
Mr. CONTI. Our plan is to publish a notice of proposed rulemaking this fall and then it would be open for comment.
Mrs. KELLY. Fall is a long period of time. Can you give us some kind of a guesstimate?
Mr. CONTI. We have some drafts we are going to start circulating within the executive branch. I would hope, within the October time frame, a notice of proposal rulemaking out.
Mrs. KELLY. Is there some reason why you would limit that to the executive branch only and not—.
Mr. CONTI. No. I am just indicating that before we can publish a notice of proposed rule making, we have to circulate it within the executive branch, go through OMB clearance, all of that Administrative Procedures Act process. So we are moving forward and we hope to publish that in the fall.
Mrs. KELLY. Once you have a draft and you open it for comment, how long do you think you are going to set the comment period for?
Mr. CONTI. A regulation of the complexity and impact, my guess is we would set it at least 90 days, somewhere in that range. Maybe longer.
Mrs. KELLY. A couple of other things. I am concerned that we don't overlayer a lot of legislation here. Have you got safeguards in place right now that are going to ensure that the new environmental approval process isn't more cumbersome than what we already have?
What I see is a tendency of too many agencies and all of us in government to fix a law by adding three or four more laws to fix the first law. I want to make sure that that doesn't happen here, and I want to know if you have built some kind of process in to stop that from happening, and if so, what that is.
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Mr. CONTI. I don't have any safeguard or silver bullet to stop that. I can tell you our intention is to make the process more streamlined, to have more concurrent reviews, to set benchmarks to measure whether we are reaching the kind of goals that we want. So our whole focus is to implement the provisions as written by the Congress and not to add additional layers and not to add further complication to an already fairly complicated process.
Mrs. KELLY. Would it be fair to say you are going to be looking at your own agencies to make sure that whatever you do isn't an overlayering of already existing?
Mr. CONTI. I think each of us would do that, yes.
Mrs. KELLY. And if it is, you would act to make sure that it does not add more burdensome requirements here? Is that fair to assume?
Mr. CONTI. Yes.
Mrs. KELLY. Thank you. One other thing here. How far ahead are you going to be issuing the rules on implementation once you get through this comment period?
My concern is that at a local level, people—if they have an idea that you are going in a direction—they are going to try—they are going to want to presume that that is the direction that you are going and they are going to need to be able to set their attitudes and rules and regulations, especially at the local level. They will need to know very quickly. What are you going to do about that?
Mr. CONTI. I think that is a good question. What I tried to emphasize in my testimony, what we tried to emphasize in all of the discussions that we have had with stakeholder groups and our other Federal partners is that we don't want to discourage innovation and creativity. We don't want people to wait for our final regulations. If they have ideas about streamlining, we have seen some good examples. Pennsylvania has been talked about, other States that have moved forward. We have some good examples of where people used the creativity and the flexibility to move forward. We want to encourage that.
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If there are local governments in your area that want to pursue those ideas, I would encourage you to get them in touch with me or some of these other agencies and let's listen to them and see how we can help them to move forward and not wait for some pronouncements from the Federal Government.
Mrs. KELLY. That would be nice. Great. Thank you very much.
Mr. PETRI. Thank you. Mr. Taylor, any questions?
Mr. TAYLOR. Mr. Chairman, I thank the Chairman for recognizing me. I am sure you know that I am not a member of this subcommittee, but I thank you for doing so. Something that I would like to address is in my own district; we have a situation where a large mall was built, and as a result of the huge amount of water from the parking lot of this mall, it is causing a flooding problem and the Federal Government will probably have to go in and purchase about 80 to 100 houses. Not the developer, but the Federal Government.
I take it there is some sort of implied guilt on the part of the government if we issued the permit to go ahead and do something and we are responsible for whatever flooding problems.
My question is, having witnessed this in my own district, to what extent do your agencies explain the need for the research you do to the people of America? To what extent do you say that we are taking a look at this to make sure that what we do doesn't cause a problem somewhere upstream or downstream and we are doing this where there won't be any unintended consequences, where we won't be flooding out people's neighborhoods, either above this work or below this work?
I don't find too many government agencies taking the time to explain that. They somehow get caught up in the snail darter, the Alabama sturgeon, the spotted owl. They don't bring you back to how this affects people. So I sort of understand what the proponents of this are saying. We need to speed up the process. But I would also encourage you to try to bring it back in human terms, why what you do is important.
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Mr. DAVIS. Mr. Taylor, I couldn't agree with you more. One of the principal charters of the Army's regulatory program is to look at potential flooding effects, upstream and downstream. We try to do that very carefully. In the context of an individual permit where we actually have time to go through an evaluation and engage the public, I think we are pretty effective at that. Where we have probably been far less effective is in our general permit program where we don't see many of these actions that are authorized by general permit, and the ones that we do, we simply don't have enough time to go through a detailed evaluation.
One of the changes that we are proposing with the nationwide permits is a limitation, a very strict limitation actually, of the use of the 100-year floodplains. We are going to be taking a much more serious look at how things are authorized in the general permits in the floodplain. I think this will go a long way in helping resolve some of the concerns and problems that you have identified.
Mr. HERMAN. Mr. Taylor, I, too, couldn't agree with you more. I think in many instances the NEPA process does serve to raise everybody's consciousness and concern or interest about a potential problem and move to resolve it. As Mr. Davis said, many projects fall under the threshold for a complete discussion, but we have been trying to explain all over why we do the analysis and why we are trying to do certain steps that we are taking. I know in the present appropriations process, we have been trying to get additional money to focus on things like nonpoint-source runoff like the one that you have described. It is a difficult problem and it is one that we have to address more aggressively and more and more carefully. I think we are all trying to do that.
Mr. CONTI. I would just add, as I commented earlier to Mr. Blumenauer's question about public involvement, and our planning and environmental review process is an important component of both of those. We emphasize it very strongly with our State and local partners, that that has to be part of the planning process and we have to make a good case for building these projects in the first place.
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Mr. TAYLOR. Mr. Chairman, if I may follow up. Mr. Davis, I want to go to what is happening as we speak in Lamar County, Mississippi. It can pretty well be traced that the flooding is a direct result of a huge mall that was built. Is there an implied guilt on the part of the government? I am like every other Congressman; I am going to go to bat for my constituents. They have a problem, their houses are flooding; it didn't used to flood. Is there an implied guilt on the part of the government that if we issue a permit, that we have screwed up and therefore we as a Nation are liable?
Mr. DAVIS. I think there is no legal liability on behalf of the Federal Government. It may be perhaps some policy liability that we need to incur here. But I think the permittee is ultimately responsible for the actions and the effects of the discharge that has been authorized. Again, as a matter of policy, we think that we have some responsibility here to look more closely at the actions, those types of actions, and make sure that the Federal Government or somebody is spending enough time to understand fully what the flooding consequences upstream and downstream would be from these permits.
Mr. TAYLOR. I hate to use an over-utilized word, but sometimes it is appropriate. The reactionaries do a pretty good job of beating up, on the Corps in particular, saying this is all about snail darters, it is all about sturgeons, it is all about the red cockaded woodpecker. I cannot express strongly enough, I do think the vast majority of what you do is very important. But I cannot say in strong enough terms that you need to do a better job of informing the public of why you do what you do—all of the way from the levies on the Mississippi River to the floodgates of Bonnet Carre, to taking a little while to issue a permit on the 404, and bring it back to terms that affect everyone and their pocketbook. Because I do find the vast majority of my constituents, when you break it down to those terms, they understand it. ''We are trying to keep you from building a house that is going to get washed away in the next 12-inch rain.'' they understand that. And I do think that we run the Nation for them and it is just as important that we communicate to them that we are trying to do some good.
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Mr. PETRI. Mr. Shuster.
Mr. SHUSTER. Thank you, Mr. Chairman. We certainly appreciate your testimony today and you being here, because I want to emphasize the extreme importance of streamlining the environmental review process. This was one of our highest priorities in TEA 21, our transportation bill. And indeed the job is not done. We not only need to monitor the implementation of TEA 21, but the other agencies: EPA, Corps of Engineers.
I shudder at some of the reports I get about how long and how costly it is to get this process approved. Indeed, I think it is no secret that often the process is used simply to delay projects that certain people would like to kill. I would hope that the witnesses would provide this committee with specific actions that you are taking under the streamlining provisions of TEA 21 as well as any other legislation that this committee has jurisdiction over to make project approvals go faster.
It is a very high priority. The job is not done, and we are counting on you to help make it better. Thank you.
Mr. PETRI. We will recess for the vote on the House floor and reconvene at 3:15. There will be more questions.
[Recess.]
Mr. PETRI. I apologize for being a little late in getting back, but I think that we will begin. In the absence of others who have not had a chance to have their first round of questions, we will go to Mr. Horn for his second round.
Mr. HORN. Thank you, Mr. Chairman. We pursued some of the time periods in the last round. Let me just start with the Corps of Engineers. Does the Corps have the authority to overrule the EPA and other agencies in this process?
Mr. DAVIS. For the purposes of the Clean Water Act, the Corps is the decision maker, but for one exception; EPA under section 404(c) has the ability to veto a Corps of Engineers' permit decision. Other than that the Corps is the final decision maker.
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Mr. HORN. So the Corps can do it under the Clean Water Act?
Mr. DAVIS. Yes, sir. The Corps under the Clean Water Act is the agency responsible for making the decision under section 404.
Mr. HORN. And the EPA can veto what decision?
Mr. DAVIS. The EPA can, if they disagree with the Corps of Engineers' permit decision, veto that decision under section 404(c). But I would add that in the 25-plus-year history of the program, EPA has only done that 12 or 13 times out of literally hundreds and hundreds of thousands of actions.
Mr. HORN. Has the Corps taken the authority to overrule how many times, do you know? Couple of hundred or what? Or do you just work out a consensus?
Mr. DAVIS. The vast majority of the permits, literally there are 100,000 actions every year that the Corps deals with in its regulatory program, are dealt with very efficiently and very much in a consensus fashion, where the Federal agencies and the State agencies also have a very important role and are very satisfied with the outcome. There is a small piece of that, a few permits a year actually, where that consensus is not reached: We have a disagreement or perhaps differing missions.
We have a process in place to deal with those types of disagreements. There is a formal elevation process with a lot of discipline, where we have time frames prescribed at each step of the way, where ultimately a permit decision could be delegated up to the Secretary of the Army's level. Very few of those—maybe one or two a year, on average, make it up to the Assistant Secretary's level.
Mr. HORN. Does the White House and the Environmental Quality Council ever get involved in these?
Mr. DAVIS. It is very rare. I don't know of a case where the White House was actually involved, but the CEQ representing the White House has from time to time been involved; but principally in the context of the National Environmental Policy Act, for which they have a statutory role and responsibility.
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Mr. HORN. Does the Corps have the necessary personnel levels to meet its current regulatory workload? Is that hindering a timely way here, or do you have enough resources to deal with it? At 100,000 a year, you must have been dealing with it fairly well, I would think.
Mr. DAVIS. We try to manage the program through the effective use of general permits and other streamlining mechanisms we have available to us. We can't control the workload. We take what comes in the door. We try to do it as efficiently as we can.
To answer your question, I would say, no, the Corps does not have enough staff to provide the timely decisions that we would like to provide and provide the environmental protection that we are charged with providing and that we think is so important. This program is very much a labor-driven program. We have about $106 million this fiscal year to run the program. The vast majority of that goes to pay for salaries. We don't have a lot of contracts. We don't buy tanks and helicopters in this part of the Army program. We just pay for salaries. So we have had very flat budgets for the last 3 or 4 years, and that has had a very negative effect, because with inflation, that actually means that we have less regulators in the program.
Mr. HORN. Is that a flat budget decision within the Army or within the Department of Defense or within OMB?
Mr. DAVIS. Actually, it is neither. The Army and the President have for the last several years asked for increases in the Army's regulatory program budget, and the Congress has not given the full amount that the President has asked for in any of these years. Last year they gave us some additional funds for the regulatory program, but they haven't given us what the President has asked for.
Mr. HORN. That would be the appropriations Subcommittee on Energy and Water Development?
Mr. DAVIS. Yes, sir.
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Mr. HORN. That is news to me, because most of them I deal with are the other way around. So you are in a unique position. We can maybe do something about that one of these days.
I guess can you discuss how a project might be evaluated if it could be shown it would improve air quality and reduce traffic, but also have a negative impact on wetlands? How do you decide something with those conflicting values?
Mr. DAVIS. At times it is a bit of a balancing act. The Corps, I think, is pretty effective in looking at a lot of competing interests including air quality, endangered species, wetlands protection. What I found in having been involved in this program for over 20 years now, most of the time you don't have to make those choices. It is very rare that you have a very substantive conflict between two competing interests like that where you have to choose between clean air and clean water. I think generally you don't have to make those choices. We have been pretty effective at avoiding that.
Mr. HORN. Is there written Corps guidance on this that would lead you one way or the other? For example, is it number of people affected, let's say?
Mr. DAVIS. No, it would not be. It is important to understand for air issues we would give a lot of deference to the State and their analysis of the potential impacts on air quality. We give deference to EPA. Our focus is principally on aquatic impact, impacts on wetlands and rivers and streams and other waters.
Mr. HORN. The streamlining that you have discussed this morning, today, is designed for major new projects, while the NWP changes are designed for small, usually under 3-acre projects. However, if the Corps is devoting staff to small project reviews, will it still be able to review the large projects in a timely manner? With 100,000 most of these are small projects, I would think.
Mr. DAVIS. Most of them are very small, very benign types of projects. Most of them do not involve fills and wetlands. They are often boat docks, those types of things. I believe with the increase in funding that the President has asked for this year, $117 million, the Corps can do a very efficient and effective job of evaluating individual permit applications even with the increase that we will definitely see with the new nationwide permits.
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Mr. HORN. So larger projects would not be hurt and harmed by all of the small ones that you have to deal with?
Mr. DAVIS. I think there will be some delays. I think it is a manageable amount, an acceptable amount in light of the environmental benefits and the other benefits that we are going to achieve.
Congressman Taylor mentioned something that I think is very important, that we have seen some of these small actions, particularly the cumulative effects of these small actions, have resulted in flooding. It is not just the effects on wetlands and other aquatic resources, but actually affecting people directly by flooding people upstream or downstream. This new framework we are putting in place with a nationwide permit will allow us to look at these impacts and spend a little more time on them, hopefully avoiding that. Each year we spend about $4 billion in this country paying for flood damages. Hopefully this will have some effect on, perhaps in the long-term, reducing that damage.
Mr. HORN. Thank you very much. I appreciate you being here.
Mr. PETRI. Thank you. I think that before you leave, I would just like to give you a chance, if you would care right now or by submitting your responses in writing, to answer a question from the Chairman. He said, ''I would especially like the Federal witnesses to describe what specific actions they are taking under the streamlining provisions to make project approvals go faster.'' sort of the bottom line. Would you care to address that now? I know that he will be very interested, as will we.
Mr. CONTI. I would like to respond in writing, and I also will respond orally. We have started the process. We are moving forward aggressively in a number of these areas. We do need to establish the baseline data, and we hope to have that done over the next 6 to 8 months in terms of looking at past practices and also getting some of this survey research that I talked about done. It is important to establish those baselines, and then you have something to measure against. We are not sitting still nor waiting for anything. We will move forward aggressively, and we will provide additional information to the Chairman in writing.
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Mr. HERMAN. Mr. Chairman, I mentioned during my testimony some of the things that we have done, and we will submit something additional in writing. Let me just say that one of the things that we have been working at streamlining in the Region I mentioned in region 3 we convened a transportation summit. All of the Region 3 States except one, Virginia, signed the cooperative agreement. Several of our States are taking advantage of the provision in TEA 21 to fund additional Federal personnel to work with the State on projects in their State to make sure that they move expeditiously. We will give you a more full accounting of those activities and how they are developing in other regions as well. Thank you.
[The information follows:]
[insert here]
Mr. DAVIS. Mr. Chairman, the Army supports fully the principles reflected in TEA 21 on streamlining. In fact, we have, with my colleagues here at the table, a long history of trying to implement those types of principles going back at least to 1988 when we issued this Red Book that lays out in great detail the process for how we can streamline decisions on Federal highway projects. We have been pushing that Red Book for many years. Many of our Corps districts have actually taken it very seriously.
Our New England Division, which oversees the regulatory program in several of the New England States, took it a step or two further. They issued a very specific New England version of the Red Book highlighting methodology where they have a very effective relationship with those States and have some great successes. We have a history and a track record that shows that we are advocates for streamlining.
I have to point out that it is a two-way street. We need the State highway departments to work with us as well. In many cases they have, and they have been very effective. But it is incumbent on them to come to us early and to engage the public early and to engage all of the agencies very early. Before they make decisions and foreclose or potentially foreclose options that we have to look at by Federal law, we need to have a chance to work with them early on.
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Where we have had problems is where the States have not done that for the most part. Where we have been successful in many, many States is where we have worked cooperatively from the very beginning--when a project is proposed.
Mr. PETRI. Thank you. I think that is probably a good segue way into our second panel. Thank you all.
The second panel is Mr. Roy Kienitz, who is executive director of the Service Transportation Policy Project; Dan Flowers, director of Highways and Transportation, Arkansas State Highway and Transportation Department, president of the American Association of State Highway and Transportation Officials; Mr. Michael Branch, vice president of business development, Branch Highways, Roanoke, Virginia, and president of the Virginia Road and Transportation Builders Association, who is appearing on behalf of the American Road and Transportation Builders Association; and Mr. Hal Kassoff, who is vice president for highway programs, Parsons Brinkerhoff, appearing on behalf of the American Consulting Engineers Council.
Thank you for being with us today, and let's start with Mr. Kienitz. TESTIMONY OF ROY KIENITZ, EXECUTIVE DIRECTOR, SURFACE TRANSPORTATION POLICY PROJECT; DAN FLOWERS, DIRECTOR OF HIGHWAYS AND TRANSPORTATION, ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, AND PRESIDENT OF THE AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS; MICHAEL M. BRANCH, VICE PRESIDENT OF BUSINESS DEVELOPMENT, BRANCH HIGHWAYS INC., ROANOKE, VA, AND PRESIDENT, VIRGINIA ROAD AND TRANSPORTATION BUILDERS ASSOCIATION, ON BEHALF OF THE AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION; AND HAL KASSOFF, VICE PRESIDENT FOR HIGHWAY PROGRAMS, PARSONS BRINKERHOFF, ON BEHALF OF THE AMERICAN CONSULTING ENGINEERS COUNCIL
Mr. KIENITZ. Thank you, Mr. Chairman. I am Roy Kienitz, and I am executive director of the Surface Transportation Policy Project, as you know. We are a coalition of over 200 national, State and local public interest groups.
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Mr. PETRI. In your prior life you were with Mr. Moynihan.
Mr. KIENITZ. For many years. Yes, thank you.
And the members of our organization include organizations that are concerned with the environment, scenic and historic preservation, better public transportation, as well as some business and professional organizations.
I would like to begin my statement by reminding the members of the subcommittee of what I think is the positive engagement of the environmental community I represent in the process that led to the streamlining provisions that were in TEA 21. We worked actively with both members of the staff here and the committee members to suggest requirements to the language as the process moved along, and I am glad to say that we were generally comfortable with what came out of that. We have every hope of proceeding in that spirit as the regulatory process unfolds. We believe that the Federal review process for transportation projects can be sped up even while environmental projects protections are strengthened. That is something that I think all of us share today.
Before I comment on the specifics of what they should or shouldn't do in our view, I would like to frame the problem a little bit. Mr. Blumenauer mentioned this portion in my testimony. We see the projects that fall into the Federal review process as falling into two sort of natural sets. By far the largest are those where a general consensus has been reached about the project being needed, and it is not causing adverse impacts that are unacceptable. The second category is where strong disagreement still exists about the wisdom of the project or its effects.
We believe that the Federal process reforms can be most effective in addressing those projects that are in the first category. I think that we would all agree that there is no good reason for Federal approvals to take years if there is no major substantive disagreement over the project being proposed. These are the kinds of delays that I think are the most needless. They are probably the easiest to attack from a procedural point of view, and progress on this front can produce significant time savings for thousands of projects every year.
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The second category is much tougher. Indeed, many of the anecdotes about projects that spend years in the system arise from this very small subset where profound local disagreements have not been resolved, and consensus has in many cases not even been sought, let alone reached. In these cases local governments, State or Federal environmental agencies, and citizens unfortunately have little choice but to use the full force of the law to oppose projects that have what they view as unacceptable environmental or community impacts.
Efforts to reform the review process to deal with these kinds of delays we think are not likely to be fruitful. The difficulties that these projects encounter tend to be matters of substance, not process, and that procedural tinkering is unlikely to resolve them. This comes, I think, contrary to the common perception. Environmental laws in this country rarely prevent a project from being built. Instead they require agencies to either modify the design of the project or to redo environmental assessment documents until they get them right. These things cause delay. But from an purely environmental standpoint, in some cases the proper decision on a project might be to say, no, this is an unacceptable project, and it will be permanent.
But the system we have does not have that as one of its official responses. We have two available responses from the system. It is either, yes, you may proceed, or, no, you haven't done enough, keep going, and not yet. Since there is no such thing as a no, what we end up with is a system that might properly deliver a denial at some point, only it delivers delay.
I say this not because we think that no is necessarily the right answer in most cases, but to shed some light on the origins of some of the absurd-sounding delays we hear about. In the struggle between opponents and proponents of a controversial project, the best that a proponent could hope for is to string things along until the proponents of a project either change their minds or tire of the fight. It is not a very good system, but it is the only option that we give them, and so they use it.
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We believe that USDOT can best use its energy in streamlining the process that is in more than 90 percent of projects that are generally noncontroversial. If you can take a small amount of time off the review of each one of those projects, that is going to generate a whole lot more benefit for the system in general than trying to attack the projects which are genuinely controversial.
We have a few particular recommendations. First, we think that as part of this process, USDOT needs to retain the functional elements of what is called the Major Investment Study. We think this can certainly be done as part of integrating that study process, which has been a separate one up until now, with the requirements of the National Environmental Policy Act. This Major Investment Study was created by ISTEA in 1991, and we believe that it has been valuable because it regularizes the process of arriving at a preferred alternative for a major investment. This is often the single most important decision in the project development process. It has really helped to rectify one of the big inherent contradictions of the National Environmental Policy Act which requires agencies to define and test alternatives to a project only after they have decided what they want. The review of alternatives is a good idea, but once an agency has gone through the process of deciding what their preferred alternative is, you can't ask them to unlearn everything that they think they have already learned, and that result is rather than what we would view as a genuine and open review alternative is what you usually get, is a process designed to take the thing that we take from the beginning and guide it through the process and get it to the end without actually considering the alternatives. This is, frankly, a waste of time for the agencies doing it and doesn't deliver much in the way of environmental benefits for the people who might want to see that.
Second, we hope that USDOT would be careful in its regulations to try to create a process for States and metropolitan planning organizations to cooperatively arrive at funding estimates for metropolitan areas. This is something that a number of States have done, we think, to a very positive effect so that the metropolitan planning process that exists in the law is based on a fiscally sound basis. The situation that happens right now in some States is one in which the metropolitan planning organization never has a clear idea of how much money is available to it, and so its planning process is not one that we think is grounded in reality.
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Third, we hope that USDOT could help assure that local government officials in small metropolitan areas and rural areas get the kind of influence over decision-making that local officials in the large metropolitan areas have been guaranteed under the law. We think that that has been a successful process of creating a really in balance State and local relationship in the larger metro areas, and we hope that this can be extended down to the other areas as well.
Finally, I would just leave with sort of a broad comment. If you go back and read the National Environmental Policy Act, it has two basic tenets. We just want to make sure that the agencies respect these as they go forward, the first of which is the Federal Government has a stated preference for environmentally beneficial projects, and that contrary to, I think, some of the popular perceptions, the Federal Government has a mandate to say that if one alternative is better for the environment than the other, they have a mandate to pursue that and to ask the States to pursue that. The second of which is its responsibility to assure that citizens know the environmental impacts of the Federal dollars that are spent.
In sum, I think as I said before, we believe that this can bring both efficiency benefits and environmental benefits, and we look forward to watching it as it comes alone.
Mr. PETRI. Thank you.
Mr. Flowers.
Mr. FLOWERS. Thank you, Mr. Chairman. My name is Dan Flowers. I am the director of the Arkansas Highway and Transportation Department and currently serve as president of the American Association of State Highway Officials, better known as AASHTO. Mr. Chairman, on behalf of State transportation officials across the country, I want to thank this subcommittee for its leadership and vision in the passage of TEA 21. I also want to thank you for holding this oversight hearing to review TEA 21's environmental streamlining provisions. My purpose today is to report to you on the progress that has been made in making certain that the record levels of funding that Congress has made available work in the way that you envision; that is, to improve safety and mobility without unnecessary delays and layers of review.
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Environmental streamlining issue was a major focus of AASHTO's during their reauthorization debate. You listened to our concerns, and your message was clear: Make it simple, and make it work. One of the most important provisions that you included in TEA 21 was section 1309, which called for the better coordination of the Federal agency environmental review process.
As you are aware, transportation projects undergo rigorous environmental review under the provisions of NEPA. Many projects require the preparation of very detailed environmental impact statements. But once that hurdle has been cleared, many projects are just beginning the sequential review process, a process that takes literally years to complete.
Let me cite three examples, one of which the Chairman is very familiar. In Wisconsin, the Stillwater Bridge Project has been stalled for a number of years. In 1995, when it appeared that the Federal reviews were complete, Minnesota and Wisconsin invested approximately $14 million in this project only to come to another standstill because the National Park Service and the Advisory Commission on Historic Preservation could not agree on what should be done. In Connecticut we are told that since planning for Route 6 improvements began in the 1960s, an extremely large number of different alternatives have been considered, while different Federal agencies have made conflicting findings about environmental impacts.
Finally, the Florida Department of Transportation reports that it has been attempting to widen the 20-mile stretch of U.S. 1 between Key Largo and Florida City for the last 30 years. This project is needed to improve traffic safety on the route which has a very high accident and fatality rate. Improvement of this route is also needed for the purpose of hurricane evacuation as well as to improve traffic flow. Finally, the environmental impact statement on U.S. 1 was completed in March of 1992. Wetlands mitigation was completed in 1995. But the Federal permitting process from the Corps of Engineers has been under way for 5 years. A supplemental environmental impact statement is now being demanded by the Corps to which the State and the Federal Highway Administration object. The project is virtually at a standstill.
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Last year Congress made clear that it was not satisfied with the delays, unnecessary duplication of effort, and added cost often associated with current practices for reviewing and approving surface transportation projects. AASHTO agrees. Change is certainly needed, and the first step was taken just recently when six Federal agencies signed a memorandum of understanding on environmental streamlining.
The question now becomes what happens next. We believe that USDOT needs to follow up with these agencies to removal of any redundancies. We encourage them to move forward simultaneously on two levels. First, on the national level we suggest that USDOT begin by convening three working groups to focus respectively on historic preservation, wetlands, and endangered species.
Also at the States level, AASHTO has agreed to work with FHWA and EPA to develop 8 to 10 State projects to demonstrate the art of the possible in environmental streamlining. The goal of these pilot projects will be to test different collaborative approaches and then to share what has been learned with other States, Federal agencies, and the public.
AASHTO is also launching an environmental best practice competition to highlight the best examples of State DOTs working in partnership with the regulatory agencies and environmental organizations to produce in a timely and efficient manner transportation projects that improve both safety and mobility and that protects and enhances the environment.
To make streamlining work, we recognize the need to improve the level of trust and communication between States and the Federal agencies and the concerned environmental groups. We believe these initiatives will certainly help. We have been encouraged by the spirit of cooperation in recent meetings AASHTO has held with the Federal Highway Administration and the Environmental Protection Agency to discuss streamlining.
To start the discussion we briefed top officials from these agencies on three outstanding examples of streamlining already under way in Washington State and Missouri and in Pennsylvania. These projects demonstrate that early involvement of reviewing agencies results in better assessments and better mitigation. In all three cases, these projects went beyond mere compliance with the law and produced solutions that proved better for the communities involved, and each project was completed in a shorter time frame than was originally projected. Experience has shown that a lengthy review and examination period is not necessarily better. These projects show that earlier involvement, concurrent review, and collaboration in design can mean quicker results that are better for the overall project.
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In summary, AASHTO looks forward to participating in and assisting in streamlining the environmental review and permitting process. We believe such streamlining can achieve the development of safe, prompt, cost-effective, and environmentally sound transportation solutions rather than to subject projects to a succession of independent, protected and sometimes redundant regulatory requirements. We encourage communication, coordination, shared solutions, elimination of redundant requirements, and more timely decisions. AASHTO member departments stand ready to assist the Congress, USDOT, and other Federal agencies in this important undertaking.
Mr. Chairman, we are pleased that AASHTO was invited to provide comments here today regarding this important matter. Thank you.
Mr. PETRI. Thank you.
Mr. Branch.
Mr. BRANCH. Good afternoon. My name is Mike Branch. I am vice president of Branch Highways. We are a highway construction firm in Roanoke, Virginia. I am also here today representing the American Road and Transportation Builders Association, the ARTBA. ARTBA, as you may know, has 5,000 members from both the public and private sectors, provides a consensus voice here in Washington for the $160-billion-a-year U.S. Transportation construction industry. I also have the honor of serving this year as the president of the Virginia Road and Transportation Builders Association, the national association State affiliate.
Mr. Chairman, with your permission, I would like to summarize and submit a written statement and my verbal, my oral statement will be a summary.
Enacting TEA 21, Congress sought to address the delays that all too often plagued the planning process for transportation projects. The intent of section 1309 was to establish mechanisms to move projects through the process, the review process, as quickly as possible without compromising environmental standards and requirements. In my home State of Virginia, in discussions with the transportation department, they think what typically is a 30-month process could be pared down as much as a year if section 1309 were implemented as intended.
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Unfortunately, Federal agency implementation of 1309 has been disappointing. The major result to date, more than a year after the enactment of TEA 21, is a memorandum of understanding. This memorandum as currently written is, in our opinion, vague and more directed at satisfying the various agendas of the signature agencies rather than speeding up the project delivery. To improve the memorandum of understanding, we suggest that it be revised to describe the process that the agencies envision utilizing to coordinate the project reviews, recognizing the unique nature of individual projects and established time lines of project review completion.
What else should be done? My written testimony includes a number of recommendations, but I will address just three of them: benchmarking mechanisms to gauge the future progress, agency reimbursement policy under 1309, and a related important issue in planning project planning and delivery, that being transportation conformity with the Clean Air Act.
First item of benchmarking. Even though section 1309 did not include requirements for measuring the progress of the reformed environmental streamlining process, we support the establishment of a benchmarking mechanism which involves measuring by objective third parties how well agencies are doing in accelerating their review processes. Specifically we would like to see a proven—we think the proven survey methods can be utilized to measure and statistically evaluate the extent to which the entities involved in the planning and approval process are participating in the streamlining process.
Secondly, the agency reimbursement. We support the provision of section 1309 that allows the Secretary of Transportation to reimburse Federal agencies for costs associated with meeting the expedited time lines of section 1309. We recommend, however, that a reporting system to Congress be established to provide adequate oversight on the application of this provision. Any funds transferred should only be used to assist the agencies in meeting the expedited time schedules, not perform the review functions that are currently part of the agencies' general responsibilities.
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Thirdly, transportation conformity. Mr. Chairman, we believe that any discussion about how to speed up a transportation project and its delivery must include a tremendously important issue not addressed in section 1309 or TEA 21, the regulations implementing the transportation conformity issue provisions of the Clean Air Act.
I would like to say that at the outset that ARTBA shares your interests in assuring that all Americans breathe clean air. We are not suggesting that the Clean Air Act needs an overhaul. ARTBA, however, has 5 concerns with the conformity process with are discussed in detail in our written testimony.
The conformity process we think is flawed and causes unnecessary delays in highway projects, those projects that have already passed every environmental test once. The Court of Appeals decision on a major conformity issue on March 2 in the EDF v. EPA case did nothing to improve the air quality. It does, however, delay projects. That, we believe, was the intent of EDF filing the suit. But we would like to commend Chairman Shuster, Subcommittee Chairman Petri, and Representative Rahall for your April 14th letter to EPA administrator Carol Browner urging her to appeal the decision. Unfortunately, the Agency didn't do so. As a result we have right now about 158 transportation projects in seven areas that have passed an environmental muster once and may not receive Federal funds, some perhaps permanently. These projects are worth on the order of $2 billion.
House bill 1876, which was introduced by Representative Talent, would restore the common-sense EPA grandfathering rule that the March 2 decision struck down. While we are open to other approaches, we believe that this House bill 1876 would be a good first step towards addressing the conformity issue. The companion bill in the Senate, 1053, has been introduced as well.
The tragedy is that delaying highway improvements hurts and kills people. According to U.S. Department of Transportation research, poor road conditions or obsolete road and bridge alignments are a factor in 12,000 highway-related deaths each year. The American people want improved mobility and access promised by TEA 21 and not endless processes. TEA 21 has been the opportunity to go in a positive new direction with the USDOT providing agency coordination and bringing overall guidance.
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That concludes my oral statement, and I appreciate the opportunity to speak to you.
Mr. PETRI. Thank you.
Mr. Kassoff.
Mr. KASSOFF. Good afternoon, Mr. Chairman, and members of the subcommittee. My name is Hal Kassoff, and I am vice president for highway programs at Parsons Brinkerhoff, the Nation's largest transportation engineering firm. I am testifying today on behalf of the American Consulting Engineers Council. ACEC is the primary business association of some 5,700 engineering firms nationwide. ACEC member firms are deeply involved in virtually every aspect of our Nation's transportation system. Our member firms are particularly active in conducting environmental analyses for transportation improvements.
Mr. Chairman, the chart I have with me today, and my colleague, Chip Wallace, there it is on my right, was produced in your home State of Wisconsin. I can tell you recognize it. It was produced to illustrate the time and number of steps involved in getting the typical highway project from conception to ground-breaking, a process that often takes 8 to 10 years or more. During the recent reauthorization debate, Congress and the transportation community agreed that this long and winding road was unacceptable.
When ACEC testified at a Senate oversight hearing, we outlined what we called three pillars for a successful implementation of streamlining under TEA 21: first, the need for an agreement among the Federal agencies as required by the law; second, careful avoidance of steps that would complicate or delay the implementation of streamlining; third, an objective measurement system to track our progress.
Three months later, while we are pleased to see movement in all three areas, we are concerned about the pace of implementing section 1309. It was 12 months after the signing of TEA 21 before the U.S. Department of Transportation and the other involved Federal agencies had drafted a national memorandum of understanding to guide the streamlined review process. While we are certainly pleased to see the MOU, ACEC shares the concerns expressed by Senator Baucus and Senator Graham and others that the MOU contains no deadlines, no timetables to urge this process forward. In some areas the MOU language is even more vague than the statute itself. Still, we are hopeful the signing of the MOU will reflect a sense of urgency on the part of USDOT and the environmental resource agencies and that subsequent actions will be focused timely and produce measurable results.
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ACEC's second pillar is that we must be careful not to simply replace one cumbersome, inefficient process with a new cumbersome, inefficient process. Senator Voinovich and a member of your own committee, Mrs. Kelly, made the point that we cannot overemphasize that the planning and environmental provisions of TEA 21 need to be implemented in a way that will streamline and expedite, not complicate, the process of delivering transportation projects.
ACEC's third pillar is to develop a mechanism to track our progress towards streamlining. The transportation community needs a well-defined measurement system in place as soon as possible; first, to establish a benchmark of current practices, and then to measure progress in improving those practices. We believe that a highly regarded independent organization using proven survey research methods could measure in a statistically valid way whether or not all parties are participating in a constructive manner. This would be a survey primarily of qualitative factors, attitudes, relationships, personal commitment. Most of us would agree that in the end these are the forces that would determine whether this process succeeds or fails.
An initial survey could be conducted and developed within a few months to provide a valid baseline for future comparisons. Subsequent surveys could detect changes both over time and among different regions of the country. A task force of key stakeholders, public and private, project sponsors and project reviewers would create the survey and review all questions for fairness and thoroughness with the respected organizations such as the National Academy of Sciences managing the measurement sytem on a long-term basis.
A key advantage of the survey research approach is that it would be clear to participants that the nature of their involvement in the process is being measured by their peers. Just the existence of regular surveys would induce performance improvements. It is the old adage that what gets measured gets done. Survey research would also produce usable results much sooner than the years required to collect enough data on changes and actual elapsed time frames.
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Senator Voinovich took an interest in the survey research approach incorporating it into a letter that he, Senator Wyden, Senator Smith, and Senator Graham sent to the U.S. Department of Transportation in June. Earlier this afternoon we heard from Eugene Conti, Assistant Secretary for Transportation at DOT, speaking about the benefits of survey research. During his June 9 Senate testimony he did so as well. Mr. Chairman, we would be happy to provide you with additional information about this promising tool.
To sum it up, Congress mandated in TEA 21 that we find ways to improve the delivery of transportation projects without jeopardizing sound environmental policies. Our collective goals should be to make this process work better and faster as soon as possible. Mr. Chairman, we know this is not going to come easily. We know it is going to take more cooperation from the Federal agencies and more persistence from this committee, from the Congress, to improve this badly broken process. That is why we are delighted your subcommittee is conducting these oversight hearings. We hope these hearings continue until the Congress is satisfied that the spirit of environmental streamlining as envisioned under TEA 21 is indeed being achieved. Thank you again for the opportunity to testify, and I would be happy to answer any of your questions.
Mr. PETRI. Thank you. Thank you all.
Mr. Rahall.
Mr. RAHALL. Thank you, Mr. Chairman. I don't really have a question. I just want to make a comment and see if there is any comments from the panel.
Mr. Branch, I am glad that you raised the conformity topic because while it is not a direct topic of this hearing, it is certainly important because we can streamline all we want, but none of it will matter if conformity rulings do nothing but merely squash highway projects.
I know the two views on this, the theoretical and the real. From a realistic perspective, if someone wants to tell me that traffic congestion with tons of pollutants going into the atmosphere due to idling engines is better for the environment than building better highways, then I would say to them they are living in la-la land. Would the panel wish to comment on that?
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Mr. BRANCH. On behalf of AASHTO, I would like to offer a comment. We share the same reaction that this committee did regarding the appeal of the court decision. We believe that a legislative solution needs to take place.
Mr. KIENITZ. In defense of the U.S. Court of Appeals for the District of Columbia, their decision basically said just because if you had built this project in 1985 it wouldn't have caused violations of air quality doesn't mean that if you built it in 1999, it won't. That is the core of the decision, which is that there has to be some timeliness between when you are deciding what the air quality impact of a project is and when you actually build the project. It doesn't have to be concurrent, but 15 years is probably too much. That stems from the fact that air pollution is a cumulative problem. No individual project or action causes a violation of air quality any more than any other. Each by itself would be perfectly acceptable. The problem is when you add them all up. So the theory of the Clean Air Act is to make sure that the sum total of all actions don't cause violations of air quality.
The most common reaction to that, of course, is that everyone has their own particular thing that they care about. Their view is, well, let's let mine go ahead and have someone else deal with the problem. What the conformity decision simply says is before you go ahead and build the highway project, someone has to make sure that the total is not getting out of control. We actually think that in spite of the difficulties in transition it is causing right now, it is a reasonable decision.
Mr. KASSOFF. Mr. Chairman, I would like to add a point that is illustrated by the whole problem we are experiencing with conformity, and that is you heard testimony earlier about how the vast majority of projects don't have to go through the NEPA process. My point is there is so much more beyond the NEPA process; the Clean Air Act amendments that require a complicated process of their own, the National Historic Preservation Act, section 106 procedures, the Clean Water Act, and the 404 permitting process, the section 4F of the USDOT Act, and on and on and on. So the streamlining issue, don't be deluded into it is NEPA alone. In fact, the States, I think, have become fairly adept at getting through the NEPA process as the NEPA process was intended with a reasonable look at alternatives and following the procedures. But these other processes are just as critical and need to be integrated into an overall streamlined environmental process.
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Mr. RAHALL. We have the Tolsia Highway in West Virginia, a very dangerous road that has caused traffic deaths with school buses colliding with coal trucks. It is now under construction with ISTEA funding. It is being widened to four lanes in some areas. If you come into an area that is not in conformity, then you stop and you go back to a narrow windy two-lane road, and it winds on down the road back into a four-lane. How is that any safer for a school bus that is driving the same road as coal trucks?
Mr. KIENITZ. It is not safer, and that is clearly not the right answer in that particular situation. The difficulty is that we are running into the Clean Air Act, which is a fundamentally different type of a law than what we deal with here mostly. The Clean Air Act says—the struggle it deals with is how to keep a problem that is caused by 10,000 individual actions from getting out of control. Which of the individual actors do you hold accountable? And you can never defend an action, to hold one particular project or action accountable for the entire problem, because, of course, that project or action didn't cause the entire problem. But without holding accountable individual projects or actions, you never solve the larger problem. So the situation you are describing, which I am not familiar with, does not sound like the right outcome that has been gotten. My understanding, at least in the State of West Virginia, the hopes are that the conformity lapse that has been caused by the court decision will be cleared up in a matter of months, and I will be able to go ahead.
It is Atlanta where the problem exists, and that is where it is going to have long-term consequences.
Mr. RAHALL. I have no further questions, Mr. Chairman.
Mr. PETRI. Mr. Duncan.
Mr. DUNCAN. Mr. Chairman, thank you. I don't have any questions, but I do have a couple of comments.
First of all, I want to thank you for holding this hearing. It is a very important topic for many reasons. And I might just say that I think it is very sad, it is ridiculous really and very sad, that Mr. Kassoff has testified that it takes 8 to 10 years from conception to groundbreaking on many of these projects. It is sad that Mr. Branch could testify, and I am sure accurately, that a year could be taken off of most of these projects easily if we didn't have all of these bureaucratic red tape requirements.
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As some of you know, I chair the Aviation Subcommittee, and we had testimony at two different hearings, one a couple of years ago and one a few months ago, that—in which it was said that aviation projects cost about three times what they would because of various environmental requirements. And that is—that is sad, because it is—I say it is sad, because these requirements that really have been placed on us by environmental extremists hurt poor and working people the most of all. And I noticed that most of these environmental extremists usually come from very wealthy backgrounds, and I am sure they don't realize how bad they are hurting poor and working people in the field, first by destroying jobs, but mainly by driving up prices, because when it costs so much more, when you triple the cost of some project, obviously taxes have to be higher, the cost of operating of various businesses and so forth have to be higher, you are taking money away from other governmental needs.
You are taking money away from education and police protection and various other things, and I just think it is really sad. I know—in addition to that, last week I was in a meeting, and I heard Congressman Packard say—Ron Packard from California say that a major highway project was held up in his district for several years because there were five pairs of a very rare bird that I have never heard of that they eventually moved at the end, just moved a short distance. But they had a study that showed that about 15 to 20 people were killed needlessly each year. And it was held up, and I forget how long it was held up because of those birds.
But we need to have some balance in these things, and we have gotten very far away from balance. And I hope that at some point we reach the day in this country when we stop this blindly doing something just because some fanatical extremist says that it has something to do with the environment.
And we start looking at some of these things with common sense, and we start approaching these things from a more realistic and more scientific point of view, you can go overboard on anything, and you end up, when you do that, you hurt more people than you help. And so I just wanted to say those things. And I yield back the balance of my time.
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Mr. PETRI. Any reaction, or shall we go on to the next person?
Mr. Horn.
Mr. HORN. Thank you, Mr. Chairman. I enjoyed taking a close look at that fine chart, which I note was developed—.
Mr. PETRI. That is a Tom Walker special from Wisconsin.
Mr. HORN. Well, I hope you will leave it here because I am going to do a series of speeches on the floor about mismanagement around the Nation, and I would certainly like to have a board that size. So if you don't want to lug it back, I will keep it as a custodian, if you don't mind. But it is marvelous. I had one on Los Angeles County transportation decisions years ago, and it was just like that, only it was at another angle—and a small copy, my colleague Mr. Duncan would like, and I think he speaks for all of us, because we got to be reminded.
And I guess my question to you is, if you have done work in Wisconsin, what is this new permit that is being—it isn't a new permit, but a new approach to it where they are going to get benchmarks presumably and all of that. Has anybody thought how that integrates with what you are already doing there in highways in this case?
Mr. KASSOFF. Congressman Horn, are you thinking about our third suggested—third pillar suggestion, the survey research?
Mr. HORN. Yes, I am thinking about what we have listened to the last two panels on, and to what degree would that improve in a little less clutter if those were carried out?
Mr. KASSOFF. I see. Well, I think most any State can produce a chart like this, so this is not unique to Wisconsin, and I think most who have been on the inside of the highway development process can point to various points along that road and talk endlessly about experiences that we have had. The problem is that it has not received the kind of airing.
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Our approach is based on a peer review and an external review. The external review would be from Members of Congress who are looking basically from a policy and a national interest perspective and saying, that is not acceptable, that we need to apply common sense to this process. It needs to go more quickly without compromising the basic intent of environmental protection, which I think was the underlying premise in TEA-21, that making that process more simple and more user-friendly does not necessarily mean we have to undermine the environmental process.
The path to improvement, we believe, is by shining the spotlight on it, externally, from Members of Congress, and then internally the essence of it is that what we are talking about in the survey research is a peer review, that the members of the transportation community and the environmental community who interact with one another would have the opportunity to disclose to the survey as to what their perception is, is this process working well, is it not.
Remarkably, as I travel the country, I find there are areas where the transportation agencies will sing the praises of the environmental resource agencies and say they are being perfectly reasonable, without the environmental agencies compromising on their basic mission. But they can work out agreements for environmental protection in very quick order.
And the basic difference comes down to professionals who understand what their responsibilities are to the laws and to the policies, that, pursuant to the law and approach the process with a positive spirit, want to achieve a positive outcome, as opposed to—as Mr. Kienitz candidly indicated, and I celebrate his candor and his testimony—as opposed to using delay as a tool. It should not be necessary from the either the environmental community or the transportation community for delay to be used as a tool. I hope I have answered your question.
Mr. HORN. Well, you haven't. I wondered if any of your colleagues would like to contribute anything to that. If you have had a chance to look at the chart, will this nationwide permit 26 improvement seem to compact that a little and get clearer lines and sooner decisions, which would please everybody, I would hope?
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Mr. BRANCH. I think in my home State of Virginia, in talking with the DOT there, it is not—they have been working some partnering approaches in the last several years that they celebrate as being successful amongst the various agencies, but still see the opportunity for a nation to make even greater improvements in getting additional mobility and access for the traveling public.
Mr. FLOWERS. I generally agree with the comments that were made by Mr. Kassoff on behalf of ACEC. In our part of the country, we are very fortunate that we have a reasonably good working relationship with some of the environmental resource agencies, so we don't have the perspective that maybe some of the other parts of the country has. But earlier involvement seems to have been the key that has been the road to success for our agency in particular, in dealing with environmental issues on fairly large prototype development projects.
And I think that AASHTO and the member states of AASHTO would generally agree that we are—or almost unanimously agree that we are not in any way proposing any kind of harm to the environmental process at all. We want the streamlining issue to be one that is positive, one that results in better decision-making and earlier decision-making, earlier involvement by not only the agencies, but also the public.
And the point has been made here today that the public is very critical in making these projects move along, and the public deserves to know what is going on, so that is what we think needs to be done and the benchmarking and establishing performance-type activities, which certainly would be a reasonable thing to do.
Mr. KIENITZ. I would just point out one thing, and I generally agree with the comments of Mr. Flowers. On closer inspection, when you look at that chart, you will see that many, if not most, of those boxes don't have to do with environmental review. It is Uniform Relocation Assistance Act compliance. It is contacting the utility companies to make sure that the gas and the water lines aren't being severed. It is engineering and design review. It is right of way acquisition.
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There is no doubt that it is a complicated process, but we shouldn't be under the impression that it is the environmental piece of it that is the unacceptable complication. There is a whole lot of different kinds of complication here, and if the goal is to reduce the time from conception to execution, then all of those should be fair game.
Mr. HORN. Well, you certainly have a point there, especially if you are talking about city codes, county codes and regional districts that have been established by law under the authority of the State legislature and so forth.
Is there—have you seen success stories where there is, let us say, a citizen advocate or an advocate that is just riding the herd so the paper isn't sitting on somebody's desk and just keep it moving along?
Mr. KIENITZ. The places where we have seen—I mean, I would echo the comments of Mr. Kassoff earlier. The places where we have seen the greatest success is where you get everyone in in the beginning, and they figure out what the reactions are going to be to the ideas that are proposed, and if a bunch of people scream, they come up with a different idea.
I mean, the—I don't mean to pick on examples, but the Route 6 project in Connecticut, which is commonly cited as a horror story of environmental review, the truth of the matter is there are thousands of people in all of those little towns where that thing would go through who hate it and will lie down in front of the bulldozers to stop it. That is described as a failure of the environmental review process. To me that is a failure of being willing to say, you know what, maybe we are just never going to get this done because people hate it; maybe we should trying something else. To me, that is the right answer in Connecticut, not to say that we have got an environmental review problem.
Mr. HORN. Yes, Mr. Kassoff.
Mr. KASSOFF. Just to clarify, on this chart that was produced in Wisconsin, more than half of the number of steps, the process actually begins at the bottom and works its way to the top. So I guess it is kind of drawn as an upward-seeking chart, but more than half the chart is devoted to NEPA, the NEPA process, which ends at the record of decision. And then there are a number of steps subsequent to NEPA which are involved in the permitting process, which are environmental permits.
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Those—you have heard earlier just the NEPA process alone averages 4 years. I spent 25 years with the Maryland Department of Transportation. I can tell you that to design a major project takes typically no more than 2 to 2-1/2 years. To build a major project, a very large project might take three construction seasons. That would be a pretty big project.
So the environmental phase, the analytical phase on whether to initiate the project in the first place, is taking by far the longest period of time of all. And it has unfortunately been an end-to-end process, rather than in parallel.
One of the points of wisdom in section 1309 is the fact that these processes should proceed simultaneously instead of being strong end-to-end as much as they possibly can.
Mr. HORN. I won't mention the Century Freeway in Los Angeles and the fact that it took 16 to 18 years, as I remember.
Mr. KASSOFF. That one is in a class by itself.
Mr. HORN. Okay. Thank you all for the information. I appreciate it.
Mr. PETRI. We have got a vote on the floor. But I just very briefly, if I could mention, ask your impression on one or two things. We heard from the Federal panel before you, and you were here for that testimony, and it seems that there has been slow—it has been a slow process for them to just reach agreement on the most basic elements of their memorandum, and that doesn't bode very well for the implementation of environmental streamlining.
Could you give us your candid evaluation of their implementation activities to date, each of you?
Mr. BRANCH. Slow and without definition, I think is a couple of points. And 1309 talks about completing a cooperatively predetermined time period for the processes. And I guess the memorandum addresses some ideas, but no specified timelines or schedules or deadlines for doing those specific items.
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Mr. FLOWERS. It would certainly be to everyone's benefit to establish some definite time frames for things to happen, and we have suggested some areas that they need to begin work on. One of the impressions that I have and others in AASHTO have that were involved in a meeting with Federal highway and PPAs back earlier this year was that we can all agree at the very top level of AASHTO and the very top level of these agencies, as things develop, there needs to be a process or way that the word gets on downstream to the regional offices and the State offices, as far as implementation of the streamlining provisions. So that is one thing we would like to see the agencies work on. And I know they are trying to deal with this issue. How effective they have been, I couldn't give you a gauge on that at this time.
Mr. KASSOFF. Very briefly. In all candor, Mr. Chairman, the pace of activity on the part of Federal agencies to produce the memorandum of understanding picked up noticeably when it became clear that the Senate and the House were going to be holding hearings on this subject. I think if we are going to see some measurable progress, and there still is an if on that, the jury is out, it will require your willingness and your counterparts on the Senate side, Senator Voinovich, to continue to hold these hearings two to three times a year, I think, to ask the Federal agencies to come back and testify before you and show you the streamlining or the process of achieving streamlining.
Mr. KIENITZ. I think I can still describe myself as hopeful, but that doesn't necessarily mean optimistic, that this will actually result in something of value. But we can all just keep apprised.
Mr. PETRI. Let us hope that the process is a model of what we are hoping to accomplish.
And with that, I thank you very much for your input, and this hearing is adjourned.
[Whereupon, at 4:25 p.m., the subcommittee was adjourned.]
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