CONSERVATION AND ENVIRONMENTAL STREAMLINING
IN TRANSPORTATION PROJECTS
Prepared by Defenders of Wildlife, National Wildlife Federation
and The Humane Society of the United States, Washington, D.C.
Presented to the Senate Environment and Public Works Committee
September 19, 2002
Our organizations submit the following testimony to the public record on behalf of our millions of members and supporters, who support strong environmental protections as well as sustainable transportation solutions.
There is no question that America=s transportation infrastructure is imperative to our mobility, productivity and success. However, it has also had significant impacts on ecosystems of the U.S. Four million miles of roadways in the U.S. cover an area approximately the size of the state of South Carolina, and impacts beyond the road surface extend to as much as 20% of the total land area. Unfortunately, roads have not always been planned wisely, leaving a destructive B and permanent B footprint on landscapes and wildlife habitat. That is why it is imperative that transportation decisions are made after careful consideration of not only the immediate need and purpose, but also the long term and cumulative effects. In addition, transportation decisions cannot be made in a vacuum, but only after consultation with all stakeholders and interested parties.
Our primary concern with environmental streamlining, as some have proposed it, is simple and transparent: the potential for weakening environmental considerations required by the National Environmental Policy Act (NEPA). NEPA is the foundation for environmental protection in this country, and is largely credited for the level of environmental quality we enjoy today. When the 91st Congress enacted NEPA, the intent was clearly to declare environmental protection a national priority B not to delay projects, or pit agency against agency. The NEPA review process was intended to ensure that the actions of federal agencies reflect the nation=s dedication to environmental quality. It was not intended to be an assembly line of meaningless paperwork in pursuit of a mindless rubber-stamp approval. However, when agencies perceive the process as a nuisance, it not only contributes to the added costs and delays, it is an aberration of Congressional design and a miscarriage of the trust and responsibility endowed upon these agencies by the American people.
Rather than advocating solutions that would shortchange critically needed environmental reviews required by NEPA, we believe that administrative actions that have been adopted in response to streamlining provisions in TEA-21 are fundamentally working. Some state streamlining activities, including early involvement of natural resource agencies in highway planning, coordination with existing natural resource planning efforts and enhanced application of mitigation approaches, can further reduce project completion time and do so without the need for additional legislation.
Past streamlining debates resulted in the inclusion of an environmental streamlining provision in the Transportation Equity Act for the 21st Century (TEA-21). This provision, Section 1309, mandates that the Department of Transportation (DOT) work to reduce delays in project delivery while maintaining environmental protection: AThe Secretary shall develop and implement a coordinated environmental review process for highway and mass transit projects.@
Since then, great strides have been made in expediting the environmental review process. A report to Congress by the Federal Highway Administration (FHWA) in February 2002 examined states= efforts in carrying out Section 1309. The report found significant progress across the country, in particular that Athrough trial and error, innovation, testing, and early lessons learned, much of the transportation community has adopted a new way of thinking to get beyond the usual environmental process bottlenecks._ Among other findings were that every state has adopted or initiated a process for streamlining that clarifies, amends, or re-invents the project development process. Nearly half of the states (24) have focused their efforts on integrating planning and NEPA activities. Forty-one states have some level of delegated authority for historic resources permitting.
Streamlining, as set out in TEA-21, is working. Improved project delivery is already being realized, simply by improving the process. One measure of that achievement, cited by FHWA, is that the length of time spent processing environmental documents has declined by eight months between 1999 to 2001.
There is no doubt that some transportation projects stretch far beyond their projected time frame for delivery. However, there is little evidence to suggest that environmental regulations are the cause of most project delays. Three new studies, from the American Association of State Highway and Transportation Officials (AASHTO) and FHWA, quantify the impact that the NEPA process has had on transportation projects. The results of these studies call into question the complaints that environmental regulations are the source of delays, and provide further evidence that efforts to reduce review time are successfully under way.
Federal Highway Administration published two reports on transportation project delay in late 2000. The first study examined 89 projects requiring an environmental impact statement (EIS) that have yet to complete the review process after five or more years. Contrary to popular belief, the most common reason for delay was lack of funding or low priority (32 percent), local controversy (16 percent), or the inherent complexity of the project (13 percent). These issues, as well as changing or expanding the scope of the project (8 percent) far outweigh environmental review as causes of project delay.
The second study, conducted by the Louis Berger Group, set out to establish a baseline of the length of time required to comply with the NEPA process. The study found that the average (mean) time required to complete the NEPA process was about 3.6 years. The median time was only three years B which in this case is a better indicator because of outliers in the sample. It is important to note that the time required to complete the NEPA process is not necessarily additive to the project planning and design process, and may be coincident with other phases of the project.
A third study, commissioned by AASHTO and conducted by the consulting firm TransTech Management, looked specifically at the causes of delay for projects receiving a Categorical Exclusion or requiring an Environmental Assessment. According to AASHTO=s survey of 32 state DOTs, the vast majority of transportation projects require only a Categorical Exclusion (CE). In fact, the AASHTO study found that fully 92 percent of environmental documents processed by state DOTs are CEs. Environmental assessments (EA) make up seven percent, with Environmental Impact Statements (EIS) rounding out the sample at less than 2 percent.
We fully support efforts to reduce costly delays in transportation projects to the extent that they do not compromise environmental safeguards. We emphasize several measures which can expedite project delivery while enhancing natural resource conservation. Each of these measures is authorized in TEA-21, and many states are already taking advantage of the benefits.
1. Early, continued, substantive and supported involvement by regulatory agencies
Many projects are delayed because they are planned and designed before consultation with regulatory agencies. If regulatory agencies are involved from the beginning, they can steer DOTs clear of problems early. We support the facilitation of agency representation at the early stages of project design. Early agency consultations can identify decision points and potential conflicts before considerable time and resources have been committed to a particular plan of action which may later be discovered to be unacceptable or inconsistent with existing standards.
NEPA reviews are but one of many responsibilities of federal land and resource management agencies. Delays are often the result of inadequate funding and understaffed field offices. When agencies are fiscally restrained, their ability to respond to applicants= requests is likewise restrained. TEA-21 significantly increased transportation funding, resulting in an increase in transportation projects requiring environmental review. TEA-21 did not, however, increase funding to the agencies charged with reviewing and permitting these projects. The experience of the U.S. Fish and Wildlife Service (USFWS) provides an excellent example. Between 1998 and 2000, USFWS experienced a 77 percent increase in transportation project workload. However, since 1994 the USFWS budget and personnel levels for transportation technical assistance have increased only 1 percent.
Section 1309 allows transportation funds to be used to reimburse permitting agencies for staff hours and expenses, so that these agencies can dedicate staff time to reviewing proposed road projects early on and in a timely manner. Such reimbursement is an efficient investment that prevents delays in project delivery and increases natural resource conservation. To date, several states have taken full advantage of the reimbursement provision and are reaping the streamlining benefits of early, continued and supported involvement.
2. Incorporate conservation into transportation planning
Substantial progress can be made in reducing project delays by coordinating conservation planning and transportation planning. Several states, including Florida and Massachusetts, have undertaken comprehensive wildlife conservation plans which identify the most important habitats for sustaining the full complement of species in the state into the future. Under the State Wildlife Grants program in the FY2002 Interior Appropriations Act, states are now receiving federal funding that can be used to develop these state plans. State natural resource agencies are awarded formula-based grants with the requirement that it complete a comprehensive wildlife conservation plan by 2005. Transportation plans and projects will have reduced impacts on wildlife and proceed more smoothly if they take these conservation plans into account by avoiding impacts to ecologically important lands and directing mitigation funds to the preservation of those lands.
Florida=s Efficient Transportation Decision-Making (ETDM) process is an example of coordination of conservation plans with transportation plans. ETDM was developed as a streamlining program, in which transportation plans, very early on in the process, are evaluated in terms of their environmental impacts, including impacts to the state=s strategic habitat conservation areas. The ETDM system also enables more rapid permitting by moving the permitting to earlier stages of the process.
3. Advance programmatic mitigation or conservation banking
Better coordination of conservation plans and transportation plans can allow transportation agencies to avoid and minimize impacts to biodiversity. These conservation plans can also inform mitigation efforts, when impacts to remaining natural areas cannot be avoided. Current mitigation practice, however, is not only time-consuming and expensive for action agencies; it may not always provide the best return for resource agencies. Most mitigation is done on an on-site, project-by-project basis, which often misses important indirect and cumulative impacts. On-site mitigation is often necessary, but project-by-project mitigation can result in isolated patches of protected land that are not ecologically viable and are more vulnerable to continued development.
We support innovative efforts by state DOTs to conduct advance programmatic mitigation and conservation banking for endangered species. In these efforts, state DOTs acquire or Abank@ large blocks of conservation lands, from which they can extract conservation credits for those projects deemed to have negative environmental impacts. Mitigation funds are used most effectively when directed toward the acquisition of lands identified as ecologically important in state or eco-regional conservation plans. We support wider use of conservation mitigation and banking as part of expediting project delivery, with appropriate regulations and guidance, and with assurances proper sequencing would not be compromised. We believe that this approach will save DOTs considerable time and expense, while implementing state and ecoregional conservation goals.
In closing, we reiterate that implementation of TEA-21 has largely resulted in faster project delivery and meaningful streamlining that still preserves environmental standards. Our points of emphasis above (early involvement, coordination with conservation planning, and advance mitigation) are all authorized and supported in TEA-21. Major legislative changes in streamlining are not needed. Finally, we urge the committee to embrace the reformative ideals of Section 1309 without losing sight of the original intent of NEPA: to protect and preserve our natural heritage.
 Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, '1309.
 Federal Highway Admin., Highway and Transit Environmental Streamlining Progress Summary (Feb. 2002).
 Federal Highway Admin., Reasons for EIS Project Delays (Sept. 2000).FHWA. Reasons for EIS Project Delays. September 2000.
 The Louis Berger Group, Federal Highway Admin., Evaluating the Performance of Environmental Streamlining: Development of a NEPA Baseline for Measuring Continuous Performance (2000).
 American Assn of State Highway and Transp. Officials, Environmental Process Streamlining: A Report on Delays Associated with States' Categorical Exclusion and Environmental Assessment Processes (Oct. 2000).