THE AMERICAN COUNCIL OF
Senate Committee on
environment and public works
Good morning. My name is Hal Kassoff. I am Vice President with the consulting engineering firm of Parsons Brinckerhoff. I am representing the 5,800 member firms of the American Council of Engineering Companies, where I chair the Transportation Committee’s Subcommittee on Environmental Streamlining. I am also co-chair of the Planning and Environmental Working Group for the American Road and Transportation Builders Association’s TEA-21 Reauthorization Task Force.
Expediting project delivery is one of the premier issues for members of the transportation community. And those who are experienced in delivering surface transportation projects will agree that the most difficult and time consuming challenge involves coping with what has become an overly arduous and time consuming environmental review process.
Recently, those who oppose streamlining the transportation project environmental review and approval process have begun to argue that the process is not a significant cause of project delay - - that funding constraints and mismanagement are the real problems. These arguments are a distortion of the reality that I have known for 18 years as planning director and then Administrator for the Maryland State Highway Administration, and for the past 5 years working on a national basis with Parsons Brinckerhoff. Environmental groups have, on occasion, candidly acknowledged that using the current process to delay projects that they oppose is key to meeting their objectives.
In his testimony before this Committee on April 29, 1999, Mr. Roy Kienitz, the then Executive Director of the Surface Transportation Policy Project said:
“In the struggle between the proponents and opponents of a controversial project, the best an opponent can hope for is to delay things until the proponents change their minds or tire of the fight. It is the only option they have, and so they use it.”
Mr. Kienitz went on to offer:
“We think of the projects that navigate the federal approval process as falling into two natural categories: first, those on which a consensus has been reached locally, and second, those where strong disagreement still exists… We believe that federal process reforms can be most effective in addressing the treatment of projects in the first category. There is no good reason for federal approval to take years if there are no major disagreements over the project being proposed. These delays are the most needless of all, and are the easiest ones to attack.”
Mr. Chairman, this is a refreshing observation by Mr. Kienitz that underscores the fact that the process needs to be fixed.
A recent study by FHWA has confirmed that the time required to process environmental documents for large projects has more than doubled over the past twenty to thirty years. According to this report, in the 1970s the average time for completion of environmental impact statements was 2.2 years. This time period doubled to 4.4 years in the 1980’s and grew further to an average of 5.0 years in the 1990s. Also of interest is that the average time grew by nearly 2 years when section 404 wetland permit issues come into play and the same occurred when section 4(f) historic preservation or parkland avoidance issues are involved.
And another recent study under the National Cooperative Highway Research Program (NCHRP) reported on a survey of more than 30 states who described their experiences with delays in satisfying environmental requirements for small, simple projects as well. According to this report, 63 percent of all DOTs responding to the survey reported experiencing environmental processing delays with preparation of categorical exclusions (CEs), and 81 percent reported similar delays involving environmental assessments (EAs). These delays triple average environmental review times from about 8 months to just under two years for CEs, and more than double these time periods from under 1.5 years to about 3.5 years for EAs.
Some DOTs have extended their schedules to reflect these extremely long durations - - which can then give the misimpression that the environmental process is not taking an inordinately lengthy period of time. Other DOTs will simply not allocate funds to projects until environmental requirements have been met in order to avoid tying up and then delaying the utilization of critically important financial resources. In an ironic twist of reality, environmental activists can then claim that such projects are being delayed not by environmental requirements but by funding constraints, when in fact the opposite is often the case.
Mr. Chairman and members of the Committee, needless delay to transportation projects caused by environmental processing is widespread, and the opportunity is at hand to take positive action. Section 1309 of TEA-21 attempted to address the problem by calling upon the U.S. DOT and environmental resource agencies to cooperatively implement streamlined procedures, including concurrent processing, adherence to deadlines and dispute resolution. The goal was to expedite project delivery by eliminating unnecessary delays and requiring timely resolution of conflicts without diminishing environmental protections.
The last point - - “without diminishing environmental protections” - - is critically important. Ten national environmental organizations recently joined in releasing a one-page document titled “Expediting Project Delivery Without Sacrificing Environmental Protection.” And while exception could be taken with a number of specific points in the paper, the overall title is on the mark. In fact, we are not aware of anyone in the transportation community who would argue that environmental protection should be sacrificed in order to expedite the project delivery process. This issue is not about weakening environmental protection. The issue is about implementing an improved process that expedites project delivery without sacrificing environmental protection.
There are some environmental groups who are interested in continuing a process that facilitates delay, or can be manipulated or challenged to cause delay, of project decisions with which they disagree. Those of us involved in delivering transportation project decisions are interested in a process that allows full public participation and ensures that only environmentally sound projects that meet the public and business demand for safe and efficient travel move forward. We also want a process, however, that is fair, certain, and comes to closure in what most people would consider a reasonable amount of time.
We believe that Section 1309 needs a legislative “booster shot” in the form of a carefully balanced approach that reflects three basic components:
(1) clarify expectations of both transportation and environmental agencies,
(2) transform specific processes, and
(3) hold both transportation and environmental agencies accountable for achieving positive results.
Congress should clearly define its expectations for expediting project delivery by articulating in clear and unmistakable language a balanced array of basic policy principles. Such clearly defined expectations will be of great value in guiding the actions of participants in the process. Attached to this testimony is a draft of 20 such principles - - 10 that would apply to transportation agencies and 10 to environmental resource agencies. Taking just a few as examples, transportation agencies would be expected to advance projects that reflect environmental sensitivity as a priority. This will help lend substance and meaning to the philosophy of environmental stewardship which AASHTO and FHWA have been articulating and practicing. At the same time, environmental agencies would be expected to recognize the economic, safety/health and mobility needs for transportation projects, and offer constructive and problem solving ideas that respect their basic purpose. Environmental staffs would work with transportation agencies in a search for win/win outcomes.
To fully appreciate how far the transportation community has come with respect to environmental stewardship, I commend to you the definition and goals as presented by AASHTO in its Transportation Environmental Stewardship Program, which is also attached. One of the key points that AASHTO makes is that environmental stewardship is a voluntary commitment to go beyond the minimums required by law. It can only succeed if states embrace the concept in their own unique ways. It cannot be standardized, nor can it be embodied in a new set of requirements, without defeating the whole purpose of inducing a culture change that encourages going beyond bare minimums.
(2) Transform Processes
Mr. Chairman, transformations of certain processes are essential if significant improvements in expediting project delivery are to be achieved. Legislation is needed to ensure that these changes occur. They include the following:
US DOT Lead Agency Responsibilities: The US DOT must play a stronger lead agency role in advancing process improvements and in advocating responsible transportation projects. This can be achieved legislatively by clarifying DOT responsibilities in defining the purpose and need for transportation projects, in determining the legitimate range of transportation alternatives to be considered, in approving transportation related technical methodologies, in establishing and enforcing reasonable project schedules, including review and comment periods, and in orchestrating the involvement of appropriate agencies.
Streamlined Planning and Environmental Regulations: The US DOT should be directed to transform its planning and environmental regulatory approach from an overly complex and prescriptive framework to a more concise, flexible, performance-based combination of rulemaking and guidance that focuses on outcomes. Opportunities to integrate planning and environmental requirements should be offered, but not prescribed, and should be predicated on the notion that guidance derived from duly certified and valid long range transportation planning processes bearing upon such issues as transportation corridor purpose and need, mode selection, and range of alternatives will be acknowledged and have standing in subsequent environmental stages. Duplicative corridor studies that have no standing under NEPA should clearly be eliminated as a requirement.
Section 4(f) Reform : Legislation is needed in addition to administrative actions that US DOT might advance to address Section 4(f) problems that have become a major source of delay. The needed reforms include:
o Section 4(f) Finding of No Significant Impact (FONSI) designation to streamline those actions where impacts to 4(f) resources are determined to be insignificant
o Integration of 4(f) alternatives as part of the NEPA process
o Review of “feasibility” and “prudence” in a manner that permits weighing the balance and proportionality of diverse impacts
o Satisfactory completion of the Section 106 Historic Preservation process for historic properties should suffice for 4(f)
o Exclude 4(f) applicability to private properties unless they are National Historic Landmarks or fall under some form of legal protective covenant
o Exclude the consideration of Interstate highways themselves as being historic and falling under Section 4(f) and 106 requirements
Decision/dispute Resolution Process: US DOT should be expected to implement a simplified, responsive and effective decision and dispute resolution process to be invoked at the request of a Governor and led by the Secretary or his designee.
Time Limits to Legal Challenges: A reasonable time limit should apply to the filing of legal actions that challenge the environmental process (90 days seems reasonable).
Delegation of Authority: US DOT and federal environmental resource agencies should be required to implement programs to delegate authority to willing and able state counterpart agencies for EA/FONSI and Categorical Exclusion projects, using a post-audit quality assurance process to ensure adherence to federal requirements. Environmental agencies should conserve their limited resources to focus attention upon the relatively small number of projects that involve significant environmental issues. Various models exist for implementing the delegation process, such as Section 404 wetland permitting in New Jersey and Michigan, and Section106 historic preservation procedures in Vermont. These have been described in a recently completed AASHTO requested study funded under the NCHRP.
(3) Hold Agencies Accountable
Annual Report: Congress should require annual reports on the progress that is being made to achieve a streamlined environmental review and approval process that does not weaken environmental protections. The report should include discussion of process changes and results. Results should be measured in two ways.
o Milestone Durations: Similar to the recent report by FHWA on the time required to process EIS’s over the past 3 decades, a monitoring and reporting framework should be established to determine trends for time required in achieving key milestones, classified by type of project and type of environmental document
o Interagency Cooperation: Building upon a prototype process being developed by the Gallup Organization under contract to FHWA, a peer review “report card” should be implemented to gauge the degree to which Congressionally-endorsed expectations are, in fact, being fulfilled by individual transportation and environmental agencies. If done well, this approach can foster working relationships in which environmental stewardship as well as environmental streamlining will flourish.
Project Reports: Reports on a project basis should be filed by US DOT with Congress when certain milestone criteria have not been achieved (by a wide margin) and also in connection with designated transportation projects of national significance.
Mr. Chairman, the need for fixing the environmental review and approval process is real. The problem has been building for decades. Solutions are needed now, or urgently needed projects will continue to be bogged down. The result will be lives lost, a weakened economy, less time with our families, fuel wasted, expensive and undependable delivery of freight, and increased air pollution.
On behalf of the transportation community we would urge the Committee to support legislation that will address the problem in a meaningful and effective way. We believe that the objective articulated by the environmental community to “expedite project delivery without sacrificing environmental projection” is both laudable and achievable - - but it will require a 3-pronged legislative approach that clarifies expectations, transforms processes, and holds agencies accountable to achieve success.
Thank you for the opportunity to testify.
Advance reasonable projects that reflect environmental sensitivity
Ensure that the purpose and need are well established and compelling
Consider alternatives that reflect environmental concerns
Treat environmental concerns on a par with transportation issues
Foster an open and interactive project development process
Encourage early involvement by environmental resource agencies
Keep unavoidable environmental impacts to a bare minimum
Develop context sensitive solutions with environmental agency as well as public involvement
Provide effective mitigation and reasonable enhancements to temper unavoidable impacts
Adhere rigorously to environmental commitments and monitor effectiveness
· Uphold and implement environmental laws and regulations
· Recognize the need for environmentally sensitive transportation projects
· Participate early and effectively in transportation project development
· Demonstrate a spirit of cooperation
· Offer constructive and problem-solving ideas that address purpose and need
· Reflect a sense of urgency about meeting schedules
· Implement concurrent processing and a performance approach to permitting
· Apply clear and consistent interpretations of legal and regulatory requirements
· Consider common sense, balance and proportionality consistent with legal and regulatory requirements
· Avoid unnecessary duplication by sharing responsibilities with capable and willing state counterparts
· Improving environmental conditions and quality of life when possible, not just complying with regulations
· Careful management of environmental resources and values through partnerships among public and private entities.
· Attitude, ethics, and behavior by individuals.
· Wise choices based on understanding consequences to natural, human-made, and social environment.
· Fulfilling responsibilities as trustees of the environment for succeeding generation, moving toward a cost- effective and environmentally sustainable future.
· Integrating environmental values with partners within all transportation work as a "core business value".
Environmental Stewardship Works Toward: (AASHTO)
· Agency-wide commitment to environmental excellence
· Improved public and regulatory attitudes
· Improved transportation programs and services
· Achieving TEA-21 streamlining goals
· Developing an environmental stewardship ethic
· Overcoming barriers