Streamlining Environmental Reviews of Highway and Transit Projects: Analysis of TEA-LU (H.R. 3) and SAFETEA (S. 732)

Order Code RL32032

CRS Report for Congress

Received through the CRS Web

Streamlining Environmental Reviews of

Highway and Transit Projects: Analysis of

TEA-LU (H.R. 3) and SAFETEA (S. 732)

Updated July 22, 2005

Linda G. Luther

Environmental Policy Analyst

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Streamlining Environmental Reviews of Highway and

Transit Projects: Analysis of TEA-LU (H.R. 3)

and SAFETEA (S. 732)

Summary

Before final design activities, property acquisition, or construction for a

federally funded surface transportation project can proceed, the Department of

Transportation (DOT) is required by law to comply with environmental review

provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321, et

seq.). In addition, any surface transportation project will potentially require

compliance with a variety of federal, state, and local environmental laws, rules, and

regulations, in turn requiring the cooperation of federal, state, and local agencies.

Some Members of Congress have expressed concerns that the interagency

coordination required to complete the environmental review process for large,

complex transportation projects can lead to project delays. To address this concern,

“Environmental Streamlining” provisions were included in legislation that

reauthorized federal surface transportation programs for FY1998-FY2003 in the

Transportation Equity Act for the 21st Century (TEA-21; P.L. 105-178).

During the 108th Congress, House- and Senate-passed legislation to reauthorize

surface transportation programs for FY2004-FY2009 (H.R. 3550 and S. 1072) again

included streamlining provisions. Conferees failed to reach an agreement on final

reauthorization legislation before adjournment of the 108th Congress. Essentially the

same streamlining provisions were included in legislation passed in the 109th

Congress by the House (H.R. 3) and the Senate (S. 732). The House passed its bill,

the Transportation Equity Act: A Legacy for Users (TEA-LU), on March 10, 2005.

On May 17, 2005, the Senate passed its amended version of H.R. 3 (previously S.

732), the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of

2005 (SAFETEA). The bills now go to conference.

Streamlining provisions include the designation of DOT as the “lead agency”

in the environmental review process; the designation of authority to the lead agency

to define a project’s purpose and need, and to determine the range of alternatives to

be considered; the creation of a dispute resolution process to address issues of

concern between agencies; amendments to current statutory requirements to

potentially allow for the use of certain public lands or historic sites for transportation

projects; delegation of certain authority to state agencies; and the establishment of

a statute of limitations on final agency actions or comment deadlines applicable to

agencies and the public.

This report provides background and detail on streamlining provisions proposed

during the 109th Congress. This report will be updated. For more information on

issues regarding the environmental review process, see CRS Report RL32024,

Background on NEPA Implementation for Highway Projects: Streamlining the

Process.

Contents

Environmental Review Requirements: Current Status . . . . . . . . . . . . . . . . . 2

The Environmental Review Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Interagency Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Project “Purpose and Need” and Alternatives . . . . . . . . . . . . . . . . . . . . 4

Designation of Categorical Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . 5

Requirements Applicable to Parks, Refuges, and Historic Sites . . . . . . 6

Streamlining Environmental Reviews Under TEA-21 . . . . . . . . . . . . . . . . . 7

Legislative Efforts to Expedite Project Delivery . . . . . . . . . . . . . . . . . . . . . . 8

Establishment of a New Environmental Review Process . . . . . . . . . . . 9

Delineation of Authority of the Lead Agency . . . . . . . . . . . . . . . . . . . . 9

Delegation of Authority to State DOTs . . . . . . . . . . . . . . . . . . . . . . . . 11

Amendments to Section 4(f) Provisions . . . . . . . . . . . . . . . . . . . . . . . 12

Establishment of Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pilot Program for States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Requirement to Promulgate Regulations . . . . . . . . . . . . . . . . . . . . . . . 14

Streamlining Environmental Reviews of

Highway and Transit Projects: Analysis of

TEA-LU (H.R. 3) AND SAFETEA (S. 732)

In 1998, Congress passed the Transportation Equity Act for the 21st Century

(TEA-21, P.L. 105-178), which reauthorized federal surface transportation programs

for FY1998-2003. During the reauthorization process, some state transportation

departments and transportation construction organizations reported to Congress that

the process required to obtain various federal, state, and local environmental

approvals and permits, often needed for major highway projects, was sometimes

inefficiently implemented and overly time-consuming. In particular, stakeholders

expressed concern about the lack of effective interagency cooperation when multiple

federal or state agencies were required to participate in a project. Congress attempted

to address these concerns by including “Environmental Streamlining” provisions in

TEA-21.

Although not defined in statute, FHWA defines environmental streamlining as

the timely delivery of federally funded transportation projects, while protecting and

enhancing the environment. Because major transportation projects may be affected

by dozens of federal, state, and local environmental requirements, administered by

multiple agencies, improved interagency cooperation was identified by Congress as

a critical element to the success of environmental streamlining. The streamlining

provisions of TEA-21 required the Department of Transportation (DOT) to develop

and implement a “coordinated environmental review process” for highway projects

that either do have or may have a significant impact on the environment

(approximately 9% of all highway projects fall into one of these categories). This

coordinated review process encourages full and early participation by all relevant

federal and state agencies required to participate in a highway project.

Since the passage of TEA-21, numerous administrative activities have been

undertaken to facilitate streamlining. However, regulations to implement the

streamlining provisions have not been promulgated. Some Members of Congress

have expressed the need for further legislation to expedite the environmental review

process required of highway construction and transit projects. As a result, legislation

to reauthorize surface transportation programs for FY2004-FY2009, passed in both

the House (H.R. 3550) and the Senate (S. 1072) during the 108th Congress, included

provisions intended to further streamline the environmental review process.

Conferees failed to reach an agreement on final reauthorization legislation before

adjournment of the 108th Congress.

Early in the 109th Congress, legislation with essentially similar policy provisions

was introduced. The House passed its bill (H.R. 3), the Transportation Equity Act:

A Legacy for Users (TEA-LU), on March 10, 2005. On May 17, 2005, the Senate

passed its amended version of H.R. 3 (previously approved by the Senate

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Environment and Public Works Committee as S. 732), the Safe, Accountable,

Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA).

TEA-21 expired on September 30, 2003. Congress has passed a series of

extension bills to continue funding for federal highway and transit programs at

FY2003 levels, while work proceeds on a final reauthorization bill. The most recent

extension (H.R. 3377) extends funding for surface transportation programs until July

27, 2005. Until new reauthorization legislation is enacted, streamlining provisions

in TEA-21 will continue.

Environmental Review Requirements: Current Status

Before final design, property acquisition, or construction on a highway or transit

project can proceed, the Federal Highway Administration (FHWA) and the Federal

Transit Administration (FTA) must demonstrate compliance with all applicable state

and federal legal requirements regarding the environment, including the National

Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). Discussed below

are selected elements of the environmental review process relevant to the current

debate regarding transportation reauthorization legislation. (For more detailed

information about the NEPA process, see CRS Report RL32024, Background on

NEPA Implementation for Highway Projects: Streamlining the Process.)

The Environmental Review Process. The “environmental review

process” generally refers to the procedures required to comply with NEPA, but may

also refer to the process for compliance with any other environmental law applicable

to a given transportation project. NEPA requires the preparation of an environmental

impact statement (EIS) for all major federal actions “significantly” affecting the

environment. An EIS is a full disclosure document that provides a description of the

proposed project, the existing environment, and an analysis of the anticipated

beneficial and adverse environmental effects of all reasonable alternatives.

Preparation is done in two stages, resulting in a draft and final EIS.

Projects for which it is not initially clear whether impacts will be significant

require the preparation of an environmental assessment (EA). If it is determined, at

any time during the EA, that a project’s impacts will be significant, an EIS must be

prepared. However, if the EA determines that the project creates no significant

environmental impact, a Finding of No Significant Impact (FONSI) will be issued by

DOT. The FONSI must briefly present the reasons why the project will not have a

significant effect on the environment. According to FHWA, in FY2001, projects

requiring an EA, and a subsequent FONSI, accounted for approximately 6% of

FHWA-funded highway projects (representing approximately 15% of the $17.6

billion in federal funding distributed to states in FY2001); approximately 3% of

highway projects required an EIS (accounting for just under 9% of FY2001 federal

funding); the remainder were categorically excluded from the requirement to prepare

either an EA or and EIS.1

1

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to

Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp 3-4.

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The Council on Environmental Quality (CEQ), in the Executive Office of the

President, promulgated regulations specifying NEPA compliance procedures

applicable to all federal agencies.2 At CEQ’s direction, DOT promulgated its own

regulations governing the preparation of EISs and related environmental

documentation required for FHWA and FTA projects.3 In addition to formal

regulations, DOT has issued a variety of guidance documents and technical

advisories to assist decision makers in completing the NEPA process for

transportation projects.4

NEPA compliance fits into the overall project delivery process as a subset of

one or more of the following four major elements generally considered to be part of

the full transportation project delivery process: preliminary engineering, final or

construction engineering, right-of-way acquisition, and construction. Any delays in

completion of the NEPA process could also impact upon the cost of project delivery

if the delays are extensive enough for inflationary cost increases to result.

Interagency Cooperation. Projects requiring NEPA documentation involve

the participation of a “lead agency” and “cooperating agencies.” The lead agency is

defined in CEQ regulations as the federal agency that has taken responsibility for

preparing the NEPA documentation.5 For federally funded highway and transit

projects, the lead agency will usually be DOT (specifically FHWA or FTA). The

project applicant, such as a state DOT, will likely participate in the NEPA process

as a joint lead agency. The project applicant is required to initially develop

substantive portions of the environmental document, while DOT will be responsible

for its scope and content.6

DOT requires that the draft and final EIS demonstrate that appropriate

comments and coordination were solicited from relevant federal, state, and local

cooperating agencies. Cooperating agencies (also referred to sometimes as

“participating” agencies) required to provide input during the environmental review

process are those that are obligated to provide comments within their agency’s

jurisdiction, expertise, or authority. This means that an agency with jurisdiction over

or expertise regarding any identified environmental consequence anticipated from a

project is required to provide DOT with the appropriate input. For example, if

historical and archeological preservation consequences are identified, the Advisory

Council on Historic Preservation or the state historic preservation officer will likely

2

40 C.F.R. §§ 1500-1508.

3

40 C.F.R. § 771; final rule at 53 Federal Register 32646.

4

The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project

Development Process,” which includes information regarding FHWA’s environmental

policy, FHWA Technical Advisories, and a variety of guidance materials to facilitate

compliance with NEPA at all stages of the process. The site is accessible at [http://

environment.fhwa.dot.gov/projdev/index.htm] as of May 27, 2005. Information regarding

NEPA compliance for FTA is available on the agency’s Environmental website at

[http://www.fta.dot.gov/1243_ENG_HTML.htm] as of May 27, 2005.

5

40 C.F.R. § 1508.16.

6

23 C.F.R. § 771.109(c).

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be included as a cooperating agency during the environmental review process. If

farmland impacts are identified, the EIS should summarize the results of comments

and analyses from the U.S. Department of Agriculture (USDA) and, as appropriate,

state and local agriculture agencies. If impacts to wetlands are identified, the U.S.

Army Corps of Engineers may need to issue a permit before a project may proceed.

For any given transportation project, compliance with a wide variety of

legislative and regulatory requirements, enforceable by multiple agencies, may be

required. DOT regulations require that the final EIS or the FONSI document

compliance with all applicable environmental laws, executive orders, and other

related requirements.7 It is DOT policy that compliance with all applicable

environmental requirements be coordinated under the “NEPA umbrella.” This means

that, for any given transportation project, any study, review, or consultation required

by law, that is related to the environment, should be conducted within the framework

of the NEPA process.

Depending upon the complexity of the project or resources impacted, a

significant number of environmental requirements, in addition to NEPA, may be

applicable. According to FHWA, legal requirements frequently applicable to highway

projects are:

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Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

National Historic Preservation Act (16 U.S.C. 460 et seq.);,

Clean Water Act (33 U.S.C. 1251 et seq.); and

“Section 4(f)”of the Department of Transportation Act of 1966 (40

U.S.C. 303) (see “Requirements Applicable to Parks, Refuges, and

Historic Sites” section, below) .

For the requirements listed above, the U.S. Fish and Wildlife Service, the

Advisory Council on Historic Preservation, the U.S. Army Corps of Engineers, or the

Environmental Protection Agency (EPA) may be required to participate in the NEPA

process as a cooperating agency. That participation may take the form of providing

comments on DOT documentation, performing scientific analysis, issuing permits,

or providing an assessment of project impacts, to name a few.

The role of a cooperating agency is frequently set out in a memorandum of

agreement with the lead agency. That agreement may involve the cooperating agency

drafting certain portions of the EIS that relate to its jurisdiction or expertise. For

example, if a highway project has the potential to impact prime farmland, USDA may

agree to provide FHWA with an analysis of those impacts.

Project “Purpose and Need” and Alternatives. As required under both

CEQ and DOT regulations, the EIS must include a statement clarifying the project’s

“purpose and need.” This section of an EIS is the foundation upon which subsequent

sections of the EIS are built. DOT requires the discussion to be clear and specific and

support the need for the project. Further, it is the purpose and need section that

drives the selection of the range of alternatives that will be considered and analyzed

7

23 C.F.R. § 771.133.

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for a given project. CEQ regulations require agencies to discuss a range of

alternatives that will include all “reasonable alternatives” under consideration as well

as any other alternatives that were considered but subsequently eliminated from

consideration. Reasonable alternatives include those that are practical or feasible

from the technical and economic standpoint and using common sense, rather than

simply desirable from the standpoint of the agency or a potentially affected

stakeholder.

In his capacity as the Chairman of the Interagency Transportation Infrastructure

Streamlining Task Force (established under Executive Order 13274, “Environmental

Stewardship and Transportation Infrastructure Project Review”8), Transportation

Secretary Norman Mineta sought guidance from CEQ Chairman James Connaughton

regarding the role of lead and cooperating agencies with regard to developing a

highway project’s “purpose and need.”9 Secretary Mineta referred to the sometimes

extended interagency debates over purpose and need statements as a reason for delay

in highway project development.

In his response, Chairman Connaughton cited excerpts of NEPA itself as well

as CEQ regulations that specify that the lead agency has the authority for and

responsibility to define a project’s purpose and need. Further, Chairman

Connaughton referenced previous federal court decisions giving deference to the lead

agency in determining a project’s purpose and need. While not addressed in this

correspondence, CEQ regulations also specify the selection of reasonable alternatives

as within the authority of the lead agency.

Designation of Categorical Exclusions. Transportation projects that do

not individually or cumulatively have a significant social, economic, or

environmental effect, and which DOT has determined from past experience with

similar projects have no significant impact, are excluded from the requirement to

prepare an EA or EIS. Such actions are processed as categorical exclusions. In

FY2001, almost 91% of all FHWA projects were classified as categorical

exclusions.10

A common misconception is that such projects are categorically excluded from

compliance with NEPA. Such projects do require a certain level of NEPA

compliance, but are excluded only from the requirement to prepare an EA or EIS.

Unlike EAs or EISs, categorical exclusions are not a type of document, but are

classes of DOT actions that may be, in effect, pre-approved. For example,

“transportation enhancements” often fall into this category of action.11

8

This Executive Order is available at [http://www.fhwa.dot.gov/stewardshipeo/index.htm],

as of May 27, 2005.

9

Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,

2003 response, are available at [http://www.fhwa.dot.gov/stewardshipeo/minetamay6.htm],

as of May 27, 2005.

10

GAO-03-534.

11

Activities classified as “transportation enhancements” are specifically listed by Congress

(continued...)

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DOT regulations specify two groups of categorical exclusions. Whether or what

type of documentation will be required will depend upon which of the two groups the

project falls. The first group includes projects that call for no or limited

construction.12 Examples include the construction of bicycle and pedestrian lanes,

landscaping, emergency repairs, and the installation of pavement markings, or traffic

signals. The second group consists of actions with a higher potential for impacts than

the first group, but are generally determined to meet the criteria for a categorical

exclusion because environmental impacts are minor.13 An example of such a project

is the modernization of a highway through resurfacing, reconstruction, adding

shoulders, or adding auxiliary lanes.

Since the second group of actions has a higher potential for impacts than the

first, DOT may require that the state or local project sponsor provide analyses or

documentation to allow DOT to determine if the categorical exclusion designation

is proper. Further, although a categorically excluded project’s environmental impacts

may not be “significant” as defined under NEPA, requirements of other laws may

still apply. For example, the installation of traffic signals is generally considered an

action with no environmental impacts. However, if those traffic signals will be

installed in a historic district, compliance with provisions of the National Historic

Preservation Act may apply. Also, for example, if the proposed route of a bicycle

path borders endangered species habitat, a biological assessment, in compliance with

the Endangered Species Act, may be required.

Requirements Applicable to Parks, Refuges, and Historic Sites.

Requirements of “Section 4(f)” of the Department of Transportation Act of 1966

apply to the use of publicly owned parks and recreation areas, wildlife and waterfowl

refuges, and to publicly or privately owned historic sites of national, state, or local

significance. Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. §

1653(f) and applies to all DOT projects. A similar provision, found at 23 U.S.C. §

138, applies specifically to Federal-aid highways. In 1983, as part of a general

recodification of the DOT Act, 49 U.S.C. § 1653(f) was formally repealed and

codified in 49 U.S.C. § 303 with slightly different language. This provision no longer

falls under a “Section 4(f),” but DOT has continued this reference, given that over

the years, the whole body of provisions, policies, and case law has been collectively

referenced as Section 4(f).

Under the law, any use of a Section 4(f) resource for a transportation project is

prohibited unless there is no “prudent and feasible” alternative to do otherwise, and

the project includes all possible planning to minimize harm to the resource. When a

project proposes the use a Section 4(f) resource, a separate “Section 4(f) evaluation”

must be prepared and included with the appropriate NEPA documentation. The

11

(...continued)

under 23 U.S.C. §101(a)(35). For more information, see FHWA’s Transportation

Enhancement website at [http://www.fhwa.dot.gov/environment/te/index.htm], as of May

27, 2005.

12

Specified under 23 C.F.R. § 771.117(c).

13

Specified under 23 C.F.R. § 771.117(d).

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evaluation must analyze alternatives and design shifts that avoid the protected

resource. If Section 4(f) land is subsequently chosen for use in a project, the

evaluation must demonstrate that the use of other alternatives would have resulted

in unique problems. “Unique problems” are present when there are truly unusual

factors or when the costs or community disruption reach “extraordinary magnitude.

This test was introduced in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402

(1971), and subsequently referred to as “Overton Park Criteria.”

Streamlining Environmental Reviews Under TEA-21

Section 1309 of TEA-21, “Environmental Streamlining,” was intended to lead

to better coordination of agency involvement in the NEPA process. It directed the

Secretary of DOT to develop and implement a “coordinated environmental review

process” for highway construction projects that require an EIS or an EA, under

NEPA, or for the conduct of any other environmental review, analysis, opinion,

issuance of an environmental permit, license, or approval required under federal law.

The Secretary of Transportation (the Secretary) was directed to identify all agencies

required to participate in the coordinated environmental review process at the earliest

possible time, and to require those agencies, whenever practicable, to conduct

required reviews concurrently, rather than sequentially, in accordance with

cooperatively established time periods. The review process could be incorporated

into a memorandum of understanding between DOT and participating federal and

state agencies.

DOT has undertaken a variety of actions to meet the goals of TEA-21’s

streamlining requirements. However, no final regulations were promulgated. In May

2000, under the Clinton Administration, DOT proposed a rule on “NEPA and

Related Procedures for Transportation Decisionmaking.”14 Some commenters

indicated that the proposed rule failed to streamline the review process. Elements of

the rule presented an increased burden of paperwork and procedural requirements,

they said, and increased the potential for litigation. There was also a concern that the

proposed rule lacked specific provisions addressing time frames, comment deadlines,

dispute resolution, and “closing the record” on decisionmaking at an appropriate

stage. Due to these concerns, the proposed rule was withdrawn by DOT in

September 2002.15

Since withdrawal of the proposed rule came within a year of the legislative

reauthorization of surface transportation programs, the agency stated it would wait

for the outcome of the legislative process to see what further regulatory changes were

needed. In lieu of final regulations, DOT has implemented a variety of administrative

actions in response to TEA-21’s streamlining requirements. (For detailed information

regarding the streamlining provisions of TEA-21 and the Administration’s activities

to implement those provisions, see CRS Report RL32024, Background on NEPA

Implementation for Highway Projects: Streamlining the Process.)

14

65 Federal Register 33960.

15

67 Federal Register 59225.

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Several elements of the coordinated environmental review process exist in

current CEQ and DOT regulations. For example, CEQ regulations require agencies

to reduce paperwork and delays by:

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Integrating the NEPA process into early planning.

Emphasizing interagency cooperation before the EIS is prepared,

rather than submission of adversary comments on a completed

document.

Insuring the swift and fair resolution of lead agency disputes.

Using the scoping process for an early identification of what are and

what are not the real issues.

Establishing appropriate time limits for the EIS process.

Preparing EISs early in the process.

Integrating NEPA requirements with other environmental review

and consultation requirements.16

On September 30, 2003, the day TEA-21 expired, the President signed the first

in a series of extension bills. Under those extensions, all existing surface

transportation programs continue to operate according to provisions of TEA-21 while

Congress considers reauthorization proposals. The most recent extension, the

Surface Transportation Extension Act of 2005, Part IV (H.R. 3377), extends funding

for surface transportation programs until July 27, 2005. Since the environmental

streamlining provisions of TEA-21 are not tied to highway funding, the provisions

of Section 1309 will continue until new legislation is enacted.

Legislative Efforts to Expedite Project Delivery

During the 108th Congress, both the House (H.R. 3550) and Senate (S. 1072)

passed legislation to reauthorize federal surface transportation programs for FY20042009. However, conferees were unable to reach agreement on a final bill before the

108th Congress adjourned.

During the 109th Congress, both the House and Senate again passed legislation

to reauthorize surface transportation programs for FY2004-FY2009. The House

passed H.R. 3, the Transportation Equity Act: A Legacy for Users (TEA-LU). The

Senate inserted language from its bill, S. 732, the Safe Accountable, Flexible, and

Efficient Transportation Equity Act of 2005 (SAFETEA), into its version of H.R. 3.

It was passed on May 17, 2005. Each bill has policy provisions essentially the same

as those included in bills passed during the 108th Congress.

Each bill had distinct provisions related to the environmental review process.

Provisions common to each bill included:

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16

A statutory designation of DOT as the lead agency for the

environmental review process under NEPA;

A statutory delineation of the roles and responsibilities of the lead

agency and cooperating agencies;

40 C.F.R. 1500.5

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A requirement to involve the public and agencies in defining the

purpose and need statement and in developing the range of project

alternatives;

A requirement to follow specified procedures to identify and resolve

issues or disputes that could lead to the delay of a project or the

denial of any needed approval required by law;

Authorization for the DOT Secretary to approve the use of highway

or mass transit funds to assist participating agencies to meet time

limits for the environmental review (previously included in the

streamlining provisions of TEA-21);

An exemption of the Interstate System from consideration as a

“historic site” under provisions of Section 4(f); and

A repeal of the streamlining provisions in Section 1309 of TEA-21.

Details of each bill, particularly details that differed from one bill to another, are

discussed below. Also, briefly discussed below are the positions taken by various

interest groups on selected legislative proposals. Groups interested in the

streamlining provisions generally include “transportation improvement stakeholders”

(i.e., state departments of transportation or transportation advocacy or construction

organizations) and “environmental stakeholders” (i.e., state or federal resource

agencies, historic preservation agencies or advocacy organizations, and

environmental advocacy organizations).

Establishment of a New Environmental Review Process. Each bill

delineates a new environmental review process for certain types of surface

transportation programs. Under Section 1511, the Senate bill proposes to establish

a new “transportation project development process” (as opposed to building upon the

TEA-21’s “coordinated environmental review process”). This process, applicable to

highway and transit projects, could be implemented at the request or with the

concurrence of the project sponsor and carried out by the lead agency. Otherwise, the

environmental review process required under current CEQ and DOT regulations

would be implemented.

The House bill includes its version of streamlining provisions under Title VI,

“Transportation Planning and Project Delivery,” Section 6002, “Efficient

Environmental Reviews for Project Decisionmaking.” TEA-LU’s environmental

review process was referred to as “project development procedures.” The procedures

in the House bill are similar to, but in some instances not as detailed as, those found

in the Senate bill. Unlike the Senate bill, the project development procedures in the

House bill are applicable to all highway projects, public transportation capital

projects, and multimodal projects that require an EIS. If determined appropriate by

the Secretary, the procedures may also be applied to projects that require an EA or

a categorical exclusion.

Delineation of Authority of the Lead Agency. Each bill proposes to

designate DOT as the lead agency for certain surface transportation projects requiring

compliance with NEPA. The Senate bill proposes to designate DOT as the lead

agency for highway and transit projects and to allow the project sponsor to serve as

a joint lead agency. SAFETEA proposes to give authority to the lead agency to carry

out certain responsibilities when implementing the transportation project

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development process. For example, the Senate bill would authorize the lead agency

to develop a “coordination plan” to coordinate public and agency participation in the

environmental review process. As part of the coordination plan, the lead agency

would be required to develop a workplan and schedule, in consultation with

cooperating agencies and the project sponsor, for completion of the environmental

review process and the collection of information needed to complete that process.

The schedule would be required to include deadlines on specific milestones in the

environmental review process. Criteria for establishing those deadlines are specified

in the Senate bill, and include the establishment of deadlines on agency comments,

procedures for extending comment deadlines, procedures for accepting late

comments, and procedures applicable to deadlines for decisions under other laws.

Further, in the Senate bill, the lead agency would be authorized to determine the

purpose and need and the range of alternatives to be considered for the project. Each

of these elements of the environmental review process would require the solicitation

of comments from agencies and the public for 30 days. The bill specifies factors that

may be considered by the lead agency in determining the project’s purpose and need

and alternatives. These factors include transportation, land use, economic

development, and environmental protection plans adopted by the state, local, or tribal

government.

Responsibilities of cooperating agencies are also delineated in the Senate bill.

For example, cooperating agencies involved in the transportation development

process would be required to conduct required environmental reviews concurrently,

to the extent practicable.

Similar to the Senate bill, the House bill would designate DOT as the “federal

lead agency.” In addition, the project sponsor, if a state or local government (as

opposed to a private entity), would be required to be the “joint lead agency” for the

environmental review process. The joint lead agency may prepare any required

environmental documents, if the federal lead agency provides guidance and

assistance and approves the documents. The environmental review process must be

initiated by the project sponsor after proper notification to the Secretary.

After participating agencies and the public had an opportunity for involvement,

the House bill would require the lead agency to define the project’s purpose and need

and the range of project alternatives. However, unlike the Senate bill, specific criteria

for involving the public and agencies are not specified. The House bill would require

the purpose and need statement to specify the project’s objectives (such as supporting

a transportation objective identified in a statewide transportation plan). With regard

to defining a project’s alternatives, the lead agency would be authorized to

collaborate with participating agencies to determine methodologies that would have

been used for alternatives analysis and the level of detail required for each

alternative. Also, the lead agency would be given the discretion to develop a

preferred alternative to a higher degree of detail in order to facilitate development of

mitigation measures or concurrent compliance with other applicable laws, if that

determination would not prevent the agency from making an impartial decision.

CRS-11

Transportation advocacy groups such as the American Association of State

Highway and Transportation Officials (AASHTO)17 argue that the authority of

participating federal and state agencies, particularly that of the “lead agency,” should

be more clearly defined in statute. They have supported establishing statutory

authority that would reiterate the lead agency’s authority to delineate a project’s

purpose and need, and the range of alternatives to be considered. Environmental

stakeholders are concerned that, if the lead agency is afforded specific rights in

statute, the opinions or contributions of cooperating agencies will be diminished or

dismissed. They acknowledge that establishment of lead agency authority in law may

serve to reassert DOT’s authority to participating agencies. However, since this is a

right already afforded DOT under current law and regulations, some environmental

groups contend that such provisions may not significantly streamline the NEPA

process.

Delegation of Authority to State DOTs. Section 1512 of the Senate bill

would authorize the Secretary to assign to a state DOT the responsibility for

processing the environmental reviews for projects classified as categorical

exclusions. The criteria for making such a determination would be established by the

Secretary and would apply only to projects designated by the Secretary. Such

authority would be determined through a mutual agreement between the state and the

Secretary and delineated in a memorandum of understanding. Under the House bill,

similar authority would not be delegated to the states. However, in effect, certain

authority would be extended to the states insofar as they would be designated as joint

lead agencies, allowed to prepare environmental documents and initiate the

environmental review process.

In practice, project sponsors already assemble documentation that allows DOT

to make the categorical exclusion determination. If enacted, provisions of the Senate

bill would have the effect of omitting the final step in the process. This final step

currently requires DOT to assure that necessary documentation or required analyses

to determine a project’s categorical exclusion determination is legally sound and

accurately reflects a project’s status.

Transportation stakeholders such as AASHTO have argued that project review

may be expedited if states were given the authority to process categorical exclusions.

Such stakeholders argue that delegation of this authority to the states could speed up

the environmental review process for highway projects by eliminating a significant

layer of bureaucracy that federal approval entails. However, environmental

stakeholders have expressed concern that the delegation of authority to the states

would create a “fox guarding the henhouse” scenario. They argue that if a state,

which has a vested interest in moving a project forward, is allowed to make certain

determinations, those determinations would not have the level of scrutiny that would

be provided with federal oversight. Further, they are concerned that any legislation

that would reduce or eliminate federal oversight may ultimately limit public

participation in the environmental review process.

17

AASHTO represents highway and transportation departments in the fifty states, the

District of Columbia, and Puerto Rico.

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Amendments to Section 4(f) Provisions. Both the House (§ 6003) and

Senate (§ 1514) bills would amend current statutory provisions related to Section 4(f)

protection of publically owned parks, recreation areas, wildlife and waterfowl

refuges, and to public or privately owned historic sites. The main differences

between the bills concern the categories of resources to which the amendments would

apply.

Provisions in the Senate bill would allow for the use of Section 4(f) resources

if it is determined that such use would have “de minimis impacts.” If the resource

involved a park, recreation area, or wildlife or waterfowl refuge, the Secretary’s

finding of de minimis impacts would be required to receive concurrence from the

official with jurisdiction over that resource (e.g., the U.S. Fish and Wildlife Service,

the National Park Service, or applicable state or local park authorities). If the

resource involves a public or private historic site, the finding of de minimis impacts

would have to be determined in accordance with the consultation process required

under Section 106 of the National Historic Preservation Act (NHPA, 16 U.S.C. §

470f). As such, it would be required that the transportation program or project would

have no adverse effect on the site or property. That finding would be required to

receive concurrence from the Advisory Council on Historic Preservation or the state

or tribal historic preservation officer, as applicable.

Further, within a year of enacting the Senate bill, the Secretary must promulgate

regulations to clarify existing Section 4(f) requirements. In particular, provisions of

the Senate bill would require the Secretary, in consultation with affected agencies,

to clarify standards required to determine the “prudence and feasibility” of a project’s

alternatives (see “Requirements Applicable to Parks, Refuges, and Historic Sites”

section, above).

Amendments to Section 4(f) included in the House bill would apply only to

historic sites. Provisions of TEA-LU would allow for the use of a historic site if that

use is determined, in accordance with provisions of Section 106 of the National

Historic Preservation Act, to have no adverse effect on the site.

Some environmental stakeholders have expressed concerns at what they

perceive as an overall weakening of the current protections. Most transportation

stakeholders are in favor of the Senate’s proposed revisions to the current Section

4(f) requirements, which have been identified by state transportation agencies as a

significant deterrent to timely environmental reviews of transportation projects.18

Further, AASHTO has argued that the problem with Section 4(f) is what it perceives

as the law’s lack of flexibility, particularly with regard to privately owned historic

sites.19 AASHTO has expressed concern with the requirement to avoid Section 4(f)

resources even when the impact is minor, resulting in situations in which a historic

property is protected at the expense of other, more sensitive environmental resources

or communities. Historic preservation groups, such as the National Trust for Historic

18

19

FHWA newsletter “Successes in Streamlining,” January 2002.

AASHTO statement for the record regarding “Stewardship and Streamlining Proposals

for Reauthorization of the Surface Transportation Program,” before the Senate Environment

and Public Works Committee, September 19, 2002.

CRS-13

Preservation (NTHP), counter that changes to the law are not needed and any

problem with Section 4(f) is with improper interpretation by FHWA. NTHP asserts

that FHWA sometimes avoids a Section 4(f) resource “at all costs” and has

interpreted situations in which there are “no prudent and feasible” project alternatives

too narrowly.20

Establishment of Deadlines. Each bill either requires or allows for the

establishment of deadlines on certain project milestones. The House bill includes

provisions that would establish various definitive deadlines applicable to agencies

and the public. For example, under Section 6002, the House bill would establish an

extendable 60-day deadline on comments to a draft EIS and an extendable 30-day

deadline on all other comment periods in the environmental review process. Also, the

House bill would establish a 90-day statute of limitations on legal challenges related

to final agency actions.

The Senate bill would not set specific deadlines applicable to all projects.

However, one component of the “transportation project development process” is the

development of a project work plan that includes a schedule with deadlines

negotiated by the lead and cooperating agencies.

Environmental groups argue that public involvement in highway projects will

likely be restricted if deadlines are applied to the interagency processes. Further, they

argue that deadlines of 30 to 60 days are not sufficient to fully consider and consent

on the major questions of impact exposed throughout the NEPA process.

Transportation stakeholders are in favor of the adoption of extendable deadlines on

agency comments.

With regard to the creation of a statute of limitations on legal challenges,

transportation stakeholders such as AASHTO are in favor of the adoption of time

limits for legal challenges to project approvals. They argue that the absence of a

statute of limitations in current law allows plaintiffs to file suit when a project is at

an advanced stage. They are in favor of limits that would facilitate the resolution of

legal disputes more promptly after the conclusion of the environmental review

process. Some environmental groups have argued that the proposed statute of

limitations of 90 days is too restrictive and does not allow sufficient time to prepare

an appeal. They argue that, as a result, this time limit may lead to preemptive suits

in an effort to preserve the right to sue.

Pilot Program for States. Section 1513 of the Senate bill proposes to

establish a “surface transportation project delivery pilot program” that would delegate

certain federal environmental review responsibilities (in addition to categorical

exclusion determinations) to no more than five states, including Oklahoma.

Responsibility could be assumed for environmental reviews required under NEPA,

or any federal law, for one or more highway projects within the state. Federal

responsibility for any conformity determination required under the Clean Air Act

could not be assigned to the state. The program would be administered in accordance

20

The National Trust for Historic Preservation newsletter, “Forum News,” Volume IX, No.

4, March/April 2003, p 2.

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with a written agreement between the participating state and the Secretary. The

Secretary is directed to promulgate regulations to implement the pilot program within

270 days of enacting the law. The House bill did not include a comparable provision.

Requirement to Promulgate Regulations. The Senate bill would require

the Secretary to promulgate regulations to implement each of the provisions

discussed above, unless otherwise specified, within one year of enacting the law. This

provision relates to the concerns of some Members of Congress that regulations to

implement the streamlining provisions in TEA-21 were not finalized after its

enactment. The House bill does not include a similar requirement.

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