THE AMERICAN COUNCIL OF
ENGINEERING COMPANIES
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