ACEC members are deeply involved with virtually every aspect of our nation's transportation system, designing roads, bridges, transit and rail systems, and airport and runway facilities in every state. Our member firms also have a strong sense of environmental stewardship and public safety, regularly engineering solutions for the clean-up of Super Fund sites, for safe drinking water, or for the creation of new wetlands.
Mr. Chairman, I believe you're familiar with the chart I have with me today. It was produced a few years ago by the Ohio Department of Transportation, and it illustrates the steps involved in getting a typical highway project from conception to groundbreaking -- a process Ohio DOT says often takes 8 years. This chart was produced during the years of ISTEA. During the reauthorization debate of 1997 and 1998, Congress and the transportation community agreed this was unacceptable, and so TEA-21 included several provisions designed to streamline the process and eliminate excess cost, delay, and uncertainty. In many ways, the issues before us today can be reduced to a simple question: "How far have we come toward improving upon this process?"
I wish we had more good news to report, but I'm afraid we don't. It's going to take persistence by Congress and cooperative determination among the federal agencies to streamline this process. And it's not going to come easily. This is why we're delighted that the subcommittee is conducting this series of oversight hearings on TEA-21 -- and especially this particular hearing on environmental streamlining and project delivery. We hope this regular oversight continues until you are satisfied the system is working as intended.
This morning I'd like to offer what we believe are three pillars of a successful implementation of environmental streamlining under TEA-21:
The need for quick action on a memorandum of understanding among the federal agencies. Use of existing best practices -- rather than new pilot programs -- as a model for implementing environmental streamlining The need for an objective measurement system to assess our progress toward streamlining.
First the need for high-level agreement among agencies.
Under Section 1309 of TEA-21, Congress specifies that "the Secretary [of Transportation] shall at the earliest possible time identify all potential federal agencies that have jurisdiction....over environmental-related issues... and....shall jointly develop and establish time periods for review." The Department of Transportation and these agencies are then expected to incorporate their discussions into a national Memorandum of Understanding.
A prompt, cooperative, national-level agreement among the agencies is a critical first step and will set the right tone for similar regional, state-by-state, and possibly even project-level agreements. I'd like to commend the Federal Highway Administration and Federal Transit Administration for the work they have done to engage stakeholders from across the country on these issues. However, while Congress expected FHWA and ETA to take the lead in this effort, it made clear that the other agencies are to be actively involved and accountable as well. As we approach the one-year anniversary of TEA-21, we believe the time has come to stress the urgency of completing this Memorandum of Understanding and follow-on agreements without further delay.
The second pillar is to avoid steps -- such as new pilot projects -- that would slow our progress toward streamlining or actually move us in the opposite direction.
We have two concerns about using pilot projects for environmental streamlining. First, we believe that they would substantially delay the implementation of the law because the results of a pilot are typically not apparent for several years. While the goals of these proposals may be laudable, pilot projects are not called for in the legislation and do not meet Congress' clear objective of streamlining and accelerating the environmental review process.
Second, it is clear that some groups would use pilot projects to broaden the scope of Section 1309 well beyond congressional intent. The "Options for Discussion" paper circulated by the Department of Transportation describes several proposals that seem driven by a desire to update and broaden the role of the National Environmental Policy Act, or NEPA. However, reform of NEPA is not called for in TEA-21, and such an undertaking should be separated from the process to avoid unnecessary delays in the implementation of the new law.
In short, we believe the regulating agencies should submit every implementation proposal to the litmus test of congressional intent. Congress was clear that the planning and environmental processes should be simplified and streamlined, without weakening our commitment to sound environmental policies. Proposals that would make these processes more complex or more time-consuming -- or that make it more difficult to implement transportation improvements where the purpose and need is well established -- should be quickly eliminated.
Rather than sponsoring an array of new pilot projects, we suggest using previous successes as a benchmark for future action. The federal highway program is not new, and while the project delivery process as a rule has been slow and burdensome, there have been occasional projects that have worked well. If we collect information on those projects that have exhibited coordination and streamlining and then pattern our action plan on these examples, the American public could hope to see results of streamlining in a matter of months, rather than years.
The third pillar is the need for an objective measurement system to assess our progress toward streamlining.
We feel strongly that there must be a well-defined measurement system in place as soon as possible to establish a baseline to track our progress toward environmental streamlining. In the absence of such a measurement system, all parties can be expected to use anecdotal evidence that casts their position in the most favorable light, and there will be no way to sift through the conflicting claims and counter-claims to draw valid conclusions about our progress.
We must first know where we are today if we hope to know next year whether we've improved. We believe a highly regarded independent organization using proven survey research methods could establish a baseline against which all future progress can be referenced. Statistically valid reports will be far more useful to the affected parties, including Congress, than anecdotal assessments of our progress or lack of progress toward streamlining.
The system would be something of a poll of both project sponsors and project reviewers, most likely on a regional basis. The poll might ask sponsors whether they are getting prompt responses from the reviewing agencies or ask them to gauge the agency's willingness to suggest constructive alternatives. The poll might ask agencies whether the information they are receiving from the sponsors is thorough and accurate. Subsequent surveys could track changes in how the participants view the process and also track how well each group is implementing changes to which it had previously committed. Mr. Chairman, our submitted testimony offers some additional details of how this objective measurement system might work.
Legal Impacts
We at ACEC are keenly aware that our mutual efforts at streamlining are affected by more than just legislative and regulatory activity. Recent court action in the Woodrow Wilson Bridge and EPA cases could also have an enormous impact on the delivery of the program.
A brief word about the EPA case: we believe the EPA, through its grandfathering rule, has been operating in good faith to balance national air quality goals with legitimate transportation needs. At this time when virtually everyone in the transportation community agrees we must accelerate and streamline project delivery, it is ironic that these court decisions would move the process in the opposite direction. It seems likely that Congress will soon address these issues, and we would support Senator Bond's efforts to codify EPA's 1993 conformity rule, which honors the spirit of the Clean Air Act while recognizing the public's legitimate need for safety and mobility.
Conclusion
In TEA-21, Congress mandated that we find ways to improve the process of delivering transportation projects without jeopardizing sound environmental policies. Our collective goal should be to make the process work better and faster, period. To quote from the USDOT document Listening to America: Implementing TEA-21. "Doing it right and doing it quickly are not necessarily at odds."
We are hopeful that the Department of Transportation will be in a position, by the first anniversary of TEA-21, to report to Congress that serious progress is being made on environmental streamlining and project delivery. In the meantime, we thank you for your continued involvement and look forward to working with you to ensure a fair and timely implementation of the law.
At the appropriate time, I'd be happy to try and answer any of your questions.
Measuring Results
The following is a proposed approach to quickly measure the impact of TEA-21 Environmental Streamlining provisions. This approach is not intended to be the only measure of success or failure.
For any of the proposed streamlining processes to succeed, the sponsoring, regulating and resource agencies must work together in a proactive and constructive way. ACEC proposes to measure in a statistically valid way whether or not the parties to streamlining are participating in a manner conducive to its success. The measurement system would use proven survey research methods conducted by a competent organization of high integrity and objectivity.
The proposal is to use such a survey research process to establish a baseline against which future progress can be referenced for reports to affected and interested parties, including Congress. The following are key points of this approach:
-- There is no system of measurement either in place or imminent that can provide objective information about the effects, if any, of streamlining improvements contemplated under TEA-21. In the absence of a reasonable and accepted measurement system, all parties can be expected to use anecdotal information that will cast their position in the most favorable light. There will be no rational way to sift through the potentially conflicting claims and counter-claims and draw valid conclusions about our collective progress.
-- It is questionable whether transportation and environmental agencies will soon reach agreement on objective and measurable criteria for good performance (such as total elapsed time between permit application and decision, percent attendance at key meetings, response times to letters, etc.) Even if the transportation and environmental agencies were able to reach consensus on measures of good performance, it would take several years to gain sufficient experience and gather sufficient data from which valid conclusions could be drawn.
-- The critical factors for streamlining success involve attitudes, degree of cooperation, willingness to suggest constructive alternatives, ability to forge reasonable compromises and the like. These are best measured using proven survey research techniques in which completely objective, unbiased questions are asked of a subset of the involved population. The questions asked in such a survey must be designed to get to the core of the streamlining issue and should be reviewed in advance by all affected parties. The survey should be conducted in the next 4 to 6 months to develop a good baseline for future comparisons and should be designed to discern differences among regions of the country.
-- An important advantage of survey research techniques is the ability to detect changes (or the absence of change) much sooner than could be achieved attempting to measure project by project case study results. For example, it could take a year or more to attempt to reach agreement on the measures, and then 3 to 5 years to gather sufficient data by which to draw valid conclusions about whether the lengthy, multi-year environmental process has indeed been streamlined.
A key question involves who would initiate and oversee the survey research process. It is suggested that the Secretary of Transportation might convene an inter-organization advisory task force, chaired by an appointee from outside of the transportation community. The chair should be a person known for their fairness and facilitating skills. The advisory task force would include representatives of FHWA, FTA, EPA, COE, USFWS, AASHTO, ARTBA, and ACEC. The group would solicit proposals from among the nation's most highly regarded survey research organizations and select the best. The group would also review the content and the results of the survey process, and ensure that the results are reported with dispassionate objectivity. Funding for the environmental streamlining assessment program should come from the US DOT budget.
Mr. Sheldon Edner
Office of Metropolitan Planning
Federal Highway Administration
400 Seventh Street SW
Washington, DC 20590
Mr. Charles Goodman
Office of Planning Operations-TPL
Federal Transit Administration
400 Seventh Street SW
Washington, DC 20590
Dear Mr. Edner and Mr. Goodman:
On behalf of the American Consulting Engineers Council, I am writing to submit formal comments and recommendations for implementing the planning, and environmental provisions of the Transportation Equity Act for the 21st Century (TEA-21). The Federal Highway Administration and Federal Transit Administration are to be commended for the work they have already done through several months of outreach sessions. ACEC was an active participant in these sessions. and we are now pleased to respond to your request for written comments and viewpoints from key stakeholders.
As was stated in the Federal Highway Administration and Federal Transit Administration TEA-21 Planning and Environmental Provisions: Options for Discussion (hereafter referred to as Options for Discussion) there are many ``cross-cutting'' issues that involve both the planning process and the National Environmental Policy Act. While it is difficult to draw neat boundaries around these complex and interrelated issues. we should make every effort to address only those issues that were addressed by Congress in the TEA-21 legislation. Indeed, this is our only hope of completing federal guidance in a timely fashion. The Options for Discussion contains several proposals that seem to be driven by a desire to update various NEPA requirements. However, the updating of the overall NEPA rules and regulations is not called for in TEA-21 and such an update should be separated from the TEA-21 rulemaking process to avoid unnecessary delays in the implementation of the new law.
In short, we believe FHWA and FTA should submit every proposed chance to the litmus test of Congressional intent, being careful not to conflict with or exceed that intent. For example. Congress is clear in its message that planning and environmental processes need to be simplified and streamlined. without weakening our commitment to sound planning and environmental requirements. Proposals considered in the Options for Discussion that make these processes more complex or time-consuming or that make it more difficult to implement transportation improvements where the purpose and need is well established. should be quickly eliminated.
With respect to the provision of TEA-21 that eliminates the Major Investment Studies (MIS) as a separate requirement, we highly recommend that the regulations stay focused on what Congress intended: the elimination of costly, time-consuming and duplicative efforts that provide no additional value. ACEC supports the position of AASHTO on this topic. The NEPA process is an existing comprehensive process that integrates social, economic, and environmental concerns and allows for thoughtful, timely, and responsible public decisions. As stated by AASHTO, this process should be protected. and the MIS provisions that are not already accomplished in other activities should be carried out under the planning activities, not the NEPA activities. The key is to provide sufficient flexibility to promote common sense solutions that are consistent with Congressional intent. A copy of the AASHTO position on BIAS Integration is attached.
No issue will receive more scrutiny from stakeholders and from the Congress than environmental streamlining. Here again, the intent of Congress seems clear: find new ways that demonstrate the benefits of concurrent processing, faster responses and earlier involvement. while maintaining the integrity of the environmental review process. To quote from the USDOT document Listening to America: Implementing TEA-21. ``Doing it right and doing it quickly are not necessarily at odds.'' It is essential for national level agreements to be reached quickly. and for these agreements to serve as guides for regional. or state-by-state. or possibly project level agreements. It is also critical for the process to produce positive changes within the next year. We should avoid steps such as pilot projects. which are not called for hi TEA-21 and whose general benefits and effects would not be known for years.
We believe there needs to be a clear and accepted measurement system to assess the streamlining improvements required by TEA-21. In the absence of such a system. all parties can be expected to use anecdotal evidence that casts their position in the most favorable light. and there will be no way to sift through the conflicting array of claims and counter-claims to draw valid conclusions about our progress. With this in mind. we offer the following specific suggestions for implementing environmental streamlining:
-- Define general goals and measures of effectiveness and provide policy guidance in a national MOU to be finalized within the next few months. Such an MOU; could be used to foster the development of regional, state and project MOUs. which in turn translate goals, policies, and measures of effectiveness into specific performance objectives.
-- Provide an enhanced project scoping process through which a project-specific could be developed including a strengthened Purpose and Need statement development process' project schedule' and early agreements between parties.
-- Gather baseline data as soon as possible on both quantitative and qualitative measures. using survey techniques that stakeholders agree are fair and unbiased. Data should also be gathered on past case studies that key stakeholders agree are models of success. This baseline could then be used for comparison of future findings.
-- From the results of the data collection and surveys, identify success stories (what works) and problem areas (what doesn't work).
-- Establish peer-to-peer teams from success areas to offer guidance and assistance in problem areas.
-- Provide an annual report to stakeholders and to Congress on our progress toward environmental streamlining.
Another important change in TEA-21 allows the use of a single consultant for both environmental and final design work. Fortunately, the legislation is clear and simple on this point. requiring in such cases that a review of the objectivity of the environmental work be performed by the state. It is incumbent upon the state to conduct the review and document the results in a manner consistent with the state's procedures. It is also important that all recipients of federal transportation dollars enjoy the benefits of this more flexible contracting arrangement. This should include transit and toll agencies' authorities and other such units established by the states for the purposes of planning, constructing, or operating transportation systems.
We have the opportunity with TEA-21 to improve the process for delivering transportation projects without jeopardizing environmental policies. The goal is clearly not to diminish the significance of the environmental requirements. but to matte the process work better. This point was underscored by many in the testimony presented to Congress prior to the enactment of TEA-21 as well as in the Department's several outreach sessions. It is also reflected in the position papers recently developed by AASHTO, which the ACEC Transportation Committee has endorsed.
We are hopeful that the Department of Transportation will be in a position. by the first anniversary; of TEA-21, to report to Congress that serious progress is being made on environmental streamlining. For this to occur, however, the environmental agencies and other stakeholders must truly embrace the spirit and intent of the streamlining provisions and work together toward their implementation.
We look forward to continuing to work with the Federal Highway Administration and Federal Transit.Ndministration in developing the important rules and regulations for TEA-21. Please do not hesitate to contact me or Chip Wallace. ACEC's Director of Transportation Programs, if we can be of further assistance to you.
Sincerely,
Howard M. Messner