Statement of Thomas Warne,
Utah Department of Transportation, on behalf of American Association of State Highway and Transportation Officials (AASHTO)

Mr. Chairman and Members of the Committee, my name is Thomas Warne. I am Executive Director of the Utah Department of Transportation and President of the American Association of State Highway and Transportation Officials (AASHTO). I am here today to testify on behalf of AASHTO, and want to thank you for your leadership in holding this oversight hearing to address the U.S. Department of Transportation's proposed rule implementing the provisions of the Transportation Equity Act for the 21st Century (TEA-21).

Mr. Chairman, I want to begin by thanking you for your responsiveness in crafting a reauthorization bill that addressed our concerns about the unnecessary and intolerable delays in getting projects through the planning, environmental and permitting processes and into construction. Earlier this year the U.S. Federal Highway Administration identified 23 recent and pending environmental statutes, regulations and executive orders that have been added to our regulatory burden since TEA-21's enactment. Recognizing the challenges this presents to transportation project delivery, in TEA-21 you provided some useful tools to give the states additional flexibility to streamline the planning and project development process.

It has now been more than two years since TEA-21's enactment and we, as you, have been awaiting guidance to implement TEA-21's streamlining provisions. On May 25, 2000, the U.S. Department of Transportation (U.S. DOT) issued its proposed planning and environmental regulations. We are dismayed and disappointed with the results: the proposed rules are completely at odds with the planning and environmental review process reforms Congress intended to be implemented. Rather than reducing delays, costs and unnecessary duplication of effort, the proposed rules do just the opposite. We see complex and burdensome new requirements for data collection, analysis, and reporting as well as new procedural and policy hurdles to be cleared.

Error! Main Document Only.Mr. Chairman, the bottom line is that the proposed rules will not fundamentally reform and streamline the planning and project development process as Congress intended; rather, the proposed rules could add years to the process, significantly increase costs, and could cause some projects to simply be abandoned.

We feel so strongly about the problems with this regulation that the AASHTO Board of Directors passed a resolution asking for your intervention and clarification during these hearings, to return the agencies to the original course you had set in TEA-21. We also urged that the regulations be substantially rewritten and put out for a new round of public review and comment.

Let me provide you with some examples of our concerns.

Major Investment Studies. In Section 1308 of TEA-21, the Congress directed the U.S. Secretary of Transportation "to eliminate the major investment study as a separate requirement, and promulgate regulations to integrate such requirement, as appropriate, as part of the analysis required to be undertaken under NEPA. The scope of the applicability of such regulations shall be no broader than the scope of such section." The existing major investment study (MIS) regulations apply only to major investments and regionally significant projects.

However, the proposed rules replace the major investment study (MIS) with an even broader mandate that applies to all projects in metropolitan areas, regardless of size, scope or cost. This clearly and directly violates the directions of Congress explicitly stated in TEA-21.

Perhaps more significant is the fact that this component of the rule does not treat the fundamental flaw of the MIS as originally conceived and implemented -- that is, that the results of even the most rigorous planning studies are rarely given any significant weight in the NEPA process. Therefore, instead of reducing the total amount of time needed to make a decision, the process ends up taking longer and public confidence in the relevance and reliability of planning-level decisions is undermined.

AASHTO believes that the way to make real progress toward curing the defects of the MIS is to provide incentives for the development of an optional process that actually delivers on the promise of the MIS -- that is, a process capable of producing planning-level decisions that are consistently accepted as the starting point for NEPA studies.

Consulting Local Governments. In making changes to the transportation project planning process in TEA-21, Congress kept in place the institutional relationships that are currently involved in developing transportation projects. Recognizing the diversity among the states, Congress chose not to disrupt existing relationships with a one-size-fits-all mandate, but rather to let the states decide how best to structure their consultation processes. Congress simply said that states must document their processes, but explicitly required no U.S. DOT review and approval.

In its proposed rule, U.S. DOT made a number of changes that taken together will alter well-established existing institutional relationships and arrangements in the statewide planning process. For example, the proposed rule changes the "consultation" procedures and participants in a way that significantly expands the manner in which states and MPOs must consult with other parties. This becomes especially problematic because the proposed rule gives U.S. DOT the power to review and veto the States' consultation procedures when making their planning finding called for in  1410.222 (b).

AASHTO recommends that existing definitions or new statutory definitions remain in place.

Title VI and Environmental Justice. AASHTO members strongly support efforts to prevent discrimination and to promote fairness in transportation decision-making. Our members recognize the importance of strengthening the public involvement element of the transportation planning process, with particular emphasis on providing opportunities for involvement by low-income groups, minorities, and others that have traditionally been under-represented in the planning process. For this reason, AASHTO members are working on a variety of initiatives to increase opportunities for public participation in the planning process, and will continue to do so regardless of the outcome of the proposed rules.

Unfortunately, AASHTO members have significant reservations about the requirements included in the U.S. DOT's proposed rule that would weave together Title VI requirements and Executive Order 12898, which guides federal agencies on Environmental Justice (EJ). This weaving together expands the legal standard for demonstrating compliance with Title VI under which the states and MPOs can only certify Title VI compliance by showing that they comply with the executive order.

The EJ executive order extends beyond the well-established concept of non-discrimination, introducing the concept of disproportionate benefits and burdens. Under the proposed rule, states would have to show that the impacts and benefits of the transportation system are distributed proportionally across the entire state or metropolitan area. Unfortunately, it may prove to be virtually impossible to define even the basic concepts of "proportionality," "benefits," "burdens," and "reduction" across large population groups, geographic areas, and time periods in any meaningful way.

We believe that this new proportionality test is conceptually unworkable; would impose enormous new data collection and analysis requirements; and would expose the states and MPOs to major new legal risks.

AASHTO will urge the FHWA and FTA to maintain the existing regulations relating to Title VI compliance, while addressing environmental justice issues through guidance materials. If this recommendation is not followed, AASHTO will recommend that the regulations be revised to establish clear, reasonable, consistent standards for data gathering and analysis. In addition, the regulations should be clarified so that they in no way expand the States' or MPOs' legal obligations, or undermine in any way the existing legal protections for States and MPOs.

Expediting the NEPA Process for Large, Complex Projects. There has been considerable discussion about the percentage of all projects that represent the largest and most controversial projects, and the range of time frames for projects requiring an EIS. We appreciate U.S. DOT's efforts to begin tracking this baseline information. However, the fact remains that we can and should do more to reduce the time it takes to deliver projects. This was certainly the clear and unmistakable message that Congress sent in enacting TEA-21.

In Section 1309 of TEA-21, Congress directs the U.S. DOT and other federal agencies to develop a "coordinated review process" that integrates all of the federal environmental review requirements for transportation projects. Section 1309(b)(2) requires U.S. DOT and other federal agencies to "jointly establish time periods for review" or enter into an agreement to establish such time for review with respect to a class of project."

Unfortunately, U.S. DOT's proposed rule simply fails to incorporate key elements of the "coordinated review process" mandated in TEA-21. There is no mention of deadlines for submission of agency comments; there is no mention of deadlines for dispute resolution; and no mention of U.S. DOT's ability to "close the record."

In addition, the proposed rule imposes new requirements for preparing an EIS. For example, the requirement to consider alternatives to avoid, minimize and mitigate impacts would be expanded to require consideration of enhancements. And equally detailed engineering and environmental analyses would be required of all alternatives. The net result will be to increase the size and complexity of every EIS.

AASHTO recommends that the regulation acknowledge and include the statutorily mandated elements of the coordinated review process, and that changes are made to reduce -- not increase -- the size and complexity of EISs.

Expediting the NEPA Process for Small, Non-Controversial Projects. The vast majority of federal-aid projects are uncontroversial and require limited review, usually in the form of a categorical exclusion (CE) or an environmental assessment (EA). Expediting the approval of these projects has attracted wide support, from transportation agencies and public interest groups alike.

There are several new provisions in the NPRM that will expedite the approval of small and uncontroversial projects. These include the use of programmatic approvals and allowing States to obtain U.S. DOT approval of alternative procedures.

However, several new requirements proposed in the rule will not prove helpful. For example, extending the TEA-21 mandated "coordinated review process" for EISs to CEs and EAs will involve a series of new consultation and documentation requirements. We believe that the process is not well suited for CEs and EAs, and more appropriately, should be limited to larger, complex projects that require an EIS.

In addition, there are several new notice and reporting requirements that collectively impose a substantial burden on the use of CEs, further complicating a process that is intended to be the simplest of all procedures for complying with NEPA. These will substantially increase the paperwork burden, given that many states have literally hundreds of CEs approved each year.

Overall, I think it is safe to say that states would prefer the current system remain in place for CEs and EAs rather than what has been proposed by the DOT. AASHTO is recommending that the new requirements be substantially reduced, and that steps be taken to strengthen, not reduce, the streamlining that currently exists.

Section 4(f) Requirements Regarding Historical Sites. In issuing its final rule, we hope that the U.S. DOT does not miss a golden opportunity to reform a process that has been a substantial burden to states -- the Section 4(f) review for projects that abut historical properties.

Planning for projects that involve historical sites are regulated under Section 4(f). It has been consistently cited by states as a major source of burdensome, unnecessary paperwork, and it also delays environmental reviews for transportation projects. Often, it adopts an "avoid at all costs" mentality, under which any impact on any resource must be avoided no matter the significance of the resource or the size of the impact. In some cases, this attitude has served not only to slow the process down and increase costs; it stands in the way of making sound, balanced transportation decisions.

Reformation of Section 4(f) is urgently needed and should be a top priority for the Department of Transportation. The proposed rule does invite suggestions for modifications to the program, which we have prepared and will be presenting to U.S. DOT as part of our comments on the proposed rule. AASHTO strongly recommends that the Section 4(f) regulations be comprehensively revised as an integral part of the overall streamlining effort. If necessary, this can begin with incremental improvements to the existing 4(f) regulations. However, a comprehensive, inclusive, high-priority effort aimed at fundamentally reforming the regulations should be initiated soon.

Conclusion. Mr. Chairman, the bottom line is that the result of the proposed rules will be a more burdensome, costly and time-consuming planning and project development process. For example, we learned from the Tucson, Arizona MPO that out of the 300 projects per year they plan and program, no MISs have been done. Under this rule, they would be required to conduct MISs on all three hundred.

Similarly, neither Montana DOT nor its three MPOs have ever prepared an MIS. Under the proposed rules, three years would be added to the planning and project development process, costs would increase by $5 million - $ 7 million, and 5 additional staff would be needed.

Based on FHWA's 1998 data on environmental impact statements, 84 percent required from four to ten years to complete the process. Completing sign off on Corps of Engineers wetlands permits, Section 4(f) historic review and endangered species review takes years longer. We believe these regulations would only worsen that record.

Mr. Chairman, this is just not streamlining. Therefore, we believe that the proposed rules need to be substantially modified and recommend, therefore, that modified rules be reissued for further public review and comment.

AASHTO stands ready to work with this Committee and the Administration to implement a common sense approach to reform of the current project delivery process. At the same time, we pledge to maintain our commitment to meeting transportation mobility needs while protecting the natural environment and the social fabric of our communities.

Thank you for the opportunity to testify. I am prepared to answer any questions you or the Members of this Committee may have.