Accelerating Planning and Environmental Reviews: Background

Missouri Route 19 Bridge Project

When there’s new infrastructure to be built, it can only help to have the citizens behind the project.

In 1997, shortly after making highway improvements north of the Route 19 Missouri River Bridge due to severe flooding in 1993 and 1995, the Missouri Department of Transportation (MoDOT) began rehabilitating the existing bridge in an effort to address its deficiencies. Local citizens, concerned that the work slated would not completely eliminate the bridge’s structural and operational problems, formed a committee to express support for construction of a new bridge. The efforts of that committee, along with Federal support and the increasing need for a new bridge in that location, led to the proposed action addressed in the environmental impact statement during the late 1990s.

The structural deficiency of the Route 19 Missouri River Bridge was identified as one of the key “need factors” prompting the study. The bridge was also found to be geometrically deficient overall, with negative effects on traffic operations. Further, bicyclists were found to be facing safety problems when they attempted to use the bridge, which was near a recreational trail.

Environmental issues identified included impacts on cultural resources and wildlife, loss of wetlands and flood plain, and business displacement.

The NEPA process for the Route 19 Missouri River Bridge project took 24 months, from notice of intent to record of decision. The bridge assessment deficiencies and resulting low rating, the efforts of the local transportation committee, Federal support, and an increased need for a higher capacity bridge due to local economic growth led to the proposed action presented in the EIS. This project was advanced directly to the NEPA process without extensive advanced planning, because the need for improvement was deemed urgent.

The timetable on the project began with a National Bridge Inventory rating in April 1998, issuance of a notice of intent in May 1998, approval of a draft EIS in February 1999, a public hearing in March 1999, final EIS approval in February 2000, and a record of decision in May 2000.

The project demonstrated that the NEPA process could be expedited by actively pursuing a detailed public-involvement strategy and building local support, and by stimulating effective interagency coordination.

Fast-Tracking Environmental Reviews of Denver’s Transportation Expansion Project (T-REX)

Interstate 25, the major north–south Interstate highway corridor in Colorado, had borne the traffic of a swelling population for over half a century as the Front Range turned from a Denver-based metropolis to a multi-city-spanning megalopolis. The highway needed major reconstruction and expansion to carry its current-day and future traffic, and development in the region pointed to a need for public transportation along the corridor.

The Colorado Department of Transportation, working closely with the Denver area’s public transportation provider—the Regional Transportation District—worked out a reconstruction and new construction plan for 19 miles of the most heavily trafficked corridor on I-25, the area starting in Denver and moving out toward its southern suburbs. The project was dubbed the Transportation Expansion project, or “T-REX,” and it involved a corridor that carried more than 230,000 vehicles a day and connected two of the largest employment centers in the region.

The area affected is predominantly urban and suburban, with little vacant or developable land. In addition to issues of residential or business displacements to do the needed work, there was also a need to address a likelihood of increased noise levels and, in some areas, loss of wetlands or adverse effects on historic sites.

A plan was devised to improve travel time and enhance safety along I-25 and I-225—a major bottleneck south of Denver that connected with I-25. Because the environmental impact statement included plans for new light rail along the corridor, the EIS was jointly sponsored by both FHWA and the Federal Transit Administration (FTA).

The NEPA process for the corridor took 25 months, from notice of intent to record of decision. Previous congestion and major investment studies indicated the need for the project, and those studies helped to identify and refine some of the alternatives, setting the stage for the environmental review process.

A notice of intent was issued in February 1998; a draft EIS was approved in August 1999. The NEPA public hearing on the T-REX project was held in September 1999, and the final EIS on the project was approved in December 1999. The record of decision came in March 2000.

The T-REX project demonstrated that the NEPA process for a complex urban project could be expedited by using previous studies to build momentum for the NEPA process, promoting aggressive public involvement, engaging the EIS consultant in NEPA interagency coordination activities, and co-locating the project team and consultants.

Recommendation: Reform Federal Laws and Regulations

• Allow states to assume SAFETEA-LU delegations of authority without losing their ability to conduct advance right-of-way acquisition and final design with non-Federal funds:

SAFETEA-LU authorized three types of delegations of FHWA’s environmental role:

• Categorical Exclusion (CE) projects;
• Five-state pilot delegation for NEPA and other laws; and
• Five-state pilot delegation for Recreational Trails and Transportation Enhancements projects.

Unfortunately, most states have chosen not to seek delegation authority, because of the SAFETEA-LU requirement for states to waive sovereign immunity and FHWA policy interpretation limiting states’ ability to do advance right-of-way acquisition and final design for delegated projects. The FHWA interpretation is particularly problematic because it concludes that if a state accepts delegation authority, it must give up some flexibility it previously had to use state funds for advance acquisition of right-of-way and for final design work. Specifically, FHWA previously allowed states to acquire right-of-way and conduct design work prior to completion of NEPA, as along as it was done with non-Federal funds and done “at risk.” This “at risk” work has been an important tool for expediting project delivery by starting right-of-way acquisition and design while environmental reviews are being completed. However, FHWA has concluded that if it delegates its NEPA responsibilities to a state, then that state can no longer engage in any “at risk” final design or right-of-way acquisition. This interpretation has made delegation a far less attractive option, and is causing many states to decide not to seek delegation at all. (In fact, one of the five states designated in Section 6005—Ohio—recently decided not to proceed with delegation, in part because of concerns about effects of delegation on Ohio’s ability to conduct “at risk” work prior to completion of the NEPA process.) The Commission should call for removing these obstacles to delegation, either via a policy change by FHWA or by a statutory change.

• Fine-tune SAFETEA-LU environmental process provisions (e.g., extend time period for the five-state pilot environmental delegation program in section 6005; and add language strengthening state ability to use planning products in NEPA process).

In the next transportation reauthorization, Congress should expand upon the streamlining changes in SAFETEA-LU and make some adjustments. For example, the five-state pilot delegation of FHWA’s environmental authority under Section 6005 expires in 2009. This authority should be extended by at least five years to allow adequate time to test and evaluate the delegation (especially in view of the 5+ years typically required to complete an EIS). Other opportunities to improve the value of this pilot delegation through legislative fine-tuning may emerge over the next year. Similarly, as states gain experience with the Section 6002 environmental process changes, they will most likely identify statutory refinements that would enable them to better meet the intent of Section 6002. (For example, problems have already arisen around changes in analytical methodologies used in NEPA, as to whether any methodological change requires a state to go back to the agencies and the public.)

• Reform or eliminate Clean Air Act conformity regulations and statutory provisions based on current and future clean fuels and clean vehicles:
  After decades of EPA regulations to clean vehicle engines and fuels, emissions from highway vehicles have dropped dramatically—far more than in any other sector. More important, as older trucks and cars are continually replaced by clean vehicles and fuels, the pay-off from air quality conformity requirements becomes increasingly negligible. Yet the conformity process is convoluted and ties up MPOs, state DOTs, FHWA, and EPA, all of which could better devote their time to more productive opportunities to improve transportation and the environment. Congress should take a close look at the Clean Air Act conformity requirements, to determine whether they have had a meaningful impact on air quality—or, more importantly, whether they will have a meaningful effect in the future, given how effective EPA’s engine and fuel requirements have been in lowering vehicle emissions to a small fraction of 1960 levels.

• Reconcile 4(f) with NEPA, National Historic Preservation Act, and other environmental laws.
  Under the stringent standards of 4(f) of the DOT Act, there are legions of examples of lengthy delays and higher project costs triggered by the need to avoid privately held historic properties, which the owner later demolishes or allows to fall into ruin. Moreover, for historic resources, 4(f) is duplicative of protections under the National Historic Preservation Act (NHPA). Compliance with the NHPA 106 protections should satisfy the requirements of 4(f) for historic resources. While SAFETEA-LU made modest improvements in 4(f), it remains to be seen whether U.S. DOT’s new, pending 4(f) regulation will make full use of the opportunity provided by Congress. The Commission’s strong support is needed for the adoption of final regulations that truly fulfill the goal of simplifying and streamlining compliance with 4(f). If the rulemaking is unsuccessful, Congress should consider integrating 4(f) under other environmental laws, based on a similar level of protection, rather than retaining a stringent stand-alone 4(f) standard.

• Overhaul Clean Water Act Section 404 wetlands permitting requirements to deal with varying court interpretations and establish a simpler, more pragmatic, timely permitting process.
  The 404 permitting process has become exceedingly burdensome, complex, unpredictable, and time-consuming. The permitting workload causes substantial backlogs in 404 permit processing. Recent Supreme Court decisions have complicated matters, because of split decisions that are forcing the Corps of Engineers to walk an impossible tightrope, exacerbated by shared decision-making authority with EPA. Congress needs to step in and provide for a simpler, more timely and pragmatic permitting process that protects wetlands in a fair and reasonable way.

• Over the next 10 years, comprehensively reform Federal environmental laws to (a) integrate them and eliminate conflicts; (b) entrust more authority to states; (c) introduce flexibility; (d) focus more on meaningful outcomes instead of rigid processes; and (e) replace penalties with incentives:
  Congress should look for opportunities over the long term to modernize and harmonize Federal environmental and planning laws. Most valuable would be replacing “hard” and punitive requirements with incentives and flexibility. Also valuable would be weeding out ineffective requirements and excessively complex requirements with little or no clear pay-off. Finally, as part of this long term comprehensive reform, Congress should enact statutory changes to authorize the delegation of Federal environmental agency roles to the states, most likely to be carried out by state environmental agencies. Currently, there is limited provision for delegation to states under Federal environmental laws (such as under the Clean Water Act, for the 404 permitting program), but most Governors and state legislatures support strong environmental protection, and states have enacted strong environmental laws of their own, equaling or even exceeding Federal environmental laws. States should be entrusted with carrying out Federal environmental laws without detailed step-by-step oversight by a dozen Federal environmental agencies. Federal resource agencies could continue to play a role, focused on review and Quality Assurance.