Home | Accelerating Planning and Environmental Reviews: Background (Continued)

Accelerating Planning and Environmental Reviews: Background (Continued)

 


States have enacted strong environmental laws of their own and want to be entrusted with stewardship responsibilities.

Maryland U.S. 113 Clears NEPA in 15 Months

The road that eventually became U.S. 113, a road that passes through both Delaware and Maryland in the Eastern Shore areas of both states, dates back to 1697 and was once used by a relative handful of Americans. Today, it is a lifeline of commerce and recreation for beachgoers from as far away as New York and New Jersey, traveling to a chain of sought-after beach communities from Lewes, Delaware, south to Chincoteague, Virginia, with all of Maryland’s popular Atlantic Ocean beaches in between.

The Maryland Department of Transportation sought to develop and evaluate alternatives aimed at improving safety conditions and traffic operations along the two-lane portions of U.S. 113, the majority of which is in Maryland. The road had high accident rates and its condition was projected to deteriorate from grades of “C” and “D” during the highest-traffic summer months to a grade of “F” by the year 2020, without operational improvements.

Most of the area surrounding the highway was rural—agricultural land or forest and woodland. It also included several small residential communities.

Working under an expedited schedule, the NEPA process for Maryland’s portion of the U.S. 113 project took 15 months from notice of intent to record of decision. The project followed the streamlined environmental and regulatory process for Maryland. Previous planning studies had identified some of the alternatives and potential impacts, which served as a preview as well as a facilitator for the actual NEPA process.

Potential environmental issues included loss of wetlands, effects on community cohesion, possible impact to an archaeological and historic site, destruction of habitat for listed species, loss of farmlands and secondary or cumulative effects.

A notice of intent was issued in February 1997, a draft EIS was approved in May 1997, the NEPA Public Hearing was held in June 1997, a final EIS was approved in February 1998, and the record of decision on the Maryland project was recorded in May 1998.

Maryland’s U.S. 113 Planning Study showed that, despite significant environmental concerns and agency resistance early in the planning efforts, the National Environmental Policy Act process can be completed in a timely manner by implementing a streamlined NEPA process, building on strong local public support, and initiating NEPA-type studies outside the official NEPA process.

Achieving Partnership Between Resource Agencies and FHWA

Historically, there has been a virtual chasm between transportation agencies and environmental resource agencies, in their missions, culture, and work practices. For example, resource agency roles have typically been regulatory, whereas transportation agency roles have focused on delivering projects. This divide has been the source of significant delay, as resource agency staff inject unrealistic requirements, introduce new requirements late in the process, or do not have a sense of urgency to move the review process forward. Although there has been meaningful improvement over the past 5–7 years, and transportation agencies have seen an increased willingness by resource agencies to partner, there are still issues and room for improvement.


Programmatic agreements are an effective way to eliminate project-by-project review and streamline the environmental review process. Partnering between the DOTs and the U.S. Fish and Wildlife Service has been effective in protecting endangered species.

Inadequate staffing at resource agencies is an acute problem. Particularly lacking have been resource agency staff to coordinate with state DOTs and FHWA in early planning, which is one of the most promising areas to reduce conflict and streamline the process. Many resource agencies assert that while workloads escalate, their staffing numbers decline, because of cuts imposed by Congress and the Executive Branch. In TEA-21, Congress allowed states to provide relief to resource agencies by paying for positions in resource agencies. However, state funding of resource agency positions does not meet all the needs in these agencies and it comes at a cost to often beleaguered transportation agencies.

Certainly, there are many outstanding examples of resource agency staff who have been excellent partners and worked hard to help state DOTs advance projects that are good for transportation and the environment.

Programmatic Agreements Make a Major Contribution

One example of successful partnering is in the development of programmatic agreements (PAs). PAs are a major contribution to improving and streamlining the environmental process. Programmatic agreements are developed by states through negotiations with FHWA and resource agencies, usually resulting in written agreements that spell out broad categories of projects which can be advanced under pre-agreed conditions, with little or no need for individualized reviews. PAs can involve a single environmental law and its administering agency, or they can be multi-party, involving several laws and agencies. PAs are win–wins for everyone, as they reduce workload for both transportation and resource agencies, while protecting the environment and speeding up project delivery. For example, Ohio DOT (ODOT) and the US Fish & Wildlife Service (FWS) finalized a programmatic agreement (PA) for the Indiana bat. The Indiana bat is an endangered species in 26 states, including Ohio. Prior to the PA, ODOT had been consulting with FWS on each individual project in Ohio, encountering increased FWS scrutiny and spending large amounts of time and money analyzing impacts for individual projects and addressing concerns raised by FWS. The PA eliminates most project-by-project reviews and provides a streamlined review process to address impacts to the Indiana bat for all of ODOT’s road projects. The PA allows resources to be invested in efforts that will assist in the recovery of the species. ODOT expects to see substantial cost savings from this agreement.

However, there are also some staff and resource agency units that are ambivalent to highway projects, or are so focused on their agency mission that they inject unrealistic requirements, introduce new requirements late in the process, fail to attend key meetings, and raise the bar on state DOTs with little or no warning. An example is a recent Interstate highway project in New England where an environmental agency held up an EIS, insisting that the state DOT not only adopt new practices to control salt runoff on both the existing Interstate lanes and the planned additional lanes —but also offset the salt runoff from private and municipal parking lots which were in place long before the highway project at issue. In other cases, resource agencies or environmental advocacy groups demanded excessive purchase of habitat or wetlands, well beyond the impacts of the project. Often the state DOT is seen as “deep pockets”—yet often the state realizes the cost of project delays will be so high that it will capitulate rather than prolong negotiations.

Ultimately, resource agencies and transportation agencies need to be strong partners in advancing projects that are good for the environment and good for transportation. Measures of a successful partnership would be increased programmatic approaches and moving from planning to implementation more quickly. Another measure would be DOTs no longer having to pay for liaisons to resource agencies due to a work load reduction from streamlined processes.

FHWA has also experienced workload increases and staffing reductions. Several state DOTs have identified short staffing in FHWA Divisions as a problem, to the extent of seeking to hire and pay for staff for FHWA Divisions. Many state DOTs would like to see FHWA be more assertive in addressing issues raised by resource agencies and in gaining resource agency commitment to meet schedules, attend meetings, and support flexible approaches, such as programmatic agreements.

Both FHWA and resource agencies have an opportunity to help state DOTs streamline by using transportation planning products at the start of the NEPA process and developing programmatic agreements rather than conducting project-by-project reviews. All too often, transportation planning has been conducted independently of the NEPA process, which means that much of the work done in planning is revisited in project development/environmental reviews. State DOTs and FHWA are changing this, by strengthening planning so that it can frame project purpose and need, project alternatives, and information on indirect and cumulative impacts—and then carrying this information forward into the NEPA process. State DOTs would like to see a strong commitment by both FHWA and resource agencies to support these approaches and truly stand behind planning products as a starting point for NEPA.

Recommendations: Encourage FHWA and Resource Agencies to Intensify Streamlining Efforts

  • Obtain FHWA and resource agency commitment to use planning products in NEPA, and include supportive language in the next reauthorization cycle;

  • Increase Congressional oversight of resource agency streamlining progress (e.g., hold hearings, convene meetings with resource agency staff, request information from resource agencies on timeliness, etc.);

  • Request resource agencies to commit increased staff to streamlining efforts;

  • Request resource agencies to commit staff to engage actively in planning partnerships with states;

  • Request resource agencies to fully support Programmatic Agreements;

  • Ensure that FHWA field staff take a stronger role in managing environmental process;

  • Ensure that all EISs have schedules and that schedules are met, as required by SAFETEA-LU 6002;

  • Ensure that FHWA elevates disputes promptly, for higher level resolution; and

  • Endorse the use of the Federal “Eco-Logical” handbook, as a source of flexible, effective approaches to providing environmental mitigation and enhancement that can streamline environmental reviews and permitting.

Earmarking Creates Uncertainty

One of the major challenges to timely project delivery is the growing gap between transportation needs and transportation revenues. The problem is exacerbated by the growing use of Congressional earmarks and rescissions.

As the funding gap widens, it becomes harder to reach agreement on the list of projects to be programmed in STIPs and TIPs. Local officials, state legislators, project advocates, and others compete, apply pressure, and negotiate to get “their” projects in plans, STIPs, and TIPs. These uncertainties and conflicts slow down the planning process.

Earmarks exacerbate the problem, because many earmarks are not priorities in the state/local transportation planning process, so they are additive to the funding dilemma as well as to the planning and environment workload. Worse yet, the vast majority of earmarks provide only a small amount of the total cost of the project, forcing states to either delay higher priority projects, not program the earmark at all, put the burden on local governments to come up with the remainder of the funding, or, as is common, spend the earmark on planning and environmental studies with little chance of the project advancing.

Recommendation: Eliminate Earmarking

Elimination of earmarking would knock out the projects which did not rise to the top of the state/local planning process and which contribute heavily to delays.

Common Sense Needed in Addressing Indirect and Cumulative Impacts

Under NEPA, the Endangered Species Act, and the Clean Water Act, states must analyze indirect and cumulative impacts (ICI) for transportation projects. In addition, resource agencies have authority to impose conditions on their permits and project concurrences and require states to mitigate for ICI (even for ICI associated with non-transportation activities).

This presents two major challenges that are a growing source of delay. First, there are no clear parameters for how much ICI analysis is needed—how far out in time and how far ranging in geography; this results in a growing number of stalemates and delays as transportation and resource agencies disagree on the extent of analysis required. Second, there is no clear Federal guidance on a “reasonable” level of mitigation, which also results in a growing number of stalemates and delays as transportation and resource agencies disagree over mitigation responsibility. Additional time is required to resolve these disputes and to carry out the level of analysis that is finally agreed upon. Further, delays may ensue when a state acquiesces to ICI mitigation, which often requires the cooperation of third parties and may even entail land use commitments.

Recommendation: Develop Better Guidance on ICI

  • Request FHWA, CEQ, and other Federal agencies to adopt clear, reasonable parameters for ICI analysis; and

  • Request FHWA, CEQ, and other Federal agencies to establish reasonable, clear parameters for ICI mitigation responsibility.

To reduce the delays associated with ICI, the Federal government should establish clear parameters for indirect and cumulative impacts analysis and also should establish reasonable parameters for mitigation of indirect and cumulative impacts. CEQ is probably in the best position to do this, focusing on reasonable parameters for transportation projects and involving both FHWA and the resource agencies in developing parameters that all agree to follow.

Global Climate Change May Spawn New Regulation

Global Climate Change (GCC) could soon become a significant factor in our social, political, and environmental life and, unless addressed with care, could potentially add to transportation project delays. Federal and state legislation to reduce greenhouse gases (GHG), including reductions from the transportation sector, appears imminent. Some states have already acted, and amendments are now pending in Congress. One opportunity to reduce GHG appears to be through changes in transportation engines and fuels. This would mirror the experience under the Clean Air Act, where improvements in vehicle fuel and engines have resulted in major emission reductions.

Reducing GHG by reducing highway VMT is a much greater challenge, and unlikely to be successful unless Congress and the public support high levels of road pricing and/or strict land use controls to create the density needed for high levels of transit and carpooling. Absent such measures, new legislative requirements on states to plan/program based on GHG are unlikely to be effective, but would add to the plethora of Federal requirements states must navigate to deliver projects.

Recommendation: Adopt Reasonable, Effective Federal Policies on Global Climate Change

  • Focus Federal statutory and policy changes on high payoff GCC strategies for transportation, especially vehicle and fuel improvements;

  • Support funding for increased research on effective GCC strategies for transportation agencies and funding for the adaptation of transportation infrastructure to respond to changes in climate, sea level, etc.; and

  • Refrain from piling on unproductive GCC requirements that increase workload with little pay-off.

As Congress, the Executive Branch, and states adopt laws and policies to reduce GHG emissions, they should refrain from simply piling on more requirements, and especially refrain from repeating the mistakes of the Clean Air Act conformity process. Instead of a complex, ineffective numbers process, Congress and others should seek to establish incentives and be guided by realistic estimates of potential GHG reduction strategies. Above all, it is unrealistic and unproductive to expect state DOTs to reduce VMT unless Congress and the public will support hefty road pricing and sweeping controls of land use. Recognizing these limitations, Congress could help state DOTs reduce GHG emissions by funding research to identify innovative approaches to GHG reduction, such as maximum safe use of highway rights-of-way for trees and other green vegetation, environmentally friendly pavements, and maintenance and construction practices that minimize GHG.


Relocation of utility lines is one of the top factors leading to transportation project delays during the detailed design and construction phase.

 

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