National Environmental Streamlining Initiatives

Highway and Transit Environmental Streamlining Progress Summary

Report to Congress

February 2002

UNITED STATES
DEPARTMENT OF TRANSPORTATION

This report to Congress is a summary of highway and transit environmental streamlining progress. The Federal Highway Administration prepared the report in cooperation with the Federal Transit Administration.

For more information contact:

U.S. Department of Transportation
Federal Highway Administration
Office of NEPA Facilitation
400 7th Street, SW, Room 3222
Washington, DC 20590
Telephone: (202) 366-2065
Facsimile: (202) 366-7660

Highway and Transit Environmental Streamlining Progress Summary

Results

Streamlining continues to be a priority for this administration. Many streamlining efforts are underway at headquarters and throughout the field offices of Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and environmental review and permitting agencies. Because environmental review is a multidisciplinary, interagency process, the U.S. Department of Transportation (DOT) has been pursuing streamlining through better coordination with project sponsors (usually state or local governments) and with Federal resource agencies. We are seeing results across the board.

• 50 states (100 percent) have adopted or initiated process/procedural related agreements or initiatives for streamlining that clarify, amend, or re-invent the project development process. At least 24 states (48 percent) have focused their process redesign efforts on integrating planning and National Environment Policy Act (NEPA) activities.

• 34 states (68 percent) have agreements that provide state and Federal environmental agency personnel for expediting reviews.

• 29 states (58 percent) have adopted agreements to merge the FHWA NEPA process and the Clean Water Act permitting process administered by the U.S. Army Corps of Engineers (USACE). This eliminates what can be a duplicative process.

• 41 states (82 percent) have some level of delegated authority for historic resources that allows many projects to be processed quickly, freeing up Federal and state resources to focus on complex issues.

• 22 states (44 percent) have initiated tribal consultation Memoranda of Understanding (MOUs) that address new Historic Preservation Act consultation requirements in a streamlined fashion.

• 26 states (52 percent) have context sensitive design initiatives.

Most of the direct and tangible results associated with streamlining are realized at the project level. The results are a culmination of many overlapping and integrated efforts by the relevant FHWA/FTA Division and regional staff working with state Departments of Transportation (state DOT), transit operators, Federal and state resource agencies, and Federal agency headquarters staff.

From 1999 to 2001, the average length of time to process environmental documents for major projects has decreased approximately eight months (from five years and 10 months to five years and two months); the median time decreased by one year (from five and a half years to four and a half years).

FHWA and FTA headquarters support field efforts through technical assistance, information sharing, guidance clarification, and best practices. Coordination of national strategies at headquarters results in more efficient and effective application of NEPA across the board by all of the Federal agencies.

The DOT field offices play a critical role in shaping the national agenda. They are instrumental in helping headquarters shape guidance, compile national performance measures, and assess the nature and extent of suspected problem areas.

The Process

Building Coalitions with Partners and Liaisons with Stakeholders

DOT seeks opportunities to expedite streamlining efforts among Federal agencies and encourages involvement and input from transportation organizations such as American Association of State Highway Transportation Officials (AASHTO), the American Public Transportation Association, the Highway Users Alliance, and the American Road and Transportation Builders Association, environmental groups such as the Environmental Council of States, the Surface Transportation Policy Project, Environmental Defense, the Coalition to Defend NEPA, and others. Outreach to tribal organizations and the National Council of Historic Preservation Officers took place in 2001.

Some initiatives have been specific and directed, such as working with AASHTO on the development of the Center for Environmental Excellence. Others are less formal or occasional, such as participation in discussions or presentations at association meetings, workshops, and panels. One formal FHWA/FTA effort was the convening of a series of Executive Leadership Forums to bring together executives from transportation and environment organizations in and outside of government to share perspectives and explore potential approaches. Having convened one session in 1999, additional Executive Leadership Forums are on the agenda for 2002. The first session held in 1999 led to an examination of the opportunities for delegation as documented in a recently completed National Cooperative Highway Research Program (NCHRP) study, "Improving Processing of Documents and Quality of Environmental Decision-making for Routine Transportation Projects." Documentation of selected state and Federal experiences contributes to best practices and advances the efforts to expedite routine projects. Leadership and visibility among the highest-level Federal officials inspire value-added solutions.

Building communication networks and information coalitions with a full range of interested parties at all levels keeps our streamlining process open and iterative. By relying on this approach, FHWA and FTA advance solutions that have real value, meaning, and-most importantly-practical application at the project level. FHWA/FTA national efforts are strategic, further-reaching, and incremental. If done well, these initiatives will come together in small but meaningful ways at the project level. The national efforts are designed to advance our bottom line-the efficient program delivery of sound projects.

Adopting a New Mindset

DOT believes streamlining is achieved by adhering to one of the central tenets of NEPA: ". . .to create and maintain conditions under which man and nature can exist in productive harmony" (Section 101(a), NEPA, 1969). Reducing delays while maintaining environmental protection underlies the philosophy behind Section 1309 of TEA-21 and is in accord with the fundamental goals of NEPA. So much of the early streamlining debate centered almost exclusively on the goal of expedited reviews. Through trial and error, innovation, testing, and early lessons learned, much of the transportation community has adopted a new way of thinking to get beyond the usual environmental process bottlenecks.

For example, we need strategies that look beyond site-specific replacement of low-value wetlands to reward projects that preserve or enhance high-value wetlands off-site. These are the kinds of solutions that transportation and environmental agencies should strive for without compromising the integrity of their mission or service to their customers. But to get from here to there requires adopting a new mindset. For transportation sponsors this means earning the right to be stewards of the environment on behalf of an environmental agency. For Federal agencies this means accepting a fresh view of Federalism and acknowledging that transportation sponsors can expedite projects in ways that benefit communities and the environment.

The Products

Re-Engineering the Process

FHWA/FTA's advocacy of an open partnership and a coalition-based, information sharing process to achieve streamlining is beginning to pay off. FHWA and FTA have been working through headquarters, field offices, and with other agencies to advance the National MOU through an action plan agreed upon by the DOT and Federal review and permitting agencies.

Federal interagency MOU. In July 1999, DOT entered into an agreement with six Federal agencies on highway and transit streamlining that sets forth the Federal agencies' collective goals for streamlining: reducing delays and protecting the environment. The Federal interagency MOU is provided on the following page.

NATIONAL MEMORANDUM OF UNDERSTANDING July 1999

Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21) calls for a coordinated environmental review process to expedite Federal highway and transit projects. The agencies [1] below agree to streamline environmental review processes in accordance with TEA-21 and other relevant environmental statutes in ways that reinforce our Federal responsibility to protect the environment. To meet this commitment, we agree to:

Reduce Project Delays

• Identify solutions such as programmatic agreements to reduce unnecessary project delays, including delays caused by staffing constraints, and to amend rules and policies where needed without compromising environmental quality.
• Apply the necessary technical and financial resources to identify and resolve issues early, especially on projects that are not typical or have potential to create the most damaging impacts to the environment.
• Direct field organizations to work collaboratively to develop processes that assure the timely, cost-effective development of sound transportation plans and projects.
• Emphasize the use of concurrent review of plans and projects.
• Develop national procedures for dispute resolution and encourage the use of appropriate mechanisms and organizations.
• Provide timely review and constructive comments on transportation proposals focusing additional information requests on information, which is needed to reach an informed decision.
• Support and encourage field offices to explore flexible streamlining opportunities on their own and with state transportation and environmental partners including developing MOUs to lay out mutual expectations, funding agreements in support of streamlining, and concurrent review within cooperatively determined time frames. One example might be pilot projects to investigate new methodologies that lead to a single public interest decision to satisfy multiple agency requirements.
• Establish, with stakeholder input, goals, performance measures, and benchmarks to evaluate transportation and environmental decision-making

Protect and Enhance Environmental Quality

• Work with project sponsors to ensure that they comply fully with all applicable environmental laws, regulations, and policies, and address fully any information needs associated with such statutes by providing complete and high quality information within the relevant timeframes.
• Seek to identify information needs early so the relevant environmental statutes can be addressed fully.
• Recognize effective local or regional coordination processes that are currently underway, build upon and publicize successful practices, and promote creative solutions and innovative methods that reduce economic and environmental costs.

• Assess alternative actions and identify the action that is in the best overall public interest.
• Ensure broad stakeholder involvement, including nontraditional stakeholders, as well as underserved and underrepresented constituencies, and public participation throughout the environmental review process
• We will strive to ensure that transportation projects are protective of and more compatible with the natural and human environment and we commit to continuously improve and streamline the processes used to develop those projects.

Federal interagency committee, action plan, and workshops. An interagency committee meets regularly to discuss coordination and to advance streamlining actions. The table below identifies the action plan developed by the Federal interagency committee. Emphasis is placed on training and providing resources and technical assistance to field staff. FHWA held a national training workshop for all involved Federal agencies in November 2000 in St. Louis, Missouri. Representatives from the White House Council on Environmental Quality (CEQ), state DOTs, and Congressional staff also participated. Participants felt the workshop served to narrow the gap between Federal agency headquarters' and field offices' perceptions and expectations about the Federal role in streamlining.

Interagency training. FHWA is cooperating with each of the resource agencies and other DOT administrations to conduct agency-specific training workshops for field staff. The goal is to advance streamlining by delving into the issues and delays most frequently attributed to individual agencies. These workshops promote uniform practices among agency field staff and serve to clarify and update guidance relevant to streamlining. FHWA developed and conducted an issue-oriented, problem-solving workshop for USACE as part of its efforts to foster the streamlining capabilities of Federal review agencies. The USACE workshop was held in September 2001. Others are planned in 2002 with Fish and Wildlife Service (FWS), National Marine Fisheries Service, Environmental Protection Agency (EPA), and the U.S. Coast Guard.

Programmatic agreements and tools. FHWA and FTA are working with AASHTO and resource agencies to update existing agreements and explore how further use of programmatic agreements can expedite specific regulatory requirements. Such agreements may delegate certain responsibilities to state agencies. Most of the agreements address the historic preservation, wetlands, endangered species, and Section 4(f) issues that were cited as the most common sources of delay. A template with guidance for negotiating a programmatic agreement with the FWS to expedite Endangered Species Act (ESA) reviews has been developed.

Guidance on funding Federal activities that expedite reviews. Working with an interagency group, FHWA has drafted guidance on TEA-21's provision allowing state DOTs to use highway funds to reimburse Federal agencies for activities beyond what is normally required to expedite environmental reviews. FHWA is finalizing guidance that underscores the linkage of such reimbursement arrangements to expedited reviews.

Other guidance issued by DOT:

• FHWA's Prior Concurrence and Legal Sufficiency Memo to the field clarifies which projects must have headquarters' approval of NEPA documents. (October 2001)

• FHWA/U.S. Coast Guard memo regarding streamlining the bridge permitting process. (December 2001)

• FHWA's stewardship oversight memorandum. (September 2001)

• FHWA/FTA Memorandum on Implementing TEA-21 planning provisions. (February 2001)

• FHWA/FTA Revised Guidance for Implementing the March 1999 Circuit Court Decision Affecting Transportation Conformity. (January 2002)

• FTA policy granting proposed New Starts projects pre-award authority for acquisition of property upon the completion of NEPA. (January 2002)

• FTA policy granting proposed New Starts projects pre-award authority to initiate NEPA upon Federal approval of the Statewide Transportation Improvement Program. (January 2002)

FHWA/FTA proposed NEPA and planning rules. In May 2000, FHWA/FTA issued two proposed rules on planning and NEPA. These proposals were intended to promote earlier consideration of the environment during the transportation-planning phase and to thereby streamline the project-level environmental review phase. Highway organizations were highly critical and asserted that the Notices of Proposed Rulemaking (NPRMs) added complexity to the process rather than simplifying it. Environmental organizations were also critical, although for opposing reasons. The NPRMs did not dictate timeframes for other Federal agency actions or a process for arbitration of conflicts due to a lack of DOT authority over other agencies and a concern that "one-size-fits-all" approaches could limit flexibility. Discussions continue on how to proceed.

Institutionalizing Dispute Resolution

Proposed dispute resolution procedures. FHWA has engaged the Institute for Environmental Conflict Resolution (IECR), an independent Federal agency, in cooperation with Federal agencies and state DOTs, to help draft national procedures on dispute resolution and conflict management. These will establish standard operating procedures for the implementation of Section 1309(c) of TEA-21 calling for dispute resolution procedures. The procedures will be finalized in 2002.

Guidance for managing conflict during the project development process. Draft guidance for Federal agencies, prepared by FHWA with IECR, is being finalized. Planned for 2002-2003 is a series of regional workshops convening parties to explore the hands-on application of dispute resolution and conflict management during the environmental review and permitting processes. Dispute resolution and conflict management can significantly reduce the number of unresolved problems that crop up at the end of the process.

Roster of transportation dispute resolution facilitators. Over 40 qualified dispute resolution specialists who can serve as neutral facilitators to expedite problem solving on controversial transportation projects are available to states or project sponsors through the IECR roster program. Qualified individuals are required to have experience with NEPA and transportation projects and be trained dispute specialists. In addition, they have attended environmental streamlining training sponsored by FHWA. FHWA is providing funding to the IECR for roster management. Facilitators enter into contracts with project sponsors on a case-by-case basis.

Measuring Performance

Measuring improvement in environmental streamlining allows us to assess the success of current efforts and to refine strategies and actions when needed. Several national initiatives are underway to study and measure the performance of environmental streamlining:

• Baseline studies have been completed to measure the length of time for routine and complex environmental actions. In 2001, FHWA conducted research on the time it takes to complete a Federal-aid highway or bridge project for use by the public. The results provide a valid and reasonable baseline against which to evaluate future environmental streamlining efforts and to establish target timeframes for reducing delays.

• FHWA is monitoring EPA's ratings of environmental documents for highway projects. EPA is required by law to evaluate Environmental Impact Statements (EIS). The EPA rating reflects EPA staff's judgment of how well the environmental impacts are addressed. The ratings range from Environmentally Unacceptable (EU) to Environmentally Objectionable (EO) to Environmental Concerns (EC) to Lack of Objection (LO). One of FHWA's performance goals is to increase our "grade point" average as reflected by EPA ratings. We believe that this has improved as a result of our streamlining efforts that focus on early coordination

• During the last six years, EPA's ratings of FTA's Draft EISs (DEIS) and Final EISs (FEIS) have averaged approximately 3.6, based on the scale used in the chart below. During this time transit documents received an EPA rating of LO 90 percent of the time and no FTA document received EPA's lowest rating of EU.

• A perception survey, currently underway by the Gallup Organization, is asking transportation and environmental practitioners to assess each other's implementation of streamlining. FHWA will work with other Federal agencies to track performance over time, analyze results, and pinpoint problem areas for management attention.

• In 2002, FHWA is instituting an environmental document tracking system timeframe for Categorical Exclusions (CE), Environmental Assessments (EA), and EISs.

• FTA uses an EIS tracking system to monitor the progress of EISs.

Several Transportation Research Board NCHRP studies also examine streamlining and involve FHWA. In conjunction with AASHTO, panels looked at the length of time it takes to process routine projects, evaluated the implementation of AASHTO streamlining pilot projects, and suggested potential improvements for project development reviews.

Catalyzing Change Through Best Practices

State Initiatives/Pilot projects. DOT is supporting and tracking a number of innovative state initiatives and pilot projects, including:

• A group of proposed projects in response to AASHTO's call for pilots. FHWA is giving technical assistance to the pilot projects, and results will be publicized as national examples.
• A number of high priority state projects. FHWA and FTA are working with a number of states on pilot projects, including Interstate 69 in Texas, U.S. Route 93 in Montana, Interstate 93 in New Hampshire, Interstate 405 in Washington, and Interstate 70 in Colorado.
• Innovative state approaches. FHWA is working with a number of states on innovative approaches, including Florida's integrated transportation decision-making process, Washington's streamlining permitting bill, Ohio's Programmatic Section 4(f), and the Mid-Atlantic Transportation and Environment Streamlining Process Framework, to cite just a few.

These and all states' efforts are catalogued on FHWA's web site (http://www.fhwa.dot.gov/environment/strmlng/index.htm).

Inventory of Best Practices. Along with supporting state initiatives and pilot projects, DOT is also cataloging and sharing best practices across the country.

• DOT has sponsored peer reviews among state DOTs to exchange practices that integrate planning and the environmental review process.

• FHWA maintains and continuously updates its environmental streamlining web site (http://www.fhwa.dot.gov/environment/strmlng/index.htm).

• CD-ROMs of training sessions and workshop notebooks are often distributed to assist those staff not able to attend in person.

• FHWA distributes a monthly "Successes in Streamlining" newsletter to nearly 1,000 customers.

• FHWA's "Re:NEPA" web site. The "Re:NEPA" web site allows for an interactive exchange among interested parties on a number of environmental topics. The latest technical reports, draft guidance, and streamlining works in progress can be found here: (http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/home).

Next Steps

FHWA and FTA will continue to work in partnership with Federal resource agencies and states to expedite environmental reviews and clearances for all surface transportation projects while improving environmental stewardship. Emphasis will continue to be placed on innovation and the maximum use of administrative authority to advance timely and efficient project reviews and partnerships with other Federal executives in order to ensure that environmental commitments are fair, balanced, and respectful of the nation's critical transportation needs, especially those addressing safety, congestion, and mobility.

Initial streamlining efforts lay a foundation for accelerated streamlining results. Executive level leadership, core management, and line supervisors' acceptance of streamlining responsibility among all Federal agencies are essential to reducing delays without compromising environmental agencies' missions. Streamlining can be accelerated by:

• Placing more emphasis on national programmatic approaches and delegation of environmental authority on low-risk activities.

• Encouraging states and Federal agencies to leverage staff and financial resources through administrative and technological efficiencies (e.g., inter-agency guidance, cross-training, common databases, enhanced communication, and information sharing) in order to overcome inconsistent interpretations of requirements.

• Establishing a shared responsibility for achieving streamlining at the Federal and state levels, including the development and evaluation of timeframes for project reviews.

• Fostering distinct Federal agency roles and responsibilities in environmental streamlining by developing strong executive leadership throughout all of the Federal agencies.

In the coming year, DOT environmental streamlining efforts will be focused as described below:

[1] This MOU was signed by seven Federal agencies in July 1999, including DOT, USACE, Department of Interior, Environmental Protection Agency, Department of Commerce, Advisory Council on Historic Preservation, and Department of Agriculture.