Order Code RL32032
CRS Report for Congress
Received through the CRS Web
Streamlining Environmental Reviews of
Highway and Transit Projects: Analysis of
SAFETEA and Recent Legislative Activities
Updated October 1, 2004
Linda G. Luther
Environmental Policy Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

Streamlining Environmental Reviews
of Highway and Transit Projects:
Analysis of SAFETEA and Recent Legislative Activities
Summary
Before final design activities, property acquisition, or construction for a
federally funded surface transportation project can proceed, the Department of
Transportation (DOT) is required by law to comply with environmental review
provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321, et
seq.). In addition, any surface transportation project will potentially require
compliance with a variety of federal, state, and local environmental laws, rules, and
regulations, in turn requiring the cooperation of federal, state, and local agencies.
Some Members of Congress have expressed concerns that the interagency
coordination required to complete the environmental review process for large,
complex transportation projects can lead to project delays. To address this concern,
“Environmental Streamlining” provisions were included in legislation that
reauthorized federal surface transportation programs for FY1998-2003 in the
Transportation Equity Act for the 21st Century (TEA-21; P.L. 105-178). Those
streamlining provisions required DOT to implement a “coordinated environmental
review process” to encourage full and early participation of all agencies required to
participate in determining the environmental impacts of certain highway projects.
Legislation to reauthorize surface transportation programs for FY2004-2009
passed in both the House and Senate included further provisions intended to
streamline the environmental review process. On February 12, 2004, the Senate
approved the Safe, Accountable, Flexible, and Efficient Transportation Equity Act
of 2004 (SAFETEA; S. 1072). On April 2, 2004, the House passed the
Transportation Equity Act: A Legacy for Users (TEA-LU; H.R. 3550). Elements
related to the environmental review process common to each bill include the
designation of DOT as the “lead agency” in the environmental review process; the
designation of authority to the lead agency to define a project’s purpose and need,
and to determine the range of alternatives to be considered; the creation of a dispute
resolution process to address issues of concern between agencies; and amendments
to current statutory requirements to potentially allow for the use of certain public
lands or historic sites for transportation projects.
The Senate bill would authorize states to assume federal authority to determine
if certain projects could be categorically excluded from the more onerous
requirements of the NEPA process. It would also establish a “surface transportation
project delivery pilot program” that could delegate additional federal environmental
review responsibilities to no more than five states, including Oklahoma. The House
bill would establish a 90-day statute of limitations on final agency actions and set
comment deadlines applicable to agencies and the public.
This report will be updated as events warrant. For more information on issues
regarding the environmental review process, see CRS Report RL32024, Background
on NEPA Implementation for Highway Projects: Streamlining the Process
.

Contents
Environmental Review Requirements: Current Status . . . . . . . . . . . . . . . . . 2
The Environmental Review Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Interagency Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Project “Purpose and Need” and Alternatives . . . . . . . . . . . . . . . . . . . . 4
Designation of Categorical Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . 5
Requirements Applicable to Parks, Refuges, and Historic Sites . . . . . . 6
Streamlining Environmental Reviews Under TEA-21 . . . . . . . . . . . . . . . . . 7
Overview of Provisions of the Administration’s Bill . . . . . . . . . . . . . . . . . . 8
Current Legislative Efforts to Expedite Project Delivery . . . . . . . . . . . . . . . 9
Establishment of a New Environmental Review Process . . . . . . . . . . . 9
Delineation of Authority of the Lead Agency . . . . . . . . . . . . . . . . . . . 10
Delegation of Authority to State DOTs . . . . . . . . . . . . . . . . . . . . . . . . 11
Amendments to Section 4(f) Provisions . . . . . . . . . . . . . . . . . . . . . . . 12
Establishment of Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pilot Program for States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Requirement to Promulgate Regulations . . . . . . . . . . . . . . . . . . . . . . . 14

Streamlining Environmental Reviews of
Highway and Transit Projects: Analysis of
SAFETEA and Recent Legislative Activities
In 1998, Congress passed the Transportation Equity Act for the 21st Century
(TEA-21, P.L. 105-178) that reauthorized federal surface transportation programs for
FY1998-2003. During the reauthorization process, some state transportation
departments and transportation construction organizations reported to Congress that
the process required to obtain various federal, state, and local environmental
approvals and permits, often needed for major highway projects, was sometimes
inefficiently implemented and overly time-consuming. In particular, stakeholders
expressed concern about the lack of effective interagency cooperation when multiple
federal or state agencies were required to participate in a project. Congress addressed
these concerns by including “Environmental Streamlining” provisions in TEA-21.
Although not defined in statute, FHWA defines environmental streamlining as
the timely delivery of federally funded transportation projects, while protecting and
enhancing the environment. Because major transportation projects may be affected
by dozens of federal, state, and local environmental requirements, administered by
multiple agencies, improved interagency cooperation was identified by Congress as
a critical element to the success of environmental streamlining. The streamlining
provisions of TEA-21 required the Department of Transportation (DOT) to develop
and implement a “coordinated environmental review process” for highway projects
that do or may have a significant impact on the environment (approximately 9% of
all highway projects are placed in these categories). This coordinated review process
encourages full and early participation by all relevant federal and state agencies
required to participate in a highway project.
Since the passage of TEA-21, numerous administrative activities have been
undertaken to facilitate streamlining. However, regulations to implement the
streamlining provisions of TEA-21 have not been promulgated. Some Members of
Congress have expressed the need for further legislation to expedite the
environmental review process required of highway construction and transit projects.
As a result, legislation to reauthorize surface transportation programs for FY2004-
2009, passed in both the House (H.R. 3550) and Senate (S. 1072), includes
provisions intended to further streamline the environmental review process.
TEA-21 was to expire on September 30, 2003. Congress has passed a series of
extension bills to continue funding for federal highway and transit programs at
FY2003 levels, while work proceeds on a final reauthorization bill. The most recent
extension (H.R. 5183) extended funding for surface transportation programs until
May 31, 2005.

CRS-2
Environmental Review Requirements: Current Status
Before final design, property acquisition, or construction on a highway or transit
project can proceed, the Federal Highway Administration (FHWA) and the Federal
Transit Administration (FTA) must demonstrate compliance with all applicable state
and federal legal requirements regarding the environment, including the National
Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). Discussed below
are selected elements of the environmental review process relevant to the current
debate regarding transportation reauthorization legislation. (For more detailed
information about the NEPA process, see CRS Report RL32024, Background on
NEPA Implementation for Highway Projects: Streamlining the Process
.)
The Environmental Review Process. The “environmental review
process” generally refers to the procedures required to comply with NEPA, but may
also refer to the process for compliance with any other environmental law applicable
to a given transportation project. NEPA requires the preparation of an environmental
impact statement (EIS) for all major federal actions “significantly” affecting the
environment. An EIS is a full disclosure document that provides a description of the
proposed project, and the existing environment, as well as analysis of the anticipated
beneficial and adverse environmental effects of all reasonable alternatives.
Preparation is done in two stages, resulting in a draft and final EIS.
Projects for which it is not initially clear whether impacts will be significant
require the preparation of an environmental assessment (EA). If it is determined, at
any time during the assessment, that a project’s impacts will be significant, an EIS
must be prepared. However, if the EA determines that the project creates no
significant environmental impact, a Finding of No Significant Impact (FONSI) will
be issued by DOT. The FONSI must briefly present the reasons why the project will
not have a significant effect on the environment. Projects requiring an EA, and a
subsequent FONSI, accounted for approximately 6% of FHWA-funded highway
projects (representing approximately 15% of the total federal funds) in FY2001.1
According to FHWA, in FY2001, approximately 3% of all FHWA-funded highway
projects required an EIS. Those projects accounted for just under 9% of the $17.6
billion in federal funding distributed to states for highway projects in FY2001.2
The Council on Environmental Quality (CEQ), in the Executive Office of the
President, promulgated regulations specifying NEPA compliance procedures
applicable to all federal agencies.3 At CEQ’s direction, DOT promulgated its own
regulations governing the preparation of EISs and related environmental
documentation required for FHWA and FTA projects.4 In addition to formal
regulations, DOT has issued a variety of guidance documents and technical
1 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects
, GAO-03-534, May 23, 2003, pp 3-4.
2 Ibid.
3 40 C.F.R. §§ 1500-1508
4 40 C.F.R. § 771; final rule at 53 Federal Register 32646.

CRS-3
advisories to assist decision makers in completing the NEPA process for
transportation projects.5
NEPA compliance fits into the overall project delivery process as a subset of
one or more of the following four major elements generally considered to be part of
the full transportation project delivery process: preliminary engineering, final or
construction engineering, right-of-way acquisition, and construction. Any delays in
completion of the NEPA process could also impact upon the cost of project delivery
if the delays are extensive enough for inflationary cost increases to result.
Interagency Cooperation. Projects requiring NEPA documentation involve
the participation of a “lead agency” and “cooperating agencies.” The lead agency is
defined in CEQ regulations as the federal agency that has taken responsibility for
preparing the NEPA documentation.6 For federally funded highway and transit
projects, the lead agency will usually be DOT (specifically FHWA or FTA). The
project applicant, such as state DOTs, will likely participate in the NEPA process as
a joint lead agency. The project applicant is required to initially develop substantive
portions of the environmental document, while DOT will be responsible for its scope
and content.7
DOT requires that the draft and final EIS demonstrate that appropriate
comments and coordination were solicited from relevant federal, state, and local
cooperating agencies. Cooperating agencies (also referred to sometimes as
“participating” agencies) required to provide input during the environmental review
process are those that are obligated to provide comments within their agency’s
jurisdiction, expertise, or authority. This means that an agency with jurisdiction over
or expertise regarding any identified environmental consequence anticipated from a
project is required to provide DOT with the appropriate input. For example, if
historical and archeological preservation consequences are identified, the Advisory
Council on Historic Preservation or the state historic preservation officer will likely
be included as a cooperating agency during the environmental review process. If
farmland impacts are identified, the EIS should summarize the results of comments
and analyses from the U.S. Department of Agriculture (USDA) and, as appropriate,
state and local agriculture agencies. If impacts to wetlands are identified, the U.S.
Army Corps of Engineers may need to issue a permit before a project may proceed.
For any given transportation project, compliance with a wide variety of
legislative and regulatory requirements, enforceable by multiple agencies, may be
required. DOT regulations require that the final EIS or the FONSI document
5 The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project
Development Process,” which includes information regarding FHWA’s environmental
policy, FHWA Technical Advisories, and a variety of guidance materials to facilitate
compliance with NEPA at all stages of the process. The site is accessible at
[http://environment.fhwa.dot.gov/projdev/index.htm] (as of April 15, 2004). For FTA,
information regarding NEPA compliance is available on the agency’s Environmental
website at [http://www.fta.dot.gov/1243_ENG_HTML.htm] (as of April 15, 2004).
6 40 C.F.R. § 1508.16
7 23 C.F.R. § 771.109(c)

CRS-4
compliance with all applicable environmental laws, executive orders, and other
related requirements.8 It is DOT policy that compliance with all applicable
environmental requirements be coordinated under the “NEPA umbrella.” This means
that, for any given transportation project, any study, review, or consultation required
by law, that is related to the environment, should be conducted within the framework
of the NEPA process.
Depending upon the complexity of the project or resources impacted, a
significant number of environmental requirements may be applicable. According to
FHWA, legal requirements frequently applicable to highway projects are:
! Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.),
! National Historic Preservation Act (16 U.S.C. 460 et seq.),
! Clean Water Act (33 U.S.C. 1251 et seq.), and
! “Section 4(f)”of the Department of Transportation Act of 1966 (40 U.S.C.
303) (see “Requirements Applicable to Parks, Refuges, and Historic Sites”
section, below) .
For the requirements listed above, the U.S. Fish and Wildlife Service, the
Advisory Council on Historic Preservation, the U.S. Army Corps of Engineers, or the
Environmental Protection Agency (EPA) may be required to participate in the NEPA
process as a cooperating agency. That participation may take the form of providing
comments on DOT documentation, performing scientific analysis, issuing permits,
or providing an assessment of project impacts, to name a few.
The role of a cooperating agency is frequently set out in a memorandum of
agreement with the lead agency. That agreement may involve the cooperating agency
drafting certain portions of the EIS that relate to its jurisdiction or expertise. For
example, if a highway project has the potential to impact prime farmland, USDA may
agree to provide FHWA with an analysis of those impacts.
Project “Purpose and Need” and Alternatives. As required under both
CEQ and DOT regulations, the EIS must include a statement clarifying the project’s
“purpose and need.” This section of an EIS is the foundation upon which subsequent
sections of the EIS are built. DOT requires the discussion to be clear and specific and
support the need for the project. Further, it is the purpose and need section that
drives the selection of the range of alternatives that will be considered and analyzed
for a given project. CEQ regulations require agencies to discuss a range of
alternatives that will include all “reasonable alternatives” under consideration as well
as any other alternatives that were considered but subsequently eliminated from
consideration. Reasonable alternatives include those that are practical or feasible
from the technical and economic standpoint and using common sense, rather than
simply desirable from the standpoint of the agency or a potentially affected
stakeholder.
In his capacity as the Chairman of the Interagency Transportation Infrastructure
Streamlining Task Force (established under Executive Order 13274, “Environmental
8 23 C.F.R. § 771.133

CRS-5
Stewardship and Transportation Infrastructure Project Review”9), Transportation
Secretary Norman Mineta sought guidance from CEQ Chairman James Connaughton
regarding the role of lead and cooperating agencies with regard to developing a
highway project’s “purpose and need.”10 Secretary Mineta referred to the sometimes
extended interagency debates over purpose and need statements as a reason for delay
in highway project development.
In his response, Chairman Connaughton cites excerpts of NEPA itself as well
as CEQ regulations that specify that the lead agency has the authority for and
responsibility to define a project’s purpose and need. Further, Chairman
Connaughton references previous federal court decisions giving deference to the lead
agency in determining a project’s purpose and need. While not addressed in this
correspondence, CEQ regulations also specify the selection of reasonable alternatives
as within the authority of the lead agency.
Designation of Categorical Exclusions. Transportation projects that do
not individually or cumulatively have a significant social, economic, or
environmental effect, and which DOT has determined from past experience with
similar projects have no significant impact, are excluded from the requirement to
prepare an EA or EIS. Such actions are processed as categorical exclusions. A
common misconception is that such projects are categorically excluded from
compliance with NEPA. Such projects do require a certain level of NEPA
compliance, but are excluded only from the requirement to prepare an EA or EIS.
Unlike EISs or EAs, categorical exclusions are not a type of document, but are
classes of DOT actions that may be, in effect, pre-approved. Projects funded as
“transportation enhancements” often fall into this category of action.11 In FY2001,
almost 91% of all FHWA projects were classified as categorical exclusions.12
DOT regulations specify two groups of categorical exclusions. Whether or what
type of documentation will be required will depend upon which of the two groups the
project falls. The first group includes projects that call for no or limited
construction.13 Examples include the construction of bicycle and pedestrian lanes,
landscaping, emergency repairs, and the installation of pavement markings, or traffic
signals.
9 This Executive Order is available at [http://www.fhwa.dot.gov/stewardshipeo/index.htm],
(as of April 15, 2004).
10 Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,
2003 response, are available at [http://www.fhwa.dot.gov/stewardshipeo/minetamay6.htm],
(as of April 15, 2004).
11 Activities classified as “transportation enhancements” are specifically listed by Congress
under 23 U.S.C. §101(a)(35). For more information, see FHWA’s Transportation
Enhancement website at [http://www.fhwa.dot.gov/environment/te/index.htm], (as of April
15, 2004).
12 GAO-03-534
13 Specified under 23 C.F.R. § 771.117(c).

CRS-6
The second group consists of actions with a higher potential for impacts than the
first group, but are generally determined to meet the criteria for a categorical
exclusion because environmental impacts are minor.14 An example of such a project
is the modernization of a highway through resurfacing, reconstruction, adding
shoulders, or adding auxiliary lanes.
Since the second group of actions has a higher potential for impacts than the
first, DOT may require that the state or local project sponsor provide analyses or
documentation to allow DOT to determine if the categorical exclusion designation
is proper. Further, although a categorically excluded project’s environmental impacts
may not be “significant” as defined under NEPA, requirements of other laws may
still apply. For example, the installation of traffic signals is generally considered an
action with no environmental impacts. However, if those traffic signals will be
installed in a historic district, compliance with provisions of the National Historic
Preservation Act may apply. Also, for example, if the proposed route of a bicycle
path borders endangered species habitat, a biological assessment, in compliance with
the Endangered Species Act, may be required.
Requirements Applicable to Parks, Refuges, and Historic Sites.
Requirements of “Section 4(f)” of the Department of Transportation Act of 1966
apply to the use of publicly owned parks and recreation areas, wildlife and waterfowl
refuges, and to publicly or privately owned historic sites of national, state, or local
significance. Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. §
1653(f) and applies to all DOT projects. A similar provision, found at 23 U.S.C. §
138, applies specifically to Federal-aid highways. In 1983, as part of a general
recodification of the DOT Act, 49 U.S.C. § 1653(f) was formally repealed and
codified in 49 U.S.C. § 303 with slightly different language. This provision no longer
falls under a “Section 4(f),” but DOT has continued this reference, given that over
the years, the whole body of provisions, policies, and case law has been collectively
referenced as Section 4(f).
Under the law, any use of a Section 4(f) resource for a transportation project is
prohibited unless there is no “prudent and feasible” alternative to do otherwise, and
the project includes all possible planning to minimize harm to the resource. When a
project proposes the use a Section 4(f) resource, a separate “Section 4(f) evaluation”
must be prepared and included with the appropriate NEPA documentation. The
evaluation must analyze alternatives and design shifts that avoid the protected
resource. If Section 4(f) land is subsequently chosen for use in a project, the
evaluation must demonstrate that the use of other alternatives would have resulted
in unique problems. “Unique problems” are present when there are truly unusual
factors or when the costs or community disruption reach “extraordinary magnitude.
This test was introduced in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971), and subsequently referred to as “Overton Park Criteria.”
14 Specified under 23 C.F.R. § 771.117(d).

CRS-7
Streamlining Environmental Reviews Under TEA-21
Section 1309 of TEA-21, “Environmental Streamlining,” was intended to lead
to better coordination of agency involvement in the NEPA process. It directed the
Secretary of DOT to develop and implement a “coordinated environmental review
process” for highway construction projects that require an EIS or an EA, under
NEPA, or for the conduct of any other environmental review, analysis, opinion,
issuance of an environmental permit, license, or approval required under federal law.
The Secretary of Transportation (the Secretary) was directed to identify all agencies
required to participate in the coordinated environmental review process at the earliest
possible time, and to require those agencies, whenever practicable, to conduct
required reviews concurrently, rather than sequentially, in accordance with
cooperatively established time periods. The review process could be incorporated
into a memorandum of understanding between DOT and participating federal and
state agencies.
DOT has undertaken a variety of actions to meet the goals of TEA-21’s
streamlining requirements. However, no final regulations were promulgated. In May
2000, under the Clinton Administration, DOT proposed a rule on “NEPA and
Related Procedures for Transportation Decisionmaking.”15 Some commenters
indicated that the proposed rule failed to streamline the review process. Elements of
the rule presented an increased burden of paperwork and procedural requirements,
they said, and increased the potential for litigation. There was also a concern that the
proposed rule lacked specific provisions addressing timeframes, comment deadlines,
dispute resolution, and “closing the record” on decisionmaking at an appropriate
stage. Due to these concerns, the proposed rule was withdrawn by DOT in September
2002.16
Since withdrawal of the proposed rule came within a year of the legislative
reauthorization of surface transportation programs, the agency stated that it would
wait for the outcome of the legislative process to see what further regulatory changes
were needed. In lieu of final regulations, DOT has implemented a variety of
administrative actions in response to TEA-21’s streamlining requirements. (For more
detailed information regarding the streamlining provisions of TEA-21 and the
Administration’s activities to implement those provisions, see CRS Report RL32024,
Background on NEPA Implementation for Highway Projects: Streamlining the
Process
.)
Several elements of the coordinated environmental review process exist in
current CEQ and DOT regulations. For example, CEQ regulations require agencies
to reduce paperwork and delays by:
! Integrating the NEPA process into early planning.
! Emphasizing interagency cooperation before the EIS is prepared, rather than
submission of adversary comments on a completed document.
15 65 Federal Register 33960.
16 67 Federal Register 59225.

CRS-8
! Insuring the swift and fair resolution of lead agency disputes.
! Using the scoping process for an early identification of what are and what are
not the real issues.
! Establishing appropriate time limits for the EIS process.
! Preparing EISs early in the process.
! Integrating NEPA requirements with other environmental review and
consultation requirements.17
On September 30, 2003, the day TEA-21 expired, the President signed the first
in a series of extension bills. Under those extensions, all existing surface
transportation programs continue to operate according to provisions of TEA-21 while
Congress considers reauthorization proposals. The most recent extension, the
Surface Transportation Extension Act of 2004, Part V (H.R. 5183), extended funding
for surface transportation programs until May 31, 2005. Since the environmental
streamlining provisions of TEA-21 are not tied to highway funding, the provisions
of Section 1309 will continue until new legislation is enacted.
Overview of Provisions of the Administration’s Bill
In May 2003, the Bush Administration submitted its own legislative proposal
to reauthorize surface transportation programs, the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act of 2003 (SAFETEA). This proposal was
introduced by request in both the House and the Senate as H.R.2088 and S. 1072,
respectively, and is hereafter referred to as the “Administration bill.” The bill that
was ultimately passed by the Senate carries the title originally proposed by the
Administration bill. Further, the Senate Committee on Environment and Public
Works chose to use S. 1072 as its markup vehicle and amended the bill by including
its own provisions in the nature of a substitute. S. 1072 in its Senate-passed form,
however, is the Senate bill (discussed below), and although it contains selected
provisions proposed by the Administration, the bill itself is significantly different
from the introduced version. In this report, any reference to SAFETEA refers to the
Senate-passed version of the bill.
The Administration’s bill included several provisions intended to expedite the
environmental review process for highway and transit projects funded by FHWA and
FTA. In general, the Administration’s bill included provisions that would:
! Expand upon or clarify elements of the “coordinated environmental review
process” required under TEA-21.
! Establish a new statute of limitations of 180 days for legal challenges to
federal agency decisions made in connection with the issuance of permits,
licenses, or approvals for highway construction or public transit projects.
! Codify the long-standing practice of allowing state and local governments to
be joint lead agencies with DOT in preparing environmental documents.
! Allow for the delegation of authority to state DOTs to determine if certain
projects are categorical exclusions.
! Revise requirements applicable under Section 4(f).
17 40 C.F.R. 1500.5

CRS-9
Several of the provisions of the Administration’s bill, or elements of them, are
found in the bills passed by the House or Senate.
Current Legislative Efforts to Expedite Project Delivery
Both the House and Senate have passed their own legislation to reauthorize
federal surface transportation programs for FY2004-2009. The Senate passed its
version of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act
of 2004 (SAFETEA, S. 1072) on February 12, 2004. The House passed its bill (H.R.
3550), the Transportation Equity Act: A Legacy for Users (TEA-LU), on April 2,
2004. Each bill has distinctive provisions related to the environmental review
process. Provisions intended to streamline the environmental review process
common to each bill include:
! A statutory designation of DOT as the lead agency for the environmental
review process under NEPA;
! A statutory delineation of the roles and responsibilities of the lead agency and
cooperating agencies;
! A requirement to involve the public and agencies in defining the purpose and
need statement and in developing the range of project alternatives;
! A requirement to follow specified procedures to identify and resolve issues or
disputes that could lead to the delay of a project or the denial of any needed
approval required by law;
! Authorization for the DOT Secretary to approve the use of highway or mass
transit funds to assist participating agencies to meet time limits for the
environmental review (previously included in the streamlining provisions of
TEA-21);
! An exemption of the Interstate System from consideration as a “historic site”
under provisions of Section 4(f); and
! A repeal of the streamlining provisions in Section 1309 of TEA-21.
Details of each bill, particularly details that differ from one bill to another, are
discussed below. Also, briefly discussed below are the positions taken by various
interest groups on selected legislative provisions. Groups interested in the
streamlining provisions generally include “transportation improvement stakeholders”
(i.e., state departments of transportation or transportation advocacy or construction
organizations) and “environmental stakeholders” (i.e., state or federal resource
agencies, historic preservation agencies or advocacy organizations, and
environmental advocacy organizations).
Establishment of a New Environmental Review Process. Each bill
would delineate a new environmental review process for certain types of surface
transportation programs. The major difference between the two bills is that the
Senate requires implementation of its new process only at the request or concurrence
of the project sponsor, while the House bill requires implementation of its process
for all projects requiring an EIS, and may be implemented for all other projects
requiring NEPA compliance.
Senate Bill. SAFETEA would establish a new “transportation project
development process” (as opposed to building upon the TEA-21’s “coordinated

CRS-10
environmental review process”). The transportation project development process,
applicable to highway and transit projects, would be implemented at the request or
with the concurrence of the project sponsor and carried out by the lead agency.
Otherwise, the environmental review process required under current CEQ and DOT
regulations would be implemented.
House Bill. TEA-LU includes provisions related to the environmental review
process under Title VI of the bill, regarding Transportation Planning and Project
Delivery. TEA-LU’s environmental review process is referred to as “project
development procedures.” The procedures in the House bill are similar to, but in
some instances not as detailed as, those found in the Senate bill. Unlike the Senate
bill, the project development procedures in the House bill are applicable to all
highway projects, public transportation capital projects, and multimodal projects that
require an EIS. If determined appropriate by the Secretary, the procedures may also
be applied to projects that require an EA or a categorical exclusion.
Delineation of Authority of the Lead Agency. Each bill would designate
DOT as the lead agency for certain surface transportation projects requiring
compliance with NEPA. The major difference between regards the level of detail
regarding authority and responsibilities given to the lead agency.
Senate Bill. The Senate bill would designate DOT as the lead agency for
highway and transit projects and would allow the project sponsor to serve as a joint
lead agency. The bill would give authority to the lead agency to carry out certain
responsibilities when implementing the transportation project development process.
For example, the bill would authorize the lead agency to develop a “coordination
plan” to coordinate agency and public participation in the environmental review
process. As part of the coordination plan, the lead agency would be required to
develop a workplan and schedule, in consultation with cooperating agencies and the
project sponsor, for completion of the environmental review process and the
collection of information needed to complete that process. The schedule would be
required to include deadlines on specific milestones in the environmental review
process. Criteria for establishing those deadlines are specified in the Senate bill, and
include the establishment of deadlines on agency comments, procedures for
extending comment deadlines, procedures for accepting late comments, and
procedures applicable to deadlines for decisions under other laws.
Further, in SAFETEA, the lead agency would be authorized to determine the
purpose and need and the range of alternatives to be considered for the project. Each
of these elements in the environmental review process would require the solicitation
of comments from agencies and the public for 30 days. The bill specifies factors that
may be considered by the lead agency in determining the project’s purpose and need
and alternatives. These factors include transportation, land use, economic
development, and environmental protection plans adopted by the state, local, or tribal
government.
Responsibilities of cooperating agencies would also be delineated in SAFETEA.
For example, cooperating agencies involved in the transportation development
process would be required to conduct required environmental reviews concurrently,
to the extent practicable.

CRS-11
House Bill. Similar to the Senate bill, TEA-LU would designate DOT as the
“federal lead agency.” In addition, the project sponsor, if a state or local government
(as opposed to a private entity), is required to be the “joint lead agency” for the
environmental review process. The joint lead agency may prepare any required
environmental documents, if the federal lead agency provides guidance and
assistance and approves the documents. The environmental review process must be
initiated by the project sponsor after proper notification to the Secretary.
The House bill also requires that the project’s purpose and need be defined and
the range of project alternatives be determined by the lead agency after participating
agencies and the public have an opportunity for involvement. However, unlike the
Senate bill, specific criteria for involving the public and agencies are not specified.
The House bill would require the purpose and need statement to state the project’s
objectives (such as supporting a transportation objective identified in a statewide
transportation plan). With regard to defining a project’s alternatives, the lead agency
would be authorized to collaborate with participating agencies to determine
methodologies that would be used for alternatives analysis and the level of detail
required for each alternative. Also, the lead agency would have the discretion to
develop an identified preferred alternative to a higher degree of detail in order to
facilitate development of mitigation measures or concurrent compliance with other
applicable laws, if that determination would not prevent the agency from making an
impartial decision.
Transportation advocacy groups such as the American Association of State
Highway and Transportation Officials (AASHTO)18 argue that the authority of
participating federal and state agencies, particularly that of the “lead agency,” should
be more clearly defined in statute. They have supported establishing statutory
authority that would reiterate the lead agency’s authority to delineate a project’s
purpose and need, and the range of alternatives to be considered. Environmental
stakeholders are concerned that, if the lead agency is afforded specific rights in
statute, the opinions or contributions of cooperating agencies will be diminished or
dismissed. They acknowledge that establishment of lead agency authority in law may
serve to reassert DOT’s authority to participating agencies. However, since this is a
right already afforded DOT under current law and regulations, some environmental
groups contend that such provisions may not significantly streamline the NEPA
process.
Delegation of Authority to State DOTs. The Senate bill allows for the
delegation of specific federal authority to state DOTs. The House bill would not
delegate such federal authority to states, but does extend more responsibility to states
in its capacity as a joint lead agency.
Senate Bill. The Senate bill would authorize the Secretary to assign to a state
DOT the responsibility for processing the environmental reviews for projects
classified as categorical exclusions. The criteria for making such a determination
would be established by the Secretary and would apply only to projects designated
18 AASHTO represents highway and transportation departments in the fifty states, the
District of Columbia, and Puerto Rico.

CRS-12
by the Secretary. Such authority would be determined through a mutual agreement
between the state and the Secretary and delineated in a memorandum of
understanding.
In practice, project sponsors already assemble documentation that allows DOT
to make the categorical exclusion determination. If enacted, SAFETEA would have
the effect of omitting the final step in the process. This final step currently requires
DOT to assure that necessary documentation or required analyses to determine a
project’s categorical exclusion determination is legally sound and accurately reflects
a project’s status.
House Bill. Under TEA-LU, similar authority would not be delegated to the
states. However, in effect, certain authority would be extended to the states in so far
as they would be designated as joint lead agencies, would be allowed to prepare
environmental documents, and would be required to initiate the environmental
review process.
Transportation stakeholders such as AASHTO have argued that project review
may be expedited if states were given the authority to process categorical exclusions.
Such stakeholders argue that delegation of this authority to the states could speed up
the environmental review process for highway projects by eliminating a significant
layer of bureaucracy that federal approval entails. However, environmental
stakeholders have expressed concern that the delegation of authority to the states
would create a “fox guarding the henhouse” scenario. They argue that if a state,
which has a vested interest in moving a project forward, is allowed to make certain
determinations, those determinations would not have the level of scrutiny that would
be provided with federal oversight. Further, they are concerned that any legislation
that would reduce or eliminate federal oversight may ultimately limit public
participation in the environmental review process.
Amendments to Section 4(f) Provisions. Both bills would include similar
amendments to Section 4(f) protection of publically owned parks, recreation areas,
wildlife and waterfowl refuges, and to public or privately owned historic sites. The
main differences between the bills regard the categories of resources to which the
amendments would apply. The Senate bill would apply to all Section 4(f) resources
and the House bill would apply only historic sites.
Senate Bill. SAFETEA includes amendments to Section 4(f) requirements that
would allow for the use of Section 4(f) resources if it is determined that such use
would have “de minimus impacts.” If the resource involved a park, recreation area,
or wildlife or waterfowl refuge, the Secretary’s finding of de minimis impacts would
be required to receive concurrence from the official with jurisdiction over that
resource (e.g., the U.S. Fish and Wildlife Service, the National Park Service, or
applicable state or local park authorities). If the resource involved a public or private
historic site, the finding of de minimis impacts must be determined in accordance
with the consultation process required under Section 106 of the National Historic
Preservation Act (NHPA, 16 U.S.C. § 470f). As such, it would be required that
transportation program would have no adverse effect on the site or property. That
finding would have to receive concurrence from the Advisory Council on Historic
Preservation or the state or tribal historic preservation officer, as applicable.

CRS-13
Further, within a year of enacting SAFETEA, the Secretary is directed to
promulgate regulations that clarify existing requirements applicable to Section 4(f).
In particular, provisions of the Senate bill require that the Secretary, in consultation
with affected agencies, clarify standards that apply to determining the “prudence and
feasibility” of a project’s alternatives (see “Requirements Applicable to Parks,
Refuges, and Historic Sites” section, above).
House Bill. The House bill would also amend provisions of Section 4(f).
However, the amendment would apply only to historic sites. Provisions of TEA-LU
would allow for the use of a historic site if the use is determined, in accordance with
provisions of Section 106 of the National Historic Preservation Act, to have no
“adverse effect” on the site.
Some environmental stakeholders have expressed concerns at what they
perceive as an overall weakening of the current protections. Most transportation
stakeholders are in favor of SAFETEA’s revisions to the current Section 4(f)
requirements, which have been identified by state transportation agencies as a
significant deterrent to timely environmental reviews of transportation projects.19
Further, AASHTO identified has argued that the problem with Section 4(f) is what
it perceives as the law’s lack of flexibility, particularly with regard to privately
owned historic sites.20 AASHTO has expressed concern with the requirement to
avoid Section 4(f) resources even when the impact is minor, resulting in situations
in which a historic property is protected at the expense of other, more sensitive
environmental resources or communities. Historic preservation groups, such as the
National Trust for Historic Preservation (NTHP), counter that changes to the law are
not needed and the current problem with Section 4(f) is with improper interpretation
by FHWA. NTHP asserts that FHWA sometimes avoids a Section 4(f) resource “at
all costs” and has interpreted situations in which there are “no prudent and feasible”
project alternatives too narrowly.21
Establishment of Deadlines. Each bill either requires or allows for the
establishment of deadlines on project milestones. The major difference is that the
Senate bill requires deadlines to be negotiated between the lead and cooperating
agencies for those projects in which the transportation project development process
is implemented. The House bill would apply extendable deadlines to all projects
requiring an EIS. Also, only the House bill would establish a 90-day statute on
limitations of legal challenges.
Senate Bill. The Senate bill would not set specific deadlines applicable to all
projects. However, one component of the transportation project development process
is the development of a project workplan that would include a schedule with
deadlines negotiated by the lead and cooperating agencies.
19 FHWA newsletter “Successes in Streamlining,” January 2002.
20 AASHTO statement for the record regarding “Stewardship and Streamlining Proposals
for Reauthorization of the Surface Transportation Program,” before the Senate Environment
and Public Works Committee, September 19, 2002.
21 The National Trust for Historic Preservation newsletter, “Forum News,” Volume IX, No.
4, March/April 2003, p 2.

CRS-14
House Bill. TEA-LU includes provisions that would establish various definitive
deadlines applicable to agencies and the public. For example, TEA-LU would
establish an extendable 60-day deadline on comments to a draft EIS and an
extendable 30-day deadline on all other comment periods in the environmental
review process. Also, TEA-LU would establish a 90-day statute of limitations on
legal challenges related to final agency actions.
Environmental groups argue that public involvement in highway projects will
likely be restricted if deadlines are applied to the interagency processes. Further,
they argue that deadlines of 30 to 60 days are not sufficient to fully consider and
consent on the major questions of impact exposed throughout the NEPA process.
Transportation stakeholders are in favor of the adoption of extendable deadlines on
agency comments.
With regard to the creation of a statute of limitations on legal challenges,
transportation stakeholders such as AASHTO are in favor of the adoption of time
limits for legal challenges to project approvals. They argue that the absence of a
statute of limitations in current law allows plaintiffs to file suit when a project is at
an advanced stage. They are in favor of limits that would facilitate the resolution of
legal disputes more promptly after the conclusion of the environmental review
process. Some environmental groups have argued that the proposed statute of
limitations of 90 days is too restrictive and does not allow sufficient time to prepare
an appeal. They argue that, as a result, this time limit may lead to preemptive suits
in an effort to preserve the right to sue.
Pilot Program for States. SAFETEA proposes the establishment of a
“surface transportation project delivery pilot program” that would delegate certain
federal environmental review responsibilities (in addition to categorical exclusion
determinations) to no more than five states. Oklahoma has been specifically
designated as one of the five states. Responsibility could be assumed for
environmental reviews required under NEPA, or any federal law, for one or more
highway projects within the state. The program would be administered in accordance
with a written agreement between the participating state and the Secretary. The
Secretary is directed to promulgate regulations to implement the pilot program within
270 days of enacting SAFETEA.
TEA-LU does not include a comparable provision.
Requirement to Promulgate Regulations. SAFETEA would require the
Secretary to promulgate regulations to implement each of the provisions discussed
above, unless otherwise specified, within one year of enacting the law. This provision
relates to the concerns of some Members of Congress that regulations to implement
the streamlining provisions in TEA-21 were never finalized over the five years since
its enactment.
TEA-LU has no similar deadlines or requirements concerning the development
or promulgation of regulations to implement the environmental review provisions of
the bill.