Environmental Streamlining Provisions in the Transportation Equity Act for the 21st Century: Status of Implementation

Environmental Streamlining Provisions in the Transportation Equity Act for the 21st Century: Status of Implementation

Order Code RS20841
Updated May 30, 2003
CRS Report for Congress
Received through the CRS Web
Environmental Streamlining Provisions in the
Transportation Equity Act for the 21st Century:
Status of Implementation
Linda G. Luther and David M. Bearden
Resources, Science, and Industry Division
Summary
Before construction on a federally funded surface transportation project can
proceed, the Department of Transportation’s (DOT’s) Federal Highway Administration
must comply with all state and federal legal requirements regarding the environment,
including the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et
seq.). In 1998, Congress passed the Transportation Equity Act for the 21st Century
(TEA-21, P.L. 105-178), which reauthorized the federal surface transportation programs.
At the time, various stakeholders reported to Congress that the numerous federal
environmental approvals and permits needed to build a highway were inefficient and
overly time-consuming. Congress attempted to address these concerns by including
“Environmental Streamlining” provisions in TEA-21 that required DOT to develop and
implement a “coordinated environmental review process” for projects that do or may
have a significant impact on the environment (approximately 10% of all highway
projects). This review process is intended to encourage full and early participation by
all relevant federal and state agencies required to participate in a highway project.
Numerous administrative activities have been undertaken to facilitate streamlining.
However, regulations to implement the streamlining provisions of TEA-21 have not
been finalized. Some Members of Congress have expressed concern over the lack of
regulations, and have argued that further legislative action is necessary to achieve faster
project delivery. The Administration’s legislative proposal for surface transportation
reauthorization was introduced in the House (H.R. 2088) and Senate (S. 1072) on May
14 and 15, 2003, respectively. Included in the bill are provisions intended to further
streamline the NEPA process. This report will be updated.
Introduction
The National Environmental Policy Act of 1969 (NEPA, P.L. 91-190) requires all
federal agencies to consider the environmental impact of their proposed actions. To
ensure that environmental impacts are considered before final decisions are made, NEPA
requires federal agencies to provide a detailed statement of environmental impacts for
every proposed federal action significantly affecting the quality of the environment. The
“detailed statement” was subsequently referred to as an environmental impact statement
Congressional Research Service ˜ The Library of Congress

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(EIS). Projects with less than significant impacts also require documentation. Such
projects either require an Environmental Assessment (EA) or are categorically excluded
from requirements to prepare an EA or EIS. According to the Federal Highway
Administration (FHWA), in 2001 approximately 3% of all highway projects required an
EIS, 7% required an EA, and 90% were classified as categorical exclusions. Projects
requiring an EIS accounted for 9% of the funds allocated by FHWA. While the number
of projects requiring an EIS represents a small portion of the total projects and funds
allocated, they are often complex and affect sizable populations.
In 1998, Congress passed the Transportation Equity Act for the 21st Century (TEA-
21, P.L. 105-178), which reauthorized the federal surface transportation programs for
highways, highway safety, and transit for the fiscal years 1998-2003. During the
reauthorization process, states reported to Congress that the numerous federal
environmental approvals and permits needed to build a highway were inefficient and
overly time-consuming. To address these concerns, Congress included in TEA-21 Section
1309, “Environmental Streamlining,” which was intended to better coordinate federal
agency involvement in the NEPA process.
This report describes how the NEPA process is used to demonstrate compliance with
environmental requirements and also discuses environmental documents required for
highway projects, the time involved in completing them, environmental streamlining
provisions under TEA-21, administrative actions taken to implement these requirements,
and legislative activity in the 108th Congress.
The “NEPA Umbrella”
In addition to complying with NEPA, any given transportation project may require
compliance with a wide variety of legislative and regulatory requirements, enforceable by
multiple agencies. Under FHWA regulations, compliance with all applicable
environmental laws, executive orders, and other related requirements must be documented
within the appropriate NEPA documentation.1 It is FHWA 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. Legal requirements that frequently apply to
transportation projects include the Endangered Species Act of 1973 (16 U.S.C. 1536), the
National Historic Preservation Act (16 U.S.C. 470), or the Clean Water Act (33 U.S.C.
1344).
Environmental Documents Required Under NEPA
Under NEPA, FHWA must prepare an EIS for federally funded highway projects if
it is known that the action will have a significant effect on the environment. The EIS
must include a description of the project’s purpose and need, an analysis of all reasonable
project alternatives, a description of the affected environment, and the environmental
1 23 CFR 771.133

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consequences of impacts to the affected environment of each alternative.2 The EIS must
also demonstrate that appropriate comments were solicited from relevant federal, state and
local agencies and from the public. Relevant agencies obligated to provide comments are
those with jurisdiction by law or special expertise with regard to the environmental
impacts of the project. For example, if a project alternative impacts a historical site, the
Advisory Council on Historic Preservation may be required to participate in the NEPA
process. If impacts to wetlands are identified, the U.S. Army Corps of Engineers may
need to provide comments or issue a permit before a project may proceed.
If it is not clear whether a project would have significant impacts, an Environmental
Assessment (EA) must be prepared. An EIS is required if significant impacts are
identified at any time during preparation of the EA. Otherwise, a Finding of No
Significant Impact (FONSI) will be issued. Projects that do not individually or
cumulatively have a significant social, economic, or environmental impact are excluded
from the requirement to prepare an EA or EIS. Such projects are processed as Categorical
Exclusions (CEs). State agencies are required to provide FHWA with documentation to
prove the action qualifies as a CE. The type of documentation required will depend upon
the project. Final design activities, property acquisition, or project construction cannot
proceed until one of the following occurs: an action is classified as a CE; a FONSI is
approved for an EA; or an EIS is approved.3
Time to Prepare NEPA Documentation
In 2001, FHWA undertook an analysis of the direct effect that compliance with the
requirements of NEPA has on the ultimate schedule and cost of a completed
transportation project.4 The report was intended to establish a baseline for completion of
NEPA documentation, against which progress on its streamlining initiatives could be
gauged. On average, the time to complete an EIS in the 1990s was 5.0 years. In 1999,
the average time was 5 years and 10 months. FHWA reported that its streamlining efforts
reduced that time to 5 years and 2 months in 2001. The study also found a correlation
between average environmental review time and factors such as the FHWA region in
which the EIS was processed and the number and type of regulations that applied to a
given project. FHWA estimated that the average time to complete and approve an EA
was 18 months, and the average time to complete a CE determination was 6 months.
Streamlining Requirements Under TEA-21
TEA-21 authorized federal surface transportation programs for highways, highway
safety, and transit for the 6-year period FY1998-FY2003. To address concerns about
construction delays, Section 1309 on Environmental Streamlining was included. FHWA
2 FHWA regulations implementing the NEPA process are specified at 23 CFR 771; further
guidance is available on the “NEPA: Project Development Process” web page at
[http://www.fhwa.dot.gov/environment/00001.htm].
3 23 CFR 771.113.
4 See FHWA’s Evaluating the Performance of Environmental Streamlining: Development of a
NEPA Baseline for Measuring Continuous Performance, May 8, 2001, available at
[http://www.fhwa.dot.gov/environment/strmlng/baseline].

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defines “environmental streamlining” as cooperatively establishing realistic project
development time frames among the transportation and environmental agencies, and then
working together to adhere to those time frames.5 Key elements of Section 1309 are:
! Directs the Secretary of Transportation to establish and implement a
“coordinated environmental review process” that encourages full and
early participation by all relevant agencies required to review a highway
construction project or issue a permit, license, analysis, opinion or
approval relating to the project. The process may be documented in a
memorandum of understanding between DOT and affected agencies.
! Requires the coordinated environmental review process to encourage
agencies to conduct reviews concurrently, rather than sequentially,
according to cooperatively determined time periods.
! Creates a dispute resolution process that directs the Secretary to close the
record on an activity if it is not completed by an agency within the agreed
upon time frame. If an unresolved matter involves an activity required by
law, the Secretary and the affected agency are directed to resolve the
matter within 30 days.
! Allows state DOTs to require all state agencies with jurisdiction over
environmental issues to be subject to the coordinated environmental
review process.
! Provides states with the authority to request funds to reimburse affected
agencies for expenses associated with meeting time limits for
environmental review, if those time limits are less than usual.
The streamlining requirements in TEA-21 do not permit the Secretary to override the
authority of another agency. TEA-21 also clarifies that nothing in the streamlining
requirements will affect the reviewability of any final federal agency action in a U.S.
district court or state court, affect the applicability of NEPA or any other environmental
statute, or affect the responsibility of any federal officer to comply with such statutes.
Administrative Actions to Implement Streamlining Goals
DOT has undertaken a variety of actions to meet the goals of TEA-21's streamlining
requirements. However, no final regulations have been implemented. In May 2000,
under the Clinton Administration, FHWA submitted a proposed rule on “NEPA and
Related Procedures for Transportation Decisionmaking.”6 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 FHWA in September 2002.7 Since
withdrawal of the proposed rule came within a year of the legislative reauthorization of
5 See [http://www.fhwa.dot.gov/environment/strmlng/overview.htm]
6 65 Federal Register 33960.
7 67 Federal Register 59225.

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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. Selected actions are described below.
Executive Order Implementation. In September 2002, President Bush issued
an executive order directing federal agencies to expedite environmental reviews for
transportation projects deemed “high-priority” by DOT.8 Among the criteria for project
selection are whether they are of national or regional significance and whether they may
experience delays from lack of federal interagency coordination. As required by the order,
an Interagency Transportation Infrastructure Streamlining Task Force, chaired by the
Secretary of Transportation, is to monitor work on expedited projects, review the list of
suggested projects, and identify and promote policies that aid in streamlining. The Task
Force also includes members from federal agencies likely involved in environmental
project reviews. To date, ten highway projects have been chosen for expedited review.
2002 Report to Congress. In April 2003, FHWA submitted its Report to
Congress on FHWA environmental streamlining activities during 2002.9 The report
provided an update on the status of such activities as the implementation of the executive
order regarding streamlining, the creation of guidance materials to facilitate streamlining,
efforts to re-engineer the environmental review process, and state efforts at streamlining.
National Memorandum of Understanding. In July 1999, FHWA and six other
federal agencies signed a National Memorandum of Understanding (MOU) on
streamlining.10 It expresses the commitment of each agency to streamline the
environmental review process in accordance with TEA-21.
Dispute Resolution Procedures. FHWA developed the National Dispute
Resolution System, one element of which was the development of guidance to be used to
manage conflict and resolve disputes between state and federal agencies during the
transportation project development and environmental review process.11 Workshops in
the application and use of alternative dispute resolution are currently being scheduled and
will use the guidance as the principal reference document.
Support of State Streamlining Initiatives. In April 1999, the FHWA,
Environmental Protection Agency, and the American Association of State Highway and
Transportation Officials (AASHTO) established a pilot program to gain practical
experience in streamlining. The program focuses on various aspects of the review
process, such as early coordination and establishing time frames for environmental
reviews. In 2002, AASHTO launched the “Center for Environmental Excellence” to
assist its members in promoting “innovative streamlining” of the project delivery process.
8 Executive Order 13274 is available at [http://www.fhwa.dot.gov/stewardshipeo/index.htm]
9 The report is available at [http://www.fhwa.dot.gov/environment/strmlng/final02rpt.htm].
10 Full text of the MOU is available at [http://www.fhwa.dot.gov/environment/nmou4.htm].
11 The guidance, issued December 2002, “Collaborative Problem Solving: Better and Streamlined
Outcomes for All,” is available at [http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/].

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FHWA is also supporting individual states in implementing streamlining initiatives by
providing program funding or technical support.
Legislative Actions to Facilitate Streamlining
During the 107th Congress, oversight hearings were to held to evaluate the
Administration’s progress in implementing TEA-21's requirements, such as the
development of a consistent process to put streamlining into practice on a national scale.
Some Members expressed disappointment that regulations to implement TEA-21's
streamlining requirements have not been issued. Two bills were introduced late in the
107th Congress. In September 2002, Representative Young introduced the Expediting
Project Delivery to Improve Transportation and the Environment Act (H.R. 5455). In
October 2002, Senator Baucus introduced the Maximum Economic Growth for America
Through Environmental Streamlining Act (S. 3031). Neither bill was enacted, and neither
has been reintroduced in the 108th Congress. However, due to ongoing concerns over
highway project delays, elements of these or similar bills may be included as part of the
transportation program reauthorization process.
On May 13, 2003, DOT formally submitted its legislative proposal to reauthorize
surface transportation programs. The Administration’s proposal was introduced in the
House (H.R. 2088) and Senate (S. 1072) on May 14 and 15, 2003, respectively. The
proposal, the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003
or SAFETEA, includes three sections that deal with NEPA-related issues. They are:
! Section 1602. Efficient Environmental Reviews for Project
Decisionmaking. Would repeal Section 1309 and replace it with similar
provisions, including the addition of provisions to: allow for the
coordinated environmental review process and establishment of time
frames to be initiated by project sponsors; allow the coordinated review
process to be implemented for transit projects; codify the right of states
to prepare environmental documents; allow the dispute resolution process
to be initiated by state governors; and impose a 180-day limit on judicial
review of an final permit, license or other approval related to the project.
! Section 1603. Assumption of Responsibility for Categorical Exclusions.
Would allow states to assume authority to designate and approve CEs.
! Section 1604. “Section 4(f)” Policy on Lands, Wildlife and Waterfowl
Refuges, and Historic Sites. Would revise current statutory requirements
prohibiting the use of public parks and recreation lands, wildlife and
waterfowl refuges, and historic sites unless there is no prudent and
feasible alternative to do otherwise, and the project includes all possible
planning to minimize harm to land. The proposal clarifies conditions
under which such resources could be used for transportation projects.
These provisions are likely to generate controversy. For example, the establishment
of time frames for environmental reviews has been an issue of ongoing concern with
environmental groups. Also, clarifying situations in which “Section 4(f)” lands could be
used may be interpreted as weakening current requirements. It is expected that a variety
of additional issues may arise in response to the Administration’s proposal. Also,
subsequent bills introduced in the 108th Congress may differ from this proposal.