Background
One of the biggest challenges to environmentally sound Federal-aid transportation project development is related to the amount of time it takes to advance a project through the project development process (i.e., from the planning phase through the environmental review and approval process through final design and then through construction). Planning major transportation projects is extremely complex because of the varying legal, technical, and analytical requirements needed to meet all relevant national and state legal mandates for planning such projects. At the Federal level, the National Environmental Policy Act of 1969 (NEPA) and its accompanying regulations are a means to consider the effects of a wide range of human and natural environmental issues. Meanwhile, laws including Section 106 of the National Historic Preservation Act, Section 404 of the Clean Water Act, Section 4(f) of the DOT Act of 1966 (23 USC Section 138), and the Endangered Species Act, also must be addressed. Each state also has its own set of environmental laws and regulations that apply to transportation projects.
Many factors affect project development, both internal to transportation agencies (e.g., project priorities, staffing, funding, and communication), and external (e.g., public opposition, resource agency staffing, interagency communication, and conflicting review procedures). Major projects can take 10 years or more to advance from the planning phase to completion of construction and 20 years has been a common time frame for some complex, controversial projects.
The concept of “environmental streamlining” arose in 1998 during the congressional reauthorization of the Intermodal Surface Transportation Efficiency Act. Environmental streamlining involves re-engineering the environmental review and approval process portions of the project development process to shorten their time frames while ensuring environmental protection. Environmental streamlining and project delivery provisions were included in subsequent transportation legislation. The Transportation Equity Act for the 21st Century (TEA-21) included provisions aimed at coordinating federal agency involvement in major highway projects under the NEPA process. The provisions were intended to address concerns about delays in implementing projects, unnecessary duplication of effort, and added costs often associated with the conventional process for reviewing and approving surface transportation projects.
SAFETEA-LU and MAP-21 Environmental Provisions
In August 2005, the Safe Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was enacted to reauthorize TEA-21. SAFETEA-LU included numerous environmental provisions, including measures to further streamline reviews and encourage environmental stewardship for transportation projects in place of the provisions previously enacted under TEA-21. SAFETEA-LU created a new environmental review process, repealing the environmental streamlining provisions established under TEA-21.
The review process established under Section 6002 of SAFETEA-LU must be followed for all highway, transit, and multimodal projects that require DOT approval and involve preparation of an Environmental Impact Statement (EIS). The process is optional for projects involving Environmental Assessments (EAs). These requirements were intended to promote efficient project management by lead agencies and enhanced opportunities for coordination with the public and with other Federal, state, local, and tribal government agencies during the project development process.
The key provisions of Section 6002 included:
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- Establishing an environmental review process that includes a new category of “participating agencies” (i.e., Federal, state, local agencies and tribal nations that have an interest in the project).
- Requiring the lead agency to develop a coordination plan and schedule for agency and public participation and comment.
- Requiring the Purpose and Need and Range of Alternatives for a project to be established after an opportunity by the participating agencies and the public for involvement.
Section 6002 also provided a 180-day statute of limitations for lawsuits challenging Federal agency approvals (subsequently reduced to 150 days in MAP-21). It also authorized expenditure of transportation dollars to fund positions at resource and permitting agencies in order to expedite transportation project reviews.
Other provisions of SAFETEA-LU that were intended to streamline project delivery include the following:
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- Provisions to better link transportation planning and the NEPA processes;
- Full assumption of federal environmental review authority for five states under a pilot program (later expanded to all states under MAP-21) and assumption of federal authority for all states for categorical exclusions and recreational trails;
- Exemption of the Interstate Highway System from inclusion in the National Register of Historic Places under Section 4(f) of the Department of Transportation Act;
- Provisions to simplify the processing and approval of projects that have only de minimis impacts on lands protected by Section 4(f) of the Department of Transportation Act, i.e., public parks, recreation lands, wildlife and waterfowl refuges, and historic sites, as well as provisions calling for regulatory changes addressing the feasible and prudent standard under Section 4(f).
The Moving Ahead for Progress in the 21st Century Act (MAP-21) was signed into law on July 6, 2012. In addition to its funding and policy provisions, MAP-21 included a package of measures to accelerate project delivery, including a number of new provisions as well as revisions to the SAFETEA-LU Section 6002 process.
A more detailed summary of the project delivery and environmental provisions and implementation status may be accessed on AASHTO’s MAP-21 web page. For additional information on MAP-21, please see the FHWA MAP-21 website.
Stewardship and Streamlining
Federal Initiatives
FHWA and the Federal Transit Administration (FTA) have undertaken many initiatives to implement streamlining goals.
At the same time, transportation agencies across the country worked to implement their own processes to expedite transportation project delivery while ensuring environmental protection.
More information on federal initiatives may be found on the FHWA accelerating project delivery web page and Environmental Review Toolkit.
Federally Funded Positions and FHWA Federal Agency Liaison Contacts
Section 1309(e) of TEA-21 gave state DOTs the option to spend federal-aid dollars to fund positions at other agencies in order to meet cooperatively determined timeframes, if such amounts are “necessary…to meet the time limits for environmental review” and “if such time limits are less than the customary time necessary for such review.” SAFETEA-LU broadened the funding authority, by allowing transportation agencies to use federal-aid funds to support activities outside the National Environmental Policy Act (NEPA) process.
SAFETEA-LU allowed agencies to fund “transportation planning activities that precede the initiation of the environmental review process, dedicated staffing, training of agency personnel, information gathering and mapping, and development of programmatic agreements.” SAFETEA-LU specified that funds may be directed to the DOT and tribes.
As a result, many state DOTs are providing transportation funding for one or more positions at resource agencies to help expedite transportation project reviews. An AASHTO Center for Environmental Excellence Report, DOT-Funded Positions and Other Support to Resource and Regulatory Agencies, Tribes, and Non-Governmental Organizations for Environmental Stewardship and Streamlining Initiatives found that, “In general, funded positions are helping [State] DOTs in problem avoidance, early consultation and development of programmatic approaches, and trouble–shooting when problems arise.”
In 2009, FHWA issued the State Transportation Liaison Funded Positions Study, which assesses trends in the use of “funded positions” and provides recommendations to State DOTs and resource agencies to support more effective uses of funded positions.
FHWA also is funding federal liaison positions at the headquarters level. These FHWA liaisons focus on national initiatives and innovations in policy, process improvements, and research. In addition, they can capture lessons learned from field offices and projects around the country and share information through various outreach efforts, such as training events and web communications. FHWA has liaison positions in four federal agencies: U.S. Fish & Wildlife Service, U.S. Army Corps of Engineers, Advisory Council on Historic Preservation, and U.S. EPA. For contact information, link to FHWA’s Federal Resource Agency Liaisons web page.