Effectiveness of Full Delegation of Federal Environmental Permit Responsibilities to Contractors for Reducing Permit Violations during Construction

Focus Area

Environmental Considerations in Planning








2-3 years

Research Idea Scope

The objective of this research is to understand how and to what degree the full delegation of environmental permit responsibilities (and associated penalties for noncompliance) may change contractors’ construction sequencing, methodology and work approach such that it leads to a systematic and increased potential for compliance with environmental permit requirements. Another objective of this research is to assess to what degree there is a realized overall cost variation (higher or lower) among both project proponents and contractors related to this type of environmental impact control measures. Lastly, we need to understand if delegation of federal permit responsibilities has an overall and worthwhile value to both the environment and project proponents. Task 1: Conduct Interviews Conduct interviews with selected state DOT officials to understand the extent to which the practice of delegation of federal permits has been undertaken by state DOTs. Consult with legal authorities in the field to determine the extent to which project proponents may delegate their responsibilities on federal permits. If impediments to such delegation, determine by what is needed (e.g., interagency agreement) to convey responsibility—at least on a one-time basis for potential pilot projects. Work with state DOT and resource agency officials to understand the expected benefits, challenges and concerns that may arise from the delegation of federal permit responsibilities. Task 2: Assess Regional Acceptance of Delegation From Task 1, determine which state DOTs and associated federal resource agencies express acceptance to further exploring the full delegation of federal permit responsibility. Assess the projects proffered by the state DOTs. Determine the type of federal permits and the responsibilities that the permits may entail for each project. Form legal agreements or waivers where necessary with resource agencies to remove barriers to the delegation of authority for the pilot projects. The selected projects should each have at least three federally issued permits and be over $5 million dollars in construction value. Projects may be either design-bid-build or design-build. The projects should reside, to the extent possible, in different regions of the country. Select five (5) projects (if available) for pilots. Altogether, projects should offer the widest possible array of federal permits, resources impacted and type of construction activity. Task 3: Conduct Pilot Projects From Task 2, work with state DOTs to track selected values of the project which are needed to verify research outcomes. As a minimum, these should include: • Holistic cost comparison of subject projects with traditional design-bid-build or design-build projects from design through physical completion; • Comparison of frequency of potential violations through quarterly reviews by the state DOT and resource agencies and reported permit violations for these and traditional projects (this should exclude administrative violations); • Documentation of changes in construction sequencing and work approach between control and delegated project types (especially those that lead to the differential effect on the environment); and • An estimate of the amount of impact (both positive and negative) to the environment from both the control and delegated project types. Task 4: Report Evaluating the Pilot Projects From Task 3, assess the positive and negative consequences of the delegation of federal permit responsibilities to the contractor. While the information and comparisons may not be statistically robust, conclusions should indicate an accepted outcome and the rationale for that outcome. Document the subjective level of confidence indicted by stakeholders along with the reason for their considered opinion. Put this information into a report. Provide all stakeholders an opportunity to review and comment on the report. Submit the completed report with an executive summary that includes conclusions, further research needs, potential hurdles to implementation and what laws may need to be changed to allow full and complete delegation of federal authority on environmentally related permits.

Urgency and Payoff

The nexus between the human and natural environments as well as the overlapping interference amongst these two worlds is becoming more evident day-by-day. As the problems increasingly mount, transportation project proponents are increasingly task with finding better ways of dealing with this conflict. Contractors building transportation facilities are largely shielded from enormous resource agency penalties during construction as the owner (e.g., state DOT) holds the permits. Similarly, contractors can use methods that are least cost for them but cost the owners enormous amounts of money (e.g., opening an expanse of grade that later needs to be covered and thus protected from eroding into nearby streams). The net benefit is that across this country alone, we may be able to slow measurably the substantive harm of human expansion by how we go about building and expanding our facilities. Changing the way contractors approach the work of building and expanding transportation facilities may be able to save an untold amount of money. Administrative changes in the work methods and sequence to gain permit compliance may substantially aid the protection of the environment and save wasted resources from polluting our world (e.g., plastic sheeting for erosion protection) and may better prevent costly impacts to the environment. A well thought out and easily explained adjusts to construction approaches and sequencing will gain the public and resource agency trust—saving precious human and monetary resources. Transportation officials will be able to adopt quickly these changes. Such work can easily be shared throughout the country.

Suggested By

Martin Palmer Washington State DOT

[email protected]