Highways and Environment
Transportation Agencies Are Acting to Involve Others in Planning and Environmental Decisions Gao ID: GAO-08-512R April 25, 2008Meeting the nation's mobility needs requires constructing, improving, and repairing roads and bridges. However, these actions can have serious environmental impacts, such as harming water quality and wildlife and their habitats. The federal government's policy is to carry out federally funded highway projects in an environmentally responsible manner, as directed by the National Environmental Policy Act of 1969 (NEPA) and other environmental and natural resource protection laws. The environmental review of projects, as required by the act, involves identifying and assessing environmental impacts; evaluating alternatives; seeking input, and in some cases approvals, from federal and state agencies responsible for natural resources, environmental protection, and historic preservation (referred to hereafter as resource agencies); and obtaining approval from the Federal Highway Administration (FHWA). These reviews provide important environmental protections, yet it is generally agreed that it often takes too long to complete the most complex highway projects and the environmental review is the most time-consuming aspect. In 2005, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) made a number of changes to the planning and environmental review processes required of state and local transportation agencies. These changes were intended to facilitate more efficient reviews of transportation projects, allowing them to be completed more quickly without diminishing environmental protections. For example, since SAFETEA-LU was enacted, federal law has required that state departments of transportation and metropolitan planning organizations (MPO) consult with federal and state resource agencies, among other things, in developing their long-range transportation plans. The law also requires that agencies charged with gaining environmental approval (such as FHWA and the state departments of transportation that sponsor the projects--called lead agencies) of the most complex highway projects--those requiring environmental impact statements (EIS)--invite resource agencies that have an interest in the project to participate in defining the purpose and need for the project, the alternatives to be considered, and the methodology for conducting the environmental review. The law also imposes a limit of 180 days for the filing of a lawsuit challenging final federal agency decisions, including environmental decisions, on a highway project. These activities were not required before SAFETEA-LU was enacted. Congress asked that we assess whether the changes Congress envisioned for transportation planning and the environmental review and approval of highway projects are being effectively carried out. Accordingly, we assessed (1) the progress that selected state departments of transportation, MPOs, and FHWA have made in incorporating environmental considerations in transportation planning and (2) the progress that selected states and FHWA have made in implementing changes in the environmental review of highway projects.
All six state departments of transportation and the six MPOs that we contacted are taking or considering initial steps to incorporate environmental considerations into long- range transportation planning, and FHWA has carried out a number of implementation and educational activities to guide their efforts. Four of these agencies (two state departments of transportation and two MPOs) have issued long-range plans that comply with the post-SAFETEA-LU planning requirements, according to FHWA. The others expect to do so by 2010, in line with their planning cycles. Several of the transportation planners and most of the resource agencies told us that getting early input from resource agencies could be beneficial in identifying potentially affected resources at an early stage so that mitigation or avoidance measures, if needed, could be identified early. However, they cited several challenges in getting such input, most notably (1) the limited availability of funding and staff at resource agencies; (2) limited incentives for resource agencies to contribute during planning, since early involvement is not part of these agencies' missions or experience; and (3) unfamiliarity on the part of resource agencies and planners with each other's roles and processes. State department of transportation and MPO planners' progress in developing consultation relationships with resource agencies has varied, and those that had strong prior relationships with resource agencies are advancing more quickly. For example, the North Carolina Department of Transportation told us it had started consulting with resource agencies as part of its planning process in 2004--before SAFETEA-LU was enacted. FHWA's implementation and educational activities include issuing regulations and guidance, disseminating leading practices, presenting Web-based seminars and other educational activities, and conducting oversight of state department of transportation and MPO transportation planning activities. State departments of transportation, MPOs, and other stakeholders that we contacted generally gave positive reviews of FHWA's efforts. According to FHWA officials, because of the long-term nature of the transportation planning process, it will likely take years before any benefits from these changes are apparent.
GAO-08-512R, Highways and Environment: Transportation Agencies Are Acting to Involve Others in Planning and Environmental Decisions
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GAO-08-512R:
Washington, DC 20548:
United States Government Accountability Office:
April 22, 2008:
The Honorable James M. Inhofe:
Ranking Member:
Committee on Environment and Public Works: United States Senate:
Subject: Highways and Environment: Transportation Agencies Are Acting
to Involve Others in Planning and Environmental Decisions:
Dear Senator Inhofe:
Meeting the nation's mobility needs requires constructing, improving,
and repairing roads and bridges. However, these actions can have
serious environmental impacts, such as harming water quality and
wildlife and their habitats. The federal government's policy is to
carry out federally funded highway projects in an environmentally
responsible manner, as directed by the National Environmental Policy
Act of 1969 (NEPA) and other environmental and natural resource
protection laws. The environmental review of projects, as required by
the act, involves identifying and assessing environmental impacts;
evaluating alternatives; seeking input, and in some cases approvals,
from federal and state agencies responsible for natural resources,
environmental protection, and historic preservation (referred to
hereafter as resource agencies); and obtaining approval from the
Federal Highway Administration (FHWA). These reviews provide important
environmental protections, yet it is generally agreed that it often
takes too long to complete the most complex highway projects and the
environmental review is the most time-consuming aspect.[Footnote 1]
In 2005, the Safe, Accountable, Flexible, and Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) made a number of changes to
the planning and environmental review processes required of state and
local transportation agencies. These changes were intended to
facilitate more efficient reviews of transportation projects, allowing
them to be completed more quickly without diminishing environmental
protections. For example, since SAFETEA-LU was enacted, federal law has
required that state departments of transportation and metropolitan
planning organizations[Footnote 2] (MPO) consult with federal and state
resource agencies, among other things, in developing their long-range
transportation plans. The law also requires that agencies charged with
gaining environmental approval (such as FHWA and the state departments
of transportation that sponsor the projects--called lead agencies) of
the most complex highway projects--those requiring environmental impact
statements (EIS)--invite resource agencies that have an interest in the
project to participate in defining the purpose and need for the
project, the alternatives to be considered, and the methodology for
conducting the environmental review. The law also imposes a limit of
180 days for the filing of a lawsuit challenging final federal agency
decisions, including environmental decisions, on a highway project.
These activities were not required before SAFETEA-LU was enacted.
You asked that we assess whether the changes Congress envisioned for
transportation planning and the environmental review and approval of
highway projects are being effectively carried out. Accordingly, we
assessed (1) the progress that selected state departments of
transportation, MPOs, and FHWA have made in incorporating environmental
considerations in transportation planning and (2) the progress that
selected states and FHWA have made in implementing changes in the
environmental review of highway projects. We focused our work on six
states, which we chose based on geographic diversity and their varying
amounts of experience with implementing the new transportation planning
and environmental review requirements. For the most part, our
assessments were based on interviews of federal, state, and local
agency officials responsible for the implementation of SAFETEA-LU
changes within those states, since the agencies were still in the early
stages of implementing these changes and little data were
available.[Footnote 3] In addition, as part of our work on changes in
environmental reviews, we gathered information on the implementation of
SAFETEA-LU's provisions which allow for state departments of
transportation to assume responsibility for determining that certain
highway projects that will not have a significant impact on the
environment (e.g., maintenance of existing highways) as well as a pilot
program which allows certain states the ability to assume all or part
of FHWA's environmental review responsibilities.
We briefed your office on March 13, 2008, on the results of our work,
which this report transmits. A copy of the briefing is enclosed. (See
enclosure I.) The slides have been updated to reflect current status.
Results in Brief:
All six state departments of transportation and the six MPOs that we
contacted are taking or considering initial steps to incorporate
environmental considerations into long-range transportation planning,
and FHWA has carried out a number of implementation and educational
activities to guide their efforts. Four of these agencies (two state
departments of transportation and two MPOs) have issued long-range
plans that comply with the post-SAFETEA-LU planning requirements,
according to FHWA.[Footnote 4] The others expect to do so by 2010, in
line with their planning cycles. Several of the transportation planners
and most of the resource agencies[Footnote 5] told us that getting
early input from resource agencies could be beneficial in identifying
potentially affected resources at an early stage so that mitigation or
avoidance measures, if needed, could be identified early. However, they
cited several challenges in getting such input, most notably (1) the
limited availability of funding and staff at resource agencies;
[Footnote 6] (2) limited incentives for resource agencies to contribute
during planning, since early involvement is not part of these agencies'
missions or experience; and (3) unfamiliarity on the part of resource
agencies and planners with each other's roles and processes. State
department of transportation and MPO planners' progress in developing
consultation relationships with resource agencies has varied, and those
that had strong prior relationships with resource agencies are
advancing more quickly. For example, the North Carolina Department of
Transportation told us it had started consulting with resource agencies
as part of its planning process in 2004--before SAFETEA-LU was enacted.
FHWA's implementation and educational activities include issuing
regulations and guidance, disseminating leading practices, presenting
Web-based seminars and other educational activities, and conducting
oversight of state department of transportation and MPO transportation
planning activities. State departments of transportation, MPOs, and
other stakeholders that we contacted generally gave positive reviews of
FHWA's efforts. According to FHWA officials, because of the long-term
nature of the transportation planning process, it will likely take
years before any benefits from these changes are apparent.
The six state departments of transportation that we contacted are
implementing the revised environmental review requirements for all
applicable highway projects, and FHWA has carried out a number of
activities to promote and guide implementation.[Footnote 7]
Specifically, for the 24 new highway projects in these states that
require EISs, these agencies are taking steps to enhance the
involvement of resource agencies and develop plans to coordinate and
schedule their involvement. State departments of transportation,
resource agencies, and other transportation stakeholders recognized
potential benefits from the 2005 act, such as (1) improved project
management, (2) an increased likelihood of weeding out flawed
alternatives early, and (3) increased opportunities for resource
agencies to be informed and involved. Challenges to implementing the
post-SAFETEA-LU environmental review requirements in these six states
include resource agencies' limited resources and limited knowledge
about their changed role. Some state departments of transportation fund
positions at resource agencies to help complete environmental reviews,
using their federal-aid funds, and FHWA is studying best practices for
doing so. FHWA's implementation and educational activities include
issuing guidance; conducting outreach to federal, state, and local
agencies to familiarize them with SAFETEA-LU's changes; disseminating
leading practices through its Web site; and conducting oversight of the
environmental review activities of state departments of transportation.
As with the revised planning provisions, state officials we contacted
generally viewed FHWA's activities positively. In addition, the agency
is considering developing performance measures to monitor the
implementation and impacts of changes made by SAFETEA-LU in
environmental reviews. However, it will likely take at least 3 to 5
years before impacts can be determined.
We provided a draft of this report to the Department of Transportation
and five federal resource agencies that have been involved in SAFETEA-
LU implementation and that are responsible for resources important to
the states we contacted. The department and two of the resource
agencies agreed with the draft report, while the other three resource
agencies did not express an overall opinion.
Background:
Federal funding for highway projects represents a large investment--
about $40 billion in fiscal year 2007. In addition, states will likely
invest about $8 billion in fiscal year 2007 for federally funded
highway projects. Federally funded highway projects are typically
completed in four phases:
1) Planning: State departments of transportation and MPOs assess the
need for a project in relation to other potential highway project
needs.
2) Preliminary design and environmental review: State departments of
transportation identify potential solutions based on needs identified
during planning, potential environmental and social effects, project
cost, and construction location; identify the effect, if any, of the
proposed project and of potential alternatives on the environment; and
select the preferred alternative.
3) Final design and right-of-way acquisition: State departments of
transportation finalize design plans, acquire property, and relocate
residents and businesses.
4) Construction: State departments of transportation award construction
contracts, oversee construction, and accept the completed project.
FHWA plays a key role in funding and overseeing the completion of
highway projects. In addition to providing financial assistance for
state departments of transportation to build and improve highways and
roads, typically equal to about 80 percent of the cost, FHWA
establishes standards for transportation planning, project design,
environmental review, and construction. FWHA also provides state
agencies with planning and design support for federally funded highway
projects. State departments of transportation, in coordination with
MPOs, are responsible for planning, designing, and completing these
projects.
Federal law requires that state departments of transportation, along
with MPOs, develop long-range plans, covering at least 20 years, for
their vision of transportation needs for their states and metropolitan
areas, respectively. Additionally, state departments of transportation
and MPOs are required to develop shorter-term transportation plans
(typically covering 4 years) that identify specific projects to be
funded.[Footnote 8]
The review of potential environmental impacts is an important step and
must be completed before state departments of transportation begin
building federally funded highway projects or projects that require a
federal permit or approval.[Footnote 9] Specifically, state departments
of transportation must assess the consequences of transportation
projects and possible alternatives on the natural and human (e.g.,
health and community impacts) environment and historic properties. For
the small number of projects that FHWA deems to have a significant
impact on the environment--about 7 percent of all highway projects in
2005 (latest data available)--the state department of transportation
prepares an EIS, which FHWA must approve before the project can be
built.[Footnote 10] The EIS describes the project, characterizes the
surrounding environment, analyzes the environmental impacts of a range
of project alternatives, and indicates plans for complying with
environmental laws and mitigating any environmental damage caused by
the project. (See fig. 1.) Federal resource agencies, such as the Army
Corps of Engineers, Fish and Wildlife Service (FWS), Environmental
Protection Agency (EPA), and Advisory Council on Historic Preservation,
and their state counterparts, participate in and review these detailed
assessments of environmental impacts, in accordance with their
responsibilities under federal or state laws. (See table 1 for examples
of the responsibilities of resource agencies relating to the
environmental review of federal highway projects.[Footnote 11]):
Figure 1: Examples of Efforts to Mitigate Potential Harm to Wildlife:
[See PDF for image]
This figure contains two photographs of examples of efforts to mitigate
potential harm to wildlife.
Source: North Carolina DOT (bear tunnel photograph) and Dr. Tony
Clevenger, Western Transportation Institute (wolf photograph).
Measures to mitigate effects on natural resources can be indentified
early during long-range highway planning or later during environmental
review of projects. For example, wildlife- such as wolves, bear, and
deer- may not be able to move safely from one area to another when
their habitats are disrupted by roads. A passageway in the form of a
box culvert under the road in an area likely to be used by wildlife was
a mitigation measure that was used (photo on the left) during the
construction of a portion on an interstate highway. In the photo on the
right, a wolf travels safely through its natural habitat using a
highway underpass.
[End of figure]
Table 1: Examples of Federal Resource Agency Responsibilities in
Environmental Reviews of Highway Projects:
Agency: Advisory Council on Historic Preservation;
Responsibility: Reviews and facilitates agreement on projects to ensure
that preservation values are factored into projects.
Agency: Army Corps of Engineers;
Responsibility: Reviews and approves projects, through issuing a
permit, that affect navigable waters, in coordination with NEPA
reviews.
Agency: Environmental Protection Agency;
Responsibility: Reviews and comments on the environmental impacts of
major federal actions for which an EIS is required.
Agency: Fish and Wildlife Service;
Responsibility: Provides technical assistance to help maintain the
sustainability of fish and wildlife and their habitats.
Source: GAO.
[End of table]
For federal highway projects requiring an EIS, FHWA is a steward of the
process and responsible for ensuring that the statement is in
compliance with applicable environmental laws and other requirements.
FHWA is the lead federal agency and supports the project applicant--
typically the state department of transportation--which participates as
a joint lead agency. The state department of transportation is
responsible for producing the environmental documentation for a highway
project, whereas FHWA guides the process to ensure appropriate scope
and the content of the documentation. FHWA also is responsible for
ensuring that the EIS contains documentation on coordination with the
appropriate federal, state, and local resource agencies and the public.
EPA is responsible for reviewing and commenting on all major federal
actions for which an EIS is required and working with FWHA to ensure
that environmental statutes are met. FHWA has the final approval and
determines when the statement is in compliance with applicable
environmental laws and other requirements.
Because of the complex and often controversial issues involved, the
data that need to be analyzed, and the number of stakeholders involved,
it typically takes years for an EIS to be completed and approved.
According to FHWA, these reviews have taken an average of about 6 years
since fiscal year 1999 and about 12 percent of them have taken longer
than 10 years. (See fig. 2.) For EISs approved in 2007, the average
time taken to complete the statements and gain approval was about 7
years, according to FHWA.[Footnote 12]
Figure 2: Completion Times for EISs by Fiscal Year:
[See PF for image]
This figure is a multiple line graph depicting the following data:
Completion Times for EISs by Fiscal Year:
Fiscal year: 1999;
Median: 8.3;
Mean: 6.
Fiscal year: 2000;
Median: 5;
Mean: 5.6.
Fiscal year: 2001;
Median: 4.5;
Mean: 5.3.
Fiscal year: 2002;
Median: 6.7;
Mean: 6.4.
Fiscal year: 2003;
Median: 5.6;
Mean: 6.
Fiscal year: 2004;
Median: 4.5;
Mean: 6.
Fiscal year: 2005;
Median: 5;
Mean: 6.3.
Fiscal year: 2006;
Median: 5.1;
Mean: 6.3.
Fiscal year: 2007;
Median: 5.7;
Mean: 6.75.
Source: FHWA.
Note: Completion times are for the year in which the EIS was approved.
This figure does not include any highway projects requiring EISs
initiated after the enactment of SAFETEA-LU, because none have
progressed to this point.
[End of figure]
Concerns about the time taken to complete environmental reviews led to
congressional and executive branch efforts to make environmental
reviews more efficient and timely without diminishing environmental
protections. Congress included provisions to make environmental reviews
more efficient and timely in adopting the 1998 Transportation Equity
Act for the 21st Century (TEA-21). For example, these provisions
required FHWA to work cooperatively with federal resource agencies to
establish project time frames and to meet these agreed-upon time
frames. The law allows state agencies to participate in these efforts.
Finally, FHWA may approve requests from states to use their federal-aid
highway funds to provide additional resource agency personnel dedicated
to conducting environmental reviews of transportation projects in order
to expedite these reviews.[Footnote 13]
SAFETEA-LU made further changes to expedite highway project decision
making and completion while continuing to ensure environmental
protection. In the transportation planning stage, the act made changes
to enhance consideration of environmental issues by states and MPOs
during planning in order to identify and potentially avoid or minimize
impacts on resources and thereby facilitate more efficient
environmental reviews of individual projects. Key changes include the
following:
* State departments of transportation and MPOs must consult with
federal, state and local resource agencies in developing their long-
range transportation plans, using available resource plans and
data.[Footnote 14] Such consultation was not required before SAFETEA-
LU, but some agencies may have done so.
* Consultation with resource agencies should include discussions of
potential environmental mitigation activities, and the results of these
discussions are to be included in long-range plans. Such consultation
was not required before SAFETEA-LU.
In the environmental review stage, the act made changes to enhance the
involvement of resource agencies, better define roles and
responsibilities, and limit time frames for challenging agency
decisions in order to facilitate more efficient and timely decision
making about highway projects, while protecting environmental
resources.[Footnote 15] The legislation, however, did not change the
mission of resource agencies.
Key changes, which state departments of transportation generally carry
out with FHWA participation, include the following:
* Established a new category of involved resource agencies, known as
participating agencies, which can be any agency with an interest in a
highway project, allowing involvement from a broader range of
interested parties. Prior to SAFETEA-LU, agencies with jurisdiction
either through law or special expertise (called "cooperating agencies")
were to be involved; SAFETEA-LU broadened participation to include
those that may not qualify as cooperating agencies but may still have
an interest in the project.
* Required plans for coordinating public and agency participation in
and comment on environmental reviews of projects. Prior to SAFETEA-LU,
coordination with the public and agencies with jurisdiction was
required, but plans for this coordination were not required.
* Provided participating agencies and the public with an opportunity
for early involvement in defining a project's purpose and need and in
developing alternatives. This was not required prior to SAFETEA-LU
although it may have occurred.
* Encouraged collaboration between state departments of transportation
and participating agencies on methodologies for conducting
environmental reviews. This was not required prior to SAFETEA-LU
although it may have occurred.
* Imposed a 180-day limit on filing lawsuits that challenge final
federal agency decisions, including environmental decisions.[Footnote
16] Prior to SAFETEA-LU, lawsuits could be filed as much as 6 years
after the decision.
Through these new transportation planning and environmental review
requirements, SAFETEA-LU strengthened linkages between (1)
transportation planning by states and MPOs and (2) environmental issues
affecting decisions about individual highway projects resulting from
environmental reviews. The new requirements also provided opportunities
for resource agencies to play a greater role in these activities to
achieve more efficient decision making on environmental issues related
to transportation projects. Overall, these strengthened linkages
promote a more integrated approach to transportation planning,
environmental reviews, and the incorporation of resource agency input.
(See fig. 3.)
Figure 3: Linkages Encouraged by SAFETEA-LU:
[See PDF for image]
This figure is an illustration of the Linkages Encouraged by SAFETEA-
LU:
Resource agencies: Link to:
* Statewide and metropolitan transportation planning (Early
consultation to identify environmental concerns);
* Individual highway project decisions (Enhanced participation in
environmental reviews to have better, more efficient decision making on
environmental issues).
Statewide and metropolitan transportation planning and Individual
highway project decisions are linked to one another for greater
integration of transportation planning and project-level decisions.
Source: GAO adaptation of FHWA graphic.
[End of figure]
SAFETEA-LU added other requirements to make environmental reviews more
efficient and allow state departments of transportation to assume
greater responsibility for federal environmental requirements related
to highway projects. These provisions, among others, include (1)
allowing state departments of transportation, with FHWA approval and
monitoring, and using criteria established by FHWA, to assume the
responsibility for determining whether certain highway projects
(designated in regulations or approved by FHWA) will not have a
significant impact on the environment, referred to as categorical
exclusions;[Footnote 17] and (2) establishing a pilot program--called
the surface transportation project delivery pilot program--that allows
up to five designated states, with agreement from FHWA and subject to
FHWA's periodic review, to assume FHWA's environmental responsibilities
for highway projects under NEPA and other federal laws.[Footnote 18]
For a state's assumption of categorical exclusion authority and the
pilot program, the terms of the state's authority are specified in a
memorandum of understanding with FHWA. SAFETEA-LU further allows for
financial assistance to affected federal, state, or tribal agencies to
support activities that expedite and improve transportation project
planning and the completion of individual highway projects.[Footnote
19]
Agency Comments and Our Evaluation:
We provided a draft of this report to the Department of Transportation
and to five federal resource agencies that have been involved in
SAFETEA-LU implementation and that are responsible for resources
important to the states we contacted: the Advisory Council on Historic
Preservation, the Army Corps of Engineers, the Department of the
Interior, EPA, and the Forest Service. The Department of the Interior
provided a response for FWS and other agencies of that department that
we had dealt with. The Advisory Council , Interior, and the Forest
Service agreed with the draft report, while the other three agencies
did not express an overall opinion. The Department of Transportation
and EPA provided several technical and clarifying comments, which we
included where appropriate.
Scope and Methodology:
To determine the progress made in implementing key changes called for
by SAFETEA-LU in transportation planning to incorporate environmental
considerations and in environmental reviews of highway projects, we
reviewed the act and its legislative history and FHWA regulations and
other guidance and documentation. In addition, we interviewed officials
of FHWA headquarters, organizations representing transportation and
environmental interests, FHWA division offices, and state departments
of transportation and MPOs[Footnote 20] in six states--Alabama, Iowa,
North Carolina, Ohio, Texas, and Utah. We chose these states based on
geographic diversity and their varying amounts of experience with
implementing the new transportation planning and environmental review
requirements. To determine states' experience with these requirements,
we considered their level of experience with the development of EISs
since SAFETEA-LU was enacted, their usage of the 180-day limitation on
lawsuits challenging highway project environmental approvals since the
limitation became law, and the extent of the changes the state needed
to carry out in order to comply with planning and environmental review
requirements added by SAFETEA-LU.[Footnote 21] We used information from
the six states for illustrative purposes--we cannot generalize the
experiences of these states to nationwide efforts. We obtained
information from one MPO and two to three resource agencies responsible
for natural and historic resources in each of the six states in our
study. We chose the MPOs in the most populous, urbanized areas of each
of the states, potentially with the highest volume of highway projects,
for our review. We selected resource agencies responsible for resources
important to the state and also considered their frequency of
interaction with state departments of transportation and MPOs on
transportation planning and environmental reviews and chose at least
one federal resource agency in each of the states. Additionally, we
interviewed headquarters officials of key federal resource agencies. We
also interviewed a California Department of Transportation official
about the department's assumption of all federal environmental review
responsibilities, since California is the only state to date to assume
these responsibilities. See enclosure II for a list of organizations
contacted.
We gathered much of the information for this report through interviews
because data on the implementation of SAFETEA-LU's changes are limited.
In addition, it was not practical to gather information from a large
number of states and MPOs and resource agencies that interact with
them. Given that states and MPOs were not required to incorporate
SAFETEA-LU's transportation planning provisions until they amended or
updated their transportation plans on or after July 1, 2007, many of
the states are just starting to implement these provisions. We did not
review the implementation of significant changes made by SAFETEA-LU in
environmental review requirements specifically related to public parks
and historic sites, mainly because the act required that FHWA evaluate
the implementation of these changes and report to Congress.[Footnote
22] As part of our overall work, we assessed how FHWA measures progress
toward improving and expediting environmental review processes under
SAFETEA-LU. To do this, we interviewed FHWA officials about how the
agency is monitoring this progress and its plans for any future efforts
in this area and reviewed agency documents.
We conducted this performance audit from April 2007 through April 2008
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
We are sending copies of this report to congressional committees and
subcommittees with responsibility for highway infrastructure and
environmental issues; the Secretary of Transportation; the Secretary of
Interior; the Administrator, Environmental Protection Agency; the
Commander, U.S. Army Corps of Engineers; the Executive Director,
Advisory Council on Historic Preservation; the Chief, Forest Service;
the Administrator, FHWA; and the Director, Office of Management and
Budget. We will also make copies available to others upon request. In
addition, the report will be available at no charge on our Web site at
[hyperlink, http://www.gao.gov].
Should you or your staff have any questions on matters discussed in
this report, please contact me at (202) 512-2834 or siggerudk@gao.gov.
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this report. Key contributors
to this report were Stephanie Fain, Jacqueline Garza, Judy Guillams-
Tapia, Brandon Haller, Bert Japikse, Marietta Mayfield, Patricia
McClure, Erica Miles, James Ratzenberger, and Ilga Semeiks.
Sincerely yours,
Signed by:
Katherine A. Siggerud:
Director, Physical Infrastructure Issues:
Enclosures:
Enclosure I:
Briefing for Congressional Staff:
Highways And Environment: Transportation Agencies Are Acting to Involve
Others in Planning and Environmental Decisions:
Objectives:
With SAFETEA-LU, the Congress made a number of changes to how state
DOTs and MPOs carry out transportation planning and conduct
environmental reviews of transportation projects to facilitate quicker
and more efficient project completion without diminishing environmental
protections. A key concept was stronger linkages between long-range
transportation planning and project-level decisions. (See graphic
below.) We determined (1) the progress that selected states, MPOs, and
FHWA have made in incorporating environmental considerations in
transportation planning and (2) the progress selected states and FHWA
have made in implementing key changes in the environmental review of
highway projects.
Scope and Methodology:
Our work was mainly based on interviews of federal, state, and local
agency officials, since the agencies were still in the early stages of
implementing SAFETEA-LU changes and available data were limited.
Overall, to carry out our work, we (1) reviewed surface transportation
legal materials, including SAFETEA-LU and FHWA regulations; (2)
interviewed officials of FHWA headquarters and key stakeholder
organizations; and (3) interviewed officials of FHWA division offices,
state DOTs, and MPOs in six states”Alabama, Iowa, North Carolina, Ohio,
Texas, and Utah”as well as selected federal and state resource agency
officials responsible for natural and historic resources in these
states. In addition, we interviewed California DOT officials about
California‘s assumption of certain authorities for environmental
reviews.
Summary of Results:
All six state DOTs and six MPOs that we contacted are taking or
considering initial steps to incorporate environmental considerations
into long-range transportation planning.
* Four have issued long-range plans that are compliant with the new
requirements; the others expect to do so by 2010, in line with their
planning cycles.
* Challenges include (1) resource agencies‘ limited resources and
limited incentive to contribute at the planning stage and (2) lack of
knowledge by resource agencies and planners of each other‘s roles and
processes.
* FHWA has undertaken a variety of implementation efforts, such as
issuing guidance and conducting outreach to affected agencies. State
DOTs and others we contacted generally gave positive reviews of FHWA‘s
efforts.
* Because of the long-term nature of the planning process, it will
likely take years before any benefits of these changes are apparent.
The six state DOTs are implementing the revised environmental review
requirements for those new highway projects that require EISs.
* State DOTs are meeting the new requirements by increasing the
involvement of resource agencies and the public and preparing plans to
coordinate this involvement.
* Challenges include limited resource agency resources and knowledge
about the revised requirements affecting them.
* As it has for the planning provisions, FHWA has undertaken a number
of efforts to implement the environmental review provisions. The state
officials we contacted generally viewed these efforts positively.
* In addition, the agency is considering developing performance
measures to monitor the implementation and impacts of changes made by
SAFETEA-LU in environmental reviews. However, it will likely take at
least 3 to 5 years before impacts can be determined.
Figure: Linkages Encouraged by SAFETEA-LU:
[See PDF for image]
This figure is an illustration of the Linkages Encouraged by SAFETEA-
LU:
Resource agencies: Link to:
* Statewide and metropolitan transportation planning (Early
consultation to identify environmental concerns);
* Individual highway project decisions (Enhanced participation in
environmental reviews to have better, more efficient decision making on
environmental issues).
Statewide and metropolitan transportation planning and Individual
highway project decisions are linked to one another for greater
integration of transportation planning and project-level decisions.
Source: GAO adaptation of FHWA graphic.
[End of figure]
Transportation Planning:
Key Changes:
State DOTs and MPOs are now required to consult with resource agencies
about avoiding or mitigating impacts of transportation projects on
natural and historic resources in developing their long-range
transportation plans, using available resource plans and data. Resource
agencies include federal, state, tribal, and local agencies responsible
for land-use management, natural resources, environmental protection,
conservation, and historic preservation. Potential environmental
impacts of transportation projects that are of concern include damage
to wetlands, waterways, wildlife, and endangered or threatened species.
Consultation with resource agencies should include discussions of
potential environmental mitigation activities, and results of these
discussions are to be included in long-range plans.
State DOTs and MPOs are not required to update their plans outside of
their normal planning cycles but must comply when preparing any updates
of their plans issued after July 1, 2007.
These provisions were designed to enhance consideration of
environmental issues in the planning stage to avoid or minimize impacts
on resources and thereby facilitate more efficient environmental
reviews of individual projects.
Overall Assessment of Progress:
All six states and six MPOs we covered are taking or considering
initial steps to fulfill transportation planning requirements.
* Some are further along than others:
- Two states and two MPOs have issued long-range plans that comply with
the new requirements, according to FHWA.
- The others expect to update their plans over the next several years
(2008-2010).
- Progress depends on the planning update cycle of individual states
and MPOs.
Table: Date of Issued or Expected Long-range Plan Update for the States
and MPOs We Contacted:
State: Alabama;
State DOT: May 2008;
MPO: June 2009.
State: Iowa;
State DOT: September 2008;
MPO: September 2009.
State: North Carolina;
State DOT: 2009 or 2010;
MPO: June 2009.
State: Ohio;
State DOT: July 2007[A];
MPO: May 2008.
State: Texas;
State DOT: December 2008;
MPO: June 2007[A].
State: Utah;
State DOT: June 2007[A];
MPO: June 2007[A].
Source: GAO analysis of information provided by state DOTs, MPOs, and
FHWA.
[A] Issued.
[End of table]
Progress also depends on the existence and strength of relationships
between DOTs or MPOs and resource agencies. According to FHWA
officials, since the planning process is lengthy, nationwide it could
take until 2009-2010 for most states and MPOs to fulfill these
requirements.
* According to FHWA, some DOTs and MPOs updated their plans before the
July 2007 deadline in order to ’start the clock over“ and give
themselves more time to meet the new planning requirements.
* FHWA does not have nationwide data on progress in fulfilling these
requirements.
Varied Progress in Consulting with Resource Agencies:
State DOTs and MPOs we interviewed vary in their progress in developing
relationships with resource agencies.
* Some DOTs with strong pre-SAFETEA-LU relationships with resource
agencies reported not needing to make changes in their processes to
comply.
- For example, the North Carolina DOT told us it had begun modifying
its planning process in 2004 to include consultation with resource
agencies.
* Some agencies have already held one or more group meetings with
resource agencies.
- For example, the Des Moines Area MPO has recently formed a working
group of stakeholders, including resource agencies, to discuss issues
early in the planning process and provide advice.
* Other agencies have only considered how they might consult with
resource agencies.
Some environmental data are available, but data gaps are a concern.
* A key to incorporating environmental considerations into
transportation planning is good data on the location of natural,
historic, and archeological resources, such as wetlands locations.
* Some planners we contacted are working with resource agencies to get
or improve maps of resources to be compared with transportation plans.
- All six states reported some geographic information systems data
available. [Geographic information systems are computer systems capable
of capturing, storing, analyzing, and displaying geographic information
and can be used to compare the location of natural resources to
transportation plans].
- Most states said they needed better data or were improving their
data.
* Data gaps occur because data are:
- scattered, unavailable, outdated, and incomplete or;
- withheld (e.g., archaeological data withheld to protect sensitive
sites). Withheld data can often be obtained by planners, but with
additional effort.
* Federal resource agencies have data initiatives that may provide
support for transportation planning efforts. For example, EPA has
developed a Web-based geographic information system called ’NEPAssist“
that captures resource data throughout the United States in a single
system and was created to assist agencies participating in
environmental reviews with the preparation and review of NEPA
documents. It also may be used by state and MPO transportation planners
to identify resources that may be impacted by highway projects. A broad
range of geographic resource information is included, such as the
location of wetlands and other water resources, wildlife refuges,
critical habitat for endangered species, federal and state forests,
archeological sites, and EPA-regulated sites, such as Superfund sites
and air quality nonattainment areas. EPA has piloted the system in
several areas and plans to gradually roll it out nationally.
In addition, progress in developing mitigation strategies among
planners we contacted is limited because consultations with resource
agencies are generally in the beginning stages.
* Most DOTs and MPOs we contacted have not yet held discussions with
resource agencies on potential mitigation activities.
* Two DOTs and two MPOs with long-range plans that FHWA has determined
comply with the changes made by SAFETEA-LU have included these
discussions in their plans.
* Planners are required to identify potential environmental mitigation
activities with resource agencies but are not required to carry out
these activities. However, some states already have mitigation banks
that DOTs or MPOs have indicated they could utilize. [Mitigation
banking is a system in which unavoidable damage to wetlands, waterways,
habitat, and other natural resources can be compensated for through the
purchase of credits for the preservation, restoration, or creation of a
comparable resource elsewhere. Transportation or other developers
purchase credits from these banks, which assume responsibility for the
long-term maintenance of these natural resources].
Views on Planning Requirements:
Some transportation planners and most resource agency officials told us
that early input from resource agencies into planning could be
beneficial by identifying potentially affected resources at an early
stage so that mitigation or avoidance measures can be identified early.
According to FHWA, the changes to the planning process, especially
consultations with resource agencies”including discussions of
environmental mitigation”are intended to produce better and more
inclusive transportation decision making. FHWA expects that these
changes will result in better relationships between transportation and
resource agencies, better transportation projects, more effective
conservation of natural and cultural resources, and more efficient
environmental reviews.
Federal funding for positions at resource agencies for transportation-
related work is available.
* Since TEA-21, state DOTs have been allowed to use federal-aid highway
funding for positions at federal and state resource agencies for the
purpose of conducting environmental reviews of highway projects. State
DOTs must obtain the approval of FHWA division offices for such uses of
these funds. In 2005 (the latest data available), 34 states funded
positions at resource agencies. Many of these positions were funded
solely with state funds, according to FHWA. One-third of all positions
were at federal agencies; two-thirds were at state agencies.
* SAFETEA-LU expanded the possible use of such funded positions to
include consultation on long-range planning and the development of
natural resource mapping systems, among other things, as long as these
funded activities contribute to expediting environmental reviews.
* SAFETEA-LU did not authorize any additional funds specifically for
this purpose, however. States proposing to use this authority must take
the funds out of their normal allocation of federal-aid highway funds.
As was the case previously, FHWA must approve such uses of these funds.
Planners and resource agencies generally cited three challenges in
involving resource agencies in planning.
(1) Resource agency resources are limited.
* The primary challenge is limited resource agency resources, including
funding, staff, and time.
- This challenge is exacerbated by the one-to-many relationship of
resource agencies to MPOs.
- Resource agencies may be inundated with new MPO requests to
participate in planning.
- For example, Texas has 25 MPOs, each of which may contact the same
resource agency.
Table: Number of MPOs in Each State:
State: Alabama;
Number of MPOs: 11.
State: Iowa;
Number of MPOs: 9.
State: Ohio; 17
Number of MPOs: 17.
State: North Carolina;
Number of MPOs: 17.
State: Texas;
Number of MPOs: 25.
State: Utah;
Number of MPOs: 4.
Source: FHWA.
[End of table]
* States have mixed views on using funded positions at resource
agencies for planning work.
- North Carolina DOT, for example, funds 30 positions at resource
agencies for environmental reviews of highways and hopes to use these
staff for planning as well.
- Some states, on the other hand, believe resource agencies should fund
their own activities.
- However, most resource agencies we spoke with said that they do not
have enough resources to carry out their new roles.
* Also, like resource agencies, MPOs have limited resources to deal
with their new duties.
* FHWA recognizes that limited resources and competing priorities may
hinder resource agencies‘ participation in transportation planning.
Officials point out that state DOTs‘ use of federal-aid funds for
resource agency positions could be helpful, but the actual use of
funded positions for transportation planning activities could be
controversial and remains to be seen, since such positions have been
used for project-specific environmental review work. FHWA is sponsoring
a study of how state DOTs manage the resource agency positions they
fund; this study will cover whether DOTs are using or expect to use
resource agency positions for transportation planning activities. FHWA
anticipates that a report will be issued in August 2008.
(2) Resource agencies may find it difficult to contribute at the
planning stage.
* Transportation planning has not been a mission for resource agencies
and may not be a priority.
- The enactment of SAFETEA-LU changed agency relationships, but did not
change resource agency missions.
* Although state DOTs and MPOs are required to invite resource agencies
to participate in transportation planning, their participation is not
required.
- Historically, resource agencies have been required by law to give
input at the environmental review stage.
* Resource agencies are not used to long-range transportation planning.
- It is difficult for resource agencies to be definitive about possible
impacts of long-term transportation plans, since these plans are broad
in scope, covering whole metropolitan areas or states. These agencies
are used to having project-specific information before signing off on a
project during environmental review.
* Some resource agencies do not see the added benefit of giving broader
planning input when they are already required to give project-specific
input at the environmental review stage.
* FHWA officials told us they recognize that providing input into
transportation planning takes time and may not be in harmony with
resource agencies‘ missions and need to participate in environmental
reviews of specific projects.
(3) Planners sometimes lack knowledge of resource agencies‘ roles and
processes, and resource agencies sometimes lack knowledge of planners‘
roles and processes.
* Some resource agency offices we contacted lack knowledge of the
transportation planning process and participants.
- FHWA has tried to educate resource agencies on changes made by
SAFETEA-LU through various means, including correspondence, Web-based
seminar presentations, and workshops. We recognize that it is a
challenge for FHWA to reach all agency officials that could be affected
by these changes, given their large number and existence at different
levels of government.
- State DOTs also have provided training, such as a forum in Colorado,
to improve communication among the state‘s transportation planning
agencies and resource agencies.
* Some planners we spoke with lack knowledge of who to contact at
resource agencies.
- MPOs, which do not generally play a role in environmental reviews,
may not be familiar with resource agencies and their missions.
* Some MPOs have raised questions about how to incorporate resource
agencies into planning, such as how much consultation is enough and
what to do if resource agencies do not respond.
* However, the absence of prescriptive requirements provides
flexibility, which some transportation officials welcome.
* FHWA has made a number of efforts to inform transportation planners,
including MPOs, about how best to implement the revised planning
requirements, as described in the next section.
Photograph:
[See PDF for image]
Source: Harris County Flood Control District; reproduced with
permission.
[End of image]
Consideration of environmental resources in transportation planning can
result in the early identification of possible adverse effects of
projects and the identification and eventual implementation of
mitigation measures to address them. For example, such consideration
might indicate a need to mitigate runoff from new highways that could
result in localized flooding or violation of water quality standards.
One mitigation measure might be to retrofit storm water collection
systems to capture and pass highway water runoff through a system of
newly created wetlands. Such a retrofit is shown in the photograph
above.
FHWA Actions to Promote and Oversee Implementation:
FHWA has taken a variety of actions to promote the implementation of
the revised transportation planning requirements, including:
* issuing regulations on statewide and metropolitan transportation
planning in February 2007;
* providing additional guidance on its Planning and Environmental
Linkages Web site;
* conducting outreach to state DOTs, MPOs, and resource agencies to
familiarize them with the changes made by SAFETEA-LU. These activities
have included:
- workshops held in 24 states in which state DOT, MPO, and resource
agency staff discussed how to strengthen linkages between
transportation planning and environmental reviews;
- workshops, held in 5 states to date, that brought together and
trained resource agencies and state transportation planners to improve
collaboration and promote data sharing;
- letters to federal resource agencies notifying them of their new role
in planning; and;
- Web-based seminar presentations to EPA and FWS, with plans for
additional presentations for other federal resource agencies.
* disseminating leading practices through its Web site as well as
through funding of a grant program, called Eco-Logical, to support
innovative efforts; and;
* funding activities of AASHTO‘s Center for Environmental Excellence.
These activities have included:
- educating transportation planners and resource agencies about each
other‘s processes;
- providing technical assistance to transportation planners, and;
- developing a practitioner‘s handbook for state DOTs and MPOs on
incorporating environmental considerations into planning.
FHWA division offices mainly use two methods to oversee implementation:
* Certification reviews of the planning processes for transportation
management areas (urbanized areas with populations of over 200,000) are
FHWA‘s main method of determining progress in implementing the new
planning requirements. [Certification reviews are used to determine
whether aspects of the planning process are in compliance with the law
and to identify areas needing improvement. The reviews are conducted
every 4 years and cover planning by MPOs as well as states].
* Approval by division offices of STIPs is another key method of
overseeing progress. According to FHWA, division offices determine
whether states are making progress in complying with the revised
planning requirements in making STIP approval decisions. FHWA does not
maintain nationwide data on these approvals. However, determinations
regarding compliance progress are documented in any findings about
planning that accompany STIP approval.
We did not evaluate the adequacy of FHWA‘s actions to promote or
oversee the implementation of these SAFETEA-LU provisions.
DOTs‘ and MPOs‘ Views on FHWA Actions:
DOTs and MPOs we contacted generally gave positive reviews of actions
by FHWA headquarters and division offices. Transportation Planning
(con‘t.) Highways and Environment
* Generally, the DOTs and MPOs we contacted reported good communication
or good relationships with FHWA headquarters and division offices.
State DOTs, MPOs, and resource agencies suggested some further actions
to facilitate implementation:
* Expand funding of resource agencies.
* Provide additional training for resource agencies to familiarize them
with the revised requirements that affect them.
* Further clarify what types of activities fulfill the requirement to
consult with resource agencies.
* Disseminate more information on leading practices for MPOs.
As discussed, FHWA is taking a number of actions in these areas and
recognizes the need for continued efforts to facilitate implementation.
Time Needed to Show Benefits of SAFETEA-LU Changes:
According to FHWA, since the transportation planning process is long
term, it will take some time and a number of planning update efforts
for the value of these changes to become apparent.
State and local transportation planners we contacted have mixed views
on whether the changes made by SAFETEA-LU will improve planning
outcomes, while resource agencies are generally positive. Some planners
said that it will be many years before any potential benefits will be
seen.
[End of section]
Environmental Review:
Key Changes:
SAFETEA-LU defined roles and responsibilities and enhanced resource
agency and public involvement during environmental reviews by:
* establishing a new category of resource agency involvement, known as
participating agencies;
* requiring plans for coordinating and scheduling agency and public
participation, known as coordination plans;
* requiring opportunities for early involvement of resource agencies
and the public in defining a project‘s purpose and need and in
developing alternatives;
* requiring collaboration with resource agencies on methodologies for
conducting environmental reviews.
These changes apply to projects requiring an EIS for which reviews were
initiated after the law was enacted.
The overall intent of these provisions was to facilitate more efficient
and timely project decision making while protecting environmental
resources.
Overall Assessment of Progress:
From August 2005, when SAFETEA-LU was enacted, through December 2007,
109 new projects nationwide had been identified as requiring an EIS,
according to FHWA. The environmental reviews for these projects must
follow revised requirements. These projects are moving through the
stages of preparing an EIS, which, on average, takes over 6 years.
[Footnote 23] As of December 2007, 2 projects had reached the final EIS
stage and 2 more had reached the draft EIS stage.
In the six states that we contacted, 30 new projects were identified as
requiring an EIS during this period.
* Of these, 24 are actively moving forward in the post-SAFETEA-LU
environmental review process; the remaining 6 are on hold or are being
canceled.
* A draft EIS has been prepared for 1 of these projects.
Table: Number of Active EIS Projects Subject to SAFETEA-LU
Requirements, as of December 2007:
State: Alabama;
Number: 2.
State: Iowa;
Number: 4.
State: North Carolina;
Number: 6.
State: Ohio;
Number: 2.
State: Texas;
Number: 5.
State: Utah;
Number: 5.
State: Total;
Number: 24.
Source: State DOTs and FHWA.
[End of table]
State DOTs Are Completing New Required Steps:
The state DOTs that we contacted have taken a number of actions to
complete required steps as they develop EISs for the 24 active
projects.
* All six state DOTs have invited participating agencies to be involved
in environmental reviews and have developed coordination plans.
* All six states also are working to provide opportunities for agencies
and the public to be involved early in defining their projects‘ purpose
and need and the alternatives to be considered and to collaborate with
agencies in developing review methodologies.
* The 24 projects are at different stages, so a few have not yet
completed each step, as shown in the following table.
Table: Total Number of EIS Projects in Six States for Which Key Steps
Required by SAFETEA-LU Have Been Completed, as of December 2007:
Step: Invite participating agencies;
Total: 23.
Step: Develop coordination plan;
Total: 23.
Step: Involve agencies and public in defining purpose and need;
Total: 22.
Step: Involve agencies and public in developing the range of
alternatives;
Total: 20.
Step: Collaborate with agencies on review methodology;
Total: 22.
Step: Total number of active EIS projects subject to SAFETEA-LU
requirements;
Total: 24.
Source: GAO analysis of information provided by state DOTs and FHWA.
[End of table]
* Although these states had varied ways of conducting environmental
reviews, most believed they did not need to make major changes to their
existing processes to comply with the requirements added by SAFETEA-LU.
For example, prior to SAFETEA-LU, some states (Iowa, North Carolina,
and Ohio) had already developed processes that provided early
opportunities for resource agencies and the public to be involved.
Early participation by resource agencies in environmental reviews of
highway projects may help identify and mitigate possible harmful
environmental effects. For example, resource agencies may identify the
possibility of erosion and sedimentation into trout streams. Specific
mitigation measures, such as sediment basins like this one to catch
runoff, could be identified during environmental review and
subsequently be implemented during construction.
Photograph:
{See PDF for image]
Photo of sediment basin.
Source: North Carolina DOT.
[End of image]
Views on Environmental Review Requirements:
State DOTs, resource agencies, and other transportation stakeholders we
contacted recognized some potential benefits of post-SAFETEA-LU changes
in environmental reviews, including:
* improved project management;
* increased likelihood of weeding out flawed alternatives early, and;
* better informed and more involved resource agencies.
According to FHWA, these changes institutionalize more disciplined
project management, essentially ’tightening up“ the environmental
review process. In addition, these changes put FHWA in a stronger
management role. State DOTs and resource agencies cited four main
challenges in their efforts to implement the post-SAFETEA-LU changes in
environmental reviews.
(1) Resource agency resources are limited.
* Resource agencies cited their core regulatory duties as their main
responsibility and told us that resource constraints hamper their
ability to take on extra responsibilities. These constraints may limit
their ability to fully participate in the early stages of environmental
reviews.
* FHWA recognizes that resource constraints may limit the ability of
resource agencies to participate more fully in environmental reviews.
FHWA officials noted that some state DOTs fund positions at resource
agencies, using federal-aid funds, while others do not. AASHTO plans to
survey states by the summer of 2008 to obtain updated information on
the extent to which state DOTs fund positions at resource agencies. As
noted previously, FHWA is sponsoring a study of how states manage these
positions; this study will identify useful practices, including
practices for evaluating the services performed.
(2) Resource agencies‘ and local public authorities‘ knowledge of post-
SAFETEA-LU requirements is incomplete.
* Many resource agencies we contacted told us that they need more
education and training on the changes.
* Some local public authorities leading EIS projects that we contacted
say they have received limited guidance or training from state DOT and
FHWA officials on how to implement the revised requirements.
* FHWA officials have told us that they are aware of these needs and
therefore have made and continue to make efforts to educate resource
agencies and other stakeholders on the new requirements, through Web-
based seminars, for example.
(3) Existing processes must be adapted to meet the revised
requirements.
* Some state DOTs said they have had difficulty reaching agreement with
FHWA division offices on the extent to which their existing processes
need to be changed to comply.
* FHWA officials told us that determining whether or not state DOT
processes are compliant has presented a challenge in some cases. For
example, some states have maintained that their existing environmental
review processes do not need to be changed because they are already in
compliance with post-SAFETEA-LU requirements.
* States that re-engineered their environmental review process under
certain provisions in TEA-21 could request a ’grandfathering“ exemption
to continue operating under their pre-SAFETEA-LU processes. Only
Florida requested this exemption and this request was approved by FHWA.
Some of the states we covered had made major changes in their
environmental review processes prior to SAFETEA-LU. One state DOT
official told us that his agency did not request this exemption because
complying with the SAFETEA-LU requirements did not negatively impact
its processes and it would not have been worthwhile to make such a
request. An official from another state DOT told us that the DOT
decided to make required changes, which were not substantial, to its
process in order to realize potential efficiencies.
4) Documentation requirements have increased.
* Some state DOTs and local public agencies we contacted are concerned
that requirements for more correspondence with resource agencies and
the public, as well as a documented coordination plan, create an
increased paperwork burden”slowing down their efforts to complete
environmental reviews.
* Some state DOTs also expressed a concern that the additional
paperwork burden could open them to lawsuits if this paperwork is
considered deficient in any way.
* Some transportation officials in the states we covered believe that
changes in the environmental review process can result in better
project decisions. However, some cautioned that the process will not
necessarily be more efficient or timely since the extra steps required
to comply with the environmental review provisions add time to
environmental reviews.
* FHWA headquarters officials told us that they had heard indirectly of
such concerns but do not believe that the additional documentation
requirements are overly burdensome. They noted that the new documents
required, especially the coordination plan, help to achieve better
management and oversight of projects.
Use of 180-Day Limitation Is Varied
* According to FHWA, the 180-day statute of limitations had been used
96 times as of December 2007. FHWA does not have information on the
number of projects for which a decision was taken but no published
notice given. [SAFETEA-LU also placed a 180-day limit on lawsuits
challenging final federal agency environmental decisions”such as the
approval of an EIS”on highway projects, when notices of those decisions
are published in the Federal Register. FHWA has interpreted this
provision so as to give it and state DOTs discretion in deciding
whether, and when, to apply this limit to highway project decisions].
* The 180-day limitation has been used to a varying degree in the six
states to limit lawsuits challenging federal decisions on highway
projects. (See table below.) Most limitations apply to decisions made
between 2005 and 2007. FHWA has interpreted this provision to also
allow its use for final agency decisions made before SAFETEA-LU was
enacted. Some limitations have been applied to decisions made as far
back as 1990.
Table: Extent of Use of the 180-Day Statute of Limitations in the Six
States, as of December 2007:
State: Alabama;
Number of projects to which the limitation was applied: [A].
State: Iowa;
Number of projects to which the limitation was applied: [A].
State: North Carolina;
Number of projects to which the limitation was applied: 4.
State: Ohio;
Number of projects to which the limitation was applied: 6.
State: Texas;
Number of projects to which the limitation was applied: 12.
State: Utah;
Number of projects to which the limitation was applied: 8.
State: Total:
Number of projects to which the limitation was applied: 30.
Source: FHWA.
[A] Not applied.
[End of table]
* Officials from one state told us that they determine whether to ask
FHWA to trigger the statute of limitations (by publishing a notice) on
a project-by-project basis and did not make broader use of this
provision in order to avoid the unintended consequence of encouraging
litigation. Officials from another state said that they have plans to
use the provision for all eligible projects.
* Some transportation officials in the states we covered noted that the
new statute of limitations could lead to cost savings. It limits
lawsuits to a period when it would not cost as much to change project
plans and, after this period, work can proceed on a project without the
risk of lawsuit. They did not cite challenges in implementing the
statute of limitations.
Assessment of Progress in State Assumption of Categorical Exclusion
Authority:
Some states are pursuing increased responsibilities for categorical
exclusions, but overall interest has been limited.
* To date, only the California DOT has assumed authority for
categorical exclusions and, in addition, according to FHWA, only the
Utah DOT and the Alaska DOT are actively seeking this same authority.
* Several state DOTs we contacted did not see a need to take on the
authority to approve categorical exclusions because they were using
programmatic agreements with FHWA and resource agencies that streamline
review and approvals for many projects classified as categorical
exclusions.
* State DOTs also identified the requirement to waive sovereign
immunity as an obstacle to taking advantage of the categorical
exclusion approval authority.
- Some states were interested in applying for categorical exclusion
approval authority (e.g., Ohio and Texas), but the state DOTs were not
able to rally enough support in their state legislatures to waive
sovereign immunity, as required to assume approval authority for
categorical exclusions.
* In discussing with resource agency officials their views on states
assuming responsibility for categorical exclusion decisions, most did
not express any concern about this change. However, officials from one
agency said that state assumption of responsibility for these decisions
could decrease input from resource agencies in addressing environmental
concerns.
Other Key Changes:
Approximately 90 percent of all surface transportation projects have
minimal environmental impacts and therefore receive ’categorical
exclusions,“ qualifying them for limited environmental review.
SAFETEA-LU allowed state DOTs to assume the responsibility for
determining whether certain highway projects can receive a categorical
exclusion, in accordance with criteria to be established by FHWA and
with FHWA in a monitoring role. States can assume this responsibility
after waiving their sovereign immunity and entering into a memorandum
of understanding with FHWA. The intent of this change is to reduce
processing time for categorical exclusions.
A pilot program”called the surface transportation project delivery
pilot program”has been established to allow up to five states (to
include, if interested: Alaska, California, Ohio, Oklahoma, and Texas)
to assume FHWA‘s environmental responsibilities for highway projects
under NEPA and other federal laws, after entering into a memorandum of
understanding with FHWA and with continuing oversight by the agency.
This program is designed to provide information on whether delegating
these responsibilities to the states will result in more efficient
environmental reviews while meeting all federal requirements for these
reviews.
Assessment of Pilot Program Progress:
Assessment of Pilot Program Progress:
To date, only the California DOT has received FHWA approval to
participate in the surface transportation project delivery pilot
program.
* Ohio and Texas declined to participate because their state
legislatures did not approve a waiver of sovereign immunity, which is
required for participation in the program.
* According to FHWA, Alaska and Oklahoma are still interested and may
decide to participate. Alaska is waiting until it has completed a
memorandum of understanding with FHWA on the authority for categorical
exclusions, and Oklahoma is seeking the approval it needs from its
legislature to waive sovereign immunity.
The California DOT began the pilot program on July 1, 2007, and has
taken steps to implement its new authorities.
* It added a NEPA quality control review step to its process, in which
specialists use the same criteria that FHWA would have used to review
the state DOT‘s EIS.
* These specialists must (1) meet qualification standards and (2)
complete a 3-day training course co-facilitated by the California DOT
and FHWA division staff.
* It created a NEPA Delegation Manager position to act as the point
person for all delegation responsibilities.
After Ohio and Texas declined to participate, FHWA issued a Federal
Register notice in July 2007 soliciting interest from other states to
participate in the program and conducted outreach at national meetings.
* According to FHWA officials, no states have expressed interest.
* FHWA officials told us that they believe concern about the need to
waive sovereign immunity is the main reason for the lack of interest,
but that states also are concerned about the amount of work required to
set up such a program and want to wait and see how the program works in
California.
According to state and FHWA officials we spoke with, an additional
reason why states have not pursued either of these new authorities is
that, to avoid conflicts of interest, FHWA has prohibited state DOTs
with these authorities from making advance purchases of rights of way
for highway projects. According to FHWA, this practice presents a
conflict of interest because the state then has a stake in
environmental decisions.
* States sometimes make such advance purchases in order to accelerate
the completion of a project and avoid inflation. According to some
state officials, not being able to make such advance purchases would
increase the time and cost associated with completing projects.
* According to FHWA officials, they suggested that state DOTs develop a
’firewall“ to divide those who make environmental review decisions from
those who purchase rights of way, but states indicated that they could
not do this.
* In discussing with resource agency officials their views about the
pilot program, they expressed little or no concern about it. Officials
in several agencies noted that this program could be beneficial. For
example, one official said that environmental reviews of projects could
be more efficient with a reduced FHWA role.
FHWA Actions to Promote and Oversee Implementation:
FHWA has taken a variety of actions to promote the implementation of
the post-SAFETEA-LU changes in environmental reviews, including:
* issuing various types of guidance on the implementation of these
provisions and posting this guidance on its Environmental Review
Toolkit Web site;
* proposing revised regulations for environmental reviews and issuing a
regulation regarding the surface transportation project delivery pilot
program;
* conducting outreach to federal, state, and local agencies involved in
environmental reviews to familiarize them with the post-SAFETEA-LU
changes through training (both in person and via Webcast), conference
presentations, and technical assistance;
* disseminating leading practices through its Web site; and;
* funding activities of AASHTO‘s Center for Environmental Excellence,
including;
- issuing a new practitioner‘s guide on the revised environmental
review requirements and;
- identifying leading practices in implementing these requirements to
put on the Center‘s Web site.
FHWA oversees implementation mainly by conducting:
* day-to-day oversight of state DOT environmental review activities
through, for example, division office review and approval of EISs and
monitoring of states‘ assumption of responsibility for categorical
exclusions;
* reviews by FHWA attorneys of the legal sufficiency of EISs, including
compliance with the new requirements, as applicable; and;
* audits of states‘ performance in the surface transportation project
delivery pilot program. The first audit, of California DOT‘s
performance in the pilot program, was conducted in January 2008, and
the report is scheduled to be completed by June 2008. We did not
evaluate the adequacy of FHWA‘s actions to promote or oversee the
implementation of these changes.
Views on FHWA Actions:
Transportation officials and other stakeholders we contacted generally
gave positive reviews of FHWA‘s efforts to inform them about the key
SAFETEA-LU changes in environmental reviews.
The state DOTs, local public agencies responsible for environmental
reviews, and resource agencies we contacted suggested possible
additional actions to further facilitate implementation of the changes
made by SAFETEA-LU. As for transportation planning, expanded funding of
and training for resource agencies were suggested. In addition, they
cited the following actions:
* Some state officials told us that they would like more flexibility to
follow their pre-SAFETEA-LU processes, which they say accomplish the
act‘s goals and the new requirements in spirit.
* Some states have also suggested that, to increase states‘ interest in
assuming authority for categorical exclusions and in participating in
the pilot program, the requirement to waive sovereign immunity could be
eliminated and states could be allowed to make advance purchases of
rights of way and to assume the associated risk.
FHWA‘s views on concerns raised by various stakeholders and the
agency‘s efforts to address them were discussed above.
The various environmental review changes made by SAFETEA-LU were
designed to achieve more efficient and timely project decision making,
particularly for projects undergoing an EIS review, while maintaining
environmental protections.
FHWA Efforts to Track Progress:
According to FHWA data, since fiscal year 1999, EIS reviews have
averaged between 5 and 7 years to complete and over 12 percent of them
have taken longer than 10 years.
Figure: Completion Times for EISs by Fiscal Year:
Fiscal year: 1999;
Median: 8+;
Mean: 6.
Fiscal year: 2000;
Median: 5;
Mean: 5+.
Fiscal year: 2001;
Median: 4+;
Mean: 5+.
Fiscal year: 2002;
Median: 7;
Mean: 6+.
Fiscal year: 2003;
Median: 6;
Mean: 6+.
Fiscal year: 2004;
Median: 4+;
Mean: 6.
Fiscal year: 2005;
Median: 5;
Mean: 6+.
Fiscal year: 2006;
Median: 5;
Mean: 6+.
Fiscal year: 2007;
Median: 5+;
Mean: 6+.
Source: FHWA.
Note: Completion times are for the year in which the EIS was approved.
This figure does not include any highway projects requiring EISs
initiated after the enactment of SAFETEA-LU, because none have
progressed to this point.
[End of figure]
* FHWA currently has two main methods for monitoring progress in
expediting and improving environmental reviews:[Footnote 24]
- measures of the timeliness of EIS completion, based on data collected
by its division offices, and;
- measures of the quality of interagency coordination, based on
surveys, conducted in 2003 and 2006, of resource and transportation
agency staff views on environmental reviews of transportation projects.
- These measures covered a range of topics, such as whether
communication among agencies was sufficient, how well transportation
staff protected the environment, and whether reviews were completed in
a reasonable amount of time.
* FHWA also has related environmental measures, such as measures of
efforts to reduce pollution and other adverse environmental effects
from transportation projects.[Footnote 25] These include:
- the number of exemplary context-sensitive solution projects and
programs and; [According to FHWA, its context-sensitive solutions
initiative is a collaborative, interdisciplinary approach that involves
all stakeholders to develop a transportation facility that fits its
physical setting and preserves scenic, aesthetic, historic, and
environmental resources while maintaining safety and mobility];
- the number of areas not meeting mobile source emissions targets in
their state implementation plans[Footnote 26] (goal is to minimize this
number).
Measures Being Considered:
* FHWA is planning and considering developing several other measures
specifically to track progress in implementing, and the impacts of,
changes made by SAFETEA-LU in environmental reviews. (See following
table.)
Table: New Environmental Review Performance Measures Related to SAFETEA-
LU That Are under Consideration:
Type of measure: Timeliness of EISs;
Description of measure: Median EIS completion time for projects
undergoing environmental review under the post-SAFETEA-LU EIS process;
Status: Plans to report results of such a measure starting in fiscal
year 2009 in agency performance reports and on its Web site.
Type of measure: Quality of interagency coordination;
Description of measure: Inclusion of questions related to
implementation of the post-SAFETEA-LU EIS process in follow-on survey
of resource and transportation agency environmental review staff;
Status: May repeat survey in 2009 and may include such questions and
their responses in final report on survey.
Type of measure: Compliance with new requirements;
Description of measure: States‘ implementation of new steps required
under the post-SAFETEA-LU EIS process and ratings of the effectiveness
of various aspects of this process, based on information collected semi-
annually;
Status: Has started to develop such measures and plans to include
results in report to Congress on the effectiveness of SAFETEA-LU
environmental provisions and on its Web site.
Source: GAO analysis of information provided by FHWA.
[End of table]
* In addition, FHWA is tracking, for internal management use, the
number of projects for which 180-day limitation on claims notices has
been filed in order to monitor the use of this limitation.
Studies and Reviews Underway or Planned:
* The agency also is sponsoring several studies and reviews that may
provide additional information on progress in implementing, as well as
impacts of, SAFETEA-LU changes in environmental reviews. (See following
table.)
Table: Key FHWA Initiatives That May Provide Information on the
Implementation and Impacts of SAFETEA-LU Changes in Environmental
Reviews:
Type of initiative: Timeliness of EISs;
Description: In March 2007, FHWA piloted this standard tool in five
states. All state DOTs and FHWA division offices can now use this tool,
which is in a checklist format, to monitor the implementation of
recommended environmental review activities”including post-SAFETEA-LU
requirements”and identify successful practices and opportunities for
improvement;
Status: Underway; FHWA is encouraging the voluntary use of the tool.
Type of initiative: Monitoring of states‘ assumption of responsibility
for categorical exclusions;
Description: FHWA will monitor the compliance of states with the
memorandums of understanding (MOU) they enter into with the agency and
will consider the results in deciding whether to renew the MOU.
Monitoring will include measures of various aspects of MOU compliance
and performance, including timeliness;
Status: Underway; first report, on the California DOT, expected in
spring 2008.
Type of initiative: Audits of the California DOT‘s performance in
surface transportation project delivery pilot program;
Description: FHWA will conduct audits of the California DOT to ensure
compliance in meeting all federal laws for which the state has been
assigned responsibility. FHWA will conduct semi-annual audits during
the first 2 years and annual audits thereafter. Audits will include
measures of various aspects of performance, including timeliness;
Status: Underway; first report expected in June 2008.
Source: GAO analysis of information provided by FHWA.
[End of table]
In Time, Measures and Studies Should Show Impacts:
* As can be seen from the information presented, FHWA is making a
number of efforts to track progress in improving and expediting
environmental reviews. However, its efforts to specifically measure or
study the implementation and impacts of changes made by SAFETEA-LU are
in the early stages of development or implementation, and it is too
early to assess them.
* FHWA anticipates that the results of new measures and studies related
to SAFETEA-LU will start becoming available during the next year or
two.
* Agency headquarters officials also noted that it will take at least 3
to 5 years before the effects of the act‘s changes in the environmental
review process can begin to be discerned.
* Some other transportation stakeholders we interviewed agreed that it
will take years to see the effects of the new requirements because the
environmental review process is lengthy and it will take some time to
get the current highway projects through the entire process.
[End of enclosure]
Enclosure II:
Organizations Contacted:
In performing our work we contacted the following agencies and
organizations:
Federal Transportation and Resource Agencies:
Advisory Council on Historic Preservation;
Bureau of Indian Affairs;
Department of the Interior;
Department of Transportation;
Environmental Protection Agency;
Federal Highway Administration;
Fish and Wildlife Service;
Forest Service;
National Park Service;
Army Corps of Engineers;
National Marine Fisheries Service.
State Transportation Agencies:
Alabama Department of Transportation;
California Department of Transportation;
Iowa Department of Transportation;
North Carolina Department of Transportation;
Ohio Department of Transportation;
Texas Department of Transportation;
Utah Department of Transportation.
State Resource Agencies:
Alabama Department of Environmental Management;
North Carolina Department of Environment and Natural Resources;
Ohio Environmental Protection Agency;
State Historical Society of Iowa;
Texas Commission on Environmental Quality;
Texas Parks and Wildlife Department;
Utah State Historic Preservation Office.
Metropolitan Planning Organizations:
Birmingham Metropolitan Planning Organization;
Des Moines Area Metropolitan Planning Organization;
Mid-Ohio Regional Planning Commission;
North Carolina Capital Area Metropolitan Planning Organization;
North Central Texas Council of Governments;
Wasatch Front Regional Council.
Local Public Agencies and Consultants:
Houston Grand Parkway Association;
North Carolina Turnpike Authority;
Solid Civil Design;
Snyder and Associates, Inc.
Other Organizations:
Association of Metropolitan Planning Organizations;
American Association of State Highway and Transportation Officials;
Defenders of Wildlife;
Environmental Defense;
National Conference of State Historic Preservation Officers;
National Trust for Historic Preservation;
[End of enclosure]
Footnotes:
[1] GAO, Highway Infrastructure: Perceptions of Stakeholders on
Approaches to Reduce Highway Project Completion Time, GAO-03-398
(Washington, D.C.: Apr. 9, 2003).
[2] MPOs are organizations that include representatives of local
governments for the purpose of transportation planning and coordination
of highway and transit projects. According to FHWA, there are almost
400 MPOs nationwide.
[3] We interviewed state department of transportation officials; one
MPO in the most populous, urbanized area in each state; and officials
of two to three federal and state resource agencies responsible for
resources within each state. See the scope and methodology section at
the end of this letter on why our work was limited to a small number of
states and MPOs and for further information on how we selected states
and agencies to cover.
[4] FHWA does not collect this information nationwide.
[5] Because we performed our work at a small number of states and MPOs
(six of each), for the most part we did not attempt to quantify our
findings.
[6] Federal funding is available for transportation-related positions
at resource agencies and, if approved by FHWA, is taken out of the
state's normal share of federal-aid highway funds. In 2005, the
American Association of State Highway and Transportation Officials
(AASHTO) surveyed all 50 states and reported that 68 percent of them
fund positions at resource agencies. Two-thirds of these positions were
at state resource agencies and the remainder were at federal resource
agencies.
[7] According to FHWA, 109 projects nationwide fall under these
requirements.
[8] The state departments of transportation develop Statewide
Transportation Improvement Programs (STIP). MPOs develop similar short-
term plans, called Transportation Improvement Programs, which feed into
the STIPs.
[9] Permits are written approvals for projects which may impact the
environment. For example, permits would be required for highway
projects that potentially impact water quality.
[10] For highway projects for which there is no significant
environmental impact, the time required for environmental approval is
much less. A highway project that is expected to have a minimal
environmental impact may qualify for a categorical exclusion, requiring
a more limited environmental review. Categorical exclusions represent
84 percent of highway projects. If it is unclear whether a project will
have a significant environmental impact, the state department of
transportation must conduct an environmental assessment (9 percent of
highway projects), which currently takes a median time of 26 months to
complete, according to FHWA.
[11] See app. II of GAO, Highway Infrastructure: Stakeholders' Views on
Time to Conduct Environmental Reviews of Highway Projects, GAO-03-534
(Washington, D.C.: May 23, 2003), for examples of other resource
agencies that may play a role in the environmental review of highway
projects.
[12] We have reported on issues involving environmental reviews in
transportation planning and the time taken to complete environmental
reviews; see GAO, Transportation Planning: State and Metropolitan
Planning Agencies Report Using Varied Methods to Consider Ecosystem
Conservation, GAO-04-536 (Washington, D.C.: May 17, 2004); GAO-03-534;
Environmental Protection: Federal Planning Requirements for
Transportation and Air Quality Protection Could Potentially Be More
Efficient and Better Linked, GAO-03-581 (Washington, D.C.: Apr. 28,
2003); and GAO-03-398.
[13] In addition, Executive Order 13274 was issued in 2002 to promote
the development and implementation of transportation infrastructure
projects in an efficient and environmentally sound manner. An
interagency task force oversees the implementation of the order and
monitors the environmental reviews of certain high-priority projects.
This task force is composed of officials from the Departments of
Agriculture, Commerce, Interior, Defense, and Transportation; EPA; the
Advisory Council on Historic Preservation; and the Council on
Environmental Quality.
[14] States and MPOs are not required to update their long-range plans
out of their normal planning cycles to comply with SAFETEA-LU changes,
but must comply in any update of their plans after July 1, 2007.
[15] These changes apply to projects for which environmental impact
statement reviews were initiated after the law was enacted.
[16] The 180-day limitation is triggered by the publication of a notice
in the Federal Register announcing a final federal agency action, such
as the issuance of a permit or approval. FHWA division offices, in
consultation with state departments of transportation and other joint
lead agencies, decide whether to publish this notice. FHWA's
interpretation of this provision gives it and state departments of
transportation discretion in deciding whether, and when, to apply this
limit to highway project decisions.
[17] To assume this responsibility, the state department of
transportation must waive its sovereign immunity and enter into a
memorandum of understanding with FWHA. Sovereign immunity refers to
governments', including state governments', right not to be sued
without consent.
[18] These states, if interested in participating in the pilot program,
include Alaska, California, Ohio, Oklahoma, and Texas.
[19] This requirement explicitly authorizes funding for a broader set
of activities than did TEA-21, but retains similar conditions on the
approval of funding. Funding may now be used for a variety of project-
specific and more general activities--including transportation
planning--as long as these activities contribute to expediting the
review of projects that are subject to the revised environmental review
process.
[20] We did not discuss the implementation of environmental review
requirements added by SAFETEA-LU with MPOs, since they generally are
not involved in these reviews.
[21] We excluded two leading states, California and Florida, from the
above efforts. California has unique state requirements and procedures
for planning and environmental reviews. FHWA exempted Florida from the
new environmental review provisions. States that re-engineered their
environmental review process to streamline transportation decision
making under section 1309 of TEA-21 could request a "grandfathering"
exemption to continue operating under their pre-SAFETEA-LU processes.
Only Florida requested this exemption and this request was approved by
FHWA.
[22] FHWA is planning to provide its first such report to Congress in
November 2008.
[23] This figure applies to projects for which EIS reviews were
completed in fiscal year 2007.
[24] FHWA has performance goals related to the EIS completion time
measures and the results of these measures are reported in its budget
request and on its Web site, among other places. The quality of
interagency coordination measures are published in a report on these
survey results. See Gallup Organization, Final Report: Implementing
Performance Measurement in Environmental Streamlining (Washington,
D.C., May 2007).
[25] FHWA has performance goals related to these measures and reports
its results in its budget request and in Performance and Accountability
Reports of the U.S. DOT, among other places.
[26] These plans are air quality plans that explain how an area that is
not in compliance with the requirements of the Clean Air Act will come
into compliance.
[End of section]
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