Map 21s Provision - 9.18.13

Testimony of Dan Ashe, Director

U.S. Fish and Wildlife Service, Department of the Interior

Before

the Senate Committee on Environment and Public Works

on

The Implementation of MAP-21 Subtitle C

September 18, 2013

Introduction

Chairman Boxer, Ranking Member Vitter, and Members of the Committee, I am Dan Ashe, Director of the U.S. Fish and Wildlife Service (Service) within the Department of the Interior (Department). Thank you for the opportunity to testify on the implementation of the Moving Ahead for Progress in the 21st Century Act, or MAP-21 (P.L. 112-141), specifically the project delivery provisions. Oversight hearings such as this provide an important opportunity to lay the groundwork for the future reauthorizations of major public works legislation. The Administration strongly supports future reauthorization of a surface transportation proposal that will ensure continued work on critical infrastructure projects, creating jobs and key transportation corridors that benefit the nation's economy and its citizens. The Department looks forward to working with the Congress to ensure that proposed projects and all the environmental review provisions in reauthorization protect the health of the environment and American communities.

The focus of my testimony today is on the opportunity to improve the Federal permitting and review processes, and the role of the Service in that process. We are committed to providing the American people with safe, reliable transportation choices, and there are many reasons those projects take time. Those reasons, such as lack of project funding, local opposition to a project, project complexity, or late changes in project scope, have been noted in reviews conducted by the Congressional Research Service (CRS) on several occasions.[1]

The Service's key interest in MAP-21 and future reauthorizations is ensuring that environmental considerations are addressed early in the process of developing major transportation projects. When this is done effectively, delays and environmental impacts are minimized and overall project costs can be reduced. We believe effective engagement strategies result in mitigation and conservation actions that are coordinated to benefit species and habitat at a larger, landscape level. My testimony will lay out the Service's role in major infrastructure planning and will describe the key provisions in MAP-21 that will take us forward to a more effective and strategic transportation planning process. We will provide some examples of on-the-ground projects and our engagement.

My testimony will also address a section of the legislation where we have considerable concerns. At the Service, we believe Section 1306 may not be the most effective way to achieve Congress' project delivery goals. Fines and a new system of monitoring and certifying planning steps may also reduce the effectiveness of the existing permitting process. The NEPA-based planning process has produced countless examples of projects being improved, some to the point where the public accepts a project instead of rejecting it. We recommend the Committee reconsider these provisions when undertaking future legislation.

Background of MAP-21

Subtitle C of MAP-21, also known as the "Project Delivery" section, included several provisions aimed at increasing innovation, efficiency, and accountability in the planning, design, engineering, construction, and financing of transportation projects. Many of these provisions focus on the environmental review and permitting processes associated with project delivery. Several provisions (Sections 1315-1318) require rulemakings for new categorical exclusions under the National Environmental Policy Act (NEPA). Further, Section 1306 creates a dispute resolution process for settling differences between cooperating agencies and includes setting deadlines and imposing a financial penalty for missing deadlines. In addition, MAP-21 has placed a strong emphasis on early coordination between Federal, State, and local agencies. Section 1320 of MAP-21 encourages early coordination activities to avoid delays later in the process, and Section 1311 encourages the development of programmatic mitigation plans to help identify mitigation needs earlier in the transportation planning process to improve future project reviews and target conservation in a more effective manner.

We appreciate the collaborative approach taken by the U.S. Department of Transportation (DOT) in implementing these provisions and the guidance and regulations that have followed enactment of MAP-21. The Federal Highway Administration (FHWA) has been a close partner with the Service in advancing sustainable transportation planning, with particular regard to their innovative landscape-level approach called “Eco-Logical” and their funding support for transportation liaisons – Service biologists – working solely on transportation planning.

The Service Role in Infrastructure Planning

The Service created field offices across the country in 1946, which are now called Ecological Services field offices. The primary purpose of these offices has always been to provide scientifically sound advice and assistance to other agencies, industries and the public in planning major infrastructure development activities and other projects. At their outset, the majority of this work involved federal water projects, but the work quickly grew to include transportation and energy infrastructure activities. Today, 80 Ecological Services field offices provide expertise in meeting the requirements of numerous federal statutes, including the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Clean Water Act section 404 regulations, the Fish and Wildlife Coordination Act, and the Federal Power Act. For transportation projects, the Service collaborates with State Departments of Transportation (State DOTs) and other agencies to identify fish and wildlife resources at risk and ways in which to avoid or lessen those risks, including potential impacts to threatened and endangered species.

The work of the Service's Ecological Services field offices with other entities generally benefits our nation's economy and environment. In rare instances, projects present significant impacts to fish and wildlife and very real challenges in mitigating those impacts. However, as a number of studies[2][3][4] have shown, such as the September 2000 Federal Highway Administration's (FHWA) review, most project delays are related to project funding issues, lack of community support, or multiple changes in project design – not environmental reviews.

Development of Programmatic Mitigation Plans (Section 1311)

Section 1311 of MAP-21 specifically authorizes State DOTs and Metropolitan Planning Organizations (MPOs) to develop programmatic mitigation plans as part of the statewide or local planning process, in order to address the potential environmental impacts of future transportation projects. The Service views this section as beneficial to integrating efficient, strategic conservation into the transportation planning process, particularly at a larger landscape level. In addition, State wildlife agencies are critically important to resource conservation in their States. All States have State Wildlife Action Plans, which among other things, set goals and objectives for wildlife populations and habitats. State DOTs should work closely with their State wildlife agencies as well as the Service to develop programmatic mitigation plans for transportation projects.

The Service's habitat conservation programs have extensive experience in brokering mitigation packages for large-scale projects through their on-the-ground capabilities. The Service has embraced a Strategic Habitat Conservation approach to mitigating the impacts of infrastructure and other development across large biological regions of our landscape. We stand ready to work with DOT on this important endeavor. The example below is a good case study.

Programmatic Mitigation Planning: Little Niangua River, Missouri

In order to plan early and address anticipated impacts to streams from ongoing and future road projects proposed for central Missouri, the Missouri Department of Transportation (MoDOT) cooperated with Federal and State agencies to develop a programmatic mitigation bank for wetlands and a threatened fish, the Niangua darter. The Service's Columbia Missouri Field Office had previously established a partnership with the Missouri Department of Conservation aimed at replacing low water crossings (where vehicles drive through the river channel at low water) within the range of the Niangua darter. Early collaboration between these agencies and the MoDOT led to a proposal by MoDOT to replace four consecutive low water crossings with functional culverted crossings in the Little Niangua River. This proactive mitigation created a significant reach of high-value habitat in the Niangua River, free of impacts to the darter, wetlands and other species. The restoration of habitat on the Niangua formed the basis of an aquatic mitigation bank, a habitat conservation area created, preserved or restored to offset the adverse environmental impacts of a proposed project. The bank was approved by an Interagency Review Team sanctioned by the Corps of Engineers and credits for impacts to wetlands and the Niangua darter are now available to help expedite the permitting of current and future Missouri transportation projects. The development of a programmatic mitigation bank, prior to project authorization, has put a vehicle in place to maximize efficiency within project permitting and improve mitigation effectiveness.

Memoranda of Agency Agreements for Early Coordination (Section 1320)

Section 1320 of MAP-21 established a process for early coordination to avoid project delays, expedite the review process, and provide for better natural resource conservation. Early coordination activities listed in Section 1320 are used to identify potential impacts to natural resources and consider ways to avoid and minimize potential environmental impacts from transportation activities. This early coordination provides for more efficiency as planning efforts are carried into the project delivery and environmental permitting phases. This approach aims to:

1. Improve resource agency understanding of transportation projects at an early planning stage and throughout the project development;

2. Improve the project proponent's understanding of environmental regulatory requirements;

3. Serve the transportation needs of the community;

4. Improve transportation decision-making;

5. Reduce time and costs to implement transportation improvements; and

6. Obtain broader, landscape level conservation.

Early Coordination: Floyds Fork Greenway Project

In July 2010, the Kentucky Ecological Services Field Office concluded coordination and ESA consultation with the Federal Highway Administration, Kentucky Transportation Cabinet, and 21st Century Parks (a non-profit organization) on the Floyds Fork Greenway Project. The project is located in Louisville, Jefferson County, Kentucky, and involves the development of multi-use recreational trails, water trails, canoe landings, community parks, natural and cultural resource interpretation areas, and upgrading and expanding infrastructure, including roadways, on approximately 3,860 acres over an 18-mile corridor. The Floyds Fork Greenway Project posed several challenges during the project development and consultation process due to the involvement of both federal and private funds, the complexity of interrelated and interdependent actions, and potential adverse effects on federally listed species. In order to address these challenges, the Kentucky Ecological Services field office provided technical assistance prior to ESA consultation and made recommendations for expediting the consultation process. Early coordination between project proponents and the Kentucky Ecological Services field office resulted in the inclusion of environmental goals and commitments into the project master plan to address several trust resource concerns. To provide for flexibility in project timing and predictability, the project proponents entered into a Conservation Agreement for the Indiana bat, which provided recovery-focused conservation benefits to the species. Early project planning and coordination accelerated the eventual delivery of this complex project by identifying and resolving issues before the permitting phase.

Accelerated Decision-Making (Section 1306)

Section 1306 of MAP-21 creates a dispute resolution process for settling differences affecting project decisionmaking and the project sponsor and includes a financial penalties provision for failure to make permitting/authorizing decisions by a statutory deadline. Transportation projects affect communities in different ways: some are benign; some can cause significant impacts to neighborhoods, natural resources, historic resources, and/or other values citizens hold dear. The NEPA process is a way to bring consideration of all of those potential impacts into a public forum. Citizens and agencies that care about those resources use the NEPA process to ensure full public disclosure of proposed project impacts and can identify better alternatives.

In 2000, the FHWA conducted a nationwide inquiry (which can be found here: http://environment.fhwa.dot.gov/strmlng/eisdelay.asp) into projects for which an environmental impact statement had been in preparation for 5 years or longer. The results of the inquiry indicated that the reasons most frequently associated with project delay were the following: (1) lack of funding or low priority - 32.5% (29/89); (2) local controversy - 16% (14/89) and complex project; or (3) no specific reason - 13% (12/89). Of the 89 projects studied, only 8 percent of projects were delayed due to resource agency review. The majority of delays were caused by the degree of complexity of the project, lack of local support, lack of funding, or low priority – not by environmental reviews.

To that end, in Fiscal Years 2008-2012, the Service concluded 1,669 formal ESA consultations on major transportation and water resource infrastructure projects. Service tracking data shows that approximately 75 percent were concluded during the regulatory time frame of 135 days, with the median number of days needed for completion being approximately 65. The majority of the remaining 25 percent that took longer than the regulatory requirement of 135 days were delayed due to changes in project design that required the applicant and the Service to analyze new information. Not all infrastructure projects require formal ESA consultations, but most require some form of NEPA review. During this same time period, the Service's Ecological Services field offices assisted over 30,000 projects of all kinds by providing technical assistance associated with NEPA reviews. The majority of these reviews were timely and productive, with over 5 million acres of high-value wetlands and uplands conserved in strategic locations across our nation. This is a process that works. However, it is in those rare instances where projects require more time to complete their permits that flexibility, not mandatory deadlines, is a necessity.

Beyond our belief that environmental review is not a primary cause of delay in delivery of transportation projects, the Service is concerned with the language in Section 1306 that sets a 180-day deadline for completing permits or other authorizations for a project. The sufficiency of the information submitted by the lead agency directly impacts the timeliness of the environmental review process. A deadline can only be met if the lead agency fulfills its obligations under NEPA and the lead agency and project sponsor submit sufficient information in a way that consulting and permitting agencies such as the Service can accurately conduct a review and ensure compliance with Federal laws and regulations. DOT is well aware of this need, and is diligently accounting for it as it drafts guidance associated with Section 1306. These requirements mandate an elaborate system of documenting when information arrives, certifying its adequacy and then reporting when an authorization is complete. Another elaborate system of documentation and review is required when a deadline is missed. This process requires staff time and will lessen already limited resources to get reviews and authorizations completed. Overall, we believe this additional bureaucracy will slow the review process on large projects and result in poorer project outcomes.

Section 1306, seeks to expedite the review process so that transportation will be delivered more quickly. As we work with DOT and other agencies on implementation of section 1306, we are trying to be mindful of potential unintended consequence of this provision, such as the potential to cause resource agencies, such as the Service, to issue preliminary negative responses to requests for authorizations. We still have statutory mandates, such as the ESA, to meet. If we are unable to work with action agencies to devise sound projects that achieve project purposes and meet environmental mandates, we will likely be required to act conservatively and notify action agencies that proposed projects are likely inconsistent with federal statutes. In other words, instead of getting to “yes” faster, we believe these “streamlining” provisions may serve to get to “no” faster. This is contrary to our preference to work with DOT and action agencies to reach an agreement that balances conservation with development. Our goal is to support projects that are well-designed, achieve project purposes, achieve environmental compliance, and are better positioned to withstand judicial review. When complex issues require more time to resolve, the process-forcing mechanisms of Section 1306 in MAP-21 are likely to result in fewer creative solutions and increased litigation.

Status of Implementation of MAP-21 Provisions

Service representatives have been working closely with DOT officials and representatives of other agencies to implement MAP-21 through the Administration's Transportation Rapid Response Team (Transportation RRT) coordinated by the Council on Environmental Quality. DOT staff has actively sought Service input and review of MAP-21 Subtitle C implementing policies and regulations. The DOT is developing a guidance document regarding the penalty provisions in Section 1306 and is considering the comments provided by resources agencies, including the Service. The Service appreciates the collaborative approach taken by DOT on MAP-21 implementation, and we will work closely with the DOT and FHWA on proposed regulations and guidance needed to implement Subtitle C provisions.

Conclusion

The Service supports what we believe is a more effective approach to accomplishing the objectives of Subtitle C in MAP-21. The Service is supportive of measures that increase efficiency, facilitate early coordination, and balance economic interests with conservation. By contrast, we have considerable concerns with fines and a new system of monitoring and certifying planning steps which may work contrary to Congress' intent. We look forward to working with the Committee and others as we move forward to implement the provisions of MAP-21.

Thank you, Chairman, for the opportunity to testify on behalf of the Service, I am happy to answer any questions you may have.