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89–706 PDF 2015

SURFACE TRANSPORTATION INFRASTRUCTURE 

PROJECTS: CASE STUDIES OF THE FEDERAL 

ENVIRONMENTAL REVIEW AND PERMITTING 

PROCESS 

(113–81) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

HIGHWAYS AND TRANSIT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 9, 2014 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

BILL SHUSTER, Pennsylvania, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee, 

Vice Chair 

JOHN L. MICA, Florida 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

DANIEL WEBSTER, Florida 

STEVE SOUTHERLAND, II, Florida 

JEFF DENHAM, California 

REID J. RIBBLE, Wisconsin 

THOMAS MASSIE, Kentucky 

STEVE DAINES, Montana 

TOM RICE, South Carolina 

MARKWAYNE MULLIN, Oklahoma 

ROGER WILLIAMS, Texas 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

DAVID W. JOLLY, Florida 

NICK J. RAHALL, II, West Virginia 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

TIMOTHY J. WALZ, Minnesota 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN GARAMENDI, California 

ANDRE ́ CARSON, Indiana 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

(II) 

SUBCOMMITTEE ON HIGHWAYS AND TRANSIT

THOMAS E. PETRI, Wisconsin, Chairman 

DON YOUNG, Alaska 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

JOHN L. MICA, Florida 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BOB GIBBS, Ohio 

RICHARD L. HANNA, New York 

STEVE SOUTHERLAND, II, Florida 

REID J. RIBBLE, Wisconsin, Vice Chair 

STEVE DAINES, Montana 

TOM RICE, South Carolina 

MARKWAYNE MULLIN, Oklahoma 

ROGER WILLIAMS, Texas 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

BILL SHUSTER, Pennsylvania (Ex Officio) 

ELEANOR HOLMES NORTON, District of 

Columbia 

PETER A. DEFAZIO, Oregon 

JERROLD NADLER, New York 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

MICHAEL H. MICHAUD, Maine 

GRACE F. NAPOLITANO, California 

TIMOTHY J. WALZ, Minnesota 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

NICK J. RAHALL, II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Hon. Carlos M. Braceras, P.E., executive director, Utah Department of Transportation ................................................................................................................ 2 

Hon. Lynn Peterson, secretary, Washington State Department of Transportation ..................................................................................................................... 2 

Carlos Swonke, director, Environmental Affairs Division, Texas Department 

of Transportation ................................................................................................. 2 

Michael Kraman, acting chief executive officer, Transportation Corridor Agencies ......................................................................................................................... 2

PREPARED STATEMENT SUBMITTED BY MEMBER OF CONGRESS 

Hon. Eleanor Holmes Norton, of the District of Columbia .................................. 33 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Hon. Carlos M. Braceras, P.E. ................................................................................ 37 

Hon. Lynn Peterson ................................................................................................. 41 

Carlos Swonke .......................................................................................................... 49 

Michael Kraman ...................................................................................................... 53 

SUBMISSION FOR THE RECORD 

Lee G. Gibson, AICP, executive director, Regional Transportation Commission 

of Washoe County, Nevada, written testimony ................................................. 62 

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(1) 

SURFACE TRANSPORTATION INFRASTRUCTURE PROJECTS: CASE STUDIES OF THE 

FEDERAL ENVIRONMENTAL REVIEW AND 

PERMITTING PROCESS 

TUESDAY, SEPTEMBER 9, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON HIGHWAYS AND TRANSIT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:04 a.m., in Room 

2167, Rayburn House Office Building, Hon. Thomas E. Petri 

(Chairman of the subcommittee) presiding. 

Mr. PETRI. The subcommittee will come to order. 

Good morning. And welcome to this hearing before the Subcommittee on Highways and Transit. 

We spent the summer working on the surface transportation reauthorization bill and the HTF Act, which provides funding certainty and extends MAP–21 through the end of next May. 

However, as we continue working on the surface transportation 

reauthorization bill, it is important that we hear from practitioners 

and project sponsors in order to gain their wisdom and insight. 

Today’s hearing focuses on the Federal environmental review and 

permitting processes for transportation projects. As project sponsors deliver Federal surface transportation projects, they must 

meet complex requirements at the Federal and State levels during 

every stage of the process. The environmental review and permitting processes are major components of project delivery. 

The Federal level, the National Environmental Policy Act of 

1969, or NEPA, provides a framework for environmental planning 

and decisionmaking. 

NEPA requires the consideration of potential impacts of a project 

on the social and natural environment and, if necessary, includes 

steps to limit or mitigate those impacts. NEPA also identifies any 

Federal environmental permits that the project must secure in 

order to proceed. 

While a necessary and important part of the project delivery 

process, the environmental review and permitting may involve significant time, money and staff resources, especially for complex 

projects. MAP–21 made significant reforms to the project delivery 

process which maintained our strong environmental protections 

while improving the efficiency and effectiveness of the process. 

I know that many of our witnesses today plan to discuss these 

reforms and how they have benefited from them. Staff informed me 

2 

this morning that the U.S. Department of Transportation plans to 

publish a notice in the Federal Register tomorrow on the MAP–21 

provision that links planning activities to the environmental review 

process. I welcome this effort and look forward to the continued implementation of all of the MAP–21 provisions. 

Yet, the complexity of this issue necessitates our continued examination of the environmental review and permitting process. As 

the committee continues its work on drafting the next surface 

transportation reauthorization bill, we want to consider how the 

process is working well and what ways it can work better. 

We have an excellent panel of witnesses before us today, and I 

am confident that they will be able to help us understand the important issues by discussing how the process has worked for specific projects in their State. 

And before I introduce—or I will introduce the witnesses. 

Our first witness is Carlos Braceras. He is executive director of 

the Utah Department of Transportation. 

Welcome, sir. 

And next we will hear from Lynn Peterson, secretary of the 

Washington State Department of Transportation, who is developing 

the Cascadia Project and a whole variety of other things out in the 

northwest part of the United States and southwest part of Canada. 

And we also have Carlos Swonke, who is director of the Environmental Affairs Division of the Texas Department of Transportation. 

Finally, we have Michael Kraman, acting CEO of the Transportation Corridor Agencies in southern California. 

I thank you for being here. I thank you and those in your organizations who worked on your testimony. And we invite you to summarize that as best you can in approximately 5 minutes. 

And my partner, Eleanor Holmes Norton, is on her way and we 

may interrupt when she arrives. I am sure she will have an opening statement. 

And we will begin with Mr. Braceras. 

TESTIMONY OF HON. CARLOS M. BRACERAS, P.E., EXECUTIVE 

DIRECTOR, UTAH DEPARTMENT OF TRANSPORTATION; HON. 

LYNN PETERSON, SECRETARY, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; CARLOS SWONKE, DIRECTOR, ENVIRONMENTAL AFFAIRS DIVISION, TEXAS DEPARTMENT OF TRANSPORTATION; AND MICHAEL KRAMAN, ACTING CHIEF EXECUTIVE OFFICER, TRANSPORTATION CORRIDOR AGENCIES 

Mr. BRACERAS. Thank you very much. Good morning. 

Mr. PETRI. Turn your microphone on. 

Mr. BRACERAS. Thank you. And good morning. 

Chairman Petri, Ranking Member Norton and members of the 

subcommittee, thank you for the opportunity to provide input on 

the Federal environmental review and permitting process. 

My name is Carlos Braceras. I am the executive director of the 

Utah Department of Transportation. As a registered professional 

engineer and a geologist, I have been with the Utah DOT since 

1986, including service as the deputy director, chief geotechnical 

engineer and chief value engineer. 

3 

I also served as the team leader through the environmental review and permitting process for the Legacy Parkway Project, a new 

freeway north of Salt Lake City that created a shared solution that 

addressed multimodal transportation, community and environmental needs. In addition, I am currently chair of the AASHTO 

Center for Environmental Excellence. 

For more than 15 years, the Utah DOT has actively institutionalized context-sensitive solutions in all phases of our work. As the executive director, I have established integrated transportation as a 

Department emphasis area to ensure we provide Utahns with balanced transportation options by actively considering how best to 

meet the transportation needs of transit users, bicyclists, pedestrians, in addition to automobile users and freight shippers. 

At the Utah DOT, all aspects of decisionmaking are driven by a 

set of strategic goals and strong performance management. We 

know this approach yields better outcomes for the public’s investment. We were pleased that, as part of MAP–21, Congress embraced the Federal transition to a performance- and outcome-based 

program. 

To meet the Nation’s transportation goals, we need to remove the 

obstacles that inhibit our ability to deliver projects that achieve 

these goals, including obstacles to project delivery. 

While the Utah DOT continues to assertively innovate and 

streamline project delivery, we do not seek to truncate environmental review. We need to stop thinking of NEPA as an inconvenient process to get through, but think of it as a decision tool that 

brings interested citizens to actively participate in the process. A 

properly administered process yields better results. 

However, too often the silo mentality interferes with that process. Each agency has its own goals and missions which fosters exclusive focus on that agency’s goals. Instead, Federal agencies need 

to understand and support their sister agency missions and goals. 

We can meet the Corps of Engineers’ goal to protect the environment while still meeting the Federal Highway Administration’s 

goal to improve mobility. 

The Provo Westside Connector Project in Utah was, in my view, 

a victim of silo mentality. The project provides a new direct link 

to the Provo Airport and supports local land use planning. However, the project became stuck in the permitting and environmental 

review process. 

Eventually, the project was selected by the White House as one 

of the 14 projects included in the Federal Infrastructure Projects 

Permitting Dashboard. While a need for increased coordination is 

often cited as the reason for inclusion on the Dashboard, in reality, 

a fundamental disagreement with Federal resource agencies on the 

need for the project was the cause for the impasse. 

Resource agencies were dug in, protecting agency goals. The 

Dashboard process provided the link needed to nudge participants 

to find a solution. But it did come with a price: A permitting requirement for increased mitigation associated with indirect impacts 

and an unfortunate erosion of relationships with local regulatory 

agencies. 

Despite that price, the larger goal with the Dashboard was 

achieved. The project secured the needed permits and environVerDate Aug 31 2005 14:26 Jan 30, 2015 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\HT\9-9-14~1\89706.TXT JEAN
4 

mental clearances and proceeded to construction funded primarily 

with State dollars. 

The success of our Nation is measured when progress is made towards all agency goals, not just individual agency goals. When that 

expectation becomes the norm, I am confident we will see better 

outcomes for transportation, communities and the environment. 

The Dashboard process provided a framework for agencies to find 

a systemic solution that met a variety of agency goals, enabling the 

project to move forward. I encourage the subcommittee to ensure 

we continue making progress towards our Nation’s transportation 

goals, including more efficient project delivery. 

Thank you. 

Mr. PETRI. Thank you. 

Secretary Peterson. 

Ms. PETERSON. Good morning. Thank you, Chairman Petri, and 

thank you, Ranking Member Norton, for inviting me to participate 

in this morning’s meeting. 

I came to WSDOT about 18 months ago with a diverse transportation experience, having now worked at two State DOTs, for an 

MPO, a transit agency in the private sector and as a local city- and 

county-elected official. 

I have three points to make today. 

One, NEPA is not broken. Small changes to NEPA have been extremely helpful, but the single most important thing to take away 

today is that NEPA is not broken. It allows us to get better outcomes by looking at all potential solutions in an open, public arena. 

Washington State legislative audits have revealed that NEPA 

and our State equivalent, SEPA, are not the most common project 

factors for delay. A January 2014 State legislative report, in fact, 

found that environmental review increases public acceptance and 

leads to improved efficiency in overall project design and is not a 

significant driver of project cost. 

Two, NEPA allows for complex conversations in a complex world. 

All DOTs are weaving our way around and through complex urban 

and rural environments. Each specific context has a unique problem and needs unique solutions. There is no way around having 

these difficult conversations, and best practices for planning techniques used by different States should be shared so that all of the 

NEPA conversations that we have are well worth everyone’s time 

and resources. 

When we look further into these complex problems, they are usually not fully defined prior to starting NEPA. And the necessary 

consensus building does take time. NEPA requires a commitment 

to real collaboration. 

States should be held accountable to conducting their business 

and making decisions that benefit a diverse set of users and markets, which means we have a responsibility to make sure that all 

voices are heard as we go through these very complex decisionmaking processes. And the design should reflect those who are in 

the room and those who are not in the room in the end. 

Other techniques applied prior to NEPA can help, including alternative analysis using multimodal scenario planning, including 

land use and transportation system level of analysis; least-cost 

5 

planning, similar to what the utilities have used; and practical design. 

Using these approaches, WSDOT has engaged local stakeholders 

at the earliest stages to ensure their input is included at the right 

stage of the design. It also focuses our efforts on more cost-effective 

solutions. 

Lastly, FHWA has really made good changes to be able to allow 

for flexibility. Please keep in mind that the vast majority of 

WSDOT’s work—94 percent, in fact—is excluded from NEPA 

through categorical exclusions. Only 2 or 3 percent of our projects 

require an environmental impact statement. 

We have had programmatic agreements in place since the 1990s 

that allow WSDOT to sign off in very simple categorical exclusions 

on behalf of FHWA. We appreciate the expanded list of activities 

for programmatic agreements that Congress authorized in MAP– 

21. 

In February of last year, WSDOT and FHWA signed an updated 

agreement and we became one of the first States to be able to comply completely with the MAP–21 requirements. With this insight, 

we hope to find quick improvements we can do today while establishing clear purposes and need and alternatives for NEPA analysis. 

In conclusion, I would be remiss if I didn’t take this opportunity 

to thank you for your recent efforts to pass a short-term patch for 

the Highway Trust Fund. We encourage you to act before the May 

2015 deadline to provide stable funding, and we believe that there 

is a Federal role in transportation funding in the future. 

Thank you for the opportunity to share Washington’s experience 

with the Federal environmental review process. 

Mr. PETRI. Thank you. 

Director Swonke. 

Mr. SWONKE. Thank you. And good morning. Again, my name is 

Carlos Swonke. I am director of TXDOT’s Environmental Affairs 

Division. 

The Texas Department of Transportation appreciates the opportunity to provide testimony to the subcommittee meeting here 

today and to share our experiences with the Federal environmental 

review and permitting process. 

To begin with, TXDOT would like to thank the committee and 

staff for its work on MAP–21. Since its passage, TXDOT has 

worked diligently to implement many of the streamlining provisions of MAP–21 and looks forward to the provisions still undergoing rulemaking by FHWA. 

Streamlining opportunities, even small ones, can have far-reaching benefits to TXDOT. As you can imagine, TXDOT’s environmental program is a large one. Total dollar amount of construction 

projects that TXDOT awarded last year approached $6 billion. 

Another measure of the program volume is the number of 

TXDOT actions that underwent environmental review and approval. Last year, there were 1,796 environmental approvals for 

TXDOT projects. To put that in perspective, the Bureau of Land 

Management nationwide had 1,091 NEPA approvals last year. 

Of the TXDOT environmental approvals, 98 percent were with 

categorical exclusion determinations. As I am sure you are aware, 

6 

the categorical exclusion is the NEPA tool intended to provide expedited review and approval for minor routine projects. 

The benefits of the categorical exclusion have not always materialized for TXDOT. Up until recently, a certain number of TXDOT 

categorical exclusions—about 40 to 60 a year—were prepared as 

documents that would include a full NEPA analysis. These documents could reach a length of 100 pages or more. Of particular concern was that it would take, on average, over a year to get these 

documents reviewed and approved. 

We have since addressed this issue with meaningful results, and 

it is here where I would like to jump to our implementation of the 

MAP–21 streamlining provisions. 

Although it was conceived in earlier legislation, the provision in 

MAP–21 relating to States assuming the responsibility of categorical exclusion determinations prompted TXDOT to pursue this opportunity. TXDOT received this authority last December. Having 

responsibility for categorical exclusions allows TXDOT to not only 

expedite the decisionmaking, but also retool our program. 

In this transition, we have realized efficiencies in two areas. 

First, TXDOT eliminated categorical exclusion documents that 

looked like a full NEPA analysis by going to checklists. Today we 

no longer produce 100-plus-page categorical exclusion documents 

and, instead, have a 2-page checklist, sometimes supplemented by 

technical reports. Our review time for these documents has been 

reduced from over a year to less than 45 days. 

The second efficiency has been by eliminating the Federal review 

of the categorical exclusions because TXDOT now has this authority. One measure of this efficiency is that we have saved a minimum of 30 days of certain types of reviews—CE reviews. 

Here is an example of the savings: About 1,000 projects on the 

TXDOT 4-year plan are a type of categorical exclusion that would 

have had 30 days of minimum review by FHWA. Doing the math 

here, this would have amounted to 82 years of cumulative waiting 

time. Today, under NEPA assignment for CEs, TXDOT is now required to wait the minimum 30 days. 

Another streamlining provision of MAP–21 being utilized by 

TXDOT is the new categorical exclusion for projects within the 

operational right-of-way. Since this new categorical exclusion was 

issued through rulemaking earlier this year, TXDOT has used it on 

627 project approvals. It has been a timesaver and a moneysaver. 

Here is an example: A few years ago, there was a project in 

Houston to widen an existing four-lane road to a six-lane road. No 

additional right-of-way was needed for the widening. At the time, 

a full NEPA analysis was needed and an environmental assessment was prepared. There were no unusual circumstances about 

the project. There was no public opposition to the project. 

The environmental assessment took 3 years for review and approval. The cost to prepare the environmental assessment was 

$100,000, and that was borne by the city of Houston. Today that 

project could be approved with a categorical exclusion in a fraction 

of that time and at a fraction of that cost. 

TXDOT is currently pursuing full NEPA assignment beyond categorical exclusions, to include environmental assessments and environmental impact statements. We have spent a year preparing our 

7 

program for the responsibility and preparing the required application to FHWA. We submitted the application this past April. It was 

approved. 

Now we are working on the required memorandum of understanding between TXDOT and FHWA. We began negotiating this 

MOU at the end of last year. The status of the MOU today is that 

we are still in discussion on two remaining points of contention, 

but as of late yesterday, we have gotten positive news on these 

issues. It is possible that we may be able to work out these issues 

in the next few days. 

Beyond NEPA, we still run into delays related to other regulatory procedures. Among these issues, there are the Clean Water 

Act, Endangered Species Act, Clean Air Act, and environmental 

justice issues. We understand that sometimes projects are just complicated, but the added procedures of other regulations can require 

substantial time and effort to meet compliance requirements. 

I would like to conclude by saying that TXDOT is very appreciative of the NEPA tools that have been provided by Congress, 

FHWA, and the Council on Environmental Quality. These tools, 

combined with proper planning, good judgment and sufficient resources, will allow us to be more effective as we guide our projects 

through the environmental review process. 

Thank you. And I look forward to answering any questions. 

Mr. PETRI. Thank you. 

Mr. Kraman. 

Mr. KRAMAN. Good morning, Mr. Chairman, members of the committee. Again, my name is Mike Kraman, acting chief executive officer of the Transportation Corridor Agencies. 

In 1986, the California State Legislature formed the TCA as a 

joint powers authority to plan, design, finance and construct a toll 

road network as part of the State highway system in Orange County, California. 

Construction of these roads is being accomplished without the 

use of taxpayer dollars. TCA collects tolls for the purpose of repaying the bonds issued to finance the roads. With more than 250,000 

customers per day, the toll roads generate over $220 million in annual toll revenue. 

Additionally, TCA has investigated nearly $225 million in environmental programs to restore and preserve over 2,000 acres of 

open-space habitat. 

Now fast-forward to where we are today. We successfully constructed 51 miles during our initial 12 years, but we have spent the 

last 20 years trying to complete the final 16 miles. 

During this period, TCA embraced policies introduced under 

ISTEA and TEA–21, including the major investment study process 

and the NEPA/404 collaborative process. 

The need to complete the toll road network was reaffirmed in the 

South Orange County major investment study. 

For the project’s NEPA process, TCA formed a NEPA/404 collaborative. The collaborative brought together State and Federal agencies to address issues regarding environmental impacts in a coordinated fashion. The collaborative spent nearly 10 years reviewing 

alternatives and unanimously agreed on a preferred alternative. 

8 

The next step was for TCA to obtain a consistency determination 

under the Coastal Zone Management Act. When TCA applied for 

this consistency determination, project opponents objected to the 

project. 

At this first hint of controversy, Federal agency members of the 

collaborative, with the exception of the Federal Highway Administration, abandoned the unanimous selection of the project’s preferred alternative, asserting the need for additional environmental 

studies. 

The Corps of Engineers, EPA, National Marine Fisheries and 

Fish and Wildlife all submitted comments that criticized the preferred alternative previously agreed to by these same agencies. 

The California Coastal Commission sided with project opponents 

and denied TCA’s request for consistency determination. U.S. Department of Commerce affirmed the decision. At that point, TCA 

reevaluated options for the road. 

After 3 years of public outreach, TCA proceeded with a shorter 

5.5-mile project that is wholly outside of the coastal zone, but still 

serves a critical role in providing congestion relief. 

Despite the fact that this project, which we call the Tesoro Extension, has negligible impacts, Federal and State agencies are delaying their approvals because of pressure from the same group of 

opponents who objected to the original project. 

As an example, to comply with section 7 of the Endangered Species Act, Fish and Wildlife was tasked with completing a biological 

opinion. Since they had issued an opinion for the original project, 

they should have been able to prepare a new opinion within the 

135-day regulated timeframe. 

In December 2012, the Federal Highway Administration initiated 

formal consultation with Fish and Wildlife. In 2013, the draft opinion was circulated for internal review. TCA was then notified by 

Fish and Wildlife that they did not have sufficient staff resources 

to continue their work. TCA agreed to fund $75,000 for staff in 

order to restart the work. 

In 2014, well beyond the 135 days, Fish and Wildlife notified the 

Federal Highway Administration that, due to project opposition, it 

would not issue the opinion unless the Federal Highway Administration confirmed in writing that the project had independent utility. This setback is yet another example of subjectivity impacting 

the process, since this is not required to issue a biological opinion. 

In conclusion, I would like to highlight a few key recommendations for improving the environmental review and permit approval 

processes: 

First, allow projects in States with stringent environmental review laws, such as California, to meet Federal environmental review requirements through compliance with State laws. 

Second, require that all Federal agencies responsible for funding, 

permitting or approving a project collaborate on, adopt and use a 

single NEPA process. The process should be integrated and occur 

in a coordinated parallel workflow. 

Third, prohibit an agency from changing its position without the 

discovery of critical new information. 

Fourth, limit resource agency comments to issues within the jurisdiction and expertise of that agency. 

9 

And, finally, speed up and enforce strict deadlines for the NEPA 

review and permit approval process. 

Thank you for the opportunity. 

Mr. PETRI. Thank you. 

Chairman Shuster. 

Mr. SHUSTER. Well, thank you, Mr. Chairman. 

And thank our witnesses for being here. 

I want to take a point of personal privilege. I became aware that 

this most likely will be Chairman Petri’s last hearing, since he has 

decided to retire from Congress, and I just wanted to take this opportunity to thank him for his 36 years of service in the United 

States Congress. 

He has had quite a distinguished career, starting off in the Wisconsin State Senate, doing a stint at the Peace Corps and the 

USAID. So he has really served the Nation in a number of ways. 

But on this committee, where he served ably for 36 years, he has 

been in a leadership role in almost every subcommittee. I think 

railroads is the only one you haven’t—economic development, building public works. 

He was in a leadership role, water resources, this committee a 

number of times. He helped shepherd through TEA–21 and 

SAFETEA–LU as the chairman of this subcommittee. He was 

chairman of the Subcommittee on Aviation when we did the reauthorization in 2012. So, again, he has served the people of the Sixth 

District very well, Wisconsin, served the Nation. 

We thank you for that service and thank you for a job well done, 

although I do have one question. And my family history—as most 

people know, I have been around here—not in Congress, but I have 

been around this building for a while. I have known him for over 

30 years, and I have never asked anybody the question. 

Why do they call you ‘‘Tim’’? How did you get the nickname 

‘‘Tim’’? 

Mr. PETRI. Well, I am a ‘‘junior,’’ and they sat around and decided they were going to call me ‘‘Junior’’ or ‘‘Buddy’’ or ‘‘Tom II’’ 

or this or that. Finally, my grandmother said I was very small, like 

Tiny Tim. So they called me—— 

Mr. SHUSTER. OK. Well, finally—after 30-some years, I finally 

know the answer to that. My father called you ‘‘Tim’’ and I never— 

I kept saying—‘‘His name is Tom,’’ I kept thinking to myself. But, 

you know, I don’t know. 

But, again, I just want to take this opportunity again to thank 

you, congratulate you. We wish you well in whatever your endeavor 

is. You have really been one of the great leaders in Transportation 

and certainly someone that I have looked to for advice over the 

years. So thanks for a job well done. 

Mr. PETRI. Thank you. 

Ms. Norton. 

Ms. NORTON. Mr. Chairman, I have never called you ‘‘Tim.’’ I 

called you ‘‘Tom.’’ And I really appreciated the opportunity to call 

you ‘‘Mr. Chairman.’’ 

When I learned that Tom Petri was going to leave us, I could 

only think what a sad day for this subcommittee and committee, 

what a sad day for Wisconsin. And, surely, it is a sad day for the 

Congress of the United States. 

10 

In Tom Petri, we have a Member who has a fountain of knowledge that takes many years to accumulate. And with that knowledge, Chairman Petri has accumulated great wisdom, wisdom 

about the many varied modes of transportation and infrastructure 

in our committee, wisdom which is not easily replaced. It is not just 

somebody else moves up and, therefore, you will just fill in. It is 

knowledge and wisdom and a great model of stability and 

collegiality that this Congress needs. 

When you put all of that together, Mr. Chairman, I can only say: 

Why in the world did you do that to us? We will miss all that you 

have offered us. We will look to you, I know, as we continue down 

this road. I have enjoyed working with you not only in my role as 

ranking member, I have enjoyed working with you as a man, as a 

human being. 

I worked with Chairman Petri, who told me about his work with 

British parliamentarians and asked me if I would like to join him, 

and I did. It was a wonderful experience. I remember we went 

through—to Great Britain and everybody went except Tom Petri 

because he had something he had to do in his district. That is just 

like Chairman Petri. 

So, Chairman Petri, if I could just speak from this side of the 

aisle, I hope you understand, as you leave the Congress, you are 

going with the deepest respect and admiration not only from your 

own side, but especially from this side of the aisle. Thank you very 

much. 

Mr. PETRI. Thank you. 

And let’s return to regular order. That is a little embarrassing. 

And you exceeded your 5 minutes. I didn’t have the heart to interrupt. 

I have a couple questions for the panel, and some of you have 

touched on this in your testimony. And we were wrestling with this 

idea of interagency coordination. And it works—if everyone wants 

to cooperate, the objectives can be met and the thing can be telescoped and it works great. And if it is not a top priority, there can 

be lots of problems and delays for a variety of different reasons. 

And so we are trying to wrestle with figuring out how to do incentives or reasonable ways of avoiding unnecessary abuse of the 

process, basically, making it more efficient for everyone. 

So I am curious to know if—and we have seen examples of huge 

projects done very quickly because there was a public focus on it. 

The Olympics in Utah were a mess, and people came in and focused on it and rescued the situation. We had the earthquakes in 

Los Angeles. Things had to be fixed up and people got together and 

went through the process and met the public’s need. 

But most projects don’t have that level of public focus, and the 

result ends up being an opportunity for people who have other 

agendas to use the process to delay things. 

And it is frustrating because we want to be good stewards of the 

environment and recognize legitimate—raise legitimate concerns. 

But to have that sort of abuse of the process is an impediment to 

achieving those good objectives and raises a lot of objections to legislation that does try to do that. 

So I was curious if you could tell us what—the top two or three 

policy priorities that you have for the reauthorization bill and how 

11 

we could improve the Federal environmental review or permitting 

process. 

I know some of you touched on this in your testimony already, 

but if you would just repeat the top things that we should be focusing on as we draft this legislation with our colleagues in the Senate, we would much appreciate it, starting with Mr. Braceras. 

Mr. BRACERAS. Thank you, Mr. Chairman. 

From a policy perspective regarding the reauthorization, there is 

the components that I think we are talking about here today in 

this committee regarding the environmental process and how to 

move that forward in a way to get better outcomes. 

And I think everyone—all my partners and CEOs of the DOTs 

all want to see outcomes that both benefit the transportation system, but also benefit the environment and the community. These 

are our homes. These are the communities that we live in. And we 

can find a way to get to yes. 

When we look at the Federal agencies, I think sometimes it is 

easy to criticize the Federal agencies if they are not going along 

with the way we want them to go along. 

When I look at the Federal agencies—I used the term ‘‘silos.’’ I 

think it may be more appropriate to use the term ‘‘cylinders of excellence.’’ They are all excellent agencies with people trying to do 

the right thing, but they are very focused on trying to achieve their 

mission. 

And there is very little recognition or reward given to those agencies if they step out a little bit and try to help another sister agency to be successful. It is almost a demerit against that agency. 

I believe there are as many ways within the rules, regulations 

and the spirit of what Congress has intended for Federal agencies 

to find a way to say yes as there is to say no. It is sometimes more 

difficult to say yes because you have to go out and extend yourself. 

If you find Federal agencies working in a way that is cooperative, 

trying to help another agency be successful, it is almost like they 

have to defend themselves within their agency. Even though other 

resource agencies are environmental peers. 

So I would suggest that Congress look for ways to provide not 

only motivation and accountability to these agencies, not just ask 

‘‘How are you doing with your mission?’’, also ask, ‘‘What are you 

doing to help the other agencies be successful?’’ and see what 

comes out of that type of accountability. I believe there are very 

good opportunities here for us to improve the environment. 

And when I use the word ‘‘mitigate,’’ I am not necessarily saying 

let’s try to make the mitigation equal the impacts. Let’s try to do 

the right thing by the environment. Let’s try to do the right thing 

by our communities and to try to help move transportation forward. The economy of this country is dependent on a well-functioning Federal Government and a well-functioning transportation 

system. 

So provide incentives that help Federal agencies work with other 

agencies to help them be successful. And I think, if we can bring 

to the attention of communities and Congress, what agencies are 

doing to help other agencies be successful, it would be a step in the 

right direction, Mr. Chairman. 

Mr. PETRI. Secretary Peterson. 

12 

Ms. PETERSON. Well, thank you, Chairman. Born in the Sixth 

District of Wisconsin, I appreciate your leadership as well. 

The Skagit Bridge collapsed after it was struck by a truck about 

a year and a half ago, 6 weeks after I joined WSDOT. That would 

be a good example of the MAP–21 provisions that allowed for the 

emergency categorical exclusions. And so that really worked well. 

But to your specific question on what could be done differently, 

we have a good example within the State of Washington on the 

Point Defiance Bypass. It is a rail bypass project where we had received Federal—FHWA money to begin the project. FHWA required 

us to complete a Documented CE for our environmental review 

process work. 

And when we got the Federal Rail Administration money a couple years later, FRA required us to complete new environmental 

work and required an environmental assessment, even though 

FHWA had already approved the Documented CE for the exact 

same project. 

So it would be nice if a one DOT approach would be followed, 

that if you already have a categorical exclusion or an approval, that 

another modal administration within USDOT could accept that environmental work for the same project. So that would be my first 

thing. 

The second one would be, to follow on the comments, the type of 

training for those at the local level in the regions on how to work 

within and out of those silos. 

You know, one of the things I learned when I went from engineering into planning is that we have multiple vague and conflicting goals that we all have to work within. 

And being allowed the flexibility within the workplace of these 

agencies to do problem solving alongside is probably something— 

that kind of conversation and that value needs to be imposed on 

this process so that we are not working at odds on our missions of 

excellence, but we are actually working to come to compromise on 

those multiple vague and conflicting goals. 

Mr. PETRI. Mr. Swonke. 

Mr. SWONKE. Thank you. 

First off, I wanted to echo the sentiments that my peers have 

said. I think those are good suggestions. And something that—was 

mentioned earlier about the NEPA process working. And so I think 

the tools available to us today with the NEPA process allows us to 

do some pretty substantial things. 

It takes a lot of other commitments and a lot of things to come 

together and a lot of people to pull in the right direction, but the 

tools we do have today are able to allow us to do our work fairly 

well. 

But looking forward, I think there are some areas where we can 

make improvements. And one of the things—one of the issues came 

up in MAP–21, and that is combining the planning and NEPA 

processes together and get some advantages out of the planning 

process. 

I think MAP–21 took a good cut at that, but it did leave us 

with—I think it is about ten conditions that need to be met before 

some planning decisions can be brought forward into the NEPA 

process. That is not exactly a facilitation step. 

13 

I think the idea that we should have more flexibility in bringing 

forward planning decisions and to allow those to account for NEPA 

decisions or some part of NEPA process moving forward would be 

extremely advantageous. 

In our case in Texas, we have got a few congested corridors today 

that we are performing planning studies on, and we see some opportunities there to—when we get to the NEPA step of those corridors, that we could and should be able to use some of those planning decisions in the NEPA process to help facilitate the review 

and approval of the NEPA documents when we get to that step. 

Another issue that comes up fairly often is mitigation. And 

MAP–21 spoke towards programmatic mitigation. That is certainly 

great in concept, but getting it to the ground—getting it on the 

ground and having agencies make efforts in that area, providing incentives to go forward on that—and I am talking about mitigation 

in all areas. We are talking about Clean Water Act mitigation, Endangered Species Act mitigation, even environmental justice mitigation right now. 

We have got a project right now that is going on where we are 

really trying to find out where the threshold is for mitigating for 

environmental justice impacts and how far do you have to go. It is 

really—there is no good indication about when we have done 

enough on that subject. 

And I don’t know how programmatic applies to environmental 

justice, but programmatic can certainly help us with Clean Water 

Act 404 issues. We spend quite a bit of time and money on wetland 

mitigation, stream impact mitigation, and it consumes a lot of our 

resources. 

And, thirdly, conformity, Clean Air Act, in general. There are a 

lot of aspects to the Clean Air Act that are affecting transportation 

projects these days, and it seems to be happening more and more. 

One in particular that I think we would suggest looking into further would be the effectiveness of regional conformity. Is that really 

working towards cleaning up air quality? How effective is regional 

conformity? 

Because, again, we spend a lot of effort and time in particular 

that, if we get changes later on in the project that has already been 

through conformity, we have to go back to conformity. It is getting 

to be a pretty constant aspect of our work. Is it in conformity? Was 

it approved in conformity? Has it changed since conformity was 

made? And having to go back and revisit that issue. 

So those are our three items that we would suggest. 

Mr. PETRI. Mr. Kraman. 

Mr. KRAMAN. Thank you. 

We certainly support the goals of the NEPA process, but it is too 

easy to take the process in different agency directions. There needs 

to be protection to the project sponsor in following the lead agency 

process, and the process should be integrated. 

And when we are talking about the EIS document and the permitting, it should be a single process that is integrated and in a 

parallel workflow, not starting all over again each time you are 

dealing with a different agency. 

14 

The other part would be to limit the resource agency comments 

and involvement to the issues that are within the jurisdiction and 

expertise of that agency. 

Thank you. 

Mr. PETRI. Thank you. To the point and specific. Thank you. Appreciate your comments. 

Ms. Norton. 

Ms. NORTON. Thank you very much, Mr. Chairman. 

I have reason, given a recent experience, to particularly value 

the public participation aspect of the NEPA process. The CSX railroad is engaged in work in my district involving a tunnel along Virginia Avenue. 

Now, this project was very controversial, in large part because it 

runs through not only a residential neighborhood, but a brand-new 

residential neighborhood. 

Now, there may be other jurisdictions like my own who reclaimed 

parts of their city that used to be for railroads or for industrial 

uses. This meant that the NEPA process and all that it entailed 

was important to my constituents. 

Now, the prevailing wisdom is that the reason for the length of 

these projects is frivolous lawsuits and the like, but the Congressional Research Service has found that more often the delays come 

precisely because of the reason the delays are coming in my own 

district, because of local or State or project-specific factors. 

For example, in my own case, when my communities came and 

asked for delays, I recognized that that would have an effect on the 

project, but I really didn’t think—especially when the proposed 

record came out, and it was very thick—that I could say they didn’t 

need more time. They were very assiduous, very well educated in 

going at it. So I asked for an extension. I asked for 90 days. I think 

I was given 60. I asked for another public meeting. 

Now, you know, the constituents may lose their struggle, but I 

hardly think—the process would be better if they hadn’t had that 

opportunity. It would have been quicker. We would have saved a 

little money, a little time. This is the reason for most of these 

delays. I have just experienced them. 

Less than 1 percent of the projects have been subject, according 

to the CRS, to litigation. So we ought to face who you are talking 

about. You are talking about your own constituents. You are talking about your own local and State governments. They are holding 

things up, they think, for good reasons. 

That is why I have a question for Mr. Swonke. He speaks about 

the environmental process in the State of Texas and the reduction 

from a 100-page document to a 2-page document. Actually, that intrigues me. And if it works, I am very much for it. 

If you are for an environmental process that has meaning and 

you think that the American people are better off for an environmental process, you want to take all the encumbrances that people 

object to out of it and just get down to the raw meat. 

But, Mr. Swonke, has your public participation process in the 

project been reduced also by 98 percent? This reduction from a 100- 

page document to 2 pages, I can understand that in pages. But 

what about the public participation? The public is going to have to 

live with the highway or the aftermath of the particular project. 

15 

Mr. SWONKE. Yes, ma’am. Thank you for allowing me to clarify 

that. 

Definitely not. The public participation process and our public 

participation obligations are the same for before and after that 

transition of how we document our decision. 

And so the times when we go out for a public meeting and times 

we reach out to stakeholders, the occasions through the process 

when we have had those discussions with the locals, it is still the 

same. And so the idea that we have whittled down our documentation did not affect the amount and the frequency at which we reach 

out to the public. 

And, also, again, just to clarify as well that it also did not affect 

or does not affect the other regulatory standards that we have to 

meet as well. 

It is just that the NEPA documentation does not have to go into 

depth on all of the statutory requirements that are necessary, just 

the only ones that are in effect on this particular project, so we can 

focus our attention on to the important issues. 

But definitely, to go back to your question, no, the public participation process was not reduced in that transition. 

Ms. NORTON. And I do not think you can find any State or local 

official that is not going to stand with his constituents in making 

sure there is a robust public process, and we have to understand 

that is where the delay is. 

One more question. You raised an issue regarding the involvement of DOJ and the Federal Highway Administration because of 

your delegation. 

Now, I think it is important to note that, in delegating to a State, 

essentially, you become the proxy for the Federal Government. It 

is not as if, you know, it is all yours and there is no more Federal 

jurisdiction. 

But you seem to object to the Federal Government being involved, in the case of DOJ, in the settlement—in determinations 

whether to settle a lawsuit or to appeal an adverse judgment. You 

seem to imply that that ought to be left solely to the State of Texas 

and not to DOJ. 

Does your MOU, which assigns responsibility for categorical exclusion and determinations, contain similar provisions regarding 

settlements and appeals? Are settlements and appeals taken out of 

what your responsibilities are? 

Mr. SWONKE. On that particular issue, I don’t recall. But I have 

got someone behind me I could ask quickly for a yes or no, if that 

is OK. 

Ms. NORTON. Well, I just want to make sure that you don’t regard Texas as being treated any differently from any other jurisdiction or, for that matter, any other Federal agency. A Federal agency, if it wants to appeal—and it may feel strongly—it has to go to 

DOJ. DOJ makes that determination for the Federal Government. 

And I would think that the same thing would be understood by 

the State of Texas, that, essentially, all the Federal Government 

has done is to say, ‘‘We are essentially allowing you to be our 

proxy. We are delegating to you. But we delegate to you responsibilities and we also delegate to you all the rules that encumber 

us who are the Federal agency.’’ 

16 

Do you understand that as well, Mr. Swonke? 

Mr. SWONKE. Yes, ma’am. The idea that we are working on the 

MOU for the full assignment, the full delegation, is that, in the 

program, the way it is being set up, that the Federal Highway Administration has the ability to intervene at any time on any of the 

cases so that, if they feel like—if we are going in the wrong direction, they have the ability to take over and be the lead. And so 

that—that is, I think, the safety valve that we are looking at that 

covers your concern, covers the concern of DOJ and Federal Highway Administration. 

And so they are allowed to intervene at any time and to take 

over the case, and we are fine with that. It is just those times when 

they don’t intervene, if they choose not to intervene on the case. 

Then we feel like, well, that gives us the ability that we are in 

charge of our own decisionmaking at that point if they do not intervene. 

So those are the time cycles. If you don’t intervene, then we 

should be allowed to move forward. When you do intervene, it is 

all on the DOJ or Federal Highway Administration. 

Ms. NORTON. Now, Mr. Swonke, they will know when to intervene. So be assured of that. 

Thank you very much, Mr. Chairman. 

Mr. PETRI. Thank you. 

Mr. Farenthold. 

Mr. FARENTHOLD. Thank you, Mr. Chairman. 

And in response to what—Ms. Holmes Norton, I wanted to add 

just a little piece. 

When I was first elected to Congress in 2010, I represented from 

Brownsville to Corpus Christi. I now have the privilege to represent from Corpus Christi north to Wharton, which covers about 

probably a third of the route of Interstate 69 that is being improved along Texas. 

And I can tell you, since the day I was elected until last month, 

there is probably a public hearing every couple of weeks on I–69, 

and I will tell you that there is no lack of opportunity for public 

input. 

And I really am proud to be here as a Texan as we are looking 

at the Texas model for improvements and efficiencies. And I wanted to talk to Mr. Swonke about some of the Texas experience. 

It is my understanding that Texas has decided to petition the 

Federal Highway Administration for full NEPA delegation like 

California did under SAFETEA–LU. 

Why did you all decide to do that? 

Mr. SWONKE. Well, we have got a couple of incentives to move 

in that direction. 

The first one is that it is really a discussion about resources and 

availability. Across TXDOT, we have about 150 folks who practice 

in the environmental area of getting the projects environmentally 

cleared. 

When we talk about our FHWA division office, you are talking 

about five or six or seven environmental folks who are in charge 

of processing these documents. 

So when—you are talking about having the resources to carry 

out the program, to review the program, and oftentimes we—you 

17 

know, we change our priorities with FHWA and the discussion goes 

towards, ‘‘OK. Well, what is the priority you want us to review? Because we only have so many folks to put on this assignment.’’ 

Secondly, we think our program is robust. It is mature enough 

to handle this decisionmaking, given the fact that we have got, as 

I mentioned, the folks available and the resources available to 

carry out the program. We have got experienced people available 

as well and—— 

Mr. FARENTHOLD. So—— 

Mr. SWONKE [continuing]. Again, just ability and responsibility to 

do that. 

Mr. FARENTHOLD. So how is the process going? 

Mr. SWONKE. So as I mentioned earlier, that—we are discussing 

the MOU, which is the final document that would allow us to move 

forward. And working with our FHWA division office in Austin, it 

has been very productive, and we are appreciative of the response 

we have gotten from them. 

And given the news that we received yesterday on the last two 

points of our MOU, I think that is very positive as well. And so 

today we see it working very well. 

Mr. FARENTHOLD. And so we have also in Texas gone through 

and gotten delegation for categorical exclusions. 

Do you have any improvements that you would recommend for 

the process either for full or categorical exclusion delegation? Is 

there anything we need to do to improve that process? 

Mr. SWONKE. We feel like going through the process for the categorical exclusion delegation was fairly simple. And we got there 

pretty quickly, and we were very happy with the way that was set 

up. 

For the full assignment, I think, given that we moved forward 

fairly well up until the point where we reached somewhat of an impasse on those two remaining issues—which, again, I think we may 

be able to move forward on it here recently—that has moved fairly 

smoothly as well. 

The one point on the implementation of the full delegation was 

the steps and public notice of the application. There are as many 

as three steps for public notice of the application, and we weren’t 

sure if that was intended or not. 

But in applying for full NEPA assignment, there is a step for the 

State to put out its draft application on public notice. And there 

is—the request from the Federal Highway Administration was 

then, once they received that application, that they would put out 

that application on public notice and then, once the MOU was in 

place, that the MOU would be public notice as well. 

Mr. FARENTHOLD. So that is the web designer’s full employment 

act. Right? 

Mr. SWONKE. Yeah. 

Mr. FARENTHOLD. I assume most of that goes on the Internet. 

Mr. SWONKE. Yes. Yep. 

Mr. FARENTHOLD. And one of the issues, I know, in these negotiations—and I think you talked about it some—was the relationship with the DOJ and the Federal Government. 

Can you talk a little bit about—I don’t think under the—if I am 

correct—and correct me if I am wrong—under the CE delegation, 

18 

the Federal Government wasn’t looking for access to your attorneyclient-privileged information, and it was different under the full— 

I mean, can you talk a little bit about that. 

It seems—I understand the need for the Federal Government to 

be involved in the process, but you still need to be able to talk to 

your attorneys. I mean, you don’t want to deal with the Federal 

Government without involving the attorneys at some point, I would 

think. 

Mr. SWONKE. Yes. One of the points of contention that I had 

mentioned had to do with the request from the Federal Highway 

Administration about TXDOT turning over client privileged information as part of our obligation. 

And so we were a little concerned with that, the idea that we 

would have to be able to turn over attorney-client-privileged documents that we had, you know, internal discussions about decisionmaking in the audit process. 

And, you know, there would be times that that would be, you 

know, I think, OK with us. But just requesting that across the 

board and us being obligated to turn that over any and all the time 

that they asked was a concern. 

It could have a bit of a chilling effect on our ability to have our 

own confidential internal discussions, realizing that this could be 

made, you know, available to the Federal Highway Administration 

and then, once it is disclosed there, where it might else would be 

disclosed. 

And so that was a big concern with us. And so—but, again, as 

I mentioned that—as of just yesterday, I think we have got some 

language in our MOU that addresses the concern on both sides. 

And then the other point you mentioned, the DOJ’s concern, we 

fully understand that, even when TXDOT receives NEPA assignment, that this is still a Federal program. 

And so the idea that decisions made in the Federal program 

could have implications beyond Texas are understandable to us and 

that the Federal Highway Administration’s concerns are valid, 

DOJ’s concerns are valid, and we want to honor those concerns. 

Mr. FARENTHOLD. All right. I see my time has expired. Appreciate your being here to testify. 

Mr. Chairman, thank you. 

Mr. PETRI. Thank you. 

Representative Johnson. 

Ms. JOHNSON. Thank you very much, Mr. Chairman. And I am 

going to preface my questions and remarks by saying I am very 

emotional about your departure. My entire 22 years on this committee has been served with you. I have served on a number of the 

subcommittees. And I can’t think of anyone that I respect more. I 

appreciate the service you have given. I am certain your constituents do. And I will miss you greatly. Thank you for being a great 

role model. 

Now, on to Texas. Nobody handed me any questions to ask, and 

if they did, they know it wouldn’t make any difference anyway. I 

am a native, and I have served with every one of these pictures on 

the wall as chairman, and not a single one of them has ever given 

me any trouble trying to represent Texas on this committee. And 

19 

I am serving now with the son of one of those pictures up there, 

and he has not as well. 

But you know I am a native of Texas and I know how resistant 

Texas is to rules. And I am a nurse, and I know about the environment, I know about the effects of environment with children, old 

people, and middle-aged people, too. And I am concerned about 

whether TXDOT is really working with Fish and Wildlife, the 

Corps of Engineers, the EPA to try to make sure that we are not 

hiding, we are transparent in following the rules. 

We don’t have a good track record. Are we improving it? 

Mr. SWONKE. Yes, ma’am, I would definitely say that we are improving it over the past few years, our relationships with EPA and 

Fish and Wildlife Service and the Corps of Engineers. Actually, I 

would say with the Corps of Engineers and the Fish and Wildlife 

Service, we have established a very good working relationship very 

recently. One of the things we have done with the Fish and Wildlife Service and Endangered Species Act issues is designate and 

fund a liaison at that agency, and he now is almost an extension 

of one of our own employees in that he is very aware of the issues 

that go on, and he communicates that to the Fish and Wildlife 

Services offices in our State. 

The Corps of Engineers, I think we have always had a fairly good 

relationship with. We have been open with them, they understand 

our program. 

EPA, it has run hot and cold, honestly. And so there are times 

when we are able to engage EPA and they are able to attend a lot 

of our early scoping meetings and communications, and other times 

when they are not able to, it sometimes leads to problems later. So 

we see that sometimes their limitation of resources limits their 

ability to engage, and then they also have the disparity amongst 

their various offices that get involved in our programs. If and when 

they don’t communicate to folks within their side, it leads to communication problems down the road. But I think even that relationship with EPA is getting better as we get to know them and the 

folks we are dealing with over there. 

Ms. JOHNSON. Sometimes I wonder if Texas understands that 

EPA actually is there to protect people and not necessarily to protect agencies. But our EPA in Texas have mostly protected industry, not people, and that is my major concern with the streamlining. I want to see streamlining, but I also want to make sure 

that we don’t ignore the almost 30 million people that breathe that 

air every day in Texas, and that is a major concern. 

We cannot compare ourselves to California, who had made an effort to try to comply. I haven’t seen as much effort in Texas, and 

I think the record speaks for itself. You know, I don’t want to sit 

here and tell you all about the various complaints, but the record 

speaks for itself. So I am concerned about that, and I am concerned 

about transparency, and I just want you to know that. 

Thank you, Mr. Chairman. I yield back. 

Mr. PETRI. Thank you. 

Mr. Hanna. 

Mr. HANNA. Thank you. Thank you very much. 

As cochair of the Subcommittee on Railroads, Pipelines, and Hazardous Materials, I would just like to remind everyone of someVerDate Aug 31 2005 14:26 Jan 30, 2015 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\HT\9-9-14~1\89706.TXT JEAN
20 

thing that most of us are aware of. Even though the railroad 

projects are largely financed with private money, they can still be 

subject to Federal environmental review. Long delays can be burdensome, expensive, ultimately discouraging private investment, 

which we need for our growing economy and to grow our economy. 

So we do put at risk long-term job creation that enhances service 

to our constituencies by creating some barriers. 

Ms. Peterson, one of the things we have heard from you in your 

opening statement is that NEPA is not broken. What we have 

heard from Mr. Kraman and Mr. Swonke is that things don’t have 

to be broken to have wide opportunities for improvement. So I don’t 

find your statement inconsistent with those necessarily, I doubt if 

you do, but clearly there is always room to look and improve. 

I want to ask you, Mr. Kraman, you mentioned something that 

I will just use the term mission creep. You talked about agencies 

not minding their own business, to be less than polite. Can you 

give me an example of how that would happen, and why it could 

happen, and if you believe there is some philosophical drive behind 

that? Go ahead. 

Mr. KRAMAN. The process as designed in the collaborative process was to involve all of the agencies, because they each do have 

slightly different agendas, if you will, as they approach these complex projects, the Federal Highway Administration being the lead 

on our particular project. 

Once we got through that process and had unanimous agreement 

on the preferred alternative, the wheels came off pretty quickly 

after there were challenges to the project, and the way that took 

place was around agency issues. For example, EPA or the Corps of 

Engineers, while we had a very robust public outreach process for 

the constituents that live around the project, there is the whole 

level of professional organizations that work with EPA on their 

agenda or work with the Corps of Engineers on their agenda. So 

it very quickly unravels despite a 10-year process of collaboration. 

Mr. HANNA. So what you are suggesting is that there is a war 

of attrition that can be fought from a number of different angles 

that ultimately—go ahead. 

Mr. KRAMAN. And I think the biggest weapon that is used is to 

delay. So it is not necessarily that easy to stop a project, but in the 

current process it is very easy to delay a project. And I think the 

major weapon we see is to use each of the agencies in the slightly 

different way they would each look at that in order to throw in 

delays to the process. 

Mr. HANNA. So that you welcome the input, but it is hard to 

bring to conclusion because of all these other dynamics. 

Mr. KRAMAN. Right. And perhaps what is lacking is a more robust appeal process, if you will, or some sort of an administrative 

process to raise the level of disputes in order to keep the projects 

moving forward. 

Mr. HANNA. So how would you suggest you cap input? Ms. Peterson is suggesting it is a wonderful thing. We all agree that it is 

part of the process, you need it. But how do you end something like 

that? 

21 

Mr. KRAMAN. We agree that it is an important part of the process 

and the process allows for that input. However, having followed the 

procedures outlined in the process, we need to move ahead. 

Mr. HANNA. So you had a 16-mile agreement. That didn’t work 

out. You went to a 5.5-mile agreement, and you thought that was— 

because everybody had already signed out, and then they jumped 

back in because ultimately what they are really saying is, we don’t 

want this to happen. 

Mr. KRAMAN. Correct. 

Mr. HANNA. And you think we could find a way around that? 

Mr. KRAMAN. Yes. It depends on who it is we are talking about 

when say they, we don’t want this to happen. Certainly the people 

of Orange County and the people who are sitting on the 5 freeway 

in San Clemente and San Juan Capistrano, where we are spewing 

all sorts of air pollution into the air while they sit there, would 

rather have a free-flowing alternative route where our vehicle 

hours traveled decreases, and where as a transportation control 

measure, it supports the air quality conformity for the entire L.A. 

Basin, we want to be able to move towards that as opposed to having people stuck in traffic, because we have an alternative. By the 

way, the main thing that typically stops a project is they can’t fund 

them. We are paying for this project without using taxpayer dollars 

to build this facility. 

Mr. HANNA. So you would like to see these agencies have this 

input. I don’t know how to end this, because this is bureaucratic, 

it is the way bureaucracies go. 

But then my times has expired. Thank you very much. 

Mr. PETRI. All right. Let’s see. We have Mr. Rice. 

Mr. RICE. Thank you, Mr. Chairman. 

Mr. Kraman, Mrs. Peterson earlier said that NEPA is not broken. With respect to your toll road projects, how much time have 

you spent trying to get this final part permitted? 

Mr. KRAMAN. Close to 20 years. 

Mr. RICE. Do you think NEPA is broken? 

Mr. KRAMAN. I think NEPA is a process that can lead to a solution. I think there are components of it, particularly when it involves the coordination between the other agencies not being the 

lead agency, that can easily delay a project. I think the element of 

delay, which leads to more costly projects, which leads to that benefit not being available to the users and the benefiters of that 

project, I think that part of it is broken. 

Mr. RICE. All right. Would you agree with me that transportation 

and infrastructure are important to our economy and jobs? 

Mr. KRAMAN. Yes, sir, I would. 

Mr. RICE. Do you think that delaying critical transportation and 

infrastructure projects helps America’s competitiveness in the 

world? 

Mr. KRAMAN. It does not. 

Mr. RICE. And do you think that that results in jobs going overseas? 

Mr. KRAMAN. Well, certainly out of certain States to other States, 

and I would agree overseas as well. 

Mr. RICE. Thank you, sir. 

22 

Mr. Swonke, with respect to Texas, so does NEPA or MAP–21 

specifically allow for States to be delegated this authority to oversee the NEPA process? 

Mr. SWONKE. Yes, it does. 

Mr. RICE. How many other States have been granted this authority? 

Mr. SWONKE. California has been working under this authority 

for the full assignment, that includes EISs, environmental impact 

statements, and environmental assessments, for I think going on 7 

years. 

Mr. RICE. So they received the delegation or they are trying to 

get the delegation? 

Mr. SWONKE. They received it just over 7 years ago, and they 

have been working under that authority for that time. 

Mr. RICE. How long has Texas been trying to get that delegation? 

Mr. SWONKE. Oh, about a year, just about a year when we decided, we got the State legislation passed and moved forward 

spring of last year. 

Mr. RICE. How many other States have gotten it? 

Mr. SWONKE. And then for the limited assignment that is just for 

categorical exclusions, there is Utah and Alaska who have been operating under that authority for some time. 

Mr. RICE. Do you know of any other States that are trying to get 

it? 

Mr. SWONKE. I have talked to some of my peers, and they are 

interested. I don’t know that they are actively today pursuing it, 

but they are interested and somewhat preparing for it. 

Mr. RICE. Mr. Kraman, do you know how much money has been 

spent on complying with the NEPA process with respect to the, 

what did you call it, TCA project? 

Mr. KRAMAN. I don’t have that number. I can get that for you. 

Mr. RICE. Mr. Swonke, do you all have any breakdown on that, 

on what it costs? You said earlier that—I am trying to remember 

the exact phraseology—but I am trying to get from the Federal 

Government a breakdown on a project that doesn’t get a categorical 

exclusion, what the percentage cost of complying with the NEPA 

process was versus the cost of actually putting pavement on the 

dirt. 

How much money are we spending of our very limited resources, 

when we don’t even have enough money to take care of what we 

have already got, much less build any roads? How much money of 

that are we diverting to this NEPA process and not putting pavement on the ground? 

Mr. SWONKE. Of course, I don’t have those numbers available, 

and it would be very project specific. But we could come back with 

some examples, I am sure. 

Mr. RICE. OK. You could come back with what you are spending, 

but you can’t tell me what the EPA is spending and what all these 

other—the Federal Highway Administration and all these other 

various—the Army Corps of Engineers—you can’t tell me what 

they are spending, right? 

Mr. SWONKE. Correct. I wouldn’t be able to. 

Mr. RICE. Do you think it would be helpful if we required some 

breakdown on a cross-agency basis so we could at least understand 

23 

how much, in addition to the time and the lost productivity and all, 

the lost benefits, delay of benefits, do you think it would be helpful 

to know what it has cost us in hard dollars across all these agencies? 

Mr. SWONKE. Yes, sir. I think cost-benefit is always helpful. 

Mr. RICE. Can you, I know I am putting you on the spot with 

this, because I don’t know that I could even come close, but can you 

give me any kind of an approximate breakdown, 10 percent, 20 percent? You can’t do that, can you? 

Mr. SWONKE. No, sir, I can’t, off the top of my head. 

Mr. RICE. All right. 

Mr. Braceras, do you think that NEPA process is broken? 

Mr. BRACERAS. Mr. Congressman, I do not believe the process is 

broken. I think there are improvements that we could make in the 

administration of the process. The process is actually very good and 

can yield excellent outcomes if people come to the table with a willingness to have honest, open discussions and they reach a point at 

which they are willing to make a decision. And I believe the process works if it is administered appropriately. But that really comes 

down to people. 

Mr. RICE. You know, I want to thank every one of you for being 

here. And I have the utmost respect for every single one of you. 

And thank you for your work and thank you for trying to help your 

individual States and push these projects through. 

I think when it takes 20 years to get a much-needed road in California, 24 million people in southern California moved around, 

when it takes 10 years to get a permit for a road we have been 

working on in South Carolina, I–73, I think the process is horribly 

broken, I think it costs millions of jobs, and I think it affects American competitiveness, and we can do much, much better. Thank you 

very much. 

Mr. PETRI. Thank you. 

Mr. DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

I think the summary of the testimony is the expansion of the 

CEs, which I have advocated for, for a number of years, has worked 

quite well in Texas and Washington and elsewhere. We do have before us an issue, which actually when I chaired the subcommittee, 

was the subject of a hearing, which is the unbelievably controversial SR 241 road to the coast. I have just got a couple of questions 

on that, Mr. Kraman. Do you want the Federal Government to preempt your State’s laws, yes or no? 

Mr. KRAMAN. No. 

Mr. DEFAZIO. OK. So it is my understanding that actually this 

road was the most controversial issue ever heard by the Coastal 

Commission, they had more comments than on anything or perhaps all their other proposals in history, and yet you are proposing—and that is what brought it to a halt—but you are proposing changes to Federal law, giving a long litany of interactions 

with the Federal Government, for something that was ultimately 

blocked by the State. Isn’t that correct? 

Mr. KRAMAN. Well, what I testified—— 

Mr. DEFAZIO. Well, I mean, isn’t that true? At this point, you are 

blocked by the State. 

24 

Mr. KRAMAN. What I testified today to is how we have reevaluated the project and the difficulties we are having with a 5.5-mile 

project, which doesn’t impact the coastal zone. 

Mr. DEFAZIO. OK. But generally the lengthy litany of things that 

we are talking about here and the changes you want relate mostly 

to the problems you have had with 241, which relate to the State 

California Coastal Commission, which of course is not the jurisdiction of this committee, and you haven’t recommended that it should 

be, so I appreciate that. 

Ms. Peterson, let’s go back to people who are a little more successful in working through the process. You know, we have talked 

before about appropriate design. I mean, if one has appropriate design and adequate public input, do you see the need for further 

streamlining beyond what we have already delegated through the 

last, whatever they called it, MAP–21? 

Ms. PETERSON. Chairman and Congressman, the specifics on 

streamlining, I think we have had great success in Washington 

State on continuous improvement on streamlining and permitting, 

so I would hesitate to say no, we don’t ever need to continue moving forward on streamlining. I think there are always ways in 

which we can improve the process, but public participation would 

not be one that I would want to streamline out. 

Mr. DEFAZIO. Well, the most notable failure in the Northwest, of 

course, is the Columbia River Crossing, which didn’t have anything 

to do with a failure brought about by Federal agencies. 

Ms. PETERSON. No. That was a project for the committee that 

went through extensive environmental impact statement, had a 

record of decision, and then due to the fact that the Washington 

State Legislature considered but did not move on a transportation 

package to fund projects across the State, that is not moving forward at this time. 

Mr. DEFAZIO. So we had proposed and went through and were 

able to work with the various Federal stakeholders before the 

streamlining process and get approval to go ahead from the Feds, 

but it was a failure of the region, much like 241 in California is 

a failure because of California State law. 

Ms. PETERSON. It was certainly a long process to get to a conclusion. And having been somebody who worked on both sides of the 

river—— 

Mr. DEFAZIO. Both sides of the border. 

Ms. PETERSON [continuing]. On this project, and also as a person 

who was—— 

Mr. DEFAZIO. I am not trying put you on the spot here. 

Ms. PETERSON. No. 

Mr. DEFAZIO. I am just making an observation. You can just say 

yes. 

Ms. PETERSON. As somebody who just has a perspective from inside and outside, the process worked. 

Mr. DEFAZIO. OK. But you do say at the end, ‘‘subcommittee’s 

support encouraging Federal resource and regulatory agencies.’’ 

You list ‘‘examine their review processes, look for ways to expedite 

programmatic agreements.’’ Could you expand on that, because I 

don’t know what that means. 

Ms. PETERSON. Where are you? 

25 

Mr. DEFAZIO. At the end of your testimony. 

Ms. PETERSON. OK. Could you read it? 

Mr. DEFAZIO. It says, ‘‘We seek the subcommittee’s support in 

encouraging Federal resource and regulatory agencies (Fish and 

Wildlife, NMFS, Corps) to examine their review processes and look 

for ways to expedite programmatic agreements.’’ 

What is the problem we are trying to get at there? There is a 

problem you are pointing to. 

Ms. PETERSON. That is to reduce the time that it takes for the 

review. 

Mr. DEFAZIO. OK. So it is a lack of coordination still among the 

agencies? 

Ms. PETERSON. I think that we have done a good job at Washington State doing that for our folks that we work with, reducing 

from 90-day review to 3 days. We would essentially say that should 

happen across the country. 

Mr. DEFAZIO. So the Feds aren’t able, even with the CE process, 

to meet the kind of expedited process that you can put forward? 

Ms. PETERSON. I think we should be used as the best practices. 

Mr. DEFAZIO. Yes. OK. So they need direction, or what changes 

do you—— 

Ms. PETERSON. I think many of our programmatic MOU’s and 

MOE’s should be looked at in terms of how they could be used in 

other States. 

Mr. DEFAZIO. OK. All right. Well, we need to follow up on that, 

because I am looking to whatever we can do for continuing problems. I have struggled with this lead agency, agencies wandering 

in later and saying, gee, wait a minute, oh, we should have been 

here and we haven’t been and now we have a concern at the end. 

I mean, there has got to be—— 

Ms. PETERSON. Correct. 

Mr. DEFAZIO. And it seems like there are still some vestiges of 

that problem. 

Ms. PETERSON. Yes. 

Mr. DEFAZIO. OK. Thank you. 

Thank you, Mr. Chairman. 

Mr. PETRI. Thank you. 

Mr. Duncan. 

Mr. DUNCAN. Well, thank you, Mr. Chairman. 

And, Mr. Braceras, you mentioned in your testimony that the 

Interstate 15 construction project in Utah was completed in an unprecedented 35 months, making it the fastest billion-dollar project 

ever built. Maybe you have testified about this, but I have had to 

be in and out. Would you tell me a little bit more about how you 

did this, and are there lessons that you learned that could be helpful to other States? 

Mr. BRACERAS. Thank you, Congressman, for the question. The 

timeframe that we referred to in the project was in relation to the 

fact that Utah DOT has been very progressive in streamlining 

project delivery. The environmental process and approval preceded 

the 35 months to construct the project. 

Now, the environmental document, I believe, was unique in the 

sense that when we began the document we began it as a 

multimodal document and we carried forward into the draft EIS as 

26 

both a transit component and a highway component. But as was 

testified earlier, one of the improvements that could be made as we 

move forward is to be able to complete a decision on both modes 

of transportation within the same document. 

What happens, and it is what happened to us on the I–15 project 

in Salt Lake County in 1995 where both the light rail solution and 

a highway solution came out of the environmental process, is when 

we get to the draft EIS you have to split the documents apart because there are different formatting requirements required from 

Federal Transit Administration versus Federal Highway Administration. 

So that does not really, I believe, send the right message. Our 

agencies want to be truly multimodal, and so you would have to 

split the documents apart. That is an inefficiency. But in terms of 

the timeframe mentioned in my testimony, it was in reference of 

supporting the fact that we are doing everything within our powers 

to try to move projects forward quickly. 

That was a design-build project. Utah is the first DOT in the 

country to utilize design-build back in the 1990s. We continue to 

use it probably more so than most States. That process allowed us 

to achieve incredible outcomes for the public at a very, very short 

timeframe with very little impacts to the traveling public. We kept 

all the traffic lanes open during construction when we did it. That 

total project was a $1.725 billion project in terms of program costs. 

Mr. DUNCAN. Well, thank you very much. I have not been here 

as long as Chairman Petri, but this is my 26th year on this committee. And I chaired the Subcommittee on Aviation for 6 years 

and the Subcommittee on Water Resources and Environment for 6 

years and for 2 years this subcommittee when we were writing 

MAP–21. And all through all those years we would hear all these 

officials come on all the different types of projects, aviation 

projects, water projects, highway projects, and they would tell us 

it was taking three times as long on average as any other developed nation to do these different projects, and of course that made 

it three or four times as much in cost. And so we have tried real 

hard, we tried real hard in MAP–21 to put in these environmental 

streamlining provisions and do more than just lip service. 

I was pleased, Mr. Swonke, to hear some of the examples you 

gave. You talked about the thousand projects, that you saved 82 

years of accumulated waiting time. I mean, it is not just in Texas. 

It is all over the country that these delays were taken. 

And, Secretary Peterson, I noticed in your testimony you said 

that programmatic negotiations have received very low priority in 

the Federal agencies’ workload. You started to get into this just a 

minute ago, and I was interested. You said you could cut 90 days 

down to 3 days. Would you tell me a little bit more specifically 

what you were talking about or how you were able to do that? 

Ms. PETERSON. In general terms, basically between the different 

agencies that play a role around how we do different things, like 

stormwater management, which is a very, very important issue 

within the Puget Sound area of Washington State—— 

Mr. DUNCAN. It is all over. 

Ms. PETERSON [continuing]. In certain projects we have, which is 

the majority, we have reduced the time from 90 days to 3 days for 

27 

complete review of those projects, because we have agreed that if 

it is a project of such and such type, then this is the type of solution and the type of work that we will do in response. 

Mr. DUNCAN. Well, my time is up, but I do want to say, Mr. 

Swonke, I appreciate your example on the right-of-way, the use of 

the right-of-way provisions that we had in MAP–21, because in this 

one where you say that you would have had to spend $100,000 on 

a very unnecessary environmental assessment. So thank you very 

much for the work you are doing in that regard. 

Thank you. Thank you, Mr. Chairman. 

Mr. PETRI. Thank you. 

Mr. Davis. 

Mr. DAVIS. Thank you, Mr. Chairman, and thank you to the panelists. 

I am from Illinois, and obviously I think when you look at this 

committee, we want to work together. And the T&I Committee is 

an example of bipartisanship when it comes to making reforms 

that are going to actually lead to more infrastructure investment 

and making those Federal dollars that we are able to spend go further. And that was the goal in MAP–21. 

I wasn’t here nearly as long as Jimmy Duncan. Heck, I have only 

been here a year and a half. So my experience is listening to you 

tell us how those changes in the policies that the people that have 

served here longer than I have and how they are actually being implemented. 

And, Mr. Kraman, you mentioned something earlier about a robust appeal process, and that got me thinking, because when you 

get to me on freshman row here, most of the questions are asked, 

so I want to turn it back over to you. You have seen some of the 

policy changes that we have made. If you look at WRRDA, another 

example of bipartisanship coming out of this committee, I was excited as a freshman to even be able to serve on that conference 

committee, but changing policies in WRRDA is projected to reduce 

what I call the paperwork process that the Corps of Engineers 

uses, which is design engineering, and we all know, and the environmental reviews and the different studies, is projected to change 

it from an average of 15 years right now to 3 years. Which I think 

we all agree that saves taxpayers billions, because you are getting 

to the infrastructure investment sooner and you are not spending 

precious Federal dollars on studies that can be run concurrently. 

So looking now at MAP–21 and what has been done, can each 

of you tell me a recommendation you would have, a policy change 

that could make the process even better as we move into this discussion on a complete reauthorization for highways and transit. So 

we will start with you, Mr. Kraman, because you did mention the 

robust appeal process. 

Mr. KRAMAN. OK. Well, the first suggestion I would have is that 

it needs to be a single NEPA process that we go through that includes the development of the environmental document and is then 

utilized in the Federal permits that are needed for each project. So 

often we get through a NEPA document, and yet when we get into 

the permitting process, like, for example, a biological opinion from 

Fish and Wildlife Service, that really grinds over old ground again 

28 

and eats up a lot of time in the process despite the 135-day regulated timeframe that they have to act within. 

I think the appeal process is important, but I would preface it 

by saying, if each of the agencies were confined to their area of expertise as opposed to drifting all over the map, it may be less necessary, but certainly the lead agency, which for our project would 

be the Federal Highway Administration, when we get disagreements from other agencies, whether it would be the Corps of Engineers or EPA, there should be an appeal process that is within the 

confines of that lead agency who has the expertise in the type of 

facility we are looking at. 

It gets gray. I mean, EPA obviously is very interested in air quality, which is related to traffic, but the Federal Highway Administration is the expert on traffic. So having the ability when there is 

a dispute over traffic that we could appeal through the Federal 

Highway Administration in order to get to resolution. 

All of my suggestions are related to putting more of a timeframe 

to the process. We do have a great process, public input being the 

best part of that process, but we get bogged down in the time. And 

from our perspective, a lot of the time that gets eaten up and 

added to the process are the different Federal agencies weighing in 

from a different point of view where they would not normally be 

the lead agency. 

Mr. DAVIS. OK. And that would be your number one priority in 

changing some policies, right, in the future? 

Mr. KRAMAN. Yes. 

Mr. DAVIS. OK. I don’t have lot of time left, so if you could just 

tell me what your number one policy change would be to make the 

process even better, that would be great. Go ahead, Mr. Swonke. 

Mr. SWONKE. Yeah. Very quickly. I think it goes back to what I 

mentioned earlier about the allowance to combine the planning decisions in the NEPA process. It is conditional now. It should be 

more flexible to bring in more decisionmaking from the planning 

process into the NEPA process. 

Mr. DAVIS. Thank you. 

Ms. Peterson. 

Ms. PETERSON. Preplanning is essential and bringing everybody 

to the table. But the one thing that needs to be changed is the ability for modal administrations at USDOT to accept environmental 

documents approved by other USDOT modal administrations. 

The one thing I would be remiss in not stating is Governor Inslee, Washington Governor Inslee, serves on the Presidential task 

force for climate change, and they are looking at recommendations 

for climate and GHG guidance within the next reauthorization and 

work on NEPA. So what should we be doing as States? And that 

is probably a longer conversation that will need to be had, but how 

does that apply to planning and projects? 

Mr. DAVIS. OK. 

Mr. BRACERAS. Yes. I think we all agree that we want better outcomes for the public’s investment, both from the environmental, the 

community, and the transportation perspective. I think that one of 

the things we can continue to do is continue down the path of an 

outcome-based performance management process for all of our 

29 

processes that we do within the administration of the Federal 

Highway Program and the NEPA process as well. 

We really need to increase the transparency and the accountability of how these decisions are being made. Too many times I 

see things hiding behind the term of predecisional. It is difficult for 

the public to know what is going on behind the screen, as well as 

it is difficult maybe for the project sponsor. 

Mr. DAVIS. Thank you, each of you. 

Mr. PETRI. Mr. Williams. 

Mr. WILLIAMS. Thank you, Mr. Chairman. Also, thank you for 

your leadership. Appreciate you. 

I want to thank all of you for being here today. And, Mr. Swonke, 

thank you for being here. Thank you for your leadership in working 

through some difficult times. 

I am a business guy. My district goes through Texas, goes from 

Fort Worth through Austin, a lot of highways, a lot of action going 

on. And I wish that the Federal Government would treat the States 

more like customers rather than adversaries. 

The first question to you is, as we hold this hearing, examining 

the impact of environmental reviews on transportation projects, the 

House Natural Resources Committee is meeting as we speak to 

mark up legislation on the Endangered Species Act. Would you tell 

us how the Endangered Species Act and its requirements impact 

transportation projects? 

Mr. SWONKE. Certainly. I think we have got quite a few listed 

species in the State of Texas that we deal with when it comes to 

transportation projects, and we often run into the impacts of these 

species and have to go through Fish and Wildlife Service for the 

ability to move forward on these projects. And so on a case-by-case 

basis when we run into the problem of a listed endangered species. 

Right now we are working on a project in south Texas that has to 

do with the endangered ocelot and the idea that that ocelot is being 

hit by passing cars crossing the roadway and what kind of a mitigation we can do. And we have been having discussions on this 

issue for over a year now. And certainly something needs to be 

done, we are moving forward with some mitigation options, but it 

is just the course of the discussions having been in place for well 

over a year. 

We have got instances of that around the State, that you enter 

into this coordination process, and we have to follow that path to 

completion. As I mentioned earlier, we are getting better at that 

with the liaison we are working with. I know other States probably 

have a similar success story with working with the Fish and Wildlife Service liaison on this, and we have seen similar improvements 

in that process. 

Mr. WILLIAMS. Thank you. My second question would be to explain how regulations beyond NEPA, like the Clean Air Act, Clean 

Water Act, National Historic Preservation Act, and so forth, are 

impacting transportation projects. And do you have any recommendations on how to streamline the approval process under 

these laws? 

Mr. SWONKE. Starting with the Clean Air Act, there are a number of aspects of the Clean Air Act that affect our work. And without being able to go into the details right now, that I think one of 

30 

the top ones is the idea of regional conformity and how and when 

that applies, and then also the effectiveness of regional conformity, 

are we seeing real improvements in air quality when it comes to 

the compliance with regional conformity. Also compare that to the 

improvements in air quality you are talking about when you are 

talking about cleaner fuels, more efficient engines, and things like 

that. And so what is the relative improvements that we are getting 

out of conformity. And then there are upcoming Clean Air Act rulemaking that we are expecting, and those could have some pretty 

big implications on our work as well. 

The second regulatory issue is the section 404 of the Clean Water 

Act and working with the Corps of Engineers on that. The working 

relationship is fine, but it is just the steps necessary for compliance 

and the time taken for discussions regarding alternatives, which 

we usually address in the NEPA process and going all the way 

through mitigation, which is an iterative process as well and can 

take 2, 3, 4 years to get through an individual permit, for a 404 

permit. 

Mr. WILLIAMS. Well, thank you for what you are doing. You have 

got a great team down there. I enjoy working with you. And you 

would agree with me when I said, God bless Texas, wouldn’t you? 

Mr. SWONKE. Yes, sir. 

Mr. WILLIAMS. Thank you. 

I yield back. Thank you, Mr. Chairman. 

Mr. PETRI. Thank you. 

Mayor Barletta. 

Mr. BARLETTA. Thank you. Looks like I am the last man standing here today. I would like to congratulate the chairman on his 

retirement and thank you for your service and great work. 

Many of the streamlining reforms in MAP–21 were optional, and 

you as State officials have the choice to take on new environmental 

authorities. I am going to ask all of to touch on this. Are there any 

optional MAP–21 reforms that as a State you are choosing not to 

use, and if so, why not? 

Mr. BRACERAS. There are none that we are choosing not to use. 

Some of them are taking a little bit to progress through our State 

legislative process, honestly. As was mentioned earlier, we have 

had a delegation for categorical exclusions for quite some time. It 

has been very successful. 

We made a conscious decision at that time to work with the 

State legislature to waive sovereign immunity. It sounds scary. In 

fact, it is not. At the end of day it won’t result in any change in 

the way we operate, so we only went forward with the CATEX. So 

now we are trying to obtain sponsors and work with our legislature 

to get the full delegation authority for EAs and EISs as well. 

So we applaud the Congress for providing flexibility to the 

States, but also holding us accountable for administering and adhering to the laws of this country. So I believe application and decisionmaking closest to the customer usually yields the best results. 

Mr. BARLETTA. Ms. Peterson. 

Ms. PETERSON. The portion that we are not pursuing, the only 

portion we are not pursuing is complete delegation, while other 

States may want to do that. We find that FTA and FHWA as partners at the table with us is the most appropriate way for us to 

31 

move forward. And we also have worked with our attorney general’s office on the cost and benefits of taking on that risk and liability. So we choose to prefer to go the programmatic categorical 

exclusion way, but not pursue full delegation. 

Mr. BARLETTA. Mr. Swonke. 

Mr. SWONKE. Yes. I don’t think there are any that we are choosing not to pursue, although the conditional requirements for the 

combining of planning and NEPA documents is something that we 

can move forward with the planning document and get some 

NEPA-like decisions out of that planning document before we get 

the NEPA document to where we don’t use the MAP–21 provision 

because of the conditions, but we try to achieve the same effect 

going somewhat around that and getting some early decisionmaking. 

So it is not that we don’t choose to use it, it is just that it is not 

as applicable as we would like for it to be. Thank you. 

Mr. BARLETTA. Mr. Kraman. 

Mr. KRAMAN. Well, certainly as a local agency I can’t speak for 

the State, but already having the pleasure of delegation, the staffing levels for that and keeping up with the workload is something 

that is very important within the State, and we look forward to 

continuing improvements in each version of the bill, as it helps us 

work through this process. 

Mr. BARLETTA. Mr. Kraman, when I read that the Fish and Wildlife Service took eight times longer than the deadline in the Endangered Species Act, I couldn’t help but remember my days as mayor. 

I was running for office in 1999, and the main street in downtown 

Hazleton was getting a total reconstruction, and I thought how 

lucky was I. You know, I am running for office, I am going to get 

elected mayor and people are going to think that I actually had 

something to do with this new downtown. 

Well, I won one term and served, I won my second term and 

served, I won my third term, and the project still wasn’t done. Because of the delays, that $10 million project ended up being a $26 

million project and the scope of the project was drastically cut 

down because of all those delays. 

We all know that we need to be investing in infrastructure now. 

As we delay projects, whether it is due to insufficient funds or burdensome studies and reviews, the project becomes more expensive. 

Can you tell me about the cost overruns of your project? 

Mr. KRAMAN. The construction costs that we are looking at now 

after this is probably $700 million to $1.4 billion higher in order 

to finish a 16-mile project. 

Mr. BARLETTA. Again, I want to thank you all for what you do. 

It is not easy work, right? I certainly appreciate it. Thank you. 

Thank you, Mr. Chairman. 

Mr. PETRI. Thank you. 

Before we wrap things up, I just thought I would ask Mr. 

Braceras, who is here also as chair of the National Center for Environmental Excellence, if there is anything that you had to add to 

the discussion that we haven’t discussed at this point? 

Mr. BRACERAS. Mr. Chairman, I appreciate the question. Nothing 

specific comes to mind. The AASHTO Center is very focused on trying to help States and other partners just do a better job in the 

32 

NEPA process. That is the complete focus that we have. I know we 

have seen the benefits of the center, and we appreciate the Federal 

Highway Administration being a partner in helping fund that center. 

Mr. PETRI. Thank you. Thank all for your testimony. 

I would like to ask unanimous consent the record of today’s hearing remain open until such time as our witnesses have provided 

answers to any questions that may be submitted to them in writing, and unanimous consent that the record remain open for 15 

days for additional comments and information submitted by Members or witnesses to be included in the record of today’s hearing. 

And without objection, I guess we can proceed. 

If no other Member has anything to add, this subcommittee 

stands adjourned. 

[Whereupon, at 11:46 p.m., the subcommittee was adjourned.] 

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