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96–021 PDF 2015

S. HRG. 113–730 

IMPLEMENTING MAP–21’S PROVISIONS 

TO ACCELERATE PROJECT DELIVERY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 18, 2013 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

MAZIE K. HIRONO, Hawaii 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 
(III) 

C O N T E N T S 

Page 

SEPTEMBER 18, 2013 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 2 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 3 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 5 

Fischer, Hon. Deb, U.S. Senator from the State of Nebraska ............................. 20 

WITNESSES 

Porcari, Hon. John D., Deputy Secretary of Transportation, U.S. Department 

of Transportation ................................................................................................. 21 

Prepared statement .......................................................................................... 24 

Responses to additional questions from Senator Boxer ................................ 30 

Response to an additional question from Senator Whitehouse .................... 32 

Responses to additional questions from: 

Senator Vitter ............................................................................................ 33 

Senator Inhofe ........................................................................................... 35 

Ashe, Hon. Daniel M., Director, U.S. Fish and Wildlife Service ......................... 41 

Prepared statement .......................................................................................... 43 

Responses to additional questions from Senator Boxer ................................ 49 

Response to an additional question from Senator Whitehouse .................... 51 

Responses to additional questions from Senator Inhofe ............................... 52 

Sutley, Hon. Nancy, Chair, Council on Environmental Quality .......................... 53 

Prepared statement .......................................................................................... 55 

Responses to additional questions from Senator Boxer ................................ 64 

Response to an additional question from Senator Whitehouse .................... 65 

Come, Joseph, Assistant Inspector General for Highway and Transit Audits, 

U.S. Department of Transportation .................................................................... 67 

Prepared statement .......................................................................................... 69 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 88 

Senator Vitter ............................................................................................ 90 

ADDITIONAL MATERIAL 

May 10, 2013, New York Times article, Heat-Trapping Gas Passes Milestone, 

Raising Fears ........................................................................................................ 133 

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IMPLEMENTING MAP–21’S PROVISIONS 

TO ACCELERATE PROJECT DELIVERY 

WEDNESDAY, SEPTEMBER 18, 2013 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The full Committee met, pursuant to notice, at 10 a.m. in room 

406, Dirksen Senate Building, Hon. Barbara Boxer (chairman of 

the full Committee) presiding. 

Present: Senators Boxer, Vitter, Inhofe, Barrasso, Cardin, Udall, 

Whitehouse, and Fischer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. We are here to conduct oversight on the bipartisan Moving Ahead for Progress in the 21st Century, MAP–21, 

which President Obama signed into law on July 6th, 2012. The 

U.S. Department of Transportation is charged with implementing 

the many policy improvements included in that law, which is expected to save or create nearly 3 million jobs throughout all sectors 

of the economy. 

As the authorizing committee of jurisdiction, we all have a great 

interest in ensuring that the transformational reforms included in 

MAP–21 are properly implemented. Senator Udall has expressed 

concerns and I promised him we would have this hearing to focus 

on project delivery. 

During the development of MAP–21, one of the most common 

messages we heard was that transportation projects take too long 

to be completed, years and years and years. Delays in project completion drive up costs while delaying the benefits to travelers and 

benefits to the environment which will result from a more efficient 

transportation system. To address these delays, MAP–21 included 

nearly two dozen provisions addressing project delivery while preserving public health and environmental protections. 

It is important to note that transportation projects are delayed 

for a wide number of reasons, including lack of funding. MAP–21 

includes policy reforms that should help all aspects of project delivery from the planning process to early consultation to more efficient and innovative contracting and construction methods. Examples of the key improvements include accelerating Federal agency 

decisions through the establishment of meaningful deadlines and 

the use of an effective issue resolution process, promoting early coordination, and I think that is key. I know some agencies don’t like 

it, but I think early coordination is critical. And encouraging re-
2 

views to be conducted concurrently and allowing planning materials to be better integrated into the review process. 

I do believe that these provisions will have a meaningful impact 

to help deliver thoroughly reviewed transportation projects more 

quickly. In fact, we have already seen tangible benefits from 

projects that have utilized the MAP–21 provisions. I will give you 

an example. 

Following the collapse of the Interstate 5 bridge in Washington 

State early this year, State officials were able to utilize one of the 

MAP–21 provisions, a new categorical exclusion for emergency repairs of roads and bridges damaged in a disaster. Now, I want to 

make a point here. As we see the climate change, and we see the 

flooding increasing, and we see the problems we are facing, we 

need to have this categorical exclusion for emergency repairs of our 

roads and our bridges that are damaged in a disaster. 

And that is what we did. I am very proud of the work that we 

did, because it allowed for a very fast repair and a rebuilding of 

a permanent span across the Skagit River. 

While some of MAP–21’s project delivery provisions were implemented in short order, many of the other provisions require DOT 

to develop and issue new regulations. It is important that DOT 

stay focused on completing these rulemakings in order for the public to benefit from these reforms. Remember what we want is 

speedier delivery with all the protections for the environment and 

public health built in. 

Today we will get an update on the status of the MAP–21 provisions, and I do look forward to hearing from all the witnesses here 

and the Inspector General. And now I call on my ranking member, 

Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Madam Chair, very much, and 

thanks to all of our witnesses and the members here. I certainly 

agree, this is an important hearing. Any legislation is only as good 

as its implementation. That is why we are having oversight hearings to make sure we stay on track with regard to implementation. 

And certainly a key goal and focus of MAP–21 was accelerating 

project delivery. So I really applaud and welcome this focus. 

The desire for that reform grew from something pretty simple 

and basic, real frustration over projects stuck in bureaucratic purgatory. In Louisiana, just as an example, the Houma-Thibodaux to 

LA 3127 connection, that is a project designed to serve as a primary north-south artery to provide direct access to the I–10 corridor and serve as a critical evacuation route for emergency and 

disaster situations. 

As this poster shows, this project has been bogged down in an 

analyst EIS process for over 9 years, with really no end in sight. 

After a very costly, very long process, the project has gone through 

25 NEPA steps but has yet to produce one job. And again, to underscore what the Chair said, nobody is saying get rid of the NEPA 

process, nobody is saying get rid of the review process. But it needs 

to be far more efficient and straightforward. 
3 

So before the passage of MAP–21, there was a growing consensus 

on all levels that a project delivery and that NEPA process was 

broken and in real need of reform. First, the average delivery of 

major highway projects was 14 years from start to finish. Second 

of that, the average time for environmental review for major transportation projects had increased to a staggering 8 years, up from 

3 and a half years a decade before. 

Third, in spite of the fact that the average EIS spanned 22 pages 

in length when NEPA was first written, today major projects often 

seen these documents at over 1,000 pages. That is just unacceptable. And it translates into this bureaucratic purgatory and increased costs and endless delay that we are talking about. So we 

included real concrete provisions in MAP–21 to make changes to 

that. That is what we are going to see today, what progress there 

has been. 

I want to underscore two things. First of all, we have already 

seen some success stories. For instance, last Sunday Washington 

reopened its new I–5 bridge just 4 months after its collapse because 

of provisions in MAP–21 to allow projects damaged in an emergency situation to have expedited review. In addition, projects such 

as I–69 in Indiana, the Highway 62 corridor in Oregon and the 

Illiana Parkway in Illinois and I–90 avalanche bridges in Washington have all benefited from another MAP–21 provision that allows for documents to be published concurrently, a simple step that 

streamlines the process. 

But I think more needs to be done. In particular, I want to 

strongly encourage DOT to set concrete target dates for the implementation of both specific provisions and overall implementation of 

the streamlining we are talking about. My understanding is that 

within DOT, there are not specific target dates for this implementation. I think that has to change. 

So I look forward to all of the testimony and a very productive 

discussion. Thank you, Madam Chair. 

Senator BOXER. Thank you, Senator. 

Senator Udall. 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Thank you, Madam Chair. I want to thank you 

and your staff for working so hard on putting this hearing on 

today, and thank you for your mention in your opening. 

I think we all want to be responsive to an issue that frustrates 

many of our constituents and project developers, that is, project 

delays. This Committee is seeking solutions to accelerate and 

streamline important infrastructure projects in all of our States. 

But here is my concern. We are going down this road assuming 

that NEPA is the problem, without fully understanding that impacts that NEPA streamlining can have. And we are applying provisions developed for highway projects to a variety of other situations, such as the WRDA bill. A one size fits all solution is not the 

answer. I strongly believe that NEPA reviews are often unfairly 

blamed for project delays. The No. 1 concern I hear in New Mexico 

is about funding. That is what is holding back our infrastructure 

development. 
4 

For over 40 years, the National Environmental Policy Act has 

been the foundation for sound Federal decisionmaking. NEPA reviews ensure that environmental consequences of Federal actions 

are fully evaluated and fully accounted for before decisions are 

made. That saves taxpayer funds from being wasted on destructive 

projects. 

NEPA reviews foster robust evaluations of Federal activities by 

Federal resource agencies, and perhaps most critically, NEPA 

makes sure that the public has a say, has a voice in decisions that 

affect the health, safety and economic well-being of millions of 

Americans, decisions that impact the Nation’s treasured natural resources, provide transparency in the use of their hard-earned tax 

dollars. It is crucial that the public be heard. 

Critics of NEPA complains that the reviews are too long, too 

time-consuming. There is always room for improvement. But NEPA 

reviews also expose the true costs of ill-conceived proposals and environmentally damaging proposals. More often, NEPA leads to better projects and substantial savings for taxpayers. 

Last July, President Obama signed into law the Transportation 

Authorization bill, MAP–21. MAP–21 provided funding for surface 

transportation in 2013 and 2014. It also made some significant policy changes. The goal was to improve project delivery and cut costs. 

Many legal experts and conservationists have expressed concern 

about these provisions, that they limit the time for review, that 

they remove the public from the process, they endanger and that 

they endanger the environment, and that they may allow agencies 

responsible for projects to pressure agencies like EPA and the Fish 

and Wildlife Service into approvals. That can lead to litigation, 

more delays and more costs. 

While we are looking into these issues, Congress is looking to use 

the streamlining reforms in MAP–21 as a template for many other 

projects. For example, we recently passed a Water Resources Development Act that applies these provisions to all Army Corps 

projects. The Energy Committee is considering similar approaches 

for a forestry bill and energy infrastructure, like pipelines. All told, 

over 30 pieces of legislation, counting both House and Senate, have 

been proposed, all aimed to streamline or limit environmental reviews. This is hasty, it is premature, and it may do more harm 

than good. 

These bills now under consideration would limit public input and 

government transparency and environmental review. NEPA guarantees that all stakeholders, which includes businesses, private 

property owners, tribes, low income populations and all variety of 

taxpayers, have a say. They have a voice in Federal decisions affecting their communities. 

Streamlining review of a reconstruction of an existing highway 

may make sense. But I am concerned that applying these proposals 

much more broadly will undercut this crucial process and that 

there could be profoundly dangerous repercussions for energy permitting, our fresh water supplies, for how our infrastructure is 

built, how public lands are managed, and how the Nation responds 

to climate change, one of the critical issues of our century. 

So again, Madam Chair, I know we are looking for solutions and 

I am hopeful that we can work together to find them. We must 
5 

take the time to understand the impacts of the proposals and craft 

the kinds of solutions that will truly increase efficiencies and promote smarter projects. I hope that is what this hearing is, the beginning of looking at that. 

Thank you, Madam Chair. 

Senator BOXER. Thank you, Senator. 

Senator Inhofe. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chair. My staff has put together a brilliant opening statement for me, which I am not going 

to use, but I ask unanimous consent that it be made a part of the 

record at this time. 

I want to mention a couple of other things. I know a lot of my 

alarmist friends, a lot of whom are in this audience today and 

around this table, are a little distressed with recent findings in the 

science that has come out from the Mail and the Telegraph, both 

of being from London, and the Wall Street Journal, and scientists 

from all around who have observed that the Arctic ice cap has increased by 60 percent just this last year, and that they are projecting now that we are already into a cooling period. 

I only bring that up, because I know that is a topic that is always 

very prevalent here in this group. 

Anyway, I will ask unanimous consent to make part of the record 

three of the documents that I just referred to. 

Senator BOXER. Without objection, so ordered. 

[The referenced information follows:] 
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Senator INHOFE. Thank you very much. 

The other thing I want to just mention, if I could, and you can 

see, I think the audience already knows, we have both occupied the 

same position that you are occupying today, so we both know it 

pretty well. 

Senator BOXER. We know what, that climate change is real? 

[Laughter.] 

Senator INHOFE. No. Procedures. 

I know that, Ms. Sutley, I will just kind of forewarn you, I have 

a couple of questions I will be asking at question time having to 

do with some of the alleged conflict of interest or maybe violation 

of the Hatch Act, as a result of two things coinciding at the same 

time: one, your event that you had, two events I guess in Providence and Hartford, and at the same time, the Organizing for Action, the executive director was your former chief of staff, coming 

out with criticism of a lot of Republicans. That is purely a political 

organization. In fact, they hold that thing, all the Republicans at 

this table, along with 131 others, received this award. Actually, it 

is kind of a nice award, the unicorn award. 

But as a result of those accusations, I have sent you a letter and 

I would appreciate very much if we could get a response to the specific questions that we asked. I think it is something that at least 

needs to be addressed. There may not be anything to it. But any 

time two things happen simultaneously, there is always room for 

suspicion and I think people understand that. 

So I will be asking that we make a part of the record the three 

letters, two from me to you, and then one from you to me, at this 

time. That is a unanimous consent request. 

Senator BOXER. It is so ordered. But I will also allow you to answer in my question time. 

[The referenced information follows:] 
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Senator INHOFE. The other thing that I think is very, very significant is something that no one has talked about. That is, I have 

to criticize some of my fellow Republicans. When we had, Madam 

Chairman, we had on the floor the authorization bill, transportation authorization a year ago, quite frankly, we had a lot of 

demagogues that went down to the floor, or I call them born-again 

conservatives, a lot of whom had supported the $700 billion bailout. 

They were talking about the fact that this is too much money and 

all this. 

Clearly, the conservative position in the Highway Reauthorization Bill a year ago was to support it. Because the alternative was 

to have extensions. And we know that extensions cost about 30 percent off the top. In fact, even the American Conservative Union 

agreed with that. 

Well, I have to say to you, Madam Chairman, that I went over, 

right as soon as we passed that from the Senate, to the House, anticipating we might have objections over there. And I got all 33 Republican members of the T&I Committee, that is Transportation 

and Infrastructure Committee of the House, in one room where I 

explained to them what the real, true conservative position was, 

and that was to give us a well thought-out transportation reauthorization bill. 

I this I outlined, and I have to say this publicly, and I have said 

this before, that I admire and respect so much our Chairman for 

going along with a lot of the reforms that I don’t think she was all 

that comfortable with. We all gave a little bit to have this bill a 

year ago now. 

The reason I bring that up is that this meeting is about, maybe 

we are dragging our feet a little bit on implementing these 

changes. But when I told them about all of the changes that took 

place in this bill, and I am talking about the NEPA reforms, the 

streamlining, the ET reforms, they all were shocked to find that 

out, because they hadn’t had a lot of publicity. 

So I would say this. We can have just as much support from the 

Republicans in the House of Representatives if we are successful 

in coming up with a transportation reauthorization bill, as we did 

last time. But if we don’t move on all of these reforms, and that 

is the subject of this Committee hearing, we are not going to have 

a chance at getting it done. So we are going to be really trying to 

do that in hopes that we will be able to get a robust highway reauthorization bill, which I think we all want, at least at this table. 

Thank you, Madam Chair. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Thank you, Chairman Boxer. Thank you to our panelists. I appreciate this opportunity to check in on the significant strides MAP–21 made in accelerating project 

delivery. 

I recognize this hearing is highway focused, however with my good friend Dan 

Ashe on the panel, I can’t miss this opportunity to address an ESA issue regarding 

two species which negatively affect development in Oklahoma and nine other States. 

Although we have a good story to tell on NEPA streamlining in MAP–21, ineffective 

Endangered Species laws not only endanger the accomplishments of this bill, but 

damage many other industries and private landowners in Oklahoma. 
20 

The hallmark of MAP–21 is its streamlining provisions. Government regulations 

slow down projects and delay progress. MAP–21 created hard deadlines to lessen 

red tape, to create greater certainty for project sponsors and eliminate costly delays, 

which waste taxpayer money. 

Despite these reforms, I am concerned that they are not being implemented properly. In July of last year the Oklahoma Department of Transportation notified the 

Oklahoma Division of the Federal Highway Administration of their intent to begin 

processing projects as automatic NEPA exemptions based on the clear language of 

Sections 1316 and 1317 of MAP–21. ODOT was immediately met with some hesitation from DOT pending the completion of rulemaking and the release of guidance 

from Washington. Over a year later ODOT is still waiting for clarification, which 

we should already have. In fact, halfway through this reauthorization, we are still 

waiting for a final rule on these sections—almost a full 7 months overdue. 

Furthermore, the Federal Highway Administration has released proposed rulemaking which seems to narrow the NEPA exclusions Congress wrote into MAP–21. 

This has created uncertainty, confusion, and further delays—the exact conditions 

MAP–21 is supposed to improve. This Committee should not give any consideration 

to, should not even discuss another highway reauthorization until the MAP–21 reforms are finalized and implemented. 

It is my hope that these issues will be addressed to today. I appreciate you all 

being here and look forward to your testimony. 

Senator BOXER. Thank you very much. 

Senator Fischer. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator FISCHER. Chairman Boxer and Ranking Member Vitter, 

thank you for holding this hearing today to discuss accelerating delivery of transportation projects. 

This is an important topic that we must continue to examine as 

we seek to balance transportation and infrastructure needs with 

environmental protection and community concerns. 

I am pleased that this Committee will be meeting again soon to 

discuss the need to invest in America’s infrastructure and preserve 

Federal transportation funding. In an age of very limited funding 

for transportation projects, we must ensure that our resources are 

devoted to tasks that truly add value to the projects and are not 

wasted on piling up paperwork that only serves to fulfill bureaucratic requirements. 

The point should be to maximize results, not process. Our own 

State’s department of roads will attest that the environmental 

process often does not appear to have outcomes in mind. They have 

urged us to consider ‘‘bearing in mind the scope of the project: is 

the process proportional to the risk of actual environmental, historical or social harm? If the process is not outcomes or performance 

based, what is its purpose and what is being achieved?’’ 

All too often, unfortunately, the process is not proportional to the 

risk of harm. Time and resources are expended on exercises that 

add no meaningful environmental, historical or social benefit. Our 

Governor, Dave Heineman, recently wrote to Secretary Foxx to 

voice concern about one particularly troubling situation that the 

Nebraska Department of Roads encounters all too frequently, a 

problem that our State hopes can be addressed, at least in part, by 

ongoing rulemaking under MAP–21. 

Nebraska develops hundreds of projects each year that meet the 

criteria of the state of good repair project within the existing right 

of way. Currently, the amount of time, effort and expense required 

to document in a categorical exclusion that such projects will not 
21 

cause significant impact to the environment is far out of proportion 

to the environmental and social risk of the undertakings. These CE 

documents typically run in excess of 20 pages, require consultation 

with multiple regulatory agencies, and add many months to the 

project delivery schedule. 

Our State has implored the Department of Transportation for 

help in resolving this issue as DOT undertakes rulemaking for a 

new categorical exclusion for any project within an existing right 

of way. I look forward to discussing this and other ways that we 

can work together so we can ensure our limited infrastructure resources are focused on meaningful outcomes and transportation 

projects are delivered in a timely manner. Thank you. 

Thank you, Madam Chair. 

Senator BOXER. Thank you so much. 

We are going to move to our esteemed panel, and we are going 

to start on this end, with Hon. John Porcari, who is Deputy Secretary of Transportation of the U.S. Department of Transportation. 

Please begin. 

STATEMENT OF HON. JOHN D. PORCARI, DEPUTY SECRETARY 

OF TRANSPORTATION, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. PORCARI. Chairman Boxer, Ranking Member Vitter and 

members of the Committee, thanks for inviting me here today to 

discuss the Department of Transportation’s work to improve the 

delivery of transportation projects. 

At DOT, we are committed to providing the American people 

with a safe and efficient transportation system. We never stop looking for better ways to do our jobs. That is why we are working to 

deliver infrastructure projects more efficiently and to stretch the 

value of every dollar. 

We are accomplishing this through the implementation of our 

current transportation bill, MAP–21, as well as the Administration’s ongoing efforts to expedite environmental permitting and reviews. As you know, MAP–21 laid out a number of provisions designed to move infrastructure projects from conception to completion more efficiently. 

Immediately after passage, we began working aggressively to fulfill all of these requirements. We have an internal working group 

that I chair that is focused on doing that. 

The Federal Highway Administration estimates that annually, 

about 9,700 projects are covered by categorical exclusions which involve no significant environmental impacts and require limited documentation, analysis or review under NEPA. Approximately 130 

environmental assessments are processed in a year, which can take 

just a couple of months to complete, if done right. And 37 projects 

on average require a full environmental impact statement, which 

is the most rigorous form of NEPA analysis. 

While the EIS projects represent only a tiny minority of projects, 

they also tend to be the most important and transformational 

projects. They are the same changers. Of the projects completed 

each year, it is estimated that 98 percent are CEs, 1.7 percent are 

environmental assessments and only .3 percent are environmental 

impact statements. 
22 

One of our highest priorities under MAP–21 was to establish a 

new categorical exclusion for emergency projects that allows us to 

get to work repairing and reconstructing infrastructure faster. As 

both the Chairman and Ranking Member have mentioned, when a 

section of the I–5 bridge in Washington State collapsed in May, we 

had this exclusion in place to restore the critical piece of infrastructure. The temporary bridge was in place within 3 weeks, and just 

a few days ago, last weekend, I am pleased to say that the new permanent bridge was slid into place, and it is now open to traffic. 

Another accomplishment under MAP–21 is the new combined 

final environmental impact statement and record of decision, which 

cuts down on the review time. That has already allowed four major 

projects to be completed a month faster. 

Additionally, we have published a proposed rulemaking on the 

Surface Transportation and Project Delivery program, which allows 

States to assume responsibility for certain environmental reviews. 

For example, we are already working with the State of Texas to 

take on those authorities. 

Our efforts to speed project delivery go far beyond MAP–21, including the Federal Highway Administration’s Every Day Counts 

initiative. Every Day Counts shares best practices with project 

sponsors around the Country to shorten project timelines, save 

money, enhance safety and protect the environment. Communities 

around the Country are already benefiting from this. This is an ongoing process for us. 

One of those best practices that we would like to see employed 

by everyone is the development of programmatic agreements. These 

agreements allow project sponsors to collaborate with resource 

agencies to develop a broad approach to addressing common environmental problems, rather than repeatedly developing individual 

mitigation plans for repeated projects. A great example of that 

partnership with the U.S. Fish and Wildlife Service is the Indiana 

bats, a larger approach which protects both the resource and permits projects to move more quickly. 

We have also worked with the advisory council on historic preservation to address historic assets while making improvements on 

bridges built after 1945. These are concrete and steel bridges, these 

are not old wooden covered bridges. But the advisory council has 

jurisdiction over them. So we now have a pre-approved process that 

applies to every project like that that lets the projects comply with 

Section 106 in advance. 

President Obama has called on us to clear away the red tape 

that slows down too many construction projects. We are proud to 

answer the President’s call on that. We are committed to achieving 

this goal by cutting the review and permitting timelines in half for 

major infrastructure projects. In 2011, we worked closely with our 

partners to establish aggressive environmental and permit review 

timelines for the first six high priority transportation projects. 

Thanks to these efforts, we were able to complete the environmental impact statement for one of those six, New York’s Tappan 

Zee Bridge, in 1 year. That is reducing the overall timeline for a 

major EIS by as much as 3 or 4 years. So we have built on this 

progress by identifying an additional 15 projects that have national 

or regional significance for expedited reviews. We are making it 
23 

easier for everyone to track these projects by approving the public 

dashboard, which displays nationally and regionally significant 

project schedules and helps institutionalize the best practices. 

Senator BOXER. Could you sum it up? We are running out of 

time. 

Mr. PORCARI. Yes. Chairman, in short, we believe that we can 

bring measurably better outcomes in return for a faster, more predictable process. That is our mission statement. 

[The prepared statement of Mr. Porcari follows:] 
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Senator BOXER. Thank you very much. We turn to Hon. Dan 

Ashe, Director of our Fish and Wildlife Service. Welcome. 

STATEMENT OF HON. DANIEL M. ASHE, DIRECTOR, 

U.S. FISH AND WILDLIFE SERVICE 

Mr. ASHE. Thank you, Chairman Boxer, Ranking Member Vitter 

and members of the Committee. It is a pleasure to be here today, 

and thanks for the opportunity to testify and present our views on 

MAP–21, which of course is the law, and the Fish and Wildlife 

Service and our employees stand ready to help effectively implement this law and other laws related to delivering infrastructure 

projects throughout the country. 

I think that I would start off by giving kudos to my colleagues 

at the Department of Transportation. I think they have taken effort to build a good and cooperative relationship with the Fish and 

Wildlife Service and other resource agencies in the implementation 

of the MAP–21 provisions. As with the agreement that John 

Porcari mentioned, the Indiana Bat Multi-State Habitat Conservation Plan, where we see these cooperative efforts being grown up 

and being supported within the different agencies, and they have 

worked with the Fish and Wildlife Service to help partner and fund 

liaison positions between the Fish and Wildlife Service and the 

Transportation Department, we have seen material efforts and success in expediting these projects. 

That is really the importance and the provisions in MAP–21 that 

focus on early collaboration and trust, communication and respect 

for one another’s mission, I think those are the provisions that 

really help build success and lasting success. I think our major concern about MAP–21 is really focused on what we like to call the 

penalty provisions. Because I think those provisions really are the 

antithesis of building a cooperative relationship. They seem to subordinate the mission and the purpose of natural resource agencies. 

They are the opposite of building trust and collaboration. They 

seem to be based on the assumption that transportation project 

delays are due to the environmental review process. 

And at least from the standpoint of the Fish and Wildlife Service, 

the data don’t bear that out. In the Endangered Species Act, Section 7 consultations on transportation projects between 2008 and 

2012, our median response date on Section 7 consultations is 69 

days. Our median response date on NEPA comments is 12 days. 

So I think, again, from our perspective in the U.S. Fish and 

Wildlife Service, the data don’t bear that out. I think it is because 

the Department of Transportation has built a cooperative relationship with the U.S. Fish and Wildlife Service. 

So I think also that these kinds of streamlining provisions, and 

again, I’m talking here about the penalty type provisions in MAP– 

21. They haven’t been implemented to date, and I hope they don’t 

need to be implemented. But I think if they are, it is because it 

is a project where there is significant concern and disagreement. 

Usually in those cases time is the thing that allows people to 

come together to reconcile their differences and get a project completed. If we are put on a strict timeline with a financial penalty 

at the end of that timeline, it is likely to not get to a yes, it is like 

to get to get to a faster no. Because people simply will not have 
42 

the ability to come together using the streamlining and other provisions, and work out their differences. And we have seen that work 

with regard to potentially very controversial projects. 

So I think I will just conclude by saying, my father-in-law was 

a tradesman, a sheet metal tradesman. He built over his lifetime 

a very successful business. He helped me a lot and taught me a lot 

about life and about home improvement. And one of the things that 

he taught me, and one of the axioms he taught me was, Dan, measure twice, cut once. That I think is something to bear in mind here. 

When we are dealing with complex, controversial projects, sometimes speed is not what is necessary. Sometimes the investment in 

time and relationship is the most important thing. I think that we 

can build success around that. 

Thank you very much. 

[The prepared statement of Mr. Ashe follows:] 
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Senator BOXER. Thank you. 

The Honorable Nancy Sutley, Chair, Council on Environmental 

Quality. Welcome. 

STATEMENT OF HON. NANCY SUTLEY, CHAIR, COUNCIL ON 

ENVIRONMENTAL QUALITY 

Ms. SUTLEY. Thank you, Chairman Boxer, Ranking Member 

Vitter and members of the Committee. Thank you for the opportunity to discuss the Administration’s efforts to implement MAP– 

21. 

We take seriously the development of our Nation’s transportation 

infrastructure to improve the mobility of our communities and to 

foster economic growth. 

I would like to discuss the Administration’s broader efforts to expedite permitting of infrastructure projects and the importance of 

NEPA. NEPA serves an important purpose by giving communities 

the opportunity for input into Federal decisions that affect them 

and ensuring that those decisions are informed by good analysis of 

project impacts. Better agency collaboration, as you noted, Madam 

Chair, combined with good guidance to efficiently implement existing authority leads to better outcomes for project applicants, for 

communities, a healthier environment and savings for the taxpayers. 

Under this Administration, CEQ has focused on increasing efficiency and infrastructure permitting, and identifying new areas to 

improve the performance of the Federal Government, including by 

establishing interagency rapid response teams to expedite key 

projects and by issuing new guidance to improve the overall NEPA 

process. 

I think today sometimes we take for granted that the public has 

a right to participate in Federal decisions. But in fact, it was in 

NEPA that Congress and the President clearly established this 

right. Before NEPA, there was little to prevent the Federal Government from simply ignoring the environmental concerns of affected 

communities. At its heart, NEPA recognizes that we need to look 

before we leap into making a decision and that the public, business, tribes and State and local governments all have a vital interest in Federal actions. Their unique knowledge of the risks, consequences and possible alternatives to a project can produce better 

decisions. And better decisions reduce the risk of future litigation 

and further delay. 

A few facts about NEPA: More than 90 percent of all Federal actions are quickly handled through categorical exclusions, the least 

intensive form of NEPA review. And only a very small fraction of 

projects or decisions require a full environmental impact statement. 

Since today’s hearing is focused on MAP–21, I wanted to provide 

you with some facts about transportation projects and the NEPA 

process. The Federal Highway Administration estimates that annually about 9,700 projects are covered by categorical exclusions, 130 

use environmental assessments and just 30 projects, or .3 percent 

of the projects, require a full EIS. And the Federal Transit Administration reports very similar percentages. 

Many challenges, as you heard, in major project development are 

often, we believe, incorrectly attributed to the NEPA process. Se-
54 

curing funding, local opposition, project complexity or changes in 

scope are more often responsible for delays. 

Major projects often require permits and reviews that cut across 

many agencies and jurisdictions. Under a March 2012 executive 

order, CEQ is working closely with OMB and Federal agencies to 

speed the review process. Efforts to modernize infrastructure permitting provide important lessons for enhancing the efficiency of 

permitting processes overall and maintaining the integrity of 

NEPA. Bringing agencies, project applicants and stakeholders to 

the table at the beginning of the process saves time and money. Establishing mutually agreed-upon project schedules rather than arbitrary deadlines fosters coordination that saves time and money. 

Concurrent and collaborative reviews, as has already been noted, 

across Federal agencies and with other stakeholders saves time 

and money. And making this information available to the public 

through Project Dashboard provides transparency and accountability. 

As a result of this work, we have been able to improve permitting timelines by several months to several years and improve environmental and community outcomes. 

Infrastructure continues to be a priority for the Administration. 

In May, the President issued a Presidential memorandum that 

called on agencies to cut Federal permitting timelines for major infrastructure projects by up to 50 percent. 

We are eager to work with Congress to identify ways to expedite 

transportation project permitting in a manner that protects public 

input and the environment. There are many commendable provisions in MAP–21. But we share the concern about financial penalties on agencies; arbitrary deadlines are meant to permit projects 

more quickly. In our view, these efforts can be counterproductive 

and may slow project approval and increase litigation risk. We are 

committed to working with Congress to focus our efforts on what 

works and get to the root causes of project delays. 

Again, I appreciate the opportunity to appear before you and look 

forward to answering your questions. Thank you. 

[The prepared statement of Ms. Sutley follows:] 
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Senator BOXER. Thank you. We will now hear from Joseph Come, 

Assistant Inspector General for Highway and Transit Audits, U.S. 

Department of Transportation. Welcome, sir, and thank you for 

your work. 

STATEMENT OF JOSEPH COME, ASSISTANT INSPECTOR GENERAL FOR HIGHWAY AND TRANSIT AUDITS, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. COME. Thank you, Chair Boxer, Ranking Member Vitter and 

members of the Committee. Thank you for the opportunity to testify on DOT’s actions to address project delivery acceleration provisions in MAP–21. 

My statement today is based on our May 2013 letter to the Committee, along with some updated information that DOT provided 

last week. We want to let you know our initial assessment of DOT’s 

plans for implementing these provisions. This initial assessment 

will serve as a baseline and scorecard for future, more comprehensive work which we are mandated to conduct under MAP–21. Our 

mandate extends through fiscal year 2016. 

As we reported in May, DOT’s plan addressed all required elements of the law and includes 42 actions, such as issuing regulations and guidance, as well as reports to Congress. DOD had completed 5 of 42 planned actions, including issuing a final rule on categorical exclusions for expediting projects after emergencies, we 

have heard several mentions of that one here, and interim guidance on accelerating environmental reviews. According to DOT, as 

of last week, it had completed two other actions. 

For most other actions, DOT said it had made progress even 

though more was needed. For example, it met the statutory deadline for issuing a combined proposed rule on the use of categorical 

exclusions for projects within an existing right of way and for 

projects with limited Federal assistance, but the final rule has yet 

to be issued. Our scorecard is a tough one, you have to issue the 

final rule before it is considered finished. 

We observed in our May letter that for some planned actions, 

DOT hadn’t yet assigned estimated completion dates, making it difficult to gauge progress and ensure accountability. DOT officials 

noted that they were focusing first on statutory rulemakings and 

required reports. And we agree, this is a reasonable priority. 

However, establishing milestone dates whenever feasible across 

all planned actions would serve as an important management tool 

for department leadership to promote accountability and provide 

useful status information to key stakeholders. For example, if targets are set for issuing guidance on a certain topic and made 

known, officials in the States you represent can more readily make 

plans for incorporating new provisions. DOT did tell us last week 

that since our report in May they have set milestones for two more 

final rules and two more of the pending guidance actions, showing 

progress in this area. 

Still, our May review showed that DOT was already experiencing 

delays with implementing some required rules. For example, it 

missed the January 2013 congressional deadline to issue a notice 

of proposed rulemaking on additional categorical exclusions sug-
68 

gested by stakeholders. And publication of the rule continues to be 

delayed. Last week, DOT reported some further delays. 

We recognize that the rulemaking process can be time-consuming, sometimes taking several years, especially when interagency coordination and a range of stakeholders are involved, as 

they are often here. Given these challenges, it is important for the 

Department to provide sustained management attention on implementing these MAP–21 provisions. The plan they have established 

addresses the required elements, but the sooner the provisions are 

put in place, the sooner States and others managing Federal 

projects can realize the intended benefits. 

We will continue to assess DOT’s actions and report to the Committee on its progress as we carry our statutory mandate to assess 

the Subtitle C provisions for accelerating project delivery. 

This concludes my statement, and I would be happy to answer 

any questions that you have. 

[The prepared statement of Mr. Come follows:] 
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Senator BOXER. Thanks. 

So I am going to put a few things in the record, then I am going 

to ask some questions. The first thing I want to put in is a letter 

to us from the American Road and Transportation Builders Association. Without objection, we will put their comments in the 

record. 

Then there are three publications. One is a Reuter’s article saying,scientists are surer than ever that climate change is real and 

happening; a new peer-reviewed report finds at least 95 percent 

likely that human activities such as burning of fossil fuels, chiefly, 

are the main cause. 

And then the next one is a NOAA report that says, industrial 

carbon pollution reached its highest level in human history in 

2013. And then the third one is the Guardian article, suggestions 

that climate change has slowed look only at isolated indicators like 

surface temperature and ignore other important evidence concerning the overall heating of the globe, including rapid heating of 

the world’s oceans. 

[The referenced information follows:] 
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Senator BOXER. So then as usual, Senator Inhofe and I will have 

our articles in the record, and people can make their own decisions 

on where they want to stand. 

I want to start with you, Mr. Ashe. You talked about your dad. 

My dad said, get it done. 

[Laughter.] 

Senator BOXER. He said, get it done. Do it right, don’t leave anything out, work hard, get it done. So I approach this in a very simple way, get it done. And here is the thing. I assume that you read 

Section 1306 of the law, which gives you more time. Have you read 

that section? 

Mr. ASHE. I have. 

Senator BOXER. OK. So I want for the record to show that when 

we worked together, it was hard, we did come from different places. 

But at the end of the day, we did say that very clearly, if there was 

no fault of an agency, and there wasn’t the information necessary 

to make the decision, and they didn’t have the ability to finish 

their work and there is significant new information, I mean, we 

fought over these words. Significant new information, or circumstances including a major modification. 

The point is, I hear you. But I honestly think the attitude that 

you are showing to me today is one that is premature. Because I 

think we have handled your problem here. And you are absolutely 

right when you say, the beauty of this and what we did is to make 

sure that every agency is working with the other one. This is what 

we are trying to achieve. This is why I like this reform. We have 

EPA, Corps of Engineers, Fish and Wildlife, NOAA, Department of 

Transportation, all subjected to fines. 

But let’s be clear: not one penny of fine until 180 days after the 

mutually agreed-upon schedule has not been met. Let me say that 

again. There is a mutually agreed-upon schedule by all these folks, 

am I right, Mr. Come? That is what the law says. And not until 

180 days after you miss the deadline do fines kick in. 

So I guess my question to you is, are you concerned because of 

the way DOT is proceeding? Are you concerned that this exception 

isn’t broad enough? Do you have some ideas to us that say, make 

it a broader exception? What are you really worried about here? 

Mr. ASHE. Thank you, Chairman Boxer. I guess I would go back 

to my statement. I think with the financial penalty provisions, and 

they haven’t been exercised, they haven’t had to be exercised, I 

think that what that tells me is the streamlining, the emphasis on 

cooperative work, the emphasis on programmatic level planning, 

that is the solution. 

I think that what I am concerned about is that if those financial 

penalty provisions are exercised, they will have an extraordinarily 

cooling effect. They will destroy years and years of work on building productive relationships between agencies. 

Senator BOXER. But do you believe that these timetable are 

agreed upon by your agency and every other agency at the beginning of the process? That is what has to happen. Do you agree with 

that, that that is the process right now? You have to sign off on 

the timetable. 

Mr. ASHE. No, not necessarily do I have to sign off on the timetable. The regulations that are being developed provide a timetable 
118 

under which we would presumably have to act. So I think that 

what we are talking about here again is a process, is it a process 

of collaboration? 

Senator BOXER. I am going to interrupt you. We have a disagreement on what the law says. And we are going to get you the section 

of the law. We intend that all the agencies come together and there 

is a mutually agreed-upon timetable that is signed off by all the 

parties involved. 

Now, you don’t agree with that, so there is no point in continuing 

this line of question. Why don’t I show you? I have the cite for you. 

Bring me the cite, because I think when you reach the cite, you will 

understand. You have the power, along with all the other agencies 

involved, to sign off on the timetable. 

Now, President Obama has been very, very clear. This is what 

he said in an Executive order. I want to make sure that you all 

agree with him who work for him. And if you don’t, this is your 

chance to say you don’t agree with him. It is very important. So 

listen. I am going to ask the three of you. 

He issued an Executive order to expedite permitting for infrastructure projects for States: ‘‘Our Federal permitting and review 

processes must provide a transparent, consistent and predictable 

path for both project sponsors and affected communities. They 

must ensure that agencies set and adhere to timelines and schedule for completion of reviews, set clear permanent performance 

goals and track progress against those goals.’’ 

Does everyone from the Administration agree with what the 

President has laid out here, and agrees to carry that out? 

[No audible response.] 

Senator BOXER. OK. Well, if I could say, because my time has 

gone over, and I apologize, what we did in this bill, with all the 

hoopla about it, is carry out the vision that President Obama suggested here, which is going to be in the record for you to look at. 

And in the law, we gave every agency the power to sign off on the 

deadline. 

Believe me, we had arguments about it. There were some that 

didn’t want to do that, but we managed to do that. So let’s continue 

this. And I just would say that I take what Mr. Come said very 

seriously. And we are going to keep DOT’s feet to the fire on this, 

because this has to be done, because we have to do another bill, 

another highway bill. And if things aren’t going well here, it is 

going to create problems for us. 

Thank you, Senator Vitter. I apologize, everyone who needs an 

extra minute has it. 

Senator VITTER. Thank you, Madam Chair, and I certainly agree 

with what you are saying. Let me further that discussion a little 

bit. There was a fair amount of testimony, particularly from Mr. 

Ashe and Ms. Sutley, which talked about overall statistics and suggested this isn’t a big problem, because overall the average is here, 

or so many non-controversial projects move this quickly. 

What we are really focused on, I think everybody knows, are 

major transportation projects. And those are relatively few in number, but they are enormously important in impact. I don’t want 

that to be lost. So let’s focus on the real issue, which is major highway projects. 
119 

Now, in those major highway projects, the average delivery time 

is 14 years from start to finish. In those major highway projects, 

the average time for environmental review is 8 years. And that is 

up from 3 and a half years just in 2000. And in those major highway projects, the average EIS went from 22 pages when that process started to over 1,000 pages today. 

So my first question is to all of you: Does anyone think that reality today on major highway projects is appropriate? 

Mr. PORCARI. Senator Vitter, if I may start, we don’t think it is 

appropriate and we don’t think it is the reality for all projects. I 

come at this as a practitioner, I have twice served as a State DOT 

secretary in Maryland, delivering major projects, multi-billion dollar projects and smaller ones. The process does not have to be that 

long. I mentioned the Tappan Zee example where a very complicated environmental impact statement, with concurrence from 

all the environmental resource agencies and others was basically 

done in 12 months or less. That requires a lot of things: top-level 

elected official support; a project financing plan; front-loading the 

process so all the stakeholders are actually working together and 

we understand each other’s needs and interests from the beginning, 

and a real commitment to getting it done. 

One of the venues we have for that, the President put in place 

with the Permits Rapid Response Team that Nancy mentioned, she 

and I co-chair that. It meets bi-weekly. Everyone is around the 

table. We are working our way in a positive way to a solution for 

very complicated projects. Because as you point out, these are the 

game-changer projects. 

Senator VITTER. Right. So just to underscore, Mr. Porcari, you 

agree that those average figures I cited, which are accurate, those 

shouldn’t be the averages. We should bring those averages way 

down. 

Mr. PORCARI. We should absolutely bring them down. And again, 

my contention is we could have measurably better outcomes and a 

shorter and more predictable process at the same time. 

Senator VITTER. Does anyone disagree that on major highway 

projects we should absolutely bring those averages way down? 

[No audible response.] 

Senator VITTER. OK. There was also a lot of discussion about 

1306, which is what we are talking about, and a lot of concern, 

again, particularly from Mr. Ashe and Ms. Sutley, about some of 

these provisions. I just want to underscore again, we are here to 

talk about implementation. Mr. Come, isn’t it correct that the provision that they are so concerned about has not been implemented? 

There have been no fines, and in fact, there is no concrete implementation plan yet at DOT? 

So I just want to make clear that these are fears, this is not experience, is that accurate? 

Mr. COME. Correct. That is not a provision that has been fully 

implemented at this time. 

Senator VITTER. And in fact, has any agency been fined under 

that section? 

Mr. COME. None that I am aware of. 

Senator VITTER. And in fact, has any final guidance been issued 

by DOT about those sorts of fines, et cetera? 
120 

Mr. COME. I don’t believe any final guidance has been written. 

Senator VITTER. OK. So just to underscore, this is the same 

pushback we got when we talked about this originally. This is no 

experience, we are here talking about implementation, this is no 

experience, positive, negative or anything else about implementation. We have yet to get the implementation. 

And then a final question, which I guess is for Mr. Porcari, but 

it comes out of Mr. Come’s work. Shouldn’t DOT have dates for all 

of these implementation requirements of the bill, which we do not 

have internally yet? 

Mr. PORCARI. It is a fair question, Senator. We are developing 

dates for every part of it. Just the magnitude of the issue, we 

thank the Committee for MAP–21, which has a lot of great innovations in it. But there are approximately 100 mandates, and somewhere between 50 and 60 rulemakings embedded in MAP–21. 

What we have done is prioritize those. We talked about the 

emergency relief provision being one of the most important. 

We are developing dates and timelines for all of those. We have 

tried to do it in a priority way. I would point out that the staff 

doing this work is the same staff that is working on the Permits 

Rapid Response Team. We don’t want to deter them from getting 

these projects out the door. 

Senator VITTER. Well, in closing, I would simply encourage you 

all to finish that work. We are talking about life mottoes, I will 

throw one into the mix, which is, lots of times things just don’t 

happen until and unless you have an effective deadline. That goes 

to 1306. Until you have a real deadline, an effective deadline, some 

consequence if you miss the deadline, sometimes things never happen. 

So I also bring that up in terms of encouraging DOT to have 

dates follow this implementation. Thank you. 

Mr. PORCARI. Thank you. 

Senator BOXER. I agree with that. 

Senator Udall. 

Senator UDALL. Thank you, Madam Chair. Since we are all 

quoting our dads here, my dad used to say get it done, but get it 

done right. I think the important thing here is sometimes it takes 

a good solid collaborative effort to get it done right. Sometimes that 

takes a little bit of time. I think all of you should be congratulated 

on working in a collaborative way to try to meet deadlines. 

But I think the other thing that I am hearing is that timelines 

with penalties that cannot be altered force you to know. We don’t 

want to see that. We want to see the collaboration continue. I think 

that is very important. 

Ms. Sutley, can you tell me how often projects are delayed because of environmental review, as opposed to those delayed because 

of funding shortfalls? 

Ms. SUTLEY. Based on the work that we have seen in our experience, in most cases the reason that projects are delayed is not related to NEPA specifically, but more related to issues around 

project funding, project complexity, changes in project scope and 

other things, as well as that many projects require review at the 

State and local levels. 
121 

Senator UDALL. And if shortfalls are the main cause, have we 

gained or lost anything by streamlining? 

Ms. SUTLEY. Well, we think that effective streamlining, the kind 

of early collaboration that we have all been talking about, the kind 

of programmatic reviews that are in the legislation, these are 

things that are effective in making sure that agencies are 

leveraging their resources and getting through the process faster. 

I think there are some other parts of streamlining which cannot 

address the funding shortfall issues. 

Senator UDALL. Thank you. 

Director Ashe, is the sequester affecting your ability to do NEPA 

reviews in an efficient and timely manner? 

Mr. ASHE. Senator, as a result of general budget reductions and 

exacerbated by this sequester, I have 500 fewer employees today 

than I had 18 months ago. This time next year, it will be 800 fewer 

employees than I had 2 years ago. And people in the field to build 

cooperative and trust-based relationships is a significant liability in 

terms of getting our work done, getting it done promptly, getting 

it done well. 

Senator UDALL. And Director Ashe, in your opinion, is the review 

process broken, or do we just lack the resources? Will a deadline 

help overcome that? 

Mr. ASHE. I don’t believe the process is broken. I believe that as 

Deputy Secretary Porcari mentioned, and Chair Sutley has mentioned, innovations like the RRT at the Federal level are bringing 

people together so that we can share common objectives and we can 

build common objectives. I think that is the key to delivering 

projects. We need skilled people, we need liaisons between Federal 

agencies. We are learning these lessons, we are putting them all 

to work. 

That is why I really believe that the notion that somehow environmental review is the enemy here I think is wrong. I think good 

environmental review supports the development of projects that 

can be delivered and can be delivered on time. It is when we ignore 

those things or try to rush through them that I think in the long 

run we cause delay. 

Senator UDALL. And I recognize we are still early in the implementation stage. But how do you anticipate the fines having impacts on your planning and budgeting? 

Mr. ASHE. Honestly, I don’t know how to plan for them in terms 

of budgeting. We haven’t seen implementation of the provision. But 

I really believe in my heart of hearts that the Fish and Wildlife 

Service will never see a penalty under these provisions, because if 

we are faced with a hard deadline that we can’t meet and we are 

going to face a penalty, then we are going to say no. That will be 

our default position, would be, well, if you want a quick answer, 

then the quick answer is not one that you are going to want to 

hear. So when we are dealing with these kinds of complex projects, 

it is time, and again, people who have relationships, trust-based relationships that can get us through this. 

Senator UDALL. Ms. Sutley, do you have any concerns the reviews are less thorough, complete or impactful because of the provisions in MAP–21? 
122 

Ms. SUTLEY. I think that as Mr. Ashe said, the concern is that 

with those kinds of deadlines, if a deadline is looming, the natural 

response, I think, would be to cut the review off and get to a no 

answer. I think we have seen over the life of NEPA and other environmental statutes that the kind of working together, the kind of 

collaboration and transparency and public input surfaces issues 

that need to be addressed. When you successfully address those 

you can reduce the time and the litigation risk associated with 

projects, so they can move forward. 

Senator UDALL. Thank you. Thank you, Madam Chair. 

Senator BOXER. Thank you very much. 

Senator Inhofe. 

Senator INHOFE. Thank you, Madam Chair. 

Mr. Porcari, first of all, I want to make sure that you share with 

your boss, Secretary Foxx, how much we appreciate in Oklahoma 

his participation, which was really the way that we should be doing 

things, going to the source and getting a good look. I know he is 

doing that all over the country. So I appreciate it. He was a big 

hit in Oklahoma. 

Mr. PORCARI. I will be happy to do that. 

Senator INHOFE. I would also ask, did you understand what I 

was trying to get to when I talked about politically speaking, we 

are talking here that it is important we cover the things we are 

covering. But the politics is important, as the Chairman knows. We 

need a bill. And a bill, quite frankly, it is more difficult dealing 

with Republicans than Democrats in the Senate. But we have overcome that problem in the House. 

The point I was trying to get across is, their support was predicated on the assumption that these reforms that we have would be 

taken care of in a very timely fashion. Did that make sense to you? 

Mr. PORCARI. It does, Senator. And I will tell you, we take this 

very seriously, because we see really a two-fer out of this. We can 

improve the process and get better outcome. 

Senator INHOFE. Good. I agree with that. 

Mr. Ashe, the Fish and Wildlife Service has been working with 

five States’ range-wide plan, addressing the Lesser Prairie Chicken, and I will sure be glad when we get that resolved. I understand 

the Service will receive the latest version today. I believe there is 

sufficient evidence to avoid a threatened listing, and appreciate the 

Service extending the final rule until March 14th. I am sure that 

Senator Udall agrees with me and some others do too, it would be 

nice if we could get that extended to June 2014. 

Service approval of the range-wide plan and the oil and gas CCA 

as soon as possible, it is really crucial to prevent the threatened 

listing following submission of the final draft of the range-wide 

plan today or this week. How early in, let’s say October, do you 

think the Service could issue a judgment on whether to approve the 

range-wide plan? 

Mr. ASHE. Thank you, Senator. As we have spoken about before, 

I really applaud the five range States, New Mexico, Texas, Colorado, Kansas and Oklahoma, for their work in developing a comprehensive strategy for conservation of the sage grouse. We had 

agreed on a timeline with the States, cooperatively, sitting down together and working on a timeline. The States are a couple of weeks 
123 

behind their timeline in terms of submitting the range-wide plan 

to us. But we have committed, when they get it to us, we will get 

them an answer in 10 days. 

Senator INHOFE. That is good. That is what I wanted to hear, 

and I appreciate that very much. I think you should be getting that 

today. I know that Senator Udall is on top of this, the same as I 

am. 

That is not the only issue, however. I can’t let this go without 

talking about the American Bearing Beetle. On the 15th of April, 

the Oklahoma Department of Wildlife Conservation sent you a letter asking that the Service revise the American Bearing Beetle recovery plan for the first time in 22 years so we can begin the 

delisting. I wrote you on July 22d, because the scientific integrity 

investigation currently underway at the Service involves the American Bearing Beetle in the Service’s Tulsa and District Office. 

We have not received a response yet. Supervisors at the Tulsa 

Office overrode the decision of biologists to leave the trap and relocate the trap, that method, until an alternative or a general conservation plan could be reached. 

Now we have our landowners, our developers, our farmers in a 

situation where, in Eastern Oklahoma, they have to withdraw from 

what they normally would be doing, their drilling, their farming, 

their activities, pipelines, and so forth, until the Service issues the 

guidance. So we are kind of in a dilemma there. I would ask if the 

Service planned on a general conservation plan in December 2013, 

which is now slipping into April 2014. What will you do to re-evaluate the recovery plan and more immediately expedite Service guidance for economic development in the range of this insect? 

I know you have heard this before, but the dilemma of people out 

there, time costs a lot of money. What do you think? 

Mr. ASHE. I will try to respond quickly. There is no disagreement 

in the scientific integrity issue and investigation that was ongoing 

is unrelated to the issue of the trap and relocate methodology. 

There was no disagreement and is no disagreement within the 

Service about the science on that. The State has requested that we 

revise the recovery plan. We will open discussions with the State 

about that. Of course, going back to Senator Udall’s question about 

the sequester, we are an organization under severe stress and have 

lots of people that want us to do lots of things. I think that is a 

significant challenge that we will need to talk about, how to resource that effort. 

I think that as regards advice, in the meantime, about the American Bearing Beetle, we have to advise avoidance. And trap and relocate is a method to avoid and minimize take of Bearing Beetle, 

but it is not an authorization for take. So I think we need to continue to work with industry, I think we are, and we produced a 

conservation plan for the southern segment of the Keystone Pipeline in record time. So I think we will make a commitment to continue working on that issue. But we are where we are right now. 

Senator INHOFE. I appreciate that very much. Very good answer. 

Madam Chair, my time has expired, but rather than get into any 

questions, Ms. Sutley, I would like just to ask if you could respond 

to my letter, page 2, letter of August 14th. List three specific areas 

of questions, I would appreciate a response. Will you do that? 
124 

Ms. SUTLEY. Senator, we responded to your letter of August 14th 

on September 6th. 

Senator INHOFE. Well, you didn’t specifically respond to the questions. It was a generalist thing saying, no, we did not organize that 

particular event. That is not what I asked. If you just don’t mind 

personally reading these three specific questions and trying to respond to them, could you do that? 

Ms. SUTLEY. Yes, Senator. We are also in receipt of your letter 

of September 13th, and we will provide a response. 

Senator INHOFE. Thank you very much. 

Senator BOXER. So now we are going to go to Senator Cardin, if 

he is ready, or Senator Whitehouse. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. 

Let me ask Ms. Sutley, in your role at CEQ, overseeing NEPA 

throughout all the various Federal agencies, can you identify provisions that were included in MAP–21 that would be helpful or useful for other types of Federal programs, like water projects or energy siting, or any cautionary tales that you would offer us about 

replicating the NEPA provisions for MAP–21? 

Ms. SUTLEY. Thank you, Senator Whitehouse. There certainly are 

principles that are embodied in MAP–21 which we think are very 

useful in terms of encouraging up-front collaboration and coordination among the agencies, and looking at programmatic issues. We 

believe that under NEPA those are very effective tools for ensuring 

that we are getting through the environmental reviews thoroughly 

and quickly. 

As we discussed, I think we have some concerns about the role 

of penalties and arbitrary deadlines that appear in MAP–21. I 

think based on our experience of over 40 years with NEPA, these 

are very different projects, and they have different characteristics. 

We are not convinced that one size fits all—things that may work 

in a transportation context don’t necessarily work in other contexts. 

We have been working very closely with our colleagues across the 

Administration under the President’s direction to look at how we 

do infrastructure permitting to employ methods that we know 

work, to look at specific projects as well as categories of projects to 

try to apply some of those principles. So we believe we are making 

a lot of progress there. Thank you, Senator. 

Senator WHITEHOUSE. OK, thank you. 

Madam Chair, let me make a point for the hearing here, which 

is that while I am no fan of bureaucratic of any name, nature or 

kind, the experience that I have in Rhode Island is not that NEPA 

is a barrier to getting infrastructure projects done, it is the Congress that is a barrier to getting infrastructure projects done, because we won’t fund infrastructure projects. And I think the lion’s 

share of the blame for that goes to the other side of this building, 

to the House of Representatives. I note that we passed a bipartisan, comprehensive transportation spending bill and the House 

can’t manage that. They can’t legislative, it doesn’t seem, on anything except to repeal Obamacare 40-plus times. 

So one example, we just got the Apponaug Circulator in Rhode 

Island, $10 million through a TIGER grant, that has been waiting 

with its NEPA no significant impact approval for nearly a decade 

now. So it is important, I think, that voices in Congress that are 
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saying, oh, it is this environmental protection problem that is fouling up our infrastructure, we have to look at ourselves. It is Congress’ failure to pass infrastructure funding. The House hasn’t 

passed our WRDA bill, which came out of here with strong bipartisan support. The House hasn’t passed the transportation bill. 

These are not complicated, ideologically divisive, confrontational 

type issues. 

We can always pass highway bills. We can always pass water 

bills. The problem is we have one body of Congress that has become thoroughly dysfunctional in the hands of its extremists and 

so the money isn’t there. And that really is the battle that I think 

we need to put our focus on; how do we put the money behind infrastructure funding when our engineers give us a D for infrastructure, when everybody drives over bumpy roads and out of date 

bridges, when EPA says we have $600 billion in water infrastructure deficit that we need to catch up with for the sake of our national water infrastructure? 

Please, let’s focus on where the problem really is, which is Congress and Congress refusing to fund American infrastructure. That 

is the real problem, in my view. Thank you, Chairman. 

Senator BOXER. Thank you very much. 

Senator Cardin. 

Senator CARDIN. Thank you, Madam Chair. I thank you very 

much, and we know you are trying to get the balance right between 

timely delivery of projects and public expectation, and making sure 

we get it right. 

So I want to start off by giving an example of how I think we 

got it right because of NEPA. It involves, in my State, the CSX terminal, regional terminal. Now, there was a strong likelihood that 

that terminal would have been located in Elkridge, Maryland, because that was the preferred site. And what concerns me, it was 

the wrong site. It was the wrong site and the community had an 

opportunity under NEPA to make that case. 

But I can assure you that under the procedures that are contemplated under MAP–21, that would have been in jeopardy. Because there was a lot of political forces moving toward Elkridge. 

And there weren’t alternatives at that time available that would 

have worked. 

But because of the NEPA process, because we got involved in it, 

yes, the politicians did get involved in the process, there was an opportunity to point out that there was a site that was even better 

in the southern part of Baltimore that would work, that was an industrial area rather than a community area. At the end of the day, 

it was more cost-effective, efficient, to locate it there, and the process worked and everyone is happy. 

So I guess my concern and my question is, how do we ensure 

under the procedures that are included in MAP–21 that communities will have adequate input into the process? Do we run a risk 

that because deadlines become so consequential, and are determined outside of a negotiated process that takes into consideration 

the complexity of projects, do we run a risk that we are really shutting out communities and the public from comment under these 

new procedures? How do we try and make sure that doesn’t happen? Secretary Porcari, you are very familiar with this one. 
126 

Mr. PORCARI. I am, Senator. Thank you for your leadership on 

it. As you point out, I think we ended up with a great outcome. 

The two things that you mention are not irreconcilable of a faster, more predictable process. But also measurably better outcomes. 

And those outcomes can be measured in environmental terms, but 

also community and other terms as well. In that specific example, 

there were very significant environmental issues and impacts from 

the proposed site. By frontloading the process, one of the things we 

are trying to do together is make sure that the stakeholders, rather 

than in a sequential way, are involved from the beginning. That includes communities. And having them involved earlier in the process gives them a voice earlier in the process, where all of the different issues can actually be weighed and evaluated and everybody 

with an equity in that project can be represented. We think there 

are significant opportunities for these better outcomes through this 

re-engineered process. 

We all need to be mindful what communities value and what the 

environmental values of a project are important considerations that 

have to be baked in from the beginning. 

Senator CARDIN. I would just challenge one statement. You are 

familiar, I am familiar with this project. It was going to be in 

Elkridge. And the timeframe would have been geared toward an 

Elkridge decision. 

But for the process, and we slowed it down a little bit, we got 

the right outcome, we did get the right outcome here? 

Mr. PORCARI. We did get the right outcome. 

Senator CARDIN. How do we ensure, in the re-engineered process, 

that we are going to be able to get the right outcome? 

Mr. PORCARI. The frontloading, from my perspective, also includes making sure elected officials are involved. 

Senator CARDIN. Now you are stretching the ability here. We 

would like to be involved more. 

Mr. PORCARI. Senator, if you go with the alternative, which is 

what has typically happened in the past, and elected official involvement is toward the end of the process, then you have often 

down-selected alternatives. 

Senator CARDIN. I want to give Director Ashe a chance to reply; 

he looks anxious to reply. 

Mr. ASHE. Excuse me for that. 

[Laughter.] 

Mr. ASHE. I would just say, I think your basic premise is right. 

I think we have been talking about that here today, that with good 

coordination, good communication of expectations with regard to 

deadlines, all good things. I guess my rebuttal to that is, can you 

have too much of a good thing, meaning too harsh of a deadline, 

where a good transparency is lost, public then loses the ability to 

understand and participate in a process, I think you can. 

Those are the cases we are oftentimes aware of, the environment 

and natural resources suffer the consequences of that. In the long 

run, communities suffer the consequence of that. 

Senator CARDIN. Thank you both. I appreciate it very much. 

Senator BOXER. Senator Fischer, I apologize. I skipped over you. 

Please go ahead. 
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Senator FISCHER. Thank you, Madam Chair. I am tucked over 

here on the end, so I appreciate your recognizing me. And I do appreciate your comments earlier when you were questioning. I think 

it was right on target. 

Mr. Porcari, our concern, I think, is with the limited resources 

that we have, and especially at the State level, in a big State like 

Nebraska that has a lot of roads and a lot of bridges. How are we 

going to follow a process and really receive some outcome-focused 

results that meet the environmental concerns, that address the social benefits as well, when there is so much paperwork? I have a 

copy here of a CE from the Department of Roads. It is 20 pages 

long, on both sides. It was for less than 5 miles, a 3R project, less 

than 5 miles between two very rural communities in the State of 

Nebraska, one a population of 577, the other a population of 57. 

Very sparsely populated area. Took a lot of time, 10 months. Took 

a lot of resources, took a lot of money. 

How are we going to speed that process up and use really some 

common sense, where the impacts aren’t going to be that great? Of 

course we want community involvement. But a lot of this, it is just 

paperwork. It is for resurfacing. These are projects we see in the 

rural areas again and again and again. And the impacts aren’t 

there, that we’ve heard from some of the other members of this 

Committee. 

So how are we going to address projects that need to happen 

where there aren’t that great of concerns with? 

Mr. PORCARI. It is a very good question, Senator, and I think the 

answer is two-fold. First, on projects that are, for example, state of 

good repair projects, where you are resurfacing or doing something, 

that don’t currently qualify for categorical exclusions, and there are 

some of those, we think broader use of categorical exclusions helps. 

Then to your specific question, within projects that currently qualify for categorical exclusions, how can we streamline the process. 

Governor Heineman commented on that with Secretary Foxx at the 

National Governors Association. It is something that we are working on right now in our MAP–21 implementation and rulemaking 

process. We are actually looking at the stakeholder input on that 

right now. We have a variety of people that have weighed in on 

every side of that issue. But we believe even within existing categorical exclusions, the process itself can be easier. And we are 

looking for early wins on that. 

Senator FISCHER. I would hope so. Even when you have a minor 

change to a project, to have to start all over again, whether you are 

changing a culvert or whatever, don’t you think that is kind of ridiculous? 

Mr. PORCARI. Well, there are thresholds below which it doesn’t 

constitute a major change. As you point out, the application of common sense is important in this process. We think that we can do 

that. And we think that with the input of the States, we are 

prioritizing that right now. 

Senator FISCHER. Thank you very much. I appreciate that. 

Thank you, Madam Chair. 

Senator BOXER. Thank you so much. 

Senator Barrasso. 

Senator BARRASSO. Thank you, Madam Chairman. 
128 

I would like to follow up with Senator Fischer’s question. While 

she was in the Nebraska legislature, I served time in the Wyoming 

legislature. Both of us chaired our State’s transportation committees. So these are issues that people deal with at home, are familiar with. 

And just along those lines, both to Mr. Porcari as well as to Mr. 

Come, the GAO says on average it takes the Federal Government 

4 years to complete the Federal rulemaking process. They also 

found that it took the Federal Highway Administration and the 

Federal Transit Authority an average of 5 years to complete the 

rulemaking process. So MAP–21 is going to expire next year, and 

it is very unlikely that the bill would be fully implemented by the 

time that it expires. 

What are your views, as we try to draft another reauthorization 

bill before the current bill has even been fully implemented? 

Mr. PORCARI. First, Senator, we will continue to share feedback 

with the Committee on what our progress is and what some of the 

issues are that have come up. I testified earlier that there are likely to be between 50 to 60 rulemakings embedded within MAP–21, 

which is a very large number. It is very difficult to do in a 2-year 

timeframe. 

And as you pointed out, the rulemaking process has substantial 

input opportunities for public input. And it tends to be a long process. 

What we have done as a result is prioritize. And we are working, 

completing and working on the MAP–21 requirements that we 

think we get the most efficiency gains the quickest for. So we will 

continue to work through the list, we think that there are some 

early wins, some of which you have already seen, others imminent. 

And we are very mindful that a surface transportation reauthorization is right around the corner. 

Senator BARRASSO. Mr. Come. 

Mr. COME. Our observation on that, and it is a more practical 

suggestion than a profound one, was that establishing milestone 

dates, conclusion dates for as many actions as possible, would help 

expedite the process as well as providing useful information for the 

stakeholders. I was happy to hear from the Department that they 

are in the process of developing those for all the Subtitle C provisions. 

Senator BARRASSO. For my friend Dan Ashe as well as for Mr. 

Porcari, if I could. With the U.S. Fish and Wildlife Service’s potential September 2015 listing determination of the sage grouse under 

the Endangered Species Act, it is a serious concern, certainly in my 

home State of Wyoming, but the potential habit, if listed, would 

cover most of Wyoming, most of Idaho, most of Montana, most of 

Nevada and parts of Oregon and Colorado. Sage grouse is a sagebrush dependent species. Most roads in my State have sagebrush 

on either side of the road. 

So I am just wondering how the project streamlining gains that 

we have made with MAP–21 would be impacted by such a listing 

in terms of expediting highway projects, such as repaving highways, expanding highway capacity, improving safety measures on 

highways and so on. 
129 

Mr. ASHE. Should sage grouse be listed, and as you know, Senator Barrasso, we have all 11 States, the Bureau of Land Management, the Forest Service, the Natural Resource Conservation Service, all working on comprehensive strategy to conserve the sage 

grouse. So we have yet to certainly make that decision, and we 

have a good amount of time yet to make that decision. 

But if it were listed, I think we have processes in place, and I 

think our record on consultation on highway projects is very good, 

and we have a very good relationship with the Department of 

Transportation. As Deputy Secretary Porcari referenced earlier, we 

have recently developed a multi-State habitat conservation plan 

with regard to the Indiana bat. 

So I would say that I think we have a very good track record and 

we will make it work. 

Senator BARRASSO. Thanks. Mr. Porcari. 

Mr. PORCARI. Just to echo Director Ashe’s comments, we have a 

very good working relationship, and should the sage grouse be listed, the first thing we would look to do is work out a programmatic 

agreement with U.S. Fish and Wildlife. So on a corridor-wide basis, 

projects could proceed and it would better protect some resources 

as well. 

Senator BARRASSO. Thanks. A final question, Ms. Sutley. The 

White House CEQ announced draft guidance for greenhouse gas 

emissions and climate change impacts back in February 2010. In 

your opinion, to what degree would incorporating climate change in 

NEPA work against some of the streamlining gains that have been 

achieved by MAP–21? 

Ms. SUTLEY. Senator, thank you for that question. We don’t believe that that kind of guidance would have any particular impact 

on streamlining. We believe that greenhouse gases, as other environmental effects, are things that agencies should consider as they 

look at the proposed actions. 

But I think as for any environmental effect, it really has to do 

with the significance of the Federal action and the significance of 

those environmental effects associated with it. We believe that 

guidance would help agencies to sort of tailor their reviews to the 

appropriate scale. 

Senator BARRASSO. Thank you. Thank you, Madam Chair. 

Senator BOXER. Thank you. 

Before I start my questions, I want to give you a chance, Ms. 

Sutley. My understanding after reading your letter, your response 

to Senator Inhofe, is that you were there on official business and 

there were Governors and Congress people there as well. Is that 

correct? 

Ms. SUTLEY. Thank you, Senator. Yes. That was correct, in fact, 

Senator Whitehouse joined us at one of the events. So it was official business to discuss the Administration’s priorities on climate 

change. 

Senator BOXER. I wanted to make sure you had an opportunity. 

Ms. SUTLEY. Thank you, Senator. 

Senator WHITEHOUSE. If I might, because you mentioned Rhode 

Island and me? 

Senator BOXER. Absolutely. 
130 

Senator WHITEHOUSE. This was about as non-secretive as possible. We had press conferences, we were delighted that Chair 

Sutley was able to come. It was a great opportunity. Governor 

Chafee, who used to serve on this Committee, was an important 

part of the group that was present. I hope that she will come again. 

Senator BOXER. Excellent. So we will tell Senator Inhofe that we 

pursued this and send him the record. 

First of all, I would say, Ms. Sutley, I thought your comments 

were very productive today. I think you recognized what we have 

done in these reforms, something that has not been done before. 

And there is misunderstanding, and there are reasons for it, because people didn’t read it. This reform, which is so important that 

I would like to extend it as far as I can, says that there can be no 

arbitrary deadline set. The deadlines are set by the agencies involved. It is not just about environmental agencies, Senator 

Whitehouse. I know you were mentioning it, but I agree with this, 

mostly the problem is with the funding. 

What we are saying, when the deadlines are set, the following 

agencies must agree to the deadlines: EPA, Corps of Engineers, 

Fish and Wildlife Service, NOAA, Department of Transportation. 

That is the law. And there is no deadline set unless there is an 

agreement. 

Mr. Ashe, did you read Section 1305 of this law? Shall we send 

it to you? 

Mr. ASHE. I have read the law. I know that in the particular instance of MAP–21, the implementing guidelines tell us that we 

have 180 days from the date that we receive a Section 7 consultation. We have up until the record of decision is made and 180 days 

after that. We don’t get to negotiate that deadline. 

Senator BOXER. Mr. Ashe, you do not understand the law. I am 

so frustrated. Because you set the deadline with Mr. Porcari. You 

set the deadline with the court. There is no deadline set until you 

agree. It is there. It says, the concurrence of your agency. Read 

Section 1305. Because everything you are saying here is based on 

the fact, this woe is me, I am not consulted, and then you go on 

to say, I am just going to say no. That is a very strange thing to 

say to the American people, when our President has said, we want 

to work together. We are not going to stamp our feet and say no. 

The reason we got an agreement is, we all fought for our position. 

I can guarantee you there are people in that room who wanted to 

give DOT sole authority to set a date, and we said, that is not how 

it is going to work. Read Section 1305. 

I believe this is much ado about something good. 

Mr. ASHE. Chairman Boxer. 

Senator BOXER. Yes, go ahead. 

Mr. ASHE. I think that we are making it work, and I think that 

is the message that you have heard here today. We are making it 

work without penalty provisions. 

Senator BOXER. I didn’t hear that from you. What I heard from 

you is a complaint about the deadline and then the fine. And misunderstanding is what I heard from you. 

Mr. ASHE. You definitely heard from me—— 

Senator BOXER. Let me finish, please. 
131 

You didn’t seem to know, I have a lot invested in this. I have 100 

percent environmental record, OK? So please let me finish. And I 

will stop legislation that hurts our people and hurts our environment. And I will tell you that this provision is amazingly good for 

this reason. It gets you in the room with the EPA, with the Department of Transportation, with the Corps of Engineers that you are 

often in contention with, and rightly so. It puts you in the room 

with NOAA. And you have to set the deadline. Read Section 1305. 

We changed the law. Before DOT set the deadline without the concurrence of these agencies, it was just consultation. We changed it, 

concurrence of your agency. 

So we have set up a process where you have the power. I don’t 

think, frankly, maybe I am wrong, that you completely understood 

it. Because if you did understand it, you wouldn’t have said, and 

we are just going to say no, take our marbles and walk out the 

door. That is not what we want to hear. Let me say, it is not what 

I want to hear. 

I want you to be in the room. I supported you. I want you in the 

room when deadline are set. 

Now, the other thing you didn’t seem to be so aware of is what 

it takes to extend the deadline. Before any penalty kicks in, if there 

is any information that hasn’t been received by the agency, any 

necessary information, if there are approvals lacking from any entity such as the project sponsor in a manner that affects the ability 

of the agency to meet any requirements under State or local or 

Federal law, if there is significant new information, which reaches 

to Senator Whitehouse’s very important point. It is significant new 

information if Congress isn’t funding a project. 

There is no deadline and there is no fines. If there is a major 

modification to an aspect of the project, there is no deadline, there 

is no fine. Or if there is additional analysis needed for the agency 

to make a decision. 

So to sit there and say, in the face of the fact that you have been 

given more power than you have ever had before to be in the room 

and set the deadline, and then more power to talk to Mr. Porcari 

and say, you know what, we haven’t received the information, don’t 

hold us to this, of course you will get an extension. 

So I guess, what I am saying to you, from the bottom of my 

heart, is please re-read this law. Please re-read this reform. I believe you will come to the conclusion that you have more power 

than you have ever had before to be in the room and to stay in the 

room and to have a major impact. Because frankly, if that wasn’t 

the case, to me it wouldn’t have been worth pursuing this reform. 

So will you promise me, and let’s talk more about this. This is 

not a happy moment for me. Could you take another look at the 

law with your attorneys? If they disagree with me, I would like to 

sit down and talk with you and then with my chief counsel, 

Bettina. Can we do that? 

Mr. ASHE. We can do that. 

Senator BOXER. Thank you so much. It would mean a lot to me 

if we could do that. 

Senator Whitehouse, do you have anything? OK. I want to thank 

everybody for being here. This is a very important moment for us. 

The President has said what he wants to do, he wants to make 
132 

sure we move and speed ahead with all the right protections. All 

the right protections. That is my interpretation of what we have 

done. And I want to thank Senator Udall, he has concerns and he 

is going to be a tiger watching what happens. We are going to be 

watching you, those of us who support these reforms, are going to 

be watching you, Mr. Porcari. And I heard in your voice, it sounds 

like maybe you don’t have enough folks to put on this, but do you 

have enough people in there in place to carry these reforms out? 

Mr. PORCARI. Chairman Boxer, this is a priority. We will carry 

it out. And I will tell you, this is something that many of us feel 

personally very strongly about, because we can do both a better job 

of environmental and community protection and have better process at the same time. 

Senator BOXER. That is how I feel. If I didn’t feel that way, I 

wouldn’t have supported the reforms. 

And Mr. Come, may I just thank you very much. Because I think 

what you have done, you have been an honest messenger. You have 

said, they have done right here, but they are lagging here. I hope 

the two of you will work together. And Mr. Ashe, I hope that after 

looking at all of this, you will feel better about what we have done 

and not be nervous about it and have a very positive attitude. 

And Ms. Sutley, I am sorry that you got attacked on something 

extraneous, but I think you answered it well. Thank you. We stand 

adjourned. 

[Whereupon, at 11:38 a.m., the Committee was adjourned.] 

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