EXECUTIVE ORDER 13274
Task Force Agency Representatives Meeting Minutes
400 7TH STREET SW
ROOM 4200

2:30 p.m. - 4:00 p.m.

September 23, 2004

Call to Order: 2:10 pm

Chair: Mary Peters, Administrator, Federal Highway Administration

I. Introduction and Opening Remarks

Administrator Peters called the meeting to order by thanking the Task Force members for their attendance and expressed appreciation for their continuing participation in the activities of the Task Force.

II. Introduction of New Priority Projects and DOT Champions

Administrator Peters asked Robert Mariner of the Office of the Secretary-Transportation Policy to introduce the new priority projects and the DOT Champions for each project. The new priority projects and their respective DOT Champions are:

Mr. Mariner asked if the Task Force members had any questions or comments about the new priority projects. Ann Miller of EPA brought up the I-5 North Coast project in California. She noted the sensitive environment through which the project would pass and mentioned that the wetlands in the project area are partly a result of mitigation efforts for other nearby infrastructure projects. She suggested that the description of the project in the status report prepared for the meeting should be revised so that EPA and the Fish and Wildlife Service do not sound like they are being arbitrary and capricious in expressing concerns about the potential environmental impacts of the project.

Mr. Mariner asked all members of the Task Force to review the status report and submit to him any suggested changes in the report text. He assured Task Force members that they would have the chance to review others' edits to the text of the status report.

Paul Hoffman of the Department of the Interior mentioned that tremendous progress is being made on the environmental issues surrounding overflights of the Grand Canyon, particularly with regard to noise. He observed that resolution of these issues for the Grand Canyon would have spill-over benefits for the St. George, Utah, airport replacement project, which is a new priority project.

With regard to the Nelsonville, OH, bypass project (also a new priority project), Administrator Peters mentioned that she had spoken recently to Annette Sandberg, Administrator of the Federal Motor Carrier Safety Administration, and that Administrator Sandberg had stressed the importance of the Nelsonville bypass to the trucking industry.

III. Status of Existing Priority Projects/Report to the President

Mr. Mariner said that he had spoken with Bryan Hannegan of the Council on Environmental Quality who said that the Executive Office of the President was ready to provide its comments on the Report to the President. Mr. Mariner said that the Department of Transportation would work to have the report finalized by the end of the next week.

IV. Working Group Status Reports/Open Discussion

Administrator Peters asked the Task Force members to look at the list of tasks for the work groups and help prioritize the remaining tasks and provide direction for the work groups. She asked all Task Force members to confer with their respective agencies and to come back to the next meeting with suggestions of the tasks that should be prioritized. Administrator Peters also mentioned that the importance of including the public in the activities of the Task Force and said that she was open to suggestions of how to best incorporate public comment. She then asked Fred Skaer, Director of FHWA's Office of Project Development and Environmental Review, to comment on the status of the work groups.

Mr. Skaer said that most of the work thus far has been on developing baselines and getting everyone on the same page with regard to the laws, regulations, and guidance that are currently in place. He highlighted the 'Status of Workgroup Activities' handout, which graphically displays the progress of the work groups on each of their tasks. He said that an important component of the Work Groups' recent work has been interviewing field practitioners from all involved agencies. He noted that ICF Consulting is preparing reports for each of the work groups for September 30, 2004, and that these reports would be submitted to the Task Force members for review.

Mr. Skaer asked the Task Force members to look at the remaining tasks and determine what could be completed in the near term, focusing on issues that could benefit from policy and guidance. He suggested that at the next meeting, the Task Force members should agree on some priority activities for the work groups.

Administrator Peters noted that the Executive Order requires all agencies to align their policies and guidance, so the Task Force should figure out how to use the analysis and research of the three work groups to achieve this goal. She stressed the importance of implementing policy changes throughout all departments and agencies, especially at the field office level.

Public Outreach

Mr. Skaer noted that some interested parties are concerned that there hasn't been enough sharing of information about the Task Force's activities. He said this is not intentional, and that the reports due September 30 should help to shed light on the progress of the work groups. Mr. Skaer said that the reports would be uploaded to the website for E.O. 13274, but that there are a wide range of other public outreach options that the Task Force should consider.

Mr. Skaer asked the Task Force how it wanted to handle the review of documents that are to be posted on the website. Ms. Miller of EPA suggested that the three work groups review the documents, and that the Task Force should only get involved if the groups could not resolve their differences on their own. Administrator Peters expressed support for that idea.

Administrator Peters stressed the importance of transparency and said that it would alleviate the fears of the interested parties who are not involved in the Task Force.

Purpose and Need Work Group

Mr. Skaer said that he had talked with representatives from the Army Corps of Engineers and that they perceive a need to investigate how NEPA Purpose and Need Statements relate to the Army Corps 404 permit Purpose and Need Statements. Pamela Stephenson, chair of the Purpose and Need work group, confirmed that the work group sees this as a good issue for further investigation. She noted that NEPA/404 merger process might be a good way to deal with this issue, but that further investigation was necessary. The Purpose and Need work group is analyzing merger efforts in different states to learn what works and what does not work. The Work Group is also looking at the use of concurrence points. The Group will then have to look at opportunities for policy clarification.

Tyler Duvall, Deputy Assistant Secretary for Transportation Policy, agreed that the field staff need direction on this issue. Ms. Miller of EPA agreed that a policy-level discussion is very much needed on this topic. She said that a few anecdotes about individual projects had led to legislative proposals that might not be appropriate. She said that the Purpose and Need work group is providing good data to inform the debate on this issue.

Bryan Hannegan of CEQ recommended that the Task Force proceed with urgency on this topic, since Congress is currently working on legislation relevant to this issue. Mr. Hannegan said if all the federal agencies could agree upon a single unified view, it would send a strong message to legislators. He also noted that the actions of the Task Force on this topic would affect the development of purpose and need statements in other areas, such as energy infrastructure. Mr. Hannegan suggested that the Purpose and Need work group provide a briefing for the relevant policy staff.

Indirect and Cumulative Impacts Work Group

Mr. Hannegan of CEQ asked for a short briefing from the Indirect and Cumulative Impacts work group. Ted Bolling of CEQ said that the work group had done a survey of the existing guidance and training on analyzing indirect and cumulative impacts. They also looked at the relationship between NEPA and the Endangered Species Act (ESA) requirements for the analysis of cumulative impacts. The goal is to combine legal and training resources to create a synthesis document. He said that the work group was still waiting for the results of the interviews of field practitioners.

Lamar Smith, NEPA Oversight Team Leader for FHWA's Office of Project Development and Environmental Review, said that he saw three pressing issues regarding integrated and cumulative impacts:

• Understanding the basic requirements under NEPA, ESA, and the Clean Water Act (CWA) and how they can be integrated reasonably and effectively for both environmental and transportation issues.
• Determining how to perform a reasonable and economical documentation of the analyses of indirect and cumulative impacts,
• Figuring out how much mitigation is required and how much is reasonable. Opinions of what constitutes required mitigation varies throughout the different agencies.

Mr. Skaer brought up the example of the Chittenden County (VT) Circumferential Highway priority project. The court ruled that there was not a sufficient analysis of indirect and cumulative impacts, even though FHWA thought it was satisfactory. He suggested that new policy documents should have 'markers' so a court can clearly understand the steps that FHWA requires, and compare them to the steps that are actually taken during a project.

Mr. Hannegan suggested the Task Force develop a process map to clearly explain the steps that must be taken during an impact analysis.

V. NEPA/Planning Guidance Discussion

Administrator Peters said that because the reauthorization of TEA-21 looks unlikely in the near term, she had asked the FHWA and FTA legal staff to draft a memo analyzing the extent to which transportation planning and the NEPA process could be integrated under current law. A draft of the memo was handed out to Task Force members.

Ed Kussy, FHWA's Deputy Chief Counsel, said that the memo lays out a good planning process that would produce products that could be used in the NEPA process. After getting input from stakeholders, the Office of Chief Counsel will be working with the policy offices of FTA and FHWA to turn the memo into policy guidance for program offices. Administrator Peters asked the agencies on the Task Force to have their legal staffs review the memo and provide feedback within two weeks. She also noted that members of the Work Groups received copies of the draft memo.

Mr. Hannegan asked if FHWA had considered whether establishing guidance in this area would reduce the impetus for legislative action such as Section 6001 of the SAFETEA proposal. Mr. Duvall noted that the integrated planning process outlined in Section 6001 of the SAFETEA proposal had not gained much traction in Congress. Mr. Kussy said that issuing new guidance and seeing results might remove the urge for legislative "fixes" that would actually be counterproductive. Mr. Duvall stated that DOT was still deciding whether to discuss the memo with Congress before issuing any guidance. Mr. Hannegan encouraged FHWA to talk with the DOT legislative affairs offices to determine whether Congress should be consulted prior to issuing any guidance.

Mr. Hannegan also encouraged DOT to highlight areas where legislative action would allow DOT to establish even better integration of planning and NEPA than the memo allows. Administrator Peters said that a crosswalk between the memo and Section 6001 would be added.

VI. Wrap-up

Administrator Peters asked Mr. Mariner to sketch out the agenda for the next Task Force meeting, which is tentatively scheduled for October 27, 2004. Paul Hoffman of the Department of the Interior mentioned that October 27th might be the date of the final meeting for the Stillwater Bridge alternative dispute resolution process. In response, Administrator Peters suggested that the next meeting date should be scheduled in early November.

Mr. Mariner said that the Report to the President will likely be made public before the next meeting and that he would provide a summary of any feedback about the report at the next meeting. He also said that there would be an update on the InterCounty Connector (MD) priority project at the next meeting. Administrator Peters suggested that the Task Force receive an update on the Stillwater Bridge priority project at the next meeting.

The meeting was adjourned at 3:10 pm.