EXECUTIVE ORDER 13274
Task Force Agency Representatives Meeting Minutes
726 Jackson Place
Lincoln Conference Room

2:30 p.m. - 3:30 p.m.

November 17, 2004

Call to Order: 2:04 pm

Chair: Mary Peters, Administrator, Federal Highway Administration

I. Introduction and Opening Remarks

FHWA Administrator Mary Peters called the meeting to order at 2:04 pm. She thanked the Council on Environmental Quality for hosting the meeting and made a few opening remarks. She said that FHWA had just released its annual report to Congress on its environmental streamlining activities for 2003.

Administrator Peters noted that FHWA and FTA are operating under the fifth short-term extension of TEA-21 and said that Congress is unlikely to pass a reauthorization bill until the 109th Congress. She also called attention to a handout regarding FHWA’s continuing commitment to wetlands protection.

II. Status of Priority Projects

Stillwater Bridge / St. Croix River Crossing

Michael O'Malley, DOT project champion for the Stillwater Bridge project, provided some background on the project, noting that the proposed bridge crosses a designated Wild and Scenic River. He noted that in October the stakeholder group reached a tentative agreement to build a bridge along one of the alignments identified in the Draft EIS but with an improved bridge design. The agreement includes maintaining the existing historic lift bridge and incorporating it into a pedestrian/bicycle trail between the two states. This preliminary agreement is contingent on the development of an acceptable mitigation package. The Final EIS is expected in January or February 2005.

He thanked the National Park Service for helping the stakeholder group work through the requirements of the Wild and Scenic Rivers Act. Laura Deans of the Advisory Council on Historic Preservation noted that a critical feature of the tentative agreement is that the Minnesota DOT will maintain ownership of the lift bridge, which addresses concerns about liability and the cost of maintaining the bridge. Upon questioning, Mr. O'Malley added that the new bridge design will add $45 million to the cost of the bridge.

Paul Hoffman of the Department of Interior said that the stakeholder group process was very helpful and this project is an example of what a good stakeholder process can accomplish. It gave everyone an opportunity to engage and participated in the process. He noted that using a stakeholder process takes time but can be quicker in the long run since it can prevent lawsuits that can stop a project dead in its tracks. He said that when some people hear the word “streamlining” they assume that it means that some environmental protections will be weakened, but this project is a good example of how the process can address all needs and result in a better outcome.

Ms. Deans added that the stakeholder process also fulfills the requirements of Section 106 of the National Historic Preservation Act. She said that she is working with Cheryl Martin of FHWA’s Minnesota Division to develop some lessons learned to share with other project champions.

Administrator Peters said that the result of the stakeholder process is consistent with what President Bush envisioned when he signed the executive order. She thanked all of the participants for their hard work and perseverance on this project.

Lower Manhattan Transportation Recovery Projects

FTA Administrator Jennifer Dorn gave an update on the status on the three Lower Manhattan priority projects. She said that the Final EIS for the Fulton Street Transit Center was issued last month and that a Record of Decision (ROD) is expected soon. The Final EIS for the PATH station will likely be issued in January 2005. A Finding of No Significant Impact (FONSI) was signed for the South Ferry Subway Terminal in August 2004.

Administrator Dorn said that FTA is interested in capturing the lessons learned from these three projects. Because the projects were in response to the attacks of September 11, the characteristics of the projects are unique. However, there are also lessons that can be applicable to other projects.

For the Fulton Street project, the period from Notice of Intent to ROD was 20 months when a period of four years is more typical. Some unique attributes of the project contributed to the speed of the process. For example, the federal government paid 100 percent of the costs, so there were no local financing issues. Also, the projects were centered in one community, so the agency did not have to engage as many communities as is typical for a linear transit project.

Administrator Dorn also attributed the speed of the process to several factors that could be lessons for other projects. First, there was a memorandum of understanding (MOU) that helped consolidate the period for decision-making. For example, the MOU established a ten-day review period. Second, upfront work, particularly by EPA, allowed participating agencies to agree a framework for environmental analysis before things got started. This agreement sped up the work and improved its quality and consistency. Third, environmental performance commitments were incorporated into the project. MTA and the NY/NJ Port Authority agreed to measures to reduce noise and air pollution. These agreements will be incorporated into the FONSI and ROD. FTA also worked closely with victims’ families to establish a joint process to discuss and address historic preservation issues. The agency worked with ACHP and used a mediator.

Administrator Dorn expressed interest in having outsiders talk with the project team to figure out which lessons learned are applicable to other projects. Administrator Peters expressed support for the idea and suggested a facilitated discussion. She also noted again that without the willingness to work together, the participating agencies would not have made such significant progress on these projects.

III. Report to the President

Bryan Hannegan of CEQ said that there is no substantive problem with the Report to the President, but CEQ has not had a chance to sign-off on the document. He pledged to keep working with his colleagues to get his agency’s sign-off as soon as possible.

IV. Other Environmental Streamlining Efforts

Fred Skaer, Director of FHWA’s Office of Project Development and Environmental Review, laid out four topics for discussion:

• The 50th anniversary of the National Highway System,
• Policy paper on Section 4(f),
• FTA/FHWA legal memorandum on linking transportation planning and NEPA, and
• Guidance on NEPA and toll-financed highway projects.

50th Anniversary of the National Highway System

The National Highway System is turning 50 years old. Every year, additional sections of the highway system are turning 50 and becoming eligible for designation as historic property. This development has the potential to complicate the maintenance and improvement of the system. Mr. Skaer said that FHWA had been was working on a legislative fix and an administrative fix at the same time. Now that TEA-21 reauthorization had been postponed again, the agency is now betting on an administrative fix. It is seeking an administrative exemption from National Historic Preservation Act.

Mr. Skaer said that ACHP is meeting today and that a committee on federal programs is taking up the proposed administrative exemption. He said he hoped that ACHP will approve the exemption and that it can be published in the Federal Register. He said he hopes to have something finalized by the end of the calendar year.

Policy paper on Section 4(f)

FHWA is updating its policy on Section 4(f). The paper has been sent to the Departments of Interior and Agriculture (USFS) and to ACHP for comments. Mr. Skaer said that he anticipates some wrinkles to iron out, but he expects no major issues at this point.

FTA/FHWA Legal Memorandum on Linking Transportation Planning and NEPA

FHWA Chief Counsel D.J. Gribbin asked Task Force Members to submit comments on the joint FTA/FHWA legal memorandum about linking transportation planning and NEPA. The two agencies would like to get the memo out by the end of the month. Dinah Bear of CEQ said that the memo was fundamentally sound but that CEQ has submitted some comments.

Regarding the draft questions about linking planning and NEPA that were previously distributed, Mr. Skaer said a question-and-answer format will be helpful to field staff. He said that some comments have come back, and he welcomed further comments. The intent is for the questions and answers to be distributed as guidance, and the legal memorandum be maintained as the background justification. FTA and FHWA will be drafting answers to the questions over the next month. The agencies have done some outreach to Metropolitan Planning Organizations, State DOTs, and non-governmental organizations. He stressed that the actions addressed in the memo are optional, not a requirement.

Administrator Peters noted that this guidance is being developed in response to several states that want to better link transportation planning and NEPA. Mr. Skaer said that some of the existing guidance is problematic, so new guidance is warranted. Mr. Skaer asked for comments on the questions themselves within a week. The answers to the questions will be distributed later for comment.

Memorandum on Toll Roads

FHWA has been working with Colorado DOT regarding the NEPA review process for toll-financed roads. The main question is whether NEPA requires analysis of a non-toll alternative. Colorado DOT is concerned that NEPA requires them to look at both toll and non-toll alternatives even when they have a toll project in their fiscally constrained plan. The State DOT does not want to spend time and resources on studying non-toll options when they cannot afford to go that route. The state also does not want to mislead the community by analyzing non-toll options when they are not really an option.

Ann Miller of EPA asked why the funding source should affect the choice of alternatives for review under NEPA, since alternatives generally focus on different modes or locations. April Marchese of FHWA said that in general the funding source should not affect the choice of alternatives, but in some cases it does. She said choice of toll financing should not limit the analysis of different corridors.

Administrator Peters asked whether the choice of toll financing would limit the choice of capacity of the project or other aspects of the project’s location or design. Ms. Marchese said that the memo wasn’t focused on that aspect of the problem.

Mr. Gribbin observed that in the future toll-financing of roads will be more common, so it is important to provide more guidance on how environmental reviews should be done for them.

V. Working Groups: Discussion of Next Steps

Purpose and Need Work Group

Pat Haman of EPA (standing in for Pam Stephenson of FHWA) provided a summary of the recent activities of the Purpose and Need Work Group. The Work Group has met twice since the contractor, ICF Consulting, submitted the Sept. 30 draft report. The report highlighted several important issues. It identified the need for guidance on the appropriate length and format of purpose and need statements. The report identified a need to clarify the appropriate use of economic development as a purpose and need for transportation projects. The draft report also suggests that additional guidance might be needed on the role of cooperating agencies and what constitutes “substantial deference” to the lead agency. She said that the Work Group’s thinking is that the guidance should be directed at practical issues and that legal clarification is not needed.

While the draft report contained useful information, the Work Group decided it needed to ask the contractor for more details in a couple of areas. For example, the Work Group would like more information on NEPA/Section 404 merger agreements and their dispute elevation procedures. Also, the Work Group would like more information on how resource needs are affecting early participation by resource agencies. The Work Group is waiting for a revised report from the contractor to address these questions.

Ms. Haman said that upon receiving the revised report, the Work Group would like to proceed with developing guidance documents addressing the need for concise statements, as well as the proper way to address economic development as a primary or secondary purpose. In the interim, the Work Group would like the Task Force to approve the posting of the list of laws and regulations, guidance documents, and training opportunities relevant to purpose and need. The Work Group does not think that the draft report is ready for public release. It would like some feedback on whether the three Work Groups can post different materials to the public website.

Mr. Skaer reminded the Task Force that at the previous meeting the Work Groups were designated as the gate-keepers for deciding which materials to release to the public. Dinah Bear of CEQ raised an issue of whether it would raise questions if the other two Work Groups are planning to post draft reports to the web but the Purpose and Need Work Group does not post its report at this time. Administrator Peters initially expressed a preference to wait until reports are final to make them available to the public.

Ted Boling of CEQ, however, said that the Indirect and Cumulative Work Group would like to post its report to the web as a draft to get public input. He recommended that Task Force Members have thirty days to review the Work Group baseline reports before they are posted on the public website. This is also the recommendation of the Integrated Planning Work Group. Administrator Peters proposed that web posting of the draft reports take place after the full Task Force has had a chance to review them, and recommended consistency in terms of vernacular in describing the reports. Fred Skaer recommended electronic polling for the review by the Task Force.

Pat Haman asked whether the work plans of the three Work Group could be made public before the Task Force has approved the draft reports. The Task Force agreed to this request, as well as the immediate posting of reference materials.

Mr. Hoffman asked about why economic development as a purpose and need causes any issues. Ms. Haman said that use of economic development in a project purpose and need statement sometimes raises questions by resource agencies about the range of alternatives that should be considered, and whether these go beyond the jurisdiction of the transportation agency. Moreover, some transportation projects are not justified on the basis of a transportation need, and there are question about whether a transportation project can deliver on its promises of economic development. Chip Nottingham expressed concern that economic development should not serve as a trump card to advance any transportation project regardless of its other effects, and noted that it is important to make sure the economic development potential is real.

Indirect and Cumulative Impacts (ICI) Work Group

Ted Boling said that the draft ICI report is ready for review by the whole Task Force. The report characterizes the state of the practice and identifies several overarching issues. First, the report notes the lack of basic understanding of indirect and cumulative impacts. There is clearly a need for improved understanding of ICI among practitioners. Second, there is a need for clarification on which impacts need to be analyzed. There’s some good guidance out there (e.g., CEQ) but more could be helpful. Third, the report cites a need to address the rigor of the analysis of ICI.

Mr. Boling said that the report addresses several areas of disagreement, which could be classified as either analytical or philosophical. Transportation agencies are concerned about how much mitigation they are required to do for actions beyond their control. Others are concerned about the cumulative impacts of development and see a need for mitigation to take place at some point. The report includes a compendium of existing guidance materials and other resources that the Work Group would like to see made available to the public.

Mr. Boling said that the report identifies a series of opportunities for improvements and has tiers of recommendations. First, to improve basic understanding of ICI, the report recommends outreach and information sharing. Second, the report recommends more advanced guidance for practitioners, to make what exists more specific and applicable to transportation projects. Third, the report calls for new approaches to building consensus, including development of a coordination model.

Integrated Planning Work Group

Carol Adkins said the Integrated Planning Work Group’s draft report is being billed as a deliberative draft. The Work Group feels a strong need to get the report out to the public since planning is predominantly a local prerogative. The Work Group also has an aggressive outreach plan in mind.

The Work Group started with developing a shared concept of integrated planning. Under this concept, transportation is looked at as a system, across modes. Transportation is also examined in the context of multiple systems and the need to serve multiple goals, including transportation needs, economic development, and environment quality. The Work Group then identified gaps in current practice and identified some short-term as well as some longer-term solutions. Ms. Adkins noted that all planning processes are not equal. The processes for transportation planning and air-quality planning are prescribed by law, and these processes are relatively standardized. Other planning processes are not standardized to the same degree.

The Work Group found that agencies are not doing a good job of accessing each other’s planning outputs. Agencies could also do better at sharing data, such as through GIS systems. The Work Group found a need for more outreach and for bringing more people to the table during planning.

The Work Group report also cites need for federal policy leadership. Everyone is on board with the idea of integrated planning but practitioners have questions about their ability to do it under current laws and regulations. Guidance in this area would be helpful.

The draft report cites a need for capacity-building so that agencies understand each others’ planning processes better. It also argues for institutional changes within agencies to reorient staff and resources toward integrated planning efforts.

Ms. Adkins said that the Work Group would like to make its resource materials available to the public immediately, and post the draft report after 30 day review by the Task Force. The Work Group is also looking for guidance from the Task Force on whether the outreach plan goes too far or not far enough, and if the timing of outreach activities for the report is of any concern in regard to reauthorization.

VI. Presentation on the Montana US 93 Priority Project

Janice Weingart Brown, FHWA’s Montana Division Director gave a presentation on the U.S. 93 priority project and the development of the Wildlife Habitat Handbook. She said that the goal of the handbook is to allow mitigation banking for wildlife habitat preservation.

Ms. Brown observed that the current project-by-project review of ecological impacts is resulting in “postage-stamp mitigation” or species-specific mitigation. She also said that the emphasis on on-site mitigation is resulting in lost opportunities for more effective mitigation.

Ms. Brown said that there are vanishing opportunities for ecological preservation and that an ecosystem approach can reduce administrative burdens, streamline project delivery, and result in better ecological protection and mitigation. She discussed the work on the US-93 project to create a credit and debit bank for wildlife habitat preservation. She asked the Task Force Members to support their agencies’ participants in the Steering Committee and the US-93 Interagency Review Team.

Administrator Peters thanked Ms. Brown for her presentation.

VII. Wrap-up

Administrator Peters asked Task Force Members to submit any comments on the documents discussed during the meeting to Robert Mariner. She reminded the Task Force Members that the Task Force would be using electronic polling for approval on the public release of documents.

Ann Miller of EPA said that her agency has found participation in the Task Force to be resource-intensive and expressed EPA’s interest in having the Task Force prioritize its efforts to get at the low-hanging fruit. Administrator Peters agreed that such a discussion would be helpful.

Administrator Peters adjourned the meeting at 3:42 pm.