EXECUTIVE ORDER 13274
Minutes of Meeting of Task Force Agency Representatives
Room 4200, US DOT
400 7th Street, SW

2:00 p.m. - 3:30 p.m.

September 22, 2005

Call to Order: 2:05 pm

Chair: Jeff Shane, Under Secretary of Transportation for Policy

I. Introduction and Opening Remarks

Under Secretary Shane opened the meeting at 2:05 pm. He introduced himself, thanked the Task Force Members for attending, and said that he looked forward to working with them. Meeting attendees were asked to introduce themselves. Under Secretary Shane noted that the Task Force's Purpose and Need Work Group had recently distributed an issues paper and would like to receive feedback from Member agencies. He asked if there were any other announcements before moving to the first agenda item.

A representative of the Army Corps of Engineers announced that, as required by law, the Corps has been working on revising its rule regarding wetland mitigation. The revised rule will encourage analysis of mitigation at the watershed level and will allow wetland mitigation banks to be approved more quickly. He said that the Corps has been working with the Council on Environmental Quality (CEQ) to develop the revised rule and that the rule will be released for formal vetting in about a month.

Fred Skaer of the Federal Highway Administration (FHWA) gave a brief update on some of the Task Force's priority projects. He announced that the environmental reviews for the I-93 improvements in New Hampshire and the Nelsonville Bypass of Route 33 in Ohio had both been completed. Lynne Pickard of the Federal Aviation Administration (FAA) gave an update on two airport projects on the Task Force's list of priority projects. She announced that the Environmental Impact Statement (EIS) for the Los Angeles International Airport (LAX) Master Plan had been completed. She also said that progress had been made on the environmental reviews of the proposed improvement projects at Philadelphia International Airport.

Under Secretary Shane noted that in response to an earlier request, FHWA had found a graphical representation of the environmental review process for transportation infrastructure projects. He invited attendees to consult the hand-out from the New York State Department of Transportation.

FHWA Acting Administrator Rick Capka, who was delayed by preparations for Hurricane Rita, welcomed the meeting attendees and emphasized the importance of the Task Force. He noted that he is the DOT Project Champion for two of the Task Force's priority projects.

II. SAFETEA-LU Update

Under Secretary Shane asked Mr. Skaer to discuss the major environmental provisions of SAFETEA-LU. Mr. Skaer referred meeting attendees to the hand-out entitled "SAFETEA-LU: A Summary with an Environmental Perspective." He said that new law, signed by President Bush on August 10, 2005, authorizes spending of $244 billion over five years. Mr. Skaer discussed the law's strong focus on continued environmental stewardship and the law's changes to the environmental review process. Changes include a clearer definition of roles for the lead agency and for other participating agencies. SAFETEA-LU also established a 180-day statute of limitations on certain lawsuits. Mr. Skaer also discussed three new opportunities for delegation of Federal responsibilities to the States and SAFETEA-LU's changes to the implementation of Section 4(f).

The floor was opened for questions. Under Secretary Shane asked a question clarifying the amount of funding authorized under SAFETEA-LU ($244 billion vs. $286 billion). Mr. Skaer explained that the $244 billion figure is a better measure of the actual amount of funding that will be made available for highways and mass transit.

Paul Hoffman of the Interior Department asked for some clarification on the distinction between a 'participating agency' and a 'cooperating agency'. Mr. Skaer said that cooperating agencies are a subset of participating agencies.

Under Secretary Shane asked about the distribution to Member agencies of FHWA and FTA guidance on the implementation of SAFETEA-LU. Mr. Skaer said that FHWA and FTA are consulting with affected Federal agencies prior to issuing any interim guidance and will be publishing notices in the Federal Register.

Mr. Hoffman and Laura Dean of the Advisory Council on Historic Preservation said that their agencies would like to be consulted early on regarding the rulemaking on the Section 4(f) "prudent and feasible" standard. This rulemaking is required by Section 6009(b) of SAFETEA-LU.

III. Integrated Planning Workgroup Update

Carol Adkins, chair of the Integrated Planning Workgroup, announced that the last staff-level comments on the Eco-Logical document (once known as the Critter Book) had been resolved. Ms. Adkins added that Task Force Member agencies can expect to receive a request for approval of the document in the near future.

IV. Purpose & Need Work Group's Issue Paper

Tyler Duvall of the Office of the Secretary of Transportation (OST) summarized the findings of the Purpose and Need Work Group regarding the nature of the conflicts over Purpose and Need statements for transportation infrastructure projects.

The Work Group identified four specific issues:

1. Adoption of the locally preferred alternative for Federal review,
2. Adoption of the Lead Agency's determination of scope of the Purpose and Need and reasonable alternatives analyzed during the NEPA process as related to the permit application,
3. Revisiting Purpose and Need (and/or screening criteria and alternatives analysis) throughout the project development process, especially for projects under development for several years, and
4. Including non-transportation elements in Purpose and Need statements.

Mr. Duvall noted that the Administration had not proposed any major changes in this area during the debate preceding SAFETEA-LU's enactment, but that fact doesn't preclude administrative improvements.

Mr. Boling asked whether Section 6002(f) of SAFETEA-LU would help resolve some of these issues. That provision requires the lead agency to provide an opportunity for participating agencies and the public to be involved in defining the Purpose and Need for a project.

Mr. Skaer said that it doesn't make sense to have to go through the Purpose and Need process twice, once for NEPA and once for a Section 404 (Clean Water Act) permit.

Ms. Pickard noted that VISION-100, the latest FAA authorization law, had created a coordinated environmental review process for certain aviation projects. Under that process, other Federal agencies are bound by the Purpose and Need determined for a project by the lead agency.

Mr. Hoffman said that he couldn't speak to the differences in legal authorities under NEPA and the Clean Water Act, but he did see merit in developing a joint Purpose and Need statement. He added that he didn't see why a narrowly drawn Purpose and Need statement should preclude a robust set of project alternatives.

An EPA representative said that there is no statutory bar to coordinating Purpose and Need statements under NEPA and the Clean Water Act, and there are several ways to do that coordination. Pam Stephenson of FHWA noted that several states already have a 404/NEPA merger process, so coordination is not a new concept.

A representative of the Army Corps of Engineers noted that the Corps had engaged in a year of high-level policy discussions with the Federal Energy Regulatory Commission to develop a Memorandum of Understanding on this topic.

Mr. Skaer added that the new flexibility in how Federal transportation funding can be used has made it harder to develop "clean" Purpose and Need statements for some projects.

Mr. Hoffman said that field staff need concrete guidance or instructions on how to coordinate the development of Purpose and Need statements. He also suggested that the discussion over these issues needs to be elevated from a staff level to a policy level. He proposed that a subcommittee of the Task Force be formed to tackle these issues.

Under Secretary Shane agreed that the Task Force should develop some sort of document on this topic and said that U.S. DOT would begin the process of developing that document. Further consideration will be given to the formation of a subcommittee of the Task Force that would consider these issues in more depth.

V. Meeting Wrap-Up

Under Secretary Shane announced that the next meeting is planned for December and that agenda items can be forwarded to Robert Mariner of the Office of the Secretary of Transportation. The meeting was adjourned at 3:35pm.