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

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

May 23, 2006

I. Opening Remarks

Rick Capka, Acting Administrator of the Federal Highway Administration (FHWA), welcomed the Task Force members and noted that the purpose of the meeting was to assess the progress of the priority projects, to update members on the activities of the Task Force and member agencies, and to make decisions regarding future activities for the Task Force. He explained that the hiatus since the Task Force meeting in September 2005 was due to FHWA's work implementing SAFETEA-LU.

Regarding priority projects under the Task Force's purview, Mr. Capka noted that the recent signing of the Supplemental Final Environmental Impact Statement for the St. Croix River Crossing project in Wisconsin and Minnesota. In addition, he said that the Record of Decision for the InterCounty Connector (ICC) in Maryland should be signed by the end of the month. Mr. Capka expressed the appreciation for the efforts of the interagency team that worked to resolve the issues surrounding the ICC project.

Mr. Capka asked if there were any comments to begin the meeting.

II. Announcements and Agency Updates

Paul Hoffman of the Department of the Interior, noted concerns regarding the FHWA/FTA guidance titled "Questions and Answers on the Application of the Section 4(f) De Minimis Impact Criteria," which was issued on December 13, 2005. This guidance was issued pursuant to section 6009 of SAFETEA-LU. Mr. Hoffman expressed concern with the statement in the guidance that "[a]s a routine matter, FHWA and FTA do not need to consult with the DOI on de minimis impact findings." He asked about the application of this guidance to land that is purchased with federal funds as mitigation for impacts to section 4(f) resources and then given to a state.

Mr. Hoffman acknowledged that formal consultation with Interior Department is not required for a de minimis finding, but he said that some form of informal communication with the Interior Department would be beneficial and should be encouraged. He noted that one of the greatest benefits of the Task Force thus far has been the success of early and ongoing interagency cooperation. He would like to ensure that this cooperative and consultative environment is continued. Mr. Hoffman asked FHWA to reconsider the wording of this statement, because the word "consultation" has different meanings to different agencies, particularly with respect to section 7 of the Endangered Species Act.

Fred Skaer of FHWA said that for land purchased and transferred to a State, approval from the Interior Department would still be required to convert the land to a transportation use. He said that the language in the guidance was intended to indicate that for other situations, a formal consultation with the Interior Department is not necessary, but that informal communications should continue. He offered to work with the Interior Department to clarify the text in the guidance.

John Fowler of the Advisory Council on Historic Preservation (ACHP) raised concerns about the same guidance document. In particular, he referred to the part of the guidance that discusses when a State or Tribal historic preservation officer does not respond to a request for concurrence in the Section 106 determination within the specified time.

The guidance addresses whether "concurrence through non-response" constitutes the written concurrence needed to make a de minimis finding. The guidance states that if a Section 106 programmatic agreement allows the lead agency to interpret a lack of response from the historic preservation officer as concurrence, then the lead agency can consider a non-response (together with the written programmatic agreement) as written concurrence in the de minimis finding by FHWA or FTA.

Mr. Fowler said that the lack of response from a historic preservation officer may indicate that officer has not been adequately notified. Mr. Skaer responded that it is difficult to determine when an agency's non-response should be interpreted as consent.

Joint EPA/ACE Rulemaking

George Dunlap of the U.S. Army alerted the Task Force that on March 27, 2006, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) announced proposed revisions to the regulations governing compensatory mitigation for authorized impacts to wetlands, streams, and other waters of the U.S. under Section 404 of the Clean Water Act.

The proposed rule may directly impact the work of the Task Force in the following ways:

• Mitigation plans would be required for all projects that impact aquatic resources.
• Mitigation would be allowed off-site and in other wetland function areas, further encouraging mitigation banking.
• 'In lieu fees,' which many state DOTs use to meet mitigation requirements by paying into a state environmental fund, would be eliminated. These funds would be required to act as 'mitigation banks.'

Mr. Dunlap noted that the public comment period for the proposed rule was extended to June 30, 2006, and the results of the comment period will be shared with other agencies. He encouraged DOT to be involved in the rulemaking process.

Publication of Eco-Logical Guide

Mr. Skaer commented on the copies of the Eco-Logical guide at each seat, noting that it was now available in hard copy. It was previously only available on agency websites. As a cooperative effort of many of the agencies on the Task Force, the guide addresses the need for environmental streamlining and proposes a concrete framework for bringing ecosystem and infrastructure planning together. He noted that having a clearly defined environmental planning process may result in more timely projects in the future.

Mr. Dunlap mentioned that ACE has received questions from journalists looking for evidence of integrated planning for areas affected by last year's hurricanes. He suggested that DOT promote Eco-Logical as an example of these efforts. Garry Mayer of the Department of Commerce asked if media questions regarding Eco-Logical should be referred to DOT. Shari Schaftlein of FHWA responded that each agency wrote individualized press releases when the guide was first publicly released via agency websites. Mr. Skaer added that DOT has been working with each agency to coordinate internal messaging for Eco-Logical, but that coordination of external messaging is also needed.

New Gallup Survey

Mr. Skaer announced that DOT is awaiting final approval from the Office of Management and Budget to conduct a follow-up survey of field staff from the Task Force member agencies at the State and Federal levels. The poll seeks to determine how well DOT staff members are meeting the needs of cooperating agencies and completing their jobs in a timely manner. Mr. Skaer noted that the results from the first Gallup survey are available at the DOT website.

DOT Congestion Relief Initiative

Tyler Duvall of the Office of the DOT Secretary provided a brief overview of DOT's new congestion relief initiative. Mr. Duvall said that the initiative is focused on managing the existing transportation network better, increasing the use of market-based mechanisms, and encouraging "over-mitigation" of infrastructure projects through the promise of a streamlined environmental review process. While there are six overall focuses to the plan, three most directly relate to the work of the Task Force:

1. Urban congestion. DOT will seek agreements with metropolitan areas able to deploy congestion pricing, express bus services, and telecommuting and flex scheduling programs. In addition, participating metro areas will nominate bottleneck sites in the region for expedited completion. One way to expedite these projects will be to select them as priority projects for this Task Force.
2. Corridors of the Future competition. DOT will run a competition to select three to five major growth corridors in need of long-term investment. For each corridor, DOT will convene a multi-state process to advance project development and seek alternative financing. One way to advance these large-scale projects is to offer some sort of "environmental certainty" to project sponsors and potential investors.
3. Freight congestion relief. One way that DOT will address congestion in the nation's freight system is by creating a larger "Intermodal Hot Spot Team" to address freight bottlenecks in southern California. Among other issues, the team will work on the environmental issues related to the growth of freight traffic at ports in southern California.

Regarding freight-related congestion, Mr. Hoffman noted that for the 1984 Olympics in Los Angeles, freight movements were successfully shifted to nights to reduce congestion. Mr. Duvall noted that the PierPASS program, which includes a fee on cargo movement during peak daytime hours, has significantly reduced congestion at the Ports of Long Beach and Los Angeles.

Mr. Dunlap asked why the private sector would be interested in investing in transportation infrastructure projects. Mr. Duvall said that toll roads offer predictable revenues and growth. Mr. Dunlap suggested that increased use of waterborne freight transportation could help reduce congestion in the surface transportation system. Mr. Duvall replied that DOT has a SEA-21 effort focused on developing waterborne freight alternatives along congested highway corridors.

Mr. Duvall asked Robert Mariner the Office of the DOT Secretary to send the Task Force members some background information on the congestion relief initiative. He encouraged Task Force members to review and comment on the proposal at their convenience.

New FAA Guidance

The following announcement was not made at the meeting but is included for the benefit of the Task Force member agencies:

The Federal Aviation Administration (FAA) would like to announce that on April 28, 2006, FAA's Office of Airports Planning and Programming published a Federal Register notice announcing the availability of Order 5050.4B, Notice of Availability of National Environment Policy Act (NEPA) Implementing Instructions for Airport Actions, and its Preamble. On May 18, 2006, a formal copy of the Preamble appeared in the Federal Register. The Order and its Preamble are available on the FAA website at: http://www.faa.gov/airports_airtraffic/airports/resources/publications/orders/environmental_5050_4/.

Order 5050.4B updates the October 1985 version of 5050.4A, Airports Environmental Handbook. Order 5050.4B represents over five years of intensive work by FAA's Office of Airports. It presents updated, revised, and detailed instructions on how FAA analyzes the environmental effects of airport projects under NEPA. In addition to updating much of the information in Order 5050.4A, Order 5050.4B provides new information about: 1) better coordination between airport planning and the environmental process; 2) instructions on FAA's State Block Grant Program, and 3) how the Airports Office applies environmental streamlining to capacity projects at major hub airports, and airport safety and security projects. Environmental reviews for capacity enhancing projects at O'Hare, Dulles, and Philadelphia International Airports show that integrating planning and environmental efforts works. Kate Lang, the acting Associate Administrator for Airports, termed Order 5050.4B the "crown jewel" of FAA's instructions on meeting the President's and Congress's streamlining goals.

III. SAFETEA-LU Update

Mr. Skaer presented an overview of SAFETEA-LU, referencing a handout given at the meeting. In implementing the law, DOT has been stressing the use of non-regulatory guidance in place of rulemakings. He noted that the primary reason for the delay in scheduling this Task Force meeting was DOT's focus on developing guidance and sharing it with other Federal agencies. Mr. Skaer said that DOT staff are available to assist member agencies with presentations or training workshops on SAFETEA-LU and the related guidance. Mr. Skaer proceeded to highlight the provisions of SAFETEA-LU most relevant to the Task Force.

Mr. Skaer said that FHWA had issued a Notice of Proposed Rulemaking pursuant to section 6005 of SAFETEA-LU, which allows five States (Alaska, Ohio, Oklahoma, Texas, and California) to apply to assume all USDOT environmental responsibilities under NEPA and other environmental laws (excluding the Clean Air Act and transportation planning requirements). Public comments will be accepted until June 5, 2006. He said that California intends to apply to take over federal responsibility for all highway projects. He also noted that statutory changes are needed in each State before they can adopt Federal responsibilities.

Ted Boling of the Council on Environmental Quality (CEQ) said that the Alaska legislature had acted to give adequate legal responsibility to state agencies, but the other state legislatures are still working.

Section 6007 of SAFETEA-LU exempted the bulk of the Interstate Highway System from consideration as a historic property under Section 4(f). Mr. Skaer discussed the process that is underway to identify those elements of the system that possess national or exceptional significance and should not be exempt from consideration as a historic property. He said that approximately 130 elements of the Interstate Highway System had been proposed as worthy of historical preservation.

Mr. Fowler said that ACHP wanted to be kept informed on the process of determining which system elements would remain subject to Section 4(f). He asked whether FHWA intended to rely on the Office of Management and Budget to conduct the interagency review of FHWA's decision. He said that OMB does not always notify ACHP when it should. Mr. Skaer said that FHWA would send a copy of its determinations to ACHP directly.

The integrated planning provisions of SAFETEA-LU require that transportation plans be compared against plans prepared by other agencies. Mr. Skaer said that the Surface Transportation-Environmental Cooperative Research Program, is being used to coordinate this process.

IV. Priority Projects Update

Mr. Mariner began by noting that all Task Force members should have previously received an electronic version of the Priority Project Status Report, which was distributed in hard copy to meeting attendees. The Status Report has been shortened and reorganized. All of the background information on the priority projects is being moved to the Task Force's website. Mr. Mariner asked the Task Force members to review the Status Report and welcomed any comments on its format and contents.

Mr. Mariner said that environmental reviews have been completed for the following priority projects:

• Los Angeles World Airports Master Plan (CA)
• Lower Manhattan Recovery Projects (NY)
• Nelsonville Bypass (OH)
• Philadelphia International Airport Runway Extension (PA)
• I-93 Improvements (NH)

Mr. Mariner commended Task Force agencies for their commitment to the streamlining process and congratulated everyone on the completion of so many projects.

V. Next Steps for the Task Force

Mr. Capka introduced the chairs of the three Work Groups, and asked for an update on their recent activities.

Purpose and Need Work Group

Pam Stephenson of FHWA said that the Work Group had developed a baseline report and an executive summary. The Work Group also conducted a survey of field offices, which found no recent examples of problems associated with project purpose and need. Ms. Stephenson said that FHWA and FTA tried to address purpose and need issues when developing implementing guidance for SAFETEA-LU. She added that the Work Group could be tasked with helping with and monitoring the implementation of section 6002 of the law.

Dinah Bear of CEQ commended Ms. Stephenson on her efforts and agreed that many of the legal issues associated with purpose and need have been addressed by Congress and CEQ. She said that the Work Group could shift its focus to problem identification and dispute resolution.

Integrated Planning Work Group

Mike Culp of FHWA discussed plans to reconvene the Integrated Planning Work Group in the coming weeks. He said that one new task for the Work Group could be promoting the Eco-Logical guide and getting its ideas implemented. Mr. Culp said that he sees an important nexus between the consultations required under section 6001 in SAFETEA-LU and ongoing integrated planning efforts involving ecosystem and water resources planning. He said that the Work Group will consider how best to assist with the implementation of section 6001.

Indirect and Cumulative Impacts Work Group

Lamar Smith of FHWA and Ted Boling of CEQ noted that the group has been on hiatus since the passage of SAFETEA-LU. Mr. Smith said he has reviewed guidance on indirect and cumulative impacts prepared by California and Texas. He said that the guidance prepared by these two states is very good, and the Work Group could promote these guidance documents to other States. He also suggested that the Work Group could help with the implementation of section 6001 of SAFETEA-LU.

Mr. Boling also noted that the Work Group met with project staff on the St. Croix River Crossing project to address some issues with that project. He echoed Mr. Culp's comments that in the future the Work Groups should assist with the implementation of SAFETEA-LU.

Other Task Force Activities

Mr. Mariner announced that work would soon begin on the Task Force's next Report to the President. He suggested using the document to highlight the lessons learned by each agency and said that Task Force's member agencies should expect to be contacted for input in the near future.

Mr. Mariner said that the next Task Force meeting will be held in the late August or early September.

VI. Wrap-Up

Mr. Capka concluded the meeting and thanked Task Force members for their continued participation.