DELEGATION OF FEDERAL ENVIRONMENTAL
RESPONSIBILITIES FOR HIGHWAY PROJECTS

For routine projects, such as highway or safety improvements, and restoration, rehabilitation, reconstruction or replacement of bridges and pavement, delegation of federal environmental compliance functions may be an effective way to speed up project processing while preserving environmental quality. While such delegations may not truly transfer legal authority for compliance, this study finds that state DOTs are proving increasingly capable of overseeing many aspects of federal environmental responsibilities.

As this study was not sponsored or funded by the Federal Highway Administration, the findings and recommendations do not necessarily reflect the position of the Agency.

Table of Contents

Executive Summary

1. Introduction

2. Categorical Exclusion Reviews

3. Endangered Species Act Requirements

4. National Historic Preservation Act Requirements

5. Wetlands Permitting

6. Section 4(f) Responsibilities

7. Legal Context for Programmatic Agreements

8. Conclusions

   Appendix

Executive Summary

Introduction

Routine Transportation Projects Are a Streamlining Challenge. Environmental streamlining has proven to be one of the most intractable challenges under the Transportation Equity Act for the Twenty First Century (TEA-21). Research evidence shows that routine transportation projects, such as highway safety improvements, and restoration, rehabilitation, reconstruction or replacement of bridges and pavement, that account for 95 percent or more of all projects in most states, often experience delays ascribed to compliance with federal environmental requirements, yet they generally have few, if any, environmental impacts.

Delegation of Environmental Responsibilities Is A Solution Already at Work in Some States.

For routine projects, complete or partial delegation of federal environmental review functions may be an effective way to quicken project review while preserving environmental quality. This study finds that, while environmental delegation is not universal, state DOTs and their state-level resource agency counterparts, are being delegated some federal environmental responsibilities with a high degree of success. For example, in Michigan and New Jersey, delegation of federal wetlands permitting requirements to the state environmental agency has helped speed up the environmental review process for highway projects. Meanwhile, in Vermont, a new Section 106 process that places review of historic sites affected by transportation projects directly under the control of the state transportation agency is making project review quicker. More minor delegations of environmental review responsibilities are taking place in many other states.

The benefits of environmental delegation flow to both environmental and transportation agencies. For state DOTs, delegation offers quicker project turnaround and greater certainty in project planning. For resource agencies, staff is freed up to address higher priority environmental issues and projects. But, while the concept of delegating federal responsibilities for routine projects is not new, optimizing its potential remains a policy challenge for federal and state agencies.

Study Results - 22 Examples of Major and Minor Environmental Delegations that Work.

This study identifies 22 examples of minor and major delegations that individual states and their federal partners are using to streamline the environmental compliance process. It is organized around the five leading causes of delay in the environmental compliance process for routine highway projects with sections on:

• Processing categorical exclusions,
• Meeting endangered species requirements,
• Meeting historic preservation requirements,
• Meeting wetlands requirements, and
• Meeting Section 4(f) (public parks and historic resources) requirements

The findings are promising. The initiatives profiled demonstrate that the delegation initiatives being developed by states across the country are working and that the benefits they offer are compelling. In particular, delegation of wetlands permitting in Michigan, and delegation of Section 106 responsibilities in Vermont show the extent to which delegation is possible under existing federal laws. But, the study profiles suggest that implementation of agreements that delegate authority is fragmentary, with agreements being developed largely on an ad-hoc basis. Greater coordination and focus in this issue area could result in greater benefits to state DOTs and resource agencies alike.

How States Are Using Delegation to Speed Up Environmental Reviews

• Categorical Exclusions. Under the National Environmental Policy Act (NEPA), transportation projects that do not individually or cumulatively have significant environmental effects are classed as categorical exclusions (CEs) and are exempted from further NEPA consultation procedures. In a typical state, over 90 percent of all highway projects that undergo NEPA fall into the CE category, which can include activities ranging from bridge replacements to guardrail installation and pavement restoration. Even CE projects; however, may experience delays associated with NEPA compliance. This is in part because, historically, eligibility for CE status has been determined with direct involvement by FHWA on a project-by-project basis.

  Programmatic agreements between state DOTs and FHWA that delegate decision making on certain CEs by eliminating the need for individual federal review of projects have become one of the most widely used and successful agreements used by states. Many DOTs throughout the country now have programmatic agreements for CEs in place and the sample agreements reviewed in this study suggest that anywhere from 55 to 95 percent of CEs may be processed programmatically, while time savings estimated by state DOTs range from a few weeks to a few months per project.

  While many states have CE programmatics, some are less comprehensive than others in their scope of delegation and there may be opportunities to broaden the scope of agreements in some states to bring greater consistency in the treatment of CEs from state to state. National-level policy changes will be required, however, to expand the scope of CE programmatics to include project categories beyond those currently eligible.

• Endangered Species. Delegation of responsibilities for Endangered Species Act (ESA) requirements is much less widespread than delegation of categorical exclusion-related requirements; however, Section 7-related delays on CE or EA projects were ranked fourth in order of significance by state DOTs in a recent study. Preparation of individual biological assessments and biological opinions, required by the ESA, may involve repetitive analysis and consultation procedures on routine projects for which impacts are predictable and well understood, thus tying up staff resources and delaying projects unnecessarily.

  Over the last two decades, many states have expanded their in-house expertise for handling biological resource issues, and this has opened the way for agreements with the U.S. Fish and Wildlife Service that streamline the Section 7 process. These initiatives include programmatic biological assessments and opinions, and habitat conservation plans developed in several Midwestern and Western states that allow projects meeting prescribed criteria to bypass individual reviews. In Colorado, for example, an innovative habitat mitigation bank approach that reduces individual project review in exchange for a commitment to advance conservation measures is being tested.

Interest in agreements that delegate responsibility for aspects of ESA compliance is likely to vary across the country. In regions where endangered species are encountered infrequently, the complexity of establishing agreements may deter development of delegation; however, in other areas where a variety of species are frequently encountered, interest may be high.

• Historic Preservation. Over the 35-year life of the National Historic Preservation Act (NHPA), most state DOTs have expanded their capabilities for addressing historic resources that are affected by transportation projects. Many are now well equipped to handle routine Section 106 consultations using professionally qualified staff and consultants and a number of states have developed programmatic agreements that help to expedite project delivery by delegating aspects of the Section 106 review process. With the approval of the Advisory Council on Historic Preservation, in the form of a programmatic agreement, FHWA may delegate some or most project-by-project review responsibilities to non-federal designees who are then responsible for acting on behalf of FHWA in the Section 106 process.

  The development of Section 106 programmatic agreements remains a complex and collaborative process, the details of which must be agreed on by all of the parties involved. Delegation of FHWA's Section 106 responsibilities to a state DOT will depend to a significant extent on the state agency's commitment to protecting and preserving historic resources as shown in mission statements, staff programs, policy statements, and so on. Such commitments do not come without additional costs, and whether state DOTs choose to bear these costs will in part determine the success of future Section 106 delegation.

• Wetlands Permitting. Transportation projects that involve discharge of dredged or fill material to waters of the United States, including wetlands, are subject to the federally operated "Section 404" permitting program, established under Section 404 of the Clean Water Act (CWA). The program is run by the US Army Corps of Engineers (COE), which issues permits, with additional oversight from the US Environmental Protection Agency (EPA). It operates according to the principle of no net loss of wetlands; requiring a sequence of avoid, minimize, enhance and compensate for impacts on wetlands.

  Several state environmental agencies have assumed all or some responsibility from COE for Section 404 permitting activities. Complete transfer of responsibilities is feasible under the CWA, and is taking place in Michigan and New Jersey, but is relatively uncommon, while partial transfer of responsibilities via a State Programmatic General Permit is quite frequent. Both approaches have proven beneficial to state DOTs in states where such delegation has taken place.

• Section 4f. The Section 4(f) process requires that a special effort must be made to preserve public parks, wildlife and waterfowl refuges, and historic sites. Section 4(f) applies to all historic sites, but only to publicly owned parks, recreational areas, and wildlife and waterfowl refuges. State DOTs cite Section 4(f) issues as the leading source of delay for CE and EA projects. FHWA; however, retains close oversight of 4(f) reviews and there is only one example of delegation for Section 4(f) responsibilities to a state. At present, the only 4(f) delegations are a group of four national programmatic agreements and an agreement developed by Ohio DOT, which is patterned on the national agreements, but which offers potential for additional timesaving.

  Programmatic agreements can be used to reduce processing times for Section 4(f) approvals, at least to some degree. However, there is relatively little that programmatic agreements can do to reduce the inflexibility of the legal standards embodied in Section 4(f).

Factors for Achieving Successful Delegation

• DOTs must be willing to provide technical staff expertise and resources. If states are to take on the responsibilities of federal agencies, they must have appropriate expertise, training, and resources. In most of the cases profiled, opportunities have come about as DOTs have invested in building environmental staff expertise. Those agencies that have the greatest breadth and depth of skills in their environmental divisions are also the same agencies that have been able to achieve greatest delegation. The extra cost of additional staff and training is offset by the benefits of quicker project development.
• There must be a history of trust and cooperation among agencies. At the core of every effective agreement is a strong prior working relationship between participating agencies that fosters trust on all sides that commitments going forward will be honored. This trust in part comes from top-level commitment to policies that keep agencies on course even as inevitable changes in staff occur.
• Agencies must be willing to dedicate time and effort up-front to negotiate agreements. Delegation cannot be developed without willingness by all sides to work together over an extended period of time to develop agreements. Most delegations require extensive discussion, even if models from other states are available. While exact timeframes for developing programmatics and other types of agreements vary, a two or three year timeframe to complete negotiations and finalize an agreement is not uncommon. Full delegation, such as Vermont's Section 106 process or Michigan's 404 permitting process may take longer to negotiate.
• Checks and balances are in place. A system of checks and balances must be in place to ensure that, once agreements are in place, the DOT is operating as agreed and to make modifications if necessary.

The benefits of environmental delegation do not come without costs in terms of staff and resource commitments by DOTs. In many states; however, these commitments are already being made as DOTs move towards a stronger "environmental stewardship" ethic in their everyday activities, and environmental delegation and environmental stewardship are closely linked.

Next Steps

This study provides a first look at the effectiveness of environmental delegation achieved through the use of programmatic agreements and other measures. Potential Next Steps include:

1. More detailed analysis of what is already working. More research would help to build a comprehensive understanding of approaches underway across all states and in a full array of environmental issue areas. A suitable research program could be developed by NCHRP, AASHTO, and FHWA.
2. A coordinated effort to encourage greater use of existing approaches. A dedicated clearinghouse for gathering and disseminating information about delegation is needed to provide resources such as detailed inventories of programmatics in use across states, case studies of innovative approaches, and copies of individual agreements. AASHTO's newly created Center for Environmental Excellence could help fulfill this role.

1. Introduction

Environmental streamlining has proven to be one of the most intractable challenges under the Transportation Equity Act for the Twenty First Century (TEA-21). While attention has focused on major projects that experience multi-year delays, the companion study to this work (NCHRP Report 20-7/129) demonstrates that routine transportation projects, which account for 95 percent or more of all projects in most states, also experience considerable delays ascribed to compliance with federal environmental requirements.¹  Routine projects include activities such as highway safety improvements; and restoration, rehabilitation, reconstruction or replacement of bridges and pavement, and they often have few, if any, environmental impacts.

1.1 How Delegation Works

Many projects sponsored by state DOTs include some federal assistance or permitting approval and are therefore subject to federal environmental laws. Ultimate accountability for ensuring compliance with these federal laws rests with the U.S. Department of Transportation (USDOT) and its partner federal resource agencies. To ensure compliance, they traditionally oversee each project, requiring documentation of impacts and individual review prior to approval, even for routine projects where environmental impacts are well understood and are typically minimal. In contrast to the close oversight of environmental requirements, FHWA has successfully delegated much of its day-to-day responsibility for overseeing critical engineering and accounting aspects of federal-aid projects to states.

Individual states have developed agreements with federal agencies that allow the transfer from federal to state agencies of day-to-day responsibility for overseeing various aspects of environmental compliance on routine transportation projects. These agreements often allow transportation projects that fit specified criteria to receive federal approval without project-by-project review, so long as they do not have significant environmental impacts. The state is delegated responsibility for selecting projects that fit the criteria, and project-specific documentation, reporting, and review requirements are reduced. After the fact audits or program reviews ensure that states carry out their responsibilities appropriately.

The scope of states' delegation agreements varies. In Vermont and Michigan, two far-reaching agreements represent the leading edge for delegation of environmental responsibilities. In Vermont, VTrans recently moved ahead with an in-house, DOT-led Section 106 review process that means most projects skip outside agency review, therefore shortening review times and increasing decision-making certainty. Meanwhile, in Michigan, the state administers most Section 404 permitting activities in place of the Corps of Engineers. In both instances there is widespread support for these approaches from affected parties, while transportation projects are developed more quickly and with greater certainty.

Developing delegation agreements is a slow process that involves coordination between many agencies. In Vermont, the agreement on historic resources took several years to develop and is based on a long track record of cooperation between state and federal agencies. VTrans is responsible for maintaining a staff of highly trained experts to administer its Section 106 responsibilities. Meanwhile in Michigan, the state DOT is funding positions in the state's environmental agency to help speed up permitting times for transportation projects.

As the Vermont and Michigan examples suggest, delegation does not mean reduced requirements under federal environmental laws, however, it can reduce overlapping or time consuming reviews, as well as increase certainty about project planning timelines, make project delivery faster, and free up staff resources to focus on critical needs.

Many states are interested in greater expansion of delegation opportunities. In Washington State, lawmakers passed a bill in May 2001 that streamlines the environmental permitting process for transportation projects by requiring state agencies to work together. The bill acknowledges that while transportation and environmental protection are important interests of the state, an increasingly complex federal, state, local and tribal permitting process poses major challenges to achieving both. Too much time and money is spent on redundant processes and analyses, which delay projects and divert dollars from real environmental improvements on the ground.

The Bill creates an interagency Transportation Permit Efficiency and Accountability Committee (TPEAC), which is responsible for creating a sustained focus on achieving both the transportation and environment goals of the state. One of the key roles of TPEAC is to develop a process for implementing general and programmatic agreements that can cover a broad range of typical transportation construction activities, without the need to get an individual permit for each activity. According to state officials, this alone could reduce the permit load for the State Department of Transportation by 50 percent. Ultimately, the Washington state effort aims to achieve a 50 percent reduction in the time required to obtain permits and to process 60 percent of project permits in programmatics.

1.2 The Policy Context for Delegation

Over the last decade, three interrelated changes in state and federal policy on transportation and the environment have combined to increase the relevance of environmental delegation as a solution for ensuring effective compliance with environmental requirements while expediting project development, particularly for routine projects with few or no environmental impacts:

• Growth of State DOT Environmental Stewardship. Many DOTs have invested in building in-house environmental expertise, both by hiring subject experts and by fostering greater awareness of environmental concerns among project managers. As a result, states are better equipped to address compliance with environmental laws than they were 20 to 30 years ago when these laws were originally written. In addition, many states have state-level laws that substantially parallel, or even exceed, federal requirements; yet coordination across state and federal requirements is frequently poor.
• Downsizing of Federal Agencies. Federal agencies have downsized, reducing their ability to handle the volume of projects taking place under the increased investment provided by the Intermodal Surface Transportation Efficiency Act (ISTEA) and TEA-21 at the same time as environmental regulations are increasing in complexity. As a result, federal agencies lack sufficient staffing to cover both review of routine projects and to deal with complex projects that have greater environmental impacts.
• End of the Interstate Construction Era. ISTEA and its successor, TEA-21, have shifted the focus of transportation capital investments from construction of new projects to maintenance and rehabilitation of the existing system. The scope of environmental impacts on projects in existing rights of way is typically smaller and more predictable than for projects that involve new alignments.

These changes provide the catalyst for new approaches in environmental compliance. Properly conceived and executed, delegation of environmental responsibilities produces equivalent or better environmental results than conventional approaches while saving time and money.

1.3 Study Framework

Chapters two through six of this study profile twenty-two selected delegations of authority that are being used successfully by states to improve project processing in five key environmental issue areas, known to be major sources of delay for routine projects:

• Processing "categorical exclusion" projects,
• Meeting endangered species (Section 7) requirements,
• Meeting historic preservation (Section106) requirements,
• Meeting wetlands(Section 404) requirements, and
• Meeting Section 4(f) (public parks and historic resources) requirements.

In each issue area chapter, the profiles are followed by a discussion of the challenges and opportunities for enhancing and expanding use of delegation to help streamline routine projects. States profiled in the study include: California, Colorado, Connecticut, Iowa, Maryland, New Jersey, Nebraska, Ohio, Pennsylvania, Vermont, Washington, Wisconsin, and Wyoming. Chapter seven provides a general discussion of the legal opportunities and limitations surrounding use of delegation, while chapter eight provides overall conclusions and Next Steps. In addition, an appendix to the study provides a selected sample of delegation models used elsewhere in FHWA, and at other federal agencies.

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2. Categorical Exclusion Reviews

2.1 Overview

The Categorical Exclusion (CE) classification is a key component of the regulatory process for environmental compliance on routine transportation projects. Under the National Environmental Policy Act (NEPA), transportation projects that do not individually or cumulatively have significant environmental effects are classed as categorical exclusions (CEs) and are exempted from further NEPA consultation procedures. In a typical state, over 90 percent of all highway projects that undergo NEPA, or approximately 290 projects per year fall into the CE category.² 23 CFR § 771.117 provides a listing of specific categories of common transportation projects that may usually be documented as automatic CEs, which includes activities like guardrail installation or pavement restoration.

Even CE projects; however, may experience delays associated with NEPA compliance. This is in part because, historically, eligibility for CE status has been determined on a project-by-project basis, with state transportation agencies providing FHWA sufficient information to demonstrate that environmental impacts associated with proposed projects will not rise above the CE threshold. While projects may be reviewed by FHWA in batches for faster processing, the documentation, review, and approval process adds time to overall project development.

Programmatic agreements that allow quicker processing of some CEs by eliminating individual federal review of projects are one of the most widely used and successful environmental delegations used by states, there is, however, potential for widening the applicability of programmatics to cover additional project types. Most states' programmatic agreements for CEs have the same elements:

• List of Eligible Projects. Almost all states' programmatics use the CFR § 771.117 paragraphs c) and d) project listings as the basis for determining eligible project categories. Paragraph c) describes automatic CE activities, primarily non construction-related, such as installing fencing or conducting planning studies; while paragraph d) describes other construction-related activities that rarely have environmental impacts. (See sidebar for full listing.)
• Exclusion of Projects with Potential Environmental Impacts. The programmatics typically prohibit inclusion of any projects that might have some environmental impacts. They may still be eligible for CE status, but must be individually approved.
• Standardized Documentation. States must be able to demonstrate to FHWA that projects are justifiably classed as CEs, therefore many states use a standardized project form to ensure a record of projects meet necessary requirements.
• Reporting to FHWA. The programmatic requires that states must provide FHWA with a regular listing of projects that are processed under the programmatic CE.
• Program Audits. Finally, there is generally a program audit element that allows FHWA and the state to review and improve the capabilities of the CE agreement.

Project categories listed under 23 CFR § 771.117, part c) that are automatically considered to be categorical exclusions:

1. Non-construction activities, such as planning and technical studies and research activities
2. Approval of utility installations along or across a transportation facility
3. Construction of bicycle and pedestrian facilities
4. Activities in the State's highway safety plan under 23 U.S.C. 402
5. Transfer of Federal lands pursuant to 23 U.S.C. 317
6. Installation of noise barriers
7. Landscaping
8. Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices where no substantial land acquisition or traffic disruption will occur
9. Emergency repairs under 23 U.S.C. 125
10. Acquisition of scenic easements
11. Determination of payback under 23 CFR part 480 for property acquired with Federal?aid participation
12. Improvements to existing rest areas and truck weigh stations
13. Ridesharing activities
14. Bus and rail car rehabilitation
15. Alterations to facilities or vehicles to make them accessible for elderly and handicapped persons
16. Program administration, technical assistance activities, and operating assistance to transit authorities
17. Purchase of vehicles that can be accommodated by existing facilities
18. Track and railbed maintenance and improvements within the existing right-of-way
19. Purchase and installation of operating or maintenance equipment located within a transit facility
20. Promulgation of rules, regulations, and directives

2.2 State-Level Profiles

Many states now have programmatic agreements for CEs in place and most agreements have similar wording. The sample agreements reviewed here suggest that anywhere from 55 to 95 percent of CEs may be processed programmatically, while timesavings estimated by state DOTs range from a few weeks to a few months per project.

New Jersey DOT - Programmatic Approval of Certain CEs.  In 1997, New Jersey DOT (NJDOT) developed a programmatic agreement with FHWA to outline the policy and procedures for environmental processing of certain CEs that normally do not have significant social, economic, and environmental effects.

• Eligible Projects. NJDOT's agreement lists 30 project categories for which the Agreement provides advance approval from FHWA, provided that the state has determined no significant environmental impacts will occur. Non-standard categories that are part of NJDOT's Agreement include "bridge painting," and "transportation enhancements." In addition, the Agreement specifically excludes "reconstruction" activities from the "resurfacing, restoration, rehabilitation and reconstruction" category included in CFR § 771.117 part d). Projects classed as programmatic CEs in New Jersey most frequently fall under this category.
• Documentation Requirements. NJDOT must provide a quarterly list of projects processed under the Agreement to FHWA and documentation is retained for a minimum of three years following the completion of construction.
• Agreement Effectiveness. About 100 CEs per year are processed under the programmatic agreement accounting for about 80 percent of all NJDOT's CEs, according to NJDOT personnel. The agreement eliminates about two to three weeks of FHWA review time per project; however, this timesaving is offset in part by the need for greater state-level documentation.

Iowa DOT - Programmatic Categorical Exclusion Action.  In 1999, Iowa DOT (IDOT) developed an agreement with FHWA to reduce the number of projects that are processed as individual CEs. The IDOT agreement identifies project categories for which the programmatic agreement provides advance approval from FHWA and that can be processed as CEs without individual documentation, provided they do not cause any significant environmental impacts.

• Eligible Projects. IDOT's agreement defines eligible project categories as those listed in 23 CFR § 771.117 c) & d), and transportation enhancement-related activities listed in a 1998 Memorandum of Understanding between IDOT, FHWA and the Iowa SHPO.
• Documentation Requirements. All projects processed as CEs under the programmatic agreement must be documented using a standard Project Summary form and IDOT staff maintain a listing of all projects cleared using this process. A copy of the list is forwarded to FHWA annually.
• Agreement Effectiveness. In the two years since the programmatic agreement was established, Iowa has processed about 200 projects per year under the programmatic agreement, accounting for 95 percent of all CEs. Each programmatic CE eliminates a "small" amount of FHWA review time according to IDOT personnel.

Wyoming DOT - Programmatic Categorical Exclusions. Wyoming DOT (WDOT) established a programmatic agreement for CEs with FHWA in 1994 and the agreement was revised in 2001.

• Eligible Projects. The WDOT programmatic lists 30 categories of projects for which the Agreement provides advance approval from FHWA, provided that the state has determined no significant environmental impacts will occur.
• Documentation Requirements. Under the programmatic agreement, WDOT must document findings in a project file. WDOT periodically submits to FHWA a listing of projects processed under the Agreement in a document called the "Programmatic CE Package."
• Agreement Effectiveness. Ninety seven percent of all Wyoming's highway projects are developed as CEs and 57 percent of these projects are developed under a programmatic CE. The number of CEs processed programmatically in 2000 was 86. The average number of months required to process environmental documents in Wyoming has decreased from 7 months to 3 months since the CE programmatic was developed.

Connecticut DOT - Programmatic Approval of Certain CEs.  In 1997, Connecticut DOT (ConnDOT) and FHWA's Connecticut Division Office established a comprehensive agreement for processing CEs for Federal-Aid actions under NEPA.

• Eligible Projects. While the Connecticut DOT programmatic is based on 23 CFR § 771.117, in contrast to the other programmatics reviewed as part of this study it more narrowly defines the types of projects that are eligible for programmatic status. Specifically, five categories of project under paragraph c) (approval of utility installations, bike and pedestrian facilities, noise barriers, landscaping, and improvements to weigh stations and rest areas) are excluded from the programmatic and all categories of project under paragraph d) are also excluded.
• Documentation Requirements. Under the agreement, ConnDOT must document all CE determinations using a specially developed checklist and maintain a log of approved CE determinations. FHWA reserves the right to review CE documentation on specific projects at its discretion; however, FHWA is only involved in approval of individual CEs.
• Agreement Effectiveness. ConnDOT has found the programmatic agreement for approval of CEs to be an effective tool for expediting project approvals on minor projects. Data for the most recent year available shows that out of a total of 577 CEs that were processed, 315 (55 percent) were programmatic CEs.

2.3 Challenges and Next Steps

Since their first appearance more than ten years ago, programmatic agreements for categorical exclusions have proven to be a simple and effective tool for expediting the NEPA process for routine transportation projects with no environmental impacts. The use of programmatic CEs frees up FHWA staff time, while cutting the amount of time required for approving projects under NEPA. Time saved on individual projects is small, but since a large number of projects are classed as CEs the cumulative benefits are likely to be large. Maintaining the success of CE programmatics will require continued cooperation and discipline on the part of FHWA and states is needed to ensure that programmatic approaches are adhered to. In addition, CE programmatics do not exempt projects from additional environmental requirements.

Many states have CE programmatics; however, as the Connecticut DOT example shows, some are less comprehensive than others, and there may be opportunities to broaden the scope of agreements in some states. Expansion of the scope of CE programmatics to include project categories beyond those listed in parts c) and d); however, is likely to require legislative changes, since federal regulations prescribe CE eligibility.

Next Steps

• Encourage development of programmatic agreements for CEs in additional states. Many states have already implemented CE agreements; however, continued expansion of the use of programmatic agreements for CEs does not require any legislative changes and may help to expedite the environmental documentation process in states that currently do not have such Agreements.
• Expand the range of projects eligible for processing as programmatic CEs to include more complex CEs. Most states with Agreements in place do not process all CEs programmatically; however, as states' expertise in handling environmental review procedures rises there is no reason why approval of all or most CEs should not be handled via programmatic agreements. The proposed NEPA environmental regulations include an expansion of Section 771.117 projects.
• Develop an EA programmatic, based on CE programmatic approach. Many projects that are not eligible for CE status turn out to have no significant effect on the environment, particularly after mitigation measures are included in the project. Currently, FHWA reviews and approves EA documents individually; however, this responsibility could be delegated to states for all or a portion of EAs.

² Environmental Process Streamlining: A Report on Delays Associated with States' Categorical Exclusion and Environmental Assessment Processes, National Cooperative Highway Research Program (NCHRP) report 20-7 129, October 2000.

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3. Endangered Species Act Requirements

3.1 Overview

Delegation of responsibilities for Endangered Species Act (ESA) requirements is much less widespread than delegation of categorical exclusion-related requirements; however, endangered species-related delays on CE or EA projects were ranked fourth in order of significance by state DOTs according to the NCHRP 20-7, 129 study. In addition, the US Fish and Wildlife Service reports that endangered species consultations for transportation projects have increased by 77 percent since TEA-21 became law, presumably a result of increased federal funding opportunities under TEA-21.

Over the last two decades, many states have expanded their in-house expertise for handling biologic resource issues. As a direct result of these expanded capabilities, a number of states have developed endangered species-related agreements with federal agencies that delegate responsibilities or standardize approaches. Essentially, these agreements provide advance Federal approval and reduced documentation requirements for certain types of projects that meet criteria for having limited effects on specific species, so long as agreed upon mitigation strategies are in place.

Under the ESA of 1973, federally authorized or funded projects must not jeopardize the existence of threatened or endangered species. The consultation process established by Section 7 of the ESA requires all federal agencies, or their designated representatives to coordinate with US Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) to determine potential project-level impacts on listed species and if necessary to develop project alternatives or measures to minimize impacts. Where potential impacts to threatened and endangered species are suspected, the Section 7 process is often initiated with an informal consultation between the Services and the applicant to determine if any listed species exist in the project area and proceeds to a formal consultation if a biological assessment conducted by the applicant identifies adverse effects to listed species:

• Informal Section 7 Consultation/Biological Assessment. An informal consultation begins with a request to FWS or NMFS for information on endangered species in the project area and may be necessary even for minor projects if incidental takes of a threatened or endangered species are a possibility. If listed species or critical habitats are identified as potentially being present within the project area, a detailed biological assessment must be prepared by the applicant to identify probable locations of listed species.
• Formal Section 7 Consultation. If a biological assessment concludes that the project would cause adverse effects then a formal consultation is initiated by FHWA as the lead Federal agency. FWS or NMFS reviews the biological assessment and then issues a biological opinion on whether or not the action is likely to jeopardize a listed species or result in the destruction or adverse modification of critical habitat. If a jeopardy biological opinion is issued, it includes recommended reasonable and prudent alternatives and, or conservation recommendations, if any.

3.2 State-Level Profiles

Preparation of individual biological assessments and biological opinions for some types of routine projects for which impacts are predictable and well understood may involve repetitive analysis and consultation procedures that tie up staff resources. In response, several states have developed agreements with the Services for addressing selected endangered species, or types of projects that have limited impacts with reduced federal involvement. These initiatives include programmatic biological assessments and opinions, habitat conservation plans, and habitat mitigation banks. Development of inter-agency ESA-related agreements is time consuming; however, once in place they have proven to be an effective tool for completing Section 7 consultations and freeing up staff resources to focus on most significant projects.

3.2.1. Programmatic Biological Assessments and Opinions. Generally, DOTs prepare biological assessments, in coordination with FHWA, the Services, and state natural resource agencies on a project-by-project basis. Likewise the Services respond with biological opinions prepared on an individual basis. A programmatic biological assessment (PBA); however, may serve as a blanket assessment for an array of similar projects with recurring minor impacts (e.g. roadway resurfacing) to the same species or to multiple species. Once the PBA receives concurrence from the Services and a programmatic biological opinion is issued, projects that meet the parameters of the PBA may be implemented without an individual biological assessment. PBAs cut paperwork for both the Services and the DOT and save time in the project development process.

Washington State DOT - Regionwide Programmatic Biological Assessments. With 39 species listed as threatened or endangered under the ESA in Washington State, Section 7 consultations and preparation of biological assessments are a frequent element of the environmental review process for transportation projects. According to DOT staff, review of individual biological assessments by the Services can take anywhere from one month to one year.

In 1999, the Washington State Department of Transportation (WSDOT) received concurrence from FWS on a PBA for WSDOT's seven-county Olympia region and the Department is in the process of getting similar PBAs for two other regions of the state approved, as well as a statewide aquatic species PBA. The Olympia PBA allows WSDOT to reduce the number of individual Section 7 consultations required for minor projects that have minimal impacts on listed species. The PBA describes the parameters of project types that are covered; they include:

• Patching, replacing, and repairing pavement;
• Slide abatement and repair;
• Bank stabilization and flood damage repair of river banks adjacent to roads;
• Bridge replacement, repair, retrofit, and maintenance;
• Mobility improvement projects (HOV lanes, new interchanges, etc. usually in existing ROW); and
• Safety improvement projects. (Guard rail installation, slope flattening, alignment modifications, etc.)

Under the PBA, all highway projects are reviewed by a WSDOT biologist who determines if the project fits in the PBA and prepares a form evaluation of potential effects. Projects that are determined to have "no effects" do not require concurrence from the Services; projects that are "not likely to have an adverse effect" receive an automatic concurrence; and projects that are found to have an "adverse effect" are discussed at a monthly meeting with the Services.

Since initiation of the Olympia PBA, 57 projects have completed their Section 7 consultation requirement through the use of this PBA. (As of December 2000) Once the other three PBAs (covering two other regions of the state, and aquatic species statewide) are approved, the number of individual BAs that will need to be prepared and reviewed by the Services may be reduced by as much as 80 percent. The PBA approach to biological assessments will allow both WSDOT and the regulatory agencies to focus their efforts on the more complex projects with a greater potential for adverse impacts on listed species. It will help staff at all three agencies keep up with an increasing workload while providing protection for listed species and predictability for WSDOT projects.

Key to implementing the PBA approach for handling Section 7 agreements is WSDOT's staff of 14 DOT biologists dedicated to dealing with endangered species issues and the agency's provision of funding for seven liaisons at the Services to review transportation projects. This demonstrated track record of expertise and cooperation has enabled the use of innovative approaches.

CalTrans - Species-Specific Programmatic Biological Assessments. CalTrans has developed two PBAs since the mid-1990s for certain projects that affect the Valley elderberry long horn beetle and the Desert tortoise respectively. They are presently working on PBAs for three other species (the San Joaquin fox, salmon (with NMFS), and the Red-legged frog). These species are some of the most commonly encountered on CalTrans projects, making preparation of biological assessments and consultation with the FWS a frequent occurrence in the past, even for routine projects.

The two PBAs currently in place were developed with FWS and are modeled on similar agreements between the Corps of Engineers and FWS. The programmatics specify the types of projects and the extent of impacts that are eligible for programmatic status, as well as agreed upon mitigation measures that must be followed. CalTrans Districts must notify FWS when projects are processed under the PBAs by providing basic information about what impacts will occur and how they will be mitigated. FWS has a 30-day time period in which to issue an amended programmatic biological opinion.

The timesavings attributable to the PBAs occur through prior agreement to conditions (reduced negotiation time) and the difference between the time it takes to append the project to the programmatic opinion (30 days) and the time it takes to complete a new consultation (135 days). CalTrans staff observes; however, that developing the agreements is a time consuming process primarily because achieving agreement among agencies is difficult.

3.2.2. Habitat Conservation Agreements. Habitat Conservation Agreements (HCAs) are most commonly used by private landowners to address compliance with ESA requirements for one or more species. They provide a solution for addressing "incidental take" of endangered species without the need for project-by-project consultation. Increasingly, public agencies are taking advantage of HCP approaches for managing endangered species impacts.

Wisconsin DOT - Karner Blue Butterfly Habitat Conservation Plan. Wisconsin is home to the largest remaining population of Karner blue butterflies in the United States and an estimated 600 miles of state highway right-of-way in the state provides ideal conditions for the Wild blue lupines that Karner blue larvae feed on. Listing of the Karner blue as a federally endangered species in 1992 raised the potential for numerous Section 7 consultations on highway projects within the State.

To ensure that the Karner blue is protected, while reducing the need for a potentially time intensive Section 7 consultations every time a highway project may affect the Karner blue or its habitat, WisDOT is participating in a statewide Habitat Conservation Plan (HCP) relating to incidental take of the Karner blue and its habitat. The HCP involves 25 private and public partners including county and industrial forest owners, utilities, and other state agencies.

Under the HCP, WisDOT must implement agreed upon roadside management practices that minimize or avoid hazards to the Karner blue habitat, including selective mowing, lupine seeding after construction projects, and removal of brush and trees to assure continued lupine habitat. In addition, the Department must survey the Karner Blue and its habitat along selected highway corridors and provide an annual report containing information about acreage land subject to disturbance, as well as survey results. In return, WisDOT has been granted incidental take privileges under the HCP.

According to WisDOT staff, a typical Section 7 consultation and associated studies can add about 1 to 2 years to the project approval process; therefore, the HCP allows projects to be processed more quickly. WisDOT and FWS staff time and resources that would otherwise be devoted to Section 7 consultations on highway projects that affect the Karner blue are freed-up to focus on other issues.

Reaching agreement on the statewide HCP was a cumbersome process, in part because the dialogue involved 25 partners with diverse backgrounds and needs. WisDOT first became involved in development of the Karner blue HCA in November 1995 and the final HCP agreement between Wisconsin DNR and FWS was not signed until September 1999. In retrospect, development of sub-agreements among partners with similar backgrounds might have been more efficient.

3.2.4. Habitat Conservation Banks. Habitat conservation banks for transportation projects are similar in concept to wetland banks. In exchange for advance measures to preserve habitat, incidental species takes that would otherwise require individual biological assessments are approved through an expedited process. Banking allows habitat to be preserved in blocks rather than in fragmented areas along highway corridors that contribute little to the viability of individual species.

Colorado DOT - Short Grass Prairie Initiative MOA. Colorado DOT (CDOT) has recently completed an agreement to implement an innovative programmatic Section 7 consultation process that enhances conservation of species and expedites transportation project development in an area covering 90,000 acres of CDOT right-of-way.

Colorado's Eastern Plains, a portion of the Central Shortgrass Prairie ecoregion, covers approximately one third of the State of Colorado. This area totals over 27 million acres, including about 90,000 acres of Colorado DOT (CDOT) right-of-way in four of CDOT's six regions. The Nature Conservancy (TNC), which is a non-profit organization, has identified over 100 threatened, endangered, or declining animal and plant species within this ecoregion.

The proposed agreement between FWS, FHWA, TNC, Colorado Department of Natural Resources and CDOT opens the way for creation of multi-species habitat conservation sites, supported by CDOT but operated by the TNC, that will contribute to recovery of declining species and reduce the likelihood of new ESA listings in the future. In exchange, CDOT will receive programmatic approval for projects within existing right-of-way without the need for time consuming project-by-project evaluation and mitigation.

The basis for the agreement involves a detailed estimate of the collective impacts to habitats of declining species in the Eastern Plains from proposed transportation projects over the next 20 years, using best available scientific and commercial data on the habitat and range of and potential impacts to listed species. The Transportation Commission of Colorado will choose exactly which projects will be funded and implemented; however, CDOT's 20-year plan anticipates safety, reconstruction, capacity, and other transportation improvements for 22 percent of the highway network in Colorado's central shortgrass prairie.

Benefits of the programmatic habitat banking approach include greater predictability for CDOT projects, cost savings due to avoiding steadily increasing land prices, minimization of project-by-project analysis, and a more effective approach to preservation of species.

3.3 Challenges and Next Steps

Many of the delegation examples described in other chapters of this report address simple tasks that occur within the environmental process frequently in many states. The kinds of expertise and skills needed to conduct Section 7 biological assessments; however, vary widely from species to species and project to project. This makes development and implementation of standardized or programmatic procedures that can easily be delegated to state DOTs difficult, and approaches that work in one state may not be applicable in other states. Due to their complexity, programmatic type solutions that cover multiple projects may take considerable time and effort to develop, but are often worthwhile where a particular endangered species or habitat is encountered on a frequent basis.

Developing a strong state DOT commitment to endangered species preservation is a key pre-requisite to all delegations of responsibility, and requires dedicated staff expertise, resources and a sound track record on past projects. This level of commitment is a significant investment for state DOTs, and the costs of creating new staff positions and so on to handle delegated responsibilities may outweigh the benefits, particularly in states where endangered species and their habitats are not widely encountered on transportation projects.

Next Steps

Programmatics that address endangered species consultation activities remain uncommon, in part because of the challenges described above. Interest in agreements that delegate responsibility for aspects of ESA compliance is likely to vary across the country. In regions where endangered species are encountered infrequently, the complexity of establishing agreements may deter development of delegation; however, in other areas where a variety of species are frequently encountered, interest may be high.

• Focus Policy Development Efforts on States where Endangered Species Issues are Encountered Most Frequently. By their nature, endangered species issues are not a routine problem in many states; however, when they do occur they are frequently a cause of delay even on minor projects. A number of states, particularly those in the Western US, frequently encounter endangered species issues and are likely to be most receptive to developing programmatic strategies that expedite ESA compliance.
• Develop Programmatic Biological Assessments in More States. The small number of PBAs already in place have demonstrated that they are an effective tool for streamlining the number of individual section 7 consultations required either in geographic regions or for particular species benefit both natural resource and transportation agencies, yet relatively few states have developed PBAs for delegating the Section 7 process. In part, this may be due to lack of awareness of the concept; however, a key to greater use of PBAs appears to be simplifying the processes for their development. To support greater use of PBAs, USFWS has developed a guidance document.
• Explore use of Vermont's Section 106-style model for Section 7 compliance. For states that have comprehensive natural resources expertise in-house, consider delegating FWS responsibility for completion of biological opinions on all but most complex projects as is done in Vermont for historic resources.
• Establish Better Coordination between Services and States. Across each of the preceding recommendations, a common theme is the need for effective coordination between DOTs, and FWS and NMFS offices. Finding ways to promote these relationships is key to successful delegation of endangered species activities.

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4. National Historic Preservation Act Requirements

4.1 Overview

Over the 35-year life of the National Historic Preservation Act (NHPA), most state DOTs have expanded their capabilities in addressing historic resources that are affected by transportation projects. Many are now well equipped to handle routine Section 106 consultations using professionally qualified staff. A number of states have developed programmatic agreements that help to expedite project delivery by delegating aspects of the Section 106 review process. There is; however, a considerable range in the scope of these agreements and the amount of delegation that they allow, with some giving almost complete responsibility to the state DOT, even for projects with major impacts and others giving states responsibility only for routine projects with no environmental impacts.

The NHPA of 1966 mandates that federal agencies must take into account the effects of their actions on any properties included in, or eligible for inclusion in, the National Register of Historic Places (NHRP) and offer the Advisory Council on Historic Preservation (ACHP) (or its designee - the State Historic Preservation Officer (SHPO) who acts on ACHP's behalf) a reasonable opportunity to comment. Section 106 of the NHPA establishes a four-step consultation process that must be used by Federal agencies, including FHWA, to review the effects of proposed projects on historic resources:

• Step 1 - Initiate Section 106 Process. Establish contact with the State Historic Preservation Officer (SHPO) and other consulting parties as appropriate, develop public participation plan.
• Step 2 - Identify Historic Properties. Determine the geographic scope of the project and conduct a review to identify any historic properties within the project area and their significance.
• Step 3 - Assess Adverse Effects. If necessary, conduct a study to determine whether "no effects," "no adverse effects," or "adverse effects" will occur as a result of the project.
• Step 4 - Resolve Adverse Effects. If necessary, develop a memorandum of agreement on ways to avoid, minimize, or mitigate adverse effects.

As with other elements of the environmental review process, in most states the responsibility for handling the day-to-day aspects of Section 106 consultations is generally delegated to DOTs who use their own historic and archaeological resources professionals or consultants to conduct reviews, hearings and studies. Despite delegation of day-to-day Section 106 responsibilities to the DOT, the Section 106 process routinely requires separate concurrences from the FHWA, the SHPO and ACHP, resulting in multiple layers of review, delay, and greater uncertainty about project timelines. Section 106 consultations are required not only for major highway projects where an Environmental Impact Statement (EIS) is necessary, but may also be required for minor projects that are typically processed as categorical exclusions, such as highway overlays that involve a sidewalk redesign, intersection improvements that require minor strips of right-of-way from historic properties, and all manner of bridge repair and rehabilitation efforts.

4.2. State-Level Profiles

As the following programmatic agreements from individual states demonstrate, greater delegation of Section 106 responsibilities is feasible within the existing NHPA framework, and not only helps to expedite project development by enhancing decision-making certainty for state DOTs, but also frees up FHWA and SHPO staff resources for other critical activities.

4.2.1. Delegating Responsibility for Some or All Steps in the Section 106 Consultation Process. At its discretion, FHWA may delegate some of its Section 106 responsibilities to non-federal designees who are then responsible for acting on behalf of FHWA in the Section 106 process. FHWA is moving in this direction in states where DOT staffing resources and capabilities ensure adequate compliance with Section 106 requirements.

Partial Delegation - New Jersey DOT's Section 106 Programmatic Agreement. New Jersey DOT (NJDOT)'s Section 106 programmatic agreement provides partial delegation of the Section 106 consultation process to the state DOT. Under the 1996 agreement, the NJDOT may independently conduct Section 106 work necessary to locate historic properties, make an assessment of effects, and if the effects are not considered adverse then obtain the New Jersey SHPO's concurrence. If consultation with the SHPO results in agreement on a finding of "no adverse effect," NJDOT prepares documentation in support of the finding and forwards appropriate documentation to FHWA. Concurrence in the finding by FHWA will be sufficient to conclude the Section 106 consultation without further review by the SHPO or the Council. If consultation results in a finding of "adverse effect," or no agreement can be reached between NJDOT and the SHPO, work required to conclude the Section 106 consultation process is completed by FHWA.

The programmatic agreement reduces the amount of documentation that must routinely be reviewed by FHWA's New Jersey Division office, while ensuring that FHWA remains involved in potentially contentious projects. NJDOT estimates that the agreement saves about two or three months time for projects that follow the streamlined process. NJDOT's considerable track record of successful compliance with Section 106, and the agency's qualified professional staff of 6 archaeologists and historians, each of whom has a minimum of 16 years of experience, facilitated development of the agreement. NJDOT's Section 106 programmatic agreement has been adapted by several other states, including Wisconsin, South Carolina, and Michigan.

Full Delegation - VTrans' Delegated Section 106 Program. Vermont Agency on Transportation (VTrans) has a well-established and strong working relationship with the Vermont Department of Historic Preservation (VDHP) that has allowed the two agencies to create a far-reaching programmatic agreement on full delegation to VTrans of responsibilities for completing transportation project-related Section 106 reviews. Under the agreement signed in April 2000, the SHPO review authority of VTrans' projects is fully transferred to VTrans staff that act as Deputy SHPOs. Specifically the agreement provides that VTrans' Deputy SHPOs will:

• Make a determination on whether a project is a federal undertaking and assess the area of potential effect;
• Identify historic properties;
• Conduct public involvement;
• Make appropriate findings regarding eligibility for the National Register;
• Make formal findings of no effect, no adverse effect, or adverse effect; and,
• Where standard mitigation measures are not applicable for an adverse effect, draft a memorandum of agreement on means for avoiding, minimizing or mitigating the effect.

Under the agreement, VTrans is required to employ a minimum of two full-time professionals to work on preservation concerns. The activities of the VTrans Deputy SHPOs are described in a Manual of Standards and Guidelines that was prepared after the PA was signed. The Manual sets out the qualifications for VTrans review staff, procedures for project reviews, provisions for soliciting and responding to public comment, standards for evaluating and documenting projects, and guidance on using standard mitigation measures. In addition, the Manual requires VTrans to prepare an annual report on its program to FHWA and the SHPO, to conduct ongoing training of VTrans employees and consultants, and to consider development of innovative historic preservation programs.

Since the agreement went into effect, typically VTrans takes about 2 weeks to process a Section 106 review. This represents a time savings over SHPO reviewed projects, however, more important is the introduction of greater certainty in the project planning process, as VTrans historic preservation staff can work directly with project managers.

The Vermont Section 106 Programmatic Agreement and the supporting Manual are the result of a lengthy collaborative effort among VTrans, VDHP, and FHWA. The concept of the agreement was first discussed in 1996, and a committee consisting of FHWA, SHPO and VAOT employees drafted the actual agreement over a period of 19 months. Development of the manual for implementing the agreement took an additional year.

4.2.2. Delegating Section 106 Responsibilities for Categories of Projects. Many federally funded projects conducted by DOTs, such as planning and technical studies, roadway surface replacement or repair, or installation or replacement of traffic control devices, guard rails and traffic signs, generally do not affect historic properties. Automatically excluding such project categories from individual Section 106 consultation can expedite project approvals while freeing up FHWA, SHPO, and DOT staff time for other activities.

Pennsylvania DOT - Minor Transportation Projects Programmatic Agreement. In December 1996, Pennsylvania DOT (PennDOT) signed a programmatic agreement for minor transportation projects with FHWA, the ACHP, and the Pennsylvania SHPO. The purpose of the agreement is to streamline the Section 106 process for minor projects in Pennsylvania that have few or no impacts on historic resources by delegating greater responsibility to PennDOT and reducing overlapping review by FHWA, the Pennsylvania SHPO and the ACHP.

The programmatic agreement applies to federal-aid projects that are classified as categorical exclusions. Under the agreement and as described in an operating procedures manual, PennDOT divides these projects into those that may be exempted from review and those that require more detailed analysis. PennDOT District staff that has completed a basic training program has responsibility for exempting categorical exclusion projects that are not anticipated to have any effects on historic resources. Example projects include road reconstruction; rest area rehabilitation; activities within a previously disturbed median; bridge rehabilitation (for bridges less than 50 years old or not listed as National Register eligible); and shoulder additions or minor changes in alignment. No project-level notification of the SHPO is required; however, PennDOT documents exempt projects and submits a project list to SHPO on a quarterly basis.

Projects that have greater potential to affect historic resources must be evaluated by one of PennDOT's ten cultural resource professionals. For projects where there is a finding of "no resource" or "no effect," a notification is sent to the SHPO; and for projects where there is "no adverse effect" consultation with the SHPO is conducted on an as needed basis. The SHPO comment period is 15 days for "no resource" projects, and 30 days for "no adverse effect" projects; however, explicit concurrence is not needed.

As part of the programmatic agreement, PennDOT prepares an annual report on projects that are processed programmatically. In addition, PennDOT and the SHPO provide annual training to District staff, and FHWA is required to conduct regular process reviews of all Districts to ensure that the terms and conditions of the agreement are being met. According to PennDOT staff, the agreement has resulted in considerable cost savings. Prior to implementation of the agreement, the per project documentation cost averaged $1,000, but this figure has now fallen to around $400. With up to 800-900 projects per year, that means annual savings of $480,000 to $540,000.

Development of the PennDOT programmatic agreement is closely linked to the evolution of PennDOT's in-house historic resources preservation program. PennDOT has ten historic and archaeology professionals with at least five additional hires planned for this next year. Each of PennDOT's 5 regions includes at least one archaeologist and architectural historian responsible for project scoping, document review and for following the provisions of the Minor Highway Projects PA within each region.

Maryland DOT - Programmatic Agreement for Minor Highway Projects. In 1993, the Maryland State Highway Administration (SHA), FHWA, the Maryland SHPO, and ACHP created a programmatic agreement for minor highway projects. The agreement automatically exempts some project categories from Section 106 review and delegates to SHA responsibility for review of numerous minor highway project categories that have no anticipated effects on historic properties. By using the agreement, the amount of time the SHPO, ACHP, and FHWA spend reviewing these projects is greatly reduced. The agreement covers two categories of actions:

I) Exempt Activities: These are activities that by their nature and definition do not constitute undertakings and are therefore categorically exempted from review. SHA maintains a file record of these projects and reports them to the SHPO annually. Some of the exempt activities include:

• Installation of signs, and pavement markings;
• In-kind replacement of existing lighting, guardrails, traffic signals, curbs, and sidewalks;
• Highway safety activities;
• Overlay, milling, grooving or resurfacing of existing roadways; and
• Routine bridge maintenance and repair

II) Projects Unlikely to Have Impacts. These are minor highway projects that in general have limited areas of potential effects, occur largely at grade within existing rights-of-way or within minimal new rights-of-way, do not introduce new structural or visual elements, and do not require substantial alteration of previously undisturbed ground. They are reviewed internally by SHA's qualified cultural resources staff without further review by the Council or the SHPO unless SHA determines that the project may affect properties. These activities include eight project categories:

• Minor bridge rehabilitation on bridges less than 45 years old
• Construction of bicycle and pedestrian facilities
• Landscaping
• Water quality activities
• Rest area, park and ride lot, and weigh station construction
• Roadway widenings within existing right-of-way
• Fencing and noise barrier installation
• Erosion control activities

The agreement requires the SHA to have a staff of qualified cultural resource staff and outlines the procedures for Section 106 review of exempt and minor highway projects. For exempted projects, SHA documents finding on a standard form and provides the MD SHPO with a record of exempted projects in an annual report. Once an exempted project is recorded, no further action is required. For a minor project, SHA submits documentation using a standard form that is submitted to the MD SHPO who then has 15 days to respond. If there is no response from the SHPO, the Section 106 process is complete. According to SHA staff, in 2000 they reviewed 456 projects, of which 238 were classed as minor projects, and 162 were exempt projects.

4.2.3 National Programmatic Agreement for Transportation Enhancements Projects. The Transportation Enhancements program was created under ISTEA to provide funding for ten (now expanded to twelve) project categories that promote facilities for walking and bicycling, historic preservation, scenic beautification, land acquisition, and environmental mitigation. Most TE projects are entirely consistent with the goals of the Section 106 program, yet because they often affect historic resources they are required to go through the Section 106 process.

In 1997, FHWA issued a nationwide programmatic that addresses expedited Section 106 compliance for transportation enhancements (TE) projects. The agreement is similar to those that many states have for minor projects. Under the agreement, individual transportation enhancements projects in ten categories (ranging from bicycle facilities to mitigation of water pollution due to highway runoff) require only minimal review to satisfy FHWA's Section 106 responsibilities. For each project, the DOT must 1) identify and evaluate historic properties, 2) determine whether there is "no effect," "no adverse effect," or an "adverse effect, " and 3) notify the SHPO in writing of its findings. If the SHPO concurs within a required timeframe, the project may advance without further review.

The agreement reduces the need for project-by-project coordination with out-of-state groups, and is estimated to reduce the time to process projects by 30 to 60 days. Some states already have agreements that incorporate transportation enhancements activities; however, a number of states are using the national TE programmatic agreement.

Nebraska Department of Roads (NDOR) - Programmatic Agreement Regarding Highway Bridges. NDOR developed a programmatic agreement in 1991 that outlines procedures for addressing the state's historic bridges. Based on the historic bridge inventory, which is updated every five years, a set of bridges that are considered unique is agreed on by NDOR and the SHPO. All other bridges (that are not part of this list) are not subject to Section 106 requirements.

The agreement saves one to two months for projects that can be processed under the agreement by eliminating the need to conduct a survey, make a determination, and have SHPO review documentation.

Other states reviewed as part of this study that have similar programmatic agreements that cover minor projects or historic bridges include Washington (combined historic bridges/minor projects agreement), Colorado (minor projects), and New Jersey (minor projects), Vermont (historic bridges), and Wisconsin (bascule bridges).

4.3 Challenges and Next Steps

A growing number of states now have effective Section 106 programmatic agreements in place. This suggests that other states may be able to adopt similar delegation approaches with relative ease. The development of Section 106 programmatics; however, remains a complex and collaborative process, the details of which must be agreed on by all of the parties involved. Delegation of all, or some, of FHWA's Section 106 responsibilities to a state DOT, will depend to a significant extent on the agency's commitment to protecting and preserving historic resources as shown in mission statements, staff programs, policy statements, and so on. Such commitments do not come without additional costs, and whether state DOTs choose to bear these costs will in part determine the success of future Section 106 programmatics.

Next Steps

Many, but not all states are taking advantage of Section 106 delegation opportunities; however, most states' programs only delegate responsibility for the most routine projects where no environmental impacts occur. As states build successful track records in managing these responsibilities, the next step is to expand the level of responsibilities to include additional project categories as has occurred in Vermont. As with endangered species, this will require close cooperation with resource agencies and commitment of staff and resources on the part of DOTs.

• More widespread delegation of routine Section 106 reviews to state DOTs. The success of delegation agreements in states like New Jersey, Pennsylvania, and Maryland, which give state DOTs responsibility for approval of routine projects with no significant Section 106 impacts, suggests that similar agreements may be easily implemented in other states that presently operate with project-by-project Section 106 review.
• Allow greater delegation of Section 106 responsibilities in states with existing agreements. The Vermont Section 106 agreement offers an aggressive model for broad delegation of responsibilities in other states. Consider ways to implement similar agreements in other states that exhibit a strong commitment to preservation of cultural resources.

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5. Wetlands Permitting

5.1 Overview

Transportation projects that involve discharge of dredged or fill material to waters of the US, including wetlands, are subject to the federally operated "Section 404" permitting program, established under Section 404 of the Clean Water Act (CWA). The program is run by the US Army Corps of Engineers (USACE), which issues permits, with additional oversight from the US Environmental Protection Agency (EPA) It operates according to the principle of no net loss of wetlands; requiring a sequence of avoid, minimize, enhance and compensate for impacts on wetlands.

For major transportation projects, an individual Section 404 permit may be required. Individual permits require extensive scrutiny, the preparation of reports and the completion of an alternatives analysis. Individual permits typically take over a year to obtain. Many minor transportation projects; however, are covered by general permits that are issued on a nationwide, regional, or state basis for groups of activities that are substantially similar in nature, and have only minimal environmental impacts on wetlands. Notification of the Corps is usually required prior to initiating the proposed action covered by a general permit; however, no further reporting or written communication is required at the time the individual activity is initiated.

Several state environmental agencies have assumed all or some responsibility from USACE for Section 404 permitting activities. Complete transfer of responsibilities is feasible under the CWA, but is relatively uncommon, while partial transfer of responsibilities via a State Programmatic General Permit is quite frequent. Both approaches have proven beneficial to state DOTs in states where such delegation has taken place.

5.2 State-Level Profiles

5.2.1Assumption of Full Section 404 Program Responsibilities. Under the Clean Water Act (CWA), states may be delegated full responsibility for wetland permitting activities. In 1984, Michigan became the first state to take advantage of this delegation opportunity, taking over regulatory responsibilities for administering Section 404 of the CWA from EPA and USACE. The only other state granted authority for wetlands permitting since then is New Jersey. In both states, the precursor for granting this authority was a strong wetlands protection program backed by state law, as well as strong bi-partisan support for wetlands preservation. Several other states, including Oregon, are in the process of taking steps toward 404 assumption.

Michigan's Delegated Section 404 Program. The groundwork for transfer of permitting authority in Michigan was laid by passage of Michigan's Wetland Protection Act (WPA), which was created in 1979, and addresses federal CWA requirements for operating a state-administered wetlands permitting program.

The political impetus in Michigan for establishing a state-run wetlands permitting program arose from the combined interests of a strong wetlands conservation movement, and from developers interested in streamlining the existing state-administered dredge and fill permitting program that overlapped with Corps responsibilities. Switching from a federal to a state-level program; however, took more than four years following creation of the WPA and only a small amount of federal funding is available to support the program, which is primarily supported by state-level general funds.

Under Michigan's delegated program, the Michigan Department of Environmental Quality (MDEQ) is responsible for permitting most activities in the state that have impacts on wetlands. A permit is required for any of the following activities:

• Deposit or permit the placing of fill material in a wetland;
• Dredge, remove, or permit removal of soil or minerals from a wetland;
• Construct, operate, or maintain any use or development in a wetland; or
• Drain surface water from a wetland.

Two types of permits may be issued under the WPA. General Permits (GPs) are issued for projects expected to have only minor impacts on wetlands. These projects are not public noticed and wetland mitigation is not required. Individual permits are issued for projects whose wetland impacts are larger and more complex than GPs. These projects must be public noticed and may also involve a public hearing. Wetland mitigation is generally required for impacts authorized by individual permits. USEPA retains veto power over permits issued for projects that involve that involve discharge of 10,000 cubic yards of fill or more within a regulated wetland and USACE retains Section 404 jurisdiction over wetlands adjacent to the Great Lakes and major navigable rivers. For projects in the latter category, an applicant must obtain both a MDEQ and USACE permit.

According to DEQ, the relationship between Michigan and USEPA is generally friendly, USEPA has authority to veto state-level permit decisions; however, they chose to do so only in extremely rare instances. USEPA retains oversight of Michigan's activities and it is currently conducting a comprehensive review of the program. Issues raised so far by USEPA during the review generally focus on concerns about consistency between the state and federal programs.

MDOT staff finds that the state-level wetlands permitting program is generally quicker and more predictable than the Corps-run program. In general, staff observes that as a fellow state agency MDEQ is more responsive to MDOT's priorities than the Corps would be since the Corps Detroit District oversees multiple states. In 1994, MDOT and MDEQ together established an 11-person Transportation and Flood Hazard Management Unit (TFHMU), funded in part by MDOT, that focuses exclusively on processing permits for transportation projects. The unit is funded by MDOT and provides dedicated resources for expediting transportation projects and helps to ensure that transportation projects are treated consistently across the state. Prior to the creation of the TFHMU, MDOT had to rely on MDEQ districts for processing of permits and they frequently experienced inconsistency and delays in permitting decisions from District to District. About 40 percent of projects reviewed by the TFHMU are MDOT projects and the remainder are local government projects.

New Jersey's Delegated Section 404 Program. In 1994, New Jersey became the only state other than Michigan to receive delegation of federal wetlands permitting requirements from USACE and EPA. The State opted to pursue a delegated program because passage of the New Jersey Freshwater Wetlands Protection Act (FWPA) of 1987, which is more stringent than the Federal requirements, created a cumbersome duplicate permitting process. As in Michigan, federal approval for a delegated program took several years. The push for a delegated program in New Jersey received broad support from a diverse range of groups including developers and environmental groups.

The Freshwater Wetlands Protection Act requires New Jersey Department of Environmental Protection (DEP) to regulate virtually all activities proposed in wetlands, including cutting of vegetation, dredging, excavation or removal of soil, drainage or disturbance of the water level, filling or discharge of any materials, driving of pilings, and placing of obstructions. General permits cover a limited number of minor activities, while individual permits are used for larger projects and require an extensive alternatives analysis.

Staff at NJDOT indicates that the state-run program is more predictable and quicker than the Corps run program. Projects that are processed under a general permit take approximately 45 to 60 days, and projects processed with an individual permit take about six months. New Jersey DOT and DEP are working together on setting up a dedicated 4-person unit to deal with transportation project permits more expeditiously.

5.2.2 State Programmatic General Permits. In about 13 states, the Corps has transferred responsibility to state resource agencies for issuing Section 404 permits on projects with minor wetlands impacts. Under a State Programmatic General Permit (SPGP), the Corps issues a blanket approval of all projects with impacts below a critical threshold measured in acres or cubic yards, provided that the state resource agency has in place a regulatory program that is substantially similar to the Corps' regulatory program.

Typically, transportation project categories such as shoulder widenings, passing lanes, and turn lanes that involve fills of less than 1 or 2 acres, or removals of 1,000 cubic yards or less are eligible to be processed under a state's SPGP. The Corps still issues individual permits for projects that exceed SPGP thresholds; however, they can focus limited regulatory resources where they will do the most good. Permits are issued more quickly and with greater predictability under a SPGP, and overlapping requirements between state and federal programs are eliminated. For state DOTs, SPGPs mean that they do not have to deal with inconsistencies between USACE Districts on how projects are treated. So far, the New England states, Pennsylvania, Florida, and Maryland have all implemented SPGPs, and plans for development of SPGPs are underway in Virginia, Oregon, and West Virginia. Each SPGP is a unique arrangement developed by a state and the USACE to take advantage of the strengths of the individual state wetlands program.

Pennsylvania's State Programmatic General Permits. The Pennsylvania State Programmatic General Permit (PASPGP) was one of the first SPGPs to be developed and it is similar to SPGPs in several other states on the east coast. The first PASPGP was issued by USACE in 1995 and has been revised several times since. The permit authorizes the discharge of dredged, excavated, or fill material or structures into waters of the United States including wetlands under the provisions of Section 404 of the Clean Water Act and Section 10 of the River and Harbor Act of 1899.

The PASPGP establishes a two tiered process that authorizes the Pennsylvania Department of Environmental Protection (PADEP) or their delegated County Conservation District (CCD) to issue Federal permits for projects impacting less than one acre of wetlands or less than 250 linear feet of stream channel, without Corps' project by project review. Projects impacting one to five acres of wetlands, and stream projects impacting greater than 250 linear feet, are forwarded to the Corps for informational purposes, but can still be issued by PADEP. Projects impacting over five acres of wetlands are ineligible for the PASPGP and are processed by the Corps for Federal authorization. The PADEP Chapter 105 program, in conjunction with the Federal Program, including the PASPGP, provides a greater level of protection for aquatic resources and better customer service than would the Federal program alone with the Individual and Nationwide Permit program.

PennDOT District staff reports that the PASPGP has been helpful in expediting the permitting process for transportation projects, typically saving "months" in processing time.

5.3 Challenges and Next Steps

There are two principle deterrents to widespread delegation of wetlands permitting responsibilities. First, the lack of federal funding for state-run 404 or SPGP programs is a major barrier because permitting programs are expensive to operate. Second, the need for stringent state-level wetlands laws that equal or exceed federal laws has hindered greater delegation because both SPGP and full assumption programs require these as a prerequisite and many states do not have political support for strong wetlands controls.

Next Steps

• Funding for state-run wetlands programs. A major barrier to creation of state-run wetlands permitting programs is access to federal funding. Wetlands permitting programs are expensive to operate, and state legislatures may be unwilling to take on such responsibilities without funding support. The approaches used in Michigan and New Jersey, where the state DOT funds positions for permit review may help to address this problem.
• Wider promotion of wetlands delegation options. Greater awareness of SPGPs, full assumption, and similar delegation-based approaches is needed to encourage states to adopt them.

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6. Section 4(f) Responsibilities

6.1 Overview

DOTs cite 4(f) issues as the leading source of delay for CE and EA projects. FHWA; however, retains close oversight of 4(f) reviews and there is only one example of delegation for Section 4(f) responsibilities to states. At present, the only 4(f) agreements that speed up project review are a group of four national programmatic agreements and a an agreement developed by Ohio DOT, which is patterned on the national agreements, but which offers potential for additional timesaving.

The Section 4(f) process requires that a special effort must be made to preserve public parks, wildlife and waterfowl refuges, and historic sites. (In 1983, Section 4(f) of the DOT Act, (49 USC 1653(f)) was re-codified as 49 USC 303; however, it is still commonly referred to as Section 4(f).) Section 4(f) applies to all historic sites, but only to publicly owned parks, recreational areas, and wildlife and waterfowl refuges. Any project that affects Section 4(f) land must include a Section (4f) assessment. A transportation program or project requiring the use such land will be approved only if there is no prudent and feasible alternative to using that land and if the program or project includes all possible planning to minimize harm to the land or resources.

Whenever Section 4(f) property is used for a project, documentation must be prepared that demonstrates that there are unique problems or unusual factors involved in the use of non-Section 4(f) using alternatives, or that the costs and social, economic, and environmental impacts, or community disruption resulting from the alternatives are particularly large.

6.2 National 4(f) Programmatic Agreements

As an alternative to preparing an individual Section 4(f) evaluation, FHWA may in certain circumstances have the option of applying a programmatic evaluation. If a project meets the conditions specified under the national programmatic Section 4(f) evaluation, it will satisfy the requirements of Section 4(f) that there are no feasible and prudent alternatives and that there has been all possible planning to minimize harm. These conditions generally relate to the type of project, the severity of impacts to Section 4(f) property, the evaluation of alternatives, the establishment of a procedure for minimizing harm to the Section 4(f) property, and adequate coordination with appropriate entities. Programmatic Section 4(f) evaluations can be nationwide, regionwide, or statewide.

There are four nationwide programmatic Section 4(f) evaluations. One covers projects that use historic bridges. The second covers projects that use minor amounts of land from public parks, recreation areas and wildlife and waterfowl refuges. The third covers projects that use minor amounts of land from historic sites. The fourth covers bikeway projects.

These programmatic Section 4(f) evaluations streamline the amount of interagency coordination that is required for an individual Section 4(f) evaluation. Interagency coordination is required only with the official(s) with jurisdiction and not with the US Department of Interior (DOI), US Department of Agriculture (USDA), or the Department of Housing and Urban Development (HUD).

• Nationwide Programmatic Section 4(f) Evaluation and Approval for Historic Bridges. In 1983, FHWA issued a programmatic Section 4(f) evaluation for use when there are no feasible and prudent alternatives to the use of certain historic bridge structures, and all possible planning to minimize harm resulting form such use has taken place.

  The PA may be applied to projects that meet the following criteria:

  • The bridge is to be replaced or rehabilitated with Federal funds
  • The project will require the use of a historic bridge structure, which is on or is eligible for listing on the NRHP
  • The bridge is not a National Historic Landmark
  • Agreement has been reached on any Section 106 issues

In order for the programmatic 4(f) evaluation to be applied to a project, studies and consultations on the project must demonstrate that the "do nothing" alternative, building a new bridge at a different location, or rehabilitating the existing bridge without affecting its historic integrity are not feasible and prudent. In addition, all possible measures to minimize harm through mitigation must be taken.

• Nationwide Programmatic Section 4(f) Evaluation for Projects with Minor Involvements with Historic Sites. In 1986, FHWA issued a nationwide programmatic Section 4(f) evaluation for projects that improve existing highways and use minor amounts of lands from historic sites that are adjacent to existing highways. Adherence to the procedures outlined in the PA satisfies the requirements of 4(f) for all projects that meet specific applicability criteria, and no individual Section 4(f) evaluations need to be prepared for such projects.

  Project types eligible under the PA include "4R" work, safety and operations improvements, bridge replacements on existing alignment, and construction of additional lanes. The project must not require the removal or alteration of historic buildings, structures, or objects; or the disturbance or removal of archeological resources that are important to preserve in place. The impacts on the Section 4(f) site must be considered minor. The SHPO must agree, in writing, with the assessment of impacts.

  In order for the programmatic 4(f) evaluation to be applied to a project, studies and consultations on the project must demonstrate that the "do nothing" alternative, "improvement without using the adjacent Section 4(f) lands," or "alternatives on a new location" are not feasible and prudent. In addition, all possible measures to minimize harm through mitigation must be taken.

• Nationwide Programmatic Section 4(f) Evaluation for Projects with Minor Involvement in Parks. In 1986, FHWA issued a nationwide programmatic Section 4(f) evaluation for projects that improve existing highways and use minor amounts of 4(f) lands. Adherence to the procedures outlined in the PA satisfies the requirements of 4(f) for all projects that meet specific applicability criteria, and no individual Section 4(f) evaluations need to be prepared for such projects.

  Project types eligible under the PA include "4R" work, safety and operations improvements, bridge replacements on existing alignment, and construction of additional lanes and the amount of 4(f) land taken cannot exceed specified maximums that vary depending on the total size of the Section 4(f) site.

  In order for the programmatic 4(f) evaluation to be applied to a project, studies and consultations on the project must demonstrate that the "do nothing" alternative, "improvement without using the adjacent Section 4(f) lands," or "alternatives on a new location" are not feasible and prudent. In addition, all possible measures to minimize harm through mitigation must be taken.

• Nationwide Section 4(f) Statement for Bikeway or Walkway Construction Projects. In 1977, a national programmatic-style approach was approved for processing 4(f) evaluations for independent bikeway or walkway construction projects without an individual 4(f) assessment. The agreement applies only to independent bikeway or walkway construction projects that require the use of recreation and park areas. Bicycle or pedestrian facilities that are incidental items of construction in conjunction with highway improvements having the primary purpose of serving motor traffic are not included. The official having specific jurisdiction over the Section 4(f) property must give his approval in writing that the project is acceptable and consistent with the designate use of the property and that all possible planning to minimize harm has taken place.

6.3 Ohio Programmatic 4(f) Agreement

Ohio DOT (ODOT) has developed a programmatic 4(f) Agreement that will reduce the processing time and streamline procedures for certain Federal actions involving temporary and, or permanent occupation of minor amounts of publicly owned parks, recreation areas, wildlife or waterfowl refuges or historic sites that are adjacent to existing highways. The agreement allows ODOT to assure compliance with 4(f) on behalf of FHWA for projects that are covered under the four National 4(f) Programmatic Agreements and are classed as Categorical Exclusions.

Where it has been determined that there is a Section 4(f) use and that the project meets specified requirements, ODOT will submit appropriate documentation to FHWA. FHWA reserves the right to object to individual project determinations up to 15 days after receipt of documentation. After submission of the documentation described in this agreement, ODOT may continue to process the project as if it were approved, including requests for authorization of Federal funding. Under the agreement, ODOT must conduct training of District staff, and FHWA will monitor ODOT's documentation records annually.

6.4 Challenges and Next Steps

Streamlining of the 4(f) program remains a nebulous concept despite many years of implementation. The national 4(f) programmatics do not appear to be widely used by states, nor do they create the same level of delegation in comparison to delegation approaches underway for Section 106 in many states. The proposed Ohio agreement has potential to enhance the effectiveness of the national 4(f) programmatics; however, the extent of its benefits are not yet clear. Given the level of concern about 4(f) issues expressed by DOTs, greater focus on developing meaningful delegations of authority in this area is warranted.

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7. Legal Context for Delegation

This chapter provides an overview of the legal context for delegation within the environmental review process for transportation projects. The legal context is important because it helps to explain the role that delegation can play; the constraints on delegation; and the opportunities that may exist to take greater advantage of delegation as a tool for expediting the environmental review process. The chapter is organized in three parts:

• Part 7.1 reviews the various forms of delegation and explains how delegation relates to the larger statutory and regulatory framework that governs an agency's activities.
• Part 7.2 examines the existing legal framework for delegation of categorical exclusion (CE) approval authority under NEPA. It focuses, in particular, on FHWA regulations and policies encouraging the programmatic approval of activities that otherwise would require a "documented CE" under 23 C.F.R. § 771.117(d).
• Part 7.3 examines the existing legal framework for various types of delegation under other laws, including Section 106 of the National Historic Preservation Act; Section 404 of the Clean Water Act; Section 7 of the Endangered Species Act; and Section 4(f) of the Department of Transportation Act.

7.1 Overview

As used in this report, "delegation" means granting a State or local government the authority to carry out functions that otherwise would be performed by a Federal agency. Delegation in this broad sense exists in several different forms in the FHWA program. The different types of delegation can be categorized as follows:

Legal Basis for Delegation - Legislative vs. Administrative

The legal basis for delegation can be legislative or administrative. In general, legislation allows for more broad-based and permanent forms of delegation, while administrative action allows for more limited delegation. However, experience has shown that administrative actions - e.g., programmatic agreements - can bring about substantial expansions in the day-to-day operational authority of States and local governments. As a result, it is important to consider administrative actions when considering potential opportunities for increased delegation.

Legislative Delegation. Legislative delegation exists when Congress has specifically provided, in statute, for the delegation of Federal authority to a State or local agency.

Examples: Delegation of wetlands permitting authority under Section 404 of the Clean Water Act; delegation of NEPA responsibilities from the Department of Housing and Urban Development to local governments under the Community Development Block Grant ("CDBG") program; delegation of NEPA responsibilities from FHWA to State transportation agencies under legislation that was proposed in 1998 as part of TEA-21, but was never adopted.

Advantages: Legislation allows complete transfer of decision-making authority to State or local level, subject only to the power of the Federal agency to revoke the delegation.

Disadvantages: Legislative changes are more difficult to achieve; less flexible; full delegation of an entire program may not be desirable because of cost, administrative burdens.

Administrative Delegation. Administrative delegation exists when a Federal agency allows State or local governments to assume responsibility for specific functions under Federal oversight - i.e., the Federal agency hands over day-to-day operational responsibilities for a specific set of tasks, but remains involved in an auditing role to ensure compliance with Federal legal requirements.

Examples: Delegation of CE approval authority to State transportation agencies under programmatic agreements; delegation of Section 106 consultation and decision-making functions under programmatic agreements.

Advantages: Administrative delegation allows transfer of functions to State and local governments in the absence of specific legislative authorization; provides increased flexibility and efficiency while maintaining Federal oversight and accountability.

Disadvantages: Lack of specific legislative authority limits the extent of the delegation that can legally be allowed.

Functions Delegated - Decision-Making vs. Consultation

As noted earlier, delegation involves the transfer of certain functions from the Federal level to the State or local level. The specific types of functions that can be transferred include both decision-making and consultation.

Delegation of Decision-Making Functions. In most cases, delegation involves the transfer of decision-making functions. Typically, the decision-making authority is delegated subject to numerous conditions, and is delegated only for a specifically defined category of projects or actions. Decision-making authority that is delegated pursuant to legislation (e.g., Section 404 permits) tends to be broader than decision-making authority that is delegated solely through administrative actions, such as programmatic agreements.

Examples: Delegation of SHPO responsibilities from SHPO to State DOT in Vermont Section 106 programmatic agreement; delegation of FHWA Section 4(f) authority under Ohio programmatic agreement.

Advantages: Delegation of decision-making functions can reduce the processing time for important project decisions, by reducing the number of separate offices or individuals whose approval is needed.

Disadvantages: Decision-making functions cannot be fully delegated in the absence of specific legislative authorization.

Delegation of Consultation Functions. Delegation also can involve the transfer of certain consultation functions. Delegation of these functions can occur as a result of legislative or administrative action.

Examples: Section 106 programmatic agreements allow State transportation agencies to stand in place of FHWA for purposes of Section 106 consultation (except with Indian tribes); Section 7 regulations allow project applicants to stand in place of FHWA for purposes of Section 7 endangered species consultation.

Advantages: Delegation of decision-making functions can reduce the processing time for important project decisions, by reducing the number of separate offices or individuals whose approval is needed.

Disadvantages: Consultation functions cannot be fully delegated in the absence of specific legislative authorization; in addition, in some cases, agencies outside FHWA must approve this type of delegation (e.g., the Advisory Council's approval is needed for a Section 106 programmatic agreement).

7.2 Delegation of CE Approval Authority under NEPA

The FHWA regulations establish two categories of CEs. The first category consists of actions that automatically qualify for CE status; these actions are often referred to as "automatic CEs."³ The second category consists of actions that qualify for CE status only after documentation has been prepared demonstrating that they meet the CE criteria; actions in the second category are often referred to as "documented CEs."⁴

Actions that qualify for an "automatic CE" can proceed without any project-specific FHWA review or approval. However, in the absence of a programmatic agreement, each "documented CE" must be individually approved by FHWA before the project proceeds. The review time associated with documented CEs, many of which are routine projects, places a significant administrative burden on FHWA staff, while also impeding State transportation agencies' efforts to meet project-delivery objectives.

To expedite the approval of documented CEs, FHWA issued a guidance document on March 30, 1989, entitled "Categorical Exclusion (CE) Documentation and Approval."⁶ The 1989 CE guidance memorandum presents a "programmatic model . . . which any Division Office could employ or modify for its own purposes to more expeditiously and efficiently document and approve CEs which qualify for a CE determination under 23 CFR Part 771.117(d)." Key elements of that guidance include:

• "[I]ndividual project-by-project review, documentation, and approval are not required by the Division Office, since the programmatic would constitute a one-time advance documentation and approval." ⁷
• "[T]he Division Offices would need to make periodic reviews of the States' procedures and documentation to ensure that all potential environmental impacts are being considered and compliance with all applicable law, regulations, executive orders, etc., is being properly documented."⁵
• "A number of approaches may be used . . . to document the CE classification. . . . . CE classifications could be individually approved using a 'batch' process, whereby a number of similar projects, e.g., bridge replacements, are reviewed, documented, and approved at one time." ⁸

The 1989 CE guidance established "significance criteria" that States were required to consider when deciding whether an action qualified for a documented CE. As originally defined in 1989, the significance criteria were tightly restricted the eligibility of projects for documented CEs. Under te 1989 guidance, a project was considered to have significant impacts - and thus was ineligible for a CE - if the project involved:

• any use of Section 4(f) property
• any adverse-effect findings by the SHPO
• any U.S. Coast Guard construction permits
• any Section 404 wetlands permits
• any work in wetlands
• any work in a regulatory floodway
• any work in an areas where threatened or endangered species are present
• any work in, across, or adjacent to a designated wild or scenic river
• any change in access control

Since 1989, FHWA appears to have relaxed its significance criteria to some degree, allowing a somewhat broader range of projects to qualify for programmatic CEs. For example, the 1989 guidance document required project-specific documentation and FHWA approval for a project that involved "any work in wetlands." However, recent programmatic agreements provide greater flexibility - e.g., a recent agreement with Ohio DOT provides programmatic CE approval for actions that involve wetlands impacts of 5 acres or less.⁹ (See below for further discussion of the Ohio agreement and other examples).

While FHWA has gradually expanded the types of projects that can qualify for programmatic CEs, FHWA remains reluctant to grant a programmatic CE for any project that requires consultation or permits under other laws.¹⁰ In fact, it appears that the need to comply with other regulatory requirements, such as Section 106 or Section 4(f), may post the single greatest obstacle to the further expansion of programmatic CE approvals

7.3 Delegation Under Other Laws

Just as delegation has been used to streamline approval of CEs, it also has the potential to streamline compliance with other environmental laws that apply to transportation projects, such as Section 404 of the Clean Water Act, Section 106 of the National Historic Preservation Act, Section 7 of the Endangered Species Act, or Executive Order 12,898 on environmental justice.

The main challenge in attempting to delegate authority under other laws is determining which particular functions - or combination of functions - can legally be delegated. The following discussion explains how these issues affect the development of programmatic agreements in four areas: Section 106, Section 4(f), Section 7, and Section 404.

Section 106. Delegation of authority under Section 106 has taken place primarily through administrative actions - in particular, programmatic agreements, which are specifically authorized under the Section 106 regulations. (It is important to bear in mind that a Section 106 programmatic agreement requires the approval of the Advisory Council on Historic Preservation, and thus is not solely within the control of FHWA).

• Delegating Consultation Responsibilities. The Section 106 regulations impose extensive consultation obligations on the "agency official," which by definition is the federal agency - i.e., FHWA. The only way for the agency official to delegate these consultation responsibilities to an applicant (e.g., a State transportation agency) is through a programmatic agreement that has been approved by the Advisory Council on Historic Preservation. Thus, a programmatic agreement can greatly reduce the consultation burdens on FHWA, particularly for routine projects, but only if the agreement is approved by the Council.
• Delegating Decision-Making Responsibilities. The Section 106 regulations themselves do not specifically provide for the shifting of decision-making responsibility from a SHPO to a state transportation agency or from a federal agency to a state. However, the regulations do allow flexibility for standard Section 106 procedures to be displaced by procedures set forth in a programmatic agreement, if the agreement is approved by the Council. In one case (the Vermont programmatic agreement), the Council has allowed a programmatic agreement to be used to shift decision-making authority, subject to numerous limitations. (Importantly, under the Vermont agreement, an objection from any consulting party requires the normal Section 106 process to be followed, including full participation by the SHPO.)

Section 7. Programmatic agreements also can be used to streamline consultation under Section 7 of the Endangered Species Act. To date, there has been relatively little progress on this front. But recent guidance issued by the U.S. Fish and Wildlife Service encourages the development of programmatic approaches to Section 7 consultation for transportation projects, so there may be increased attention to opportunities for delegation in this area.¹¹ Potential avenues include:

• Delegation of Consultation Responsibilities. Existing Section 7 regulations allow a federal agency, such as FHWA, to name a project applicant, such as a State transportation agency, as a "designated non-Federal representative," for purposes of Section 7 consultation. This existing regulatory provision minimizes the need for a programmatic agreement in this area. Moreover, the U.S. Fish and Wildlife Service has made it clear that it expects for the federal agencies to remain actively involved in any consultation process.
• Delegation of Decision-Making Responsibilities. Existing Section 7 regulations allow the use of programmatic biological assessments (PBA), as a means of addressing complex or recurring issues. As discussed earlier in this paper, PBAs do not fully delegate decision-making authority from the Federal to the State level. However, PBAs can be used to eliminate the need for project-specific reviews and approvals by the U.S. Fish and Wildlife Service for routine projects. Thus, the practical effect of a PBA is to vest decision-making authority in a State official for most routine projects.

Section 4(f). The statutory authority and responsibility for ensuring compliance with Section 4(f) rests with the USDOT, and cannot be delegated to State transportation agencies without a change in the law itself. However, within the existing law, FHWA has recently approved the a form of limited delegation of Section 4(f) decision-making authority to a State transportation agency (Ohio DOT), under which the State can make Section 4(f) decisions subject to the right of FHWA to overturn them within a 15-day review period. This newly recognized flexibility does not fundamentally change the role of the State or FHWA; the decision-making responsibility still ultimately rests with FHWA. However, this model may yield significant benefits by reducing processing times for Section 4(f) approvals.

Section 404. The legislation that governs the Section 404 program specifically authorizes the delegation of Section 404 permitting authority from the Federal level to individual States. To date, only two States have received delegated authority under this program. Thus, a substantial opportunity for additional delegation exists in this area, if other States are willing to assume the responsibilities and burdens associated with the implementation of the wetlands permitting program.

7.4 Summary of Legal Issues

• Delegation involves the transfer of certain functions from a Federal agency to a State or local government. Delegation can occur in a variety of forms.
• The legal basis for delegation can be legislative or administrative. Legislative delegation generally is more broad-based and permanent, however, legislation is sometimes used to initiate a pilot program that later gets implemented broadly. (As was the case for creation of FAA's block grant program described in Appendix A.) Administrative delegation generally is more limited in scope, but can provide important benefits.
• Programmatic agreements are instruments for achieving administrative delegation. In other words, a programmatic agreement typically is used to achieve a degree of delegation when there is no legislative authority for achieving full delegation.
• Delegation can involve the transfer of both decision-making functions and consultation functions. Decision-making functions involve tasks such as determining whether a particular project qualifies for a CE. Consultation functions involve tasks such as coordinating with other agencies, conducting public meetings, and carrying out other aspects of a public involvement program. Both types of delegation are valuable and can be implemented separately or together.
• Delegation, if implemented successfully, enables both Federal and non-Federal agencies to use their resources more efficiently. However, delegation does not change the basic legal requirements that must be satisfied - it simply shifts responsibility for meeting those requirements from one agency to another. Therefore, while delegation can speed up processing times, it should maintain the basic levels of protection provided by existing laws.

³ See 23 C.F.R. § 771.117(c)
⁴ See 23 C.F.R. § 771.117(d)
⁵ Memorandum from Ali F. Sevin, Director, Office of Environmental Policy, FHWA, to Regional Federal Highway Administrators, "Categorical Exclusion (CE) Documentation and Approval" (Mar. 30, 1989) (available on the Internet at http://www.fhwa.dot.gov/environment/guidebook/vol2/doc7e.pdf).
⁶ Id. at 1.
⁷ Id. at 1.
⁸ Id. at 1-2.
⁹ Programmatic Categorical Exclusion Agreement between the Federal Highway Administration and the Ohio Department of Transportation (June 1, 2000) ("FHWA-Ohio CE Programmatic Agreement").
¹⁰ See FHWA-Ohio CE Programmatic Agreement (discussion of CE Level 3 vs. CE Level 4).
¹¹ U.S. Fish and Wildlife Service, "Department of Transportation Programmatic Consultation Guidance" (available on the Internet at http://endangered.fws.gov/consultations/dot-guidance.html).

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8. Conclusions

This quick turnaround NCHRP 20-7 study provides a first look at states' use of environmental delegation to streamline the environmental review process for routine transportation projects. The findings are promising. The initiatives profiled show that a variety of different kinds of agreements are being developed by states throughout the country, and that the benefits they offer are compelling, including

• Better predictability in the environmental document process,
• Time and cost savings in the project development process for DOTs, and
• Opportunities for transportation and natural resource agencies to reprioritize staff activities away from review of routine projects and towards more critical ones.

But, the study shows that implementation of agreements that delegate authority is fragmented - initiatives are implemented state-by-state and issue area-by-issue area on an ad-hoc basis, and the level of delegation varies considerably. There is no focused national vision, shared across federal agencies involved in the NEPA process that fosters greater delegation of environmental responsibilities by DOTs that have a proven environmental track record.

Delegation is a powerful tool for improving efficiency of the environmental review process for transportation projects. However, in developing agreements, it is important to work within the limits of the existing statutory and regulatory framework, and to tailor agreements to take maximum advantage of the flexibility allowed by that framework while also ensuring compatibility with all statutory and regulatory requirements.

8.1 Factors for Achieving Successful Delegation

The delegation agreements reviewed in this study range in extent from agreements that establish complex, state-run programs such as Michigan's fully delegated wetlands permitting program and the Vermont Agency on Transportation's Section 106 program, to more routine agreements that expedite selected categories of projects or a component of decision making. To a large extent, federal law, regulations, and guidance prescribe the boundaries of agreements; however, across environmental issue areas, four basic ingredients appear to be pre-requisites for successful delegation:

• DOTs must be willing to provide technical staff expertise and resources. If states are to take on the responsibilities of federal agencies, they must have appropriate expertise, training, and resources. In most of the cases profiled, opportunities have come about as DOTs have invested in building environmental staff expertise. Those agencies that have skilled environmental divisions are also the same agencies that have been able to achieve greatest delegation. The extra cost of additional staff and training is offset by the benefits of quicker project development.
• There must be a history of trust and cooperation among agencies. At the core of every effective agreement is a strong prior working relationship between participating agencies that fosters trust on all sides that commitments going forward will be honored. This trust in part comes from top-level commitment to policies that keep agencies on course even as inevitable changes in staff occur.
• Agencies must be willing to dedicate time up-front. No agreement can be developed without willingness by all sides to work together over an extended period of time. Most agreements require extensive discussion, even if models from other states are available. While exact timeframes for developing agreements vary, a two or three year timeframe to complete negotiations and finalize an agreement is not uncommon. Full delegation, such as Vermont's Section 106 process or Michigan's 404 permitting process may take longer to negotiate.
• Checks and balances are in place. A system of checks and balances needs to be in place to ensure that the agreement is operating as agreed, including opportunities to revisit the agreement and ways to verify that the DOT is implementing its responsibilities appropriately.

These key ingredients for success demonstrate that environmental delegation is a two-way street. The benefits of environmental delegation do not come without costs in terms of staff and resource commitments by DOTs. In many states; however, these commitments are already being made as DOTs move towards implementing an "environmental stewardship" ethic, and environmental delegation and environmental stewardship are undoubtedly closely linked.

8.2 Next Steps

This study provides a first look at the effectiveness of environmental delegation achieved through the use of programmatic agreements and other measures. Potential Next Steps include:

1. More detailed analysis of what is already working. More research would help to build a comprehensive understanding of approaches underway across all states and in a full array of environmental issue areas. A suitable research program could be developed by NCHRP, AASHTO, and FHWA.
2. A coordinated effort to encourage greater use of existing approaches. A dedicated clearinghouse for gathering and disseminating information about delegation is needed to provide resources such as detailed inventories of programmatics in use across states, case studies of innovative approaches, and copies of individual agreements. AASHTO's newly created Center for Environmental Excellence could help fulfill this role.

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Appendix

Delegation of Oversight Management by Other Federal Agencies

FHWA has a strong track record in delegating to states responsibility for administering non-environmental aspects of the federal-aid highway program, such as monitoring of engineering and financial reimbursement processes. Likewise, other federal agencies, such as HUD, FAA, and the Forest Service have developed streamlined and delegated approaches for complying with NEPA and other environmental laws. These approaches provide potential models for further delegating FHWA's environmental responsibilities to the states.

A.1. Delegation of FHWA's Project Management and Financial Oversight Responsibilities

Through a process often referred to as "certification acceptance," FHWA has delegated to states its responsibility, on all highway projects except major Interstate projects for ensuring that critical engineering standards are met throughout the project development process and that fiscal standards are met during the federal-aid highway cost reimbursement processes. Both of these are key components of the federal highway program and delegation is authorized in US Code and they offer potential models for similar delegation of FHWA's environmental responsibilities:

A.1.1. Project Management. Delegation of federal responsibility for project management oversight has occurred gradually since the 1950s. Section 106 of Title 23 USC, which governs federal project approval and oversight procedures and was most recently amended under TEA-21, provides considerable flexibility to individual states and FHWA division offices in reaching agreement on responsibilities for design; plans, specifications, estimates (PS&E); right-of-way certification statements (part of PS&E); contract awards; and inspections and final acceptance of Federal-aid highway projects. States are specifically barred from assuming responsibility for other Federal actions required under laws outside of Title 23, such as NEPA.

Under Title 23, states must assume the responsibilities noted for all non-NHS Federal-aid highways unless the state determines that such assumption is not appropriate. For projects on the NHS, but not on the interstate system, the state may assume the responsibilities noted unless the state or the FHWA determines that such assumption is not appropriate. For projects on the interstate system all states have the opportunity to assume the responsibilities noted for all 4-R projects and new or reconstruction projects less than $1 million in cost. FHWA and the state must enter into an agreement documenting the types/classifications of projects for which the State will assume the responsibilities of FHWA under Title 23. This is a significant provision that requires specific documentation of the respective oversight responsibilities of both the State and FHWA for Federal-aid highway projects.

A.1.2. Project Finance. Since the 1960s, FHWA in cooperation with the states has also undertaken an effort to delegate financial responsibilities. At the start of the interstate era, project financial records of all federal-aid projects were audited before vouchers were paid. During the 1960s and early 1970s, FHWA worked with every state to upgrade their accounting systems. One by one FHWA approved state financial management procedures permitting vouchers to be paid on receipt. More recently this process has been further streamlined and made electronic. Now, states accounts are electronically credited with vouchered amounts on the same day the electronic vouchers are received.

A.2. Delegating Environmental Responsibilities at FAA

A small number of states participating in FAA's Airport Improvement Program (AIP) block grants pilot are delegated full responsibility for preparing EAs under NEPA, and for working directly with federal resource agencies on compliance with other environmental laws like the Endangered Species Act or the National Historic Preservation Act. FAA's delegation of oversight responsibility eliminates a layer of federal oversight from the project development process. The FAA's AIP block grants provide an interesting model for transfer of responsibilities under FHWA's funding programs.

The Airport Improvement Program (AIP) is the main federal funding source for non-primary public use airport capital improvements (i.e. excluding major airports like Chicago's O'Hare airport). Funding under the AIP is administered via grants, overseen by the Federal Aviation Administration (FAA), that provide 90 percent federal match. In fiscal year 2000, a total of $__ in project funding was provided under the AIP. Typical AIP-funded projects include land acquisition; site preparation; construction, alteration, and repair of runways, taxiways, aprons, and roads within airport boundaries; installation of airport lighting and navigational aids.

Ordinarily, the FAA selects and oversees individual AIP projects, including environmental documentation and analysis, through its network of regional offices; however, nine states (Missouri, Illinois, North Carolina, New Jersey, Michigan, Wisconsin, Pennsylvania, Tennessee, and Texas) receive AIP funding in the form of block grants through a pilot program that was begun in 1989. Under the AIP block grant program, states are delegated all FAA's compliance responsibilities related to project selection, planning, real estate acquisition, design, and construction via a Memorandum of Agreement. Delegation of these functions expedites the project funding and implementation process by reducing day-to-day federal oversight and gives states greater freedom to determine which projects are selected.

A few AIP block grant states, such as Wisconsin, that have state-level NEPA-equivalent laws are also delegated FAA's responsibility for preparing EAs and they have full authority to act on FAA's behalf during the range of consultations with Federal and state resource agencies. In other AIP block grant states, such as Illinois, that do not have a NEPA-equivalent state law, FAA retains final sign-off on EAs. In all block grant states, EISs must be prepared in coordination with FAA.

Wisconsin, which joined the block grant program in 1994 and has state responsibility for development of EAs, has not found that delegation has enabled significantly faster project development, primarily because FAA is not a major source of delay in approving environmental documents. Illinois confirmed that they have not observed FAA to be a major source of delay in approving documents. Both agencies indicated that review of environmental documents by other federal and state resource agencies is a more significant source of delay.

A.3 Forest Service - Programmatic and Batched Section 7 Consultations

The Forest Service manages 191 million acres of national forests and grasslands for the sustained yield of renewable resources such as water, forage, wildlife, wood, and recreation. Many Forest Service activities have potential for significant impacts on threatened and endangered species. When complying with ESA requirements, the agency often relies on programmatic or batched Section 7 consultations with the FWS as a more efficient alternative to individual consultations:

• Programmatic consultations are used to achieve Section 7 compliance for entire categories of activities, such as forest road maintenance, on a one-time basis.
• Batched consultations are used to achieve Section 7 compliance for a set of specific projects that feature similar characteristics, such as campground development in a specific National Forest.

Both batched and programmatic Section 7 consultations eliminate the need for time consuming individual project consultations. In addition, they provide better cumulative assessments of the impacts of Forest Service activities on threatened and endangered species.

A recent Forest Service Section 7 consultation for vegetation density reduction projects, which reduce the risk of wildfires, illustrates the combined use of batched and programmatic approaches to process multiple projects quickly. Following the 2000 wildfire disaster in Los Alamos, New Mexico, the Forest Service's Region Three began looking for ways to influence fire behavior in wildland-urban interface (WUI) areas to protect life, property, and natural resources, including rare species habitat by reducing fuel loads.

In its biological assessment, the Forest Service batched 283 separate fuel reduction projects, covering 1.9 million acres in 11 National Forests, and established eight programmatic region-wide vegetation density reduction techniques, each targeted to particular vegetation characteristics.

The biological assessment analyzed the effects of implementing vegetation density reduction techniques in each WUI area. To facilitate this analysis, all 283 WUI areas were mapped and entered into a Geographic Information System (GIS) database along with data on threatened, endangered, and proposed species habitats and occurrences to determine where overlaps occurred. The GIS database provided a thorough quantitative framework for judging the effects of the batched projects and programmatic measures.

The Forest Service estimates that for this Section 7 consultation alone, the combined batched/programmatic approach saved over 100 person years, or $5 million in costs in comparison to conducting individual Section 7 consultations on a project-by-project basis.

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