National Environmental Streamlining Initiatives

Proceedings of the
National Environmental Streamlining Training Workshop for Federal Agencies

St. Louis, Missouri
November 28-30, 2000

January 2001

Prepared by:
U.S. Department of Transportation
Research and Special Programs Administration
Volpe National Transportation Systems Center
Cambridge, Massachusetts

Prepared for:
U.S. Department of Transportation
Federal Highway Administration
Office of NEPA Facilitation
Washington, D.C.

Executive Summary

From November 28-30, 2000, more than 190 representatives from 12 Federal agencies, state Departments of Transportation (DOTs), and transportation and environmental groups participated in the first National Environmental Streamlining Training Workshop held in St. Louis, Missouri. The meeting was sponsored by the Federal Highway Administration (FHWA) and the Interagency Environmental Streamlining Group. Environmental streamlining is a means of developing and implementing coordinated reviews for the advancement of highway and transit projects. This event was targeted at sharing the best practices in environmental streamlining nationwide.  The workshop highlighted Federal agencies’ perspectives on environmental streamlining from Headquarters and field representatives and provided a forum for open interagency discussion.  In addition, participants recommended refinements to the Environmental Streamlining Action Plan.

Over the course of the workshop, participants met in plenary sessions and in breakout groups " sometimes with their agency, and other times to discuss best practices on particular topics.  Some of the discussions covered how the agencies would revise and refine the Action Plan, responsible and effective management of the National Environmental Policy Act (NEPA) process, cross-agency strategies and techniques for maximizing resources, effective mitigation agreements, what customers expect from the Federal resource agencies, and development of national dispute resolution procedures.

The main points that emerged during the conference reinforce the Action Plan and show that more work needs to be done to implement these practices in the field.  The main themes discussed during the workshop include:

• Field staffs need to buy in to the process.  Agencies need to be committed to being involved in the streamlining process. 

• Leadership is needed at many levels, but Headquarters offices need to set the tone for each agency.

• Alternate dispute resolution processes are needed and should be used as a tool to resolve issues.

• Best practices information and guidance needs to be communicated to resource agencies continuously and consistently. 

• Field staff want outreach and training (interagency training and regional workshops).

• Communication and early involvement is critical to the success of the NEPA process.

• Better methods of benchmarking performance are needed.

The workshop was a great success in terms of opening and strengthening lines of communication among and within Federal agencies.  At the conclusion of the event, several participants suggested that similar forums should be held at the state and local levels throughout the nation.  

Although the workshop was primarily aimed at Federal agency representatives, transportation and environmental interest groups were invited to attend.  The House of Representatives and U.S. Senate staffs, various state DOTs, Environmental Defense, and Defenders of Wildlife participated and shared their views with the Federal representatives.

Table of Contents

Introduction

Opening Remarks

Leadership Perspectives

Clarifying Expectations and Commitments

Mastering the Environmental Streamlining SATs: Strategies, Approaches, and Techniques

What Do Our Customers Want From Us?

Building a National Toolbox

Identifying Next Steps

Closing Sessions

Next Steps

Optional General Session - Alternative Dispute Resolution Procedures

List of Acronyms

Introduction

Section 1309 of the Transportation Equity Act for the 21^st Century (TEA-21) requires the Secretary of Transportation to develop and implement a coordinated environmental review process for highway and transit projects.  In July of 1999, seven Federal agencies " the US Departments of Transportation (USDOT), Interior, Agriculture, Commerce, and Army Corps of Engineers (USACE), the Environmental Protection Agency (EPA), and the Advisory Council on Historic Preservation (ACHP) " entered into a National Memorandum of Understanding (MOU).  This MOU commits the agencies to streamline environmental review processes in accordance with TEA-21 and other relevant environmental statutes in ways that reinforce their Federal responsibility to protect the environment.  The signatory agencies joining the USDOT in this agreement are responsible for reviewing environmental documents prepared under NEPA for a highway construction or transit project, and/or are required to issue a permit, license, and opinion relating to the project. By this MOU, the Federal agencies agreed to work cooperatively to reduce transportation project delays while enhancing and protecting the environment.  Agency representatives meet monthly and have worked to convert the National MOU into the Environment Streamlining Action Plan (ESAP).  The ESAP draft identifies five strategies, operating principles, and specific actions.  The headquarters representatives coordinate efforts with field contacts.     

• Program Efficiency: Establish timely, and where feasible, concurrent project reviews.  This requires active and rigorous coordination among Federal, state, and local partners through early, sustained, and continuous involvement of Federal and state resource agencies.
• Flexible Mitigation: Avoid environmental impacts where possible and use compensation, as well as region-wide or area-wide mitigation activities advanced by improved data inventories, and the development of programmatic agreements.
• Resource Management: Negotiate formal agreements among state and Federal partners.  Allocate resources to support early involvement, adequate staffing, interagency training, and information dissemination requirements through mutually agreed upon interagency priorities.
• Alternate Dispute Resolution: Keep projects on schedule through the use of conflict avoidance and resolution practices.
• Measuring Continuous Improvement: Measure continuous improvement and progress through best practices and evaluation techniques such as benchmarking, and performance standards.  Modify approaches to streamlining based on results. 

The Federal agencies have been working with field offices and stakeholders to revise the ESAP.  In an effort to advance the implementation of streamlining and to refine the action plan, the Federal Highway Administration (FHWA) on behalf of National Interagency Streamlining Group hosted the National Environmental Streamlining Training Workshop from November 28-30, 2000, in St. Louis, Missouri.  Participants were charged with setting a course of action for advancing efficient, responsible, and environmentally sound streamlining commitments.

Opening Remarks

The 3-day conference was kicked off with welcoming remarks from Lucy Garliauskas and Fred Skaer of the FHWA Office of NEPA Facilitation.  Ms. Garliauskas welcomed all Federal agency representatives and other attendees to the training workshop.  She stated that the purpose of the workshop was to bridge the environmental streamlining gap between Headquarters and agency field offices.  This would be done by advancing the already existing MOU and Action Plan to the next step of producing tangible results.  Ms. Garliauskas called upon the participants to find some common ground for advancing what may appear to be non-intersecting missions of seven Federal agencies and the distinct objectives of environmental and transportation laws.  She noted, "if we are truly open to understanding each other’s missions we will come to respect each other’s roles and responsibilities.  Over the years, many of us have learned that respect is the foundation of trust, and trust opens the door to cooperation.  Cooperation leads to results."  Mr. Skaer concluded the opening address by stating that with interagency collaboration at this conference, and during everyday work, environmental streamlining efforts will result in success. 

Leadership Perspectives

Two panels were assembled during this session, aimed at providing context for environmental streamlining at the national level, and helping attendees understand the different perspectives on environmental issues that each agency brings to the table.  This understanding is the starting point for agencies to find ways to streamline reviews while still meeting their responsibilities of environmental stewardship.   

The first panel included Kenneth Wykle, FHWA Administrator, and Dinah Bear, General Counsel for the White House Council on Environmental Quality (CEQ), who gave an overview of the philosophy on National Environmental Policy Act and Federal responsibilities under environmental streamlining.  Key points discussed were that early involvement of all parties is essential for success of environmental streamlining, and that there is a need to enhance coordination between Headquarters and the field staffs.  The second panel consisted of representatives from a number of Federal agencies discussing their mission, roles, and responsibilities under NEPA for transportation activities and environmental streamlining.  An overview of each agency’s role prepared the agencies for breakout discussions about their perceptions and expectations for their involvement in carrying out streamlining.   

Panel 1: Overview of the Philosophy on National Environmental Policy Act and Federal Responsibilities Under Environmental Streamlining

Kenneth Wykle

Mr. Wykle, FHWA’s Administrator, stated that most recently, there are new and greater concerns with the timeliness of projects.  Many people feel that the environmental review for projects taking 8 to 10 years is too long and that the FHWA needs to rethink how business is performed.  The environmental review process is a critical piece of the timeliness of a project and the FHWA wants to be able to deliver projects much quicker. 

Mr. Wykle noted that complying with environmental requirements is very complex because there are approximately 40 different statutes for the environment and 9 of these statues pertain to transportation.  A strong partnership is, therefore, critical to the success of environmental streamlining.  Mr. Wykle views the National MOU as a team effort to improve environmental streamlining.  The closing statement of the National MOU reads, "We will strive to ensure that transportation projects are protective of and more compatible with the natural and human environment and we commit to continuously improve and streamline the processes used to develop those projects."  By signing the MOU, FHWA made two commitments: 1) to reduce project delays, and 2) to protect and enhance environmental quality.  To monitor progress, the environmental protection performance must be tracked on an ongoing basis.  Mr. Wykle encouraged the lead Federal agency to take full advantage of the lead role that they provide to other agencies.  The lead Federal agency should ensure that NEPA documents meet all legal requirements and assure that all agencies and stakeholders are coming together.  The lead agency should use streamlining as a "NEPA umbrella" to address a broad range of environmental issues.

Mr. Wykle indicated that there were many keys to achieving the objectives of the MOU.  He feels that environmental streamlining requires an active partnership and the willingness to compromise.  All involved parties must identify issues and work together early in the process in order to fulfill the MOU commitments.  This involves the willingness to make compromises, focusing on the work at hand, fully participating in discussions, reaching agreements, and negotiating "give and take" on various issues.  In addition, the agencies must build upon successes and promote creative solutions to reduce environmental constraints.  He encourages greater use of the Internet as a way for agencies to share ideas and display best practices for their individual organizations.

The ESAP is an important tool in carrying out the MOU commitments.  Mr. Wykle agreed it is time to update the Action Plan based on experiences.  In closing, Mr. Wykle said he looked forward to examples of successful projects.  He felt the training workshop would be a catalyst to accelerate changes in environmental streamlining.  With improved environmental streamlining processes, projects will be delivered more quickly while still protecting the environment.

Dinah Bear

Dinah Bear, General Counsel for the CEQ, agreed that this was a good time for the workshop to occur.  She pointed out that environmental streamlining is not a new concept to the Federal government or to FHWA.  Since 1979, CEQ has been encouraging Federal agencies to use the scoping process to identify issues early in the NEPA process.  In addition, CEQ has encouraged Federal agencies to integrate other environmental regulations under the NEPA umbrella.  Ms. Bear cited the merger of compliance with NEPA and Section 404 of the Clean Water Act as an excellent way to achieve streamlining.  She encouraged the founding of additional programmatic approaches, such as MOUs and Memoranda of Agreement. 

Dinah Bear reflected on why in the year 2000 we are still struggling with environmental streamlining.  Despite the perception that environmental streamlining is failing, Ms. Bear said that environmental streamlining is in fact working.  The time for environmental review process for projects has become increasingly shorter over time.

Ms. Bear made two observations about Federal agencies’ struggle with streamlining.  First, early involvement of all parties is essential to succeed in meeting all the environmental requirements.  Second, while transportation and resource agencies continue to complain, she has observed a shift in the trend of complaints from agencies.  A decade ago, resource agencies were complaining about not being involved in the planning process.  Today, it is the action agencies who are complaining about resource agencies not being involved early in the planning process.  This lack of involvement is due primarily to limited resources.  Through TEA-21, Congress has tried to address this in part by allowing states to use Federal funds to reimburse resource agencies for efforts, such as early involvement, that expedite project reviews.  Ms. Bear encouraged everyone to actively try to pursue the resources they need rather than deciding that there are not enough resources available and never asking for them.

Ms. Bear identified the inability to resolve disputes in a timely manner as another obstacle to environmental streamlining.  In order to resolve this, she recommended that people be bold in their interactions during the environmental review process and articulate concerns about why the process is not going well.  Disputes between agencies and individuals need to be resolved quickly by elevating early and often.

In conclusion, Ms. Bear encouraged resource agencies to acknowledge the importance of transportation projects and advised everyone not to expect miracles; not all projects will be completed ahead of schedule.  She said that she looked forward to the openness and exchange of information that the workshop would bring.

Panel 2: Interagency Mission, Roles, and Responsibilities Under NEPA For Transportation Activities and Environmental Streamlining

Bill Fung, FHWA’s Wisconsin Division Administrator, moderated this session.  Panelists included: Mary Ann Naber, Program Analyst, ACHP; Fred Skaer, Director, Office of NEPA Facilitation, FHWA; Anne Miller, Acting Director, Office of Federal Activities, EPA; Jack Chowning, Program Manager for Regulatory Branch, USACE; Paul Brouha, Associate Deputy Chief for National Forest Systems, FS; and Don Peterson, Washington Office Transportation Coordinator, FWS.  Mr. Fung asked each panelist to present their leadership perspectives by describing their agency’s mission, responsibility under the NEPA process and role in transportation, and their philosophy on agency involvement in environmental streamlining. 

Mr. Fung opened the session with some general observations about the Midwest Regional MOU that has been signed by 13 Federal agencies, 6 state DOTs, and 8 state resource groups.  He indicated that the Midwest National Resources Administrative Group has begun to formally work together as a result of this MOU, but that it took 5-1/2 months to get all the needed signatures.

Mr. Fung felt that the creation of regional MOUs is a trend in environmental streamlining that began with the signing of the National MOU.  He indicated that there were tiers to these agreements, ranging from national to regional to state levels.  However, Mr. Fung believes that the substance of these agreements is at the local level, where they actually involve the people doing the work.  In some cases, when people at the local level may have good relationships with their counterparts at other agencies, a local MOU may not be necessary; however, in other situations, it can be very useful.

Mr. Fung then kicked off the panel discussion by posing a series of questions.  The first two questions included: 1) what is your agency’s mission and what is your agency’s responsibility under NEPA, and 2) what is your agency’s role in NEPA, and what is your agency’s role in carrying out environmental streamlining?  Panelists’ responses to these questions are presented in the following  table.  For the second question, Mr. Fung opened the discussion to other agencies present at the meeting; their responses follow the table.  Panelists were also asked a third question " how has the National MOU been shared with their respective local officers.  A short discussion of secondary and cumulative impacts also took place at the end of the session.  

Table: Questions 1 and 2, and Panel Responses

Additional agency perspectives on their roles, responsibilities, and on streamlining

FTA: Joe Ossi addressed the relationship between FHWA and FTA.  He stated that they were interconnected because many transit options are in the form of bus service, and buses need to operate over highways.  However, there are differences, in that FTA is largely a grant-making agency.  The purpose of these grants is threefold: 1) to provide mobility and relieve congestion, 2) to assist those not able to use automobiles on the Federal Highway System, and 3) to promote economic development, especially in urban areas. 

Tennessee Valley Authority (TVA): Harold Draper stated that TVA is the steward of the Tennessee Valley Watershed.  Under the authority of the Section 26(a) approval process, TVA issues permits for highways in 200 counties in 7 states (Alabama, Georgia, Mississippi, Tennessee, Kentucky, North Carolina, and Virginia) that flow into the TVA region.  It oversees 54 dams and issues land easements.  TVA has responsibility for dams on short highways, has authority for relocation of transmission lines, and owns railroads.

National Oceanic and Atmospheric Administration (NOAA): Steve Kokkinakis stated that NOAA conserves and wisely preserves coastal and marine resources.  They manage all federally protected fishery species in Economic Zone waters.  Thus, NOAA is involved in looking at the fishery management plans under the NEPA process for protected species such as salmon, whales, and turtles.  They also are involved with the fisheries council members, who allocate fishing quotas.  NOAA must therefore play a balancing act between fishing quotas and fishery preservation.

United States Coast Guard (USCG): Roger Wiebusch of the USCG Bridge Administration Program stated that the USCG was responsible for permitting bridges across navigable waters.  They have a NEPA oversight role in that they must provide for adequate navigation needs for the bridges and waters. The USCG works with the FHWA and prefers to get in early in the planning process to smooth potential difficulties.  They see themselves as both a lead agency and cooperative agency " leading when FHWA is not involved, and supporting when FHWA is involved.

Questions and Answers:  The following questions were asked by the audience.

How has the National MOU been shared with their respective local officers?

ACHP: Mary Ann Naber said the easy answer is that ACHP has no field offices.  However, the SHPOs are partners and the MOU was sent out over their broadcast system.  Additionally, the MOU will be a major agenda item at their national meeting in March.

FHWA: Fred Skaer stated that the MOU was sent out to all division offices, and that it was included in all performance plans.

EPA: Anne Miller said that the MOU is a subject of discussion at the highest levels of the organization and that the regional administrators are very aware of it.  The EPA has established interdisciplinary teams in the hopes of determining how best to implement the MOU.

USACE: Jack Chowning said that Headquarters sent out a 1-page memorandum describing the MOU, but admitted that they need to do more to distribute it to all affected parties.

FS: Paul Brouha said that they sent out a memorandum to all of the field offices; however, much more needs to be done, especially in terms of training and providing regional engineers.

FWS: Don Peterson stated that the National MOU needs to be translated into meaningful actions. The MOU was transmitted to all FWS offices invovled in transportation coordination issues.

What are EPA’s views on Secondary Cumulative Impacts?

A question was posed to Ms. Miller about EPA’s growing pressure to consider and mitigate secondary impacts.  A participant wanted to know if EPA felt that transportation was to be held responsible for these impacts.  Ms. Miller responded that, under CEQ regulations, projects are supposed to be looked at for direct and indirect impacts.  It used to be that only direct impacts were examined, but 10 years ago it was recognized that indirect and cumulative impacts were just as important.  She noted that with highway projects, the secondary impacts are relatively hard to assess because it is not always clear whether building highways leads to more development, or if development creates the need for more highways.  Ms. Miller further noted that this will be even more difficult in the future because of the changing demographics and growing populations.  She stated that secondary impacts need to have more attention paid to them.  Ms. Miller believes that, while it was admittedly hard to judge who was responsible for what share of the impact, it should definitely be considered in the planning process.

Mr. Skaer, Director of FHWA Office of NEPA Facilitation, stated that there was certainly room for reasonable people to disagree on how to disclose these issues.  He noted that, in cases where the analytical process was not well developed, agencies should take advantage of the lead agency’s role.  Mr. Skaer stated that FHWA would not be true to their mission if they never mitigated secondary impacts; however, they should not be viewed as the "deep pockets."  His feeling was that there needed to be partnerships in determining a reasonable sharing of mitigation costs on a case-by-case basis. 

Clarifying Expectations and Commitments

During this portion of the conference, attendees met with other representatives from their agency in breakout groups and later made a presentation to the plenary session on their groups’ findings. Each group was charged to discuss their agency’s role in environmental streamlining and their expectations, as well as what is expected of other agencies.  Each agency was asked to identify successful and unsuccessful practices of environmental streamlining with respect to their agency’s responsibilities.  The goal of the session was to ensure that all agency streamlining contacts have a clear understanding of environmental streamlining and knowledge of their agency’s responsibility to advance the National Streamlining MOU.  Agency Headquarters representatives facilitated the breakout sessions.  Louise Smart of CDR Associates and Sarah Siwek of Sarah J. Siwek & Associates facilitated the plenary session reports.  Overall summary findings are based on all the agency presentations at the plenary session.  Examples of successful practices are presented in the table below.  

Federal Agency Breakout Session Discussion: Summary of Expectations

• Upfront work is necessary for successful environmental streamlining.  It helps establish relationships and build trust among the agencies.  Agencies need to clearly define the roles of each agency and confirm cooperating agency commitments.  Upfront work also is needed to define the interagency processes for the project, including the fit between NEPA and Section 404.  Finally, the level of effort needed must be defined and agencies must ensure there are sufficient staff resources to provide that effort, including working out funding agreements.
• Involvement of the resource and regulatory agencies is needed in the planning stage to provide broad-brush information on potential impacts and environmental concerns to head off potential problems and help transportation agencies determine what they will need to go through the process successfully.
• Efficiency can be gained by both engaging in programmatic, system-oriented efforts such as mapping of resources and watershed studies which can inform project efforts and determine which projects merit significant attention by the agencies and which do not.  This can help maximize the use and benefit of available staff resources.
• The agencies can take a proactive role in resolving issues, through participation in field meetings to look at options and make on-site joint decisions.
• Ongoing, regular communication is needed at all levels, including such activities as monthly staff or mid-level management meetings or quarterly executive meetings to review progress on projects and resolve outstanding issues.
• A dispute resolution process must be put into place to ensure that issues do not fester.  This process should include both a commitment to work the issue more effectively at the staff level and a plan to elevate unresolved issues so those with higher authority or broader agency perspective can resolve them.
• The state DOTs are essential players in environmental streamlining and need to be apprised of the MOU commitments and engaged in the interagency process.

Other Comments Made Throughout The Session

• FHWA Leadership: Is appreciated by other resource agencies.
• Agency Involvement: Everyone needs to be involved in environmental streamlining.
• Duplication: The surprisingly large amount of duplication implies that there is a lack of leadership in the process.  There is duplication of effort in Federal agencies’ evaluations.  EPA has a list of what other agencies do in the planning process.  It would be good to look at this as a starting point in reducing duplication.  For example, USACE does not use a single document for the permit.  Another example is that while FHWA will issue an EIS on a project, USACE will define it as an Environmental Assessment (EA).  To resolve incongruence at the end of the process, more detailed analysis and a checks and balances system with Federal agency documentation is necessary.  An emphasis on early coordination should help reduce duplication of effort.  Addressing duplication at the end of the process will require effort from all parties to smoothly end the process.  There is duplication at the end of the USACE permit process.  Sharing resource data bases also will help reduce duplication.
• Dispute Resolution: There is a need for dispute resolution.  MOUs need a specific elevation point when agencies need to raise the disputes.  Time limitations are needed for the dispute resolution process.  State DOTs complain that dispute resolution takes too long, so they avoid it.  In order to foster stronger working relationships among agency staff, staff should work together before going to supervisors and elevating the issue to dispute resolution.  The process needs to be improved at the mid-level (field and division offices).  The field and regional offices need encouragement to resolve problems to avoid unnecessary elevation to Headquarters.  New York DOT has a Process of Communication that is very helpful in dispute resolution, and has been especially helpful with the SHPO.  People are not always willing to compromise.  Elevation gives a fresh look at the conflict and may, in some cases, make it easier for a decision to be made.  The most important piece is the outcome, and many people may be losing sight of that.  It is necessary to accept the outcomes as they are being presented, which will cause the process to be simplified.  Elevation is a way to end the position entrenchment.  We are not as concerned with process as we are with outcome.  However, if we enter the process thinking that the outcome will be bad, then the process will suffer.  Agency staff needs more training in alternative dispute resolution.  Several agencies offer courses, including the National Highway Institute (NHI) and EPA.  
• Lack of Resources: It seems that there are not enough people or money to look at all the projects.  A method should be developed for avoiding looking at projects that only need CEs or EAs.  As agencies, we can look at the processes and narrow them down so we are able to spend more time on the important projects and/or issues that really need involvement.
• Environmental Quality: There is an impending crisis and growing conflict with environmental conservation as the "pavement (is) rolling across our country."  Instead of a project-by-project approach, we should all encourage the state DOTs to devote resources to use the state planning processes to develop environmental visions " which include historical preservation " across all jurisdictions.

Mastering the Environmental Streamlining SATs: Strategies, Approaches, and Techniques

This session included an overview of the five strategies for environmental streamlining, and panel discussions of two national strategies identified in the ESAP.  The remaining three strategies were the focus of the afternoon breakout discussions.  Ms. Garliauskas of FHWA moderated the panel discussions during this session.  She began by stating that the National MOU provides a common definition for the Federal agencies’ collective Federal responsibility. 

The National Streamlining MOU is a broad-principal-based document that states the congressional intent for environmental streamlining concerning timeliness, efficiency, and compliance.  The National Interagency Streamlining Group has met once a month for the past year and a half, and with input from field staff, developed strategies for implementing the National MOU.  The National Interagency Streamlining Group identified five strategies in the ESAP for implementing the National MOU.

Two of the strategies are nationally driven, either implicitly or explicitly stated in TEA-21, whereas the remaining three strategies are field based.  The panelists covered the two nationally driven strategies: Alternate Dispute Resolution (ADR) and Measuring Continuous Improvement. The other strategies were featured in breakout sessions that are discussed in the next section of this report.

Panel 1: Alternate Dispute Resolution.  Is Agreeing to Disagree an Option?

During this session, panelists discussed FHWA’s effort to develop a national policy for resolving conflict among Federal agencies and guidance for keeping projects on schedule through conflict avoidance and resolution.  Ruth Rentch, from FHWA’s Office of NEPA Facilitation, moderated the discussion.

To begin, Ms. Rentch noted that Federal agencies are hearing about the need for ADR from many people, and directions in which to proceed from various sources: 1) TEA-21 Section 1309(c) requires the USDOT to establish an ADR procedure; 2) the environmental streamlining MOU includes a commitment to develop these types of procedures; and 3) the EPA includes ADR as one of its five strategies.  The ADR system consists of four parts which were then further described by Dale Keyes.

Mr. Keyes, of the United States Institute for Environmental Conflict Resolution (USIECR), gave an overview of the role of the Institute and their staff of qualified neutrals.  Established by the US Congress in 1998, the Institute assists in the resolution of environmental, natural resources, and public lands disputes where a Federal agency or interest is involved.  As a Federal agency, the Institute has access to Federal infrastructure, but it is not an agent of any one agency and can provide neutral and impartial assistance.  The Institute provides a variety of services including telephone consultations, facilitation of infrastructure projects, and a small grants program to provide funding up to 50,000 dollars to pay for facilitation services.  The Institute has approximately 140 professionals who can be called upon to help.

The USDOT, along with USIECR, is developing a national dispute resolution system as directed by Section 1309(c) of TEA-21 for addressing disagreements between Federal and state agencies within the context of environmental streamlining.  Dale Keyes described the status and content of the document. 

The national dispute resolution system operates within environmental streamlining on specific transportation projects, during the environmental review stage, and on resolution of disputes.  The four components of the system include: 1) guidance on how to resolve disputes, 2) access to a roster of qualified third-party neutrals, 3) access to training, and 4) national procedures for elevating disputes. 

The guidance is currently being developed as the first component of the system.  In developing the guidance, comprehensive interviews have been conducted with interested Federal and state officials.  The guidance is not prescriptive.  It focuses on dispute avoidance and resolution among agencies, both state and Federal, and is not aimed at the public at large.  The principles of the guidance are to engage relevant agencies actively and continually, improve skills through

training and coaching, resolve disputes early and at low levels, recognize agency needs, missions and legal mandates, use third-party neutrals to assist in problem solving and dispute resolution, and elevate disputes to break impasses or resolve higher-level issues.

The topics of the document include approaches to management conflict, disputes during review of transportation projects, establishment of frameworks for dispute resolution, and training in problem solving and dispute resolution.  Establishing a framework for dispute resolution is critical.  The framework should perform the following functions: develop project timelines, establish guiding principles, define meeting protocols and ground rules, establish dispute resolution procedures, define procedures for upward referral, and create procedures for obtaining assistance.

The second component of the ADR system is the roster of third-party neutrals.  The Institute is in the process of assembling a roster of facilitators and mediators, developing a contracting mechanism, and developing training curricula for qualified neutrals and users of dispute resolution guidance.  Mr. Keyes is establishing selection criteria for assembling this roster, which should be a sub-set of the Institute’s roster of qualified professionals.  In addition, Mr. Keyes suggests recruiting additional members.

ADR training materials and courses make up the third part of the ADR system.  The fourth component is the national procedures for elevating and resolving disputes.  The national procedures are intended to be a mechanism for elevating disputes involving environmental review for transportation projects to the level of the USDOT Secretary.  The procedures will make operational Section 1309(c) of TEA-21, which provided statutory authority for this process.

A preliminary working draft has been prepared that sets procedures for elevation to the Secretary. The draft procedures were provided to everyone at the training workshop.  Mr. Keyes requested input on the draft procedures from Federal agencies.  He provided a questionnaire on national procedures for dispute resolution for attendees to complete.  In addition, Mr. Keyes announced that an optional general session was scheduled for Thursday, November 30, 2000, to discuss the draft National Procedures for Dispute Resolution.

Mr. Keyes highlighted the challenges and questions facing the Institute and USDOT as they prepare the procedures and asked for assistance from everyone:

• Qualification of Disputes - What types of disputes should be allowed to be elevated?
• Role of Non-Federal Agencies - Section 1309(c) really talks about Federal agencies, but should provisions be made to allow state DOTs to initiate the elevation process? 
• Role of Non-Transportation Federal Agencies - Should resource and regulatory agencies be permitted to elevate disputes using this process as well?  Would elevation within a USDOT process be advantageous to them?
• Degree of Flexibility - Should the procedures specify tight timelines for all review, consultation, resolution, and decision making activities?  Or should they allow flexibility by perhaps suggesting timelines but allowing extension by mutual consent of the affected agencies? 
• Definition of Resolution - How should resolution be defined?  Should it include "agreeing to disagree?"  Can it include process resolution with, for example, the Secretary closing the record for USDOT processes while the other agency pursues another avenue?
• Use of Assistance in Negotiation - To what extent should the Secretary and the head of the other agency be encouraged to obtain third-party assistance?  Should it be a requirement in order to spur resolution?
• Encouragement of Dispute Resolution at Lower Levels - What incentives could be used to encourage disputants to resolve disputes at lower levels while not introducing undue delays and not impeding elevation of appropriate disputes to the Secretarial level?

Following Mr. Keyes presentation, Louise Smart from CDR Associates presented the top 10 lessons for dispute resolution to work effectively.  They are listed in the box below.

Panel 2: Measuring Continuous Improvement

This panel presented progress on the national strategy of measuring continuous improvement. This strategy in the ESAP commits the agencies to measure continuous improvement and progress through best practices and evaluation techniques such as benchmarking and performance standards.  Panelists were focused on answering the questions of what is being measured, how is it being measured, and how they know they are measuring the right thing.  The presenters highlighted several studies currently underway, and discussed an interagency approach for accountability.  The two panelists for this discussion were Kreig Larson of FHWA’s Office of NEPA Facilitation, and Ken Hess of the Louis Berger Group.   

Mr. Larson introduced the session by providing some context for why measuring improvement is important.  First, Federal agencies need to measure improvement because best practice information as a body of knowledge is needed.  Second, there is a need for streamlining specific performance measures.  There is anecdotal evidence as to what works in terms of public involvement and development of purpose and need.  However, agencies are lacking statistical data to document how long it takes to complete the process.  He then gave a brief overview of several initiatives.

1. Pilot Studies: The American Association of State Highway Transportation Officials (AASHTO) has selected 10 projects to test as best practices in cooperation with FHWA and EPA.  NCHRP project panel 25-24 has been convened to analyze and evaluate the implementation of these pilots. 
2. Attitudinal Survey: A national attitudinal survey is planned that will measure how satisfied stakeholders, on both the transportation and resource agency side, are with the process.  If a stakeholder is happy with the delivery of goods, then that stakeholder will probably think the process is fine.  However, the opposite is also true. 
3. Tracking EIS Ratings: FHWA’s 2000 Strategic Plan calls for an evaluation process, which includes a comparison and use of EPA’s rating of EISs.  In 1998 and 1999, a study was conducted to gather information on timeframes for projects that reached the Record of Decision. 
4. Study on CEs/EAs: NCHRP Project 20-7 (129) Synthesis of Project Delivery Times.  In this study, state DOTs were surveyed to determine the reasons for delays.  They limited their scope to projects classified as CEs or EAs.  These efforts all work to provide more quantitative information from which improvements in the deployment of transportation projects can be measured.  This study should be issued in a few months.
5. NEPA Time/Cost Analysis Baseline Study: Mr. Larson then introduced Ken Hess of the Louis Berger Group, who is involved in a FHWA-funded effort to develop a NEPA baseline for measuring continuous improvement.  Mr. Hess is tasked with developing and using research techniques for evaluating the NEPA process.  He presented the preliminary results of his work in depth.

NEPA Time/Cost Analysis Baseline Study

The overall objectives of the baseline study project are to:

• establish a baseline for the NEPA process time and cost;
• identify specific factors and conditions that impact upon NEPA and the entire project delivery process;
• conduct the research using "real" data in a statistically valid manner;
• develop a methodology that can be expanded and refined over time; and
• identify future data needs and improvements for continuing research in the future.

The research is focused on EISs, rather than CEs or EAs.  This decision was made for a number of reasons.  First, EIS data are available from a centralized data base.  Second, it allows for a statistical reduction of sampling error.  Third, EISs present the greatest potential for NEPA process delay.  Finally, the greatest potential, historically, for affecting the NEPA process is with EISs.  

The primary data sources used in the study were the Northwestern University’s Transportation Library EIS Database, FHWA’s Fiscal Management Information System (FMIS) Database, and other publicly available Internet and commercially available software aerial photo and mapping data bases.  At least 100 projects were wanted for the sample.  These projects were randomly selected from among the 4,000 EISs contained in the Northwestern University data base.  These 100 projects were stratified by the four former FHWA regions.  They were also partially stratified by decade. 

The data collection process began with obtaining and reviewing EIS documents for the location and component elements of the project.  Next, the Type 1 FMIS records were obtained and matched to the EIS project documents.  Then it was determined whether or not the project was fully constructed.  For the projects that were fully constructed, Type 2 FMIS records were obtained and parsed, and these records were again matched to the EIS project documents.  The EIS documents for the project were reviewed for environmental and NEPA process data.  These data were all recorded on project data forms, and all relevant data were entered onto a computerized data base. 

This data base was then put to a statistical analysis process.  The first step was to perform descriptive statistics to establish descriptive parameters.  The differences in descriptive parameters were assessed among different FHWA regions.  New data variables were created as necessary.  Finally, the correlation between the NEPA process and other data variables was examined.

The major findings of the research are:

• The mean value of NEPATIME is 3.6 years.
  
  
• The median value of NEPATIME is 3.0 years.
  
  
• NEPATIME ranges from 4.7 years in Region 1 to 2.2 years in Region 10.
  
  
• The next highest NEPATIME values were for Regions 4 and 7.
  
  
• The next lowest NEPATIME value was for Region 8.
  
  
• NEPATIME comprises 28 percent of total project development process time.
  
  
• NEPATIME ranges from 2.2 years in the 1970’s to 5.0 years in the 1990’s
  
  
• NEPATIME with Section 404 process increases from 2.4 years to 4.3 years.
  
  
• NEPATIME with Section 4(f) process increases from 2.8 years to 4.7 years.
  
  
• NEPATIME with noise issues increases from 3.2 years to 4.4 years
  
  
• There were no findings with statistical significance concerning cost.

The recommendations derived from this analysis are to require descriptive information in FMIS in the records and to include EIS identification numbers in the FMIS records.

What Do Our Customers Want From Us?

A luncheon discussion was held to provide attendees with a slightly different perspective at the conference - that of their customers.  Kathy Laffey, FHWA New Hampshire Division Administrator, moderated a panel that included Ohio DOT’s Secretary of Transportation, who spoke on behalf of AASHTO, and staff representatives from the House Transportation and Infrastructure (House T&I) Committee and the Senate Environment and Public Works Committee.  The group discussed customer expectations of Federal agencies during the NEPA process. 

Gordon Proctor, Director of Ohio DOT, began the discussion from the perspective of state DOTs.  He stated that, in general, DOT projects are not well understood by the public or other agencies.  There are misconceptions that a lot of new capacity is being built, that state DOTs are out to pave everything, and the staffs do not care about the environment.  In fact, approximately 85 percent of the state’s transportation dollars are spent on the preservation and maintenance of existing roadways and other transportation facilities, rather than on laying new pavement.  Many of these projects are routine, such as resurfacing, rebuilding, and restructuring existing roadways.

Additionally, the DOT staffs are interested in the environment and making sure that the projects they put forward succeed through the NEPA process.  Mr. Proctor indicated that since Ohio DOT routinely turns down four out of five projects, it is important to work closely with Metropolitan Planning Organizations (MPOs) and the public.  The critically important projects are usually approved after a self-screening process.  State DOTs do not build what the public does not want, or projects the MPOs have not included in their plan.  Projects have to be "the best of the best" and critically important because there is a lack of resources.  State DOTs want to see the environmental reviews for these projects work and ask that in project implementation, agencies consider seriously the analysis and work of the MPOs. 

Mr. Proctor recommended that agencies not hold grudges about past experiences with the NEPA process, since there are no winners or losers.  A sense of fair play among all of the agencies is needed to create a win-win situation in the efforts to preserve wetlands and the environment.  To achieve continuous environmental improvement, there needs to be an understanding from all parties involved, and ideas need to be shared about how to improve the process. 

Greg Cohen, Professional Staff on the US House of Representatives’ Transportation and Infrastructure Committee, followed Mr. Proctor.  Mr. Cohen focused his remarks on the basis for the environmental streamlining language included in TEA-21.  Members of the House T&I Committee have received complaints from their constituents that transportation projects are not going through the environmental review process quickly enough.  Additionally, members of Congress are only in office for a short period of time, and they want to see the results from the projects they fund while they are still in office.  They want to attend the ribbon cuttings and get credit for improvements they are bringing to their communities.  For these reasons, there is pressure to reduce the amount of time it takes to deploy transportation projects.  The language on environmental streamlining contained in TEA-21 is aimed at getting agencies to work better together to shorten the review time necessary so that transportation projects can move forward. Mr. Cohen did recognize that there are limitations to this process, and environmental streamlining is a difficult task. 

Megan Stanley, Counsel for the US Senate Environment and Public Works Committee, was the final speaker during the luncheon.  She highlighted the main points the Senate hopes to achieve through environmental streamlining for transportation projects.  She agreed with the Federal agencies that the legislative intent of streamlining for transportation projects is to reduce the delays and also to protect and enhance the quality of the environment.  The American public is looking for both these objectives to be met simultaneously.  Environmental streamlining has existed "in theory" for a while, but it has not existed in practice.  The Senate intended that the language in TEA-21 would be a driver for encouraging real environmental streamlining and result in progress in moving transportation projects forward. 

TEA-21 does not change or weaken environmental standards; instead, it encourages agencies to improve the review process through better coordination on projects.  Ms. Stanley encouraged a coordinated environmental review process and setting time periods for review.  Congress expects agencies to achieve concurrent reviews in specified time periods, that are agreed upon by all Federal agencies, and that are all enforceable through a dispute resolution process.

Group Discussion

During a short discussion period, speakers were asked several questions.  A participant questioned what is Congress expecting for the future of environmental issues since Congress dropped the provision of delegation to states.  The response was that no heavy-handed approaches are expected; the progress is expected to be moderate and bipartisan. 

Another participant asked why was funding not given to resource agencies.  The funding was not given directly to the resource agencies because it is tied to time periods to be used as an incentive to improve project delivery.  In addition, there are only a few states that have arrangements or trusts for receiving funding. 

One attendee suggested that Congress should fund more research so that basic environmental issues can be better understood.  Decision makers need better information to make good decisions.  Committee staffers should take that information back to Congress and ask Congress to increase the amount of money the National Science Foundation spends annually on basic research for the environment. 

Finally, someone asked whether there is any recognition by Congress that there are other issues that cause project delays such as contracting times, study times, poor data resources, and other inherent problems.  The panelists responded that funding is one problem that can delay projects.  It is well noted that there are other inherent problems that need to be addressed. 

Building a National Toolbox

Attendees participated in one of three concurrent breakout sessions on the national strategies aimed at field-based implementation: Program Efficiency, Flexible Mitigation, and Resource Management.  Sessions consisted of panel discussions of best practices from around the country. Each breakout group was asked to take the lessons learned from those presentations and identify tools and templates that can be developed for use nationwide.

Breakout 1: Program Efficiency

During this breakout session a panel shared best practices that resulted in process, program, or project efficiency through early coordination, timely and concurrent reviews.  The participants discussed the presentations and best practices, leading to the development of tools that could be easily replicated and used to increase program efficiency nationwide.

Panel Presentations

Four presentations were given during this breakout session: Programmatic Agreements (PAs), the Mid-Atlantic Transportation & Environment Task Force (MATE), the I-93 New Hampshire Pilot, and Programmatic CEs. 

Programmatic Agreements

Mary Ann Naber, Program Analyst for the ACHP gave a presentation on programmatic approaches to Section 106 of the National Historic Preservation Act.  Section 106 requires Federal agencies to take into account the effects of their actions on historic properties, and to allow the ACHP an opportunity to comment.  The ACHP’s regulations, 36 CFR Part 800 (available at http://www.achp.gov), set out the process by which Federal agencies must comply with Section 106.  The process includes four steps: initiate the process, identify historic properties, assess adverse effects, and resolve any adverse effects.

Examples of three PAs were given: Washington, Pennsylvania, and Vermont.  Ms. Naber suggested that the environmental review process can be streamlined to include Section 106 using statewide PAs.  A PA can delegate Section 106 responsibilities to the state DOT, usually up to the determination of adverse effect.  Ms. Naber said the Washington agreement specifically commits the state DOT to maintain qualified cultural resource staff.  Under this type of agreement, state DOTs would not undergo Section 106 consultation for individual minor projects covered under the PA.  Tribal consultation would still be the responsibility of the FHWA.  Some states that have established PAs for Section 106 responsibilities are New Jersey, South Carolina, Wisconsin, West Virginia, and Washington.

The Pennsylvania PA for minor projects establishes tiers for delegated review, exempts projects with limited potential for adverse effects, commits state DOTs to maintain qualified cultural resource staff, provides for annual reporting and review, and expedites dispute resolution. 

The Vermont PA is an example that goes the farthest in delegating authority to a DOT.  Ms. Naber reported that the Vermont PA delegates primary Section 106 responsibility to the Vermont Agency of Transportation (VAOT) up to the standard treatment of adverse effects.  The agreement calls for a manual of ancillary standards and guidelines (now in draft).  The VAOT is committed to maintaining qualified cultural resource staff; addressing issues of mutual interest (surveys, data synthesis, etc.); and avoiding, minimizing, and mitigating adverse effects.  Ms. Naber indicated that through the Vermont PA, the FHWA and the VAOT are committed to the design of transportation systems that: 1) achieve a safe and efficient function appropriately placed in Vermont; 2) avoid, minimize, and mitigate adverse effects on cultural resources; 3) recognize that investment in cultural resources is critical to Vermont’s continued growth and prosperity; and 4) respond to the needs of Vermont’s communities.

In conclusion, Ms. Naber stated that further information could be obtained by contacting the ACHP by phone (202-606-8505), email (achp@achp.gov), or web site (http://www.achp.gov).  She also said a 2-day course entitled "Intro to Section 106" is offered through ACHP.

Following Ms. Naber’s discussion, there were several questions.  The topics of the questions included Tribal consultation, written procedures, and permitting.  Ms. Naber replied that Tribal consultation responsibilities are reserved for the FHWA because of sovereignty issues.  She said that many tribes work with DOT staff depending on the level of trust and communication. Ms. Naber said that written procedures are almost always included in PAs.  She also said that when the FHWA has satisfied Section 106, other agencies should see that as sufficient.  She recommended pulling in other agencies for PAs to accomplish streamlining

Mid-Atlantic Transportation and Environment Task Force

Denise Rigney, Transportation Program Coordinator at the EPA, made a presentation on the successful coordination of NEPA and other environmental laws and regulations among resource agencies in the Mid-Atlantic region.  As background, she stated that over 60 state and Federal laws or regulations and Executive Orders regulate a transportation project.  The regulations include, but are not limited to NEPA, Clean Air Act, Clean Water Act, Historic Preservation Act, and others.  Coordination of all the regulations has led to many problems and conflicts among the transportation development agencies and the environmental regulatory agencies (e.g., project delays, insufficient data, lack of trust, lack of early involvement of all agencies, etc.).  Solutions needed to be developed to address these issues.

Ms. Rigney stated that during a Highways & the Environment conference, key people such as transportation and environmental professionals came together to identify conflicts and develop solutions.  As a result, the integrated NEPA/Section 404 process was developed in 1992.  This process addresses concerns with coordination of wetlands regulation through early agency cooperation and involvement, reduces delays, has a dispute resolution procedure, and provides a record of agency decisions.  The group created a definition of an integrated NEPA/Section 404 process.  Lastly, a task force was formed and its cohesive mission was to address all concerns for everyone.

The TEA-21 executive summits, meetings of primarily regional and local leaders of transportation and environmental agencies, were held in 1999 and 2000.  At that time, the task force was transformed into the MATE Task Force in order to broaden the existing NEPA/ Section 404 coordination to successfully incorporate other regulatory requirements.  A cooperative agreement was developed that outlined the task force’s objectives and the environmental review process.  Ms. Rigney identified the goals of the cooperative agreement as follows: develop a streamlined process that encourages the participation of all stakeholders; remove constraints on agency budget and staff; integrate transportation and environmental priorities; continue dialogue on land use, growth, and transportation; establish conflict resolution procedure; and develop state specific interagency agreements.  In addition, MATE created a streamlining process framework as a guidebook.

Ms. Rigney estimated MATE membership at approximately 40 people, with 30 active members.  The members represent state DOTs, state resource agencies, FHWA Division offices, EPA, FWS, USACE, ACHP, and MPOs.  The task force efforts focus on environmental streamlining and how agencies could work together.  Major issues around which disagreement occurs include sprawl and cumulative impact assessments.

Ms. Rigney stated that the general environmental streamlining process is a connection between planning and construction, obeying the specific environmental regulations, bringing in additional stakeholders, and making sure scoping always happens.  According to Ms. Rigney, if there are any problems, stakeholders are encouraged to speak up as soon as possible rather than waiting or not bringing attention to the issue.

Ms. Rigney answered various questions.  She responded that she thought NEPA/Section 404 was a good process and should also address relationship issues.  In revising NEPA/Section 404, Ms. Rigney thought that NEPA was being emphasized as a decision making tool and that coordination is being started earlier on issues such as purpose and need, and working with the public.  She also indicated that MPOs are involved when looking at corridor planning.

I-93 New Hampshire Pilot

Following the MATE presentation, Megan Stanley, Professional Staff of the US Senate Environment and Public Works Committee, discussed the I-93 New Hampshire Pilot, which is being used as a model for project partnering.  Ms. Stanley indicated that Senator Smith, Chairman of US Senate on Environment and Public Works, was made aware of the New Hampshire I-93 project, and wanted to ensure that the project did not suffer any delays.  He called upon local officials to start environmental streamlining using project partnering.  During the presentation, Ms. Stanley reviewed the history, definition and tools of partnering, how partnering is being used on the I-93 project, and what was done to date.

Ms. Stanley stated that the history of "partnering" came from the construction industry.  In the 1980s, the construction industry suffered from delays because of confrontations, negative feelings and distrust among owners and contractors.  The most notable example of "partnering" was the USACE.  This method is now used by Arizona DOT and other state DOTs.  This "partnering" method has reduced delays and built trust among agencies. 

As defined by Ms. Stanley, "partnering is a formal process for establishing ethical agreements and productive working relationships by using specific tools."  It can be a delicate process depending on people and communication, and it needs to be carefully developed and continuously improved.  "Partnering" takes time to develop and to work.  The elements of partnering include commitments from top management and field staff, equity, investing all stakeholder interest, trust, essential communication, knowledgeable participants, empowerment and the delegation of responsibility and authority.  Ms. Stanley said that partnering does not change any legal relationships; it is used to build trust and better communications.

The tools of partnering include workshops, a dispute resolution process, an evaluation system, and concurrence at key decision points.  The partnering workshop must be held during the scoping process in order to establish common goals and set a foundation.  Everyone in the workshop must participate.  Another important tool is to develop a dispute resolution process.  Next, an evaluation system is useful to constantly evaluate the process for improvement.  Last, there must be concurrence at key decision points so issues are not revisited in process.

The New Hampshire I-93 project, is an 18-mile, 2 lane segment in southern New Hampshire.  The project includes 5 interchanges, 36 bridges, and goes through 5 municipalities.  Ms. Stanley stated that the primary concern is with safety.  On July 31, 2000, a partnering workshop was held with the many groups involved in the I-93 project.  During the workshop, the partners identified cooperation, trust, and open communication was what they wanted to get from the partnership.  Issue areas of the project were also identified. The timeliness of the project was addressed with a schedule showing the review process steps with dates. New Hampshire has a NEPA/Section 404 merger already in place, and this helps to accelerate project partnering.  The partners also identified, up-front, the dispute resolution escalation process, an evaluation process, and the roles and responsibilities of the members of the project.  The purpose and need will be reviewed and signed by the "board members" in December 2000. 

Ms. Stanley concluded with the thought "if one bad project erodes trust in other projects " hopefully one good project can build trust."  In answer to a question on project scope, she indicated that the project would probably be a widening of the interstate within the existing right-of-way; however a broad range of alternatives is being evaluated.  The group had identified potential impacts in air quality and wildlife crossings.

Programmatic Categorical Exclusions

Rodney Vaughn, Environment Right-of-Way Engineer with FHWA’s Wyoming Division, described an approach to CE documentation.  His presentation was based on CE statistics from the Wyoming DOT.  The Wyoming DOT has an existing programmatic CE agreement.  Mr. Vaughn stated that in Wyoming, 97 percent of projects are developed under CEs.  The general types of programmatic CEs include, but are not limited to, safety, pavement rehabilitation, and work within the existing road template.  Of the 97 percent of CEs, 57 percent are developed under the programmatic CE agreement ("c" list) with little or no documentation and the other 40 percent are under the "d" list with documentation required.  The "d" list projects generally have documentation ranging from 2 to 15 pages.  Most states have, on average, 95 percent of projects categorized as a CE.

Mr. Vaughn stated that Wyoming is developing a programmatic CE template that will cover 99 percent of CEs that do not fit in programmatic agreements, in particular, the 40 percent that are being processed under the "d" list.  The documentation could include a purpose and need and existing conditions/traffic statistics.  It could also address typical resource areas such as recreation lands, wetlands, environmental justice, threatened and endangered species, and transportation issues.  The document would conclude with a mitigation summary.  These projects would not have alternatives that result in impacts that would cause changes in current and future land use patterns.  They would have minor anticipated changes and minor amounts of right-of-way.

Mr. Vaughn concluded the presentation with a question and answer session.  He indicated that the new Section 106 regulations have not yet been included in the draft Programmatic CE Agreement.  He also stated that most USACE permits are acquired after CE determination with reasonable assurance.

Group Discussion

Following the presentations, the group discussed potential products that could be applied nationally, and generated many ideas.  One of the potential products was the development of programmatic documents, particularly for the delegation of Section 4(f) and CE responsibilities to state DOTs.  Another idea was to develop a tool to answer the question of when should resource agencies get involved in the review process, similar to project partnering.  A detailed NEPA/Section 404 merger process also was suggested.  The group chose three products to develop and broke into sub-groups to brainstorm the features of the products.

Programmatic 4(f) Delegation:  The Ohio FHWA Division Office is looking into developing an agreement that will result in delegation of Section 4(f) responsibility to the Ohio DOT for programmatic 4(f) evaluations and determinations.  There was a general agreement within the group to have a programmatic 4(f) delegation that assigned Section 4(f) responsibility to state DOTs similar to the model being developed by Ohio.  A programmatic 4(f) delegation would only apply to CE projects when a PA is in effect.  Ohio’s Level IV CE projects would not be subject to Section 4(f) delegation.  This Section 4(f) delegation would include applications of temporary occupancy use, transportation enhancements, historic road/bridge, and bikeway negative declaration.  The delegation would not apply to Section 6(f) lands or USCG permits. 

Implementation of programmatic 4(f) delegation in Ohio would require a well-established programmatic CE process, training of Ohio DOT staff, and process review/check monitoring.  The potential barriers could be legal issues of delegation.  The positive aspects to developing a programmatic delegation are reduced review time by FHWA, DOTs not having to wait for FHWA (30 days), training for the DOT, and improved communications.  The proposed approach has been submitted to FHWA headquarters for approval.

NEPA Classification: Another tool identified by the group was a way to identify what types of documentation different projects require.  This NEPA classification would include criteria for Programmatic CEs, EAs, EISs, and Risk Assessments, and would be based on thresholds of impact on resources.  The programmatic CEs would apply to any project meeting the "c" list criteria.  The projects could include bridges off the Federal-aid system, transportation enhancements, and projects with no Section 106 adverse effects or relocations.  A project would not be processed as a CE if there were controversy from the public or other agencies.  Projects on the "d" list would require coordination of impacts/permits and interagency agreement. 

An EA would be used in conjunction with a risk assessment and interagency agreement.  An EA would be required at a minimum for projects involving historical bridges over navigable waterways.  An EIS would be prepared if the project were controversial or political.  Some suggested that an EIS should be prepared if the project were a bypass.  A risk assessment could also determine whether an EA or EIS is prepared.  The risk of potential impact on resources (i.e., air, water, wetlands, environmental justice, etc.) would be evaluated.  Based on this evaluation and state/FHWA thresholds, either an EA or EIS would be prepared.

NEPA/Section 404 Merger Process: The third tool discussed were the elements of a NEPA/Section 404 process needed to be successful in coordinating reviews and permitting in a consistent manner nationwide.  In order for the NEPA/Section 404 merger process to be successful, there were several elements that need to be addressed:

• Project partnering to encourage early involvement of the agencies. 
• A list of requirements and identification "red flag" issues by each participating agency.
• Field reviews to ensure that all details are being addressed. 
• Obtain concurrence at major decision points in the NEPA process.
• Use these steps in the process to obtain feedback.
• Define and use conflict resolution.

If a non-concurrence should occur, there need to be provisions to clearly identify why there is a non-concurrence and a list of possible solutions.  In general, the group stated that the "keys" to obtaining a permit needed to be outlined nationwide.

Breakout 2:  Flexible Mitigation

During this breakout session, a panel shared best practices that have resulted in and promoted avoidance, minimization, or effective mitigation techniques that could add to project efficiency and achieve better resource protection (e.g., area-wide or species-wide).  This group focused on the presentations and did not develop any specific tools.  The group did highlight that there are many innovative concepts being pursued across the country, and the summaries of the presentations were important for participants to hear.  Thus, this group’s plenary presentation was a short summary of the five presentations made during this session.   

Panel Presentations

The presentations given during this session included EFH Process in the Pacific Northwest, Streamlining Approaches to Comply with the Endangered Species Act, the Florida Pilot, Investing in Streambed Restoration, and Multi-Media Trading.

Essential Fish Habitat Process in the Pacific Northwest

Tim Haugh, Right-of-Way Environmental Specialist, FHWA, Alaska Division, presented the EFH Process in the Pacific Northwest.  He specifically focused on how Alaska has incorporated EFH requirements into existing processes to streamline the overall permitting process.

In 1996, Congress re-authorized the Magnussen-Stevens Fishery Conservation and Management Act (MSFCA), which called for increased consideration of fish habitat in resource management decisions.  Congress established the EFH provisions to accomplish this goal, and defined EFH to include "those water and substrate necessary to fish for spawning, feeding, or growth to maturity."  The Act also required the NMFS to work with state and Federal agencies to minimize adverse impacts of any activities that could affect EFH.

Mr. Haugh indicated that several issues arose from this re-authorization.  One issue was how to make sure that these requirements were addressed in projects that were already well underway at the time of the re-authorization.  Also, given that EFH exists in Alaska, it was important to find a way to address the requirements on a system-wide basis, rather than on a project-by-project basis.  Alaska was trying to find a means to work smarter, not harder. 

Alaska DOT and the Alaska Regional office of FHWA worked with NMFS to find a feasible way to merge the existing NEPA/Section 404 merger with the EFH requirements.  Mr. Haugh stated that NMFS was very cooperative and did not make this a difficult proposition.  It took approximately 1 year from start to finish to hammer out an agreement on the issue. 

In January 2000, the Alaska Region of the NMFS found that the existing NEPA/Section 404 merger process agreement used for FHWA actions in Alaska could be used to satisfy the EFH consultation requirements of the MSFCA.  In this finding, a consultation process between the agencies has been spelled out, and the necessary conservation measures in a given project are supplied by NMFS.  If there is a finding of no adverse affect, no consultation is necessary.

Mr. Haugh stated that the agencies did struggle with some issues in reaching this agreement.  One was what would happen in the case of a substantial adverse affect.  He said this situation has not yet arisen, but there is a commitment to work through it cooperatively.  Another issue was how to avoid having projects that were already approved under NEPA slip through the cracks.  FHWA is striving to ensure that, when a project is re-evaluated, EFH is addressed, rather than simply signing off because there are no changes in the project.

An additional issue that is perhaps as troublesome is that while there is a formal written agreement that the Section 404 merger meets the EFH requirements, there is no guidance allowing NMFS to officially concur with a finding of no adverse affect.  Thus FHWA has to take a considerably more active role in the oversight of the assessments to ensure they are performed in a comprehensive manner.  While FHWA and NMFS have a very good cooperative relationship, and NMFS would certainly indicate that they disagreed with the FHWA assessment, there is no formal mechanism for this process.  (Note: Formal guidance is being developed by NMFS on the implementation of EFH requirement.)

Streamlining Approaches to Comply with the Endangered Species Act

Christy Johnson-Hughes, Fish and Wildlife Biologist at the FWS, gave the next presentation.  Ms. Johnson-Hughes presented three methods that can serve to streamline the Section 7 Consultation Process of the Endangered Species Act: early coordination, statewide strategies for habitat protection, and a project review strategy.  These methods have been successfully applied in Pennsylvania and could be applicable in other areas of the country.

To facilitate early coordination, Ms. Johnson-Hughes described a strike-off letter the Pennsylvania DOT established to evaluate the impacts of a transportation project on mussels, an endangered species in Pennsylvania.  The strike-off letter is submitted to the FWS for concurrence.  This does not replace a complete biological survey, but does allow for an initial determination.  It allows for early agreement at the front end of the project and eliminates the need for endless coordination.  The funding is allocated, and the process has been found to save time and money overall.

The second method, developing a statewide approach to habitat protection, was illustrated through the Draft Indiana Bat Conservation Strategy for Pennsylvania Transportation Projects.  This strategy was developed because it appeared that the Indiana bat habitat was everywhere in Pennsylvania.  The strategy contains a summary of the species history, along with the recovery needs and priorities.  It is anticipated that this draft will be reviewed and finalized at the end of the year 2000. 

Finally, Ms. Johnson-Hughes described a proposed project review strategy for addressing endangered species.  Pennsylvania DOT does not have a comprehensive GIS data base, although one is being developed.  Currently, two conservancies handle natural heritage information, but this information does not contain ecologically relevant buffer zones.  The data base under development will contain better buffer zone information.  It will not list specific names due to fears of poaching, but will mark sensitive areas.  This project is approximately 2 years away from completion.

Until such time as the data base is complete, an ecological review field team comprised of agency representatives and conservancy staff has been established.  This team can be used to assess the conditions in various proposed site locations.  The team will be able to determine if a given site is a likely habitat.  If a habitat were identified, project funds could be allocated and qualified surveyors hired earlier in the project review process, thus reducing the possible need to re-engineer and delay a project. 

The benefits of using these methods are that they streamline the Section 7 process, provides education on the issues, early involvement in the process, and they aid the statewide conservation of endangered species.  The costs are in terms of the processes being somewhat time intensive, the need for dedicated personnel, and the time required to develop methods and agreements.  It is very important to look at the process in a holistic manner.  It is likely that there will be many more species on the endangered list in the near future.  Any processes that are in place to facilitate the transportation development process while preserving endangered species will be beneficial to the entire community.

Florida Pilot

During the third presentation, Alan Powell of the EPA, discussed the Florida Pilot involving environmental streamlining.  The Florida Pilot project was looked at as a systems level approach to mitigation.  Specifically, he spoke about how in Florida, they are working to improve environmental decisions on an area-wide basis through a revised planning process.  Mr. Powell stated that Florida DOT wanted to improve it’s planning process.  As a result, Florida DOT, the  EPA, and other interested agencies began integrating the review and permitting process into NEPA and the transportation planning process.

The streamlining issue addressed by the Florida Pilot was that of integrating environmental resource concerns into the transportation planning process.  The problem was that Florida DOT developed the Long Range Plan (LRP), which led to the Transportation Improvement Program (TIP) without consideration given to the environmental resource impacts of the transportation plan at the broader, systems level.  Currently air quality is the only environmental resource that is required to be systematically assessed as part of the transportation planning process.  This was a problem because decisions were being made as to purpose and need during the LRP and TIP process, and these decisions had to be redone as other information about environmental concerns was brought to bear later in the process.  The previous processes lent themselves to sequential actions, had long timelines, late agency involvement, and the risk of late project changes.  Late changes are difficult and costly.

On February 3, 2000, a summit meeting was held among Federal agencies committed to revising the Florida DOT planning process.  The "New Planning Process" was rolled out in mid-June and accepted in mid-July.  The "New Project Development Process" was accepted in mid-September, and pilot projects are scheduled to begin in early 2001.

The intent of the new process is to integrate statewide and metropolitan environmental resource and transportation needs into the LRP and TIP process.  In this integration, Florida is not looking at manpower or funding, but rather at the ideal world scenario. The NEPA process is being integrated with the LRP or TIP process.  To achieve this integration, Florida has a well-developed GIS data base with almost 200 layers.  The data base sets up a good screening process for the types of permits that may be needed