[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

ACCELERATING THE PROJECT DELIVERY
PROCESS: ELIMINATING BUREAUCRATIC
RED TAPE AND MAKING EVERY DOLLAR COUNT

=======================================================================

(112-6)

HEARING

BEFORE THE

SUBCOMMITTEE ON
HIGHWAYS AND TRANSIT

OF THE

COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

FEBRUARY 15, 2011

__________

Printed for the use of the
Committee on Transportation and Infrastructure

Available online at: http://www.fdsys.gov/

U.S. GOVERNMENT PRINTING OFFICE
65-450 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
FRANK A. LoBIONDO, New Jersey Columbia
GARY G. MILLER, California JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois CORRINE BROWN, Florida
SAM GRAVES, Missouri BOB FILNER, California
BILL SHUSTER, Pennsylvania EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California RICK LARSEN, Washington
TOM REED, New York MICHAEL E. CAPUANO, Massachusetts
ANDY HARRIS, Maryland TIMOTHY H. BISHOP, New York
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHAEL H. MICHAUD, Maine
JAIME HERRERA BEUTLER, Washington RUSS CARNAHAN, Missouri
FRANK C. GUINTA, New Hampshire GRACE F. NAPOLITANO, California
RANDY HULTGREN, Illinois DANIEL LIPINSKI, Illinois
LOU BARLETTA, Pennsylvania MAZIE K. HIRONO, Hawaii
CHIP CRAVAACK, Minnesota JASON ALTMIRE, Pennsylvania
BLAKE FARENTHOLD, Texas TIMOTHY J. WALZ, Minnesota
LARRY BUCSHON, Indiana HEATH SHULER, North Carolina
BILLY LONG, Missouri STEVE COHEN, Tennessee
BOB GIBBS, Ohio LAURA RICHARDSON, California
PATRICK MEEHAN, Pennsylvania ALBIO SIRES, New Jersey
RICHARD L. HANNA, New York DONNA F. EDWARDS, Maryland
STEPHEN LEE FINCHER, Tennessee
JEFFREY M. LANDRY, Louisiana
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma

(ii)

Subcommittee on Highways and Transit

JOHN J. DUNCAN, Jr., Tennessee, Chairman

DON YOUNG, Alaska PETER A. DeFAZIO, Oregon
THOMAS E. PETRI, Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina BOB FILNER, California
FRANK A. LoBIONDO, New Jersey LEONARD L. BOSWELL, Iowa
GARY G. MILLER, California TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois MICHAEL E. CAPUANO, Massachusetts
SAM GRAVES, Missouri MICHAEL H. MICHAUD, Maine
BILL SHUSTER, Pennsylvania GRACE F. NAPOLITANO, California
SHELLEY MOORE CAPITO, West Virginia MAZIE K. HIRONO, Hawaii
JEAN SCHMIDT, Ohio JASON ALTMIRE, Pennsylvania
CANDICE S. MILLER, Michigan TIMOTHY J. WALZ, Minnesota
ANDY HARRIS, Maryland HEATH SHULER, North Carolina
ERIC A. ``RICK'' CRAWFORD, Arkansas STEVE COHEN, Tennessee
JAIME HERRERA BEUTLER, Washington LAURA RICHARDSON, California
FRANK C. GUINTA, New Hampshire ALBIO SIRES, New Jersey
LOU BARLETTA, Pennsylvania DONNA F. EDWARDS, Maryland
BLAKE FARENTHOLD, Texas EDDIE BERNICE JOHNSON, Texas
LARRY BUCSHON, Indiana ELIJAH E. CUMMINGS, Maryland
BILLY LONG, Missouri NICK J. RAHALL II, West Virginia
BOB GIBBS, Ohio (Ex Officio)
RICHARD L. HANNA, New York, Vice
Chair
STEVE SOUTHERLAND II, Florida
JOHN L. MICA, Florida (Ex Officio)

(iii)

CONTENTS

Page

Summary of Subject Matter........................................ vii

TESTIMONY

Kempton, Will, Chief Executive Officer, Orange County
Transportation Authority....................................... 7
Margro, Thomas, Chief Executive Officer, Transportation Corridor
Agencies....................................................... 7
Mendez, Victor M., Administrator, Federal Highway Administration,
U.S. Department of Transportation.............................. 7
Miller, Debra L., Secretary, Kansas Department of Transportation. 7
Replogle, Michael, Policy Director and Founder, Institute for
Transportation and Development Policy.......................... 7

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Cohen, Hon. Steve, of Tennessee.................................. 43
DeFazio, Hon. Peter A., of Oregon................................ 44
Duncan, Hon. John, Jr., of Tennessee............................. 46
Johnson, Hon. Eddie Bernice, of Texas............................ 48

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Kempton, Will.................................................... 54
Margro, Thomas................................................... 59
Mendez, Victor M................................................. 94
Miller, Debra L.................................................. 104
Replogle, Michael................................................ 120

SUBMISSIONS FOR THE RECORD

Kempton, Will, Chief Executive Officer, Orange County
Transportation Authority, response to questions from the
Subcommittee on Highways and Transit........................... 148
Margro, Thomas, Chief Executive Officer, Transportation Corridor
Agencies, response to questions from the Subcommittee on
Highways and Transit........................................... 150
Mendez, Victor M., Administrator, Federal Highway Administration,
U.S. Department of Transportation:

Response to request from Hon. Shuster, a Representative in
Congress from the State of Pennsylvania, for the status of
Missouri's toll pilot project................................ 19
Response to request from Hon. Richardson, a Representative in
Congress from the State of California, for an explanation of
the Federal Highway Administration's use of statute of
limitation (SOL) notices..................................... 25
Response to questions from the Subcommittee on Highways and
Transit...................................................... 180
Response to questions from Hon. DeFazio, a Representative in
Congress from the State of Oregon............................ 184
Response to questions from Hon. Eddie Bernice Johnson, a
Representative in Congress from the State of Texas........... 185
Miller, Debra L., Secretary, Kansas Department of Transportation,
response to questions from Hon. Duncan, Jr., a Representative
in Congress from the State of Tennessee........................ 188
Replogle, Michael, Policy Director and Founder, Institute for
Transportation and Development Policy:

Response to questions from Hon. Duncan, Jr., a Representative
in Congress from the State of Tennessee...................... 194
Response to questions from Hon. DeFazio, a Representative in
Congress from the State of Oregon............................ 196

ADDITIONS TO THE RECORD

American Public Works Association, John Davis, Member, and Chief
Engineer, Jacksonville Transportation Authority, written
statement...................................................... 204
American Society of Civil Engineers, written statement........... 213
State of Oklahoma, Hon. Gary Ridley, Secretary of Transportation,
written testimony.............................................. 217
Texas Department of Transportation, written testimony............ 226

[GRAPHIC] [TIFF OMITTED] T5450.001

[GRAPHIC] [TIFF OMITTED] T5450.002

[GRAPHIC] [TIFF OMITTED] T5450.003

[GRAPHIC] [TIFF OMITTED] T5450.004

[GRAPHIC] [TIFF OMITTED] T5450.005

ACCELERATING THE PROJECT
DELIVERY PROCESS: ELIMINATING
BUREAUCRATIC RED TAPE AND
MAKING EVERY DOLLAR COUNT

----------

Tuesday, February 15, 2011

House of Representatives,
Subcommittee on Highways and Transit,
Committee on Transportation and Infrastructure,
Washington, DC.
The Subcommittee met pursuant to notice at 10:02 a.m. in
The Rayburn House Office Building, Room 2167, the Hon. John J.
Duncan, Jr. [chairman of the subcommittee] presiding.
Mr. Duncan. The Subcommittee will come to order. I was just
set to announce that Mr. Boswell was going to sit in for Mr.
DeFazio, who I heard was on the house floor, but we're glad to
have Mr. DeFazio, the former chairman of the Subcommittee here
with us. And this is the Subcommittee's first hearing of the
112th Congress, although Chairman Mica and nine others have
been going around holding some field hearings and listening
sessions, and we'll do quite a bit of that next week.
I want to thank all of our witnesses for being here, and so
many of the Subcommittee members already here. Some people know
I try to start these meetings right on time. It's a sign and
respect for those who do come on time, and I especially want to
introduce and welcome the new vice chairman of the
Subcommittee, Congressman Hanna from New York. He will be
sitting in the chair frequently during some of these hearings
as we go through the year.
We are meeting this morning to receive Federal, State and
local input for streamlining the surface transportation project
delivery process. There has never been a greater need for
professional advice and expertise, and we need that expertise
from this very distinguished panel here today. We have to get
this right and we need a lot of help to do it from people all
over the country.
As the reauthorization of the Federal Surface
Transportation Programs moves forward, the committee will be
looking at potential reforms to the project delivery process.
Funding for infrastructure is hard to come by with each passing
day, so we must find ways to do more with less. According to
the highway planning and project development process timeline
put together by the Federal Highway Administration, the project
delivery process can take up to 15 years from planning through
construction.
We have held many hearings. We have had many hearings where
it is estimated that we take about three times as long, and
usually at three times the cost, to do almost every kind of
infrastructure project that comes out of this committee--three
times longer than any other developed Nation. We have got to
speed those projects up, not only to save money, but so that we
can do more with less.
Limited financial resources for transportation
infrastructure can be more effectively utilized by speeding up
the process for project approval. SAFETEA-LU made small,
focused changes to the existing project delivery process, and
we have seen some improvement in delivery times as our
witnesses will testify. For example, the State of California
participated in the Surface Transportation Pilot Program, which
allows FHWA to delegate its responsibilities for NEPA to the
State.
Through this delegation pilot program, California has been
able to shave approximately 17 months off the approval process
for a standard transportation project. While these improvements
are a good start, we can do more. We should be doing more, not
just in California, but all over the country. With the highway
trust fund unable to keep up with infrastructure demands, and
with States facing dire financial situations, the time is right
to take a hard look at the existing process.
There is no silver bullet for speeding up the delivery of
transportation projects, but we simply must do better. I look
forward to working with Chairman Mica, ranking member Rahall,
and ranking member DeFazio and other members of our committee
on approving this process. And I believe the witnesses today
will provide us with valuable information on how we can do
that.
With that, I yield to my good friend, ranking member Mr.
DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman. And congratulations
upon assuming the chair. And I look forward to continuing to
work together with you to rebuild and improve our Nation's
infrastructure.
Bottom line, there is no excuse for unnecessary
bureaucratic delays, and we have got to look at ways to
eliminate those sorts of things. I think the pilot program,
which was extended to California and four other States should
be extended. The opportunity should be extended to all the
States. Obviously, they have to develop a plan, a framework,
and show they will adequately and have the capability of
complying with the overarching Federal laws. But then the
Department of Transportation moves into an oversight mode as
opposed to a direct sort of command and control mode over the
State's actions.
I want to hear more about section 6002, and whether or not
we have fully utilized all of the flexibilities. I mean these
are only recent changed. The Bush administration refused to use
any of the flexibility in 6002, and the Obama administration
has apparently embraced them and made some progress in the last
two years, but could more be done? And are there other ways to
improve the process?
I note that at one point one of the witnesses says how
paperwork sits, because the agencies which must participate in
the decision, the other concurring agencies are often
understaffed, or transportation is the low priority with, say,
Fish and Wildlife or somebody else. We've got to figure out
ways to deal with that.
I think Section 214 that we used for the Corps of Engineers
would possibly deal with that where you have a major project
that a State wants to move forward, and you have to have the
concurrence of these agencies like we have with the Corps of
Engineers. The authority could actually help to pay the cost
for the Corps of Engineers in the case of 214, or in the case
for Fish and Wildlife or other agencies, which are understaffed
or have other priorities to move the paper work along.
I just had an example last week in my office where there's
a critical rail project in my district, a reopening of a rail
line to a port in my district that had been closed by a hedge
fund. It needed substantial repair, because it had been
neglected by the hedge fund. And in order to finish the repairs
we have got some Federal money, but we couldn't get the Federal
agencies Fish and Wildlife to sign off on the Federal money
because some guy was on vacation from the Roseberg office, and
the paperwork had been sent down to sit on his desk.
It just happened that the State director was in my office
that day, the same day that the people from the Port, ICTSI--
they were in my office. I put the two of them together, and
they immediately resolved the problem. It wasn't a question of
waiving environmental laws or anything else, but the
bureaucracy was going to grind on for four or six weeks. So
this guy came back from vacation, went through his inbox, and
then decided to check the box and send it back to Portland, and
let it get to the top of the pile there. And someone was going
to check the box and then send it on; and then it gets to the
Department of Transportation and by then it might be too late.
So that kind of stuff's just had to stop, and we have to
figure that out. We have proposed some ways to coordinate these
activities better, to have a lead agency in, to urge these
folks on, and detailing people from agencies. Again, they might
have to be paid for by the sponsoring agency, but there are
innovative ideas out there and I want to hear them from the
panel, and I'm very open to seeing them adopted.
With that, thank you much, Mr. Chairman. I will be going to
the floor, but I will be back. Thank you.
Mr. Duncan. Thank you very much, Mr. DeFazio.
And I ask unanimous consent that all members be allowed to
submit written statements for the record. Hearing no objection,
so ordered; and I will now ask vice chairman Hanna if he has
any statement that he would like to make at this time.
Mr. Hanna. [No response.]
Mr. Duncan. All right. He does not wish to do so. Does any
other member wish to make a brief opening statement on our
side?
Mr. Boswell. I'm coming now.
Thank you, Mr. Chairman, and just briefly, and I look at
Mr. Mendez and I have got to say it is a short statement,
because we both have seen the situation. First off, I want to
say regarding this Fifth Avenue, up there, that I want to refer
to in a minute. I have got no quarrel with any of the folks
that you've had on the scene. They have been following their
instructions, and they have been cordial.
And they have stayed on it, but we still haven't got it
done. So the story is when we rebuilt the freeway through my
capital city, of course, there is the access road, and there is
all these rules, regulations and safety and so on and
distances. You all know that. But it came up that the industry
wanted to access that--alights there. It would be only entering
it with right-hand turn, traffic coming from the other
direction that would come up there to that light and make a
left turn, already, anyway.
The light is already there. It would be readjusting the
light. There is no expense. It doesn't take a rocket scientist
to figure out it would be safe, and there is no cost. And it
has just taken months and months and months to get it done,
because first-off, it wasn't considered when they did the
reconstruction. We understand that, but then it came up that
there was this need and this opportunity, and required taking a
cyclone fence down and opening up to make right-hand turns onto
that situation.
We have had a delay from the industry of putting up
buildings. The jobs it would have created would have been
extensive. It still will, but it is going to be delayed well
over a year as we went through this. I don't say this to
criticize, Mr. Mendez, and I want you to really understand
this. This is not a criticism. This was pointing out that good
people, following their instructions and going through a
process, it really bogs down. And, you know, the city, the
county, the State, and finally the nationals say well, we can
do that.
But, it has taken so long, and it has cost us a lot of
jobs. It has cost us a lot of delay; and, to me, I'm not a
transportation engineer and some of you are, would have been
around a long time and it made sense, and it's made sense all
the way through and it's going to happen, but it's been delayed
months and months and months and months. So I just make that
point, and I look across this panel there with all the
experience you bring to this table. I suspect you could tell
stories all day long, and I see your heads nodding. So I think
this is very timely, Mr. Chairman, and I appreciate it.
And I want every one of us, both sides, to go into this
with a very objective let's see, as my son would say, let's get
her done. Let's keep safe. Let's don't do things we don't need
to do, and protect the taxpayer's investment. We can do that;
but, surely, there's a way to do it better, and I think that
that's what your goal is, and I am here to help, if I can.
Mr. Duncan. Well, thank you very much, Mr. Boswell.
Mr. Miller would like to introduce a couple of the
witnesses who are from his area. Mr. Miller?
Mr. Miller of California. Thank you, Mr. Chairman.
With OCTA we have Will Kempton and Peter Buffa here, and
they have done a really good job, and I welcome them to
Washington. And TCA, we have also got Tom Margro here, and it
is good to have all of you here today.
I agree on the environmental comments that were made. In
fact, in the SAFETEA-LU in 2005 I introduced an amendment that
allowed States that either had an environmental process that
equaled what the Federal Government did in NEPA, or they
exceeded it. And Californians really went along with that and
it has worked very well.
We are saving about 17 months on the review process right
now, which means we are getting projects completed in the
review process, and getting them started much sooner than we
did in the past. And even though there is a time saving, the
integrity of NEPA has never maintained the degradation in any
fashion. In fact, we have kept the standards, and they have
exceeded what we believe we have before.
The goal we have today is we need to create jobs in this
country. We have a huge problem on our highway systems
throughout the entire system we deal with on this committee;
and, if we can do something to streamline the process, I think
we should do that. I would like to welcome our witnesses today,
and I yield back the balance of my time.
Mr. Duncan. All right. Thank you very much, Mr. Miller.
Is there anyone else who wishes to make an opening
statement? Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chairman.
And I agree with my colleague, Mr. Miller, in welcoming the
witnesses, especially the California ones. I have worked with
Mr. Kempton many a time when he was in Los Angeles
transportation.
We have many, many issues dealing with transportation in
California, and California is the only State to participate in
the surface transportation project delivery pilot program and
authorized in SAFETEA-LU. We want to continue to be able to
hear where we can be able to cut, and somehow our Federal
agencies need to understand.
California has more stringent standards than the Federal
when you are talking about NEPA. And it would help, not only
that extra money, that extra time not only can save money, but
as was pointed out, it can also provide additional jobs that we
so sorely, so desperately need.
I have in my area, the Alameda Quarter East, 54 crossings.
Only 20 are going to be separated. Well, the sooner we can get
those built, the sooner the rest of the Nation is going to get
their on-time delivery from the goods coming out of Los Angeles
and Long Beach Ports. So those are critical for us, yet we
sometimes time it. And we spent additional time, and because
right now the projects are coming in under budget, because
everybody needs the jobs, needs to spend that to be able to put
people to work.
Somehow, we need to put the two together and be able to see
how we can cut the time and be able to provide those local
authorities moving forward on the projects. So with that I
thank you, Mr. Chair, for holding this, and I totally agree.
Yield back.
Mr. Duncan. Thank you very much. Does anyone else on the
Republican side wish to make an opening statement?
[No response.]
Mr. Duncan. And Mrs. Johnson, I think, wants to make one.
Mrs. Johnson of Texas. Thank you very much, Mr. Chairman.
I agree that we do need to look at ways to improve the
environmental review process for highway projects, and we also
need to be careful not to unravel the Federal Highway
Administration's and the other agency's oversight
responsibilities. Last year I heard from several mayors in the
southern sector of Dallas County about a project known locally
as Loop 9. The idea for this project was first raised in 1957.
In 1991 Dallas County voters approved a bond program
authorizing over $175 million in bonds for transportation
improvements, and that included the funding for Loop 9
feasibility and route alignment study. The Notice of Intent for
this study was filed in 2004. Three years later the first draft
environmental impact statement was submitted to the Texas
Department of Transportation's environmental division; and,
finally, last year, the Federal Highway Administration received
it for the first time.
More recently, I heard from the city of Bull Springs
regarding their concerns with seven outstanding issues that
were only recently raised by the Federal Highway
Administration. These concerns are regarding a project that
began in 2005, and I site these examples to demonstrate that we
need to find out why completing and reviewing environmental
studies has taken so many years. During this delay, the cost of
construction, and the purchase of rights away continue to
increase.
Last week, I introduced legislation, H.R. 551, that would
provide help in the environmental review process. And my bill
would allow States to use their own funds to assist the Federal
Highway Administration in completing its review of
Environmental Impact statements. Currently, States may only use
certain funds that they receive from the Federal Department of
Transportation for this purpose. And, I hope as we consider the
next highway bill, we will consider my legislation and other
proposals that will move the environmental study process along
more quickly, while ensuring that the protection of our
environment is intact.
Thank you, Mr. Chairman, and I yield back.
Mr. Duncan. Thank you very much Ms. Johnson.
We will now proceed with the panel and we are very honored
to have a very distinguished panel here with us this morning. I
ask unanimous consent that our witnesses' full statements be
included in the record. Hearing no objection, so ordered. Since
your written testimony will be made a part of the record, we
request that you limit your oral testimony to no more than five
minutes.
We have one panel of witnesses today, starting off with
Administrator Victor Mendez, who is the top official, the
Administrator of the Federal Highway Administration; Ms. Debra
L. Miller, who is the Secretary for the Kansas Department of
Transportation; Mr. Will Kempton, who is the Chief Executive
Officer of the Orange County Transportation Authority.
Mr. Kempton is accompanied by Mr. Buffa, who is not
providing testimony, but will be available to answer any
questions. And Mr. Tom Margro, who is the Chief Executive
Officer of the Transportation Corridor Agencies, and Mr.
Michael Replogle, who is the policy director and founder of the
Institute for Transportation and Development Policy. I want to
thank all of you for coming to be with us today, and
Administrator Mendez, you may begin your testimony.

TESTIMONY OF VICTOR MENDEZ, ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION; DEBRA L. MILLER, SECRETARY, KANSAS DEPARTMENT
OF TRANSPORTATION; WILL KEMPTON, CEO, ORANGE COUNTY
TRANSPORTATION AUTHORITY; TOM MARGRO, CEO, TRANSPORTATION
CORRIDOR AGENCIES; AND MICHAEL REPLOGLE, POLICY DIRECTOR AND
FOUNDER, THE INSTITUTE FOR TRANSPORTATION AND DEVELOPMENT
POLICY

Mr. Mendez. Thank you and good morning, Chairman Duncan and
members of the Subcommittee. I want to thank you for this
opportunity to appear before you today.
I am very pleased that my first appearance before this
Subcommittee as the Federal Highway Administrator is at a
hearing that is focused on a subject that I have made one of my
top priorities at FHWA, and that is accelerating project
delivery. As you know, the President's budget was released
yesterday outlining some of the administration's ideas for
investing in infrastructure, and my colleagues and I at DOT
look forward to having discussions with you on this topic in
the future.
The year 2011 is a very busy and important year for the
transportation community. We start the year in a very strong
position. Our roads are the safest they have ever been, and we
have a track record of success that includes improving our
infrastructure and putting our people back to work. But, we
also face many challenges--economic challenges, safety
challenges, congestion and environmental challenges.
Delivery time in this country currently stands at an
average of about 13 years for a major project. We do need to do
better. We need to speed up project delivery while maintaining
and improving project quality. We need to find ways to make our
roads safer and maintain environmental quality.
My Every Day Counts initiative is designed to help us meet
these challenges. We have engaged our State and local partners
and those in the private sector in this effort from the very
beginning, including the State DOTs through AASHTO, the
construction community through AGC and ARTBA, the consulting
community through ACEC, and the National Association of County
Engineers.
We have built Every Day Counts on two pillars. First, we
have a tool kit that contains a number of specific strategies
to shorten project delivery time. This tool kit includes
opportunities to explore and exhaust flexibilities under
existing law. For example, on the planning side we can minimize
some of the duplication of effort that currently delays
projects. We can do that while still protecting the environment
and delivering top-quality projects. On the construction phase
of a project, we have encouraged the use of innovative
contracting practices like Design-Build and Construction
Manager/general contractor. There is a real opportunity to save
delivery time by doing some things concurrently that under the
traditional approach have to be done in sequence.
Our second pillar of Every Day Counts encourages the use of
five technologies that deserve to be widely deployed into the
field today--warm-mix asphalt, prefabricated bridge elements
and systems, adaptive signal control technology, the Safety
Edge, and geosynthetic reinforced soil. Every Day Counts is
about taking effective, proven and market-ready technologies
and ensuring their widespread use to improve safety, reduce
congestion, and keep America moving and competitive. But it's
also important to focus on the bigger picture beyond specific
technologies or initiatives.
Through Every Day Counts, we started essential dialog
throughout our entire industry. We now have people discussing
not whether we can shorten delivery time, but how we are
actually going to do that. That brings us closer to my real
goal within Every Day Counts, which is to create an innovative
culture in our community, one that is open to new ideas and new
ways of doing business. Every Day Counts challenges the way we
have been doing business, and proposes a better, faster and
smarter approach for the future.
As President Obama has indicated, maintaining and improving
our infrastructure is vital to our economic competitiveness and
the ability to create good jobs. If we are going to ``win the
future,'' as the President has challenged us, we are going to
have to out-innovate, out-educate and out-build the rest of the
world.
Thank you very much for inviting me here today. I look
forward to continued work with our transportation partners,
this Subcommittee, and other Members of Congress as we move our
innovative ways through the industry. Mr. Chairman, I conclude
my remarks and thank you.
Mr. Duncan. Thank you very much, Mr. Administrator.
Ms. Miller.
Ms. Debra Miller. Good morning, Chairman Duncan. Thank you
for the opportunity on behalf of the State DOTs to share our
views on expediting project delivery. On behalf of AASHTO, I
want to thank you and Chairman Mica for your commitment to
expediting Project Delivery through the 437-day plan and for
your willingness to consider potential statutory changes to
achieve that goal.
We offer our support and any technical assistance you may
need from the State DOTs. I also want to commend Administrator
Mendez for his Every Day Counts initiative. We see this as a
great opportunity, and we fully support the initiative. And I
would say I think it is well-named as it sets a good tone and
reminds all of us that every day, in fact, does count.
Let me summarize four points for you. First, the
environmental process has been and continues to be a major
contributor to the delay in moving projects from conception to
completion. We have made progress, because of the reforms in
SAFETEA-LU, but there is still much progress to be made. Today,
a major highway project can still take 10 to 15 years or more
to complete. That delay results in real costs, not just from
inflation, but the opportunity costs from continued congestion,
loss productivity and accidents, and, one of the issues I'm
very concerned about, the potential loss of public confidence
that comes when we have excessive delays.
State and local governments are also over burdened with the
excessive paperwork and process it takes to advance even the
least controversial projects with no environmental impacts.
Second, any effort to expedite project delivery should focus on
making the process more efficient without compromising
environmental projection or opportunities for public
participation. The success of the reforms in SAFETEA-LU shows
that it is possible to both speed up the process and still
preserve and enhance the environment.
Third, the environmental process reforms of SAFETEA-LU have
been effective in accelerating project delivery. Nevertheless,
more can and should be done to refine those provisions to make
further progress to the existing process. For example, we can
improve upon the pilot program that authorizes delegation of
FHWA's full NEPA authority to five States. This program was
successfully implemented in one State, California, and I'm sure
you'll be hearing more about that.
Other States, though, have been reluctant to take this on
because of one catch. By assuming U.S. DOT's responsibilities,
the States give up the ability to undertake design and right-
of-way activities during the NEPA process, a very important
mechanism for speeding up the delivery of projects. For many
States the flexibility to advance these activities in parallel
with NEPA is a critical project delivery tool. In addition, in
order to take on delegation, States must waive their sovereign
immunity, which many State legislatures are reluctant to agree
to.
We have three recommendations to improve this program. One,
extend it to all States, which will lend certainty to the
program that is needed to encourage States to make the
substantial investment and time and resources needed to take on
delegation. Two, clarify that the States can assume U.S. DOT
responsibilities without reducing flexibility to acquire right-
of-way and perform design work prior to the completion of the
NEPA process. And, three, establish a new pilot program that
would give State DOTs the opportunity to take on the increased
role in document preparation and agency consultation, but FHWA
would retain ultimate approval authority.
Finally, refinements to the existing programs to expedite
project delivery will help, but we also need to focus on new
innovations, policies and practices to make a quantum leap in
accelerating project delivery. We have several recommendations
to build on the successes of SAFETEA-LU. Let me just mention
one.
We urge you to consider empowering agencies to experiment
with innovation. You can do this by giving U.S. DOT and the
Federal resource agencies the authority on a pilot basis to
waive existing procedural requirements for certain projects;
those that are being developed through an integrated planning
process at an ecosystem scale. Requirements could only be
waived if the agencies could demonstrate that environmental
outcomes are not compromised. A model for this approach is a
special experiment program authority that FHWA has used in
recent years to encourage innovation in contracting, and has
played a critical role in encouraging the greater use of
public-private participation.
Mr. Chairman and Members of the Committee, it is not only
possible, but it is essential that we seek and implement
creative new ways to accelerate project delivery. It is
essential to find ways to deliver a better product faster,
cheaper, and with better environmental results. We need more
tools and ideas to stretch our precious resources, and to
enable us to deliver the best possible value to our customers
for their transportation investments.
Thank you very much for this opportunity. I will be happy
when it's appropriate to answer questions.
Mr. Duncan. Thank you very much, Secretary Miller.
And Mr. Kempton?
Mr. Kempton. Thank you, Mr. Chairman, and thanks for the
opportunity to address the Subcommittee today. My name is Will
Kempton. I am the Chief Executive Officer of the Orange County
Transportation Authority, and I am here today with Peter Buffa.
He is a past-year and present director of the OCTA board of
directors, and he was really the inspiration and the architect
of the OCTA's Breaking Down Barriers initiative.
And by way of background, I just wanted you to know that I
served five years as the State director of transportation in
California. I don't mean to speak for the Department of
Transportation in my testimony today, but I think it's
important that you know about my background in that area in
terms of what I am going to be talking about this morning.
The Breaking Down Barriers initiative grew out of a
combination of the current recession, where scarce capital
investment has led to double digit unemployment and the long-
held knowledge that federally funded projects, as the chairman
indicated, often can take an extraordinary length of time to
process, some 14 years in many cases. This isan effort to
unlock the jobs tied up in the Federal project delivery process
and create those new opportunities for employment in California
and across the Nation without the expenditure of additional,
massive amounts of Federal funding.
Discussion with Congress and the administration over the
past few months has revealed that others in Washington share
this point of view. As you've heard from Administrator Mendez,
the Federal Highway Administration has the Every Day Counts
initiative. Chairman Mica has his 437 plan, which refers to the
shortened timeframe it took to rebuild the collapsed Interstate
35 West bridge in Minneapolis. And President Obama recently
published an op-ed piece in the Wall Street Journal criticizing
``absurd and unnecessary paperwork requirements,'' and he
issued an Executive Order to review existing rules that stifled
job creation. This house has passed Resolution 72, calling for
regulatory reform.
Our stakeholder outreach has included State and local
government representatives, key transportation industry and
business associates, such as the American Association of State
Highway Transportation Officials, and the American Public
Transportation Association, and the U.S. Chamber of Commerce
for their assistance in our initiative. These efforts have
yielded broad support.
The initiative is not intended to eliminate necessary
environmental protections related to Federal projects, but
rather to expedite the process in an environmentally friendly
way. OCTA has contracted with Susan Binder and the firm of
Cambridge Systematics to conduct in-depth interviews with
transportation providers and to coordinate the results to find
the most promising areas to seek specific changes in statutes
or regulations to expedite project delivery.
Cambridge Systematics has conducted over 40 confidential
interviews over the past four months with project implementers
and trade associations to collect the widest sampling of
situations where changes in the status quo can expedite project
delivery. We have identified more than 22 changes in existing
Federal laws or regulations or practices, which could speed up
the project delivery process. We have found that delay in
project delivery is generally attributable to the following
causes: a misplaced Federal focus on what I am calling
micromanagement in the name of good control; on document length
in the name of quality; and on processing in place of advancing
projects.
A failure to adopt a Federal, State and local partnership
effort to replace the highly risk averse attitude presently
associated with Federal oversight, where delay is considered to
be evidence of diligence, is absolutely a problem facing us in
the delivery of projects. We also see a failure to penalize
delay and reward innovation at the Federal and State or local
level.
The specifics of our recommendations are being finalized,
and we will report back to Congress and the administration when
the final report is available, but let me take a moment to
highlight a few of these changes that we are talking about.
First, as you have heard today, we need to expand and continue
the NEPA delegation, which was authorized by SAFETEA-LU.
California, again, as you know, is the only State which took
advantage of the provisions that were provided for five States
across the country.
The delegation eliminates a layer of document review, and
retains all NEPA and CEQA project review authority within the
State. The statewide average time savings for these projects,
as Administrator Mendez indicated, is about 10 to 17 months.
That's huge. That's a year in terms of getting jobs to the
economy sooner. The pilot program, rather, is limited only to
highway projects, and it expires on August 10, 2012, and it
should be extended and delayed.
Second, the planning process should not delay project
implementation. We believe there should be greater delegation
to the metropolitan planning organizations in terms of
amendments to the Federal TIPs. We ran into that problem as we
tried to implement the American Recovery and Reinvestment Act.
Third, there should be a prompt action provision in law,
whereby, Federal agencies will be required to act on project
approvals within a set deadline.
We are interested in the concept of programmatic
environmental review. Where that focus will accelerate project
level documentation, but we think a cultural change in the way
the Federal Government does business is needed.
Mr. Chairman, I am happy to answer any questions during the
appropriate timeframe, but appreciate again the opportunity to
testify before the Subcommittee today.
Mr. Duncan. Thank you very much, Mr. Kempton.
And now we will hear from Mr. Margro.
Mr. Margro. Thank you, Chairman Duncan and Members of the
Committee. My name is Tom Margro. I am the Chief Executive
Officer of the Transportation Corridor Agencies, and we are two
joint powers authorities formed by the California legislature
to plan, finance, construct and operate three toll roads in
Orange County, California.
I want to thank you for the opportunity to speak before you
today to discuss our agency's ongoing challenges over more than
15 years to secure the Federal approvals needed to complete the
241 toll road. Not only is this project critical to alleviating
congestion in Orange County, but it will create over 34,000
jobs, and it requires no Federal or State funding.
Based on our experiences with the 241 project, we have
recommendations for improving the environmental review process.
Our agency completed the first 51 miles of our planned 67-mile
toll road system in 12 years; however, we have spent the last
15 years trying to accomplish and finish the last 16 miles, as
it has been mired in the Federal environmental review process.
This project was intended to be a model for improving the
complex, Federal environmental process by integrating reviews
under NEPA, the Clean Water Act, the Endangered Species Act,
and other Federal environmental laws. The process was
undertaken through the formation of a collaborative of State
and Federal agencies working through a memorandum of
understanding among the FHWA, the EPA, Corps of Engineers, and
U.S. Fish and Wildlife Service with the FHWA acting as the lead
Federal agency.
This process gave all of the Federal environmental agencies
a seat at the table, and decisionmaking authority throughout
the environmental review process. A key aspect of the MOU is
the commitment by all agencies to reach consensus on key
decision points throughout the process, and also not to go back
in revisiting their concurrence, except in limited
circumstances related to significant new information or other
significant changes.
In our case, this process involved two stages for our
project. In the first stage, a facilitator was hired to assist
the collaborative in their process, and develop the purpose and
need statement, and the alternatives for initial evaluation.
This stage took four years to accomplish. The second stage took
six years, during which technical studies were prepared,
alternatives developed and evaluated, and decisions were made
about which alternative to carry forward for full analysis in
the environmental impact statement.
The last two steps of stage 2 included the identification
of an environmentally preferred alternative, and an agreement
on mitigation measures. In November 2005 the collaborative
agencies confirmed in writing their earlier agreement on the
preliminary LEDPA, also known as the Least Environmentally
Damaging Practicable Alternative. Subsequently, National Marine
Fisheries Service concurred with FHWA that the project would
not likely adversely affect endangered or threatened fish
species.
Since the Fish and Wildlife Service had been at the table
throughout the collaborative process, the MOU contemplated that
the Service would be able to prepare a biological opinion
within the 135-day deadline established by the Endangered
Species Act. While Fish and Wildlife eventually did produce a
biological opinion and a Finding of No Jeopardy, it did so
nearly three years after the collaborative agencies had
identified the environmentally preferred alternative.
When we applied for consistency certification under the
Coastal Zone Management Act, certain project opponents,
including environmental groups, objected to the project despite
the fact that they offered no credible evidence that the
project would impact the coastal zone. At this first hint of
controversy, Federal agency members of the Collaborative, with
the exception of FHWA, questioned the preferred alternative
previously identified by these very same agencies, asserted the
need for additional environmental studies, and reopened the
debate concerning other alternatives.
Thus, rather than serving as a model for how to make the
Federal environmental process more efficient, our experience
with the Collaborative demonstrates that the Federal
environmental process is broken and needs fundamental reform.
Despite over a decade of effort by these agencies, and
expenditures of over $20 million by the project sponsor,
ourselves, the process failed as there was no agreement on a
preferred alternative.
Now, we do have several recommendations and proposals for
improving this process, some of which you have heard from the
previous speakers. These include allowing States like
California with stringent environmental laws to provide NEPA
compliance. Prohibit agencies from rescinding their previous
concurrence, unless there are significant new facts. Require
FHWA to develop an MOU with EPA regarding a reasonable range of
alternatives to be examined.
Revise regulations to provide that in subsequent NEPA
documents you do not have to go back and reconsider issues
addressed in prior NEPA documents, and limit resource agency
determinations to issues within their own jurisdiction and
expertise. We have appended to the testimony a chronology of
events associated with this project and certain relevant
letters and documents.
I thank you for the opportunity to provide testimony, and
look forward to answering your questions.
Thank you.
Mr. Duncan. Thank you very much, Mr. Margro.
Mr. Replogle.
Mr. Replogle. Good morning, Chairman Duncan, Congressman
DeFazio, members of the Subcommittee.
I am Michael Replogle, founder of the Institute for
Transportation and Development Policy, a non-profit group that
helps cities implement transportation and urban development
projects worldwide. The Environmental Defense Fund, the Natural
Resources Defense Council, and the National Recreation and Park
Association have also indicated support for my testimony today.
What causes federally-funded transportation projects to
suffer delay? The biggest problems are usually lack of funding,
or lack of consensus about what project is needed or how a
project should be designed. Environmental reviews account for
only a small share of transportation project delays; and, in
most cases, this is associated with a few highly controversial
and complex projects entailing large adverse impacts.
Typically, only three percent of projects need an
environmental impact statement. Nine out of ten federally
supported transportation projects undergo little or no NEPA
review and are approved as categorical exclusions or findings
of no significant impact. SAFETEA-LU has begun to cut delays by
ensuring environmental, land management and natural resource
agencies are routinely invited to participate in all planning
studies. Early involvement and dialog leads to earlier issue
identification and discussion to resolve important issues
collaboratively.
Critically flawed projects are more likely to be identified
and removed from consideration, cutting costs. But cuts in
resource agency budgets pose an increasing risk to progress in
reducing project delays. A recent GAO report noted that funding
constraints hamper the ability of resource agencies to take on
extra responsibilities beyond their core regulatory duties, and
limit their capacity to respond to concurrent requests from
multiple metropolitan planning organizations and State DOTs.
To curb project delays, Congress should first protect
resource agency budgets. Second, it should in the next
transportation bill authorize a set-aside of Federal
transportation funds to ensure land management, environmental,
and resource agencies, will be involved in State and
metropolitan planning and project reviews. Such funding could
also ensure agencies map known areas of environmental, historic
or other sensitivities.
EPA supports such efforts with its NEPAssist, an innovative
tool that facilitates streamlined environmental review and
project planning. In the face of widespread budget cuts to
resource agencies, Congress should not impose more stringent
time limits on agency comments and transportation project
reviews, or fine agencies that fail arbitrary timelines.
Third, Congress should create new incentives for timely
project delivery. Strong partnership and coordination among
stakeholders, supported by financial incentives, have been
successful in engendering early project completion. Congress
should allow DOT to reward States and metropolitan areas that
consistently deliver projects on time while meeting or
exceeding environmental standards.
Fourth, Congress should create new incentives to better
link transport planning and project reviews. A voluntary pilot
program should be created in which U.S. DOT, EPA and other
agencies work with certain States or metropolitan areas to
determine how to accelerate project delivery through more
thorough Federal review of State or metropolitan long-range
transportation plans, satisfying NEPA requirements through the
planning process so that fewer NEPA requirements need to be
satisfied at the project review level. In this way, concerted
deliberations about projects might take place earlier in the
process. This could be done through new kinds of programmatic
agreements or program delivery partnering plans.
Fifth, increased use of mitigated findings of no
significant impact and categorical exclusions under NEPA could
help provide a basis for advancing some transportation projects
faster. Recent CEQ guidance on this subject is helpful.
Sixth, Congress should encourage greater transportation
project design flexibility. Currently, the Federal Highway
Administration requires all projects to meet the highest design
standards, even when potential traffic volumes may never be
realized. This can lead to over-design of projects and bog down
projects in drawn out exception requests. Inflexibly applied
State DOT design standards can also get in the way of project
implementation.
I invite the committee to consider the much more detailed
analysis in my written testimony, and thank you for the
opportunity to testify today.
Thank you.
Mr. Duncan. Well, thank you very much, Mr. Replogle, and I
want to thank all the witnesses for their very helpful and very
informative testimony.
When we hear that everyone, even President Obama, having
written the op-ed for the Wall Street Journal, everybody wants
to speed up the process. Nobody wants to hurt the environment,
but when we talk about the 13-year average that Mr. Mendez
mentioned and various studies show similar figures.
I have sat on this committee for 22 years now, and no
matter what it is--I chaired the Aviation Subcommittee for six
years, the Water Resources and Environment Subcommittee for six
years--no matter what it is, we hear that we are taking at
least two times, usually three times as long as any other
developed nation to do these projects, and we all want to speed
these things up so we can do two projects where we could have
just done one. It's pretty much that simple, but I will never
forget years ago when I was chairing the Aviation Subcommittee.
We heard the newest runway at the Atlanta Airport, which is
several years old, took 14 years from conception to completion.
It took over 99 construction days, and they were so relieved to
finally get all the approvals that they completed the project
in 33 24-hour days. And we always hear that it's always the
environmental rules and regulations that are causing most of
the delay, so we need some suggestions.
But I am going to go first to members for questions,
because members sometimes have to leave, and I will be here for
the whole hearing. And so I believe----
The Clerk. [Sotto voce.]
Mr. Duncan. Mr. Mendez is going to have to leave, and so
what we are going to do, we are going to go first to questions
just for Administrator Mendez.
Is there anyone on the Republican side who wishes to ask
Administrator Mendez a question? Does anybody have a question
for--Mr. Miller?
Mr. Miller of California. Yeah. But the problem is
questions for him relate to many on the panel. I don't know how
we are----
Mr. Duncan. Well, we are just trying to help him get on his
way, so just go ahead.
Mr. Miller of California. Well, you talked about 13 years
to deliver a project. I come from the building industry, and I
mean I've watched the process for 40 years, and much of it has
to do with repetitive paperwork and many projects you have on
transportation. And I think some of the authorities you
mentioned, they go through this lengthy process and the
paperwork when they're completed just gets put aside in some
filing cabinet and sits there.
That does not do anybody any good. It just protracts
projects. And, you know, I look at projects that we have tried
to move forward. And the Maglar project--it was improved in
2005 funding--that would have gotten a lot of the preliminary
work moved ahead. Yet that funding has never even been released
after six years. How do we maintain a global competitiveness
and yet deal with the 13-year delivery project stream we have
to deal with today?
Mr. Mendez. Yes, sir. Thanks for the question.
As I mentioned in my opening remarks, and I have a little
more detail in the written remarks, at FHWA we have begun
looking at various strategies and I refer to Every Day Counts
as the over-arching umbrella for the strategies. It's important
for all of us, and I do agree with you. That's why I started
the initiative. Thirteen years is way too long. In today's
society, we have to do something about that and my goal is to
cut that in half.
There are about 10 strategies that we have outlined under
Every Day Counts that really speak to several of the issues
that I think all of us here at the panel are really trying to
address. We are trying to eliminate duplication of effort
through some of those strategies and encourage the use of
existing flexibility within the existing regulations.
I believe within the framework of what we do, we haven't
really tapped all the flexibility within the existing rules,
regulations and laws, and so we are attempting to do that as
well. And finally, as I mentioned, we are also looking at the
construction phase. There are some strategies out there that
simply are not deployed on a national basis, including Design-
Build, and some other procurement-type issues that I know from
my own experience really move our major projects forward very
quickly. I think it is important for all of us to think about
all of these other strategies that I believe provide a lot of
flexibility. Throughout the industry we have not really taken
advantage of that flexibility.
Mr. Miller of California. Well, the problem I have is that
I introduced the language in the TEA-LU bill in 2005 that
allowed States to avoid the NEPA process if they met or
exceeded those standards, and California is the only State that
took advantage of it.
I know, Ms. Miller, you mentioned we need to do something,
but will the administration's authorization proposal include
concepts for accelerating project delivery similar to what we
try to do in the pilot program in California? And, as we have
discussed, in California it is, say, between 10 and 12 months
of process time, which is significant to moving projects.
Is the administration going to do something then on a
national basis?
Mr. Mendez. Well, as you are aware, yesterday the President
released the budget. Within the transportation framework you
see some of the principles that we outlined. Very clearly, we
are looking at reducing some of that red tape, if you will. We
did consolidate over 55 programs down to five in our proposal.
The other thing that we are looking at are some project
delivery ideas, and we want to continue that discussion as we
move forward.
Mr. Miller of California. Love to work with you on that,
and I yield back, Mr. Chairman, because I asked specific to
this one individual.
Mr. Duncan. Thank you very much.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Administrator, the full delegation of authority which
California has assumed, which has saved considerable time, that
was a pilot for five States. Do you have any concerns about
that program? Would you support extending that program to the
other States should they so request?
Mr. Mendez. Mr. Chairman, ranking member, should they so
request, the option is there for the other four States.
Mr. DeFazio. Well, not under existing law. There are five
States eligible under the pilots, but I'm saying if we made it
a part of permanent law that States could request that
authority, you would not object to that.
Mr. Mendez. The benefits are very clear in that regard,
given the California experience.
Mr. DeFazio. OK. What is the reluctance of other States,
given we had five States eligible for pilots. And I don't
believe five States----
Mr. Miller of California. Would the gentleman yield?
Mr. DeFazio. Yes.
Mr. Miller of California. The five States were chosen
because there were only five States that met NEPA standards at
that point in time.
Mr. Mendez. Right.
Mr. Miller of California. But that's a very good question,
and I hope we can expand it.
Mr. DeFazio. And as I understand it, there is a major
barrier that States don't want to waive sovereign immunity.
They want the Federal Government to be able to be sued for the
project, and they want to take authority to do the project, but
they don't want to be sued if they do the project and there's a
problem.
Mr. Mendez. Yes, sir. That is a big impediment.
Mr. DeFazio. OK. All right. That is something we would have
to work through. And then Mr. Replogle raised the issue of
practical design, and this is a problem both at the Federal
level and I believe the State level. And at the AASHTO level in
terms of their green book, where everybody said--what I hear
most commonly from States is ``If I don't do what they say,
which is I don't care if you can serve that area with two-lane
road, the book says six lanes, sidewalks, guardrails, and
this.''
So what if that's in everybody's front yard? You know,
would the feds adopt the idea of practical design standards,
which I believe would help encourage the States to move in that
direction and, you know, try and get projects that are more
appropriate, less expensive to construct, and more appropriate
for the communities. We took some considerable testimony on
this last year.
Mr. Mendez. Mr. Chairman, ranking member, certainly we are
all trying and striving to reach some of those benefits that
you mentioned. Practical design does make sense, but I can
assure you that within the current rules and regulations, we do
have a process for design exceptions that are available.
I know from my experience we used to do that back in
Arizona, and so it is not a set rule on everything. But there's
a process to allow you some exceptions.
Mr. DeFazio. Right. But I think we need to perhaps elevate
that issue higher or look at whether the exception process is
the right way to go, and then also deal with the problems that
have created potential legal barriers, because AASHTO publishes
something and then the States adopt it, and then the States are
reluctant to change. I mean just looking at how we can sort of
facilitate this whole process, and it may be that we need to
have the States, AASHTO and the feds sit down and work it out.
But I just think there's a lot to be gained and saved through
practical design.
Thank you, Mr. Chairman.
Mr. Duncan. All right. Thank you very much.
Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman.
The question deals with the tolling of roads. I know that
in TEA-21 there were three pilot projects proposed to be
approved. Two of them were approved; one was not, and I just
wondered what the current status of Virginia and Missouri is. I
understand Virginia is going back to the drawing board, but it
seems to me the need to find dollars, if States are willing to
come forward with a plan, to toll in those three pilot
projects. We should move them forward if we can, if it's
possible.
Mr. Mendez. Mr. Chairman, Congressman, yes. On the Virginia
tolling concept, we are working very closely with them to make
sure that happens within the framework of the rules,
regulations and the law. I am not up to speed on the Missouri
ones, so I apologize for that, but certainly I can get back to
you on that.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T5450.006

Mr. Shuster. And I know what the outcome of Pennsylvania
was. States lined up to want to get into that queue. If
Missouri or Pennsylvania or Virginia, obviously, doesn't move
forward, are there other States that are interested in looking
at that?
Mr. Mendez. I am not aware that they are in the actual
queue. I'm sure everybody is thinking about how they may get
into that queue, but I am not aware that there is a formal
list.
Mr. Shuster. And another question; I don't believe this is
in Federal law that has to be done, but I know that in
Pennsylvania when an engineering firm designs a bridge or a
roadway, then PENNDOT takes it in and reviews the whole thing
again. But once they put that stamp on the engineering firm,
they're responsible. They're liable for it, and I just
wondered.
Across the country, s that general practice that happens?
Because it slows the process way down by several months when
that occurs, and I just wondered. Is that something that's
general practice in other States, or is it something that
States contract with an engineering firm, get their stamp, and
then say let's move forward?
Mr. Mendez. Normally, the engineering firm or the engineer
will stamp the project plans and then you move forward. But
there is a level of review, because the States have to ensure
for themselves that they agree with what's within that project
plan.
Mr. Shuster. All right. Thank you very much.
I yield back.
Mr. Duncan. Thank you very much.
Ms. Napolitano.
Mrs. Napolitano. Thank you, Mr. Chairman, and this question
is both for administrator Mendez and Mr. Kempton. As we've been
hearing among the surface transportation project delivery pilot
program, what are the perspectives on the pilot program from
the Federal-State level, and how long has this pilot been in
place?
Has it been successful, and should it be expended to other
modes of transportation and what are your recommendations, if
any? That's one question all wrapped up in one. The second one
is what are you doing to train, educate, and have input from
your respective staffs to be able to speed up the process,
change mindsets, because sometimes that's where a lot of the
boggling down comes in.
Mr. Mendez. OK. I will go first, if you don't mind.
Mrs. Napolitano. Please.
Mr. Mendez. Mr. Chairman, Congresswoman, let me address
your second question first. I have talked quite a bit about
Every Day Counts today, and I do totally agree with you that
within our industry--not just FHWA--we really need to begin
looking at a new way of doing business, and part of that is how
do you move the culture forward.
My ultimate goal, when I am done in my tenure here, is to
have in place throughout the industry a culture of innovation--
not just within FHWA, but I think everybody in the industry
needs to get on board. In terms of what we have done more
recently, late last year, the final three months of the year,
we actually held 10 regional innovation summits where we
engaged the private sector, consultants, contractors, and
people from the State DOTs and my folks that actually are on
the ground--not headquarters people, not people from D.C.,
people out on the ground--to really begin looking at not only
the strategies that I outlined under Every Day Counts, but to
begin thinking about what does that culture really look like.
I want people to really engage in finding new ideas, being
creative, and being innovative and bring those ideas and flush
them out and make them happen every day that they come to work.
Mrs. Napolitano. Where do they go from there?
Mr. Mendez. Well, we did lay out a strategy where every
State will go back in concert with FHWA to develop a specific
plan to see which of the strategies they will implement. Now,
one thing I can tell you, which is part of my philosophy, I
understand very clearly that not everything is the same in
every State. So that's why we decided every State should go
back and work with our folks to develop a State-specific
implementation strategy, because what happens in California may
not be the same solution in Virginia, for example.
Mrs. Napolitano. That is correct. But are you also working
on that internally?
Mr. Mendez. Certainly, yes we are.
Mrs. Napolitano. To what extent?
Mr. Mendez. Well, like I said, we have had a lot of
internal training. Before we actually began the summits, we had
internal training for our division administrators. In every
State we have a division administrator and we did our internal
training with some of our other key folks to make sure they
understood what we are attempting to do within this new Every
Day Counts approach.
Mrs. Napolitano. Thank you. Mr. Kempton?
Mr. Duncan. All right. What we agreed to do earlier was
just question Mr. Mendez at this time. We will come back to you
for questions to other witnesses.
Mrs. Napolitano. Thank you.
Mr. Duncan. Does anybody over here have a question for Mr.
Mendez? Yes, sir, Mr. Southerland.
Mr. Southerland. Thank you, Mr. Chairman.
Mr. Mendez, thank you for being with us today. I am
curious. What is the single greatest impediment from allowing
the States to do more in accelerating project delivery?
Mr. Mendez. Mr. Chairman, Congressman, I don't know that
there is one single impediment.
Mr. Southerland. Yeah. But there has got to be something
that just irritates you. I mean, and I am a small business
owner and I get irritated daily. And there's got to be just one
overriding thing, that if you were king for a day, what could
you eliminate and open the door for a greater working
relationship between the Federal Government and the States in
satisfying the American taxpayer and moving people and products
down the road.
Mr. Mendez. I suppose if I looked at the world as king for
the day, the biggest impediment that I would see is throughout
the country we need to really bring our level of coordination
and partnership to a higher level. I believe the inability of
people to actually sit and meet, and resolve issues on the spot
rather than sending reports and e-mails and letters. If we can
find a way to get people in, I think it's part of the culture.
Bring people together to resolve issues today--not three months
from now, not six months from now, but today--we would make a
big headway on that.
Mr. Southerland. Did you, when you met with the State DOT
experts, did they say the same thing? I don't want to put words
in your mouth. What do they say as that single, greatest
impediment? Is it we are too large, because when you talk about
the culture, the culture is large and unfortunately in charge?
I mean if you want to simplify things, common sense would
say you would have fewer that you have to communicate with, but
what do they say to you? What do the State DOT experts say to
you regarding the same issue?
Mr. Mendez. I can't speak for the States, of course. A lot
of concerns have been expressed by the panel here, but I really
believe that if you take the project delivery process and you
look at the decisionmaking process at every phase, all the way
through construction, just our coordination and our ability to
resolve issues takes too long. Are there other issues? I will
let some of the other panel members address that at the
appropriate time.
Mr. Southerland. Thank you.
Mr. Miller of California. Would the gentleman yield?
Mr. Southerland. I yield, yes.
Mr. Miller of California. You talk about project delivery.
Mr. Replogle talked about lack of funding and EIRs only impact
a small amount of projects, early involvement in dialog, which
you talked about. Set aside funding for agencies regarding
environmental review. That's kind of like paying off the mafia
to me. I'm sorry. It really is, but I don't mean to insult the
mafia.
But the 241 toll road was a great example. They met with
every environmental group possible. They met with, I guess, the
best was fish and Wildlife. Fish and Wildlife studied every
environmental option available. They met with every
environmental group to call the impact back, and all they ended
up getting at the end was a lawsuit.
The problem I see out there, and being a builder for 40
years, is you will go through a process. Get the area approved,
and then three different environmental groups will see you. Two
want cash, and the other one will take you to court. How do you
deal with that?
Mr. Mendez. Well, let me kind of step back on the broader
issue, just to make sure we are all on the same page. Now,
obviously, the major projects that do require an environmental
impact statement are where we faced some of these broader,
bigger issues.
Mr. Miller of California. Let's take the 241 example: 15
years of process; they met with every environmental group that
had a name, and Fish and Wildlife addressed their concerns.
What can you do to stop those problems from occurring?
Mr. Mendez. You mean in terms of lawsuits?
Mr. Miller of California. No, in terms of a process that
continues forever to end up at the end of it with nothing,
there's got to be some resolution on the part of government. We
have laws in place that enable these groups to do that, and all
they do is hamstring the entire process as government tries to
go through local agencies in delivering projects.
Mr. Mendez. I think in most cases--and there may be some
exceptions--it is the ability to resolve with the appropriate
people.
Mr. Miller of California. That's what I'd like to see you
address. That's my question. We are looking to you in the
administration for opportunities and options to problems, and
to resolve those problems. We have discussed the problems, but
have not seen any proposals that address the problems.
Mr. Mendez. If you look at some of our strategies within
Every Day Counts, they're attempting to resolve these problems.
Will the 10 strategies resolve everything? No, but I think it's
a step in the right direction.
Mr. Miller of California. I yield back. Thank you for
yielding.
Mr. Duncan. All right. Mr. Sires?
Mr. Sires. Thank you, Chairman, for holding this hearing.
It's very important, and having been a local elected official,
I have been involved in some projects.
Mr. Mendez, you have a recommendation here that I don't
really agree with. You have a recommendation that says get
involved. Get the environmental attorneys involved early in the
process.
I have to tell you. My experience in dealing with some of
the State environmental attorneys is one issue after another
that they seem to come up with. It's like the kiss of death of
a project. I wonder if your experience is different than mine
that you make the suggestion that getting involved in
environmental attorneys early is really helpful, because I just
find it just very difficult.
I come from the State of New Jersey, and there seems to be
more issues added every time you talk to them. They came up
with issues that you never saw there before; and many times
they're inflexible. I don't know if whether the instructions
that you have given your attorneys is to be a little more
flexible and understanding to move these projects forward, but
they're like the B team.
They'll be there when you're there. They'll be there when
you're gone. So can you just give me a logic behind this? I
think I understand it, but thus it hasn't been my experience.
Mr. Mendez. Mr. Chairman, Congressman, yes. My philosophy
on that is similar to what I expressed earlier. It seems to me
that when you bring the right people together at the earliest
possible time to resolve the issues, things move faster. I
think somebody here suggested earlier that after you've gone
through so many years and somebody comes in at the end and
raises new issues, I believe that was Congresswoman Johnson,
that's what I am trying to avoid.
If you bring the attorneys to the table early to identify
those potential legal impediments that we need to resolve
today, not three years from today, I believe that really gets
us in the game early and helps us resolve issues faster and
earlier.
Mr. Sires. But they are so inflexible, that in many
instances I disagree with that. I am sorry.
Thank you, Mr. Chairman.
Mr. Duncan. All right. Thank you very much. Administrator
Mendez has to leave, so we will let Ms. Richardson ask the last
questions to the administrator.
Ms. Richardson. Thank you, Mr. Chairman, and thank you for
having this very timely hearing. And I remember when we had
this a year ago, and out of the hearing I actually introduced a
bill called Jobs through Environmental Safeguarding and
Streamlining Act of 2010 (JESSA). And I would encourage all my
colleagues to maybe consider how we could work together to
bring that forward, because we spent a lot of work, and that's
my understanding in the committee.
I was very well aware of it and it helped us to frame many
of the comments we hear today. Mr. Mendez, I just have two
questions for you. To your knowledge, have there been any
instances of adverse environmental impacts in California or any
of the other pilot States due to the alternative process under
Section 6005, the pilot project.
Mr. Mendez. Mr. Chairman, Congresswoman, no. That I am
aware of, we have not had any adverse impact.
Ms. Richardson. OK. And then my second and last question,
trying to adhere to the chairman's pleasure here, I'd like to
build upon Ms. Miller's testimony where she stated the statute
of limitations, and I think it's building upon some of my other
colleagues, where it's my understanding the purpose of the
statute of limitations is to expedite the resolution to affect
any transportation projects.
Issuing the notice in the Federal Registry is
discretionary. If a notice is not issued, the NEPA approval or
decision remains subject to the general six-year statute of
limitations for civil actions against Federal agencies. Why
wouldn't you just do it?
Mr. Mendez. I didn't bring the information with me, but we
do have information statistics on how many times we actually
have issued the notice. And we happened to do it quite often. I
just simply don't have the numbers.
Ms. Richardson. But why wouldn't you just do it in form if
they have met the requirements? If the project is consistent
with the approvals, why wouldn't you just normally do it? Why
would it be discretionary?
Mr. Mendez. I can offer a couple of examples from my
experience here at FHWA. I can tell you there has been one
arena where we simply didn't have an alternative that we
thought would be viable, that from an environmental standpoint
would actually move things forward.
And rather than issuing a final notice and closing out the
determination, if they're in the future, 10 years from now if
there's still a need, and there might be some other alternative
out there, we didn't want to close out that potential.
Ms. Richardson. OK, sir. Would you be wiling to give to the
committee and to also those who are testifying the details that
you have about this particular issue and why you're not doing
it on a consistent basis? And what might you do to consider
changing that in the future?
Thank you very much.
Mr. Mendez. Absolutely.
[The information follows:]

[GRAPHIC] [TIFF OMITTED] T5450.007

Ms. Richardson. Thank you, Mr. Chairman.
Mr. Duncan. Thank you. And Mr. Mendez, one last request.
All of the witnesses here today are from the government or
academic backgrounds; and most of your working day is spent
working with other government officials. I would appreciate if
you would do something very simple and easy.
Have somebody on your staff write up one letter that you
would send out to at least 100 businesses across the country
that are in this area and ask for their suggestions as to how
we can speed up and simplify the process. And then in about 30
days after you do that, or maybe 60 days, give us a report on
any suggestions or a list of suggestions that you've gotten
from that process. Would you be willing to do that?
Mr. Mendez. Absolutely.
Mr. Duncan. Thank you very much. And you are excused now,
and we thank you for being with us.
Mr. Mendez. Thank you.
Mr. Duncan. And we will go now to questions for the other
members of the panel, and I believe that we are going to do
this in order. We have been asked to do this in the order in
which the members appeared. And Mr. Crawford was here first,
but he is gone.
Mr. Gibbs?
Mr. Gibbs. Thank you, Mr. Chairman.
I want to probably address Secretary Miller. I appreciate
her comments about how we can move forward. Some of the things
I see concurrently versus in sequence, and you might want to
expand on that a little bit.
One thing that's really been bothering me, and you
mentioned environmental process is a big part of the problem,
and I know Mr. Replogle kind of countered that, went the other
way on that. But, you know, the bridge that collapsed up there
in Minnesota came in under budget and, I guess, years ahead of
time. And it seems to me that the bureaucracy made decisions,
because they were forced to make decisions. And I see this all
across the board, not just on highway projects, but businesses.
We are getting permits from the EPA or whoever to operate.
They can't get answers. They just go on and on and on and adds
to cost. So I am beginning to think that there is a culture in
our bureaucracy not to get excited and not to move things
forward, and you might want to talk about that. And then the
second part of my question is you talk about waiving States'
sovereign immunity and you mentioned right-of-way procurement.
Can you expound on that a little bit, because I am new to this
committee. This is a new area to me.
Ms. Debra Miller. Sure.
Mr. Gibbs. Is there something that maybe we should address
specifically dealing with right-of-way procurement?
Ms. Debra Miller. Sure. Let me start with your first
question. I do think there are some cultural issues. I think
there are cultural issues inside State DOTs. I can say the head
of my State DOT is one of my highest priorities. I mean, you
know, I tell our people, you know, every day you ought to feel
like the hounds of hell are at your backs. You know, I mean
that notion of urgency needs to be driving all of us. And I
think that you see the newer leadership, I think, throughout
State DOTs who are very much of that mindset. But, certainly,
we have long term employees, and I think you see it on the
Federal level as well. So I think there are cultural issues we
all need to address, and there is no question. Across the board
leadership is so important. If you are not providing leadership
and directing your staff that what they ought to be concerned
about every single day is moving things forward, then you're
probably going to get delay. You've maybe heard this before,
but there is so much in this environmental arena that in so
many of the Federal approaches that is process driven, not
outcome driven; and, you know, increasingly, we are all talking
about that language, and I think it is much easier to assess
whether or not a process has been met than to make the more
judgmental call about whether or not you are reaching the right
outcome. So it's very easy to fall back on process; but,
certainly, we only defined ways to push forward and be focused
on outcome. You know. I think we are at varying levels in our
State DOTs. I can just tell you we spend a lot of time with
those sorts of conversations. I think the leadership issues are
very big, whether it's at the Federal level or at our State
levels in terms of making these projects move forward.
In terms of the second question about right-of-way for
instance, our State always purchases right-of-way with State
dollars, because we can do that. It's considered at risk, but
we can do it. We cannot use Federal dollars to purchase right-
of-way until we are all the way through the environmental
process. And that so delays a project when you're doing it
sequentially in that linear format.
So what we will do is we'll finish our final design, and we
will do our right-of-way acquisitions using State dollars,
knowing full well that they are at risk. But at least we can do
it. And either the way the section has been written or the way
it's been interpreted by Federal highway, if you have the
delegation, you can't do it even at risk. And States just
haven't been willing to give that up, because it's such an
important way to speed up the process.
Mr. Gibbs. Just to follow up on the right-of-way, eminent
domain, you know, Ohio the Department of Transportation has
what they call ``Quick Take,'' where they can go in, use
eminent domain and then start the project. And if a property
owner is contesting it, it will go through the process. Does
Kansas have a similar, or the Federal Government, is that a
problem where they don't have the ability to move the project
forward by using an expedited eminent domain process like we do
in Ohio?
Ms. Debra Miller. Well, I can tell you one of the things
that we do is we follow the Federal Procurement requirements.
We just find whether we're using State dollars or Federal
dollars. It's a better way to do it, but we always try to
purchase right-of-way with our own dollars, because we can use
expedited processes we could not use under Federal
requirements.
Mr. Gibbs. OK. Thank you.
Thank you, Mr. Chairman.
Mr. Duncan. Thank you very much.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
Just to follow up on that with Ms. Miller, you know, I have
heard various discussions by various State DOTs about why they
don't want to engage in these more alternate design, practical
design, context sensitive designs. Whatever you want to call
it, it has a lot of names. A couple of States have made it very
clearly State policy, Pennsylvania among them and others. But
one thing I hear is they're concerned about liability. It's not
just cultural, but there is a liability concern. How could we
address that?
Ms. Debra Miller. Well, Congressman DeFazio, I don't know
if this will be a good answer to your question. I would say
from my perspective, and one of the things we have told our
people is, you know, liability shouldn't be our number one
concern when we're making these decisions.
We have what we call a practical improvement approach. We
have been pushing very aggressively to do it, and I think if
you are weighing up all the benefits and costs to the State, to
the cost of infrastructure, even if in fact you end up being
sued in some situation, you know, that consequence and that
cost may come nowhere near outweighing the benefit you got from
moving forward. So our direction has been, you know.
I'm not saying we're not following good, sound engineering
principles, but don't let every decision be driven by some fear
you might be sued, because there are other losses that are more
significant. And one of the things I am very concerned about in
everything that we do revolves around public credibility and
public enthusiasm. And so, you know, I think sometimes if we
are counterbalancing our fear about a liability versus looking
rationale and reasonable to the public, moving forward in a way
that makes sense to the public, that in my mind oftentimes
outweighs the liability issues.
Now, I might also say in Kansas we have tort reform that
our outward loss, you know, is limited, and so it might be
easier for us to make that decision. It may be different in
some other States, but again, I think that's a bit of a
cultural issue. It's not that there aren't some liability risk,
but I believe that gets overplayed in people's minds in terms
of being a decisionmaking factor.
Mr. DeFazio. Wouldn't normally in your experience or in
looking at this issue, would normally these sorts of practical
design, context sensitive design, whatever solutions, wouldn't
they often be less expensive than the optimized?
Ms. Debra Miller. Absolutely. Absolutely.
Mr. DeFazio. OK. So, maybe, part of what we should look at
from the Federal level is to provide an incentive for people to
look at this with a little different cost sharing ratio when
States adopt something, which is going to save both the State
and the feds money in the end, but the feds will give a little
bit of the premium for that.
Ms. Debra Miller. I think that's an interesting thing to
pursue. I think the other thing, you know, certainly in a
safety arena, we all begin thinking about this, and that is
there used to be such a notion. You were working on a project
and you were going to build the best project you could build
right there at that area. Now, we're much more likely to think
about the overall system, and how can we expend our dollars in
a way that gives us the best system. And, sometimes, the best
system means not doing the best individual projects, and so
there might be some ways to incentive a system perspective
versus a very project-focused perspective.
Mr. DeFazio. OK. And then, Mr. Replogle, do you have any
thoughts about this since you raised this issue, about either
the liability issues, or, some way to incent, taking a look at
these sorts of alternate solutions?
Mr. Replogle. This is something that comes up in the area
of alternative design standards, and could be addressed in the
Federal Highway Administration's program for innovation in
administration of the Federal code. It was referred to earlier
as the Special Experimental Program, and has been used a lot in
public-private partnership development. That could also be used
in coming up with some ways of reducing this concern about
liability among the States in applying design standards.
Mr. DeFazio. Well, and what you are saying is perhaps at
the point, which if it's an experimental program or it's an
exception under Federal rules. I think that immediately raises
some flags with people at its exception, as opposed to using a
range of accepted standard practice. I think it's important to
put an emphasis on looking at lower cost, more appropriate
alternatives, that doesn't require you to take an exception or
not be part of an experimental program, because I think some
lawyer is going to say, ``Wait a minute, wait a minute.
Exception, exception, we don't like the word exception. We're
going to get sued on that, you know, if there's an accident or
something.''
Mr. Replogle. Yeah. But this special experimental program
has been widely used in the Federal Procurement process,
enabling States to use innovative design bill procedures and
other kinds of approaches to expedite project delivery.
Mr. DeFazio. Right. But we want to make it mainstream.
Mr. Replogle. Right. But using that program to start
getting more routine exceptions, instead of having to go
through a long paperwork process for design exceptions, that
special experimental program might be used to facilitate having
States take on, with some Federal handholding, to do deviations
without having to go through a lot of paper.
Mr. DeFazio. Right. And Mr. Kempton, we will certainly look
forward to your final report, and I assume that we will look at
issues like this when it comes out. Right. When might we expect
it?
Mr. Kempton. Mr. DeFazio, we are actually planning to start
circulating that document, hopefully, by the end of this month,
first of next month. We will have something out probably by
mid-March.
Mr. DeFazio. Well, we'd love to be on the early
distribution list so that we can incorporate some of the ideas
into our reauthorization working with the chairman because we
need to address this situation.
I just wondered, if the chairman would--just one other. I
believe there are many cases of inordinate and extreme delay
that exceeds the bounds of, shall we say, reasonableness. I am
not certain, Mr. Margro, that your project goes there, because
as I understand it, it was the California Coastal Commission,
which has unbelievable power in your State--which is not
extended to entities in any other States I am aware of. I mean
we have an LCDC, but they don't have the power of the
California Coastal Commission, who opposed the project, and
that's what brought it to a screeching halt. In addition, the
United States Marine Corps' opposition from the outset, which I
think was somewhat problematic. So I don't know that it was
just the NEPA that caused you these problems.
Mr. Margro. Mr. DeFazio, thank you. The Coastal Commission
was an issue and is an issue, but the points that I made in my
testimony we never were able. As soon as we got to that point,
that was when the agencies, the EPA and the Corps of Engineers
backtracked from what they had originally agreed upon.
So before we even had our hearing with the Coastal
Commission and their decision, those agencies were already
backtracking and were already asking for more studies and the
reopening of those studies and wanted to do more work, despite
the fact that we had spent 10 years and $20 million examining
every alternative that they had put on the table.
Mr. DeFazio. Right. But I think maybe--I'm not sure it's a
solvable problem. And, I mean, when you start out being opposed
by the Marine Corps and you're going to run into problems with
the California Coastal Commission, I'm not sure. I agree that
there are often inordinate delays and we need to deal with
that. We're not going to do away with NEPA, but we need to look
at how States, and California is a State that has taken
jurisdiction.
And you've got CEQA, and I am fully willing to accept the
equivalence of CEQA, because in many cases it seems to exceed
NEPA. But I am not sure whether this project is the best
example of these kind of problems, but I am willing to work
with anybody who has ideas on how we can obviate unnecessary
delays in the future.
Thank you, Mr. Chairman.
Mr. Duncan. Well, I don't know. I hope we don't get any
worse examples.
Mr. Farenthold.
Mr. Farenthold. Thank you very much, Mr. Chairman.
When Mr. Mendez spoke and answered Mr. Southerland's
question, if he were king for a day what would he do, and it
would be basically get everybody in a room to decide what it
is, rather than government by memo.
I know in my experience working in the private sector, once
you got beyond about five letters or memos, it was time to sit
down or you weren't getting anywhere. I would appreciate just a
brief response from a couple of the other panel members on
whether or not they think this would solve that or not.
Mr. Kempton. Mr. Chairman, if I work through their day, the
one in direct response to Mr. Southerland's question relative
to what is the major impediment, I think I can say it in a
word. It's ``trust.'' And, if we could be more trusting of our
partners in this effort, both with the environmental groups--
both with the regulatory agencies with the implementing
agencies--if we had performed our responsibility in a way that
developed our credibility to a point where we could achieve
trust in the process, I think we would have gone a long way to
correcting that cultural issue that we have been talking about.
And, you know, we want to be very careful and make sure we
are providing some specific recommendations to the Subcommittee
on how you can approach this problem, but it really does
involve a cultural change. And I'll site, just briefly, the
example of the NEPA delegation in California. I can tell you
when we first implemented that process and when our legislature
did in fact agree to forego a sovereign immunity in the case of
transportation projects.
There was a great deal of reluctance--not from the
leadership of the Federal Highway Administration, but from some
of the staff people, because they had grown up in a culture
which was looking very specifically at how we were doing
business. Now, I will tell you, and in response to Ms.
Napolitano's question, we've had that process in place now for
three and a half years, and you've heard the results. And the
response from the Federal Highway Administration has been very
positive, and I think we have gone a long way in this process
to developing that credibility leading to trust.
Mr. Farenthold. All right. Now in the written testimony or
background material I was provided, there was a document from
the Texas Department of Transportation, Texas being my State.
That's the first one I read, but, you know, they list the
amount of time it takes to get through some of these Federal
agencies and Federal processes, signing up to six years dealing
with Fish and Wildlife Service, Austin office. I mean that just
seems insane.
One of the things that I learned growing up is a promise
isn't a promise unless it's got a deadline and maybe a review
isn't a review unless it's got a deadline. And when it gets
out, would anyone on the panel like to comment about the
possibility of looking at some of these laws and regulations
requiring reviews by various agencies in saying, all right.
You've got `x' amount of time, and if you haven't come up with
it then, sorry.
Mr. Margro. I'd like to comment. I believe that's a very
excellent idea. There are in some cases Fish and Wildlife. They
have 135 days to give you a biological opinion, and in our case
it took over three years after there was a preliminary
determination that had already been made that there was No
Jeopardy.
There are those issues. The same thing with EPA and Corps
of Engineers. There's no time limit set. You have to continue
to do the study and to do the analyses that are put on the
table, if you ever have any hope of being successful.
Mr. Farenthold. Go ahead.
Mr. Replogle. Yeah. I would say that time limits can be
workable, but only if the agencies have the resources needed to
meet those time limits. And at a time when, for example, EPA is
being asked to take a 36 percent budget hit in the remainder of
this fiscal year, their capacity to deliver on timely project
reviews is going to be handicapped by those budget cuts.
Across all of the States today, we have massive cutbacks in
the resource agency budgets, which impairs their ability to go
beyond what is their core regulatory missions to get involved
in the planning process early, which can often help forestall
the kinds of delays that alarm everyone here in the room. And
so I think we have to look at how these pieces connect to each
other, and budget decisions do impact the ability of agencies
to deliver on time.
Mr. Farenthold. Even with a limited budget, however, or
maybe a limited budget is a good thing. Then it forces an
agency to set priorities about what they are going to want to
deal with. So I just leave that, and I see I'm out of time. So
thank you all very much.
Mr. Duncan. Thank you very much.
Ms. Napolitano.
Mr. Kempton. Mr. Chairman?
Mr. Duncan. Oh, yes?
Mr. Kempton. I just wanted to say that what you've
suggested to the member from Texas is exactly what we're
proposing in our Prompt Action provision, which would require a
deadline and would require agencies to meet their
responsibilities within a specific timeframe.
Now, this issue of staffing is something that we have taken
very seriously in California, and it is a problem. And I really
recognized what Mr. Replogle is saying. The fact of the matter
is in our case, in California, many times the State would
provide the consultant support or a staff person to actually
aid the regulatory agency in conducting the review.
That did help speed activity along, and so that is one step
that there should be a great amount of flexibility on.
Mr. Duncan. Thank you.
Ms. Napolitano.
Mrs. Napolitano. Thank you. And Mr. Kempton, if you
wouldn't mind, the question that I had posed to Mr. Mendez and
an answer in regard to staff training input internally, I know
that a lot of things have been done on the outreach. But, what
about internally?
Mr. Kempton. Ms. Napolitano, I think you hit the nail on
the head with respect to we have talked in general about this
cultural change that needs to occur, and it really does need to
be a separate focus. So I liken it to construction management.
You can do construction management where you're being the
construction inspector where you're down there telling the
contractor you don't like the mix of concrete or the width of
the rebar; or, you can be assuring quality assurance, which is
sort of setting the standards and the frameworks.
The Federal Government should be the quality assurance
agency, and the State should be the quality control or the
construction inspection piece of the equation; and that, I
think, is the kind of internal educational process that needs
to be pursued with a great deal of vigor.
Mrs. Napolitano. Well, it goes back to what you pointed out
in trust, because if you've been able to build up that
relationship where you know that what you put on paper is
actual fact that is being carried out, then there is that level
of trust that you can begin to build on and work for.
The problem is, sometimes, as you stated, there are budget
cuts every single State. So how are we going to be able to deal
with it? And it isn't budget cuts that were 10 years ago. We
were flush 10 years ago. So what's happened between then and
now? And what have we learned are we going to be able to do to
ensure in the future we are utilizing that as a lesson to be
learned so that we can move forward. And we are downsized,
already, and there are going to be more. How do we work
together on that?
Gentleman? Anybody?
Mr. Replogle. There is one key thing that could be done--to
set aside a portion of the Federal Transportation dollars that
go to States and metropolitan areas to help ensure that the
resource agencies have the funding to be involved in the
planning process, just as funding is set aside for State DOTs
for their planning process and set aside for metropolitan
planning organizations for their planning process--have a
similar set-aside for resource agencies. And then everybody's
at the table; everybody's in the room and the job can get done.
Mr. Buffa. And through the chair, Mrs. Napolitano.
When you see some of the specifics that we'll bring forward
to you shortly in terms of what we're proposing for the process
in a very specific sense, there are a significant number of
duplicative efforts, which will help in a time of shrinking
resources that the agencies themselves, there is a much smarter
way to do this that will require much less of an effort on
their part, not more of an effort.
Oftentimes, when people hear talk about the compression of
timelines, they get worried that we're going to have to go into
overtime and hire additional people, and whatever, if you just
get smarter on how to do this, there will actually be less of a
demand on their resources than more.
Mrs. Napolitano. But isn't it something that, internally,
you can identify? Because we wouldn't be able to tell you what
those areas are that you can prevent that duplicity.
Mr. Buffa. Absolutely, and that's exactly----
Mrs. Napolitano. Which is going back to staff training
input, being able to identify and be able to look at them and
see if that is one of the areas that you may be able to move
forward to. Answer, Mr. Margro.
Mr. Margro. Yes, thank you, Congresswoman Napolitano.
I would just say one additional thing. You know, there's
this old expression that, you know, people pay attention to
whatever the boss pays attention to, and I think one way to
make sure that we're aware of how things are progressing with
this whole environmental process and project delivery would be
to make sure that there's transparency and reporting back to
committees like yourselves, so that we can see examples of
what's happening with these projects, how long are they taking,
and call us. Call other people on these projects to come and
testify why these are being held up, including the agencies
themselves.
Mrs. Napolitano. Thank you.
Ms. Miller?
Ms. Debra Miller. Yes, I'd just like to add a couple of
additional thoughts. Included in our recommendations that's
contained in the written testimony are some ideas that I think
would be helpful in this area. And this could be done through
law. One is having one lead agency at U.S. DOT. Sometimes the
fact that there might be more than one modal administration
involved, I think, can lead to delay. And if there were one
lead agency was clearly the lead agency and was calling all the
shots, things would move much quicker.
I think picking up on something that Mr. Kempton said, what
we'd like to see is moving to the place that States are doing
the project by project level analysis, and the Federal Highway
Administration is doing the oversight, moving towards more
programmatic determinations. If we lay out a program of how we
will handle certain things and get Federal Highway to sign-off
on that, that as long as we're handling it according to our
plan, then we can proceed.
I think that that will speed things up too, so I think
there are both cultural, attitudinal and leadership issues that
could be helpful, and then I think that there are some real,
practical, both changes in law and changes in procedures that
could also go hand-in-hand in terms of making things speed up.
Mrs. Napolitano. Thank you. And thank you, Mr. Chair.
Mr. Duncan. Thank you.
Mr. Hanna is next on our side.
Mr. Hanna. Mr. Kempton. I found a few of your comments very
insightful. It matches my 30 years in construction in terms of
project delay.
Your comments were fairly nuanced, but I thought very
insightful, that micromanaging in the name of good project
control, that document length has a measurement somehow of
quality or purpose, focusing in place of advancing processing.
But one that was particularly interesting to me, an erroneous
belief that delay is evidence of diligence, also a failure to
penalize delay and reward innovation at the Federal and State,
local level.
Those are fundamentally cultural, but they're also very
human traits; and, my personal experience is that people do
avoid risk and that bureaucracies--and it's not their fault,
necessarily--avoid risk more than most. We always used to say
that if you wanted to hold a project up ask a question. And I'm
just curious if that's kind of the general experience of the
panel, and how do you get around a thing like that?
Because it is deeply nuanced. It is cultural, and it also
is the natural human element to avoid risk, since basically
their checks are the same and their rewards are down. So how do
you unwind a thing like that? And, furthermore, how much do you
think that adds to the delay, generally, of these processes.
Your Orange County Transit Authority seems to think quite a
bit.
Mr. Kempton. Well, they do if I can be very candid, Mr.
Hanna. The fact of the matter is if you look at the history of
the project delivery process--and California is an example that
is representative of the country, I think--in our own CEQA
process, the California Environmental Quality Act, every time
the State is sued on a document, that document grows in size,
not just for that project, but for every other project that
comes after it.
There is an additional step that's taken to avoid that
legal challenge that was made; and, so, you take a process that
may have resulted in the document this thick, and now it's a
process that results in a document that is that thick. And, as
I said in my comments, I don't think the size of the document
relates necessarily to the quality of it.
So I am sorry that I don't have another solution, then, to
say it is a cultural or an attitudinal issue that needs to be
developed, but leadership can, and the Congress and the
administration can certainly set a tone for accelerating
project delivery. That's the outcome that we are looking for,
is getting projects to construction sooner.
That will take some time to move down in the process, but
it can work. When I was at Caltrans, I focused on being good
partners. In my judgment, the Department of Transportation when
I became director was not a good partner. Everybody looked
inward and not outward at our customers. And so I spent five
years trying to change that culture, and I think I made some
progress in that regard, but it is a leadership requirement.
We are going to have to have, I think, the Congress and the
administration saying to the Federal Highway Administration and
to the States it's OK to focus on accelerated output.
Mr. Hanna. But, implicit in that isn't there the idea that
you have to add not just accountability, but an allowance for
risk.
Mr. Kempton. I agree with that, and I think with respect to
the comments that Mr. DeFazio was making, I think that there
are some ways. And I hate to say this and my attorneys would
probably be very upset with me, but maybe there's a form of
design immunity that comes with making decisions within a
reasonable framework in terms of flexibility and design
standards, which can result in shorter processing times.
Mr. Hanna. Thank you.
Mr. Duncan. All right. Thank you very much.
Mr. Barletta is next.
Mr. Barletta. Thank you, Mr. Chairman.
And my question will be to Mr. Kempton. I have the pleasure
of hosting a listening session in my district this Friday as
part of this committee's drafting of a new, long-term Surface
Transportation Reauthorization bill. I want to thank Chairman
Mica for including my district in his series of meetings
behind, held across the Nation, looking at many of the same
issues we were discussing here today; namely, improving
performance and cutting government red tape.
One of the attendees at this Friday's listening post in my
district is Thomas Lawson. He is the co-founder of an
engineering design firm that designs, builds roads and bridges
in Pennsylvania. He recently told me that during the flood of
2006 an emergency bridge project that normally would take up to
four years to complete from design to completion, because of
the streamlining of regulations from all agencies involved they
were able to design, build and complete the bridge in four
months.
Now, I know that the time from when a contract is awarded,
a bid is awarded to the notice to proceed, that in itself could
take a few months. My question is that streamlining project
delivery seems to be an ongoing topic for prior and current
reauthorization bills. What is different about today's climate
versus previous authorization bills that indicates that we
should make some substantial movement in accelerating project
delivery?
Mr. Kempton. I think our focus has been on jobs and the
economy. When we went through the American Recovery and
Reinvestment Act process, we had a large sum of money that was
made available to the States and to local agencies for funding
projects, many of which had not gone through the Federal
process.
So in order to spend those dollars quickly, we had to go
back and pick up the process to qualify those projects for
Federal funding, and we found that that process was onerous and
took a considerable amount of time. I referenced that on my
testimony relative to amendments to the transportation
improvement programs, the Federal TIPs from a conformity
perspective.
Those are the kinds of things that can be shortened. But,
the environment today, Mr. Barletta, that you've referenced, is
the economy. We've got projects that if we can get them out to
bid, we are achieving 25 to 40 percent savings on the
engineer's estimates for those projects. We have a very hungry
construction industry out there, and we want to get everything
out but the kitchen sink so that we can take advantage of that
environment.
And I think that that along with the developing notion of
regulatory reform that's taking place, both within the
administration and the Congress, is a very positive thing. And
I know Director Buffa wanted to add to that as well.
Mr. Buffa. Yeah. Through the chair. Mr. Barletta, you used
the example of a flood in your district. Two examples we quite
often use are the 1994 earthquake which flattened huge portions
of the I-10 freeway through Los Angeles that connects downtown
Los Angeles to the coast.
Just much more recently, a horrific fire on the Bay Bridge
while Mr. Kempton was in the close of his tenure in Caltrans,
which he turned around--not in a matter of months, but
literally a number of days. That bridge is critical to the
circulation of the entire bay area. What we're trying to say is
those were natural disasters. We are in an economic disaster.
All of you spend a lot of your time trying to figure out
how to create jobs. If you'll accept the economic crisis in the
same terms as a natural disaster, those same efforts that
expediting mean that you hold, as Members of this Committee,
you hold hundreds of thousands of jobs in your hand. You just
have to open your hand. They're there. Those of us who have
been policymakers in transportation for a long time, I've been
at this game since the mid-1980s.
The position we are typically in is coming back here
begging for money. Give us money for our project. We are not
begging for money. We are talking about projects that are paid
for. They are stuck in processing. If you will free that
process up and you have to leave all of the environmental
safeguards in place, if you'll free that process up and make it
smarter, there will be an explosion of jobs nationally.
You hold that many jobs in your power, so that's the point
we are trying to make; whether you want to make it analogous to
the 1994 earthquake in our area or the flood in your district,
the economic crisis is what we're asking to substitute for the
motivation to finally, finally make this happen in a big way.
Mr. Barletta. Thank you.
Mr. Duncan. Thank you very much.
Mr. Southerland is next on our side.
Mr. Southerland. Thank you, Mr. Chairman.
You know, I find a really screwed up system when given more
money just becomes a really well-funded, screwed up system. And
I find that the American people have very little patience with
better funding for really screwed up systems.
As a small business owner and one who ran and has never
been a member of elected office before, I am telling you
there's a great impatience. OK? And oftentimes, and I have
heard members from the panel today talking about we need more
money, and that bothers me.
You know, when you talk about 13 years to complete a
project and you want more money, OK, I find that much of
government, they've got to prioritize. OK? You've got to
distinguish the same thing the American people are having to
distinguish.
The difference between what is good and what is best, and
what I am seeing in its amazing site to be exposed to for the
first time, I am seeing a whole lot of activity, but not nearly
enough productivity. And I think that the American people want
to see results before they sign off on billions upon billions
upon billions of more dollars so that we can perpetuate a
really screwed up system into a really, really, really screwed
up system.
So there've been some wonderful ideas here today. I love
the idea of time. Put a time--if you've got an objection to a
project. That's probably the single, greatest idea that I've
heard today. You know, if I don't put my college children on a
budget and say you just come to me whenever you need another
$50, well, they're going to keep coming.
If I tell them that $50 has got to last you for, you know,
a week, well, they know what the rules are. It really comes
down to leadership, though. And I've heard Mr. Kempton. You've
mentioned leadership, good leadership, servant leadership
perpetuates trust. Great leadership also has the element of
communication. OK. Well defined projects; you can't get your
hands in every project. And, yet, at all levels of government,
the American people feel like the government is involved in
every part of our lives.
So, I asked earlier the question, you know, if you were
king for a day. I would say Mrs. Miller, I would like to ask
you, if you don't mind, because you represent a State. OK? And
Mr. Mendez didn't want to speak for you, so I ask you to speak
for yourself. If you were queen for the day, what would you get
from the Federal Government that would allow the States to not
have their future 15 years down the road, to be able to shrink
that timeline.
What is the greatest impediment that you see right now for
project delivery time?
Ms. Debra Miller. I think the issue that I would put on the
table is this issue of allowing programmatic plans so that
we're not doing project by project reviews, and that States are
doing the project by project analysis. And the Federal Highway
Administration or the Federal Government, whichever resource
agency it might be, would be doing the oversight of what we're
doing.
Mr. Southerland. I will say I live in Panama City, Florida,
and over the last 10 years we've been affected by a couple
disasters that have made some front page news: the hurricanes,
obviously, and the most recent, Deepwater Horizon. And I will
tell you in the recovery--and somebody that lives on the beach,
OK--I would concur what you just said. All right?
If the Federal Government would have come in and provided
assistance, this is our town. We know every nook, every cranny.
We know the people in need. We need support, and so I would
love to see us going forward, but the Federal Government
realized that they have a part and they have to play.
But the people on the ground, OK, the local citizens, the
local communities, the States know far better what they need
for their communities and their State. So I like hearing what
you're saying. You've got some great ideas here. It needs to be
a partnership, but they needed to be in more of an oversight
and supporting role while the States themselves take the ball
and run down the field.
So thank you for your input, and I yield back.
Mr. Chairman?
Mr. Duncan. Thank you.
Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman, and thank all of our
witnesses for being here today.
I would just like to make a comment on what Mr. Southerland
said about putting a timeframe in place. You know, that makes a
lot of sense. One of the things we have to do in legislation is
to stop these groups from putting lawsuits one after the other
and slow walking these things, because that's what I saw.
A highway in my district, 60 miles, took 38 years to build,
and it was mainly due to the--you know, first it was the
Indiana bat. Then it was a fern. Then it was some pyrite we
found, so it just takes forever to do this, and we've got to
limit them on allowing them to go to court after court
challenge after court challenge. So, but Mr. Southerland is
absolutely right. If you put a time limit and the laws line up,
I think we can get things done quicker.
My question is concerning--it's very specific, because when
we're talking about these things, I like to delve into very
specific projects and try to get a sense of how the Federal
programs slowed us down. The Anaheim regional transportation
intermodal center, which is an important transit site for rail
in downtown Anaheim, it's a cost of $184 million; and, of that,
the Federal Government is providing $11 million, which is to my
calculation about six or seven percent.
How are those Federal funds going to affect the project
from moving forward, slow it down? Speed it up, I doubt, but if
that's the case, let me know.
Mr. Kempton. Thank you, Mr. Shuster.
Frankly, any time there's a penny of Federal money in
there, you're subject to the Federal process and we anticipated
that, certainly wanting to maximize the amount of available
funding coming to that project. We are looking at,
programmatically, for our local sales tax measure, a pretty
significant shortfall going out into the future based on the
decline of the economy that we've just experienced, and so we
have to take advantage of every other dollar that might be out
there.
However, we have gone through that process. I am happy to
say that we have completed the environmental process, and that
project will be going to construction this spring. And so, but
your point is very well made, and a State or a local agency has
to really give careful consideration from a delivery
perspective as to whether or not they want to involve the
Federal Government.
When there is a fiscal imperative that you need those
Federal dollars, that's when you get caught in the dilemma,
because the process does take longer when you have the Federal
requirements. Now, we've been talking a lot about the
environmental process, and from our perspective this is not
just about the environmental process.
It's really about some of the other processes that are in
place administratively, regulatory and in some cases statutory.
And we are trying to focus on some of the very obvious
solutions to the problem, to move project delivery overall
ahead faster, and that means jobs will be created sooner.
Mr. Shuster. All right. And can you quantify that at all,
how much more you had to spend, how you slowed it down from
just this project? But also, can you quantify what it does
economically or in employment? I don't know if anybody's come
in there and sat down with you and made those.
Mr. Kempton. I'm not sure that there's necessarily an
increase in cost, other than the time-related cost, because
process adds dollars to a project. So, for example, the NEPA
delegation, which is taking a year or so off the environmental
process for many projects in California, at a three or four
percent inflation rate, you are saving a significant amount of
dollars on a hundred-million-dollar project as an example; so
getting it out sooner.
And as I mentioned earlier, to the degree that we can get
projects to work right now, we're taking advantage of a very
good bid environment and we're helping stimulate the national
economy by getting people back to work sooner.
Mr. Shuster. Right. Well, thank you for the answer, and
just real quick to both Secretary Miller and to you, Mr.
Kempton, and your years at the Department of Transportation,
California.
I asked the question earlier about this review process. And
in Pennsylvania, you get it. The engineers--they stamp it. And
I'm told if that stamp should be good enough to allow things to
go forward, unless of course it's maybe some multi-billion-
dollar where the State wants to just do a little followup, but
in Kansas and in California what's the process there as far as
projects and engineering, and their review?
Mr. Kempton. I'll start, Mr. Shuster.
California is, I think, very interested in what's going on
in Pennsylvania. Your design standard flexibility program and
practical design, I guess, is the name that we're calling that,
has we think worked very effectively. And, again, I know that
Caltrans, not to speak for them, is looking very carefully at
that approach. It's been more selective or individually focused
in terms of project by project attention. A program such as
what Pennsylvania and other States are adopting is something
that I think would have great application in California.
Ms. Debra Miller. If this is responsive to your question,
you know, one of the things, like many DOTs, we do in-house
design, but we also do a great deal of design with outside
consultants. And we've had to work, again, culturally, with our
own design engineers, because, you know, my feeling is if we've
hired a qualified engineering firm and they have stamped the
plans, then our engineers don't have to review every single
decision that was made by that design engineer.
And I think we've made great progress, but I can tell you
eight years ago they would have spent a great deal of time
looking at every single calculation that was made; and, so,
there is a tendency at every level, I think, for people to
think I need to redo it, and we've tried to change that
attitude in our department.
Mr. Shuster. Thank you very much.
Mr. Duncan. All right. I understand that Mr. Long and Ms.
Herrera Beutler don't have any questions. Is that correct? Oh.
All right. Go ahead, Mr. Long. All right. Go ahead.
Mr. Long. Thank you, Mr. Chairman.
I've got a question. I asked Mr. Margro first.
You were talking about the delay of up to three years, and
was that environmental delays?
Mr. Margro. The three-year delay was waiting for the U.S.
Fish and Wildlife Service to complete their biological opinion
and give a report back on that. What happened was when the----
Mr. Long. And it was supposed to take 145 days?
Mr. Margro. 135 days.
Mr. Long. OK. And what happened? I'm sorry I interrupted
you.
Mr. Margro. Oh, sure. What happened is they don't do their
final determination until there's a selection of the least
environmentally damaging, practicable alternative, which is
made by the Corps of Engineers and agreed to with EPA. Once
that happens, that triggers the formal consultation that Fish
and Wildlife then goes ahead and does their evaluation. It's
supposed to be completed in 135 days. In our case, it took a
little bit over three years.
Mr. Long. OK. I've dovetailed that end of the question for
Mr. Buffa. You remind me of the attorney, Jerry Spence, when
you say in our hands as he would do to the jury, you hold
thousands of jobs; and, in this thousands of jobs, if I
understood you right, you said the money is there for those
projects. All you have to do is open that, but then they did
not also say that we have to follow each environmental rule, or
did I misunderstand that? And, if so, it doesn't work with your
seat right there.
Mr. Buffa. I'm sorry, Mr. Long, I didn't understand the
very last thing you said. We have to follow what?
Mr. Long. You have to follow--I'm from Missouri. It's
probably my New York accent that's throwing you off.
Mr. Buffa. That's OK.
Mr. Long. But we have to follow the EPA rule. You say we've
got the money for these projects. We're holding in our hands
thousands of jobs, but yet we need to--we can expediate these.
I'm trying to paraphrase what you said.
Mr. Buffa. Sure.
Mr. Long. But you said we can expediate these projects;
however, we still need to follow the environmental rules. Is
that correct? And, if so, how in the world are we going to do
that with what Mr. Margro just went through?
Mr. Buffa. That comment, Mr. Long was kind of dovetailing
something that Mr. Klempton said, that when you see--and we
hope that's very shortly--the specifics of what we're
suggesting in this breaking down barriers plan, a lot of it is
process related. It would be changes in the process that
doesn't affect the environmental process. It would have made
Tom's journey shorter and easier only because the whole process
would get more efficient. And the best expression I've heard of
this problem, we've met with the White House on three separate
occasions. We'll be back there tomorrow on this program.
They're quite interested.
One of the gentlemen we met with early on, I could see the
moment of realization in his eyes when his eyes popped open and
he realized what we were talking about: process. There are
hundreds of thousands of jobs held up nationally, just because
of process. He said I don't think the American people would
like to know that hundreds of thousands of jobs in this economy
right now are being held up because of paperwork on somebody's
desk.
Mr. Long. I don't like hearing that either, so that's why I
earlier said I didn't have any questions, but I've changed my
tune.
Mr. Buffa. And that's what we're talking about. If we are
going to proposed changes and process that leave the
environmental processing, the environmental examination, in
place, you just do it smarter.
Mr. Long. It sounds like you're dreaming in color to me.
Mr. Buffa. Well, I've spent a lot of time dreaming.
Mr. Long. So these projects not only are funded, they're
ready to go, thousands of jobs in our hands. They've already
cleared the environmental hurdles.
Mr. Buffa. No, they're in the process----
Mr. Long. Well, they go back to say they're really not in
our hands. We can't open up our hands tomorrow and produce
these jobs like you said earlier, correct?
Mr. Buffa. If you put just one measure out of this whole
hearing, if you enacted one measure, which is time limits and
expiration dates.
Mr. Long. That's what we're here for, and I appreciate it,
and we will work towards that.
Mr. Buffa. That, by far, in my humble opinion is the most
concrete suggestion that came out of this discussion. But keep
in mind again I've been at this a long time. You're tampering
with the primal forces of nature with regulatory agencies when
you suggest time limits.
Mr. Long. That's where the dreaming in color part comes in,
but as Mr. Buffa would say, if you've got all the jobs, let's
get ready to rumble.
And, Ms. Miller, real quickly, I apologize. In your
testimony--I want to make sure I got the right question here.
OK. Go to this one. In Kansas do all projects go through the
Federal process, and if not are there any State or local ones,
just go through a State process? And, if so, do you see a time
or cost savings when you don't have to go through this Federal
malaise?
Ms. Debra Miller. Well, I'd have to say most of our
projects go through something that's called a categorical
exclusion, and we have a programmatic agreement with Federal
Highway, so we make that determination on our own. And, you
know, we end up we're a small rural State. We end up with just
a handful of projects, typically, that go into environmental
assessments or environmental impact statements.
So the vast majority of our projects, they're moving
forward. They're moving forward in meeting deadlines and
timeframes. There's no question about that.
Mr. Long. They're going through the Federal process, most
of them, and on the State ones, you notice a big--is there
anything you do on the State level that we could change on the
Federal level, I guess. Is one of them tying into your projects
Ms. Debra Miller. Well, if we follow the Federal process,
that's what we use for environmental work. We follow the
Federal process.
Mr. Long. OK. OK. OK. I yield back, although I'm a minute
over.
Mr. Duncan. That's all right. Well, my goal is to try to
complete these hearings in a couple of hours, and I see Mr.
DeFazio has come back.
Do you want to make closing comments?
Mr. DeFazio. No, Mr. Chairman. I want to say I think we've
got a good framework from this. We'll look forward to Mr.
Kempton's report as being instructive. I think there are places
where we should be streamlining the process. I was attempting
to do that last year. Be happy to share what I thought might
work, and then build with what you want to do on top of that.
So I'm really pleased, and I think we got a lot of information
in a short period of time. Appreciate your respect for
everybody's time.
Mr. Duncan. All right. Thank you very much.
I think we've heard some very helpful and very informative
testimony here today. I do think that we're going to need to do
much, much more to penalize delays and reward or incentivize
innovations or innovation, or companies that complete projects
ahead of schedule.
Finally, as a formality, I would ask unanimous consent that
the record of today's hearing remain open until such time as
our witnesses have provided answers to any questions that may
be submitted to them in writing, and unanimous consent that
during such time as the record remains open, additional
comments offered by individuals or groups may be included in
the record of today's hearing.
That means, ladies and gentlemen, that all of you on the
panel and anyone in the audience wishes to submit any
additional opinions, suggestions, ideas or testimony can do so,
and that will go in the formal record of this hearing. That
will conclude this hearing.
Thank you very much.
[Whereupon, at 12:08 p.m., the subcommittee was adjourned.]