Conference report on h. R. 3, Safe, accountable, flexible, efficient transportation equity act: a legacy for users

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consideration of certain factors in establishing the schedule (section 139(g)(1)(B)). The Conference Substitute provides for notice to the United States Senate Committee on Environment and Public Works and the United States House Committee on Transportation and Infrastructure of failure of a Federal agency to make decisions in the environmental review process (section 139(g)(3)). No provisions in this section shall reduce time periods provided under existing Federal law for public comment (section 139(g)(4)). The Conference Substitute provides procedures for issue resolution at the request of a project sponsor or Governor of the state in which the project is located (section 139(h)). The Conference Substitute provides for a program to measure and report on progress toward improving and expediting the environmental review process (section 139(i)). The Conference Substitute adopts a modified version of section 1309(f) of the Transportation Equity Act for the 21st Century (112 Stat. 232) to provide that nothing in this section shall affect the reviewability of any final agency action in a court of the United States or the court of any State (section 139(k)). The Conference Substitute establishes a 180-day period for filing any law suit challenging a permit, license or approval issued by a federal agency for a highway or transit project. This period starts when the lead agency gives public notice in the Federal Register that a final decision has been issued (section 139(l)). The Conference Substitute includes the Senate provisions on repeal of section 1309 of TEA-21 and preservation of existing State environmental review processes, programs, agreements or funding arrangements approved by the Secretary under section 1309 of TEA-21.

   SECTION 6003. STATE ASSUMPTION OF RESPONSIBILITIES FOR CERTAIN PROGRAMS AND PROJECTS

   House Bill

   Sec. 1207.

   This section provides the Secretary the authority to conduct a pilot program for up to five states to assume the responsibilities of the Secretary for projects funded under Section 104(h), transportation enhancement activities under Section 133, as defined in Section 101(a)(35), and projects defined in Section 101(a)(38) of title 23, and Section 5607 of TEA LU.

   Senate Bill

   No Comparable Provision in Senate bill.

   Conference Substitute

   The Conference adopts the House provision.

   SECTION 6004. STATE ASSUMPTION OF RESPONSIBILITY FOR CATEGORICAL EXCLUSIONS

   House Bill

   No Comparable Provision in Senate bill.

   Senate Bill

   Sec. 1512.

   Section 1512 gives the Secretary authority to assign and a State the ability to assume the Secretary's responsibility for processing the environmental review for projects classified as categorical exclusions under current Council on Environmental Quality regulations.

   Categorical exclusions (CEs), according to current Council on Environmental Quality regulations, are projects that `do not individually or cumulatively have a significant effect on the human environment'. Approximately 90% of all surface transportation projects are processed as CEs. So, while CEs take significantly less time to prepare than environmental impact statements, a slight improvement in processing time for each CE can result in a large improvement system wide.

   Conference Substitute

   The Conference adopts the Senate provision.

   SECTION 6005. SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM

   House Bill

   No Comparable Provision in Senate bill.

   Senate Bill

   Sec. 1513.

   This section establishes a pilot program for not more than five States to assume the Secretary's responsibility for environmental review for a project. This delegation does not extend to conformity determinations, planning requirements, or rulemaking authority. Delegation of the Secretary's responsibility to a State shall be governed by a written agreement between the Secretary and the State. To ensure compliance by a State, the Secretary shall conduct periodic audits for each State participating in the program. The public shall have opportunity to comment prior to the submission of a State's application to participate in the pilot program and following an audit of compliance with the agreement.

   The legislation includes a 5-State pilot program (including a pilot for the State of Oklahoma) for delegation of certain of the Secretary's environmental review responsibilities for transportation projects within the pilot State. The pilot program is intended to provide information to the committee and to the public as to whether delegation of the Secretary's environmental review responsibilities will result in more efficient environmental reviews that are performed according to the same procedural and substantive requirements as would apply if the Secretary were conducting the reviews.

   Conference Substitute

   The Conference adopts the Senate provision with the addition of California, Texas, Ohio, and Alaska as states participating in the pilot program.

   SECTION 6006. ENVIRONMENTAL RESTORATION AND POLLUTION ABATEMENT; CONTROL OF NOXIOUS WEEDS AND AQUATIC NOXIOUS WEEDS AND ESTABLISHMENT OF NATIVE SPECIES

   House Bill

   No Comparable Provision in House bill.

   Senate Bill

   Sec. 1601.

   This section amends title 23 to establish eligibility for environmental restoration and pollution abatement, and invasive species. The section makes eligible the use of NHS and STP funds for activities under this section.

   Section 165 establishes the eligibility for environmental restoration and pollution abatement and authorizes the use of funds for projects, including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under sections 410 and 402 of the Federal Water Pollution Control Act, which will address water pollution or environmental degradation caused wholly or partially by a transportation facility. The expenditure of funds is limited to 20 percent of the total cost of an ongoing reconstruction, rehabilitation, resurfacing or restoration project.

   Current law allows a State to use STP funds for environmental restoration and pollution abatement projects (including the retrofit or construction of stormwater treatment systems) to address water pollution or environmental degradation caused or contributed to by transportation facilities. As amended, the use of STP funds is now extended and the use of NHS funds is now authorized for these projects, as well as mitigation projects related to Federal highways but not limited to those currently undergoing reconstruction, rehabilitation, resurfacing or restoration.

   Section 166 establishes provisions for the control of invasive plant species and the establishment of native plant species. Activities carried out under this section must be related to transportation projects funded under Title 23. Activities to control invasive plant species or to establish native species may be carried out in advance, concurrently with, or following project construction. Activities carried out in advance of projects are allowed if such measures are consistent with Federal law and State transportation planning processes.

   Conference Substitute

   The Conference adopts the Senate provision with the following modifications: Invasive species has been changed to noxious weeds and aquatic noxious weeds, as defined in the Plant Protection Act; General activities are the establishment of plants selected by state and local transportation authorities to perform abatement of stormwater runoff, stabilization of soil, or aesthetic enhancement, and management of plants which impair or impede the establishment, maintenance, or safe use of a transportation system. These activities include: (1) right of way surveys to determine management requirements to control noxious weeds, brush or trees considered to be a threat to safety or maintenance of transportation systems; (2) control or elimination of plants; (3) establishment of plants, whether native or non-native with a preference for native when possible; (4) elimination of plants to create fuel breaks for the prevention and control of wildfires; and (5) training.

   SECTION 6007. EXEMPTION OF INTERSTATE SYSTEM

   House Bill

   Sec. 6004.

   This section provides that the Interstate System itself shall not be considered a historic site for purposes of 23 U.S.C. 138 or 49 U.S.C. §303(c)--the laws commonly known as ``Section 4(f).'' This section allows individual elements of the Interstate System to be considered historic sites for purposes of Section 4(f), if those elements possess an independent feature of historic significance.

   Senate Bill

   Sec. 1604.

   This section establishes an exemption for the Interstate System from consideration under section 303 of title 49 and section 138 of title 23, regardless of whether the Interstate System or portions of the System may be listed on or eligible for the National Register of Historic Places. A portion of the Interstate System that possesses an independent feature of historic significance, such as a bridge or an architectural feature, shall be considered an historic site under section 303 of title 49 and section 138 of title 23, as applicable.

   Conference Substitute

   The Conference adopts the House provision with a technical modification. The language is amended to align the exemption from review under Section 4(f) with the administrative exemption from review under Section 106 of the National Historic Preservation Act, published in the Federal Register on March 10, 2005.

   SECTION 6008. INTEGRATION OF NATURAL RESOURCE CONCERNS INTO TRANSPORTATION PROJECT PLANNING

   House Bill

   No Comparable Provision in House bill.

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   Senate Bill

   Sec. 1503.

   This section amends 23 U.S.C. 109(c) to direct the Secretary to consider two documents regarding context sensitive design when developing criteria for project design. The current provision for consideration of `A Policy on Geometric Design of Highways and Streets' is retained.

   Context sensitive design involves consideration of the environmental context of a project and encourages design that minimizes impacts on the project's surroundings. Adding context sensitive design principles to the current design criteria will give transportation officials the flexibility to adjust to the characteristics of each specific location while still ensuring sound engineering and safety measures.

   Sec. 1605.

   This section amends section 109(p) of title 23, Standards. The change is made to place greater emphasis on the need to consider preservation of human and natural resources as a part of the decisionmaking process in developing highway projects.

   Consideration of the impacts of highway projects has been part of the design process for many years. However, the transportation community, the traveling public, and communities have demanded improvements in project delivery and in the make-up of the product that is delivered. Compatibility with the surrounding context, or environment, and improved safety for the motorist and the pedestrian are critical. The changes to this section address the need to see that highway projects meet all of these goals by having a project sponsor consider community preservation and community concerns.

   Conference Substitute

   The Conference adopts the Senate amendment to section 109(c) of title 23, United States Code, but not the amendment to section 109(p).

   SECTION 6009. PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, AND HISTORIC SITES

   House Bill

   Sec. 6003.

   This section amends section 303 of title 49 and section 138 of title 23 to provide that requirements under such section(s) are deemed to be satisfied if an agreement under section 106 of the National Historic Preservation Act concludes that a transportation program or project will not have an adverse effect on an historic site, unless the Advisory Council on Historic Preservation determines that using the section 106 consultation procedure to satisfy the requirements of such sections is inconsistent with the objectives of such Act. This section applies only to historic sites. In any case in which an historic site subject to section 106 includes, or is a part of a park, recreation area, or wildlife and waterfowl refuge protected under the sections cited above, this provision shall not apply to such parks, recreation areas or refuges.

   Senate Bill

   Sec. 1514.

   Section 1514, subsection (a) amends section 138 of title 23 and section 303 of title 49, United States Code, to allow transportation programs and projects to move forward as long as the impacts are no more than de minimis impacts on protected parks, recreation areas, wildlife or waterfowl refuges and historic sites.

   Subsection (b) directs the Secretary to promulgate within one year of enactment regulations to clarify the factors to be considered and the standards to be applied in determining the prudence and feasibility of alternatives under section 138 of title 23 and section 303 of title 49, United States Code.

   Subsection (c) requires the Secretary and the Transportation Board of the National Academy of Sciences jointly to conduct a study on the implementation of the amended sections.

   The Department of Transportation Act of 1966 prohibited the approval of any transportation program or project that requires the use of public parks, recreation areas, wildlife or waterfowl refuges or public or private historic sites unless there are no prudent and feasible alternatives and the program or project includes all possible planning to minimize harm to these protected resources (this provision is commonly referred to as `section 4(f)').

   Subsection 1514(a) provides that section 4(f) requirements are satisfied if the program or project will have only a de minimis impact on the area. For historic sites, a finding of de minimis impact may only occur if: (1) through the consultative process under section 106 of the National Historic Preservation Act (16 U.S.C. 470(f)), the Secretary determines that the program or project will have no adverse impact on the historic site or that there will be no historic properties affected; (2) the applicable State or tribal historic preservation officer provides written concurrence with the Secretary's determination; and (3) the finding is developed in consultation with consulting parties under the section 106 process.

   For parks, recreation areas, and wildlife and waterfowl refuges, a finding of de minimis impact may only occur if: (1) through review required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Secretary determines that the program or project will not adversely affect the activities, features, and attributes of the park, recreation area, or wildlife or waterfowl refuge eligible for protection under section 4(f); and (2) the official(s) with jurisdiction over the protected resource concurs with the Secretary's finding. The purpose of the language is to clarify that the portions of the resource important to protect, such as playground equipment at a public park, should be distinguished from areas such as parking facilities. While a minor but adverse effect on the use of playground equipment should not be considered a de minimis impact under section 4(f), encroachment on the parking lot may be deemed de minimis, as long as the public's ability to access and use the site is not reduced.

   This subsection also provides that for all section 4(f)-protected resources, the Secretary shall consider any avoidance, minimization, mitigation or enhancement measures required to be implemented as a condition for approval of the program or project when determining if the project will have a de minimis impact. This language builds in an incentive for project sponsors to incorporate environmentally protective measures into a project from the beginning. The traditional section 4(f) requirements will apply to all projects with impacts that exceed the de minimis threshold even when mitigation measures are taken into account.

   In its decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), the Supreme Court ruled that determinations on no feasible and prudent alternatives must find that there are unique problems or unusual factors involved in the use of alternatives or that the cost, environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes.

   In order to address inconsistent guidance and regional interpretations of the Overton Park decision, subsection 1514(b) directs the Secretary to issue regulations to clarify the factors to be considered and the standards to be applied in determining whether alternatives are `prudent and feasible' under section 138 of title 23 and section 303 of title 49, United States Code. The fundamental legal standard contained in the Overton Park decision for evaluating the prudence and feasibility of avoidance alternatives will remain as the legal authority for these regulations, however, the Secretary will be able to provide more detailed guidance on applying these standards on a case-by-case basis.

   Subsection 1514(c) requires a study of the implementation of section 4(f) as amended. The study shall include evaluation of items such as any efficiencies resulting from the amendments of this section; the post-construction effectiveness of impact mitigation and avoidance commitments adopted; and the quantity of projects with de minimis impacts and information on the location, size and costs of the projects.

   Conference Substitute

   The Conference adopts the Senate provision with two modifications. First the language is modified so that a de minimus determination with respect to a park, recreation area or wildlife or waterfowl refuge satisfies the current law requirement that there is no prudent and feasible alternative, but the requirement to do all possible planning to minimize harm to the area is retained. Compliance with that requirement, however, shall not include an analysis of alternatives. The second modification requires an opportunity for public notice and comment prior to a de minimis determination for parks, recreation areas and wildlife and waterfowl refuges.

   SECTION 6010. ENVIRONMENTAL REVIEW OF ACTIVITIES THAT SUPPORT DEPLOYMENT OF INTELLIGENT TRANSPORTATION SYSTEMS

   House Bill

   Sec. 1206.

   This section requires the Secretary to conduct a rulemaking within one year to establish categorical exclusions, to the extent appropriate, for activities that support the deployment of ITS from the requirement that an environmental assessment or an environmental impact statement be prepared under NEPA, in compliance with the standards for categorical exclusions established by NEPA.

   The Secretary shall also develop a nationwide programmatic agreement governing the review of activities that support ITS deployment in accordance with the National Historic Preservation Act. The agreement will be developed in consultation with the National Conference of State Historic Preservation Officers and the Advisory Council on Historic Preservation.

   Senate Bill

   No Comparable Provision in Senate bill.

   Conference Substitute

   The Conference adopts the House provision.

   SECTION 6011. TRANSPORTATION CONFORMITY

   House Bill

   Sec. 1824.

   Section 1824 of H.R. 3 contains changes to the conformity provisions in section 176(c) of the Clean Air Act. The changes, which are discussed more fully below, address the following subjects: (1) frequency of conformity determinations; (2) changes to time horizons; (3) substitution of transportation control measures; and (4) conformity lapses.

   Frequency: Subsections (a) and (b) of Section 1824 change the frequency of conformity determinations for both the Transportation Improvement Plan (TIP) and the long range Regional Transportation Plan (RTP). Under these subsections, a conformity determination would now be required for both the TIP

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and the RTP only once every four years (Sec. 1824(b)). In the event that a new motor vehicle emissions budget is found to be adequate (as submitted during a State Implementation Plan (SIP) revision process), or is finally approved as part of a revised or new SIP, a conformity determination would be required within two years of such a finding or approval (Section 1824(a)). In addition, subsection (b) allows an area to update its conformity determination more frequently, if it so desires.

   Conformity Horizon: Subsection (c) of section 1824 addresses the conformity time horizon for RTPs. The time horizon is the period for which conformity must be demonstrated. Under current law this time horizon period is 20 years (or longer if the general RTP planning horizon is longer). Under this proposed subsection, an area may elect to reduce its time horizon for its RTP from 20 years to 10 years, but may do so only with the agreement of the MPO and the relevant Air Pollution Control Agency (APCA), as defined in section 302(b) of the Clean Air Act. In the event, however, that the attainment date in the SIP is more than 10 years away, or the date of completion of a regionally significant project is more than 10 years away, then the horizon date must be the later of those two dates. In cases where the SIP is revised to include adequate or approved motor vehicle emissions budget, and the SIP has an attainment date earlier than 10 years, the horizon may be revised to reflect that earlier date, but again, only with the agreement of the MPO and APCA.

   In any event, under subsection (b) a regional emissions analysis is required for any years of the transportation plan that extend beyond the conformity time horizon. Thus if the RTP general horizon is 20 years (as is common) and the conformity horizon is reduced to 10 years, a regional emissions analysis is nevertheless required for the 10-to-20 year period. Generating this information will be helpful in ensuring that conformity is maintained.

   TCMs: Subsection (d) of section 1824 allows substitution of ``Transportation Control Measures'' (TCMs) in a SIP, without going through a full SIP approval process or a new conformity determination, so long as the substituted TCM achieves an equivalent or greater emissions reduction than the TCM it replaces. EPA would determine whether a TCM meets that test. In addition, appropriate methodology would need to be used to determine emissions impact, reasonable public notice would be required, and adequate funding would be required. Finally, there is no requirement that a state change its SIP for TCM substitution, as indicated in the legislative language of the bill with the use of ``may'' rather than ``shall.''

   Conformity Lapse Grace Period: Subsection (e) of section 1824 adds a new one-year grace period of 12 months before a conformity lapse shall be considered to exist and the consequences of a conformity lapse shall apply. A lapse is defined as in current regulations. Under this provision, when a nonattainment or maintenance area fails to make a conformity determination by an applicable deadline, it will have 12 months to make such determination. During the 12-month grace period, only transportation projects in the most recent conforming plan and TIP could be funded or approved until the required determinations are made pursuant to Section 176(c) of the Clean Air Act.