SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 6694 words

COMMITTEE: HOUSE TRANSPORTATION AND INFRASTRUCTURE

SUBCOMMITTEE: HIGHWAYS AND TRANSIT

HEADLINE: TESTIMONY SOLUTIONS TO HIGHWAY CONGESTION

TESTIMONY-BY: E. DEAN CARLSON , SECRETARY

AFFILIATION: KANSAS DEPARTMENT OF TRANSPORTATION

BODY:
May 23, 2001 TESTIMONY OF E.DEAN CARLSON SECRETARY KANSAS DEPARTMENT OF TRANSPORTATION ON BEHALF OF THE AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS REGARDING TRANSPORTATION CONGESTION BEFORE THE SUBCOMMITTEE ON HIGHWAYS AND TRANSIT OFTHE UNITED STATES HOUSE OF REPRESENTATIVES Mr. Chairman, my name is Dean Carlson. I am Secretary of the Kansas Department of Transportation and President of the American Association of State Highway and Transportation Officials (AASHTO). First, I want to thank you on behalf of the state transportation officials across the country for the record funding levels in the Transportation Equity Act for the 21" Century (TEA-2 1). This resource commitment is necessary if we are to retain the competitive edge that our transportation system gives us in the global economy. And we are investing these dollars wisely in preserving and reconstructing our highways and bridges, in making them safer, and in expanding our rail and bus transit systems, while still protecting the environment. My purpose this morning is to share with you our views and suggestions on addressing the seemingly intractable congestion we are now experiencing throughout the entire transportation system. It appears that our growing population and prosperous economy have consumed much of the available capacity of all the modes. The Need for New Transportation Capacity The 2000 Census was a wake-up call with regard to the transportation capacity that this country needs to build to keep up with population growth. It shows that the U.S. population grew by 32 million this last decade: California by 4.1 million, Texas by 3.8 million, Florida by 3 million, five Western and Southern states by one million or more, and 14 additional states buy from 500,000 to one million. VMT has been growing twice as fast as our population. We believe that the leveling off of VMT that we have seen over the past year is not likely to continue very long into the future, and growth in VMT will resume. Freight has been growing even faster than VMT. Freight is expected to more than double in volume over the next 20 years, and it is anticipated that eighty- two percent of those shipments will travel over the roads. Over the last forty years the U.S. population grew by I 00 million and is expected to grow by an additional 100 million the next forty. From the 1960's through the 1990's, the U.S. built the 47,000-mile Interstate Highway System, and more than 200,000 miles of additional arterials. This network provides the mobility that has made the modem American economy possible. Our productivity and competitiveness depend on it. The strategy for the last forty years was to build the highways that were needed for the prospering economy. However, most of that construction occurred during the first half of the period. From 1956 to 1979 total highway system lane miles increased by 1. I million miles. From 1980 to 1999, the increase was less than one-third of that - only 300,000 miles were added to the system. The fact that we have congestion is just not surprising. There is a crisis of capacity - on the highways, on buses, in the air, on trains. What we need now is a vision of how to enhance and then sustain our mobility for the next forty years. And that vision must recognize that we need new capacity, not just preservation and maintenance. Of course, increasing transit must be part of the strategy to help add capacity and reduce congestion. In 1999, transit ridership reached 9 billion for the first time since 1960. This is good news for highway congestion, and state transportation agencies have a stake in seeing it increase even more. Doubling transit ridership over the next ten years would be an ambitious goal. in some of the most transit-oriented regions it would increase transit's share of trips to as much as twenty percent of all trips. In most other areas it would mean increasing the percentage of trips made by transit from approximately two percent to five percent. To make this mode shift happen, we will need increased investment in transit. But investment in transit alone cannot solve the congestion problem. Increasing transit ridership is a vital part of the solution, one that might meet anywhere from five to twenty percent of passenger trips, but that leaves a substantial gap in the capacity needs for the remainder of passenger trips and all of freight. Technology also holds the promise of improving traffic throughput by fifteen percent or more in major urban corridors facing congestion. This includes better traveler information through 51 1 systems, traffic incident management to clear accidents and assist stranded motorists, advanced traffic management centers, electronic toll systems, and electronic clearance systems for commercial trucking. Even if we can achieve the ambitious goal of meeting twenty-five percent of demand through transit and improved operations, the remaining seventy-five percent realistically can only to be met by building additional capacity. New capacity - to remove bottlenecks, improve intermodal connections and ease congestion - will be needed throughout the country. It will be needed in areas in the Midwest and East with moderate population growth, but significantly increased traffic. It will be absolutely essential in the areas of the South and West facing rapid growth. What Will It Take to Provide the Capacity We Need? There is a growing recognition of the need for substantial new capacity - including new highway capacity. But when we look back over the past twenty years, we all can see that adding new capacity - or even maintaining the system we already have - has become increasingly difficult. Quite simply, it's easy to say we need new capacity. But actually doing it - building the projects that provide the capacity - is a much tougher challenge. So what will it take to provide the capacity we need? I see three major challenges that we'll need to overcome: Resources. Through your leadership and the hard work of this Committee, TEA 21 provided a record level of funding for highways and transit. While a portion of the federal investment will go for building new capacity, most will be used for reconstruction and preservation of the existing system. And building new capacity is costly. Right-of-way acquisition especially in already developed urban areas involves higher costs because of the real estate involved and the neighborhoods and businesses affected. States, cities and counties are investing more in environmental mitigation to comply with increasingly stringent environmental standards. To be more responsive to community concerns, to comply with the increased complexity of environmental requirements, and to deal with litigation, state transportation agencies are also investing more in planning, design and legal staff work. So a big part of solving the capacity problem will be finding a way to maintain the high funding levels that we have been able to achieve in recent years. Political Will. Across the country, states are matching TEA 21's record investment levels with increases of their own. For example, in 1999, the Illinois legislature adopted Governor George Ryan's $12 billion, five-year "Illinois First" initiative, the largest infrastructure construction and repair program in state history. There is a growing recognition at all levels - federal, state, and local - that we are going to need to make major investments in new capacity in order to provide a transportation network capable of meeting the needs of our growing population and expanding economy. All of us in the transportation business have to continue to do our part to build public awareness of the need for new capacity. And I personally believe that if people understand the facts, and see how important this is to their daily lives, we will have the political will we need to get the job done. Streamlining. Even if we have the resources and the political will, we can't get new projects built if we can't get them approved. And as everyone knows by now, the approval process for new highway projects has broken down. It takes too long. It costs too much. It's too complex. And it's too easily sidetracked by small groups of determined opponents. If we are going to deliver the capacity we need to serve our growing population, we simply must find a way to fix this broken approval process. It's not going to be easy, but we must find a way to do it. If we don't, we're going to face congestion in the future that's far worse that anything we can imagine today. What Happened to the TEA-21 Streamlining Initiative? Fixing the environmental review process for highway projects is easier said than done. In TEA- 21, Congress said it: you told the U.S. DOT to come up with a coordinated process for completing all of the environmental reviews required for highway and transit projects. And to their credit, the FHWA and FTA tried to do it: they held listening sessions all over the country, they collected data and developed performance measures, and they worked with State DOTs and others to collect and distribute best practices. But when it came to the core of the effort - the proposed planning and environmental regulations - the streamlining process got off track. As everyone knows by now, we ended up with proposed regulations that in our view would have made the process worse than it is today - rather than streamlining the process, the regulations would have made it even more complex and time- consuming. So even though we are far from satisfied with the current process, we strongly opposed the FHWA's and FTA's planning and environmental regulations, and we urged them to step back and fundamentally reassess their approach. And in the end, no new regulations were issued prior to the end of the previous Administration. We understand that FHWA and FTA are now assessing a full range of options for getting the streamlining process back on track - from moving ahead with a final rule, to withdrawing the proposed regulations and starting over, to putting the whole thing on hold and waiting for Congress to deal with the problem in reauthorization. At the same time, the possibility exists that other reforms - including legislation - could be implemented this year, without waiting for new regulations and without waiting for reauthorization. So the time is ripe to take another look at streamlining and to think seriously about what can be done - this year - to get the streamlining effort back on track. With that in mind, I would like to offer some thoughts on lessons learned from the streamlining efforts so far and some specific suggestions about actions that Congress can take this year to re-start the streamlining effort. Lessons Learned from Previous Streamline Efforts As we attempt to get streamlining back on track, it's useful to stop and ask ourselves why it got off the track in the first place. What went wrong? First of all, let me say what didn't go wrong: it wasn't a lack of dedication or commitment by the people at FHWA and FTA. They are dedicated professionals who were faced with a truly difficult task. We didn't agree with all of their proposals, but we greatly respected the tremendous effort they made. We look forward to continuing to work closely with them to make environmental streamlining a reality. So what did go wrong? I think three factors are worth considering: Risks of the rulemaking process. In response to TEA-21, FHWA and FTA undertook the first comprehensive overhaul of their planning and environmental regulations since 1987. Re-opening the regulations presented an opportunity for resource agencies and interest groups to weigh in with demands for new requirements. To their credit, FHWA and FTA resisted many of those demands. But the net result was a set of regulations that actually ended up expanding requirements beyond those that previously existed - or at least creating a new regulatory overlay on top of other statutes, regulations, case law, and policy. So the lesson learned is that the rulernaking process truly is a double-edged sword: it can start out as a streamlining effort but end up as something quite different. To keep that from happening, continuing Congressional oversight is essential. Real-world barriers to setting and enforcing deadlines. To give "teeth" to the TEA-21 streamlining provisions, Congress directed transportation agencies to establish a coordinated review process with specific deadlines for agency comments. Congress also empowered the USDOT agencies to "close the record" after the deadlines expired. As we pointed out in our comments, these provisions never even made it into the proposed environmental regulations. But even without the regulations in place, there is nothing stopping transportation agencies today from using their authority under TEA-21 to set and enforce comment deadlines. And it's not happening. I'm not sure exactly why, but my sense is that in the real world, people are reluctant to commit to specific deadlines and even more reluctant to close the record when deadlines are missed. So while we certainly are not giving up on the idea of using deadlines to expedite the process, our experience with TEA-21 suggests that deadlines alone are not going to get the job done. Difficul1y of reforming the process without changing the laws. One of the most striking things in last year's NPRMs was Section 1420.109 of the proposed environmental regulations. That section listed 53 separate statutes and executive orders that FHWA and FTA are legally obligated to follow when completing an environmental study. We all can agree that streamlining should be achieved without weakening existing environmental protections. But I think we also can agree that significantly reforming the process without changing a single word in any of those 53 statutes or executive orders is a tall order - maybe an impossible task. Yes, we can make progress by doing a better job of integrating all of those requirements. But we also have to be realistic: to a great extent, the conflict and delay that plagues the environmental process is not the result of poor coordination or inadequate resources; rather, it is the natural and unavoidable result of an overwhelmingly complex labyrinth of legal requirements enacted by Congress over more than 30 years. Quite simply, some reform of those underlying requirements might be needed before we can make serious progress toward streamlining. What Can Be Done Now to Get Streamlining Back on Track? Looking back on the TEA-21 streamlining effort, it's natural to be pessimistic about the prospects for achieving significant reform in the near future. It's tempting to say "Let's just sit back and deal with it in reauthorization." If that means holding off on new regulations, I think most states would agree - we don't see a lot of value in re-starting or continuing the rulemaking process at this point. But it's equally important to keep up the momentum for reform. We simply can't afford to sit on our hands for the next two or three years - the problems are just too great, and the need for progress is too pressing. So we have to look for every opportunity to make tangible progress now. And with that in mind, I would like to offer a few thoughts on specific actions that Congress can take this year - actions that won't solve the whole problem but do have the potential to make a real dent. Please bear in mind that these are not intended as a comprehensive solution to the entire problem - they're lasers that specifically target a few of the biggest causes of delay. (1) Reform Section 46Q Section 4(f) of the Department of Transportation Act is a federal statute - within the jurisdiction of this committee - that is perhaps the single best candidate for immediate legislative reform. The basic problem with Section 4(f) can be simply stated. It was intended to ensure that certain resources - parks, recreation areas, wildlife refuges, and historic sites - would not be used for transportation projects if there was a prudent and feasible way to avoid them. In concept, Section 4(f) makes all the sense in the world. But in practice, the original intent has been lost. The real-world meaning of Section 4(f) today is "don't even think about using Section 4(o resource" - no matter how minor the resource, no matter how minor the impact, it must be avoided unless the avoidance alternative involves truly extraordinary impacts. That extreme reading of Section 4(f) accounts for the horror stories you so often hear - the church that's taken to protect the comer of a soccer field; the homes that are taken to avoid an old bam; the millions of dollars spent to avoid a visual impact on historic house that the owner knocks down shortly after the highway project is completed. The dysfunctional application of Section 4(f) has major, systemic effects on the environmental review process for highway projects. The FHWA's data indicates that Section 4(f) alone adds two years to the time needed to complete and EIS. And a recent study completed for TRB under the NCHRP program found that Section 4(f) is the single largest cause of delay in the approval of small projects. So it's are all problem across the board-not just for the big projects. Can the problems with Section 4(f) be remedied without legislation? Certainly, some improvements could be made through better regulations, increased use of programmatic agreements, and more common-sense application of the existing requirements. But to get at the root of the problem, legislation is needed. The reason legislation is needed is that most of the problems with Section 4(f) today can be traced back to 30 years of court decisions that have taken Section 4(f) far away from its original intent. Those court decisions have created a widespread belief that Section 4(f) resources must be protected at all costs - no matter what else needs to be sacrificed to achieve that protection. Because this perception is rooted in legally binding court decisions, only Congress can clarify and restore the original meaning of Section 4(f) and eliminate the delay and increased costs associated with that law. So what type of legislation is needed? Several ideas have been floated, and we're willing to work with you to find the right one. I'll just mention two proposals here, both of which have been endorsed by AASHTO: Eliminate the Overlap Between Section 4(f) and Section 106. First, Congress should act now to eliminate the overlap between Section 4(f) and Section 106 of the National Historic Preservation Act. This would mean eliminating the reference to historic properties in Section 4(f) and simply requiring USDOT agencies to comply with Section 106, like every other agency of the federal government. This simple change would ensure the continued protection of historic properties, while greatly cutting down on the bureaucratic delays caused the need to comply with Section 106 and complete the necessary Section 4(0 documentation. However, it is important to bear in mind that this reform - eliminating the overlap between Section 106 and Section 4(f) - would only deal with historic properties; it would not deal at all with the excessive protection that is sometimes given to other Section 4(f) properties. Restore Balance and Proportionality to Section 4(f). When it was enacted, Section 4(f) was intended to provide a "thumb on the scale" in favor of protecting Section 4(f) resources. Today, instead of a thumb on the scale, Section 4(f) is an overwhelming weight that drastically skews the scales in favor of avoiding even the slightest impact on the most minor Section 4(f) resource. To correct this imbalance, Congress must clarify one of the core concepts of Section 4(f) - namely, the concept of prudence. Allow me to explain briefly: Under current law, an avoidance alternative must be considered "prudent" - and therefore must be selected - unless it can be shown that the avoidance alternative has impacts of "extraordinary magnitude" and presents "unique problems." This interpretation of the concept of prudence makes it extremely difficult and time- consuming to obtain approval for the use of even the most minor Section 4(f) resource. Congress can and should correct the problem by creating a legal framework that allows for balanced, case-by-case judgments about whether an alternative is "prudent." We are developing specific proposed language to achieve this result, which we would be happy to share with you. These changes to Section 4(f) would not solve all the problems with this statute, but they would provide a great start - and they could be implemented immediately. By taking these actions now, Congress could expedite literally hundreds of projects, large and small, over the next several years. We urge you to take this needed step now. (2) Allow Delegation of NEPA Authority for Small Projects The second major area that deserves immediate attention from Congress is the delegation of NEPA authority to State DOTs for small projects. As you know, the NEPA process involves three levels of environmental documentation: a Categorical Exclusion (CE), an Environmental Assessment (EA), and a full Environmental Impact Statement (EIS). The vast majority of highway projects are processed with CEs and EAs. And in nearly all cases, the projects approved with CEs or EAs are uncontroversial. Yet many of these small and uncontroversial projects still face lengthy delays. In part, these delays result from bureaucratic overload - there are simply too many small matters that require coordination and approval from too many separate agencies. This is a situation that chies out for a streamlined, simpler process. One way to get these smaller projects moving is to allow FHWA and FTA to delegate their NEPA authority for small projects - basically, CEs and most EAs - to the States. By delegating responsibility for these smaller projects, the federal transportation agencies would free up their own resources to focus on larger projects - the upper-end EAs and the ElSs. And at the same time, by reducing bureaucratic hurdles, delegation would allow the NEPA process to be completed more quickly for smaller projects. So even if limited to small projects, delegation could help advance the cause of streamlining for all projects. (3)Affirm Transportation Agencies 'Authority Over Transportation Decisions In recent years, there has been a trend toward much earlier coordination between transportation agencies and the environmental resource agencies. This trend has had many positive results. But it also has created a new problem. As the environmental resource agencies become more directly involved in all aspects of the NEPA process, they tend to speak out much more forcefully on issues outside their areas of expertise or their areas of policy responsibility. in particular, we have seen more and more frequent disputes over purpose and need - that is, over how to define the basic objectives of a transportation project. We also have seen environmental agencies sometimes going so far as to dictate the assumptions that should be used in the transportation agencies' traffic models. That's going too far. Congress can and should address this problem by reaffirming a point that has long been considered obvious - namely, that transportation project sponsors, together with the federal transportation agencies, are responsible for defining the goals of transportation projects and for deciding issues of transportation policy and methodology. Clearing up these basic issues would go a long way toward resolving and avoiding interagency conflicts. (4) Make Streamlining a Part ofJ11 Federal Agencies 'Missions. In TEA-2 1, Congress gave the USDOT responsibility for streamlining the delivery of transportation projects. The legislation did not impose the same obligation on the other federal agencies. As a result, there is a perception in some quarters that streamlining is only the USDOT's job - rather than government-wide policy that all federal agencies are charged with carrying out. To change this mindset, and enhance accountability, Congress should enact legislation now that gives all federal agencies a clear and explicit streamlining mission. This legislation might even requires federal agencies to designate specific streamlining staff members at the headquarters and regional levels - with responsibility to report to Congress on their progress. We believe this small step could significantly bolster USDOT's streamlining efforts. (5) Establish Pilot Projects to Encourage Innovation. Finally, as we approach reauthorization, we must keep in mind that most of the reforms we're discussing today are really just minor changes to the established environmental process. In the long term, our goal should be to do much more than tinker around the edges - our goal should be to achieve genuine innovations that fundamentally transform and improve the environmental process. That kind of transformation won't be achieved overnight. But we can do it, if we allow and reward innovation. Right now, the cards are stacked against innovation: the regulations and procedures are so complex and restrictive that there's a strong tendency to avoid trying genuinely new approaches. We need a 180- degree change in the culture - we need to encourage innovation and reward new approaches that serve our customers better. One of the best ways to spur innovation is to allow pilot projects. We believe strongly that pilot projects are a critical, essential tool for bringing about long-term improvements in the environmental process. Certainly, we would hope to see new pilot project authority included in the reauthorization legislation. But there's no reason to wait for reauthorization. Pilot projects - on a limited basis - should be authorized now, so that Congress can begin to see the fruits of those efforts when the time comes to pass the reauthorization legislation. We would be happy to share with you some specific proposals for pilot project legislation, and to work with you to make pilot projects a reality this year. Thank you very much for your time today. I would be happy to answer any questions you may have.

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