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Transportation Transformation Group White Paper on Implementing MAP-21 Project Delivery Provisions

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The Transportation Transformation Group (T2) is a non-profit group built around a consensus that federal surface transportation policies demand a transformation that emphasizes congestion relief, increased safety, and the efficient movement of goods to America's transportation customers. Our members include departments of transportation of Texas, Florida, Indiana, Utah, New Hampshire, the North Texas Tollway Authority, Port of Houston, Pioneer Institute, Reason Foundation, Cintra US, Dannenbaum Engineering, HDR Engineering, Inc., Nossaman LLP, International Bridge, Tunnel and Turnpike Association, Bank of America-Merrill Lynch, Barclays Capital, Well Fargo, Goldman, Sachs & Co., HNTB Corp., JP Morgan, Raymond James & Associates, Inc., Piper Jaffray, Morgan Stanley, Siebert Brandford & Shank and Citi.

A cornerstone of the recently enacted "Moving Ahead for Progress in the 21st Century Act" (MAP–21), is policy aimed at finding solutions that free state ingenuity and reduce restrictions on innovation. T2 recommends that these concepts should remain at the forefront of the U.S. Department of Transportation's (USDOT) efforts to implement the new law.

MAP-21 demands timely decisions by environmental agencies by instituting a process that sets deadlines for project approvals and an elevation of disputes among agencies. T2 suggests that the success of these provisions will depend on the specificity of project deadlines and whether the risk of monetary penalties, as provided by MAP-21, will motivate environmental agencies to act within the established deadlines. T2 recommends that the Secretary adopt strict deadlines with stiff penalties to enhance efficiency and accountability in the project delivery process.

MAP-21 dramatically expands the use of categorical exclusions, including projects damaged by a declared emergency or disaster, a project with limited federal funds, and projects in existing right-of-way. T2 recommends that USDOT promulgate rules as soon as possible regarding categorical exclusions and adhere strictly to the language as laid out in MAP-21.

MAP-21 makes permanent the existing NEPA delegation pilot program and opens the program to all states. T2 would like USDOT to incentivize states to take on some of these responsibilities.

MAP-21 adds many new elements to streamlining projects. These changes will require many more staff hours to implement correctly. T2 encourages US DOT to increase staffing levels as necessary to ensure that the changes to the environmental approvals process as outlined in MAP-21 are properly carried out.

Summary of MAP-21 Provisions on Project Delivery Provisions

Section 1301: Declaration of Policy; "to accelerate project delivery and reduce cost; and ensure" that all phases of transportation projects are delivered in an efficient and safe manner. Key points in this section are:

  1. Develop Best Practices by engaging stakeholders to gather information on how to accelerate project delivery and reduce costs.
  2. Accelerate project delivery by allowing early acquisition of property prior to a ROD, allowing construction manager contracting and allowing lump-sum property acquisition.
  3. On eligible projects to apply innovative and experimental delivery techniques such as completing project design concurrently with the environmental process and utilizing programmatic approaches for project reviews.

Section 1302: Advance Acquisition of Real Property Interests; Allows " independent utility" property acquisitions through negotiations (no condemnation) by states without affecting the Environmental Process. Allows for Federal Reimbursement of properties required under this process once the final environmental process is complete. All acquisitions must be in compliance with all Federal requirements.

Section 1303: Letting of Contracts; Permits a two phase construction process whereby a construction manager or general contractor method may be used to complete all activities except hard construction prior to environmental approval. Must be a competitive process. Shall not proceed with hard construction until the environmental process is complete. All design activities can be completed and shall be eligible for reimbursement once the environmental process is complete. Requires appropriate termination clause in case the environmental no-build alternative is selected.

Section 1304: Innovative Project Delivery Methods; Promotes innovative technologies and practices that increase efficiency of construction, increases safety and extends service life. Provides up to 100% Federal share payable for projects and programs that meet these innovative requirements, with a 10% combined apportionment increase to the states and a 5% potential additional apportionment.

Section 1305: Efficient Environmental Reviews for Project Decision-making; Requires the Secretary to initiate a rule allowing for the use of Programmatic Approaches in environmental reviews. Agency consultation and collaboration is noted along with preparation of future tiered analysis. Sets the DOT as the lead agency and requires a single modal administration to serve as the lead agency. Concurrent Reviews SHALL be carried out in a coordinated and environmentally responsible manner. Includes the submission of a draft NOI.

Section 1306: Accelerated Decision-making; Not less than 30 days after the close of the public comment period on a DEIS the Secretary is to convene a meeting with all parties to ensure that deadlines to review will be met. Establishes resolution process in case deadlines are impaired. Meeting to be held not later than 21 days after meeting request. If not resolved within 30 days may refer to Council on Environmental Quality. If not resolved within 30 days may refer directly to the President. Requires funding of staff and resources necessary to review environmental projects. Establishes fund rescissions of $20,000 per week for section 106 projects and $10,000 per week for all other projects requiring an environmental asessment or EIS to be taken from the department responsible for delaying the decision. Rescission shall not be made if agency has not received necessary information. Requires status reports by the President to the House Transportation Committee every 120 days on all 106 projects and reports on not less than 5% of all other projects.

Section 1307: Assistance to federal and state Agencies: Adds a requirement for a memorandum of understanding between the DOT and Federal or State agency a part of providing resources to that agency.

Section 1308: Limitation on claims: Reduces from 180 days to 150 days.

Section 1309: Accelerating Completion of Complex Projects Within 4 Years: Provides for additional technical assistance for an EIS project that has been active for 2 or more years (since NOI) and completion of the review/approval by no later than 4 years after the NOI.

Section 1310: Integration of planning and environmental review; Defines planning products, projects and sponsor. Allows the Federal lead agency use the planning product in completing their NEPA assessment. Does not make the environmental review process applicable to the transportation planning process. Does not restrict the initiation of environmental review process during planning.

Section 1311: Development of Programmatic Mitigation Plans; Allows states, or MPO's to develop programmatic plans for mitigation of future transportation projects. Also allows integration with other planning systems to address growth.

Section 1312: State Assumption of Responsibility for Categorical Exclusions; Makes amendments to this section relating to the State assumption of Categorical Exclusion authority. Allows states to use 104(b)(2) funds to pay for legal expenses associated with the project.

Section 1313: Surface Transportation Project Delivery Program; If a state requests, the Secretary may assign responsibility for railroad(s), public transportation or multimodal projects under NEPA. May not assign 134, 135, section 5303 or 5304 or title 49 or 176 of the Clean Air Act. Requires written agreement with 5 year term(renewable) Requires monitoring, reporting and allows for termination by the Secretary.

Section 1314: Application of Categorical Exclusions for Multimodal Projects; Defines Cooperating Authority and Lead Authority (DOT operating administration or secretarial office) that is the lead authority over a proposed multimodal project under their modal expertise and allows them to utilize NEPA CE's where an EIS or EA is not required.

Section 1315: Categorical Exclusions in Emergencies; Requires that a categorical exclusion class of action be developed for repairs or reconstruction that are related to a declared disaster. Must commence repairs within 2 years of the emergency and does not allow for an improved project.

Section 1316: Categorical Exclusions for Projects within the Right of Way; Requires that a categorical exclusion class of action be developed a project within the operational ROW.

Section 1317: Categorical Exclusion for Projects of Limited Federal Assistance; Requires that a categorical exclusion class of action be developed for projects that receive less than 5 million in Federal Funds or with an estimated cost of no more than 30 million with less than 15 percent Federal Funds.

Section 1318: Programmatic Agreements and Additional Categorical Exclusions; Requires the Secretary to identify new categorical exclusions through a survey of State DOT's and others. Requires Secretary to create new categorical exclusions through rulemaking. Moves three categories of actions from the "d." list to the "c." list under 771.117. Allows the Secretary to enter into Programmatic agreements with qualified states to carry out environmental project reviews, including allowing states to make categorical exclusion determinations on projects.

Section 1319: Accelerated Decision-making in Environmental Reviews; For a FEIS the lead agency may determine that modifications to statements in response to comments on environmental reviews may be handled by errata sheets rather than rewriting a document. Allows the lead agency to expeditiously develop a single document that consists of a FEIS and ROD if no substantial changes to the FEIS or new circumstances or additional substantive comments or concerns exist.

Section 1320: Memoranda of Agency Agreements for Early Coordination; Requires early coordination and cooperation of all parties to expedite the environmental process through a MOAA.

Section 1321: Environmental Procedures Initiative; Requires the Secretary develop and publish initiatives taken for formula grant funds and consistent procedures for environmental rulemaking and to publish the results.

Section 1322: Review of State Environmental Reviews and Approvals for the Purpose of Eliminating Duplication of Environmental Reviews; Requires the US Comptroller General to review environmental State laws and procedures for implementing this act and within 2 years report to the House Transportation Committee on the results accomplished.

Section 1323: Review of Federal Project and Program Delivery; For projects funded under title 23 the Secretary shall compare the completion times of CE's, EA's, and EIS's initiated after 2005 and measure the completion times to date of all decision time-frames and report to the House Transportation and Infrastructure Committee and the Senate Committee on Environment and Public Works; The results and performance of all parties to implement these new requirements.

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