Draft Interagency Guidance: Transportation Funding for Federal Agency Coordination

U.S. DEPARTMENT OF TRANSPORTATION
TEA-21 AND ENVIRONMENTAL STREAMLINING

DRAFT: July 22, 1999

Interagency Guidance : Transportation Funding
for Federal Agency Coordination

I. Purpose

The purpose of this guidance is to provide a common understanding among the US Department of Transportation (USDOT), State Transportation Departments and local transit operators, and Federal resource agencies regarding options for using Federal transportation funding under Title 23 to fund Federal resource agency coordination for Federal-aid transportation projects. It was developed cooperatively by the Federal Highway Administration, Federal Transit Administration, Environmental Protection Agency, Fish and Wildlife Service, Army Corps of Engineers, and the Advisory Council on Historic Preservation, to provide USDOT, Federal resource agencies, State DOT’s, and local transit authorities with the tools needed to develop mutually beneficial agreements to meet the environmental streamlining goals of TEA-21.

II. Background

The environmental provisions of the Transportation Equity Act for the 21st Century (TEA-21), reflect Congress’ concern about delays, unnecessary duplication of effort, and added costs often associated with the current process for reviewing and approving transportation projects. The objective of Section 1309 of TEA-21, Environmental Streamlining, is to focus efforts on better and earlier coordination among Federal, state, and local agencies. In implementing Section 1309, the emphasis of environmental streamlining should be to:

Establish an integrated review and permitting process that identifies key decision points and potential conflicts as early as possible;
Integrate the NEPA process and other environmental review and approvals as early as possible in the scoping and transportation planning processes;
Encourage full and early participation by all affected Federal, state, and local agencies that must review a transportation construction project or issue a permit, license, approval, or opinion relating to the project; and
Establish a dispute resolution mechanism to address unresolved issues.

The USDOT and the Federal resource agencies urge applicants for Title 23 funding (State DOT’s and transit operators) to actively pursue agreements with them to improve interagency coordination, more effectively address environmental concerns, and reduce costly delays in the environmental review process. In addition to the need for predictable, expedient time frames within which resource agencies conduct their roles in the process, there is also a need for increased, meaningful activity from the Federal resource agencies. The advantage of more intensive Federal resource agency involvement is that agencies’ input is more useful in project decisionmaking the earlier it comes in the process. The timeliness and quality of the projects is improved, and environmental issues can more easily be resolved.

As a result of TEA-21, Federal transportation funding has increased by 40% without a corresponding increase in Federal resource agency staff. This substantial increase in projects highlights the need for measures to improve the way project development and environmental review processes are executed. The expectation of more intensive involvement by Federal resource agencies risks burdening their already-strained budgets and personnel resources, and could result in costly delays in complying with Federal environmental statues and executive orders. The DOT has been asking Federal resource agencies for more involvement in spite of these limitations. For streamlining to be effective, resource agencies will need additional funds and continuing involvement. The additional funds under TEA-21 will supplement, not replace, existing federal budgets for work on transportation projects.

Federal resource agencies’ efforts to improve streamlining have been underway for some time. The FHWA, EPA, FWS, ACOE, and NOAA developed the guidance Applying the Section 404 Permit Process to Federal- Aid Highway Projects (the "Red Book") in1988 to identify methods to improve coordination before and during the processing of Section 404 permits. It emphasized increased effort in scoping, training, public involvement, and other programmatic and project-specific approaches, and provided the basis for numerous interagency agreements for streamlining environmental processes. In a 1994 report prepared on the integrated NEPA/ 404 process, the Government Accounting Office (GAO) acknowledged that the length of time needed to complete the NEPA and 404 permitting process was a major impetus, and emphasized that the objectives of the process were to avoid duplication of effort and late-process revisiting of issues. Although the report focused on the time and cost savings that could be realized through the an integrated process, it identified that "resource constraints could limit success of the integrated process", and pointed out that the integrated processes require agencies to spend more resources than under traditional processes. The GAO Report also recommended that time cost and delay be tracked to establish a baseline of how long a "typical" project would take to go through the process. The projects conducted using additional resource agency staff under these agreements could provide useful information as part of an effort to demonstrate time and cost savings of the streamlined environmental process.

In 1997, the FHWA Office of Program Quality Coordination prepared the report Interagency Coordination with Federal Agencies during the FHWA Project Planning and NEPA Processes. The report focused on FHWA’s role as the lead Federal agency, and identified activities that have been most effective in overcoming obstacles to achieving interagency coordination, obtaining the involvement and commitment from other Federal agencies, and providing leadership in project decisionmaking. Emphasis was placed on facilitating scoping, resolving conflict, and assuring quality project decisions.

We expect that funding additional Federal resource agency staff can result in a joint benefit that earlier efforts such as the Red Book and Interagency Coordination report have identified, but whose benefits were unale to be fully achieved. Additional Federal resource agency staff will be better able to assist the State DOT’s and applicants efficiently reach better and faster transportation solutions earlier and at less cost, as well as enabling better environmental decisions in the project plans.

III. Legislative Authorities

A. Transportation Equity Act for the 21st Century (TEA-21)

Section 1309(e) of the Act states:
(e) Assistance to Affected Federal Agencies --
(1) The Secretary may approve a request by a State or recipient to provide funds for a highway . . . or for a mass transit project made available . . .to the State for the project . . . to affected Federal agencies to provide the resources necessary to meet any time limits established under this section.
(2) Such requests . . . shall be approved only for the additional amounts . . . necessary to meet the time limits for environmental review; and if such time limits are less than the customary time necessary for such review.

B. The Fish and Wildlife Act of 1956 (16 U.S.C. 742f(a)(4)), and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et. seq.)
The Fish and Wildlife Act of 1956 authorizes FWS to use another agency’s funds to assist its efforts for the ". . . development, advancement, conservation and protection of the fisheries resources [and] of wildlife resources through research, acquisition of refuge lands, development of existing facilities, and other means. " (Sec. 7(a)(4) and (5)). The law suggests that the "Secretary [of the Interior] may request and secure the advice or assistance of any department or agency of the Government in carrying out the provisions of this Act, and any such department or agency which furnishes advice or assistance to the Secretary may expend its own funds for such purposes, with or without reimbursement from the Secretary as may be agreed upon between the Secretary and the department or agency." (Sec. 6(c))

The Fish and Wildlife Coordination Act authorizes the Secretary of the Interior "to accept donations of land and contributions of funds in furtherance of the purposes of this Act." (Sec. 1) Further, it states:

"In the case of construction by a Federal agency, that agency is authorized to transfer to the USFWS, out of appropriations or other funds made available for investigations, engineering, or construction, such funds as may be necessary to conduct all or part of the investigations required to carry out the purposes of this section."

C. Intergovernmental Personnel Act of 1970 (5 CFR 334)
The Intergovernmental Personnel Act of 1970 authorized the temporary assignment of employees between Federal agencies and State, local, and Indian tribal governments, institutions of higher learning and other eligible organizations. It provides for additional flexibility for augmenting the staffing available to Federal resource agencies to carry out their missions.

Assignments may be made up to 2 years (may be extended), and conditions are laid out regarding total length of mobility assignments, continuation of service agreements, certifications, and necessary agreements between the agencies.

Options/ Mechanisms Examples of the use of the IPA:

A staff member from a Federal resource agency is detailed to a State DOT to help scope issues and conduct environmental analysis for its projects. Although the staff member remains a Federal employee, the state may reimburse the agency for all or part of the employee’s salary and expenses. This increases attention and early involvement by the Federal resource agency should result in less time to resolve issues and smoother review. The Federal resource agency could then hire someone for the duration to "fill in", so there would not be a loss of the agency’s ability to conduct its business.
A staff member from a State resource agency or from academia is obtained as additional Federal resource agency staff to assist in scoping or review of State DOT projects

Examples of the use of the Fish and Wildlife Act of 1956/ Fish & Wildlife Coordination Act:

Under the terms of an interagency agreement, the FWS can hire additional staff whose salary is paid by the State DOT. In turn, the State DOT’s expenses are reimbursed using apportioned Federal-aid project funds. The additional FWS staff can work exclusively on State DOT actions: project scoping, environmental impacts and mitigation analysis, documentation development and review, etc. The most efficient time to successfully resolve environmental issues is at the planning (pre-scoping) and scoping stages.
Using the Federal resource agency’s contractor or consultant to perform environmental studies needed by the Federal resource agency to identify resources (e.g., resources inventory or database), determine impacts, and to develop mitigation measures. Contract scoping could be performed by the Federal resource agency, and funding could be DOT’s responsibility.
Outside experts (from academia, for example) could be contracted through the Federal resource agencies to provide peer review of DOT practices such as project scoping, environmental analysis, or mitigation measures.

IV Interagency Agreements

TEA-21 section 1309(e) states that federal agency reimbursement money should be available to help meet review "time limits" if such time limits are less than the "customary time for such review". Cooperative interagency agreements already in place, such as those for Section 404/ NEPA, serve the environmental streamlining goals of TEA-21 and should be considered to meet the requirements of section 1309(e).

The DOT Field Offices should encourage and proactively pursue State Transportation Department’s or transit operators’ use of the funds under this provision. However, the decision to participate remains with the State DOT’s or transit operators, who are encouraged to take a flexible approach to the concept of funding Federal resource agency positions.

Concept of Good Investment

As a normal practice, the FHWA encourages appropriate Federal resource agencies to participate in the project development process, become cooperating agencies, perform routine analyses, conduct studies (if appropriate), and/or prepare a portion of the environmental documentation. However, Federal resource agencies cannot substantially increase their involvement in planning, scoping, and alternatives development without additional resources. This up-front investment , if well-planned and executed in a timely manner, will result in lower overall project costs and reduced time periods, producing a win-win situation.

State DOT’s, transit operators, and Federal resource agencies should address the question of whether to fund a whole position vs. funding an existing position’s time to a project (or series of projects). Funding levels that do not result in increased staffing levels for the Federal resource agencies are generally not going to achieve the environmental streamlining goal. Funding agreements shall be in compliance with Federal contracting and finance laws and procedures.

Considerations for Interagency Agreements
An agreement between the State and a Federal agency should:

Establish background and objectives. The agreement should address why the parties engaging in the agreement? ; what benefits the respective agencies hope to realize; how it should improve transportation projects, environmental quality; and timeliness of decisions.
Reference existing cooperative interagency agreements, and existing and ongoing Federal, State, and local plans which complement the workings and relationship between the agencies involved (e.g., NEPA/ 404 MOU).
Define roles and responsibilities of the parties to the agreement -- what will each do to facilitate a smooth working relationship? How will they handle routine coordination and resolve disputes?
Indicate the scope of the agreement, including information on the desired number of positions and duration.
Describe the roles of any new positions and what expectations are anticipated (e.g., travel, areas of involvement, expected products (if any)).
Identify priority areas, if any, on which the DOT would like the Federal resource agency positions to focus their efforts (e.g., individual projects, types of projects, certain geographical bounds, etc.) Also, if expertise is needed in a particular discipline, or if there are any special requirements of the Federal resource agency staff, those should be clearly articulated in the agreement.
Emphasize that signatory agencies should focus on resolving issues in the planning (pre-scoping) and scoping stages, where environmental issues can most readily and efficiently be resolved.
Provide for a joint system of monitoring the expenditure of funds and accounting. In general, how the funds are to be used and include any restrictions on their use.
Provide for an agreed-upon process for progress reports and a mutual evaluation of effectiveness, with a pre-set evaluation period, to allow for modification of the agreement, if necessary.
Be flexible -- have contingencies to accommodate changing needs during the term of the agreement.

In addition to the funding efforts described in this guidance, FHWA Division Offices should continue to work with SHA’s and Federal resource agencies to explore ways to collectively “work smarter” through informal cooperative and programmatic approaches. Also, the use of other media techniques (e.g., videoconferencing) can improve the efficiency, effectiveness, and economy of interagency coordination and is encouraged.

Attachment 1: Federal Aid Financing for Highways and Transit
Attachment 2: Sample Agreements
Attachment 3: FHWA and FTA Field Environmental Contacts
Attachment 4: EPA, FWS, [others] Field Contacts

For more information, contact Christopher Newman, FHWA Office of Planning and Environment,
at 202.366.8994

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United States Department of Transportation - Federal Highway Administration