Legislature(2005 - 2006)CAPITOL 17

03/14/2006 01:30 PM TRANSPORTATION

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved Out of Committee
Moved Out of Committee
<Bill Hearing Canceled>
HB 434-AUTHORIZE HWY PROGRAM PARTICIPATION                                                                                    
1:36:33 PM                                                                                                                    
CO-CHAIR GATTO announced  that the first order  of business would                                                               
be HOUSE  BILL NO. 434,  "An Act authorizing the  commissioner of                                                               
transportation and  public facilities  to participate  in certain                                                               
federal  highway programs  and  relating  to that  authorization;                                                               
relating  to powers  of the  attorney general  to waive  immunity                                                               
from  suit  in  federal  court related  to  those  programs;  and                                                               
providing for an effective date."                                                                                               
JOHN    MACKINNON,    Deputy    Commissioner,    Department    of                                                               
Transportation &  Public Facilities (DOT&PF), referred  to HB 434                                                               
as a National Environmental Policy  Act of 1969 (NEPA) delegation                                                               
bill.   He said  the passage of  the Safe,  Accountable, Flexible                                                               
and  Efficient  Transportation  Equity  Act-a  Legacy  for  Users                                                               
(SAFETEA-LU)  highway bill  in August  included a  six-year pilot                                                               
program  for  five   states  to  assume  NEPA   delegation.    He                                                               
paraphrased from the following [original punctuation provided]:                                                                 
     SAFETEA-LU  includes a  NEPA  delegation pilot  program                                                                    
     for five  states - Alaska, California,  Oklahoma, Ohio,                                                                    
     and  Texas.   Under the  program, the  five states  are                                                                    
     eligible to  apply for delegation  of the  Secretary of                                                                    
     Transportation's (Secretary)  NEPA responsibilities for                                                                    
     one or  more highway  projects within  the state.   The                                                                    
     state may also  apply for delegation of some  or all of                                                                    
     the     Secretary's     review     and     consultation                                                                    
     responsibilities  under   other  Federal  environmental                                                                    
     laws.    The scope  of  delegation  will be  determined                                                                    
     through application  to the Secretary and  execution of                                                                    
     a Memorandum of Understanding (MOU).                                                                                       
     Time Frame:                                                                                                                
     Duration  of  the  pilot  program  is  six  years  from                                                                    
     enactment of  SAFETEA-LU.  Unless extended  by statute,                                                                    
     the pilot terminates on August 10, 2011.                                                                                   
     The Secretary is required  to promulgate regulations to                                                                    
     establish    delegation    application    requirements.                                                                    
     Rulemaking is  required to be complete  within 270 days                                                                    
     of the Act.  Rulemaking is currently behind schedule.                                                                      
     The State may not submit its application until:                                                                            
     Rulemaking is complete, and                                                                                                
     The State  must advertise  the application  and solicit                                                                    
     public comment.                                                                                                            
     After application is accepted,  the State and Secretary                                                                    
     will enter into an MOU.                                                                                                    
     Once the MOU is executed, delegation may proceed.                                                                          
     Delegation Options:                                                                                                        
     NEPA delegation  is limited to  highway projects.   The                                                                    
     term includes roads,  streets, and parkways, rights-of-                                                                    
     way, bridges, and protective structures.                                                                                   
     NEPA delegation  may be programmatic, or  for specific,                                                                    
     identified projects.   The State has  broad latitude to                                                                    
     determine  the FHWA  environmental responsibilities  it                                                                    
     would  like to  assume  (i.e. Ces,  Eas, EISs,  Section                                                                    
     The State intends to request  delegation for all of the                                                                    
     Secretary's   environmental  review   and  consultation                                                                    
     responsibilities  under   other  Federal  environmental                                                                    
     laws  (examples include  Section  106  of the  National                                                                    
     Historic  Preservation  Act,  and   Section  7  of  the                                                                    
     Endangered Species Act).                                                                                                   
     NEPA delegation  is limited to  environmental decision-                                                                    
     making.  It does not extend to engineering decisions.                                                                      
     Requirements and Responsibilities:                                                                                         
     Under   delegation,  the   State   would  assume   sole                                                                    
     responsibility and  liability for its NEPA  actions and                                                                    
     decisions  and  would  be   subject  to  Federal  court                                                                    
     jurisdiction.   To  receive  delegation,  the State  is                                                                    
     required to waive its 11   Amendment sovereign immunity                                                                    
     from suits in Federal court for decisions under NEPA.                                                                      
     The  State   will  be  required  to   comply  with  all                                                                    
     applicable    Federal     laws,    Executive    Orders,                                                                    
     regulations,    policies   and    guidance   for    the                                                                    
     responsibilities it assumes.                                                                                               
     The State's delegation programs  will be audited, twice                                                                    
     annually for the first  two years, annually thereafter.                                                                    
     The audits will be available for public comment.                                                                           
      The Secretary is required to submit an annual report                                                                      
     to Congress on the pilot program.                                                                                          
     The Secretary may terminate any state's participation                                                                      
     in the pilot program at any time for cause.                                                                                
1:42:45 PM                                                                                                                    
CO-CHAIR  ELKINS asked  if it  will make  the process  faster and                                                               
cheaper because it's all contained within the state.                                                                            
MR. MACKINNON  said it is  easier to move a  piece of paper  on a                                                               
state desk.  The state has  a great relationship with the Federal                                                               
Highway Administration, "but we can also improve the process."                                                                  
CO-CHAIR ELKINS asked how this applies to the ferry system.                                                                     
MR. MACKINNON said  for any federal dollar spent  on the ferries,                                                               
the state has to go  through NEPA documentation, usually a simple                                                               
one.  New  vessels require a NEPA process, as  does brush cutting                                                               
along roads when  done by the federally-funded SAGA  program.  He                                                               
said he  doesn't know  all the  rules, but  the state  is serious                                                               
about taking over the program, and this will allow it to happen.                                                                
1:44:51 PM                                                                                                                    
REPRESENTATIVE NEUMAN  asked about  the state  assuming liability                                                               
for NEPA actions.                                                                                                               
PETER PUTZIER, Senior  Assistant Attorney General, Transportation                                                               
Section, Department of  Law, said the waiver is  required, and it                                                               
means the  state would be  subject to  suit in federal  court and                                                               
would have to defend its actions.   The waiver could be made on a                                                               
case or project basis, or it could be done more broadly.                                                                        
1:47:22 PM                                                                                                                    
REPRESENTATIVE NEUMAN asked  if the sovereign immunity  has to do                                                               
with lawsuits against the state and the implications.                                                                           
MR.  PUTZIER said  the state  will be  standing in  the shoes  of                                                               
FHWA-taking  the  same actions  and  being  subject to  the  same                                                               
standards.  A lawsuit over a poor EIS could occur, he noted.                                                                    
CO-CHAIR GATTO asked  how much money the  federal government will                                                               
send to the state because of the bill.                                                                                          
MR. MACKINNON  said it  will be  paid for  out of  project funds.                                                               
The  state's environmental  staff will  be charging  out to  each                                                               
project, as is done currently.  There  is a state match as in all                                                               
federal  highway  funds,  he  stated.   "These  are  all  federal                                                               
receipts to pay for the program," he said.                                                                                      
1:49:46 PM                                                                                                                    
CO-CHAIR GATTO asked about the six-year pilot program.                                                                          
MR. MACKINNON  said the state  averages one to  two environmental                                                               
impact  statements, ten  environmental assessments,  and about  a                                                               
hundred categorical  exclusions.  There are  a "couple" top-level                                                               
positions required in  the department, he stated.   Some would be                                                               
contracted out, "but we need to  have them on staff as a firewall                                                               
between the  department and  the department."   This will  be the                                                               
same  function "as  fed highways."   Judgments  on NEPA  lawsuits                                                               
have been  very, very small, he  said.  NEPA is  a procedural law                                                               
and  a violation  would be  for  failure to  follow a  particular                                                               
procedure, "in which  case a judge would order us  to go back and                                                               
hold a couple of meetings or conduct another study."                                                                            
1:51:14 PM                                                                                                                    
REPRESENTATIVE NEUMAN said the fiscal  note for FY07 through FY11                                                               
is  $637.4   million,  "and  it  doesn't   increase."  [He  later                                                               
corrected that figure  to $637,400.]  He noted that  the costs of                                                               
business always go up and he asked if more will be needed later.                                                                
MR. MACKINNON  said, "This  would not be  general fund;  we would                                                               
not be coming back for more state  money on this."  He said these                                                               
are federal program receipts that  will pay for the positions and                                                               
added there probably ought to be a cost-of-living adjustment.                                                                   
REPRESENTATIVE THOMAS asked if the money is from Shakwak funds.                                                                 
MR. MACKINNON said it would be all federal funds.                                                                               
REPRESENTATIVE THOMAS asked about liability immunity.                                                                           
1:52:54 PM                                                                                                                    
MR. MACKINNON  said it refers  to projects "where we  started and                                                               
finished the environmental documentation.   Any ongoing EIS would                                                               
continue to be in fed highway's hands."                                                                                         
REPRESENTATIVE THOMAS said if it  includes the [Juneau to Haines]                                                               
road  project,  he   doesn't  like  the  bill,   because  "I  got                                                               
communities that are all against it  and it doesn't make sense to                                                               
me  to build  this  road, and  I  don't  want to  sit  here in  a                                                               
committee voting  for a  bill that does  exactly what  the people                                                               
don't want right now."                                                                                                          
MR. MACKINNON said, "That particular  project, a couple of bridge                                                               
projects we know  about, I can think of dozens  of projects where                                                               
the environmental  document has  already started under  the hands                                                               
of  federal  highways  and  will continue  in  their  hands,  and                                                               
continue in their court, not in the state's."                                                                                   
REPRESENTATIVE THOMAS  surmised that  the bill won't  keep people                                                               
from suing.  "I don't like  Shakwak money taken out of the marine                                                               
highway budget to build the road."                                                                                              
MR. MACKINNON said that road  started under federal oversight and                                                               
will continue that way.                                                                                                         
1:55:21 PM                                                                                                                    
REPRESENTATIVE NEUMAN  moved to  report HB  434 out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.  There being no objection,  HB 434 was reported out of the                                                               
House Transportation Standing Committee.                                                                                        

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