Legislature(2005 - 2006)CAPITOL 17
03/14/2006 01:30 PM TRANSPORTATION
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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." 1:37:19 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 4(f)). 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 th 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.