Legislature(2005 - 2006)SENATE FINANCE 532
03/21/2006 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB261 | |
| SB271 | |
| SB308 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 261 | TELECONFERENCED | |
| + | SB 271 | TELECONFERENCED | |
| + | SB 308 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 271
"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."
This was the first hearing for this bill in the Senate Finance
Committee.
JOHN MACKINNON, Deputy Commissioner of Highways & Public
Facilities, Department of Transportation and Public Facilities
explained that a National Environmental Policy Act (NEPA)
delegation six-year pilot program was included in the federal
highway Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU), when it was
reauthorized by Congress in the summer of 2005. He read a
segment of a handout titled "NEPA Delegation Pilot Fact Sheet"
[copy on file] as follows.
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 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 its application is accepted, the State and
Secretary will enter into an MOU.
Once the MOU is executed, delegation may proceed.
Mr. MacKinnon pointed out that this program would transfer "the
decision making process on what level of environmental
documentation is required out of the hands of the federal
Highway Administration and puts in the hands of the State
Department of Transportation". The State would have "more
control of the process and the rate at which these environmental
reviews proceed". This program would not reduce environmental
protections or environmental reviews, as the State must continue
to follow federal Environmental Protection Act guidelines. The
benefit would be that the State could control "the pace at
which" the process proceeds.
Mr. MacKinnon qualified that the program would be limited to
highway projects administered by the Federal Highway
Administration (FHWA). Furthermore, the program would be limited
"to environmental decision making" and would exclude engineering
issues. Airport aviation projects and other federal projects
occurring in the State would be unaffected.
Senator Bunde ascertained therefore that, even though the State
might have more control, it could strengthen but not reduce
restrictions, as it must "abide by federal standards".
Mr. MacKinnon affirmed that the State would be required to abide
by federal regulations and could not establish its own
environmental policy.
Senator Bunde questioned, therefore, the benefit the program
would provide to the State. To that point, were the State to
participate in this program and a lawsuit regarding its actions
presented "as there often is", the State would be required to
defend its action.
Mr. MacKinnon affirmed.
Senator Bunde suggested therefore that the fiscal notes
accompanying the bill must "be adjusted" to address that issue.
In conclusion, he asked what "advantages" the State's
participation in this program would provide, since the State
would be required to follow the same rules.
Co-Chair Green understood one benefit to be that the State would
be "in more of a position" to improve project timeframes rather
than being dependent on federal decision timeframes.
Mr. MacKinnon affirmed. The State has no control over the timing
of the federal decision making process. "It would not be unusual
for work to sit on a desk for a significant period of time."
"There is a greater chance" that documents "sitting on one of
our desks" could be processed faster.
Mr. MacKinnon mentioned that the bill would also pertain to "the
level of documentation required. The majority of the
environmental documentation" consists of "categorical
exclusions" (Cat-Ex's), which are the simplest form of
documentation. The NEPA process is required for projects such as
road repavings or the construction of an overpass. Under this
program, the State would assume responsibility for Cat-Ex
documentation. When the federal government is involved, "they
make the decision on what level of documentation is required".
At times, the federal government required projects that had
historically been subject to Cat-Ex documentation to be subject
to an environmental assessment or the more extensive
environmental impact statement. Were the State to assume "the
NEPA delegation, those decisions would be made at the State
level and not at the federal level".
Mr. MacKinnon affirmed that with the assumption of this
responsibility, the State would be required to defend its
decisions in Court. Language that "waived the State's immunity
from suit in federal court" is specified in Section 1 page 1
lines 9 and 10 of the bill. Since "NEPA is procedural law", a
basis for a Court case "would be that the Department for one
reason or another did not follow the correct procedure." The
Court's decision could require the Department to go back and
redo something, "following the procedure correctly".
Historically in such FHWA cases, the judgments as well as the
defense costs have been small. Nevertheless, some of the federal
cases have been lengthy and expensive.
Mr. MacKinnon stated that, were the State to assume the
responsibilities of the program, the expectation would be that
the cost of defending such a case would be considered "an
eligible" individual project cost, rather than a general fund
expense.
9:43:25 AM
Senator Bunde voiced concern as to whether what the State would
"be gaining is worth the price."
Co-Chair Wilken deemed "this is just a little tiny piece" of the
answer to peoples' question as to "why government grows".
Referring to the Analysis section of the Department of
Transportation and Public Facilities fiscal note #1, he voiced
disbelief that the work required by the State for assuming the
responsibilities of this program "would require 160 hours a
week". This would be something he would be unable to explain to
constituents. Were this program enacted, he predicted that in
five years, "we're going to sit here and just think the world's
coming to an end because this program's going to go away".
Continuing, he asked whether the State would be able to conduct
the program using $647,000 in Capital Improvement Project (CIP)
receipts and only hire two people.
9:44:54 AM
Mr. MacKinnon responded that the Department based its staffing
determinations on the number of people currently administering
the federal program and on the Department's own internal review
of the program. "It's not a simple thing to assume."
Co-Chair Wilken announced that the question needed to be asked
even though the response provided no relief.
Senator Bunde understood therefore that the project would
require four or five new positions.
Senator Stedman, observing that the expenses associated with the
project and the new staffing positions would be approximately
$650,000 per year, remarked that "we're certainly not paying
these people by the road mile built," as the State has
historically conducted a tremendous amount of planning, but has
built few new roads. He voiced concern regarding the sovereignty
of the State as well as the hiring of people "without any
parameters on production". He was disinterested in compiling
office hours without accompanying road construction. Therefore,
even though "the intent is good", he was hesitant to expand
planning activities. The cost of planning per road mile built
"is alarming".
Mr. MacKinnon advised that the goal of the Department was not to
assume NEPA responsibilities "and proceed at the same pace. The
status quo isn't good enough for us." The Department, like the
Legislature and the public, is also frustrated with the time
that is required to develop a project. NEPA is one of the
factors affecting the time it takes to develop a project. The
money the Department has spent on developing certain
Environmental Impact Studies (EIS) or Environmental Impact
Assessments (EIA) would "astound" the Committee. In addition to
the time spent on developing a project, $8,000,000 to
$15,000,000 is typically spent on developing a major project's
EIS. One factor that increases the amount of time and money
spent on an EIS is the amount of time spent "dealing with the
various resource agencies when they say we need this
information, we need that information, and we need this
information in order to do a complete environmental assessment".
The State is not currently in a position to say, "we don't think
you need that information. The information that's there on this
particular issue is adequate, it's more than adequate".
Currently "the federal government makes those decisions because
they have the NEPA assumption".
Mr. MacKinnon stressed that the State is willing to assume the
risk of making those decisions. "We're a lot less adverse to
risk than the federal government is in these issues. The
likelihood of a serious mistake in carrying out one of these
documents because you didn't gather sufficient information is,
the judge would say, well you need to go back and count the
caribou there one more time. We're willing to take that risk …
The benefits far outweigh the potential costs in that."
9:49:35 AM
Senator Dyson asked what would be included in the Contractual
Services $154,700 expense depicted on the Department of
Transportation and Public Facilities fiscal note #1.
Mr. MacKinnon understood the expense would provide for a NEPA
"expert" attorney in the Department of Law. A Reimbursable
Services Agreement (RSA) between the Department of
Transportation and Public Facilities and the Department of Law
would address that expense.
Senator Dyson concluded therefore that adding this position to
the Department of Law would be preferred to contracting out for
that service.
Mr. MacKinnon affirmed. He noted that a legal sufficiency review
must be conducted on each NEPA document before it is finalized.
Senator Dyson asked whether this would be a new position in the
Department of Law or whether the Department of Transportation
and Public Facilities would be contracting for an existing
employee's services.
Mr. MacKinnon responded that while there is a person in the
Department of Law who is "very well versed in NEPA", that person
oversees a number of attorneys. The person being referenced in
the fiscal note would be required to have "a fairly specific
education and orientation towards NEPA".
Senator Stedman requested that the issue of cost of planning per
road mile built be set aside; else wise, upon review, the costs
"would be alarming". Continuing, he was curious of the reason
that Alaska was one of a select group of states chosen for this
pilot program; specifically whether Alaska was chosen because it
"has a harder time than other states in getting its projects
through the NEPA process.
Co-Chair Green remarked that Alaska Congressman Don Young
included the State in this project. She attested to the time and
effort that the State conducts in regards to the NEPA process.
9:52:13 AM
Co-Chair Green stated that, in her opinion, the majority of the
"projects that are very important to us are very small potatoes
in Washington DC as far as their importance on the NEPA interest
level", particularly in comparison to larger projects being
conducted in other states.
Mr. MacKinnon characterized Co-Chair Green's comments as
"accurate". He noted that half of the other four states
designated for this program "have ranking members" on the
federal Transportation Committee. They want their states to be
included in the five and a half year pilot program. This is an
opportunity that the Department would not want "to lose".
Senator Stedman asked the Department to provide the Legislature
a report comparing the program expenditures to the road miles
constructed at the conclusion of the pilot program, were it
enacted.
Mr. MacKinnon trusted that the Department would be able to
provide "a metric that will hopefully show an improvement over
the status quo".
Senator Bunde shared that he had "serious reservations" about
what Co-Chair Wilken coined as "growing government: four more
fulltime State employees and the risk of lawsuits." The net gain
is questionable. He would vote no on the bill.
Co-Chair Wilken moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
Senator Bunde objected.
Senator Stedman preferred the bill to be held in Committee for
further consideration.
Co-Chair Wilken moved and asked unanimous consent to withdraw
the motion.
Without objection, the motion to report the bill from Committee
was WITHDRAWN.
Co-Chair Green ordered the bill HELD in Committee.
9:55:28 AM
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