House Panel Examines Project Delivery Issues

March 22, 2018

On Thursday, March 15, The House Subcommittee on the Interior, Energy, and Environment held a hearing on opportunities to streamline federal permitting, particularly under the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA). The hearing was in part a follow up the March 1st joint hearing with the Intergovernmental Affairs Subcommittee.

Representative Blake Farenthold (R-TX) opened the hearing stating concerns that lengthy NEPA reviews are problematic to the point that they negatively impact infrastructure projects because of the time and money needed go through the environmental review process. He pointed to the opportunities for confusion and unpredictability when following through with NEPA and section 404 of the CWA, as well as the potential for lawsuits that can add further to the delay. Farenthold hoped to identify potential ways to streamline.

In agreement that there may be mechanisms to speed up environmental review processes, Representative Stacey Plaskett (D-VI) suggested that instead of altering regulations, providing agencies with more resources to carry out NEPA and CWA reviews could help sole the problem. She noted that local road projects have shifted from a 80% federal share/20% local share of funding to the opposite with much less federal support, and suggested that re-funneling federal dollars into infrastructure projects could help provide the personal and expertise needed for speedy reviews.

The hearing included testimony from:

  • James Iwanaicki, P.E., Engineer-Manager, Marquette County Road Commission
  • Diane Katz, Senior Research Fellow in Regulatory Policy, The Heritage Foundation
  • Valerie Wilkinson, CPA, Vice President and CFO, the ESG Companies
  • Kevin DeGood, Director Infrastructure Policy, Center for American Progress

Iwanicki discussed the County Road 595 project in his testimony. County Road 595 was a proposed new road in the upper peninsula in Michigan that was not constructed due to the EPA’s rejection of the project on the grounds of environmental protection after the project had garnered approval from the state. He noted the benefits of building the road to displace traffic from the urban center and encourage economic developments well as the bi-partisan political support for the road.

Objections to granting the permit for County Road 595 included that the road would impact high quality wetlands at headwaters, which would lead to irreversible environmental damage at the site and downstream which would also in turn induce long-term damage on Michigan’s environmental tourism economy.  The EPA would not accept creation of new wetlands as a mitigation technique, as the new area would not be a suitable substitute for the area affected by the headwaters for multiple watersheds which would incur long-term effects beyond the direct area of wetlands displaced by the road project.

Iwanicki expressed doubt at the EPA’s decision, especially given the state’s approval of the project, and commented on a lack of communication from the EPA about how to address the environmental concerns and who the best point of contact was.

Another case of a project passing state review but getting held up at the federal level came from Valerie Wilkinson regarding a development in Virginia. Her project ended up going through a wetland and the US Corps of Army Engineers insisted on conducting their own wetlands delineation following her submission of a delineation conducted by hired experts. Years later, Virginia adopted new regulations and the state accepted her experts’ delineation.  She developed a mitigation plan resulting in no net loss of wetlands,however the federal government rejected the proposal and required the creation of 25% more wetlands.

Cautioning against removing environmental review requirements, DeGood warned the subcommittee that “If only, the argument goes, project sponsors didn’t have to study the potential impacts of building, then everything would be cheaper, faster, better. This tidy narrative is false.” His argument continued that projects benefit from engaging in the environmental review process by surveying the impacts in advance, thus saving taxpayer money through a better ability to plan, and that advance reviews play a large role in avoiding potential ecological damage.  He further stated that most projects have a short timeline for the NEPA/CWA approval process as they qualify to bypass a full review.

On the topic of exclusions and waivers to speed up environmental review for most projects, Katz suggested that the sheer number and share of projects eligible for categorical exclusions and project waivers suggests that there is no need for the law at all.  She stated worries that regulations undermine US competitiveness, and her belif that NEPA and the CWA are fully redundant to other regulations, therefore the best course of action, in her opinion, would be to abolish both.

After questioning, Representative Plaskett pointed out that the FAST Act reformed the NEPA process, but there is not yet a conclusive evaluation of the effect of those reforms. She recommended waiting to see how the current process is working for now before suggesting further reform.


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