Surface Transportation Reauthorization: Environmental Issues and Legislative Provisions in SAFETEA-LU (H.R. 3)

CRS Report for Congress
Surface Transportation Reauthorization:
Environmental Issues and Legislative Provisions
in SAFETEA-LU (H.R. 3)
September 1, 2005
Linda Luther
Environmental Policy Analyst
Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Surface Transportation Reauthorization:
Environmental Issues and Legislative Provisions
in SAFETEA-LU (H.R. 3)
On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act of 2005: A Legacy for Users (SAFETEA-LU or
SAFETEA). The act authorizes federal surface transportation programs (highway,
highway safety, and transit programs) undertaken by the U.S. Department of
Transportation (DOT) for FY2005-FY2009. The previous authorization for FY1998-
FY2003, the Transportation Equity Act for the 21st Century (TEA-21, P.L. 105-178),
expired on September 30, 2003. Since then, surface transportation programs operated
in accordance with a series of extensions.
During the reauthorization process, certain environmental issues garnered
significant attention from both Members of Congress and interested stakeholders
(e.g., state transportation agencies, transportation construction organizations, and
environmental groups). This attention was due to both the impact that surface
transportation projects can have on the environment (and, possibly, the costs
associated with addressing those impacts) and the impact that compliance with
environmental requirements can have on project delivery.
SAFETEA includes a variety of environmental provisions. Generally, they
authorize funding to eliminate, control, mitigate, or minimize environmental impacts
associated with surface transportation programs or projects. Funding was authorized
both for broad programs (e.g., the Congestion Mitigation and Air Quality
Improvement Program) and for specific types of projects (e.g., the purchase of clean
fuel vehicles and programs to control noxious weeds). Funding levels for such
activities generally increased in actual dollars compared to TEA-21.
The provisions also specify procedures that are intended to expedite compliance
with certain environmental requirements. The most attention and debate related to
changes in the procedures DOT must follow to comply with the Clean Air Act’s
conformity requirements; with environmental review requirements of the National
Environmental Policy Act (NEPA); and with DOT requirements regarding the use
of publicly owned parks, refuges, and historic sites (known as “Section 4(f)”
requirements). In particular, a 180-day statute of limitations was established on
judicial claims on certain final agency actions and Section 4(f) was amended to allow
the use of parks, refuges, and historic sites if that use results in de minimis impacts.
Two provisions that generated significant stakeholder interest were not included
in SAFETEA. The first was a provision in the Senate-passed version of H.R. 3 that
would have required a 2% set-aside of each state’s Surface Transportation Program
funds for a “Highway Stormwater Discharge Mitigation Program.” The second was
an exemption for aviation refueling trucks from secondary containment requirements
of certain provisions of the Clean Water Act.
This report provides background and detail on significant environmental
provisions in SAFETEA. It will not be updated.

Issues and Legislation Regarding Environmental “Streamlining”.........2
The Environmental Review Process Under NEPA................3
Interagency Cooperation....................................4
Project “Purpose and Need” and Alternatives....................5
Designation of Categorical Exclusions.........................6
“Section 4(f)” Requirements for Public Parks and Historic Sites.....7
SAFETEA Provisions Regarding NEPA and Section 4(f)..........7
Issues and Legislation Regarding the Clean Air Act..................12
The National Ambient Air Quality Standards...................12
Conformity with Transportation Planning......................13
The CMAQ Program......................................14
SAFETEA Provisions Affecting Compliance with the
Clean Air Act........................................15
Programs or Funding to Mitigate Environmental Impacts..............21
Transportation Enhancement Funding and Eligibility.............21
Environmental Restoration and Pollution Abatement.............22
Control of Noxious Weeds.................................22
Research Grants..........................................23
Surface Transportation Environment and Planning
Cooperative Research Program..........................23
Nonmotorized Transportation Pilot Program....................23
Use of Recycled or Reused Materials.........................24
Noteworthy Provisions Not in the Final Bill........................25
Set-Aside for Stormwater Mitigation Program Funding...........25
Secondary Containment Exemption for Aviation
Refueling Vehicles....................................25
List of Tables
Table 1. SAFETEA Provisions Related to Streamlining Compliance
with Environmental Requirements................................8
Table 2. SAFETEA Provisions Related to Conformity Requirements........17
Table 3. SAFETEA Provisions Related to the CMAQ Program.............18

Surface Transportation Reauthorization:
Environmental Issues and Legislative
Provisions in SAFETEA-LU (H.R. 3)
On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act of 2005: A Legacy for Users (SAFETEA-LU or
SAFETEA). The act reauthorizes federal highway, highway safety, and transit
programs (also referred to generally as surface transportation programs) undertaken
by the U.S. Department of Transportation’s (DOT) Federal Highway Administration
(FHWA) and Federal Transit Administration (FTA) for FY2005-2009. The previous
long term authorization (for FY1998-2003), the Transportation Equity Act for the

21st Century (TEA-21, P.L. 105-178), expired on September 30, 2003. Since then,

surface transportation programs operated as a result of 11 extension acts.
The delay in reauthorization had to do primarily with issues regarding how
much money would be authorized and how transportation funds would be distributed
among the states.1 Certain environmental issues also garnered significant attention
and debate from both Members of Congress and interested stakeholders (e.g., state
transportation agencies, transportation construction organizations, and environmental
groups). This attention was due to both the impact that surface transportation
projects can have on the environment and the impact that compliance with
environmental requirements can have on project delivery.
SAFETEA includes many provisions regarding the environment. Generally, the
provisions do one of two things. First, they authorize funding to eliminate, control,
mitigate, or minimize certain environmental impacts associated with surface
transportation programs or projects. Examples include authorization of funding for
the Congestion Mitigation and Air Quality (CMAQ) program, authorization of
funding for clean fuel buses, and authorization of funding for projects that would2
control noxious weeds. Second, they specify procedures that would be required to
be undertaken to comply with certain environmental requirements. For example,
SAFETEA includes provisions intended to “streamline” DOT’s compliance with
environmental review requirements of the National Environmental Policy Act
(NEPA, 42 U.S.C. §4321 et seq.) and change the process for demonstrating
conformity with elements of the Clean Air Act (42 U.S.C. §7401 et seq.).

1 For information about general provisions of SAFETEA and funding issues, see CRS Issue
Brief IB10138, Surface Transportation: SAFETEA-LU.
2 Funding for already-existing programs or projects generally increased in actual dollar
amounts, compared to funding levels in TEA-21. Detail regarding funding levels is
provided in the discussion of individual programs or projects.

This report focuses on environmental provisions of SAFETEA that may impact
federal funding or delivery of surface transportation programs or projects.
Specifically, this report addresses legislative provisions that will change how DOT
complies with elements of NEPA and the Clean Air Act. Current requirements of
each law sufficient to understand the provisions of SAFETEA are discussed. Also
included is an overview of selected environmental provisions that create new or make
changes to existing programs or procedures that are intended to mitigate or minimize
the environmental impacts of surface transportation programs.
Issues and Legislation Regarding
Environmental “Streamlining”
During the TEA-21 reauthorization process, some state transportation
departments and transportation construction organizations reported to Congress that
the process required to obtain various federal, state, and local environmental
approvals and permits, often needed for major highway projects, was sometimes
inefficiently implemented and overly time-consuming. In particular, stakeholders
expressed concern about the lack of effective interagency cooperation when multiple
federal or state agencies were required to participate in a project. Congress attempted
to address these concerns by including “Environmental Streamlining” provisions in
Although not defined by the statute, FHWA defines environmental streamlining
as the timely delivery of federally funded transportation projects, while protecting
and enhancing the environment. Because major transportation projects may be
affected by dozens of federal, state, and local environmental requirements,
administered by multiple agencies, improved interagency cooperation was identified
by Congress as a critical element to the success of environmental streamlining. The
streamlining provisions of TEA-21 required the Department of Transportation (DOT)
to develop and implement a “coordinated environmental review process” for highway
projects that either do have, or may have, a significant impact on the environment3
(approximately 9% of all highway projects fall into one of these categories). This
coordinated review process encouraged full and early participation by all relevant
federal and state agencies required to participate in a highway project.
Since the passage of TEA-21, numerous administrative activities have been
undertaken to facilitate streamlining. However, some Members of Congress
expressed the need for further legislation to expedite the environmental review
process required of highway construction and transit projects. As a result, SAFETEA
includes provisions intended to further streamline the environmental review process.
Discussed below are selected elements of the environmental review process relevant
to provisions in SAFETEA and a summary of legislative provisions that may be
generally categorized as “streamlining.” The provisions deal primarily with NEPA,
but could also be used to expedite compliance with other environmental

3 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp 3-4.

The Environmental Review Process Under NEPA. Before final design,
property acquisition, or construction on a highway or transit project can proceed, the
Federal Highway Administration (FHWA) and the Federal Transit Administration
(FTA) must demonstrate compliance with all applicable state and federal legal
requirements regarding the environment, including NEPA. NEPA requires the
preparation of an environmental impact statement (EIS) for all major federal actions
“significantly” affecting the environment. An EIS is a full disclosure document that
provides a description of the proposed project, the existing environment, and an
analysis of the anticipated beneficial and adverse environmental effects of the
proposed project and all reasonable alternatives. Preparation is done in two stages,
resulting in a draft and final EIS.
Projects for which it is not initially clear whether impacts will be significant
require the preparation of an environmental assessment (EA). If it is determined, at
any time during the EA that a project’s impacts will be significant, an EIS must be
prepared. However, if the EA determines that the project creates no significant
environmental impact, a Finding of No Significant Impact (FONSI) will be issued by
DOT. The FONSI must briefly present the reasons why the project will not have a
significant effect on the environment. According to FHWA, in FY2001, projects
requiring an EA and a subsequent FONSI accounted for approximately 6% of
FHWA-funded highway projects (representing approximately 15% of the $17.6
billion in federal funding distributed to states in FY2001); approximately 3% of
highway projects required an EIS (accounting for just under 9% of FY2001 federal
funding); the remainder were categorically excluded from the requirement to prepare4
either an EA or an EIS.
The Council on Environmental Quality (CEQ), in the Executive Office of the
President, promulgated regulations specifying NEPA compliance procedures5
applicable to all federal agencies. At CEQ’s direction, DOT promulgated its own
regulations governing the preparation of EISs and related environmental6
documentation required for FHWA and FTA projects. In addition to formal
regulations, DOT has issued a variety of guidance documents and technical
advisories to assist decision makers in completing the NEPA process for
transportation projects.7 NEPA compliance fits into the overall project delivery
process as a subset of one or more of the following four major elements generally
considered to be part of the full transportation project delivery process: preliminary

4 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003, pp. 3-4.
5 40 C.F.R. §§1500-1508.
6 40 C.F.R. §771; final rule at 53 Federal Register 32646.
7 The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project
Development Process,” which includes information regarding FHWA’s environmental
policy, FHWA Technical Advisories, and a variety of guidance materials to facilitate
compliance with NEPA at all stages of the process. The site is accessible at [http://] as of August 24, 2005. Information regarding
NEPA compliance for FTA is available on the agency’s Environmental website at
[], as of September 3, 2005.

engineering, final or construction engineering, right-of-way acquisition, and
Interagency Cooperation. Projects requiring NEPA documentation involve
the participation of a “lead agency” and “cooperating agencies.” The lead agency is
defined in CEQ regulations as the federal agency that has taken responsibility for8
preparing the NEPA documentation. For federally funded highway and transit
projects, the lead agency will usually be DOT (specifically FHWA or FTA). The
project applicant, such as a state DOT, will likely participate in the NEPA process
as a joint lead agency. The project applicant is required to initially develop
substantive portions of the environmental document, while DOT is responsible for
its scope and content.9
DOT requires that the EIS demonstrate that appropriate comments and
coordination were solicited from relevant federal, state, and local cooperating
agencies. Cooperating agencies are required to participate in the NEPA process,
when requested by the lead agency, if they are obligated to provide comments within
their agency’s jurisdiction, expertise, or authority. This means that an agency with
jurisdiction over or expertise regarding any identified environmental consequence
anticipated from a project is required to provide DOT with the appropriate input. For
example, if historical and archeological preservation consequences are identified, the
Advisory Council on Historic Preservation or the state historic preservation officer
will likely be included as a cooperating agency during the environmental review
process. If farmland impacts are identified, the EIS should summarize the results of
comments and analyses from the U.S. Department of Agriculture (USDA) and, as
appropriate, state and local agriculture agencies.
For any given transportation project, compliance with a wide variety of
legislative and regulatory requirements, requiring the participation of multiple
agencies, may be required. DOT regulations require that the final EIS or the FONSI
document compliance with all applicable environmental laws, executive orders, and
other related requirements.10 Depending upon the complexity of the project or
resources impacted, a significant number of environmental requirements, in addition
to NEPA, may be applicable. According to FHWA, legal requirements frequently
applicable to highway projects are contained in the:
!Endangered Species Act of 1973 (16 U.S.C. §1531 et seq.);
!National Historic Preservation Act (16 U.S.C. §460 et seq.);
!Clean Water Act (33 U.S.C. 1251 et seq.); and
!“Section 4(f)”of the Department of Transportation Act of 1966 (40
U.S.C. §303) (see “Section 4(f) Requirements for Public Parks and
Historic Sites” section, below) .

8 40 C.F.R. §1508.16.
9 23 C.F.R. §771.109(c).
10 23 C.F.R. §771.133.

For the requirements listed above, the U.S. Fish and Wildlife Service, the
Advisory Council on Historic Preservation, the U.S. Army Corps of Engineers, or the
Environmental Protection Agency (EPA) may be required to participate in the NEPA
process as a cooperating agency. That participation may take such forms as providing
comments on DOT documentation, performing scientific analysis, issuing permits,
or providing an assessment of project impacts.11
The role of a cooperating agency is frequently set out in a memorandum of
agreement with the lead agency. That agreement may involve the cooperating agency
drafting certain portions of the EIS that relate to its jurisdiction or expertise. For
example, if a highway project has the potential to impact prime farmland, USDA may
agree to provide FHWA with an analysis of those impacts.
Project “Purpose and Need” and Alternatives. As required under both
CEQ and DOT regulations, the EIS must include a statement clarifying the project’s
“purpose and need.” This section of an EIS is the foundation upon which subsequent
sections of the EIS are built. DOT requires the discussion to be clear and specific and
support the need for the project. Further, it is the purpose and need section that
drives the selection of the range of alternatives that will be considered and analyzed
for a given project. CEQ regulations require agencies to discuss a range of
alternatives that will include all “reasonable alternatives” under consideration as well
as any other alternatives that were considered but subsequently eliminated from
consideration. Reasonable alternatives include those that are practical or feasible
from the technical and economic standpoint and using common sense, rather than
simply desirable from the standpoint of the agency or a potentially affected
stakeholder. The alternatives must also include a “no action” alternative (e.g.,
short-term safety and maintenance improvements) that may serve as a baseline
against which “build” alternatives are compared.
In his capacity as the Chairman of the Interagency Transportation Infrastructure12
Streamlining Task Force, Transportation Secretary Norman Mineta sought guidance
from CEQ Chairman James Connaughton regarding the role of lead and cooperating13
agencies with regard to developing a highway project’s “purpose and need.”
Secretary Mineta referred to the sometimes extended interagency debates over
purpose and need statements as a reason for delay in highway project development.
In his response, Chairman Connaughton cited excerpts of NEPA itself as well
as CEQ regulations that specify that the lead agency has the authority for and

11 It is DOT policy that compliance with all applicable environmental requirements be
coordinated under the “NEPA umbrella.” This means that, for any given transportation
project, any study, review, or consultation required by law, that is related to the
environment, should be conducted within the framework of the NEPA process.
12 The Task Force was established under Executive Order 13274, “Environmental
Stewardship and Transportation Infrastructure Project Review,” available at
[], as of September 3, 2005.
13 Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,

2003 response, are available at [],

as of September 3, 2005.

responsibility to define a project’s purpose and need. Further, Chairman
Connaughton referenced previous federal court decisions giving deference to the lead
agency in determining a project’s purpose and need. While not addressed in this
correspondence, CEQ regulations also specify the selection of reasonable alternatives
as within the authority of the lead agency.
Designation of Categorical Exclusions. Transportation projects that do
not individually or cumulatively have a significant social, economic, or
environmental effect, and which DOT has determined from past experience with
similar projects have no significant impact, are excluded from the requirement to
prepare an EA or EIS. Such actions are processed as categorical exclusions. In
FY2001, almost 91% of all FHWA projects were classified as categorical14
A common misconception is that such projects are categorically excluded from
compliance with NEPA. Such projects do require a certain level of NEPA
compliance but are excluded from the requirement to prepare an EA or EIS. Unlike
EAs or EISs, categorical exclusions are not a type of document, but are classes of
DOT actions that may be, in effect, pre-approved. For example, “transportation
enhancements” often fall into this category of action.15
DOT regulations specify two groups of categorical exclusions. Whether or what
type of documentation may be necessary to demonstrate compliance will depend
upon into which of the two groups the project falls. The first group includes projects16
that call for no or limited construction. Examples include the construction of
bicycle and pedestrian lanes, landscaping, emergency repairs, and the installation of
pavement markings or traffic signals. The second group consists of actions with a
higher potential for impacts than the first group, but which are generally determined
to meet the criteria for a categorical exclusion because environmental impacts are
minor.17 An example of such a project is the modernization of a highway through
resurfacing, reconstruction, adding shoulders, or adding auxiliary lanes.
Since the second group of actions has a higher potential for impacts than the
first, DOT may require that the state or local project sponsor provide analyses or
documentation to allow DOT to determine if the categorical exclusion designation
is proper. Further, although a categorically excluded project’s environmental impacts
may not be “significant” as defined under NEPA, requirements of other laws may

14 General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to
Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003.
15 Activities classified as “transportation enhancements” are specifically listed by Congress
under 23 U.S.C. §101(a)(35). For more information, see FHWA’s Transportation
Enhancement website at [],as of
September 3, 2005. Also, see the “Programs or Funding to Mitigate Environmental Impacts”
section below for a list of existing projects eligible for funding, changes in eligibility under
SAFETEA, and changes in funding apportionments for such programs.
16 Specified under 23 C.F.R. §771.117(c).
17 Specified under 23 C.F.R. §771.117(d).

still apply. For example, the installation of traffic signals is generally considered an
action with no environmental impacts. However, if those traffic signals will be
installed in a historic district, compliance with provisions of the National Historic
Preservation Act may apply. Or, if the proposed route of a bicycle path borders
endangered species habitat, a biological assessment, in compliance with the
Endangered Species Act, may be required.
“Section 4(f)” Requirements for Public Parks and Historic Sites.
Another requirement that is generally carried out within the context of the NEPA
process is compliance with Section 4(f) of the Department of Transportation Act of
1966.18 Section 4(f) requirements apply to the use of publicly owned parks and
recreation areas, wildlife and waterfowl refuges, and to publicly or privately owned
historic sites of national, state, or local significance. The law prohibits the use of a
Section 4(f) resource for a transportation project unless there is no “prudent and
feasible” alternative to do otherwise, and the project includes all possible planning
to minimize harm to the resource.
When a project does propose the use of a Section 4(f) resource, a separate
“Section 4(f) evaluation” must be prepared and included with the appropriate NEPA
documentation. The evaluation must analyze alternatives and design shifts that avoid
the protected resource. If Section 4(f) land is subsequently chosen for use in a project,
the evaluation must demonstrate that the use of other alternatives would have resulted
in unique problems. “Unique problems” are present when there are truly unusual
factors or when the costs or community disruption reach “extraordinary magnitude.”
This test was introduced in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971), and subsequently referred to as “Overton Park Criteria.”
SAFETEA Provisions Regarding NEPA and Section 4(f). Unlike TEA-
21, the term “streamlining” is not used in SAFETEA. However, the intended effect
is the same — to expedite compliance with certain environmental requirements,
primarily NEPA and Section 4(f).
With regard to NEPA, many of the provisions in SAFETEA codify existing
regulatory requirements, such as: specifically designating DOT as the lead agency for
surface transportation projects; specifying the role of the lead and cooperating
agencies; and allowing deadlines for decision-making to be set.19 Following are key
SAFETEA provisions related to streamlining that change existing statutory or
regulatory requirements:

18 Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. § 1653(f) and applies
to all DOT projects. A similar provision, found at 23 U.S.C. § 138, applies specifically to
Federal-aid highways. In 1983, as part of a general recodification of the DOT Act, 49 U.S.C.
§ 1653(f) was formally repealed and codified in 49 U.S.C. § 303 with slightly different
language. This provision no longer falls under a “Section 4(f),” but DOT has continued this
reference, given that over the years, the whole body of provisions, policies, and case law has
been collectively referenced as Section 4(f).
19 For more information on issues related to streamlining, see CRS Report RL32024,
Background on NEPA Implementation for Highway Projects: Streamlining the Process.

!The establishment of a new entity in the NEPA process, referred to
as a “participating agency,” that includes those that intend to submit
comments on NEPA documentation in addition to those that meet
the definition of a cooperating agency;
!The establishment of procedures to be followed by lead and
participating agencies for the collaborative development of the
project’s statement of purpose and need and project alternatives,
including the establishment of deadlines on comments;
!The establishment of a 180-day statute of limitation on judicial
claims on final agency actions related to environmental
!Authorization to allow the use of transportation funds to help
agencies required to expedite the environmental review process;
!The establishment of a dispute resolution process when agencies
disagree on elements of the environmental review process;
!Authorization to allow states to determine whether certain classes of
projects may be processed as categorical exclusions; and
!Authorization to allow the establishment of state pilot programs to
allow participating states to assume certain federal responsibilities
regarding compliance with environmental laws.
With regard to Section 4(f), the law is amended to allow the use of Section 4(f)
resources if it is established that such use results in de minimis impacts to the
Detail on provisions in SAFETEA that are intended, either directly or indirectly,
to streamline compliance with environmental requirements are listed in Table 1.
Table 1. SAFETEA Provisions Related to Streamlining
Compliance with Environmental Requirements
P r ovision Description
Environmental Compliance Procedures
New projectSpecifies new project development procedures for “Efficient
developmentEnvironmental Reviews for Project Decision-making”(elements
proceduresof which are listed below) and repeals streamlining provisions
established in TEA-21. The new procedures are required to be
implemented for projects requiring an EIS and may be applied to
other projects that require compliance with elements of NEPA.
The project sponsor is required to inform DOT when the
environmental review process should be initiated. [§6002(a)]
Lead and jointStatutorily designates DOT as the lead federal agency. Designates
lead agencythe project sponsor (if a state or local government, as opposed to a
designationprivate party) as the joint lead agency for the environmental
review process; allows the joint lead agency to prepare any
supporting documents if the federal lead agency provides
guidance and assistance and ultimately approves the documents.

P r ovision Description
Roles andSpecifies that the lead agency must invite and designate certain
responsibilitiesagencies to participate in the NEPA process. A participating
of “participating”agency may be one that has special expertise regarding any of the
agenciesimpacts of the projects, is required to participate under some
federal jurisdiction or authority, or intends to submit comments
on the project. To the extent practicable, participating agencies
are required to carry out their statutory obligations with regard to
the project concurrently with reviews required under NEPA.
Project initiationRequires the project sponsor to initiate the environmental review
processprocess by notifying DOT of the type of work, termini, length,
and general location of the proposed project, together with a
statement of any federal approvals anticipated to be necessary for
the proposed project. [§6002(a)]
Purpose and needRequires the lead agency, as early as practicable, to provide the
development andpublic and participating agencies the opportunity to participate in
alternativesdefining the project’s purpose and need and the range of
analysisalternatives to be considered. After the public’s and agencies’
participation, the lead agency shall determine the project’s
purpose and need, the alternatives to be considered, the
methodologies to be used and level of detail required in the
alternatives analysis, and the preferred alternative. [§6002(a)]
Coordination andRequires the lead agency to establish a schedule for coordinating
scheduling ofpublic and agency participation in the environmental review
agency/publicprocess; specifies factors to be considered in establishing the
participationschedule, such as responsibilities of participating agencies, the
overall size of the projects, and the sensitivity of natural and
historic resources potentially impacted by the project. [§6002(a)]
DisputeEstablishes lead agency and participating agency responsibilities
resolutionto identify and resolve disputes that could delay completion of the
environmental review process; if an issue cannot be resolved
within 30 days of the required dispute resolution meeting, the lead
agency is required to notify all agency heads, the Governor, the
Senate Environment and Public Works Committee, the House
Transportation and Infrastructure Committee, and CEQ.
Establishment ofRequires DOT to establish performance measures and report
performanceprogress toward improving and expediting the planning and
measuresenvironmental review process. [§6002(a)]
FinancialAllows funds to be provided to affected federal, state, or tribal
assistance toagencies participating in the environmental review process to
affected agenciessupport activities that contribute to expediting and improving
transportation planning and delivery. [§6002(a)]

P r ovision Description
Limit on claimsProhibits claims seeking judicial review of a permit, license, or
approval issued by a federal agency for highway or transit
projects unless they are filed within 180-days after publication of
a notice in the Federal Register announcing the final agency
action, unless a shorter time is specified in the federal law under
which the judicial review is allowed. [§6002(a)]
State assumptionAllows DOT to establish a pilot program for up to five states to
ofassume DOT’s environmental review responsibilities for projects
responsibilitiesfunded under the recreational trails program (23 U.S.C. 104(h))
and for transportation enhancement activities (23 U.S.C.

101(a)(38)). Responsibilities may be assumed by the state,

including acceptance of jurisdiction in federal court, in
accordance with terms specified in a memorandum of
understanding (MOU) between the state and DOT, for an initial
period of no more than three years that may be renewed by mutual
agreement after that. [§6003]
State assumptionAllows DOT to assign and a state to assume responsibility for
ofdetermining whether certain designated projects may be classified
responsibilitiesas categorical exclusions, in accordance with criteria to be
for categoricalestablished by DOT. Terms of the state’s authority will be
exclusionsspecified in an MOU between the state and DOT for a renewable
period of three years. Compliance monitoring and termination
responsibility will be maintained by DOT. [§6004]
CategoricalRequires DOT, within one year, to specify categorical exclusions
exclusion forfor activities that support the deployment of Intelligent
designation forTransportation Systems (ITS). Directs DOT to develop a
ITS projectsnationwide programmatic agreement governing the review of such
activities in accordance with the National Historic Preservation
Act, in consultation with the National Conference of State
Historic Preservation Officers and the Advisory Council on
Historic Preservation. [§6010]
State projectRequires the establishment of a pilot program to allow Oklahoma,
delivery pilotCalifornia, Texas, Ohio, and Alaska to assume certain federal
programenvironmental review responsibilities (in addition to categorical
exclusion determinations). Responsibility could be assumed for
environmental reviews required under NEPA, or any federal law,
for one or more highway projects within the state. Federal
responsibility for any conformity determination required under
the Clean Air Act could not be assigned to the state. The program
would be administered in accordance with a written agreement
between U.S. DOT and the participating state DOT. U.S. DOT is
directed to promulgate regulations to implement the pilot program
within 270 days of enactment of SAFETEA. [§6005]

P r ovision Description
Addition ofAmends standards for establishing design criteria for the National
design criteriaHighway System by adding the following publications that could
that integratebe used when developing those criteria: FHWA’s “Flexibility in
natural resourcesHighway Design;” “Eight Characteristics of Process to Yield
concerns intoExcellence and the Seven Qualities of Excellence in
transportationTransportation Design” developed by the 1998 conference
project planning“Thinking Beyond the Pavement National Workshop on
Integrating Highway Development with Communities and the
Environment while Maintaining Safety and Performance;” and
any other material that the DOT Secretary deems appropriate.
Section 4(f) Compliance
Change in theAllows for the use of publicly owned parks and recreation areas,
approval processwildlife and waterfowl refuges if it is determined that such use
for the use of would result in “de minimis impacts” to that resource; that
public parks anddetermination must receive concurrence from the official with
refugesjurisdiction over that resource (e.g., the U.S. Fish and Wildlife
Service, the National Park Service, or applicable state or local
park authorities). [§6009(a)]
Change in theAllows for the use of a historic site if it is determined that such
approval processuse would result in “de minimis impacts” to that resource; that
for the use ofdetermination must be made in accordance with provisions of the
historic sitesNational Historic Preservation Act (16 U.S.C. 470f) that specify
criteria for finding that the use will have no “adverse effect” on
the site. [§6009(a)]
Clarification ofRequires DOT, within one year, to issue regulations clarifying
existingfactors to be considered and standards to be applied in
standardsdetermining whether alternatives are “prudent and feasible” under
the Section 4(f) requirements. [§6009(b)]
ImplementationRequires DOT to commission an independent review of the
studyimplementation of the new amendments; requires an evaluation of
items such as: any efficiencies resulting from the amendments;
the post-construction effectiveness of impact mitigation and
avoidance commitments; and the number of projects with de
minimis impacts. (No direct funding for this study is provided.)
Exemption of theSpecifies that the Interstate System cannot be considered a
Interstate System“historic site” under provisions of Section 4(f); using the
administrative procedures established under §106 of the National
Historic Preservation Act (see March 10, 2005 Federal Register
notice, pg. 11928); it may still be determined that individual
elements of the Interstate System possess an independent feature
of historic significance that may still be protected under Section

4(f) requirements. [§6007]

Source: Table prepared by the Congressional Research Service (CRS) based on an analysis of
provisions of SAFETEA.

Issues and Legislation Regarding the Clean Air Act
One of the more obvious environmental impacts related to transportation is its
generation of air pollution, in particular “smog” and “soot.” Smog (ground-level
ozone) is not directly emitted from vehicles, but is formed by the reaction in the
presence of sunlight of nitrogen oxides (NOx) and volatile organic compounds
(VOCs), both of which are emitted from vehicles as well as other sources. Soot
(particulate matter or PM) can be generated from a variety of sources including the
combustion of petroleum (notably, diesel fuel). If the concentrations of soot and
smog in the air, in addition to other pollutants, exceed certain levels, they can have
adverse effects on human health and the environment.
The National Ambient Air Quality Standards. The Clean Air Act directs
the EPA to regulate emissions of air pollutants. Of relevance to transportation is
EPA’s authority to establish standards, based on certain health and environmental20
criteria, for ozone, carbon monoxide (CO), NOx, and PM. The National Ambient
Air Quality Standards (NAAQS), subsequently established by EPA, specify
allowable concentrations and exposure limits for each “criteria pollutant.” A
geographic area that meets or exceeds the standard is considered to be in
“attainment” for a particular NAAQS; areas that do not meet a standard are in
“nonattainment.”21 A “maintenance” area is one that was previously in22
nonattainment, but is currently attaining the NAAQS subject to a maintenance plan.
The NAAQS for particulates, CO, NOx, and short-term (one-hour)
concentrations of ozone have been in effect since the 1970s. However, a more
stringent standard for ozone (an 8-hour concentration) and new standards for fine
particulates (PM2.5) went into effect more recently. In April 2004, part or all of 474
counties were designated in nonattainment for the new ozone standard. In January

2005, EPA announced that part or all of 225 counties were in nonattainment for23

PM2.5 .
20 Regulated particulates are either “coarse” (between 2.5 and 10 micrometers in diameter,
known as PM10) or “fine” (less than 2.5 micrometers, known as PM2.5). PM10 from
transportation sources may come from brake and tire wear, pavement wear, and other
vehicle degenerative processes. PM2.5 are emitted from combustion sources, such as diesel
engines. Fine particulates penetrate deeper into the lungs and remain lodged there, rather
than being exhaled, causing negative impacts on health. Also included on the list of criteria
pollutants are lead and sulfur dioxide. On-road mobile sources (i.e., transportation-related
sources) are not significant sources of either of these pollutants.
21 For information on areas currently designated as in nonattainment, see EPA’s “Green
Book Nonattainment Areas for Criteria Pollutants,” available online at [
oar/oaqps/greenbk/index.html], as of September 3, 2005.
22 For a more extended discussion of issues regarding NAAQS, see CRS Report RL30853,
Clean Air Act: A Summary of the Act and Its Major Requirements.
23 For more information, see CRS Report RL32345, Implementation of EPA’s 8-Hour
Ozone Standard; and CRS Report RL32431, Particulate Matter (PM2.5): National Ambient
Air Quality Standards (NAAQS) Implementation.

The Clean Air Act requires states to develop a State Implementation Plan (SIP)
to demonstrate how they will implement, maintain, and enforce the NAAQS.24 The
SIP must include enforceable emission limitations and other control measures, as
well as schedules and timetables for compliance with NAAQS, if applicable.
Compliance deadlines vary, depending on the severity of the pollution, but generally
a nonattainment area must demonstrate that it is making annual emission reductions
sufficient to reach attainment by the applicable deadline. If necessary, the SIP must
also include a “motor vehicle emissions budget,” which establishes a goal the state
must meet with regard to emissions from mobile sources such as cars, trucks, and
buses. States submit initial SIPs and subsequent revisions to EPA for approval.
The attainment of NAAQS and the development of SIPs are relevant to surface
transportation issues for a variety of reasons. For example, transportation agencies
must consider SIP goals in developing long- and short-term transportation plans.
Also, whether or not federal funds will be made available for a surface transportation
project may depend upon whether the project can be shown to conform with the
Conformity with Transportation Planning. State and metropolitan
transportation planners are required under the Clean Air Act to ensure that their long-
range transportation plans and short-range Transportation Improvement Programs
(TIPs) conform with the motor vehicle emissions budget established in a SIP.
Conformity is a way to ensure that federal funding and approval are given only to
transportation projects that are consistent with a state’s air quality goals.26
Specifically, Section 176(c) of the Clean Air Act requires that planned transportation
projects will not:
!Cause new air quality violations;
!Worsen existing NAAQS violations; or
!Delay attainment of relevant NAAQS.
Long-range transportation plans look at a 20-year planning horizon and specify
the long-term goals for a metropolitan area’s transportation system. Before a new
transportation plan can be approved or a new project can receive federal funding, a
regional emissions analysis must demonstrate that the emissions projected in the plan
conform to the emissions budget established by the SIP. A new conformity
demonstration must be made for a transportation plan at least every three years.
A TIP identifies major highway and transit projects to be funded in the short
term (within the next three years) either in a metropolitan area (if that area is a
nonattainment or maintenance area) or on a statewide basis. Metropolitan TIPs must

24 42 U.S.C. § 7410.
25 Ozone nonattainment areas are classified according to the extent to which pollution levels
exceed the standards; they made be designated as being in marginal, moderate, serious,
severe, or extreme nonattainment.
26 For more information, see guidance from FHWA: Transportation Conformity: A Basic
Guide for State and Local Officials, June 19, 2000, available online at [http://www.], as of September 3, 2005.

be updated at least every two years, statewide TIPS at least every three years. TIPs
may also need to be updated when a new project is added. In practice, many large
urban areas obtain a new conformity determination for their TIPs on an annual basis.
Highway and transit projects cannot receive federal funds unless they are part of a
conforming TIP.27
While conformity has been required for more than a decade, its impact is
expected to grow in the next few years as a result of several factors, including the
new NAAQS for ozone and fine particulates, and the increase in emissions from
sport utility vehicles (SUVs) and other “light trucks.”28 These and other factors could
contribute to numerous metropolitan areas facing a temporary suspension of highway
and transit funds, unless they impose sharp reductions in vehicle, industrial, or other
emissions. In 2003, the General Accounting Office (GAO, now called the
Government Accountability Office) reported that, over the previous six years, only
five metropolitan areas had to change transportation plans in order to resolve a
conformity lapse; but about one-third of local transportation planners surveyed
expected to have difficulty demonstrating conformity in the future.29
The CMAQ Program. In the year following the Clean Air Act Amendments
of 1990, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)30
directed the Secretary of DOT to establish and implement a Congestion Mitigation
and Air Quality Improvement (CMAQ) program. ISTEA authorized a total of $6.0
billion in funding for surface transportation and other related projects that contribute
to air quality improvements and congestion mitigation. In particular, it authorized
funding for programs and projects intended to reduce carbon monoxide (CO) and
ISTEA established a formula to apportion CMAQ funds largely based on a
state’s population and pollution reduction needs. The population of each area in a
state that is a nonattainment or maintenance area for ozone and/or CO is multiplied
by a weighting factor based on the level of nonattainment (e.g., moderate, serious,
severe). States with no maintenance or nonattainment areas for ozone or CO are
guaranteed at least 0.5% of each year’s authorized CMAQ funds.
Under TEA-21, a total of $8.1 billion was authorized for the program for
FY1998-FY2003. TEA-21 also expanded the program to allow the use of CMAQ

27 For a more extended discussion of the issues regarding conformity, see CRS Report
RL32106, Transportation Conformity Under the Clean Air Act: In Need of Reform?
28 SUVs, minivans, and pickup trucks, vehicles classified as “light trucks,” are regulated
less stringently than passenger cars. Their potential to impact air quality standards is tied
to the fact that sales of such vehicles represent a significant proportion of new vehicle sales
and that they potentially release greater levels of criteria pollutants than other passenger
cars. For more information, see CRS Report RS20298, Sport Utility Vehicles, Mini-Vans,
and Light Trucks: An Overview of Fuel Economy and Emissions Standards.
29 See U.S. GAO, Environmental Protection: Federal Planning Requirements for
Transportation and Air Quality Protection Could Potentially Be More Efficient and Better
Linked, GAO-03-581, April 2003.
30 ISTEA was the surface transportation authorization legislation for FY1991-FY1997.

funds for projects and programs intended to reduce PM10. TEA-21 did not, however,
change the apportionment formula that is based on ozone and CO. Therefore, states
with maintenance or nonattainment areas for only PM10 receive the guaranteed
minimum CMAQ funding.
Projects and programs eligible for CMAQ funds must come from a conforming
transportation plan and TIP. According to guidance from DOT, such projects must
also be expected to result in “tangible reductions” in CO, ozone precursor emissions,
or PM10.31 CMAQ funds cannot be used for projects that will result in new highway
Specific types of projects eligible for CMAQ funds include, but are not limited
!Transportation control measures;
!Inspection and maintenance programs for auto emission controls;
!Extreme low-temperature cold start programs;
!The purchase of publicly owned, alternative fuel vehicles;
!Traffic flow improvements;
!Transit and public transportation programs;
!Pedestrian and bicycle facilities and programs;
!Travel demand management strategies;
!Outreach and rideshare programs; and
!Fare/fee subsidy programs.32
According to FHWA, the most effective CMAQ-funded projects tend to be large
in scope and directly affect vehicle emissions, such as inspection and maintenance
CMAQ funds are available to a wide range of government and nonprofit
organizations, as well as private entities contributing to public-private partnerships.
Decisions regarding which projects or programs to fund are generally made through
the appropriate metropolitan and/or statewide transportation planning organizations,
and involve the state or local air quality agency. Also, FHWA or FTA field offices
are required to coordinate the project selection process with EPA.
SAFETEA Provisions Affecting Compliance with the Clean Air Act.
Several air quality-related issues are addressed in SAFETEA. Provisions that relate,
either directly or indirectly, to attainment of the NAAQS include:
!Amendments to the Clean Air Act regarding air quality monitoring
data influenced by “exceptional events;”

31 DOT Program Guidance: “The Congestion Mitigation and Air Quality Improvement
(CMAQ) Program Under the Transportation Equity Act of the 21st Century (TEA-21),”
April 1999, available online at [], as
of September 3, 2005.
32 Ibid.

!Amendments to the Clean Air Act regarding conformity
demonstration requirements;
!Revisions to CMAQ eligibility requirements;
!Authorization to use CMAQ funds for specific state projects that
may not otherwise qualify for continued funding under the program;
!Modification of programs funding clean fuel buses; and
!Modification of state high occupancy vehicle (HOV) requirements.
Amendments to Air Quality Monitoring Requirements. Section 6013
of SAFETEA amends Air Quality Monitoring requirements specified under §319 of
the Clean Air Act. SAFETEA’s amendment requires EPA to promulgate regulations
that will take into consideration methods of handling air quality monitoring data that
is influenced by “exceptional events.” Such events are defined as those that affect
air quality; are not reasonably controllable or preventable; are caused by human
activity that is unlikely to recur at a particular location or a natural event; and are
determined by EPA, in accordance with established regulations to meet criteria that
would constitute an exceptional event.
EPA is directed to promulgate regulations implementing SAFETEA’s
amendment by March 1, 2006. Included among those regulations must be criteria
and procedures to allow governors to petition EPA to exclude air quality data that is
directly due to exceptional events from use in determining exceedances or violations
of NAAQS. According to the SAFETEA conference report (H.Rept. 109-203), the
development of such a process would mean that events such as forest fires or
volcanic eruptions would not cause a region to fail to meet its federal air quality
Amendments to Conformity Requirements. SAFETEA amends Section
176 of the Clean Air Act with regard to how and when conformity demonstrations
are made. Under the amendments, updates of conformity demonstrations for
transportation programs and plans will be required every four years instead of every
three, and the planning horizon over which conformity must be demonstrated may
be shortened from 20 years to 10. SAFETEA also establishes a 12-month grace
period following a failure to demonstrate conformity before a lapse would be
declared. Amendments to the conformity requirements are listed in Table 2.

Table 2. SAFETEA Provisions Related to
Conformity Requirements
ActionProvision Summary
ConformityAdds a provision to §176 of the Clean Air Act to require a
redeterminationconformity redetermination for existing transportation plans
requirementsor programs within two years after EPA: finds that a motor
vehicle emissions budget is adequate; approves a SIP that
establishes a motor vehicle emissions budget that has not yet
been determined to be adequate; or promulgates SIP that
establishes or revises an emissions budget. [§6011(a)]
Change inAmends §176 to allow the frequency of conformity
frequency ofdeterminations on updated transportation plans and programs
conformityto be every four years, instead of three, unless the metropolitan
determinationplanning organization (MPO) elects to update it more
updatesfrequently or is required to redetermine conformity. [§6011(b)]
Change inAdds a provision to §176 to allow an MPO, after consultation
conformity horizonwith local air pollution control agencies and the solicitation of
for long-termpublic comments, to shorten the planning horizon for
transportation plansconformity determinations from 20 years to 10. [§6011(c)]
Allowance for theAdds a provision to §176 to allow transportation control
substitution ofmeasures (TCMs) to be replaced, in or added to, a SIP without
transportationa new conformity determination, if the substitute TCM
control measuresachieves equivalent or greater emissions reductions;
concurrence on the substitution must be reached between the
MPO, EPA, and the state air pollution control agency.
Grace period forAdds a provision to §176 to allow a 12-month grace period
conformity lapsesbefore the consequences of a conformity lapse shall apply.
RegulationsAmends §176 to require EPA to revise the conformity rule
within two years of the enactment of the bill to reflect the
amendments in SAFETEA. [§6011(g)]
Source: Table prepared by CRS based on an analysis of provisions of SAFETEA.
Amendments to CMAQ Provisions. CMAQ funding for FY2005-FY2009
totals $8.6 billion. This compares to a total of $8.1 billion in funding authorization
for the six fiscal years under TEA-21. SAFETEA amends the CMAQ apportionment
formula under 23 U.S.C. §104(b)(2) and the CMAQ program requirements under 23
U.S.C. §149(b). Significant amendments include: an expansion of program funding
eligibility requirements; changes in requirements applicable to states receiving the
minimum apportionment; a directive that diesel retrofit projects will have funding
priority over other projects; and a requirement that EPA, with DOT, publish guidance
on cost-effective emission reduction technology. A complete list of legislative
provisions regarding the CMAQ program is provided in Table 3.

Table 3. SAFETEA Provisions Related to the CMAQ Program
ActionProvision Summary
AuthorizationA total of $8.6 billion is authorized for FY2005-FY2009.
ApportionmentAmends 23 U.S.C. §104(b)(2) regarding the apportionment
weighting factors for the CMAQ program to: change the weighting
factor for ozone or carbon monoxide (CO) maintenance areas from
0.8 to 1.0; add a weighting factor of 1.0 for areas in non-attainment
for the new 8-hour ozone standard; specify that the weighting factor
of 1.2 for areas in non-attainment or maintenance for both CO and
ozone will apply only to the population of the county in non-
attainment or maintenance for CO. [§1103(d)]
“CongestionAllows states to use funds apportioned under the CMAQ program,
relief” fundingas well as the Surface Transportation Program and the National
Highway System, to fund a “real-time system management
information program” (programs that provide states with the
capability to monitor in real-time traffic and travel conditions of the
major highways and to share the information with other states, local
governments, and the traveling public). [§1201]
Eligibility forAmends 23 U.S.C. §149(b) to allow areas that were required to file
maintenancemaintenance plans with EPA to be eligible to receive CMAQ funds
areas under the(this provision is intended to help those areas that were designated
old 1-hournonattainment under the previous 1-hour ozone standard, but are
ozone standarddesignated attainment for the new 8-hour ozone standard).
GeneralLimits the eligibility of projects identified by EPA to those that are
changes tolikely to contribute to a high level of effectiveness in meeting air
CMAQquality standards. [§1808(b)]
SpecificAmends 23 U.S.C. 149(b) to allow the following projects to be
changes toeligible for CMAQ funds: advanced truck stop electrification
CMAQsystems; projects that will improve transportation systems
eligibilitymanagement and operations; integrated, interoperable emergency
communications equipment; and diesel retrofits. [§1808(b)]
StatesAmends 23 U.S.C. 149(c) to specify that states receiving the
receivingminimum apportionment (i.e., ½ of 1% based on the population
minimumapportionment) are allowed to use CMAQ funds for projects that
apportionmentwould otherwise meet CMAQ eligibility requirements. [§1808(c)]
Publication ofEPA is directed to publish emission reduction guidance listing
emissiondiesel retrofit technologies and supporting technical information,
reductionincluding information regarding emission reduction effectiveness
guidelinesand cost-effectiveness. [§1808(d)]
CMAQDirects state and metropolitan planning organizations (MPOs) to
fundinggive funding priority for diesel retrofits and cost-effective
prioritiescongestion mitigation activities; allows agencies to retain existing
authorities and roles in making final project selections. [§1808(d)]

ActionProvision Summary
InteragencyDirects DOT to encourage states and MPOs, in nonattainment and
consultationmaintenance areas, to consult with state and local air quality
requirementsagencies on estimated emission reductions from proposed CMAQ
programs and projects. [§1808(e)]
Evaluation andDirects DOT, in consultation with EPA, to evaluate and assess a
assessment ofrepresentative sample of CMAQ projects to determine their impacts
projects on air quality and congestion levels and to ensure the effective
implementation of the program. Directs DOT to maintain and
disseminate a database describing project impacts (no direct
funding is provided for the evaluation or the database). [§1808(f)]
Allowances forAuthorizes specific states to use CMAQ funds for the following
specificcategories of projects that would not otherwise meet existing
projects inCMAQ eligibility requirements:
designated — Public transit activities that serve a nonattainment or
statesmaintenance area (Montana);
— Operation and maintenance of intelligent transportation
system strategies that serve a nonattainment or maintenance
area (Michigan);
— Operation of passenger rail service between Boston,
Massachusetts, and Portland, Maine (Maine); and
— Operation of passenger rail service between Portland, Oregon
and Eugene, Oregon (Oregon); and
— The purchase of alternative fuel or biodiesel (Missouri, Iowa,
Minnesota, Wisconsin, Illinois, Indiana, and Ohio) [§1808(g)-
Source: Table prepared by CRS based on an analysis of provisions of SAFETEA.
Clean Fuels Grant Programs. Under TEA-21, the Clean Fuels Formula
Grant Program was created. The program was intended to accelerate the deployment
of advanced bus technologies.33 The program was developed to assist transit systems
in purchasing low emissions buses and related equipment, constructing alternative
fuel fueling facilities, modifying existing garage facilities to accommodate clean fuel
vehicles and assisting in the utilization of biodiesel fuel. Eligible recipients of the
grant funds were public transit operators in nonattainment or maintenance areas, both
urbanized and non-urbanized.
TEA-21 provided $100 million in guaranteed funding each fiscal year for this
program, including $50 million from the Formula Grants program and, $50 million
from funding available under the Capital Investment Grants program for Bus and Bus
Facilities. However, each DOT appropriations act since the enactment of TEA-21
has expressly provided that this funding be made available to projects in the Bus and
Bus Facilities program under the Capital Investment Grants program. Therefore,
FTA did not administer the program separately from the Bus and Bus Facilities

33 42 U.S.C. §5308.

Section 3010 of SAFETEA amends §5308 of Title 49 by making the program
discretionary in nature rather than a formula grant program. (Hence, the new title of
the program is the Clean Fuels Grant Program.) Grants under the program will be
subject to the requirements of Urbanized Area Formula Grants (49 U.S.C. §5307).
Under §3036, SAFETEA authorizes $49,600,000 for FY2005 (under the formula
grant program specified under TEA-21), $43,000,000 for FY2006, $45,000,000 for
FY2007, $49,000,000 for FY2008, and $51,500,000 for FY2009.
With regard to program implementation, the amendments specify that not more
than 25% of the funds made available under this grant program may be used for clean
diesel bus technology. The definitions of “clean fuel vehicles” and “eligible
projects” remain largely the same as under existing law.
Also related to clean fuel buses is a new Clean School Bus Program.34 Under
§6015, SAFETEA establishes a program to authorize funds to assist localities
seeking to reduce emissions from existing school buses. The legislation requires EPA
to award grants to replace pre-1977 school buses and retrofit post-1990 school buses,
and when appropriate, purchase alternative fuels. The program will allow for grants
that will pay between 25% and 50% of the replacement or retrofit costs. Under this
program, EPA is authorized to appropriate, and have available until expended,
$55,000,000 for each of FY2006 and FY2007 and “such sums as are necessary” for
each of FY2008, FY2009, and FY2010. While SAFETEA authorizes funding for this
program, it does not designate a specific program from which funding would come
(e.g., from CMAQ or STP funds).
HOV Lanes for Hybrid Vehicles. Under TEA-21, states were given the
authority to grant exceptions from high occupancy vehicle (HOV) lane requirements
to “Inherently Low Emission Vehicles” (ILEVs). The ILEV standard requires that
a vehicle have no evaporative emissions (e.g., vehicles that run only on electricity or
natural gas). Although they did not meet the definition of an ILEV, single occupancy
hybrid vehicles were allowed by some states to use HOV lanes. This was not
authorized under existing federal law. Because of the reduced emissions and
improved fuel economy of hybrid vehicles, there was congressional interest in
explicitly granting states the right to exempt hybrid vehicles from HOV lane35
Section 1121 of SAFETEA specifies that state agencies with jurisdiction over
the operation of an HOV facility must establish occupancy requirements for vehicles
using those facilities. Vehicles with fewer than two passengers will not be allowed
to use an HOV facility, with the exception of: motorcycles and bicycles, public
transportation vehicles, “low-emission and energy-efficient” vehicles, and High
Occupancy Toll (HOT) vehicles. A state may also choose to allow low-emission and
energy-efficient vehicles to pay a toll to use HOV lanes.

34 EPA also funds a Clean School Bus USA program. For FY2005, Congress appropriated
$7.5 million for cost-shared grant programs. For more information about the program, see
[], available as of September 3, 2005.
35 For more information, see the discussion on “Hybrid Vehicles” in CRS Issue Brief
IB10128, Alternative Fuels and Advanced Technology Vehicles: Issues in Congress.

Low-emission and energy-efficient vehicles are defined to include ILEVs or
vehicles meeting Tier II emissions levels established under section 202(i) of the
Clean Air Act (42 U.S.C. 7521(i)) for a specific vehicle make and model. To qualify
for the low-emission and energy-efficient vehicle exemption, the vehicle must also
meet one of the following requirements: be an alternative fuel vehicle operating on
alternative fuel or, if it is propelled by on-board hybrid technologies, meet particular
fuel economy performance requirements. Further, the state agency must create a
program that defines how such qualifying vehicles are selected and certified, and
establish a method to label qualifying vehicles. SAFETEA provides for the
discontinuation of these exceptions if the operation of HOV lanes becomes seriously
degraded as a result of lane exceptions.
Programs or Funding to Mitigate Environmental Impacts
In addition to provisions that relate to streamlining environmental compliance
or complying with elements of the Clean Air Act, there are a variety of provisions
throughout SAFETEA that relate in some way to the environment. Generally, those
provisions create or fund programs or projects intended to minimize or mitigate
environmental impacts related to surface transportation projects.36
Transportation Enhancement Funding and Eligibility. Since the
inception of the program under ISTEA, states have been required to obligate 10% of
their STP funds for Transportation Enhancement (TE) activities. TEs are projects
intended to improve communities’ cultural, aesthetic, and environmental qualities.
To be eligible for TE funding, a project must “relate to surface transportation” and37
fit into one or more of the following 12 eligible categories:
!Provision of facilities for pedestrians and bicycles,
!Provision of safety and educational activities for pedestrians and
!Acquisition of scenic easements and scenic or historic sites,
!Scenic or historic highway programs,
!Landscaping and other scenic beautification,
!Historic preservation,
!Rehabilitation and operation of historic transportation buildings,
structures, or facilities,
!Preservation of abandoned railway corridors (including the
conversion and use thereof for pedestrian or bicycle trails),
!Control and removal of outdoor advertising,
!Archaeological planning and research,

36 Of the projects receiving funding, most are authorized to receive those funds from the
Surface Transportation Program (STP) or the National Highway System (NHS) program.
The STP provides funding that may be used by states and localities for projects on any
federal-aid highway. The NHS program provides funding to states for improvements to
rural and urban roads that are part of the national highway system, including the Interstate
System and designated connections to major intermodal terminals.
37 23 U.S.C. §101(a)(35)

!Environmental mitigation to address water pollution due to highway
runoff or reduce vehicle-caused wildlife mortality while maintaining
habitat connectivity, and
!Establishment of transportation museums.
SAFETEA changes the set-aside requirements for TEs and expands the
eligibility requirements. Under §1113(c), the 10% set-aside from STP funds is
changed to allow a state, from FY2006 onwards, to set-aside the greater of 10% of
funds apportioned the state under the STP, or the dollar amount previously set aside
for TE activities in FY2005.38 Under §1122(a), the definition of TE activities is
amended slightly to include historic battlefields (under the scenic easements
category) and inventory of billboards (as well as control and removal). Other
categories remain unchanged.
Environmental Restoration and Pollution Abatement. Under §6006(b),
SAFETEA authorizes funding and expands eligibility requirements for
“environmental restoration and pollution abatement” activities. Eligibility is
extended to projects involving retrofitting and construction of stormwater treatment
systems to meet federal and state requirements to address water pollution or
environmental degradation caused wholly or partially by a transportation facility. The
expenditure of funds is limited to 20% of the total cost of an ongoing reconstruction,
rehabilitation, resurfacing or restoration project. Current law allows a state to use
STP funds for such projects. As amended by SAFETEA, the use of NHS funds will
be allowed as well.
Control of Noxious Weeds. Under §6006(c), SAFETEA expands funding
eligibility under both the STP and NHS programs for activities to control noxious
weeds and noxious aquatic weeds and to establish native plant species. Activities
related to transportation projects that may be carried out are: the establishment of
plants selected by state and local transportation authorities to perform abatement of
stormwater runoff, stabilization of soil, or aesthetic enhancement; and management
of plants which impair or impede the establishment, maintenance, or safe use of a
transportation system. Specific activities include:
!Rights of way surveys to determine management requirements to
control noxious weeds, brush, or trees considered to be a threat to
safety or maintenance of transportation systems;
!Control or elimination of plants that impair or impede the
establishment, maintenance, or safe use of a transportation system;
!Establishment of plants, whether native or non-native with a
preference for native when possible, for the purposes of abatement
of stormwater runoff, stabilization of soil, or aesthetic enhancement;
!Elimination of plants to create fuel breaks for the prevention and
control of wildfires; and
! Training.

38 In SAFETEA, an average of $6.4 billion is authorized to be appropriated to STP for each
fiscal year.

Research Grants. Under §5101, SAFETEA authorizes funding out of the
Highway Trust Fund (other than the Mass Transit Account) for a variety of research
programs. The Surface Transportation Research, Development, and Deployment
Program is authorized to be appropriated a total of $196,400,000 for each fiscal year
to carry out certain research activities. Included among them are projects listed under
§5513 of SAFETEA. Projects that may be considered “environmental” research
!$750,000 for each of FY2006 through FY2009, and available until
expended, to the University of Montana for use in carrying out the
Hydrogen-Powered Transportation Research Initiative. [§5513(h)]
!$2,500,000 in each of FY2006 through FY2009 to the University of
Kansas Transportation Research Institute for research and
development of advanced vehicle technology concepts. The research
is to focus on vehicle emissions, fuel cells and catalytic processes,
and intelligent transportation systems. [§5513(j)]
!$1,000,000 for FY2006, and available until expended, to the
University of Vermont for research, development and field testing
of hydrogen fuel cell and biofuel transportation technology.
Surface Transportation Environment and Planning Cooperative
Research Program. Under TEA-21, DOT established the Surface Transportation-
Environment Cooperative Research Program (23 U.S.C. §507). Included among the
Program’s research priorities were requirements to: improve understanding of the
factors that contribute to the demand for transportation; develop indicators of
economic, social, and environmental performance of transportation systems to
facilitate analysis of potential alternatives; and study the relationship between
highway density and ecosystem integrity. One component of the program was the
establishment of an Advisory Board to make recommendations on environmental and
energy conservation research, technology, and technology transfer activities related
to surface transportation. Under the program, the Secretary was authorized to make
grants to, and enter into cooperative agreements with, the National Academy of
Sciences to conduct activities relating to transportation-environmental research. Over
TEA-21’s authorization period (FY1998-FY2003), Congress did not appropriate
funds for this program.
Under §5207 of SAFETEA, $16,875,000 of the Surface Transportation
Research funds are set aside for each of FY2006 through 2009 and existing
provisions under Title 23 of the program are amended. The program is modified to
include a provision for DOT to administer the program and sharpen the focus of the
research through stakeholder input via workshops, symposia, and an expert panel.
The existing research priority regarding the study of the relationship between
highway density and ecosystem integrity is removed.
Nonmotorized Transportation Pilot Program. Under §1807 of
SAFETEA, DOT is directed to construct a network of nonmotorized transportation
pilot programs in Columbia, Missouri; Marin County, California; Minneapolis-St.
Paul, Minnesota; and Sheboygan County, Wisconsin. The program is to include the
development a network of nonmotorized transportation infrastructure facilities,

including sidewalks, bicycle lanes, and pedestrian and bicycle trails that connect
directly with transit stations, schools, residences, businesses, recreation areas, and
other community activity centers. The purpose of the program is to demonstrate the
extent to which bicycling and walking can carry a significant part of the
transportation load. DOT is directed to develop statistical information on changes
in motor vehicle, nonmotorized transportation, and public transportation usage in
communities participating in the program and assess how the changes decrease
congestion and energy usage, and promote better health and a cleaner environment.
To implement the program, grants of $25,000,000, out of the highway trust fund
(other than the Mass Transit Account), are authorized for each of FY2006 through
2009. Grants of $6,250,000 per fiscal year may be made to state, local, and regional
agencies in each of the four communities.
Use of Recycled or Reused Materials. SAFETEA includes several
provisions that are intended to promote the recycling or reuse of certain materials.
Types of materials, and provisions related to each, include:
!Debris from demolished buildings — Directs states that demolish a
bridge or overpass to make demolition debris available for beneficial
use (e.g. shore erosion control or stabilization, ecosystem
restoration, and marine habitat creation) by a federal, state, or local
government. [§1805]
!Recycled coolant — Directs the President to conduct a review of
federal procurement policy of recycled coolant and take into
consideration recycled coolant produced from processes that are
energy efficient; generate no hazardous waste; produce no emissions
of air pollutants; present lower health and safety risks to employees
at a plant or facility; and recover at least 97% of the glycols from
used antifreeze feedstock. [§6014]
!Recovered mineral component — Amends Subtitle F of the Solid
Waste Disposal Act (42 U.S.C. §6962) to direct EPA and each
agency head to implement procurement requirements and incentives
for use of cement and concrete incorporating recovered mineral
component, such as coal combustion fly ash or blast furnace slag.
Priority is to be given to achieving greater use of recovered mineral
components in cement or concrete projects for which recovered
mineral components historically have not been used or have been
used minimally. [§6017]
!Granular mine tailings — Amends Subtitle F of the Solid Waste
Disposal Act to direct EPA, in consultation with the Secretary of
DOT and heads of other federal agencies, to establish criteria for the
safe and environmentally protective use of granular mine tailings
from the Tar Creek, Oklahoma Mining District, for cement or
concrete projects and transportation construction projects (including
those involving the use of asphalt). [§6018]

Noteworthy Provisions Not in the Final Bill
Of the environmental provisions in the final bill, two that generated significant
debate were not included. The first related to funding for stormwater mitigation
programs. The second related to secondary containment requirements applicable to
aviation refueling trucks.
Set-Aside for Stormwater Mitigation Program Funding. The Senate-
passed version of H.R. 3 would have required the establishment of a Highway
Stormwater Discharge Mitigation Program. The provision in the Senate-passed
version of H.R. 3 (previously at §1620) would have required each state to set aside
2% of its STP apportionment for mitigation projects to improve the quality of
stormwater discharge from federal-aid highways. Funding could have been provided
for projects that reduce flooding; recharge groundwater; promote natural filters;
minimize stream bank erosion; and improve water quality. The provision was
ultimately removed during conference.
As it is currently written, the federal requirements for STP funding eligibility
include “Environmental mitigation to address water pollution due to highway
runoff.” However, it does not require a specific percentage of STP funds to be set
aside for such projects.
Secondary Containment Exemption for Aviation Refueling Vehicles.
One element of the Clean Water Act is a requirement that certain facilities that store
oil on-site, above certain thresholds, establish oil spill prevention and containment
procedures. The Spill Prevention, Control, and Countermeasure (SPCC) rule (40
CFR 112) requires facilities to plan for and have procedures in place to prevent an
oil spill that could reach navigable waters and, if a spill were to occur, to be able to
contain, clean up, and mitigate the effects of that spill.
On March 9, 2005, EPA responded to an aviation industry request for
clarification on how the SPCC planning requirements apply to aviation refueler
trucks. According to EPA, mobile refueler trucks are required to have secondary
containment sufficient to contain a spill of oil from the largest compartment of a
parked truck, in compliance with the SPCC rules.
Some representatives from the aviation industry argued that meeting this
requirement is impractical and sought relief from Congress. During the Senate
debate on H.R. 3 and during conference, it was widely speculated among interested
stakeholders that a provision would be added to the transportation reauthorization bill
to exempt aviation refueling vehicles from SPCC requirements. However, such a
provision was not added.