Posted: 21 November 2005 at 4:07pm | IP Logged

Since SAFETEA-LU allows FHWA to delegate CE oversight authority to SHAs, what mechanism does FHWA envision using to ensure that it does not summarily convey it's statutory authority for oversight in formal federal interagency coordination under laws such as the Endangered Species Act, when these federal trust resources occur in conjunction with Categorically Excluded projects?

ARCADIS, GA

alevy@arcadis-us.com

Posted: 07 December 2005 at 3:26pm | IP Logged

The response to this from the broadcast, that states are conveyed the entire federal oversight role, may have been oversimplified.  Can the provisions of SAFETEA-LU really trump the statutory requirements of any other federal law, such as the Endangered Species Act (ESA), which expressly defines the terms of when the federal (action) agency can delegate its coordination authority, as well as when it must initiate coordination (i.e., formal Section 7 Consultation). 

Even before SAFETEA-LU, there is precedent where oversight of Section 7 Consultation has been misplaced during coordination of at least one locally-sponsored CE project.  In at least one case, the consequences  of an unauthorized "take" placed both the SHA and FHWA in the path of potential civil and criminal liability.  After extensive damage-control and at considerable expense, a compensatory solution was devised that involved extensive additional construction.

While I realize that FHWA has been working hard to elevate the savvy of transportation and environmental professionals about their respective roles in upholding the ESA, this initiative comes in response to, and it's been my experience how surprisingly many in both federal and state agencies who coordinate projects under the ESA, have often operated without a clear understanding of each-others' roles and responsibilities under the Act. 

While I understand the Section 6004 authority must be delegated via establishment of an MOA between each state and FHWA Division, given the potentially awesome authority conveyed by this section of SAFETEA-LU, it would seem there is an even greater risk of repeating a legally perilous scenario unless FHWA establishes guidance to clarify the extent to which authority would be delegated to SHA's for CE coordination.