ment and also requires a 102(2)(C) statement. The environmental statement is the vehicle for insuring consideration of all environmental matters.

When a State is faced with a 4(f) situation, it contacts the Federal and State agencies it knows to be interested. Appropriate consultation with the Departments of Agriculture, Interior, and Housing and Urban Development are specifically required by section 4(f). Using input from its own sources and from these agencies, the State prepares a draft statement and circulates it to appropriate Federal, State, and local agencies for comments. States normally allow about 45 days for comments. The Environmental Protection Agency is also requested to comment within the same 45-day period. The State also submits its draft environmental statement to FHWA with copies to CEQ and the Office of the Secretary.

After the State receives comments from interested agencies, it makes appropriate adjustments to the project, revises the draft to account for the comments, and submits a final statement to FHWA for approval. If no public hearings have been held where the draft and comments were discussed, the draft and comments received thereon must be made public. If FHWA approves of the final statement. it is forwarded to the Office of the Secretary for final approval.

In section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), Congress has determined that there should be a very detailed and complex statement with respect to "major Federal actions significantly affecting the quality of the human environment." It has been initially determined administratively that a majority of Federal-aid highway projects are "major Federal actions." We are currently working with the Office of the Secretary to develop instructions for implementing this Act in a manner that will define those highway projects which require such a statement and those which do not.

As I mentioned, section 102 (2) (C) was implemented by CEQ's Guidelines and DOT Order 5610.1. The DOT order defines "major" as any Federal action significantly affecting the environment; "Federal action" as "the entire range of activity undertaken by the DOT;" "significantly affecting" as "any action that is likely to be highly controversial on environmental grounds" or "any matter falling under section 4(f) of the DOT Act or section 16(c) (3), 16(c) (4), 16(d), or 16(e) of the Airport Act." Operating administrations prepare their detailed procedures within this framework. The Federal Highway Administration, on November 24, 1970, issued as Instructional Memorandum (Appendix IV) implementing DOT Order 5610.1. The DOT order specifically reserved authority to approve agency 102(2) (C) procedures.

The steps involved in the preparation of a section 102(2)(C) statement are essentially the same as those for a section 4(f) statement, except that approval by the Secretary is not required for a 102(2) (C) statement. The State consults interested agencies, prepares a draft statement and circulates it for comments, revises the draft to account for agency comments, and submits the final statement to FHWA for approval.

We have delegated authority to approve section 102(2)(C) statements to our Regional Federal Highway Administrators in an effort to move the decisionmaking closer to the people affected. The final statement which must be approved by the Regional Administrator, is then submitted to the Office of the Secretary for concurrence. Our approval is subject to review by the Assistant Secretary of DOT for Environment and Urban Systems for 14 days. The final statement, including all comments received in response to the draft statement, must be submitted to CEQ for review. CEQ requires that no agency actions can be taken on the matter until after 90 days from the date the draft statement is circulated for comments and until 30 days after the final statement is made public and submitted to CEQ. A minimum processing time of about 6 months is introduced into the overall processing of a project by this procedure. This may or may not add to the total time required to progress a project to completion.

PUBLIC PARTICIPATION

Section 128 of title 23, United States Code, requires States to hold public hearings on certain highway projects. We have implemented this section by issuance of our Policy and Procedure Memorandum 20–8. In fact, we have made our public hearing procedures applicable to a broader range of projects than contemplated by the statute.

68-176 0-71-2

The latest revision of PPM 20-8 instituted the requirement of a design public hearing in addition to the corridor location hearing previously held on major projects. First notice of public hearing must be published 30 to 40 days before the hearing and the hearing transcript must be kept open at least 10 days after the hearing for additional statements. It therefore takes a minimum of about 6 weeks to advertise for and conduct a public hearing. In addition, PPM 20-8 requires that the State request and obtain both location and design approval from the Federal Highway Administration (the Division Engineer) before the project can be advanced. This, of course, can only be done after the respective public hearings are held. The right-of-way acquisition phase of the project cannot be undertaken until design approval is given by FHWA. It should be emphasized, however, that many projects require one or no public hearings and suffer less delay as a consequence.

The requirements of the National Environmental Policy Act mesh with the public hearing process. The draft environmental impact statement must be made available to the public prior to the hearing. Location approval and design approval by FHWA cannot be given, and therefore the project cannot be advanced, until the final environmental statement is approved. A minimum of 90 days is required between the time a public hearing is advertised and the time approval of location or design can be given by FHWA, in order to allow for processing of the environmental statement.

Reviews of proposed Federal-aid projects must be made by State, region, or metropolitan clearing houses in accordance with OMB Circular A-95. These clearing houses have 30 days to comment after receipt of a project.

I should point out that the time periods which I have been mentioning, as well as those concerned in the preparation of 4(f) and 102(2)(C) statements, are not necessarily cumulative. Some of them run concurrently.

RELOCATION ASSISTANCE

We are now in a period of transition in the administration of our relocation assistance program. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 has required certain changes in the procedures we followed under chapter 5 of title 23. I will give you a general picture of our procedures and point out some of the changes necessitated by the new Act and the Office of Management and Budget's implementing guidelines.

A State is required to have an estimate of the number of persons to be relocated by each of the alternative highway locations, and the supporting data for such estimates, available at the location public hearing. A quite detailed relocation plan is required prior to the initiation of negotiations for the acquisition of right-of-way; however, most of the data required for the detailed plan must be available at the time of the design public hearing. Finally, a State cannot proceed with any phase of a project which will displace any persons until there is adequate replacement housing available. I should point out that this was required by DOT order for some time before the Uniform Act was passed and OMB's guidelines issued.

A State must also maintain a comprehensive relocation advisory assistance program. Brochures must be prepared and distributed at public hearings and the State must make an effort to contact all relocatees personally. If a person cannot be contacted, the State must document its efforts.

The Uniform Act and OMB's Guidelines have added additional complexities. Computations of relocation payments are very complicated depending on the classification of the relocatee, whether tenant or owner, options, interest differen

tial, and so forth. The OMB Guidelines, require that the relocatee be reimbursed according to how much he actually pays for his new housing, rather than according to how much comparable housing should cost. This requires checking actual records, closing statements, and so forth. The guidelines also require that any payment in excess of $500 to a tenant be paid in annual installments over a fouryear period, rather than in a lump sum. This means keeping accounting records on many tenants for at least four years.

I think that you can see from my brief description that these procedures are complicated, have many time frames and levels of approval and review built into them, and affect many highway projects. This affords a fertile breeding ground for litigation. The number of suits challenging Federal-aid for the construction of highways has doubled every year for the past five years, and by the end of the year, we can expect at least one new major Federal suit a week (see Appendix V).

The Federal courts have expanded the concept of "standing to sue" and broadened the class of persons who can sue to stop public betterments. Previously, only those who could show a direct substantial loss to themselves had standing as contrasted to other citizens or taxpayers. Now, as the result of court decisions over the past four years, anyone who claims he is more directly affected by the project than the general public can sue to halt the program.

The delay caused by the threat of litigation on all controversial projects becomes clear when you consider the necessity for check and recheck and legal review of these projects. Further, as courts review our actions within everchanging requirements, even on projects planned prior to the time the new requirements were thought about, and determined whether or not we acted reasonably in such a later-developed context, it is necessary to more formally maintain our records, record each paper or item considered and to consider all items that might conceivably be made relevant to a decision under not yet evolved law. All this requires, in essence, a formal administrative record to be maintained on each project and each approval.

On March 2, 1971, the Supreme Court handed down Citizens to Preserve Overton Park, Inc., et al. v. Volpe, wherein the Court outlined the judicial review test for cases involving section 4(f) and environmental matters. In that case, the Supreme Court required that Federal District Courts review agency actions on the basis of a formal administrative record rather than affidavits by the agency officials. Thus, we are now required to maintain administrative records on our projects which are suitable for use in litigation attacking a project, should it arise. This landmark decision and the manner in which it is interpreted may affect our future operations.

I do not want you to think that the Federal Highway Administration does not value environmental protection; does not believe in citizen participation; and does not see the need for relocation assistance. On the contrary, for many years we have taken environmental factors into account and have assessed these factors on a cost-benefit basis; we have instituted public hearing requirements more stringent than those required by statute; and we have actually proposed relocation legislation and administered a relocation assistance program more successfully than has any other Federal agency. What I do want to stress to this Subcommittee is that new legislation necessarily introduces new complexities into highway administration and adds to the "red tape." I want to assure this Subcommittee that the Federal Highway Administration is doing, and will continue to do, its utmost to simplify existing procedures and to prevent the proliferation of additional "red tape."