Senate bill could imperil parks: protections for parks, wildlife areas and historic sites may be at risk in Senate version of transportation bill.

There is growing concern that the Senate version of the long-awaited reauthorization of the Transportation Equity Act for the 21st Century (TEA21) will contain an unacceptable compromise that would reduce hard-won provisions that protect parks, wetlands, wildlife areas and historic sites from destruction by highway construction projects. This bedrock language, enacted nearly four decades ago, is found in Section 4(f) of the Transportation Act; it requires transportation agencies to avoid parks, wetlands and wildlife areas, and historic sites unless there is no other "feasible and prudent" alternative to their use. This requirement has saved thousands of acres of parks and protected public lands from encroachment since its enactment.

When TEA 21, the current six-year authorization, expired on Sept. 30, it was extended for five months until the end of February 2004. Progress on the reauthorization bogged down when other legislative priorities took precedence. Few informed observers expected that Congress would be able to enact a long-term reauthorization of the transportation bill before presidential year election politics in 2004 would intrude, and there is the matter of an approximately $100 billion difference between the Bush administration's projected cost of $247 billion and the $355 billion estimate for Congress's version. However, the House and the Senate have been crafting their own versions of a multi-year reauthorization bill, and both versions are making their way through Congress. The belief now is that a final bill may be able to be passed in time for the Fiscal Year 2005 budget cycle.

The administration's version of the reauthorization bill, tortuously titled the Safe, Accountable, Flexible and Efficient Transportation Equity Act for 2003 (SAFETEA), was released several months ago, but Congress did not embrace it, opting instead to pursue slightly different versions of a reauthorization bill. SAFETEA has a number of unacceptable changes to Section 4(f) that would eliminate definitive, clear language that mandates protection of protected classes of lands and replace it with highly subjective discretionary approval procedures. In fact, the administration's proposed changes to Section 1603-4(f) are so egregious that, in the opinion of some legal scholars, they would effectively reverse the landmark decision of the Supreme Court in the Citizens to Preserve Overton Park v. Volpe case.

The Senate has not shown an inclination to endorse such far-reaching changes to Section 1,(t) language, but it is apparently looking to include a new type of exemption, titled "minor impacts." On the face of it, exclusions for "minor impacts" would not seem to merit cause for great concern, but early discussions with congressional staff have exposed potentially serious problems. The procedure that may be proposed would call for the local or state agency with jurisdiction to determine what was "significant," and then respective state departments of transportation would make a determination if the impact was "minor." There would be no recourse to this determination except litigation. The bottom line is that the proposal to include "minor impacts" may not be innocuous, and that there is no adequate reason to change the statutory protections of Section 4(f).

NRPA members are urged to contact their senators and ask them to resist any change to Section 4(f) protections, which are too important to change solely to achieve faster project delivery. There are many solid ways to improve project delivery; relaxing or revolting the bedrock principles that protect parks, wildlife areas, wetlands and historic places are not among them.

The quickest way to reach your senators is through the Capitol switchboard at 202-224-3121. You can also call their district offices in your home state. Locations and phone numbers for those offices are found by going to www. capwiz.com/nthp2 and clicking the Elected Officials tab at the top of the Legislative Action page. If you cannot speak with your senators directly, ask fort their staff aide who handles transportation issues.--Richard Dolesh, NRPA Public Policy Staff