Streetsblog Capitol Hill

It’s October 1, the start of the federal government’s fiscal year 2013, and the first official day of the MAP-21 transportation law. The law was signed July 6 but got a three-month grace period to let U.S. DOT set guidance and give states a little time to get ready for the new requirements — things like setting up grant programs to distribute bike/ped funding to local communities (though they can also just squander that money).

The Virginia DOT has applied for a TIFIA loan to help build its $1.7 billion replacement of Route 460, southeast of Richmond, to address all this terrible congestion. Photo: Flickr/Doug Kerr

The TIFIA loan program can make about $7.5 billion in federal loans this year — up from $1.2 billion last year, and a stepping stone on the way to an even greater level of lending next year. States are already jockeying to borrow. Of the 11 letters of interest U.S. DOT has received from transportation departments seeking TIFIA credit assistance, all are for roads and bridges, except one for an aviation project. There’s nothing for transit, as far as I can tell, especially since Governor Andrew Cuomo’s administration has stripped the transit component from New York’s Tappan Zee Bridge replacement project. Cuomo is seeking between $2.4 and $2.9 billion for the bridge.

This is what experts warned about when TIFIA funding became a first-come, first-served program: Simple road projects with plans already on the shelf will be easy to submit, whereas transit projects could take longer to apply for.

Though there’s reason for concern over the scuttling of TIFIA project selection criteria regarding anything but the ability to pay back the loan, Ray LaHood wrote in a blog entry last week, “Submitting a Letter of Interest is no guarantee of DOT approval. Once all applications are in, they will be held to strict standards.” And since a project’s place in line is determined by the date of the application, not the letter of interest, these 11 projects might not be winners. Congress will get a full report on the status of the applications at the end of this calendar year.

Although today marks MAP-21′s big debut, there are still dozens of elements of the bill that won’t take effect for years. For example, at the end of this year, FHWA will issue guidance to states that the Manual on Uniform Traffic Control Devices — the street design guidebook that is increasingly out of step with America’s leading city transportation departments — “should not be considered a substitute for engineering judgment.” Changes to environmental review requirements made as part of Congress’s push to “streamline” project delivery will be official next January, with different kinds of projects getting exempted from review at different points over the next few years [PDF].

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Shown in red are some of the arterial roads the Oregon Department of Transportation thinks will need to be upgraded to comply with MAP-21. Photo: Bike Portland

An obscure provision of the new federal transportation bill is sparking concerns that it could erode walkability and bikeability in communities around the country. The so-called “Enhanced National Highway System” provision would require all major arterial roads to be folded into the national highway system. That could provide greater pressure for local entities to comply with AASHTO’s often highway-inspired standards, like wide lanes and shoulders that encourage car capacity at the expense of pedestrian safety.

The provision will result in a near doubling of the number of roads that will be part of the national highway system. But what will it mean for livable streets? There are lots of different opinions out there.

Jonathan Maus, at Bike Portland, who broke this story, said:

The significance of these roadways becoming part of the National Highway System is that if PBOT engineers want to make any changes that deviate from FHWA design standards for “principal arterials”, they would have to go through a cumbersome process of applying for exceptions.

In the words of a source at ODOT, “this designation basically forces state and local governments to treat arterials like major highways… Speed will increase, certain designs, like bulb outs, won’t be allowed without an exception. So on and so on.”

Travis Brouwer, senior federal affairs adviser for the Oregon Department of Transportation, echoed those concerns to some extent. Brouwer said the state was racing to reclassify its major arterials, up to 600 miles of road, by October 1, when the new law goes into effect.

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The MAP-21 transportation bill was just signed two months ago, and its funding levels, agreed to by a difficult and fragile compromise between warring political parties, are already under attack.

Sen. Boxer toured a BART construction project last month in San Jose. Photo courtesy of Office of Sen. Barbara Boxer.

In Congress, authorization and budgeting are two different processes, run out of different committees. And right now, House budgeters are looking to shave down the $52.6 billion a year MAP-21 allocated for transportation. Sen. Barbara Boxer, who presided over the passage of MAP-21, would like to see those authorized numbers stay sacrosanct.

Meanwhile, Congress is bound by the Budget Control Act, passed by Congress last summer as part of the debt ceiling deal, to cap overall funding levels at $1.047 trillion for next year. The House is working on a six-month continuing resolution to fund the federal government at that level for FY2013. (That’s the way Congress has been passing budgets lately – since they can’t agree on a real budget, they just pass continuing resolutions and agree to keep the previous year’s budget, sometimes with a little tinkering.)

The House’s continuing resolution would cut transportation funding half a billion dollars below MAP-21 levels.

In a letter sent yesterday to House Speaker John Boehner, Boxer reminded him that MAP-21 was “bipartisan legislation which passed the House of Representatives with an overwhelming vote of 373-52” and that it “included an inflationary adjustment for fiscal years 2013 and 2014” which the House bill “failed to protect.”

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Sen. Barbara Boxer (D-CA) confirmed she is already working on the next transportation bill — “two months to the day after President Obama signed MAP-21 into law and before the new policies even kick in on Oct. 1,” according to Politico, which broke the story this morning.

Sen. Barbara Boxer is already thinking about the next bill. Photo: flickr/JD Lasica

In an interview with Adam in Charlotte, Boxer said her “goal is to find a dependable funding source and to work in a bipartisan way to find that funding source. I really believe that the Highway Trust Fund should be funded through user fees.” That might include indexing the gas tax to inflation, but probably not a vehicle miles traveled fee, which raises privacy concerns for the California senator. Even a gas tax bump won’t be enough if vehicles keep getting more and more efficient.

Reformers have some ideas for the next bill, too. Making the Highway Trust Fund self-sustaining is a good goal, since a strapped fund leads to some really bad ideas, like jettisoning mass transit and even the tiny sliver of the pie allocated to active transportation. Putting national goals like emissions reductions and public health improvement front and center would help too — as long as real performance measures are attached.

In any event, that was a quick honeymoon period. If you thought you were going to have at least six months to rest on your laurels before getting back into the ring to fight for a better bill next time around: Surprise! It’s game time.

The MAP-21 transportation bill in many ways made it tougher for cities and towns to provide safer streets for walking and biking. Projects to build bike lanes and sidewalks now have to compete harder for the tiny bit of funding they’re eligible for. And right now, states are deciding whether or not to “opt out” of the Recreational Trails Program (RTP). Instead of spending RTP money on bicycle and pedestrian trails — both urban and rural — states can “opt” to spend it on something else.

Even rail-trail-hating Gov. Sam Brownback says Kansas will use their Recreational Trails funding. Will he make the same promise of other bike/ped funds? Photo: Pitch

But the fact is that RTP made it out of the conference process more intact than some of its sister bike/ped programs. It kept its “dedicated” funding, although that dedication is awfully porous. Then again, it always has been.

MAP-21 put the Recreational Trails Program under the umbrella of the larger Transportation Alternatives program, but RTP retained $85 million of its own funding, with each state getting the same amount they were apportioned in 2009. While Transportation Enhancements and Safe Routes to School lost their dedicated funds, RTP kept its money because it comes from a different source: a gas tax on off-road vehicles.

That unique funding source has more or less safeguarded a program that’s focused on recreation — albeit with many important urban connectors under its belt — while throwing more transportation-oriented programs under the proverbial bus.

RTP got off relatively scot-free in what was a bruising bill process for other bike/ped programs. “What can I say?” said Marianne Fowler, senior vice president of federal relations at the Rails-to-Trails Conservancy. “We’re really happy.” She also added that recreational trails built from this fund have another benefit: They’re not treated as federal-aid highways, since the facilities aren’t roadways. That means they don’t need to comply with the same onerous project reviews and contracting processes. Unfortunately, Safe Routes to School hasn’t had the same luck, meaning simple crosswalk projects can sometimes get tangled up in red tape.

All isn’t rosy with RTP, though. Governors can opt out of the program, meaning the money would go back into their total amount for Transportation Alternatives (which can then be squandered on road-building or anything else they like).

It used to be that there was only a “back door” opt-out, according to RTC’s Fowler. That back door is still open, but there’s a “front door” now too.

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Congress has done its job, such as it is, and passed a transportation bill. Now it’s handed off the policymaking to U.S. DOT, which must issue a raft of rules, definitions, and guidance to accompany the new law, known as MAP-21.

The wrong way to measure travel performance: "Travel Time Index" awards a better score to Charlotte than Chicago, even though commutes in Chicago are shorter, because drivers in Charlotte spend a higher percentage of their time in free-flowing traffic. Graphic: CEOs for Cities

According to sources with intimate knowledge of this process, much depends on how DOT decides to measure congestion. New performance measures for the Congestion Mitigation and Air Quality Improvement program (CMAQ) — and quite possibly for the entire national highway system (depending how they define “roadway performance”) — require a working definition of congestion.

If the agency follows the prevailing orthodoxy, states could be rewarded for wasteful highway spending. If it adopts better measurements, smarter investments and less wasteful spending will follow.

The CMAQ measures will also require a definition of “cost-effectiveness,” a related but somewhat separate can of worms.

U.S. DOT Should Include Distance Driven in Any Measure of Congestion

Performance measures in the MAP-21 law have been criticized for being toothless, since many of them don’t have consequences attached. However, there is still the possibility that state performance rankings could be made public. And a spotlight on state failures could be an effective way to encourage good decisions.

Streetsblog asked Joe Cortright for his advice to DOT officials struggling to define congestion. Cortright is an economist and senior policy advisor for CEOs for Cities. In 2010 the organization commissioned him to write Driven Apart, a critique of prevailing methods of measuring congestion. His words of wisdom for U.S. DOT: “Don’t make the mistake the Texas Transportation Institute makes.”

TTI’s Urban Mobility Report, released every year, invariably gives top honors to places that have overbuilt road capacity. The institute measures congestion only by looking at the degree to which traffic slows down people’s commutes. The problem with that, Cortright says, is that “you end up rewarding places that encourage people to drive longer and longer distances, and then you look at those long distances that they’re traveling, and say because they’re moving at a relatively higher speed much of the time that they’re driving, that the system is somehow performing better.”

Over the past few years, U.S. DOT has been very deliberately working hand-in-glove with HUD and the EPA to treat transportation and land use as one cohesive system. It only makes sense that the agency use the same ethic in measuring roadway performance and congestion. By doing so, DOT would have to acknowledge that a long commute along miles and miles of free-flowing highways is no bargain compared to a short commute in dense traffic, not to mention an even shorter commute on transit.

Clark Williams-Derry, research director for the sustainability-focused Sightline Institute, suggests that congestion may simply be the wrong thing to measure. “Focusing on congestion is like, in a basketball game, focusing only on the number of assists you get,” Williams-Derry said. “It’s an interesting fact, but it doesn’t tell you the final score.”

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One of the most popular elements of the new transportation authorization is its consolidation or elimination of 60 federal programs. But this cleanup is not without its casualties. One of those casualties is the off-system bridge program. And another one, indirectly, is bicycle and pedestrian programming.

Source: Transportation for America

As you can see, the Highway Bridge Program is no more. It’s been replaced by the National Highway Performance Program (NHPP). But bridges that fall outside the National Highway System — more than half the country’s bridges — aren’t covered by the NHPP. Those “off-system” bridges are now part of the Surface Transportation Program (STP).

There’s just one problem with that.

“All of the bridge money went to NHPP but less than half the bridges went there,” said Nick Donohue of Transportation for America. “The others went to STP with no money.”

The Surface Transportation Program, or STP, is a large, flexible and multimodal program, and has historically been a good source of funds for bicycle and pedestrian projects. Though states have spent an average of just 0.8 percent of their STP funds on biking and walking over the last five years, according to an analysis by the League of American Bicyclists, that equals $333 million — a significant chunk of change when you’re talking about such cost-effective projects. As a point of comparison, that’s about a quarter as much as was spent over that same period by the Transportation Enhancements program, which was aimed more specifically at bike/ped projects.*

Shifting bridge repair into STP without a proportionate increase in funding will make competition stiffer than ever for STP funds, according to the Rails-to-Trails Conservancy.

To make matters worse, there’s now less local control over those dollars. Under the new bill, metropolitan areas are getting a smaller slice of the STP pie. It used to be that 62.5 percent of STP funds were sub-allocated to cities and towns according to population. Now, it’s only 50 percent.

That means that local entities, not just states, will be left with too much to do with too little STP money, according to Donohue. “They left 180,000 bridges out in the cold,” he said, “and now local communities and MPOs have a false choice to make with STP money — fixing these bridges or using the funds for the innovative projects they build with STP funds today.”

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Bike and pedestrian funding got slashed. Federal assistance for transit operations was rejected. Even the performance measures – arguably the high point of the recently passed federal transportation bill – are too weak to be very meaningful. For Americans who want federal policy to support safe streets, sustainable transportation, and livable neighborhoods, there were few bright spots in the transportation bill Congress passed last month.

AASHTO Director John Horsley is thrilled with the new transportation bill, which gave state DOTs just about everything they wanted. Photo: International Transport Forum

But state transportation departments are celebrating. They scored victory after victory, getting a bigger share of federal funding with fewer rules and regulations attached.

In the Senate, advocates were able to work some reforms into the bill and mobilize grassroots support for amendments like the Cardin-Cochran provision, which put funds for street safety projects in the hands of local governments, not state DOTs. But the House never managed to pass a bill of its own, and the opaque conference committee process was an exercise in horse-trading that advocates found difficult to penetrate.

The final product, which included measures like raising the federal contribution for certain highway expansions, seemed finely tailored to benefit DOTs in several ways. “This is a bill written by and for the benefit of state DOTs at the expense of both federal oversight and regional and community outcomes,” wrote David Burwell, director of the climate change program of the Carnegie Endowment for International Peace, in an email shortly after the bill passed. He said the policy changes “are too elegantly crafted and specific in their effect to have been written, or even conceived, by members of Congress or their staff.”

For state DOTs, access to lawmakers is a given. “We worked very closely with the House and Senate to craft those measures,” AASHTO Director John Horsley confirmed to Streetsblog in an interview yesterday. He said that while AASHTO offered recommendations, no text written by AASHTO made it into the bill verbatim, as far as he knows.

According to Horsley’s account, AASHTO followed a pretty standard script when it came to advocating for their interests on the Hill. Every stakeholder and special interest under the sun had its lobbyists knocking on lawmakers’ doors, offering their two cents – everyone from gravel producers to equipment manufacturers to environmentalists to free market fundamentalists. It’s just that the state DOTs seemed to get everything on their wish list.

Horsley said AASHTO had been laying the groundwork for many, many months before conference started, working with Republican House Transportation Committee staffers as well as aides of both parties in the Senate. (He didn’t mention working with House Democrats, who were shut out of the process from day one.)

The House is where the magic happened for AASHTO. “We’ve been very pleased with where the Senate bill started,” Horsley said. “And we were even more pleased when the House and the Senate in conference agreed to incorporate a lot of the House provisions that were even better for states.”

What were those House provisions? Horsley went through the list:

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In the immediate, panicked moments after the MAP-21 conference report was released, I missed some of the nuances of just how bad a deal this bill is for bike policy.

Under the new transpo bill, the fight to get states to invest in infrastructure for biking and walking will get a lot tougher. Photo: Jim Hash / Ped Bike Images

Three things stand out:

• States can use their Transportation Alternatives (TA) money on anything they want.
• Bike/ped programs are facing anywhere from a 33 percent cut in funding to a 66 percent cut, depending how each state reacts.
• The mandatory sidepath law was included.

Let’s start with Number Three. The law states that if there’s a paved bike path within 100 yards of a federally owned road, cyclists have to use it — given the speed limit on the road is at least 30 miles per hour. When this was first included in the Senate bill last fall, bike advocates called it “paternalistic” and said it ignores cyclists’ fundamental right to the road.

“If the path is any good, you shouldn’t have to force anyone to use it; they will use it voluntarily because it works,” wrote Andy Clarke, president of the League of American Bicyclists. Unfortunately, he said, many paths are “dangerous, slow, and out of the way” – and cyclists would still be forced to use them under this law.

The concerns were partially addressed between this provision’s appearance in the Senate bill and the final conference report. It now states explicitly that cyclists are prohibited from using the road unless “the bicycle level of service on that roadway is rated B or higher.” So, if the road is more bikeable than the sidepath, in some instances, the cyclist can choose the road.

However, there’s no uniform way of measuring how bike-friendly a roadway is. The FHWA has developed a measurement for “bicycle level of service” but it’s not universally utilized. Besides, I wouldn’t count on every cyclist knowing the rating of every roadway they ride on.

Advocates’ concern about being forced off of streets and onto shoddy paths remains.

Three Ways States Can Filch Bike/Ped Money

On to the funding “transferability” in the Transportation Alternatives section, which now includes bike and pedestrian funding. If you’ll recall, half of TA money gets distributed, proportionally to population, to metropolitan planning agencies or local governments. The other half is supposed to capitalize a grant program in each state, to be overseen by their DOTs, allowing municipalities to apply for the funds.

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Something that escaped my attention until recently is the fact that MAP-21 is really only a 24-month transportation bill. Folded into the bill is an extension of SAFETEA-LU for another three months, until September 30 — the end of this fiscal year.

The bill was signed into law last Friday and it expires September 30, 2014, so when people call it a 27-month bill, technically that’s true, although most of the changes to policy and funding levels won’t take effect until the next fiscal year. “That doesn’t mean the impacts and implications of pending policy changes can’t be considered and prepared for immediately,” said one Capitol Hill aide.

And it doesn’t mean those changes won’t outlive those 24 months. Authorization for specific programs only lasts 24 months, but the policy changes become baseline transportation law on a permanent basis. If a new law doesn’t explicitly change these provisions, they stay as they are in this bill. Besides, who really thinks the next transportation bill is going to be passed before this one expires without requiring a string of extensions? MAP-21 could be with us for a while.

Another aide commented that three months’ lead time is necessary to allow U.S. DOT to put out new regulations and prepare for the changes.

So in case you were counting: If you add up all the extensions of SAFETEA-LU, including the one-week extension to get MAP-21 enrolled on parchment for the president to sign, and then the three-month extension included within MAP-21, that’s 11 extensions. No wonder it ran out Transportation for America’s countdown clock.