The organization representing state Departments of Transportation has sent an official response to the Federal Highway Administration in regards to FHWA’s unusual new policy statement released on December 16.

The “Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America” was an unusual assertion of current Administration policy priorities into the implementation of a law that was, in many instances, written without a lot of specific input from the Administration. (For highways in particular, a lot of the law was held over from a bipartisan Senate bill drafted in 2019.)

The two paragraphs of the FHWA policy statement that caused the most stir at the state level were these:

• “Under this Policy, FHWA will work with recipients of any Federal funds made available under title 23, United States Code to encourage and prioritize the repair, rehabilitation, reconstruction, replacement, and maintenance of existing transportation infrastructure, especially the incorporation of safety, accessibility, multimodal, and resilience features. Projects to be prioritized include those that maximize the existing right-of-way for accommodation of non-motorized modes and transit options that increase safety, accessibility, and/or connectivity.”
• “FHWA staff shall encourage metropolitan planning organizations, State transportation departments, FLMAs and other decisionmakers and recipients of Federal-aid highway and Federal Lands funding to consider the following factors before advancing projects that result in new capacity for single occupancy vehicles: progress in achieving a state of good repair consistent with the State’s asset management plan under 23 U.S.C 119(e); how the project will support the achievement of the State’s performance targets under 23 U.S.C 150 (including any new performance targets established by FHWA); and whether the project is more cost-effective than both operational improvements to the facility or corridor and transit projects eligible under chapter 53 of title 49.”

The first one is unusual, as FHWA has generally deferred to states to select what kind of projects they want to fund, so long as they meet the statutory criteria. The second one is interesting in that it sounds a whole lot like the “fix it first” and transit cost comparison provisions that were in the House Democratic version of the surface transportation reauthorization bill but were rejected by for inclusion in the bipartisan bill that became law. In fact, there were repeated attempts behind the scenes to get that language included in the law, but because it wasn’t bipartisan, it was rejected.

A heightened role for FHWA in pushing states to pick specific kinds of projects raised concerns in many states, but the prospect of FHWA trying to assert administrative rights to implement some of the more controversial provisions of the DeFazio bill (which never became law) had the potential to start a lot of organized, high-profile pushback from red state DOTs and their members of Congress. (Not to mention the threat of a greenhouse gas emission performance measure implicit there.)

Accordingly, AASHTO met with Acting Administrator Pollack last week, and on January 19 sent a letter to Pollack regarding the new guidance.

The letter tries to walk a tight line between standing up for the wide latitude that FHWA has traditionally given states in project selection while bragging that states have already come a long way towards the policies that are expressed in the FHWA memo. There is clarification of whatever was said in the Pollack-AASHTO meeting: “Based on our conversation earlier this month, AASHTO and its members greatly appreciate FHWA’s acknowledgment of state DOTs’ notable progress on key policy priorities including system preservation, safety, climate change and resilience, innovation, equity, and efficient use of federal funds. We also understand that it is your intent that this guidance support the evolution and modernization of FHWA itself to better reflect state DOTs’ leadership in and commitment to policy priorities articulated in the guidance.”

This is as close as the AASHTO letter gets to being confrontational: “AASHTO also appreciates FHWA’s acknowledgement that this guidance does not suggest that the agency has the authority to require states to invest federal formula funds in certain types of projects nor restrict them from investing in other types of projects. While the legislative process that led to the IIJA was certainly unconventional, the enacted legislation—and the Congressional intent regarding the Federal-aid Highway Program over the next five years—provides state DOTs with flexibility in how investment decisions are made with formula dollars to meet each state’s unique mobility and accessibility needs. At the end of the day, collective efforts of states will go a long way in achieving the outcomes that are fundamentally agreed upon between FHWA and state DOTs.”

The remainder of the AASHTO letter is a combination of a brag sheet on how well states are already doing at meeting some of the Biden Administration’s goals, and a gentle correction of some errors in the guidance document. On the brag side, the AASHTO letter says “Proposals to require ‘Fix it First’ solutions or prescribe the use of certain sources of funding for system preservation do not reflect the use of strategic planning but rather a one-size-fits-all approach to asset management. Concerted asset management efforts by every state DOT over the past decade have resulted in improved outcomes on asset condition and system operations. For example, according the National Bridge Inventory, the number of bridges in poor condition decreased by 18 percent from 2012 to 2018. Similarly, the amount of Interstate pavement in good condition increased by 10 percent according to FHWA.”

On the correction side, for example, the guidance document mentions that “the resources made available under the BIL can and should be applied to modernize all eligible streets, highways and bridges – not just those owned and operated by by State departments of transportation.”

In fact, it’s a little more complicated than that, as the AASHTO letter responds: “West Virginia owns 88.5 percent of all roads in the state; Delaware, Virginia, North Carolina and South Carolina have similarly high levels of state-owned roadways. Conversely, Caltrans owns less than 10 percent of the public roads in California and only 6 percent of the roads in New Jersey are owned by the state…A one-size-fits-all approach would create unnecessary gaps and conflicts in meeting the various transportation challenges in each state.”

(5:10 p.m. 1/21/22 update – Apparently, the AASHTO letter did not go far enough for some states. In a separate letter also dated December 19th, 19 Republican governors wrote to President Biden about the IIJA, including these words: “A clear example of federal overreach would be an attempt by the Federal Highway Administration to limit state widening projects. Attempts to disallow the use of funding for general purpose widening projects would be biased against rural states and states with growing populations. Such a policy fails to recognize the differences in state priorities, funding levels, and transportation networks across the 50 states. Future prosperity would be negatively impacted if this anti-growth mindset is allowed to become firmly entrenched in transportation policy.”)