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Eno Transportation Weekly

Timeline of Key Moments in Federal Bridge Policy

1824 – The U.S. Supreme Court rules in Gibbons v. Ogden (22 U.S. 1) that Congress has complete authority over navigation relating to interstate commerce, holding that “The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States’.”

1865 – The U.S. Supreme Court rules in Gilman v. City of Philadelphia (70 U.S. 713) that “Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders…

“A license under the act of 1793, to engage in the coasting trade, carries with it right and authority. ‘Commerce among the States’ does not stop at a State line. Coming from abroad it penetrates wherever it can find navigable waters reaching from without into the interior, and may follow them up as far as navigation is practicable. Wherever ‘commerce among the States’ goes, the power of the nation, as represented in this court, goes with it to protect and enforce its rights.”

1899 – Congress passes the Rivers and Harbors Appropriations Act, section 9 of which prohibits the construction of any “bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War” and preventing deviation from approved plans.

1906 – Congress passes the Bridge Act of March 23, 1906, codifying and expanding the 1899 law, prohibiting the overcharging of the federal government for the usage of lawful bridges, requiring equal access on railroad bridges to all railroads, and providing “That no bridge erected or maintained under the provisions of this Act shall at any time unreasonably obstruct the free navigation of the waters over which it is constructed,” giving the Secretary of War the power to force bridge owners to upgrade their bridge at the owner’s expense.

1940 – Congress passes the Truman-Hobbs Act, changing the method by which the Secretary of War forces bridge owners to alter their bridges to allow waterborne navigation, adding a new requirement that the Army pay a for a proportional share of the bridge upgrade “attributable to the necessities of navigation.” The law authorizes appropriations for that purpose and clarifies that the appropriations can be used to relocate railroad bridges and the rail approaches thereto, at partial federal expense.

1946 – Congress passes the General Bridge Act, granting blanket permission for States “for the construction, maintenance, and operation of bridges and approaches thereto over the navigable waters of the United States” if the Corps of Engineers and the Bureau of Public Roads approve the site and the plans. The law also contained restrictions on interstate toll bridges and gave blanket authority for the Corps of Engineers to transfer all U.S.-owned bridges to States.

1967 – The Silver Bridge between Point Pleasant, West Virginia and Gallipolis, Ohio collapses on December 15, killing 46 people.

1968 – Congress passes the Federal-Aid Highway Act of 1968, which directed the Department of Transportation, in cooperation with states and others, to establish national bridge inspection standards. States were required to keep bridge inventories, and DOT was to train federal and state employees in bridge inspection techniques.

1970 – Congress passes the Federal-Aid Highway Act of 1970, which contained a provision drafted by Sen. Jennings Randolph (D-WV) establishing the Special Bridge Replacement Program (SBRP). DOT was to “inventory all bridges located on any of the Federal-aid systems over waterways and other topographical barriers,” classify the bridges, and assign each a priority for replacement. DOT could approve state applications for bridge replacement based on priority, with a federal share of 75 percent. $250 million in contract authority was authorized over the fiscal years 1972-73, to be available until expended.

1971 – The National Bridge Inspection Standards are published in the Federal Register. The standards and regulations are now codified in the Code of Federal Regulations at 23 CFR part 650.

1973 – Congress passes the Federal-Aid Highway Act of 1973, adding three more years (1974-1976) to the SBRP and granting an additional $175 million in contract authority over that period, to be available until expended.

1974 – Congress passes the Federal-Aid Highway Amendments of 1974, adding another $50 million in contract authority to the SBRP for FY 1976, to be available until expended.

1976 – Congress passes the Federal-Aid Highway Act of 1976, adding $360 million in contract authority for the SBRP over fiscal years 1977-1978, to remain available until expended.

1978 – Congress passes the Surface Transportation Assistance Act of 1978, which changes the Special Bridge Replacement Program into the Highway Bridge Replacement and Rehabilitation Program (HBRRP). The rehabilitation (repair) of bridges is made eligible for federal funding for the first time, in addition to the outright replacement of a bridge. The law amends the existing inventory of Federal-aid bridges to add bridges over highways and railroads and adds a second inventory of bridges that are not on the Federal-aid system at all. The federal share of bridge projects is increased from 75 to 80 percent. The law grants $4.2 billion in contract authority for the program over four fiscal years (1979-1982), which does not “remain available until expended” (so, presumably, it lapses like all other non-Interstate contract authority at the end of the third fiscal year after its issuance under 23 U.S.C. 118). $200 million per year is set aside at the discretion of the Secretary for bridge replacement or rehabilitation projects costing more than $10 million or which are more than twice a state’s annual formula apportionment. The remaining $3.8 billion is to be apportioned to states annually by a formula dictated by the House Public Works and Transportation Committee in a committee print that is similar to the distribution to states by need proposed by FHWA except that the Public Works Committee formula gives each state a minimum 0.5 percent apportionment and a maximum 5 percent apportionment. A minimum of 15 percent and a maximum of 35 percent of a state’s annual apportionment must be used to rehabilitate or replace bridges that are not on the federal-aid system.

1982 – Congress passes the Surface Transportation Assistance Act of 1982 (actually signed into law on January 6, 1983) granting an additional $7.05 billion in FY+3yr contract authority over four years (1983-1986) for the HBRRP. The $200 million per year discretionary program is retained, as is the 15%-35% off-system set-aside. A new apportionment formula is put into place: all deficient bridges shall be categorized four ways (each bridge measured by two either-or criteria, Federal-aid and non-Federal-aid, and replacement-eligible and rehabilitation-eligible), and “The square footage of deficient bridges in each category shall be multiplied by the respective unit-price on a State-by-State basis, as determined by the Secretary, and the total cost in each State divided by the total cost of the deficient bridges in all States shall determine the apportionment factors. Apportionment factors are to be updated annually. The minimum State share is decreased from 0.5 percent to 0.25 percent, and the maximum State share is increased from 5 percent to 10 percent.

For the first time, funding under the HBRRP is treated like other construction funds in that it is made subject to the new state 85% rate of return “minimum allocation” program that had been advocated by highway “donor states”.

1987 – Congress passes the Surface Transportation and Uniform Relocation Act of 1987. It grants $6.52 billion in FY+3yr contract authority for the HBRRP over four fiscal years (1987-1991). The amount of the annual discretionary set-aside is increased from $200 million per year to $220 million per year, and the 15%-35% off-system set-aside is retained. Provisions are included for historic bridge preservation.

Funding for the HBRRP remains subject to donor state minimum allocation calculations, and for the first time, the funding authorization for the program is included in title I of a highway bill, where the highway construction programs are located, instead of in title II, where the highway safety programs are usually located.

1991 – Congress passes the Intermodal Surface Transportation Efficiency Act. It grants $16.1 billion in FY+3yr contract authority for the HBRRP over six fiscal years (1992-1997). The amount of the annual discretionary set-aside is cut to an average of $58 million per year, and an $8 million per year set-aside for highway timber bridges is added. The 15%-35% off-system set-aside is retained, and the law clarifies that off-system bridges are subject to State standards, not Federal standards. Provisions are added for an inventory of Indian reservation and park road bridges.

For the first time, States are given the ability to transfer funds from their HBRPP apportionments to their National Highway System or Surface Transportation Program apportionments. Up to 40 percent of a state’s HBRRP funds may be so transferred. Bridge funding is subject to the myriad different state formula equity programs under ISTEA.

1998 – Congress passes the Transportation Equity Act for the 21st Century. It grants $20.43 billion in FY+3yr contract authority for the HBRRP over six fiscal years (1998-2003). The annual discretionary set-aside is increased to $100 million per year, with $25 million of that reserved for seismic retrofit projects. The amount of a state’s annual HBRRP apportionment that can be transferred to NHS or STP is increased from 40 percent to 50 percent, with the proviso that the transfer of any new funds will result in deduction of the amount of transfer from the total cost of deficient bridges in such State and all States for the succeeding fiscal year.

Funding for the HBRRP is subject to the “minimum guarantee” calculation whereby each state is guaranteed a minimum percentage of total “below-the-line” highway funding or a minimum rate of return on Highway Account fuel tax payments.

2005 – Congress passes the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users. It grants $21.62 billion in FY+3yr contract authority to the bridge program over five fiscal years (2005-2009). It eliminates the discretionary set-aside altogether, instead earmarking $100 million per year for four years for individual bridge projects (much of which, like the $75 million for the Gravina, Alaska bridge or the $50 million for the St. Louis, Missouri bridge or the $35 million for the Moline, Illinois bridge, is for completely new structures, not for replacements or rehabilitation). Because of the new emphasis on new bridge construction (as opposed to the old emphasis on the safety of existing bridges), the law attempted to rename the program the Highway Bridge Program, but drafting errors left the name of the program inconsistent in different parts of law.

The 15 percent minimum set-aside for off-system bridges was kept, but the maximum limit is removed, so theoretically, States can now spend up to 100 percent of their bridge apportionment on non-Federal bridges. The federal share of bridge projects is increased in some states because the program now is subject to the “sliding scale” provisions of 23 U.S.C. 120(b), where some states (like Alaska and Nevada) with a high percentage of federally-owned land can get the federal share of bridge projects increased, to a maximum of 95 percent. The formula for apportionment is amended to replace the term “square footage” with “deck area”.

Transferability of bridge funds to other programs remains at 50 percent, and bridge funding is subject to calculations of the equity bonus program designed to guarantee all states either a fixed dollar amount, a percentage share or a rate of return of all “below-the-line” highway funding.

2007 – The highway bridge carrying Interstate 35W across the Mississippi River in Minneapolis, Minnesota completely collapses at 6:05 p.m. on August 1, killing at least nine persons and leaving several more missing. The report of the NTSB investigation determined that the probable cause was “inadequate load capacity, due to a design error” – not inspection failures or lack of maintenance. FHWA issues guidance clarifying that the rehabilitation or replacement of structurally deficient bridge decks is eligible for highway bridge program funding. The fiscal year 2008 DOT Appropriations Act provides $1 billion in special, one-time funding for the bridge program.

2008 – The National Surface Transportation and Revenue Study Commission issues its final report, which recommends the abolition of many highway programs (including the bridge program) in favor of a comprehensive, performance-based asset management program for a wide variety of surface transportation assets.

2012 – Congress passes the Moving Ahead for Progress in the 21st Century Act. Section 1106 of the law consolidates the bridge program, the National Highway System program, and the Interstate Maintenance program into a single new National Highway Performance Program. A minimum standard for NHS bridge conditions is maintained – if more than 10% of the total deck area of NHS bridges in a State is on structurally deficient bridges for three consecutive years, the State must devote NHPP funds in an amount equal to 50% of the State’s FY 2009 Highway Bridge Program apportionment to improve bridge conditions during the following fiscal year (and each year thereafter if the condition remains below the minimum). Section 1111 of the law establishes new federal requirements for the inventory and inspection of bridges and tunnels on all public roads and the standards used for the inventory and inspections.

2015 – Congress passes the Fixing America’s Surface Transportation Act. Section 1106 of the law allows states to use National Highway Performance Program funds for bridges that are not on the National Highway System if those bridges are part of the larger federal-aid highway system.

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