Transportation Bill

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That is truly disappointing, coming at a time when we sorely need forward-looking 21st century transportation policy that provides balanced transportation choices and improves public health and safety, the quality of our environment and the livability of our communities. Instead, the bill makes federal transportation policy more highway-centric, focusing on new road capacity and increasing the federal share of such projects from 80 percent to 95 percent, wreaks havoc on environmental reviews which have provided a degree of public accountability, and reduces investment in active transportation.

Yesterday, the U.S. Congress passed a new 27-month federal transportation bill. The bad news is that, compared to current law, the bill takes a real step backwards. That is truly disappointing, coming at a time when we sorely need forward-looking 21st century transportation policy that provides balanced transportation choices and improves public health and safety, the quality of our environment and the livability of our communities. Instead, the bill makes federal transportation policy more highway-centric, focusing on new road capacity and increasing the federal share of such projects from 80 percent to 95 percent, wreaks havoc on environmental reviews which have provided a degree of public accountability, and reduces investment in active transportation (details below). 

The consolation is that it could have been significantly worse for trails and active transportation, and we retain a solid foundation from which to continue moving forward. We feared that it would be worse as we picked up intelligence from the secretive conference committee negotiations during the last couple of weeks. The newly passed bill has far more in common with the bipartisan Senate bill than the extreme House of Representatives bill (H.R. 7) that was the blueprint for House demands in the conference committee despite never having been passed. The core programs that support trails, bicycling and walking are seriously compromised, but not undone. 

When the Senate bill passed in March, there was a sense of relief because a local access amendment sponsored by Senators Ben Cardin (D-Md.) and Thad Cochran (R-Miss.) had mitigated some of the bill’s problematic features, and a bipartisan amendment lead by Senator Amy Klobuchar (D-Minn.) had preserved the Recreational Trails Program (RTP). Thankfully, those changes were essentially preserved. The steps back in the final bill are a combination of unmitigated problems from the original Senate Environment and Public Works bill plus two critical changes made in conference: (1) reduction in the amount of money dedicated to trails, walking and bicycling, and (2) an opt-out provision that states can invoke for up to half the money.       

Key features of the newly passed bill from the perspective of trails, walking and bicycling are:

•    The three core trail and active transportation programs from SAFETEA-LU—Transportation Enhancements (TE), Safe Routes to School (SRTS) and the RTP—are merged under a new Transportation Alternatives pot (taking the place of “Additional Activities” in the Senate bill). The term Transportation Enhancements is replaced by "Transportation Alternatives." It is confusing because the same term is used to refer to both TE and the overall consolidated pot of activities.

•    The eligibilities that correlate to TE and SRTS are forced to compete for severely limited dollars against expensive new eligibilities, including some road projects (in the right-of-way of former Interstate System routes or other divided highways) and an expanded definition of environmental mitigation projects. TE and SRTS activities are also treated as projects on a federal-aid highway, raising process concerns.

•    The initial amount of funds available to these activities is reduced by about 30 percent from current levels. However, the amount available nationally is based on a percentage (two percent) of the amounts authorized from the Highway Trust Fund (minus the Mass Transit Account), estimated at $788 million. If the Trust Fund goes up, so does the funding for Transportation Alternatives. While the Senate bill had tied funding to a flat amount (fiscal year 2009 TE apportionment) that was higher than the final bill but lower than status quo for the three core programs, re-establishing a tie to Trust Fund levels could prove superior to the Senate approach over time.

•    The bill greatly increases the ability of states to transfer funds away from these core programs. This is arguably the most problematic outcome. Preventing states from opting out is likely to become a focal point for all of us going forward. There are three ways that this could happen:

  1. 1.States may transfer to a wide range of other highway programs the half of the Transportation Alternatives pot that is not subject to geographic distribution (more on that concept later).

  2. 2.Unobligated balances of more than one year of Transportation Alternatives funding may be flexed to the Congestion Mitigation and Air Quality program. This idea came from the Senate bill, but the trigger point for the balance was lowered in conference from 150% of reserved funding for the year to 100 percent. The name of the game is ‘use it or lose it’ unless your state would prefer to leave it in Transportation Alternatives.   

  3. 3.In a state of emergency, states can transfer Transportation Alternatives funding to rebuild highways, but it must be repaid if the state receives reimbursement.

•    Eligibile activities under the definition of “Transportation Alternatives” encompass most of what we now know as TE. Transportation museums and scenic easements are no longer eligible. It will be a matter of interpretation whether the new language omits certain beautification activities (e.g., street art or furniture), but wildflowers for erosion control still qualify. SRTS is also an eligible activity, but the concept is broadened in the definition section to “safe routes for non-drivers”.
 
•    The Cardin/Cochran amendment to provide for greater local access to the funds was largely included in the final bill. Consequently, half the funds in Transportation Alternatives are subject to geographic distribution within a state based on population. Of that half, the portion that goes to larger communities (regions of 200,000+) is sub-allocated to metropolitan planning organizations for project selection. Nationally, over 70 percent of the population lives in such communities, so about 35 percent of the overall funds will be sub-allocated. This will vary greatly by state. The portion of the geographic funds that is not sub-allocated is to be awarded through a competitive grant process administered by the state but focused on local needs. The same is true of the half of the Transportation Alternatives pot that is not subject to geographic distribution. However, these funds may be subject to transfers by the state as noted above.

•    RTP receive a dedicated $85 million off the top of the Transportation Alternatives pot based upon gas taxes paid by motorized trail users. This program supports both non-motorized and motorized trails. RTP provides valuable organizational structure to support state trail efforts. States can opt out of this activity.

•    SRTS Coordinators are eligible, but not required. Infrastructure and non-infrastructure projects are eligible.

•    While there is no longer a set-aside for TE in the Surface Transportation Program, there is eligibility for bicycle transportation, pedestrian walkways, recreational trails and other Transportation Alternatives.

•    A new Complete Streets policy that was in the Senate bill to require routine accommodation of all roadway users was not included in the final bill. There is reportedly a requirement to consider all users when replacing a bridge.

Some in Congress sought to undermine these vital trail and active transportation programs in more fundamental ways than the bill just passed. It is a credit to your tireless advocacy that these more reactionary views did not carry the day. While the result is disappointing, there is ample room for us all to continue to work together to advance trails and active transportation in our communities and states, and to emerge from this experience stronger than ever. It is time to renew and refine our joint efforts to ensure that active transportation claims its rightful place as a central and growing element of our nation’s transportation system.

Kevin Mills
Vice President of Policy and Trail Development
Rails-to-Trails Conservancy

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