NPT Capitol: Pickett aks feds to “reconsider” re: TxDoT bill
House Transportation Chair Joe Pickett, D-El Paso penned a quick response to a letter from the Feds raising concerns over the House version of the TxDoT sunset bill.
“I respectfully disagree with several of your conclusions, and at a minimum ask that you reconsider and clarify, or correct where necessary, your statements in light of the information presented below” reads the letter’s intro.
Read it after the jump
May 21, 2009
Janice Weingart Brown
Texas Division Administrator
U.S. Department of Transportation
300 E. 8th Street, Rm 826
Austin, TX 78768-2910
Dear Ms. Brown:
I have reviewed the letter you sent to Amadeo Saenz, Executive Director, Texas Department of Transportation (TxDOT) in regard to the transportation planning and project development process in House Bill 300 (HB 300). While I appreciate the comments offered in response to the request you received from TxDOT (a request made without my knowledge), your concern that HB 300 is inconsistent with core concepts of FHWA’s program appears hastily developed and based on a selective consideration of the provisions of HB 300. Therefore, I respectfully disagree with several of your conclusions, and at a minimum ask that you reconsider and clarify, or correct where necessary, your statements in light of the information presented below.
Specifically, I would like to address the major conflicts and concerns you noted with numbered paragraphs corresponding to those contained in your correspondence.
1. I agree with your analysis in that the proposed legislation currently only cites 23 USC § 135 and does not address 23 USC § 134 or 23 CFR Part 450. However, the absence of an explicit reference to those sections in HB 300 should in now way hinder our state’s compliance with Federal law. Section 201.657 of HB 300 is only a reference to the compilation of a single statewide planning document. The intent is to convey there is a single ten year document for the state, of which the first four years consist of the projects identified in the Statewide Transportation Improvement Program (STIP). HB 300 does not change the process by which those projects are selected, including compliance with every aspect of public participation and consultation that you identify. It is merely an attempt to clarify the legislature’s desire to have one statewide document that covers a ten year period. Ironically the version of HB 300 recently passed by the Senate Transportation & Homeland Security Committee contains a similar requirement for the department to prepare a 10 year “project development program” (see proposed Section 201.982) with no reference to federal law or regulations. I can only assume that concern expressed in your letter would apply equally to this provision.
2. Under Section 222.034(a), Transportation Code, the commission is required to distribute federal aid to various parts of the state for a funding cycle through the selection of highway projects. This distribution is required to be done in a manner consistent with the federal formulas that determine the amount of federal aid for transportation purposes received by the state. It is unclear why this provision is permitted under federal law while you have stated a formula currently in statute is not permissible. HB 300 does not include provisions distributing funds to the regions of the state, it is merely creating a method by which to track an equitable distribution of funding for project planning purposes only. Section 201.655 merely requires subaccounts within the state highway fund solely for the purpose of tracking the amount of money available for project planning in a particular region.
3. You have stated you are unaware of any provision in federal law which authorizes the transfer of funds between planning organizations. However, it is routine practice of TxDOT to shift funds among projects statewide. Section 201.666 merely recognizes the need to shift funds to projects which are ready for development while still preserving commitments to other regions’ projects. While you have observed that you are unaware of any provisions which permits these transfers, you have not identified any provision which prohibits doing so.
4. You appear to raise two concerns over the use of Federal funds to support metropolitan planning organization (MPO) planning activities: (1) that certain Federal funds are not available for planning; and (2) other Federal funds cannot be subject to limits on amounts used for MPO planning activities. Section 201.668 (b) of HB 300 speaks to your concern by directing that the allocation of funds for planning purposes only applies to funds which may be allocated in a state or where TxDOT has discretion. HB 300 does not to hinder or impede the direct allocation of funds from the Federal Highway Administration (FHWA) for planning purposes or require the use of funds which are restricted to uses for other purposes. In fact, section 201.668(c) requires the commission to adopt various formulas for the different types of transportation projects (e.g., Congestion Mitigation Air Quality (CMAC) and the National Highway System (NHS)). These appropriated funds would still adhere to federal restrictions on the manner in which they may be spent.
5. I fail to see where we have excluded non-elected officials from an MPO board. Section 472.0315 simply provides that elected officials may be the only voting members of the policy board. In fact, the statute merely states that an MPO board shall consist of at least seventy-five percent elected officials clearly indicating that there can be nonelected members on the board. And the remaining twenty five percent of a MPO board may include officials of public agencies that administer or operate major modes of transportation in the metropolitan planning area, and appropriate State transportation officials; the very officials you say are missing from the board composition. The regulation you cite, 23 CFR 450.310(d), merely states that and MPO board shall consist of these types of officials, and is silent on the specific number or voting powers.
6. I disagree in your assertion that Section 207.658 (sic) of HB 300 conflicts with 23 USC 134(i)(4). According to 23 USC 134(i)(4), the eight Transportation Management Areas (TMAs) in Texas are granted the authority to select projects. The intent of Section 201.664 is to allow the Texas Transportation Commission (commission) to create performance measures and evaluation criteria by which the projects would be selected, therefore granting considerable control to the commission over the types of projects which are eligible for selection. Furthermore, Section 201.665(b) states the “statewide transportation program and budget shall be complete and adopted . . .” by the department [which acts through the commission], therefore negating your argument that exclusive authority to set priority of projects rests with MPOs and Rural Planning Organizations (RPOs). In regard to all other areas outside of a MPO or a RPO, Section 201.658(b) provides the commission with final approval authority over selected projects.
You further state that HB 300 is unclear on how projects that cross jurisdictional boundaries will be coordinated and implemented. I direct you to Section 201.676 of the bill which directs TxDOT to work with planning organizations to develop a statewide connectivity plan which is intended to address this specific concern. Additionally, the commission is required to be the body which adopts this connectivity plan. We would welcome your suggestions on how the FHWA coordinates projects which cross state boundaries as it may be helpful when implementing this section.
I am surprised on the position you have taken with Section 472.045. This provision is a safeguard the legislature has included in a similar fashion in numerous bills. In fact, during the last session of the Texas Legislature similar provisions were used to assure that Texas remained eligible for federal funding and similar provisions have already been inserted into bills this session specifically upon the advice of TxDOT when they informed us of fears of jeopardizing federal funds. It is disappointing that we have received advice from TxDOT which conflicts with the interpretation of the FHWA.
Finally, through not requested, you chose to comment on Section 201.6041, providing for delegation of environmental review work to local entities. This section allows the delegation “to the extent permitted by law” and makes clear that the environmental review documents prepared by a local entity must comply with state procedures; the documents must be provided to TxDOT; and most importantly, must meet the requirements of USDOT, Federal Highway Administration, if federal approval is required. It is difficult to see how or why you would conclude that the necessary authority or control of TxDOT is not provided for.
As noted above, I appreciate your comments. I wish however that they had come as part of a more collaborative process, rather that at the request of a state agency who fears losing the control it wielded with a heavy hand for many years. We have moved to a new era of transportation planning and funding in Texas, with more being requested of our local governments. It is only appropriate that we try to allow local governments a greater role in the planning process that affect their regions. TxDOT seems dedicated to preserving the status quo and I regret that they have involved you in that mission on their behalf.
The conference committee negotiations on HB 300 will begin next week, leaving only a short time period to resolve the differences between the Senate and House versions of HB 300 before the final day of the legislative session. In order to ensure the legislation meets federal standards, I am requesting a response to this letter as soon as possible. If you have any questions, please feel free to contact my office.
Joe C. Pickett