Tuesday, March 4, 2008

Discussion Activity on Use of Congressional Earmark Funds

I was delighted to get some discussion activity concerning the issue of using Congressional earmark funding (like the total of $27 million for the Route 250 Bypass Interchange at McIntire Road (actually identified as the Meadowcreek Parkway Interchange) in SAFETEA-LU transportation funding legislation) as part of the need to move a project forward. After posting the first item in this discussion (below) I did a bit of 'legal' research into the issue that I posted in my blogpost on Tuesday March 3, 2008. It appears that the general sense of other NEPA practitioners is that a project really needs to have a sufficient purpose and need identified for the project to be a reasonable undertaking - independent of any congressional earmark funding. Clearly, the project purpose and need statement has other elements in it beside existence of congressional earmark, but I believe including the notion of congressional desire to build this interchange is not appropriate in this project. Senator John Warner facilitated getting this earmark into the legislation. I wonder if any other members of congress have any opinion on whether or not this project is of any transportation related benefit to our community, our region, our state, or our nation - or if in fact they even read the list of earmarks and knew that this item was in the list.

Federal Highways official often provide very careful interpretation of federal legislation and their own regulations and guidance documents in defending their positions. I am quite frankly surprised that our Virginia Division of FHWA supports including congressional earmark funding as a part of the project purpose and need statement without providing any justification.

Here is the discussion so far (as of about 3:30 pm on March 4, 2008) for your consideration - along with my previous blog entry.

Peter T. Kleeman, Techniquest - Transportation and Environmental Consulting, techniquest@netscape.net
02/29/2008 03:56 PM
I have been searching online for guidance on the appropriateness of using the fact that a transportation project has federal earmark funds as a demonstration of need for that project in a Purpose and Need statement. I have had conversations with various FHWA staff in the past about this and believe that the earmark is only to ensure that funding is available for project development if an adequate purpose and need exists. But, that congressional funding as an earmark is not in itself any demonstration of project need.

I have not been able to find any statement to this effect in writing on the FHWA website. What is FHWA's policy on this? Is availability of earmark funds an appropriate indication of Need for a project or not?

Any written guidance on this matter would be greatly appreciated.

Peter T. Kleeman - techniquest@netscape.net

F. Yates Oppermann, CDOT, francis.oppermann@dot.state.co.us
03/03/2008 12:43 PM
This issue came up recently here in Colorado.

There is guidance that says that legislative requirements is a legitimate purpose and need for a project. However, this is different from just having available federal funding. it is intended, i believe, to allow you to identify federal, state, and local legislative actions that require implementing. As a hypothetical, "retrofit the existing tunnel to withstand terrorist attacks as identified in HB #######."

While I have not been able to find any formal guidance on this, I explain it this way: Suppose you were to go back and ask for more money in the new legislation? Would you say: "We need more money because we need to spend the money you already gave us?". No, you would point to the underlying reason why the earmark was requested in the first place. This is the Purpose and Need for the project.

03/03/2008 02:26 PM
Legislatively, is an earmark a "legitimate purpose and need for a project"?

Or is it simply guaranteed funding?

It still seems that a project's P&N would need to be able to stand on its-own merits.

Goodness knows that not every recent project with earmarked congressional appropriations can do that!

03/04/2008 01:31 PM
I also think you have to look at the underlying purpose of a "Purpose and Need" statement. The P&N plays a key role in defining the "alternatives" of a project, if earmark funding was the sole reason for establishing a P&N, I'd imagine that does not provide much assistance in defining alternatives, let alone defending them if challenged. With that said, I don't know how well a "project" must be defined/described when applying for federal "earmark" grants? Is there a requirement to show need and define a purpose in the grant application process for earmarks? If so, that sounds like where you should be looking at to help develop a P&N.

I agree with the comment, regarding legislation (federal or state) that requires certain infrastructure to be enhanced or built as a "Purpose" behind a particular project.

AASHTO has a good handbook on P&N. I did not read anything in it regarding secured funding as an only basis for P&N in NEPA. Please pass along any documents you may find that suggest as such. Thanks!


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