Is a Federal Earmark for Route 250 Bypass Interchange a Mandate for Action?

This posting may appeal to the transportation planners who read this blog - others be forewarned. I do find using earmarked funding as a congressional mandate for action to be totally inappropriate - and this is what is being done on our Route 250 Interchange at McIntire Road project. Well, here goes.....

Congressional earmarks have been a topic of much discussion of late and is an issue in the Route 250 Bypass Interchange at McIntire Road project locally. Funds for the interchange were authorized in the SAFETEA-LU legislation (Public Law 109-59) in two separate sections. Section 1702 provided $25 million and section 1934 provided an additional $2 million. The question is if inclusion of funding for a project in either of these sections constitutes a mandate for construction of the interchange. At the first meeting of the Section 106 Consulting Parties Coordination Meeting on November 26, 2007 I stated that I do not feel the Purpose and Need was appropriate, and that several elements, including the SAFETEA-LU earmark, community mobility, and developing a context sensitive gateway should not be part of the purpose and need for the project. I received a response to this comment in a memorandum from Angela Tucker, the Charlottesville project manager (prepared by Eric Almquist the project planner for the consultant) as follows:

"The purpose and need was developed by the project team with considerable input from the Steering Committee (including local planning officials), the Thomas Jefferson Planning District Commission, the public (including two workshops), VDOT, and FHWA. It follows closely guidance that is presented at the FHWA website:

http://www.environment.fhwa.dot.gov/projdev/tdmelements.asp

The Congressional earmark is a representation of Congressional intent and a federal agency needs to consider the views of Congress in arriving at a decision. As such, it is a relevant and an important component of the purpose and need for the project. Further, Federal legislation is a valid item for the purpose and need of a project discussed at the website above."

The FHWA website does include a brief statement relating to legislation but it is quite different from any establishment of a basis for construction the project. The FHWA states in one item under the heading:

"The following items may be listed and described in the purpose and need statement for a proposed action. These are by no means all-inclusive or applicable in every situation. They are intended as a guide.

• Legislation — Explain if there is a Federal, state, or local governmental mandate for the action."

This guidance basically says that if a legislative mandate exists, then it is appropriate to include that mandate be "listed and described" in the purpose and need statement But does appropriation of funds through SAFETEA-LU constitute a mandate for the project to be constructed? I find no evidence of this constituting a mandate. In fact, the relevant section of the United States Code under which this decision should be reviewed is identified in the section in which the $25 million was allocated as 23 USC 117. I have included the relevant part of section 1702 of Public Law 109-59 below (I included all of the text and the $25 million item description but removed all of the other projects included in the table listing of projects with funds authorized). These funds are in effect earmarked for possible use as described in 23 USC 117 through fiscal year 2009.

I have included section 1934 of Public Law 109-59 (eliminating all other projects in the table listing) where the allocation of the additional $2 million is included. Clearly there is no mandate for action included in this section, and in fact indicates that these funds are to be processed in the same manner as funds allocated for Federal Highway programs provided for in this legislation except that these funds will not expire at the end of fiscal year 2009.

If you wish to explore the relevant sections of Title 23 of the United States Code and the SAFETEA-LU legislation, you can link to them at http://www.fhwa.dot.gov/safetealu/legis.htm

Unsatisfied with the response to this issue from the interchange project team I posted an inquiry about using earmarks as being a congressional mandate to a Federal Highway Administration discussion website on Purpose and Need issues. I am hoping I will get some discussion among other transportation development professionals on this topic.


SAFE, ACCOUNTABLE, FLEXIBLE, EFFICIENT TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS

Public Law 109-59
Aug. 10, 2005

SEC. 1702. PROJECT AUTHORIZATIONS.

Subject to section 117 of title 23, United States Code, the amount listed for each high priority project in the following table shall be available (from amounts made available by section 1101(a)(16) of this Act) for fiscal years 2005 through 2009 to carry out each such project:

Highway Projects
High Priority Projects

No. 5044
Construct Meadowcreek Parkway Interchange, Charlottesville VA
$25,000,000


SEC. 1934. TRANSPORTATION IMPROVEMENTS.

(a) Authorization of Appropriations.--
(1) In general.--For each of fiscal years 2005 through 2009, there are authorized to be appropriated from the Highway Trust Fund (other than the Mass Transit Account) such sums as are necessary to make allocations in accordance with paragraph (2) to carry out each project described in the table contained in subsection (c), at the amount specified for each such project in
that table.
(2) Allocation percentages.--Of the total amount specified for each project described in the table contained in subsection (c), 10 percent for fiscal year 2005, 20 percent for fiscal year 2006, 25 percent for fiscal year 2007, 25 percent for fiscal year 2008, and 20 percent for fiscal year 2009 shall be allocated to carry out each such project in that table.

(b) Contract Authority.--
(1) In general.--Funds authorized to be appropriated to carry out this subsection shall be available for obligation in the same manner as if the funds were apportioned under chapter 1 of title 23, United States Code, except that the funds shall remain available until expended.
(2) Federal share.--The Federal share of the cost of a project under this section shall be determined in accordance with section 120 of such title.

(c) Table.--The table referred to in subsections (a) and (b) is as follows:

Transportation Improvements

No. 408
Construct Meadowcreek Parkway Interchange, Charlottesville VA
$2,000,000