Did the FTA have leeway on the 11th Street bridge?
FTA administrator Peter Rogoff and his PR team are disputing Thursday's story on streetcar tracks on the 11th Street bridge. In that article, I wrote, "The question here is whether FTA had to make the decision they did, or had leeway." It's become even more clear that that indeed is the fundamental question.
In an op-ed on the Washington Post's All Opinions are Local, Rogoff makes two main points. First, he says that by federal law, FTA had to stop the tracks once they learned about the issue. And second, echoing the statement his communications team put out on Friday, he says FTA gave DDOT several options for including tracks by redoing or modifying environmental reviews.
The second point is mostly irrelevant; DDOT was too far along in the bridge project to reopen the environmental reviews by the time that happened in July of this year. But the first point is indeed the key question. Rogoff says FTA had no leeway. So far, all of the transportation professionals I have spoken with argue that they did.
The options FTA gave DDOT
Let's start with the 2nd claim, that FTA gave DDOT plenty of options in July. The 3 options, according to Brian Farber, Associate Administrator from the Office of Communications and Congressional Affairs, were:
In this July 28 letter, DDOT Director Terry Bellamy tells FTA that they've decided to take the tracks off the project, as a result of a meeting a month earlier where USDOT officials "stated that because streetcar infrastructure was not included in the record of decision for [the EIS], it could not be included as part of the bridge construction."
- To reopen the FHWA EIS document and evaluate streetcar for the bridge.
- To conduct an expedited FTA EA and evaluate streetcar on the bridge.
- To extend the northern terminus of the current Historic Anacostia FTA EA to include the 11th Street bridge, and evaluate streetcar from the Anacostia Metro station to the western terminus of the bridge.
However, this is all happening while the bridge has long been under construction. Work began in December 2009. According to several people familiar with the bridge project, DDOT at this point faced two unpleasant choices: pull the tracks off the bridge, or start an environmental process that could take years.
Besides the extensive public participation process that would have been required, the bridge EIS had drawn a lawsuit for the way it added cross-river vehicular capacity while claiming it didn't. Personally, I agreed with the opponents and think DDOT made a mistake doing the bridge this way. Adding the "missing link" may well draw vehicle trips through the region off the Woodrow Wilson Bridge and into DC.
But that's water under the bridge, as it were, and now that the bridge is half built, it doesn't seem wise of DDOT to reopen all those cans of worms. I'm skeptical it would best "save taxpayer monies in the long run" to delay work while a long EIS occurs, and potentially incur huge penalties from the contractor if the EIS takes very long, as it likely would.
People familiar with the discussions (including additional people beyond those I spoke to for the original story) confirm the basic truth of what I reported. Unfortunately, everyone is very reluctant to be quoted publicly. Transportation professionals will inevitably have to work with federal agencies. They don't want to raise the ire of FTA and imperil other projects.
Did FTA have leeway?
All of the options FTA offered involved not putting the tracks on the bridge until after further environmental review. If FTA really felt they had absolutely no choice, then what they did was best. They stopped DDOT as they had to, but they gave DDOT various (unpalatable) alternatives.
But did they have to? I spoke to several transportation professionals who feel FTA could have let the tracks go forward, or at least let DC finish them with local dollars. Commenter Will P (who is familiar with the situation) agreed, writing:
DC had the ability and planned to pay for the rails on the bridge with local money. What FTA is saying is that if DC chose to put in the rails on the Bridge before their mandated studies, they would then be disqualified from getting federal dollars for segments that would connect to the Bridge.I've asked FTA's media relations folks to further explain the issue from FTA's standpoint, but they aren't experts on federal law, either, and haven't yet gotten back to me with specifics.
This is an unusual situation because the key decision point is coming not during the early design phases or during bidding, but after the project has long been underway. According to people familiar with the process, the Federal Highway Administration (FHWA) had signed off on project documents which did include the streetcars. These include early construction documents and also "Plans, Specifications & Estimates" (PS&E) reports.
Here's the core of the timeline, as best as I can understand it from talking to numerous people:
- DDOT completed an EIS for the bridge that included "accommodation" of transit but was vague about what transit exactly would be included. The EIS won an award from FHWA for its public process.
- DDOT prepared to build the project with mostly local dollars. They decided to include tracks to save money in the future on the streetcar network.
- DDOT switched to use mostly federal money on the project. They were working with FHWA. The construction documents and intermediate PS&Es signed off on by FHWA included the tracks.
- At some point, when DDOT asked to switch the type of tracks to comply with Buy America, people at FHWA realized they should involve FTA and talked to FTA about the tracks.
- FTA judged that the tracks hadn't gone through proper process. FHWA then told DDOT they couldn't do the tracks without more review.
- FTA suggested 3 options for DDOT to get approval for the tracks, which would have required longer process that could have delayed the entire project and cost more money.
- In July, DDOT decided not to pursue those and finish the project without the tracks.
In step 3, DDOT officials apparently believed that they had the necessary federal approvals to go ahead with tracks, since FHWA had signed off on documents. Maybe DDOT should have realized they should go talk to FTA. Maybe they were hoping nobody would notice so they didn't have to. Or maybe they honestly thought everything was fine.
Clearly, if DDOT had gone through some more process years ago, we would all be better off today. DDOT officials admit they probably screwed up, in hindsight. But federal processes are very complex. A agency can go extremely slowly and make absolutely sure they cross every t and dot every i (and still maybe make mistakes), or they can try to move faster and do the best they can. DDOT, from at least Dan Tangherlini through Gabe Klein, was trying to move fast and get a lot done. Somewhere along the way (though before Gabe Klein took over), this happened.
But in June, whatever happened before, we were faced with this situation: One federal agency had been telling DDOT they could go ahead; now another stepped in and said no. Maybe federal law is so unambiguous that the tracks can't possibly go forward, even if FHWA had approved them for months, even with local money, that FTA officials had absolutely no choice. But was it?
Could they have said, "That's too bad, this one got by. Hey, FHWA, please try to keep an eye out for stuff like this in the future, and DDOT, we're going to ask you to be a little more careful next time. Okay? Let's just do the tracks anyway and we'll all try to do better."
Or, could they have said, "We're sorry, we really don't think that it's legal to use federal money for the tracks, but if you want to use some local money, we'll let this be a 'nonparticipating' part of the project."
That's the question. Rogoff's letter suggests these two options were not available to FTA. Other transportation professionals say they were. This question defines the issue of whether FTA "put up a roadblock" in July, or just acted as they must.
Update: In the Post piece, Rogoff also adds another option, placing removable blocks on the bridge that can be changed to tracks in the future. Rogoff's piece says DDOT declined to pursue any options, including the removable blocks, but DDOT spokesperson John Lisle says the removable blocks are indeed what DDOT is doing as part of making the bridge "streetcar ready."
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