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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.

Photo by DDOTDC on Flickr.

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:

  1. To reopen the FHWA EIS document and evaluate streetcar for the bridge.
  2. To conduct an expedited FTA EA and evaluate streetcar on the bridge.
  3. 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.
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."

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. FTA judged that the tracks hadn't gone through proper process. FHWA then told DDOT they couldn't do the tracks without more review.
  6. 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.
  7. 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."

David Alpert is the founder of Greater Greater Washington and its board president. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He now lives with his wife and two children in Dupont Circle. 


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For those of you interested, the link to the op-ed is:

Dave, thank you for revisiting this issue. Your first post was a mess. This does make things look more clear.

In terms of step 3, that was done in April 2010, no? This was the idea of switching over to stimulus money for the bridge and freeing it up for the streetcar.

by charlie on Oct 11, 2011 2:01 pm • linkreport

Thanks for the comment. I've added that link to the post. It was left out inadvertently.

by Matt Johnson on Oct 11, 2011 2:08 pm • linkreport

Basic question - is there still a possibility that the bridge could be built with tracks in it now, or is that possibility dead and gone for now?

by Geoffrey Hatchard on Oct 11, 2011 2:35 pm • linkreport

This would be a good time for the Mayor to ask the President to step in, no?

by William on Oct 11, 2011 2:42 pm • linkreport

Again, going back to Will P's comment:

The literal reading of that comment is FTA would then deny money for all rail segments connecting to that bridge. In other words, the entire streetcar network. That would make DC the sole funder -- which is never in the cards.

I don't read this story as anything but pure incomptence on the part of DDOT officals. Whether Klein or Kubly -- this mess in their laps.

by charlie on Oct 11, 2011 3:00 pm • linkreport

The federal agency paying for the bridge is FHWA. It seems as though the nub of the issue is whose responsibility it was to coordinate with FTA - FHWA or DCDOT. If it was FHWA's responsibility, the main fault is with them, and vice versa.

by Ben Ross on Oct 11, 2011 3:15 pm • linkreport

The further question, if it was FHWA's responsibility to coordinate: If a federal agency approves something without going through the proper procedures, and a local government enters into contracts based on that approval, what happens when the mistake is discovered? Here DCDOT is being told they are out of luck, and have to eat the financial costs (in this case, DCDOT had a choice between losing the potential savings of putting in the tracks, and losing federal aid, and chose the former). If this happened to a private company, the response might be "see you in court."

by Ben Ross on Oct 11, 2011 3:21 pm • linkreport

This just seems like a circular firing squad. It looks like if it was just DDOT and FFHWA, or just DDOT and FTA, it might have gotten done. But then 3 agencies got involved, and then, forget it.

by kinverson on Oct 11, 2011 3:39 pm • linkreport

NEPA is a set of laws. These laws actually protect us, the citizens from federal actions being taken without at least documenting and informing of all of the impacts the action could cause. The law must be followed if federal funds are used. PERIOD. The FEIS mentioned that the DESIGN would accommodate future streetcar, but never were the impacts of the actual streetcar (and all that comes with it-noise, vibration, aesthetics, env justice, traffic impacts, etc) analyzed. So the bridge was designed to be able to carry it in case the streetcar used it in the future. Somehow actual tracks became part of the bridge project after the FEIS was finalized. FHWA could not allow the tracks to be installed because it would have been a violation of law- it was not an activity approved in the FEIS. The alternatives offered for environmental review for streetcar (to bring the track activity into compliance with the law) all involved delaying construction to complete. Therefore DDOT made the choice to move forward without the tracks.

by ANONYMOUS on Oct 11, 2011 3:45 pm • linkreport

DDOT completed an EIS for the bridge that included "accommodation" of transit but was vague about what transit exactly would be included.

So what you are saying is that DDoT was trying to get away with slipping in the streetcar tracks without proper review. Correct, Mr Alpert?

by goldfish on Oct 11, 2011 5:05 pm • linkreport

FHWA could not allow the tracks to be installed because it would have been a violation of law

Well then, they shouldn't have approved it, should they?

@charlie, the decision to use stimulus money (step 3) predates the start of construction in 12/09 so it is not April 2010. Where do you get that date? Step 3 predates Klein, so it isn't Klein's fault. But it doesn't surprise me that you'd like to blame him.

by David C on Oct 11, 2011 5:25 pm • linkreport

@DavidC; that date is from memory. Perhaps I am getting mixed up with the day the extra FTA moeny from WMATA was put towards streetcars.

However, David's series on the bridge was done in spring of 09, and somewhere between then and 12/09 the change was done. So that is during Klein's tenure.

by charlie on Oct 11, 2011 6:11 pm • linkreport

David Alpert -

This article is missing the byline.

by Frank IBC on Oct 11, 2011 6:13 pm • linkreport

My bad. After some, digging:

September 2009.

by charlie on Oct 11, 2011 6:31 pm • linkreport

Will P is correct that there was a clear and simple path forward that involved using local money for the tracks.

The situation is that FTA has for years been embarrassed that DC was not working through them. Tangherlini started the streetcar because the process is long and arduous with no guarantee of success. Klein picked the ball up and ran but didn't make these decisions. Mid level career service officials at FTA who really run the agency are going to unfortunately thwart DC projects as a result.

FHWA works well with DDOT and checked everything off, but when some of my brethren at FTA found out that DOT was participating and they did not have any say, or get to thwart it, they threw a fit to Rogoff. So at the end of the day, it's about egos, and this is why the federal government, and FTA in particular have such a bad reputation. I tried to help, but it was over my head. Many of us knew about the project, and just hoped it would be built under the less bureaucratic FHWA.

by FTA Guy on Oct 11, 2011 9:56 pm • linkreport

charlie, that article is about the DC council voting to move forward. It is not about the decision to use stimulus money. Here's CHRS talking about it in March of 2009.

by David C on Oct 11, 2011 10:51 pm • linkreport

I think David should be flattered, and I think it should raise some eyebrows that the FTA administrator responded to a blog posting through an Op-Ed piece in the Post. That strikes me as a bit atypical.

I also think FTA Guy's comments are instructive as they appear to come from someone familiar with the project.

by Some Dude on Oct 12, 2011 7:45 am • linkreport

Rogoff's point is credited: "there are laws and procedures that must be followed when seeking federal funding for a proposed project." DDOT did not follow those laws and procedures.

You can't start at the unfavorable outcome and work back from there to define the legal and planning framework in a way that fits a more desirable outcome. DDOT wants a lawsuit-proof EIS. Laws are laws, no matter how inconvenient and bureaucratic they seem.

Local governments can't selectively pay for the things that they don't want to include in an EIS and pay for the rest with federal money. That would make a total mockery of the environmental planning process. This situation just goes to show that DDOT's go-it-alone and rush everything strategy for the streetcar system is not going to pay out for DC residents.

DDOT screwed up. They tried to build the beginnings of a transit line with federal money without talking to the FTA. The removable blocks are a convenient way for them to avoid the goof.

by David on Oct 12, 2011 8:22 am • linkreport

@davidC; thank you again for the corrected link.

But that still doesn't nail down the date. And it all comes down to DDOT -- when switching to the federal money -- not realizing they needed some sort of EIS waiver to put down tracks.

I dont know if this is Klein's fault -- but these decisions clearly occured during his tenure. Too clever by half.

by charlie on Oct 12, 2011 9:31 am • linkreport

charlie, that isn't clear at all. In fact, that isn't what this post claims. David wrote: "Somewhere along the way (though before Gabe Klein took over), this happened."

by David C on Oct 12, 2011 9:57 am • linkreport

@DavidC; yes,but I don't understand David A's statment there.

First stimulus money came out in what -- no earlier than Jan 09? Constructions started in Dec 09?

If it just federal money -- not stimulus money -- then the starting date is irrelelvant.

by charlie on Oct 12, 2011 10:03 am • linkreport

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