By: Allen Zeyher
A recent decision by the U.S. Court of Appeals for the Ninth Circuit threatens to expand the reach of the Endangered Species Act (ESA) and create added delays for transit transportation projects, according to the American Road & Transportation Builders Association (ARTBA).
“If the Ninth Circuit’s reasoning is allowed to stand, the ESA will be greatly broadened,” said an amicus brief filed by ARTBA and the Nationwide Public Projects Coalition to the Supreme Court, which decided to hear the case on appeal.
ARTBA goes further to say that the circuit court’s ruling will require transportation transit construction managers to consider the effects of future developments.
“What the Ninth Circuit is trying to do here is to turn the Endangered Species Act into a super land-use statute that would trump all other planning requirements and permitting schemes,” Nick Goldstein, staff attorney for ARTBA, told ROADS & BRIDGES. “This would lead to incredible delays in new transportation projects. It would also open the proverbial floodgates to a whole slew of Endangered Species Act litigation. It would allow antigrowth groups to very easily file an array of different Endangered Species Act complaints based on predictions of development that may or may not occur.”
Defenders of Wildlife brought the original suit to object to how the Environmental Protection Agency (EPA) carried out the transfer of permitting authority to Arizona for National Pollutant Discharge Elimination System (NPDES) permitting in the state. Defenders of Wildlife said the EPA has been addressing endangered species concerns all along in evaluating whether to transfer NPDES permitting authority under the Clean Water Act (CWA) to a state program. The EPA has transferred permitting authority to 45 states already.
“This is not a new issue. EPA had been, at least for the last six or seven of these transfer decisions, addressing these endangered species issues,” Mike Senatore, an attorney for Defenders of Wildlife, told ROADS & BRIDGES. He said Maine, for example, made provisions, during the transfer of NPDES permitting authority, to protect Atlantic salmon.
“If you read Section 7 [of the ESA], I’m hard-pressed to find any statutory provisions any clearer,” said Senatore. “It says federal agencies shall consult and ensure against jeopardy to endangered species with respect to any action authorized, funded or carried out.”
The Ninth Circuit agreed.
The transit lawsuit names the EPA, the National Association of Home Builders and others as parties. The Home Builders have already filed a brief with the Supreme Court. In it they make the argument that the government action in question—transferring NPDES permitting authority from the EPA to the state of Arizona—does not require consideration of endangered species.
“The plain language of CWA Section 402(b) requires EPA to approve state NPDES programs if nine specific criteria are met,” said the NAHB’s brief. “None of those criteria mentions protection of listed species or the ESA.”
“It’s not whether or not the Endangered Species Act should apply to a particular piece of land or a particular project,” Calli Schmidt, spokesperson for NAHB, told ROADS & BRIDGES. “It’s how you go about deciding that you’ve got to go for an Endangered Species Act consultation. It should not necessarily be triggered by a Clean Water Act permit. It should be triggered by the fact that there are endangered species or the possibility of endangered species.”
“We had two statutes,” said Senatore. “The EPA had to comply with both.” The Ninth Circuit ruled the EPA did not comply with ESA requirements.
Bush transit budget requests $42B for highways
The Bush administration is requesting $67 billion for 2008 to finance key transit transportation construction, congestion relief and safety programs and to provide the framework for reforming the aviation system, U.S. Secretary of Transportation Mary E. Peters announced on Feb. 5.
“Our goal is to deliver a transportation system that frees all of us to make daily decisions confident we can reach our destinations safely,” Peters said, “without worrying about how we will get there, or if we can make it on time.”
The administration is seeking a record $42 billion for highway construction and safety programs. The fiscal year (FY) 2008 budget request proposes overall transportation transit safety funding of $20.3 billion. This request will fund the aviation and surface-transportation safety programs and initiatives. Included in the amount are transit programs and activities to target areas like motorcycle crashes and drunken driving.
The 2008 budget also requests $175 million to cut transit traffic congestion by developing commuter traffic information systems, accelerating construction along trade and travel corridors and helping metropolitan areas test new solutions. The transit budget request includes $1.3 billion for commuter rail and transit projects for urban areas and $100 million for transit projects in smaller towns and rural areas.
In announcing the budget request, Peters invited Congress to work with the DOT on solutions to financing and managing the nation’s transportation network, noting that the government is spending from the Highway Trust Fund at a rate faster than the growth in revenue in part because of the explosive growth in earmarks.
Transit
For the first time, the budget proposes four transit projects in a new category known as Small Starts, the DOT said. The category was created under the most recent surface-transportation authorization bill (SAFETEA-LU) so that smaller transit projects—$250 million or less in construction costs and requiring less than $75 million in Small Starts funding—would not have to compete with larger projects for federal funding.
The spending plan included in Bush’s budget announced transit funding for four new or expanding transit projects, six projects eligible for funding based on progress in the months ahead and four smaller projects. Eleven transit projects have received long-term commitments for federal funding and are already under construction. An additional six proposals were evaluated by the DOT’s Federal Transit Administration (FTA) but are not yet advanced enough to be considered for funding.
Projects proposed for funding under the new Small Starts program include bus rapid transit systems in Los Angeles, Kansas City, Springfield, Ore., and King County, Wash.
Federal-aid highways
The Associated General Contractors of America (AGC) thought the president’s budget proposal was seriously lacking in several areas.
“While the FY 08 budget request includes an increase in defense and security-related construction accounts over last year, there is a near freeze on domestic spending,” said Stephen E. Sandherr, chief executive officer of the AGC.
The defense-related construction programs offer the only bright spot for construction, AGC said. Military construction is increased by $11 billion, including $5.6 billion for Base Realignment and Closure, and veterans construction is increased by more than $400 million.
AGC was pleased that the president’s budget proposes to fully fund the SAFETEA-LU guaranteed level of $39.6 billion for the federal-aid highway program for FY 08. However, the budget does not propose to include a $631 million positive adjustment required under SAFETEA-LU to reflect the latest user-fee receipts. The transit budget calls for new user fees to fund growing aviation needs, and it also identifies plans to propose expansion of the existing inland waterways user fee to address system needs, but it gives no contemplation to enhancing the user fee for the Highway Trust Fund, which is nearing insolvency.
John Horsley, executive director of the American Association of State Highway & Transportation Officials (AASHTO), responded to the Bush proposal by saying that the transit transportation budget “fully funds highways and safety programs, but fails to fully fund transit programs to levels promised in the last surface-transportation reauthorization bill.”
Horsley said AASHTO would work with the DOT and Congress to address a lag between the current costs of keeping the nation’s surface-transportation system functional and projected revenues into the Highway Trust Fund. Current projections indicate the trust fund may go into the red as soon as FY 2009.
Shortchanged
The American Highway Users Alliance noted another omission.
For the users of America’s highways and bridges, the proposal recommends a slight increase in funding from 2007 levels, the alliance said in a statement, but does not reflect the entire “guaranteed” funding level required under the five-year SAFETEA-LU law.
Under the law, the administration is required to follow a specific process to adjust highway funding over two years, said the group. The $842 million positive adjustment intended for 2007 and 2008 was based on past and estimated future revenue from fuel and truck taxes.
For the 2007 budget, the administration followed the law correctly and added the $842 million in new funding. However, the 2008 budget proposal deleted the $842 million funding adjustment.
Highway Users’ President and CEO Greg Cohen commented, “It is unfortunate that we cannot endorse the president’s budget proposal for highways as we have for the past two years. American motorists and commercial drivers should be concerned that the administration is proposing $842 million less in highway transit funding than required under the SAFETEA-LU law, even though congestion and safety problems are on the rise.”
Cohen added, “We will work with key Congressional committees to increase highway funding to $40.4 billion, the minimum amount required by the SAFETEA-LU highway law.”
Ohio running short
Ohio Gov. Ted Strickland told the Ohio Newspaper Association in mid-February that the state would not have enough highway construction funds to cover its current commitments, but he hopes to be able to continue with the state’s highest-priority road and bridge projects, the Toledo Blade reported.
“I would hope that we wouldn’t have to cancel projects,” he said, “but we’re going to have to take a hard look at our situation.”
Strickland said the prime culprits were increasing fuel and construction costs, flat gas-tax revenue and the state’s slow economy. He said he would not propose an increase in the state’s 28-cent-a-gal gas tax, however, in his next two-year transportation transit budget.
Ohio’s Transportation Review Advisory Council estimated that the state’s transportation funding gap would grow to $1.2 billion between now and 2014.
Peters advances plans to reduce congestion
Ambitious plans to reduce traffic tie-ups on several of the nation’s busiest highways are one step closer to becoming a reality, because a short list of interstate corridors under the Corridors of the Future program was announced by Transportation Secretary Mary Peters.
Peters said the Corridors of the Future effort is a progressive approach that includes transportation planning across state lines in ways that reduce transit congestion and preserve the efficient flow of goods and commerce across America.
The DOT is advancing 14 of 38 proposals located on eight major transportation corridors, including I-95 between Florida and Maine; I-15 in southern California and Nevada; I-80/94 and I-90 linking Illinois, Indiana and Michigan; I-5 in California, Washington and Oregon; I-70 from Missouri to Ohio; I-69 from Texas to Michigan; I-80 in Nevada and California; and I-10 from California to Florida.
The transit proposals currently include various combinations of expanded highway capacity, truck-only lanes, increased freight and passenger rail development and extensive use of innovative technologies to keep traffic moving and improve overall safety.
The DOT will select up to five Corridors of the Future this summer. The DOT will aggressively support the development of those selected by accelerating permitting schedules, identifying new financing options and promoting innovative project delivery methods.
Judge rules for EIS in patent case
A district court judge has ruled that a product made by EIS Electronics Integrated Systems Inc., Salt Lake City, does not infringe a patent held by Wavetronix LLC, Lindon, Utah.
“We are happy to see this positive resolution to unfounded allegations against us,” said Dan Manor, president and CEO of EIS.
Wavetronix sued EIS in January 2005, saying that EIS’s RTMS 3X device infringed a patent on Wavetronix’s process for automatically configuring multiple lanes of traffic, a feature of Wavetronix’s radar detection devices.
Judge Bruce S. Jenkins, of the U.S. District Court for the District of Utah, granted summary judgment on Feb. 14 in favor of EIS.
David Arnold, president and CEO of Wavetronix, said, “Wavetronix believes in the superior quality of its products and will continue to vigorously fight to protect its intellectual property.”
Wavetronix planned to appeal the ruling to the court of appeals.
Highway Users warns against private tollers
The American Highway Users Alliance joined forces with a number of other groups on Feb. 9 to form Americans for a Strong National Highway Network. The coalition will provide a powerful voice for motorists and businesses that want a robust, seamless national transit highway system, the group said, and are concerned with proposals that may take steps to dismember the public road network into privately operated toll roads.
A number of states are considering road lease deals for 75 to 99 years in order to generate quick up-front cash from foreign and domestic investors, said the Highway Users. State governors are then free to use the “newfound” cash for any purpose, while captive road users are left paying automatically escalating tolls for decades.
The lease deals even include provisions that restrict life-saving capacity improvements on “competing” public roads.
Highway Users’ Greg Cohen commented, “The recent interest in public-private partnerships should be weighed carefully. There are some excellent proposals that serve the public good. But citizens need to watch out for the proposals developed for only one purpose: making lots of money. Under the worst of these deals, highway users and the public are ignored or purposely locked out from negotiations while politicians focus on filling state coffers with billions in fast cash. As part of these deals, brokerage firms charge massive transaction fees, and private road operators earn massive profits over time by scheduling increasing tolls and opposing competition.”
Cohen continued, “Government officials need to put their constituents first. The publicly owned and financed road system serves motorists’ interests and must be expanded. If the public interest is fully considered, private investment can supplement taxes that fund new roads, express lanes and traffic bottleneck bypasses. But critical review from highway users is essential to make sure the public interest is well-served.”
Turnover at the top
There will be leadership changes in at least a dozen state transportation departments as new governors and other turnover-spurring factors arrive with the new year, AASHTO reported.
In Maryland, incoming Democratic Gov. Martin O’Malley selected former state Transportation Secretary John Porcari to again lead the department. Porcari will succeed Robert Flanagan.
Governor-elect Deval Patrick of Massachusetts has chosen Bernard Cohen, director of the FTA’s Lower Manhattan Recovery Office in New York, to head the Massachusetts Department of Transportation. Cohen succeeds John Cogliano, who took over at the Massachusetts DOT following the resignation of former director Matthew Amorello.
Nevada Governor-elect Jim Gibbons announced he is promoting 22-year DOT employee Susan Martinovich to become director. Martinovich has been the Nevada DOT deputy director chief engineer under Director Jeff Fontaine, who announced in late December that he is stepping down from that post to lead the Nevada Association of Counties.
In mid-December, in Idaho, the state transportation board named Pamela Lowe as the new director of the Idaho DOT. She has served as the agency’s deputy director since September and has been with the agency since 1993. She served as the first female state highway district engineer in the state and in 2004 was promoted to the post of administrator for the state Department of Motor Vehicles.
Former Idaho DOT Director Dwight Bower, who had retired, served in an interim capacity following Dave Ekern’s retirement in August; Ekern now serves as commissioner at the Virginia DOT.
Rhode Island Gov. Donald Carcieri has named Jerome Williams, currently director of the state Department of Administration, to take the top job at the state DOT. Williams, formerly a senior vice president at FleetBoston Financial, also had assisted in the state’s pension-reform initiative. Williams’ predecessor, James Capaldi, retired recently after 36 years with the department.
Re-elected Gov. Linda Lingle of Hawaii announced that Barry Fukunaga, a deputy director of the transportation department in the Harbors Division, will become the new director of the Hawaii DOT. Fukunaga will assume the post held for four years by Director Rodney Haraga.
Elizabeth Mabry, who has served for a decade as director of the South Carolina DOT, announced she will retire at year’s end.
Freight movement strategy needed
ARTBA’s President Pete Ruane delivered a pessimistic message to a U.S. Chamber of Commerce Foundation conference on Feb. 13. The development of a national strategy to improve the efficient movement of freight is critical to future U.S. economic productivity, said the president of ARTBA.
He said a freight policy should be a top priority for federal policy-makers charged with writing the next highway and transit reauthorization bill in 2009.
Ruane cited a Federal Highway Administration (FHWA) report showing that freight bottlenecks are causing trucks more than 243 million hours of delay annually, at a cost of nearly $8 billion.
“If the U.S. economy grows at a conservative annual rate of 2.5 to 3% over the next 20 years, domestic freight tonnage will almost double, and the volume of freight moving through the largest international gateways may triple or quadruple,” the FHWA report said. “Without new strategies to increase capacity, congestion at freight bottlenecks on highways may impose an unacceptably high cost on the nation’s economy.”
Ruane outlined a plan approved by the ARTBA board of directors in September 2006 that is aimed at addressing the nation’s future surface-transportation needs. The ARTBA plan envisions two separate, yet equally important, components.
The current highway and transit programs should be better funded through the existing user-fee structure, according to ARTBA, and reformed to address future safety and mobility priorities.
