Federal Highway Administration (FHWA) and TxDOT Assumption of FHWA Duties

Federal Highway Administration (FHWA) – Beginner’s Overview

The Federal Highway Administration (FHWA) is a major federal agency under the Department of Transportation which oversees federal aid highway projects. (Another major agency residing under the Department of Transportation is the Federal Transit Administration (FTA). The statutes governing federal aid highway projects are in Title 23 United States Code. The FHWA has implementing regulations for these statutes and they are in Title 23 Code of Federal Regulations. TxDOT does not have its own regulations for federal aid highways and is supposed to conform to the federal regulations. Both FHWA and TxDOT publish guidances (internal interpretations of the public comment regulations). Often the guidances eviserate or modify obligations and rights in the regulations.

FHWA’s website http://www.fhwa.dot.gov is extremely broad and complex and rates 5 stars for the information provided. Like roads or not, this site gets and deserves an A+ (except for the obnoxious flashovers) and should be treated as a valuable transportation information asset for federal aid highways, bike path funding, clean air conformance, parklands and other environmentally sensitive land uses, and road funding appropriations.

The FHWA brings a certain level of federal integrity and oversight to major road projects.  Title 23 of the United States Code sets forth the federal statutes for federal aid highways. Normally the FHWA oversees and has responsibility for these projects even though the Houston public only sees TxDOT.

Unfortunately for the citizens of TxDOT’s Houston District, TxDOT, on its application, was chosen to develop its own projects without FHWA oversight or responsibility except to the extent the projects were specifically left under FHWA authority.

23 U.S.C. 327 set up a Pilot Program in 2005 for 5 states to assume federal responsibilities for certain federal aid highway programs. TxDOT and FHWA entered a Memorandum of Understanding (MOU) dated Dec. 16, 2014, and executed by FHWA and TxDOT for TxDOT to assume the federal responsibilities for the 290/610 highway project. TxDOT may enter into such agreements for other Houston District projects.  (To read or search the 24 page MOU, click here  https://www.fhwa.dot.gov/txdiv/finalnepa-mou.pdf

This is generally NOT a good thing for Texas residents in terms of environmental impacts such as air pollution, flooding and drainage, noise, and other impacts. The move on its face is thought to reduce federal costs and TxDOT time in litigation. TxDOT had to waive sovereign immunity and agree to be sued in federal court.

FHWA (and now to the extent TxDOT has assumed the responsibilities) administers and is responsible for, among others,
(1) Allocation of federal funding for roads and highways through Congressional appropriations bills (e.g. omnibus bills such as SAFETEA-LU that last a specific number of years); these include stimulus funds also; toll and new innovative funding initiatives such as public private partnerships (PPPs)
(2) Federal compliance and compliance by State Highway Agencies, such as TxDOT, with a myriad number of statutes and implementing regulations of the DOT, EPA, and FHWA itself, insofar as they relate to federal-aid highways including those pertaining to
(a) Road and Bridge design standards for federal aid highway projects
(b) Nonmotorized uses integrated into federal projects
(c) Environmental analysis and mitigation of highway impacts quantified using science-based standards for clean air (Clean Air Act Amendents) and noise (FHWA Noise Abatement Regulations); [analysis under Clean Water Act and permits granted thereunder are done by EPA and US Army Corps of Engineers explained elsewhere];
(d) Federal air quality conformance programs (discussed elsewhere) such as Freight Rail air quality and Congestion Management Air Quality; the FHWA works hand in glove with the states and the Metropolitan Planning Organizations (MPO; here in the 8 county area H-GAC); air quality conformance, or “attainment” ties directly into federal funding and SIPs and TIPs.
(e) For highway traffic noise abatement, FHWA provides for 90% federal funding for abatement. The issue of noise abatement is widespread in the Houston region given TxDOT’s persistence in encouraging commercial businesses to locate next to freeways and its stinginess in using the 90% federal participation share for noise abatement.
(f) Process driven, qualitative NEPA statutes and regulations (separate and distinct from air, water, and noise standards statutes and regulations): Environmental documentation of environmental impacts under NEPA (National Envionmental Policy Act) for each federal-aid highway project: either an Environmental Assessment (EA); a Categorical Exclusion (CE); or an Environmental Impact Statement (EIS); and
(g) Safety and Safety Funding For All Road Users including pedestrians and bikes

Many highway traffic impacts have special analysis and mitigation policies. For example, a land use and impact may trigger a 4(f) analysis. If the lands impacted by a road project are a park or other special land use, a second more stringent analysis and mitigation program may have to be done involving greater levels of public participation and participation by local governments. Houston is due for several of such analyses including particularly at the Memorial parklands and the Houston Arboretum and Nature Center at 610 Loop West .

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