Congress authorized in Title 23, United States Code, Section 125, a special program from the Highway Trust Fund for the repair or reconstruction of Federal-aid highways and roads on Federal lands which have suffered serious damage as a result of (1) natural disasters or (2) catastrophic failures from an external cause. This program, commonly referred to as the emergency relief or ER program, supplements the commitment of resources by States, their political subdivisions, or other Federal agencies to help pay for unusually heavy expenses resulting from extraordinary conditions.
Examples of natural disasters include floods, hurricanes, earthquakes, tornadoes, tidal waves, severe storms, and landslides. A catastrophic failure is defined as the sudden and complete failure of a major element or segment of the highway system that causes a disastrous impact on transportation services. The failure must be catastrophic in nature. Additionally, in order to be eligible for ER, the cause of the failure must be determined to be external to the facility. Both conditions must be satisfied. A bridge suddenly collapsing after being struck by a barge is an example of a catastrophic failure from an external cause.
ER funds are not intended to cover all damage repair costs nor interim emergency repair costs that will necessarily restore the facility to pre-disaster conditions. State and local highway agencies must expect additional expenditures, changes in project priorities, and some inconvenience to traffic as a result of emergency conditions. State and local governments are responsible for planning and providing for extraordinary conditions. Economic hardship is not a factor in determining repair eligibility. Although there is no nationwide definitive monetary break point between what is considered routine and extraordinary repair expenses, the FHWA has determined that eligible ER repair activities in a State in the range of $700,000 (Federal share) or more are usually significant enough to justify approval of ER funds. The $700,000 threshold applies to Federal-aid highway damage eligible under the ER program separate from Federally-owned highway damages eligible under the ERFO program. FHWA's Office of Federal Lands Highway imposes a separate $700,000 threshold for eligible ERFO events on Federally-owned lands.
State and local governments are expected to prepare for certain natural events such as rainfall and flooding through adequate planning and commitment of resources. Additionally, known recurring or seasonal weather patterns or conditions should be planned for through a State or local agency's annual maintenance budget. Damages from the occurrence of such natural events, other than those of an extraordinary nature, should not rely on the ER program for assistance.
By law, the FHWA can provide up to $100 million in ER funding for each natural disaster or catastrophic failure event within a State that is found eligible for funding under the ER program (commonly referred to as the $100 million per State cap). Because of the limited amount of money authorized annually for the ER program and the likelihood that a number of states will experience ER events, funding for large events is likely to be provided over a two (or more) year time period. Also, the total ER obligation for US Territories (American Samoa, Commonwealth of Northern Mariana Islands, Guam, and Virgin Islands) is limited to $20 million in any fiscal year (FY). For a large disaster that exceeds the $100 million per State cap, Congress may pass special legislation lifting the cap for that disaster.
Note that the $100 million per State cap applies to the combined cost of damages to both Federal-aid highways (ER) and Federal Lands highways (ERFO) for any single event within a State.
ER funds are available for permanent repairs and for work accomplished more than 180 days after an event at the pro rata Federal-aid share that would normally apply to the Federal-aid facility being repaired. For Interstate highways, the Federal share is 90 percent. For all other highways, the Federal share is 80 percent. The Federal share can increase in States with high percentages of Federally owned public lands (known as "sliding scale rates"). Emergency repair work to restore essential traffic, minimize the extent of damage, or protect the remaining facilities, accomplished in the first 180 days after the occurrence of the disaster, may be reimbursed at 100 percent Federal share. During this 180-day period, permanent repair work is reimbursed at the normal pro rata share even if the permanent repair is performed as an incidental part of the emergency repair work. Permanent repair work is not to be considered emergency repair work for the purpose of establishing the eligible Federal share, and can only reimbursed at 100% if special legislation allows.
The applicability of the ER program to a natural disaster is based on the extent and intensity of the disaster. Damage to highways must be severe, occur over a wide area, and result in unusually high expenses to the highway agency. The ER program also applies to catastrophic failures (sudden and complete failures due to an external cause) and which result in a disastrous impact on transportation services and unusually high expenses to the highway agency. Failures due to an inherent flaw in the facility itself do not qualify for ER assistance.
For natural disasters, Federal interagency coordination is handled through an interagency agreement between the FEMA and 11 other Federal agencies with hazard mitigation responsibilities. Hazard mitigation teams are activated immediately following a disaster. The FEMA's publication "Flood Hazard Mitigation Handbook of Common Practices" documents the appropriate activity.
In general, the FHWA Division Administrator must evaluate a Damage Survey Summary Report, discussed in Chapter V, and make a finding that a disaster is eligible within the intent of the law and applicable regulations before ER funds can be made available. A limited amount of funding may be made available under the "Quick Release" method outlined in Chapter III. The role and responsibilities of the FHWA in ER activities under 23 U.S.C. Sections 120 and 125 are:
- Administration of the ER program through coordination and implementation of disaster relief policies and procedures.
- Assistance to State, Federal, or other highway agencies in applying for funds.
- Technical assistance to the State, Federal, or other highway agencies in the review, design, repair, and reconstruction of damaged highway facilities.