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Special Federal-aid Funding

The document was superseded by the Emergency Relief Manual May 31, 2013 (.pdf, 1 .mb)

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Emergency Relief Manual
Chapter II - Eligibility of Damage Repair Work

  1. General

    Roadways and bridges that are on a Federal-aid highway and that are damaged as a direct result of an approved natural disaster or catastrophic failure from an external cause are eligible for ER funds. A Federal-aid highway is defined in title 23 United States Code (23 U.S.C.) section 101 as a "highway eligible for assistance under this chapter other than a highway classified as a local road or rural minor collector." Therefore, any highway that is not eligible for assistance under the provisions of 23 U.S.C. Chapter 1, are not eligible for Federal-aid highway ER funding. As a general rule, items that are eligible for participation as a part of a regular Federal-aid improvement project under title 23 may be eligible under the ER program. Normally, eligible work must be within the right-of-way limits of the damaged Federal-aid highway facility. A minimum $5,000 in repair cost per site (refer to Chapter II, Section C-2, Damage Estimate Under $5,000 per Site) should be used to determine if the extent of repair work at a site is beyond the scope of heavy maintenance. Title 23 Code of Federal Regulations (23 CFR) Part 668, Subpart A includes a $700,000 (Federal share) disaster eligibility threshold to distinguish between heavy maintenance or routine emergency repair and serious damage eligible under the ER program.

    The ER program provides for repair and restoration of highway facilities to pre-disaster conditions. Restoration in kind is therefore the predominate type of repair expected to be accomplished with ER funds. ER funds are not intended to replace other Federal-aid, State, or local funds for new construction to increase capacity, correct non-disaster related deficiencies, or otherwise improve highway facilities.

    Added protective features, such as the relocation or rebuilding of roadways at higher elevation or lengthening or raising bridges, and added facilities not existing prior to the natural disaster or catastrophic failure, such as additional lanes, upgraded surfacing, or structures are commonly referred to as a betterment. Betterments are not generally eligible for ER funding unless justified. The eligibility of betterments is discussed in more detail later in this chapter.

    All repair work falls under two major categories: 1) emergency repairs and 2) permanent repairs. Emergency repairs are those repairs during and immediately following a disaster to restore essential traffic, to minimize the extent of damage, or to protect the remaining facilities. These repairs can begin immediately following a disaster, and prior FHWA approval is not required. Properly documented costs will later be reimbursed once the FHWA Division Administrator makes a finding that the disaster is eligible for ER funding. Permanent repairs are those repairs undertaken (usually after emergency repairs have been completed) to restore the highway to its pre-disaster condition. Permanent repairs must have prior FHWA approval and authorization unless done as part of the emergency repairs.

    It is important to understand the difference in the Federal share for these two categories of repairs. For emergency repairs, the Federal share is 100 percent for repair work done to restore essential traffic, to minimize the extent of damage or to protect the remaining facilities within the first 180 days after the occurrence of the disaster. On the other hand, for permanent repairs, the Federal share depends on the type of Federal-aid highway being repaired. For Interstate highways, the Federal share is 90 percent. For all other Federal-aid highways, the Federal share is 80 percent. The Federal share may be increased in states with a high percentage of Federally owned public lands. A more detailed discussion of emergency versus permanent repair follows later in this chapter. Regardless of whether the work is considered emergency repairs or permanent repairs, the Federal share is 100 percent for work done on roads on Federal lands.

  2. Eligible Items

    Generally, all elements of the highway within its cross section damaged as a direct result of a disaster are eligible for repair under the ER program. This includes, but is not limited to, elements such as pavement, shoulders, slopes and embankments, guardrail, signs and traffic control devices, bridges, culverts, cribbing or other bank control features, bike and pedestrian path, fencing, and retaining walls. When a pedestrian or bicycle trail that is within the right-of-way of a Federal–aid highway is damaged, that damage is eligible for ER funding whether or not the roadway itself is damaged.

    The intent of the ER program is to fund repairs to damaged roadways caused by a natural disaster or catastrophic failure, not repairs to roadways damaged as a result of preexisting and non-disaster related, i.e., inherent deficient conditions. The following is a more detailed discussion of eligibility for various highway elements:

    1. Engineering and Right-of-Way

      Preliminary engineering, right-of-way, and construction engineering directly attributable to repair of eligible damage are eligible for ER reimbursement. Reasonable construction engineering costs are eligible. Maintenance, administration, and overhead costs of State or local governments and of other Federal agencies are not eligible. Costs such as a general overall assessment of damage, general supervision, contract administration other than construction engineering, and project planning and scheduling are considered indirect costs that are eligible for ER funding (see Indirect Costs below).

    2. Indirect Costs

      Section 1212(a) of the Transportation Equity Act for the 21st Century (TEA-21), amended section 302 of 23 U.S.C. to allow State transportation departments to claim reimbursement of indirect costs. State and local government agencies can be reimbursed for indirect costs subject to the provisions of the Office of Management and Budget Circular A-87 (OMB Circular), "Cost Principles for State, Local, and Indian Tribal Governments." Since grantees are not required to claim indirect costs, these procedures only apply to agencies otherwise seeking reimbursement of these costs.

      Federal-aid highway program funds may participate in the indirect costs of State and local governments when the costs are properly allocated to all benefiting cost objectives in accordance with the provisions of the OMB Circular.

      By regulation, 2 CFR 225 Appendix E points out the need to properly account for "extraordinary or distorting expenditures" in order to ensure an equitable distribution of indirect costs to all benefiting cost objectives (Federal and non-Federal awards/activities). Not making allowances for the one-time infusion of significant amounts of Federal dollars into the Federal-aid Highway Program (such as ER funding following a disaster) will likely result in a significant over-recovery of indirect costs that will have to be recovered at a later time.

      The State Transportation Agency should develop an indirect cost rate that equitably allocates indirect costs to ER projects. A separate indirect cost pool and direct program pool or pools, should be established for calculation of an indirect cost rate associated with administering ER activities. A revised Indirect Cost Allocation Plan, should be submitted to the FHWA Division Office for review and approval.

      For additional guidance concerning indirect costs, please refer to FHWA Memorandum "Clarification of Policy on Indirect Costs of State and Local Governments," May 5, 2004 (available online at http://www.fhwa.dot.gov/legsregs/directives/policy/indirectcost.htm).

    3. Detours

      Subject to FHWA review and approval, designated detours and supplemental detours are eligible if such detour routes can be shown to relieve excess traffic directly attributable to the eligible disaster. Such eligible items may include additional traffic control, necessary overlays, and required widening needed to support the excess traffic.

      Temporary connections should be constructed consistent with anticipated volume and type of essential traffic, reasonable speeds, safety, term of use, and costs. However, ER funding does not necessarily extend to restoring pre-disaster levels of service until completion of permanent repairs.

      Where a temporary structure or an alternate existing route is not reasonable or practical as a temporary connection, construction of a temporary ferry service (ferryboat, ferry operation and maintenance, docking and loading facilities) is eligible for ER funds. ER participation in the ferryboat is limited to acquisition costs, less resale value, or to a reasonable rental fee. Although passenger-only ferry services are eligible for ER participation, bus transit services to transport passengers to and from the ferry terminal would not be an eligible ER expense.

      Repair of surface damage to a designated detour caused by traffic that has been detoured from a damaged or impassable Federal-aid highway is eligible for ER funds. This may include roadway surface repairs to provide reasonable traffic service during the period of time the detour is in use as well as surface repairs to the detour route to restore the detour route to pre-disaster condition after detour traffic has been removed. A documented survey of the condition of the proposed designated detour route prior to detouring traffic on it should be helpful in determining the scope of restoration work needed to restore the roadway to its pre-disaster condition. A designated detour, which also could be a non-Federal-aid highway, is defined as the officially signed detour that highway officials have established to reroute traffic around the damaged or impassable portion of a Federal-aid highway.

    4. Traffic Damage

      In general, repair of roadway surfaces due to traffic damages, even if damage is aggravated by saturated subgrade conditions, or by inundation of the roadway, is not eligible for ER funds. There are three exceptions. ER funds may participate in repair of surface damage to:

      1. Any public roads - caused by vehicles making repairs to Federal-aid highways,
      2. Any public roads - caused by traffic using the officially designated detour around a damaged Federal-aid highway, and
      3. Any Federal-aid highways - caused by vehicles responding to a disaster.

      ER participation should be limited to surface damage that has occurred during the first 60 days after a disaster event, unless otherwise approved by the FHWA Division Administrator. Examples of response activities include vehicles involved in repairing other transportation facilities, constructing emergency dikes or performing emergency repairs to dikes, providing essential services such as fire fighting and providing supplies, or removing debris from both public and private property. In exceptional cases, ER participation may be extended to damage occurring up to 6 months after a disaster.

      Identifying surface damage caused by response vehicles can be difficult. In some cases, to aid in the decision, an operational pavement management system might provide data that would confirm the roadway condition prior to the disaster. In most cases, an analysis based on best professional engineering practice will be needed. This analysis should use other appropriate information on the pre-disaster condition of the roadway surface and the special circumstances and vehicle use that caused the damage. Consequently, FHWA Division Office personnel should field-visit all sites involved in this eligibility category and provide a written report of observed conditions.

    5. Overlays

      Where entire sections of roadways are damaged and need to be reconstructed, new surfacing is eligible. In addition, where several intermittent but close-by sites need to have the surfacing repaired, resurfacing of the entire section between and including the sites is eligible.

      Overlays of roadways that, even though submerged during the flooding, have suffered no significant damage as a direct result of the flooding, are not eligible.

    6. Raising Grades

      1. Traditional Flooding

        Temporary work to raise roadway grades to maintain essential traffic service during the flooding is eligible. This is limited to fill material and minimum riprap to protect the temporary fill plus temporary surfacing material. If such roadways have otherwise suffered no significant damage as a direct result of the flood, work to provide a permanent higher grade, e.g., re-compact fill, provide permanent surfacing, provide drainage, guardrail, signing, etc., is not eligible.

        Where roadways have been severely damaged and substantial lengths need to be permanently reconstructed, raising the roadway grade as a part of the permanent reconstruction project to avoid future flooding problems could be eligible, on a case-by-case basis, if determined to be a cost-effective betterment. Again, raising the grade of roadways that, even though submerged during the flooding, have suffered no significant damage as a direct result of the flooding, is not eligible.

      2. Basin Flooding

        A basin is a large depression in the land with no natural drainage outlet such that the water level decreases only due to infiltration or evaporation.

        ER funding is available to raise the grades of critical Federal-aid highways faced with long-term loss of use due to an unprecedented rise in basin water level when basin flooding is considered a natural disaster for the purpose of the ER program, and if the corrective work is restorative rather than preventive in nature.

        Basin flooding is considered an eligible disaster under the ER program if it can be shown that:

        1. The work is restorative rather than preventive. A restorative situation exists if damage was not anticipated, and the flooding is long-term, effectively rendering the roadway useless for an extended period of time.

        2. There has been an unprecedented rise in the basin water level, both in terms of the magnitude of the increase and the time frame in which this increase occurred. To document the unprecedented rise, the State should provide information showing that the water elevation in the basin has reached historically high levels. Further, it should provide information that the rise in the water level occurred during a short period of time such that the rate of increase was much greater than previously experienced. Support information could include, for example, historic water level elevation and rainfall intensity records. If these are not available for the basin, more empirical evidence, such as State and/or local maintenance reports or other information that provides some historical perspective on events and water levels within the basin, could be used.

        3. There is severe damage that results in long-term loss of use of critical Federal-aid routes.

          To document the long-term loss, information should be provided concerning the length of time highway facilities have been closed to traffic and are projected to remain closed to traffic based on the basin water level elevations that have and/or are projected to occur. In the case of major arterials still in service which the State determines must remain open, documentation on long-term loss of use will have to be based on the potential for this loss to occur should anticipated basin water levels be reached. Since the ER program is not of a preventative nature but only provides funding after a disaster has occurred, extreme care is needed in evaluating situations involving potential loss of use to ensure the integrity of the ER program is maintained.

          Only those routes that are critical to restoring traffic service are eligible for grade raises. Factors to take into account in evaluating whether individual routes are critical could include functional classification, provision of essential community services such as access for school, ambulance, fire, and mail vehicles, availability of alternate routes, length of detours, etc. The FHWA Division Office in cooperation with the State, will jointly determine those critical Federal-aid routes eligible for grade raises.

        Basin flooding is handled as a separate disaster under the ER program. Generally, each basin will be evaluated individually based on the water level rise that has occurred within that basin, and the above criteria must be satisfied for that basin before ER funding will be considered. However, special cases may arise where several basins in close proximity, all of which are affecting the same critical Federal-aid routes, may be treated as one event for the purposes of an ER finding that a disaster has occurred.

        The beginning date for incurring ER eligible costs for a basin flooding disaster is not as clear-cut as the typical ER disaster. Basin flooding may represent the culmination of several meteorological events that have caused excessive run-off into the basin and have occurred over an extended period of time. For a typical ER eligible disaster, a State's letter of intent for a basin flooding disaster will serve as the beginning date of ER eligibility for that disaster. If a Division Office believes that use of another beginning date requested by the State can be justified, the damage survey summary report accompanying a State's request for ER funding for a basin flooding disaster must present their recommendation and rationale as to an alternate beginning date, with appropriate available supporting information. In an effort to provide some consistency on this matter, Headquarters must be consulted for use of an alternate date other than the letter of intent date for a basin flooding disaster.

        The Federal share for ER funding provided for basin flooding should be determined in a manner similar to other ER disasters. For a basin flooding disaster, costs to restore essential highway traffic, minimize the extent of damage, or protect the remaining facilities, which are incurred in the first 180 days, starting with the date of the letter of intent for the disaster, receive100 percent Federal share reimbursement. All permanent restoration costs and any costs incurred after the first 180 days are to be reimbursed at the normal pro rata share.

        For eligible basin flooding disasters, ER funding will generally be limited to grade raises of highways and bridges. However, if within the basin, Federal-aid routes have concurrently suffered traditional ER eligible damage, such as culvert washouts or embankment failures, repair of this traditional damage need not be handled as a separate ER disaster but may be included as incidental to the basin flooding disaster.

        Although basin flooding is considered as an ER disaster, it is expected that ER requests be limited to those truly unusual events that meet the criteria outlined above. It is not the intent of the ER program to raise the grades in dips or other low-spots along Federal-aid routes that suffer chronic undulation flooding problems. Rather, these latter situations should more appropriately be corrected using regular Federal-aid funding sources.

    7. Slides

      The removal of rock and mud slides from a Federal-aid highway is eligible when the slide is either associated with the overall natural disaster or by itself qualifies as an eligible natural disaster. In both cases, its correction to provide a safe roadway is eligible. If found cost-effective, ER funds can be used to stabilize slide areas to protect a highway facility from future disaster damage (see further discussion of betterments at the end of this chapter). Such stabilization is considered to be an ER-eligible betterment. Also, relocation of the road rather than slide correction is an eligible betterment if found to be cost-effective and accompanied by proper documentation.

    8. Work on Active Construction Projects

      Most States require the contractor to take all necessary precautions to protect Federal-aid projects from damage, including ER-funded projects still under construction or practically completed, but not yet accepted by the State. Before considering the ER eligibility of work on an active construction project, it must clearly be established that such work is not the responsibility of the contractor. The contract documents may specify the responsibility for damages that are caused by a disaster during the construction stage of a project. Generally, project elements that are in place and accepted by the State prior to the disaster would be eligible for ER funding. In some cases, the contract documents may provide for Federal-aid funding eligibility as an addendum to the contract. Such a provision may allow for reimbursement with other Federal-aid funds, but not necessarily ER funds. Damages to materials stockpiles and contractor equipment are not eligible for ER funding.

    9. Toll Facilities

      ER funds may participate in repair of Federal-aid highway toll facilities when the provisions of section 129 of 23 U.S.C. are met. For example, if a toll facility is on a National Highway System (NHS) route but does not have a section 129 toll agreement in place, then the designation of the route alone does not make this eligible for ER funding. To be eligible for ER funding, the highway must be a Federal-aid highway in accordance with the definition in 23 U.S.C. 101(a)(5) which states that "[t]he term 'Federal-aid highway' means a highway eligible for assistance under this chapter other than a highway classified as a local road or rural minor collector." Since a toll highway that does not have an active section 129 toll agreement in place is not eligible for assistance under title 23, such a roadway cannot receive ER funding. However, if an existing toll facility does not have an executed toll agreement with the FHWA at the time of the disaster, a toll agreement may be executed after the disaster to qualify the facility for repairs. Loss of toll revenue is not eligible for reimbursement.

    10. Traffic Control Devices

      ER funds can participate in the cost of the repair or replacement of traffic control devices including traffic signal systems, directional and informational signs, and railroad-highway crossing warning devices, if the damage and associated repair or replacement costs can be shown to exceed heavy maintenance.

    11. Landscaping

      Replacement of damaged highway landscaping is eligible if it represents incidental cost associated with otherwise eligible damage. For example, following a wildfire, erosion control (including hydroseeding) of damaged areas within the highway right-of-way is an eligible activity. The eligibility of erosion control and hydroseeding outside the right-of-way should be considered on a case-by-case basis. ER participation in erosion control outside the right-of-way may be economically justified if an analysis demonstrates that the cost of such repairs will result in a net savings to the ER program should a future disaster affect the site. Additional discussion of eligible repairs outside the highway right-of-way can be found in item 16 below.

    12. Roadside Appurtenances

      The repair or necessary replacement of damaged or destroyed guardrail, bridge rail, impact attenuators, right-of-way fences, etc., is eligible if such damage is extensive and not limited to a few isolated cases under each category.

    13. Timber and Debris Removal

      Only debris that is deposited as a direct result of a disaster is eligible for ER funding. Any debris that was not deposited as a direct result of a disaster, such as debris collected and placed by the roadway from an adjacent property-owner, is not eligible for ER funding. However, such debris may be eligible under FEMA's Public Assistance Program. Debris removal is considered emergency repair only to the extent that it is needed to minimize damage, protect facilities, or restore essential traffic. Some Divisions provide guidance on debris removal to facilitate distinguishing between debris that is deposited by the event (ER-eligible debris) and debris that may have been added to the roadside following initial debris pickup (FEMA-eligible debris). Divisions are encouraged to work with FEMA to establish such guidance prior to an event.

      The Federal share for the emergency repair portion of debris removal can be at 100 percent within the first 180 days of the event. Typically, the limits of debris removal at 100 percent within the cross-section should be to the outside edge of the shoulders and can include the removal of debris that is considered to be a safety hazard (fixed objects) within the limits of the clear zone. Debris removal outside these limits during the first 180 days and beyond is at the normal pro rata share for the affected Federal-aid highway.

      The cost of stockpiling and disposing of debris at adjacent sites, as well as the cost of removing marketable timber from the acceptable clearing limits and transporting to adjacent stockpile sites, is eligible for ER participation. However, hauling costs to sawmills or to other locations beyond the general proximity of the damaged highway are not eligible. The clearing limits for debris, including downed timber, normally, should include the traveled way, cut and fill slopes and any additional clearing required to assure the full functioning of the pavement, drainage ditches, and structures, including the clear zone for safety. Clearing of the remainder of the full right-of-way is the responsibility of the agency having jurisdiction. Cut sections should be cleared to the safe distance that will assure that no debris will cause roadway slope erosion or will roll down to clog ditches or endanger traffic on the pavements and shoulders. The timber and debris removal operations should conform to the standards of safety for that particular route.

      In the case of normal medians, the necessary cleanup of downed timber and debris is eligible. Where directional roadways or "divided highways" are widely separated because of terrain or for aesthetic reasons, the cleanup of the entire median would not be eligible. Each directional roadway should be treated as a separate roadway, including cut and fill slopes, and handled as described in the above paragraph.

      Snow and ice removal are not eligible as debris removal.

    14. Transportation System Management (TSM) Strategies

      TSM strategies to monitor and control traffic and to manage transportation on streets and highways during and immediately following a disaster to restore traffic are eligible for ER funding. The elements of the TSM plan may include highway advisory radio, closed circuit television, video image process surveillance, installation of changeable message signs, a public awareness program, etc.

      ER funds are eligible to provide emergency traffic management services by the police during and immediately following a disaster under the following conditions: Such traffic services by the police must 1) directly relate to the disaster; and 2) represent added costs above and beyond costs related to normal, day-to-day responsibilities, i.e., overtime costs or additional shift costs. The added costs should be itemized and documented to support any use of ER funds for this activity. Lost ticket revenue due to redirection of traffic enforcement police services resulting from an emergency is not an eligible ER expense.

    15. Projects & Project Features Resulting from the NEPA Process

      An ER repair project developed in accordance with the National Environmental Policy Act (NEPA) process may incorporate added features to mitigate environmental impacts to such resources or sites as wetlands, noise-sensitive land uses, endangered species, etc. These added mitigation features, by themselves, are not considered "betterments" for the purposes of the ER program since they do not protect the highway from future disasters or change the function or character of the highway facility from what existed prior to the disaster or catastrophic failure. This is illustrated by the following example:

      Environmental Mitigation Feature Eligible for ER Funding

      In repairing a damaged bridge, some of the construction activity will take place in or closely adjacent to the existing stream bed. This particular stream serves as the spawning grounds for an endangered species of fish. The contractor would be required to use special construction techniques that minimize disruption of the streambed, and special pooling areas for the fish will need to be built in the stream adjacent to the bridge. The special construction techniques and the added stream features are necessary mitigation measures to implement the repair project, and they would be eligible for ER funding.

      Eligibility determinations for environmental mitigation measures can apply a general rule-of-thumb: if the mitigation measure is related to an ER-eligible betterment, the mitigation measure is also eligible. For example, if a roadway grade raise to protect a facility from future flooding has been economically justified for ER funding, then a mitigation feature associated with the grade raise, such as possible wetland restoration, would qualify for ER funding. Conversely, if a "betterment" is not justified for ER funding, then any added mitigation features related to the betterment would likewise not be eligible for ER funding but instead should be funded from regular apportioned Federal-aid highway funds.

      For ER replacement projects, the NEPA decision process can also determine project location, potentially including a completely new location. Further, the mere fact that something old is being replaced with something new, or that the new facility is built to current design standards, does not restrict ER funding. In general, if it has been determined that ER funding may fully participate in the replacement project (see the various scenarios discussed on page 31), and if the replacement project is of comparable function and character to what existed prior to the disaster or catastrophic failure, then ER funding may fully participate in the replacement project.

      As noted, the NEPA process may well determine the location of the replacement project. In the case where it is neither practical nor feasible to replace a destroyed facility in-kind at its existing location, the alternative facility developed in conformance with the NEPA process is eligible for ER funding, as illustrated by this example:

      Replacement Facility on New Location Eligible for ER Funding

      A roadway was permanently submerged by water backing up behind a naturally created dam, and replacement of the inundated highway facility at its existing location is neither practical nor feasible. Through the NEPA process, various alternative locations for a replacement facility were evaluated. A recommended alternative emerged from the process. This recommended alternative was of comparable function and character to the damaged facility (i.e., same number of lanes, same degree of access control), and, accordingly, was eligible for ER funding.

      The NEPA process may also require that a replacement project include additional project features to mitigate impacts of the project. These added mitigation features are eligible for ER funding if the replacement project itself is eligible for ER funding. An example follows:

      Environmental Mitigation Feature Added to Replacement Facility Eligible for ER Funding

      A replacement facility was predicted to result in increased noise impacts on adjacent residential property, and the NEPA noise impact evaluation determined that noise walls must be included in the final project. Although the damaged facility did not have existing noise walls, this added feature, as an environmental commitment, became an integral part of the replacement project in compliance with NEPA and FHWA's Title 23 highway noise impact assessment and mitigation requirements. Further, since a noise wall would not protect the highway from future disaster damage or change the function or character of the highway facility, it did not have to be justified as a "betterment" under the ER program. As a result, this noise wall was eligible for ER funding.

      The above discussion on replacement facilities and use of ER funding, in general, reflects those situations where ER funding is not capped. However, if replacement facilities are being advanced where ER funding participation is capped, this same limit on ER funding would apply to the proposed replacement facility including any environmental mitigation features required as a result of developing the replacement facility in accordance with NEPA.

    16. Outside of The Highway Right-of-Way

      Generally, damage repair activities outside the highway-right-of-way are not eligible for ER funding. The exception would be work associated with stream channels adjacent to a highway. Normally, projects associated with channel work (riprap, bank protection, etc.) that require right-of -way purchases and/or easements outside the right-of-way are not eligible. The fact that the agency responsible for channel maintenance does not have funds to finance the repair and protection work is not an acceptable justification for ER fund assistance. In situations involving requests for participation in erosion control and bank protection outside the highway-right-of way, the following items must be verified by the highway agency to obtain eligibility:

      • The work is directly related to protection of the highway facility;
      • The work is not eligible for funds from another agency;
      • No other agency has the responsibility for such work;
      • The applicant agrees to accept the future maintenance of all work performed.

      When work of this type is proposed, the project documents should include a letter from the State agency showing how all of the above four items have been or will be satisfied.

    17. Administrative Expenses

      1. Regular and Extra Employees

        Regular salaries and overtime salaries and wages of all regular and extra employees of the applicant directly engaged in the performance of work on ER projects are eligible for reimbursement. Timekeeping procedures should facilitate allocating employees' time to projects, and/or other activities, each day on an hourly basis. A timekeeping document, such as time slip, time and attendance report, or time book, must be available for examination by audit personnel to support direct labor costs claimed on any ER project. A responsible employee having knowledge that the time distribution is accurately reported should sign the document.

      2. Payroll Additives

        Usually referred to as labor surcharge, a set percentage over and above the total direct labor costs charged to a project is eligible for ER participation. This surcharge covers costs of various types of leave allowances, industrial accident insurance coverage, and other employee benefits. The allowable percentage rates will normally vary from year to year. Also, employee benefits allowed by one applicant may differ widely from those allowed by another. Therefore, the records used in developing percentage rates should be preserved under suitable control conditions to assure availability for examination when requested. The acceptable percentage rate may be applied only to direct labor costs.

    18. Supplies and Materials

      Engineering and general office supplies of an expendable nature, charged from stock or purchased for a particular project, and properly identified on the stock-issue slip or vendor's invoice with the project charged, are considered eligible for participation. In the case of issues from stock, verifiable evidence to assure validity of the prices charged must be available for examination if requested. Many classes of materials required for ER projects are purchased for a particular project. In such cases, the costs are eligible for participation, provided the project on which the materials are used is properly identified on the supplier's invoice. The cost of materials issued from stock warehouses or agency-produced or purchased stockpiles for use on an ER project must be properly supported. The records supporting the prices charged should be available for audit when requested. Also, a responsible employee having knowledge that the supplies or materials have actually been incorporated into the project should sign the source document (stock issue slip or supplier's invoice).

    19. Equipment

      The use of applicant-owned equipment or equipment owned by, and rented from, another public entity, or rented equipment from commercial sources, which is necessary for the prosecution of work properly authorized under an ER project, is eligible for participation. Such use should be charged on a per hour, per shift, per mile, etc., basis. The rental cost of such equipment may include such items as normal operation (gasoline, fuel oil, lubricants, antifreeze, etc.); repair (major and minor), etc.; and depreciation or replacement expenses. Costs in excess of normal depreciation to cover the increased costs of replacement equipment are to be excluded from equipment rental rates applied to ER projects. The rates per unit for applicant-owned equipment must be properly supported by verifiable analyses covering specific sizes and types of equipment charged. Lacking such documented cost analyses by the applicant, ER funds will participate in the equipment rental costs on the basis of rates developed by the State DOT and approved by the Division Administrator. Each applicant should use either the FHWA approved State DOT rates or its own established rates, but not a combination of both. The required document action to support equipment rental charges is an acceptable time and equipment use report, signed by a responsible employee signifying actual use of the equipment on the project designated.

      Reasonable costs of equipment rented from commercial sources for use on ER projects are eligible for ER participation. The extent of "reasonableness" will be determined by the Division Administrator as consistent with the current edition of the Associated Equipment Distributors Manual or rates charged by a recognized rental agency. A commercial invoice, signed by a responsible employee signifying actual use of the equipment on the project designated, is required documentation to support equipment rental charges. The supporting document must indicate the period of use applicable to an identified ER project. The applicant may also claim operating costs provided that the rental costs do not include operating cost. Equipment "move in" and "move out" costs may also be considered eligible.

    20. Catastrophic Failure from an External Cause

      A catastrophic failure from an external cause is an eligible ER expense. A catastrophic failure from an external cause is defined as the sudden failure of a major element or segment of the highway system due to an external cause. The failure must not be primarily attributable to gradual and progressive deterioration or lack of proper maintenance. The closure of a facility because of imminent danger of collapse is not in itself a sudden failure.

      Examples of such disasters include a barge striking a bridge pier causing the sudden collapse of the structure, a truck crash resulting in a fire that damages the roadway, and acts of terrorism that result in structural damage to the highway facility.

      Prompt and diligent efforts shall be made by the State to recover repair costs from the legally responsible parties to reduce the project costs particularly where catastrophic damages are caused by ships, barge tows, highway vehicles, or vehicles with illegal loads or where damage is increased by improperly controlled objects or events. [see 23 CFR 668.105(f)]

      Any compensation for damages or insurance proceeds including interest recovered by the State or political subdivision or by a toll authority for repair of the highway facility must be used upon receipt to reduce ER fund liability on the project. [see 23 CFR 668.105(e)]

      Funding is to be credited to the ER project for which compensation is recovered. FHWA's share of the recovery amount should be proportionate to the ER funding percentage that participated in the project. Any resulting unneeded balance of ER funding on that project will then be withdrawn from the State and made available for other nationwide ER needs.

  3. Ineligible Items

    ER funds are not intended to cover all damage repair costs. Only that repair work which exceeds heavy maintenance, is extraordinary, and will restore pre-disaster service is eligible. Incidental costs resulting from a disaster, such as project delay costs or lost toll revenues, are not an eligible ER expense. A more detailed discussion of repair activities that are not eligible for ER funds follows.

    1. Heavy Maintenance

      When a disaster has caused damage requiring heavy maintenance or work frequently performed by the applicant's maintenance crews, repairs are not eligible. Heavy maintenance is usually performed by highway agencies to repair damage normally expected from seasonal and occasionally unusual natural conditions or occurrences. It includes work at a site required as a direct result of a disaster that can reasonably be accommodated by a State or local road authority's maintenance, emergency, or contingency program. Examples include work necessary to repair minor damage due to eroded shoulders, filled ditches and culverts, pavement settlement, mud and debris deposits, slope sloughing, and slip-outs in cut or fill slopes.

      It is not the intent of the ER program to relieve an agency of its maintenance responsibility simply because a storm of unusual character and extent causes serious damage to roads and to public and private property.

    2. Damage Estimate under $5,000 per Site

      A minimum $5,000 in repair cost per site is used as a guideline for a site to be ER eligible. This minimum guideline dollar value is suggested for national consistency but, if circumstances warrant and the State has requested a different figure, the Division Administrator may allow a different minimum amount. This dollar threshold criterion is used to distinguish repairs that are maintenance activities from an ER program responsibility. Generally, a site is an individual location where damage has occurred. However, a site could include several adjoining locations where similar damage, related to the same cause, has occurred. For example, where flooding waters in a drainage course that runs along or continually crosses under a highway has caused damage at several locations within a reasonable distance of each other, it would be acceptable to package these together as a single site. Another exception could involve damage to traffic signs which has occurred at several locations on an area wide basis. In this case it would be acceptable to group these locations by route or jurisdiction, with the accumulated amount considered a site. Overall, aggregating locations together to form a site should be done with care, bearing in mind that the intent of the ER program is not to pay for highway damage repairs that a transportation agency would normally perform as heavy maintenance. For this reason, grouping damages to form a site based solely on a political subdivision (i.e., county or city boundaries) should not be accepted.

    3. Traffic Damage

      Repair of surface damage caused by traffic, whether or not the damage was aggravated by saturated subgrade or inundation, except as noted under Eligible Item B4 above, is not eligible for ER funds.

    4. Frost Heaving

      Damage to roadway subbase and base materials due to inundation or freezing and resultant frost heaves, even if the roadbed has been saturated by the floodwaters, is not eligible for repair with ER funds. Surface roadway damage such as potholes resulting from such conditions are not eligible for ER funding.

    5. Applicant-Owned Material

      Replenishment or replacement of destroyed or damaged stockpiles of materials for both maintenance and construction that have not been incorporated into the highway is not eligible under the ER program. Repair of damage to or replacement of an applicant's or contractor's facilities, such as maintenance sheds or equipment, is not eligible for ER funds, for example:

      The applicant is in the process of widening a bridge as a maintenance betterment project

      Precast concrete beams have been delivered to the job site but have not been incorporated into the structure. Rapid runoff of floodwaters destroys the existing bridge and the precast beams. Cost of repair of the existing bridge is eligible. However, since the precast beams were not a part of the existing bridge at the time of its destruction, cost of replacing the stockpiled beams is not eligible.

    6. Erosion Damage

      Repair of minor erosion damage due primarily or wholly to rainfall and resulting from surface saturation of slopes and embankments, rather than from floodwaters, is not eligible. Even though the work may be a little more extensive than usual, it is considered heavy maintenance.

    7. Prior Scheduled Work

      Permanent repair or replacement of deficient bridges scheduled for replacement with other funds damaged during a disaster is not eligible for ER funds, and should be funded as originally intended. The ER funds may participate in emergency repairs to restore essential traffic in such cases. A project is considered scheduled if the "construction phase" of a replacement structure is included in the FHWA approved Statewide Transportation Improvement Program (STIP). As used in this section, the term "construction phase" refers to the physical construction separate from any other identified phases in the STIP such as planning, design, or right-of-way phases.

      Inclusion of bridge replacement work in a city or local agency capital improvement plan is viewed by FHWA as prior scheduled work and therefore is not eligible for ER funding. In this case, the city or local agency is that agency responsible for capital improvement program funding decisions for that jurisdiction and such a plan is officially recognized for that purpose.

    8. Mine/Underground Subsidence

      Where a highway passes over an underground mine and a section of highway is closed down due to actual mine subsidence, repair work on the section of highway exhibiting physical damage due to subsidence is eligible for ER funding. However, repair work to prevent additional physical damage to adjacent sections of the highway over the mine is not eligible. Further, in situations where in-bed stream mining is found to be contributing to erosion (where a highway passes over or is adjacent to the stream), associated repair work is considered ineligible.

    9. Snow and/or Ice Removal

      Snow and/or ice removal is not eligible for ER funding as snow and/or ice is viewed as a relatively short term event not causing physical damage to a highway. Although ER funds may not be used for snow removal, the FEMA may allow funding available through its assistance program to pay for a limited amount of snow clearance on Federal-aid highways during extreme snowfalls.

    10. Emergency/Medical Transportation Services

      Emergency medical transportation services, such as ambulances or helicopters, are not eligible for ER funding. Activities associated with first responders to a disaster such as emergency police services, firefighting, emergency medical, and any other rescue-related activities including the use of divers for rescue operations, are not an eligible ER activity.

    11. Mitigation/Preventive Work Prior to Disaster

      Preventive work to avoid damage to a highway facility in anticipation of a disaster is not eligible for ER funding. For example, work to prevent scour at bridge sites in anticipation of extremely high rainfall and potential flooding is not eligible for ER funding.

      Costs associated with evacuation activities prior to a disaster such as traffic control and police and traffic management activities associated with evacuation of an area prior to the actual occurrence of an event, such as a hurricane, are not eligible for ER funding.

    12. Catastrophic Failure from Internal Cause

      Not all catastrophic failures are ER eligible. An ER eligible catastrophic failure must be a sudden failure of a major element, or segment of the highway, due to an external cause. ER funds do not apply to catastrophic failures from an internal cause or source, e.g., gradual and progressive deterioration or lack of proper maintenance. Closure of a facility because of imminent danger of collapse is not, in itself, a sudden failure and therefore is not eligible for ER funding.

    13. Radiological Contamination

      Acts of terrorism may result in radiological contamination of a Federal-aid highway facility where no associated structural damage has occurred. Under such a scenario, radiological contamination may render the bridge and/or the surrounding area temporarily or even permanently inaccessible. ER funds cannot be used solely for the purpose of radiological decontamination of a highway infrastructure where there is no incidental structural damage.

      If the event resulted in structural damages that met the minimum ER event threshold, then decontamination associated with the repair or replacement of the damaged facility could be considered an eligible ER expense.

    14. Transit Operation and Maintenance Costs

      The participation of ER funds for the operation of substitute emergency transit services is not permitted under the current ER statute. ER funds may participate in the operation and maintenance costs of ferryboats providing temporary substitute highway traffic service around a damaged highway facility (see Chapter II, Section B-3, Detours).

  4. Emergency Repairs Vs. Permanent Repairs

    Both emergency repairs and permanent repairs are eligible for ER funds. Emergency repairs are repairs made during and immediately following a disaster to restore essential traffic, to minimize the extent of damage, or to protect the remaining facilities. Permanent repairs are repairs undertaken, normally after emergency repairs have been completed, to restore the highway to its pre-disaster condition. It is important to distinguish between emergency and permanent repairs because emergency repairs accomplished during the first 180 days after the occurrence of the disaster are funded at a higher Federal share.

    1. Emergency Repairs

      1. General

        Emergency repairs are repairs made during and immediately following a disaster to restore essential traffic, to minimize the extent of damage, or to protect the remaining facilities [see 23 U.S.C. 120(e)]. The State and local transportation agencies are empowered to begin emergency repairs immediately without prior FHWA authorization. Properly documented costs will later be reimbursed once the FHWA Division Administrator makes a finding that the disaster is eligible for ER funding. Typical examples of emergency repairs are:

        • Regrading of roadway surfaces, roadway fills, and embankments
        • Debris removal
        • Erection and removal of barricades and detour signs, flagging and pilot cars during the emergency period, and placement of riprap around piers and bridge abutments to relieve severe on-going scour action
        • Dynamiting and other removal of drift piling up on bridges, including rental of boats
        • Placement of riprap on the downstream slopes of approach fills to prevent scour during overtopping of the fill
        • Removal of slides
        • Construction of temporary roadway connections (detours)
        • Erection of temporary detour bridges
        • Replacement of approach fills
        • Use of ferryboats to provide temporary substitute highway traffic service

        Any such work may subsequently be included in an ER program of projects, which, when submitted for approval, should include both emergency repairs and any permanent restoration work performed coincidentally with the emergency repairs.

      2. Intent of Emergency Repairs

        The intent of emergency repairs is to permit the immediate performance of work to restore essential traffic that cannot wait for a finding of eligibility and programming of a project. Emergency repair work should be accomplished in a manner that will reduce additional work required for permanent repairs.

        The Division Administrator's concurrence on the need for emergency work conveyed in the Division's acknowledgment to the State's letter of intent does not authorize the agency to proceed with permanent restoration work on damaged highways unless the restoration is more economical or practical to perform as an associated part of the emergency operation. This incidental restoration can be performed simultaneously with the emergency work provided it is properly covered in the damage inspection report. If such work has been accomplished prior to the site damage review, retroactive approval may be given when circumstances warrant.

        There may be situations where immediate completion of the permanent work is the most economical and feasible operation to quickly restore essential traffic. An example would be the washout of a bridge and its approaches where construction of a temporary detour would be both costly and time-consuming, but the agency involved has precast concrete girders readily available that could be used at the site. In such a case immediate construction of the permanent structure and approaches could be accomplished at the discretion of the State, and approval by FHWA of the permanent repair would be handled as an emergency repair. However, such permanent repair work is still to be reimbursed at the normal pro rata share for that facility even if the permanent repair is performed as part of the emergency repair work.

        The use of ER funds for emergency repairs to roadways is normally limited to the amount necessary to bring the washed-out fills and slip-outs back to grade with a gravel surface. In most cases these emergency repairs to roadways are not constructed to true line and grade. They usually follow the terrain and are constructed in the easiest and most expedient manner. The repair to the road, nevertheless, should be sufficient to permit traffic to travel over it safely. Where routes handle heavy traffic, an appropriate type of bituminous surface as a temporary repair will be eligible for short sections of roadway.

        The placement of the final high-type pavement is normally considered permanent repair. If performed as emergency work, such paving must have FHWA concurrence to be eligible for Federal participation. A determination of whether or not the work should be performed as emergency or permanent should take into account traffic characteristics, remoteness of the site, traffic control requirements, and socioeconomic factors.

      3. Federal Share (180-Day Period)

        Emergency repairs accomplished within the first 180 days of the disaster occurrence to restore essential traffic, minimize the extent of damage, or protect the remaining facilities may be reimbursed at 100 percent Federal share. The 180-day time period for 100 percent Federal share is established by 23 U.S.C. 120(e), and the FHWA has no authority to change the time period. It is important to give careful consideration in deciding the beginning of the 180-day time period. The 180-day time period is intended to start on the initial day of the disaster occurrence within a particular State. The starting date of a disaster is to be applied on a statewide basis.

        As previously noted in Chapter I, Section B, Program Overview, 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.

    2. Permanent Repairs

      1. General

        Permanent restoration work is not eligible if performed prior to authorization by the FHWA, unless it is determined to be more economical or practical to perform such work as an associated part of the emergency repairs; documentation of this determination is required. Permanent repairs should be administered using normal Federal-aid contracting procedures although use of streamlined procedures is encouraged (e.g., A + B bidding, reduced advertising period, etc.). Such repairs may involve one or more of the following categories of work.

      2. Restoration-in-Kind

        The ER program provides for the repair and restoration of highway facilities to pre-disaster conditions. Restoration in kind is therefore the predominant type of repair accomplished with ER funds. Any additional protective features or changes to the function or character from that of the pre-disaster facility are generally not eligible for ER funding unless justified on the basis of economy of construction, prevention of future recurring damage, or technical feasibility.

      3. Replacement-in-Kind

        1. Existing Location

          Where extensive damage has occurred, ER funds may be used for replacement-in-kind as the proper solution. If a facility has been damaged to the extent that restoration to its pre-disaster condition is not technically or economically feasible, a replacement facility is appropriate. Replacement facilities should be constructed to meet current design standards.

          ER participation in a replacement roadway will be limited to the costs of a roadway built to current design standards, and of comparable capacity, (e.g., number of lanes), and character, (e.g., surfacing type, access control, rural/urban section), of the destroyed facility. ER reimbursement for a replacement bridge will be the cost of a new bridge built to current design standards for the type and volume of traffic the bridge will carry during its design life.

          ER participation may be prorated. Where the replacement project exceeds ER eligibility limitations, the ER share of project cost will be limited to the estimated cost of the ER eligible replacement roadway or bridge.

        2. New Location

          Where relocation is necessary, each case must be considered carefully to determine what part of the relocation is justified for construction with the participation of ER funds. This matter is discussed further in the sections covering environmental considerations in chapter VI and betterments in this chapter.

      4. Deficient Bridges

        This category includes structural conditions only. It does not consider waterway opening, functional obsolescence or serviceability, etc. Permanent repair of a structurally deficient damaged bridge is eligible for ER funding provided a replacement bridge is not under construction or the bridge is not scheduled for replacement (in the FHWA approved STIP) with other Federal funds. Inclusion of bridge replacement work in a city or local agency capital improvement plan is viewed by FHWA as prior scheduled work and therefore is not eligible for ER funding (see Chapter II, Section C-7, Prior Scheduled Work). The intent is to ensure that ER funds do not replace other Federal funds that would have otherwise been used to construct a replacement facility. The following represent two common situations:

        1. Bridge is damaged but is repairable.

          ER funds may participate in:

          • Reasonable emergency repair to restore travel
          • Permanent repair of disaster damage if bridge will be structurally safe upon completion of disaster damage repair (meaning that repair of disaster damage corrects structural deficiency)
          • Permanent repair of disaster damage if other funds are used to simultaneously correct the structural deficiencies (meaning that repair of disaster damage will not correct structural deficiency)
          • No permanent repair if bridge is scheduled for replacement
        2. Bridge is destroyed or repair is not feasible.

          ER funds may participate in:

          • Reasonable emergency repairs to restore traffic
          • New comparable replacement structure to current design standards and to accommodate design-year traffic volume if bridge is not scheduled for replacement
          • No permanent repair if bridge is scheduled for replacement in the current FHWA approved STIP or local capital improvement plan or a replacement bridge is under construction.
      5. Replacement of Culverts

        Upgrading of culverts to current standards must be specifically related to eligible disaster damage repair.

        • Damaged culverts are eligible for repair in kind.
        • Destroyed culverts are eligible for replacement to current standards.
        • Wholesale upgrading of deficient culverts on an area or route basis is not eligible. Eliminating a recurring annual maintenance problem with ER funds, based on the occurrence of a disaster, is not normally within the scope of the ER program.
      6. Betterments:

        Betterments, for the purposes of the ER program, are defined as (i) added protective features, such as the rebuilding of roadways at a higher elevation or the lengthening of bridges, or (ii) changes which modify the function or character of a highway facility from what existed prior to the disaster or catastrophic failure, such as additional lanes or added access control.

        1. Betterments Involving Added Protective Features:

          This category of betterments involves adding features to highway facilities that help protect these facilities from possible future damage from ER-eligible disasters or catastrophic failures. Examples include:

          • Raising roadway grades
          • Relocating roadways to higher ground or away from slide prone areas
          • Stabilizing slide areas
          • Stabilizing slopes
          • Installing riprap
          • Lengthening or raising bridges to increase waterway openings
          • Deepening channels
          • Increasing the size or number of drainage structures
          • Replacing culverts with bridges
          • Installing seismic retrofits on bridges
          • Adding scour protection at bridges
          • Adding spur dikes

          If a betterment involving an added protective feature is included in an ER repair project, the betterment may be considered eligible for ER funding if it can be economically justified based on an analysis of its cost versus projected savings in costs to the ER program should future ER-eligible disasters occur within the normal design year for the basic repair work. This cost/benefit analysis focuses solely on benefits resulting from estimated savings in future recurring repair costs under the ER program. The analysis does not include other factors typically included in highway benefit/cost evaluations, such as traffic delays costs, added user costs, motorist safety, economic impacts, etc.

          The following example illustrates this type of betterment and the economic analysis that would be applied in determining whether the betterment would be eligible for ER funding.

          Added Feature Justified for ER Funding

          Floodwaters have damaged a 1,400-foot section of roadway with both surfacing and fill material being washed away. The site can be repaired for $150,000. However, this section of roadway was similarly damaged during an ER event several years ago, and it appears likely to be damaged again in the future. The State proposes to add additional culverts to increase the drainage capacity under the roadway, thus substantially reducing the chances that this type of flooding in the future will damage this section of roadway. Adding these culverts is estimated to increase the cost of the repair project by an additional $100,000. Spending an additional $100,000 for the added features could save one or more future ER repair costs that could easily exceed the cost of the added features. In this case, the added features are economically justified because of the potential to save future costs under the ER program, and, consequently, the added features are eligible for ER funding.

          In the previous example, the betterment is considered eligible for ER funding. However, in many instances betterments will fail to meet the economic justification test for use of ER funding. If ER funding cannot be provided for a betterment, this does not mean that the betterment should necessarily be excluded from the ER repair project. If a betterment provides considerable benefit when other factors are considered, the State is encouraged to use regular apportioned Federal-aid highway funds, as appropriate, to fund a betterment. This point can be illustrated by this example:

          Added Feature Not Justified for ER Funding

          Flooding waters covered a 1,000-foot section of a heavily traveled highway. Traffic must be detoured to other routes, causing extra travel and considerable delays. The highway was unusable for 3 weeks until the floodwaters receded. At that time, it was found that the flooding caused only limited damage to the highway, which can be repaired for $75,000. However, the extra travel distances and delays during the 3-week period the highway was closed imposed an estimated $1,100,000 in additional costs on the motorists and community. The State proposed to raise the grade of the highway by 5 feet, thus placing the roadway at an elevation where a similar flood would not inundate the roadway. The estimated cost of raising the grade for this section of highway was $950,000. Although the cost of the grade raise could easily pay for itself in terms of potential savings in travel and delay costs to the motorists and community should another similar flood occur, the cost is substantially greater than the potential repair costs that would be eligible under the ER program. In this case, the added feature would not be considered to be economically justified for ER funding. Instead, the more appropriate Federal highway funding source would be regular apportioned Federal-aid highway funding.

          There are limited situations where added features require no further economic justification as betterments. One situation applies to reasonable grade raises associated with basin flooding. Another involves repairs of features, such as bridges, that may require permits or approvals from other entities. If these other entities routinely require added features as standard industry practice on other projects of similar nature to the ER project, then these added features can be included on the ER project without further justification as betterments.

        2. Betterments Involving Changes to the Function or Character of the Highway:

          This category of betterments involves making changes to the function or character of the facility from what existed prior to the disaster or catastrophic failure. Examples include:

          • Adding lanes
          • Upgrading surfaces, such as from gravel to paved
          • Improving access control
          • Adding grade separations
          • Changing from rural to urban cross-section

          In general, betterments that change the function or character of a facility do not qualify for ER funding. One exception established under 23 U.S.C. 120(e) allows ER funding participation in replacement bridge facilities to accommodate traffic volumes over the design life of the bridge, thus potentially allowing ER funding for added lanes on bridges. This type of betterment, and eligibility of ER funding, is illustrated in the following examples:

          Change in Function/Character Eligible for ER Funding

          A 2-lane bridge, on a heavily traveled urban route, is destroyed by floodwaters. The State proposes to build a replacement bridge at the same site. The design year traffic (20 year traffic projection) for the bridge shows that a 4-lane facility will be needed to accommodate this future traffic. Accordingly, the State proposes that the new bridge have 4 lanes, a significant improvement in capacity above the destroyed bridge. As a result of the statutory provision in 23 U.S.C. 120(e), the added lanes on the new bridge are eligible for ER funding.

          Change in Function/Character Not Eligible for ER Funding

          A 2,000-foot section of a 2-lane heavily traveled urban route was seriously damaged by floodwaters. The State proposed that repair of the section include widening to four lanes to accommodate future traffic needs since at some future time the State will need to widen the route anyway. This added capacity is viewed as changing the function and character of the route, and the costs of the additional lanes are not eligible for ER funding. However, since widening the route at the same time the repair work is done may be in the public interest by providing some savings in costs and by avoiding later disruptions to traffic, a State could decide to use its regular apportioned Federal-aid highway funds for the added costs of the extra lanes.

          Repair Activities That Are Not Betterments:

          The dictionary defines the term betterment as an improvement that adds value. The matter of adding value is subject to wide interpretation. As noted in the previous discussion, for the purposes of the ER program, the term betterment applies specifically to added protective features or changes made to the function or character of the facility. With this in mind, there are certain classes of ER funded repair activities that are not considered betterments.

          These are:

          • Replacement of older features or facilities with new ones--The mere fact that a damaged highway feature or facility is replaced with something new that may extend the service life of the facility, in and of itself is not a betterment.
          • Incorporation of current design standards--Repaired facilities may be built to current design standards, which could result in improved or added features that do not change the function or character of the facility. For example, a repaired length of roadway may have wider lanes or shoulders and additional roadside safety hardware that result from following current design standards. These features are not betterments.
          • Replacement in-kind on existing location not practical or feasible -- On rare occasions, it is neither practical nor feasible to replace a damaged highway facility in-kind on its existing location. An alternative selected through the NEPA process, if of comparable function and character to the destroyed facility, is eligible for ER funding. This is not a betterment. (See the following discussion in this chapter on replacement facilities for more information on this special situation.)
          • Additional required features resulting from the NEPA process -- ER projects may include additional required features as an outcome of the project being developed in accordance with the NEPA process. These features are eligible for ER funding. These are not betterments.

          Replacement Facilities and Betterments:

          Restoration in-kind is the predominant form of repair activity under the ER program. However, at times restoration is not possible, and replacement is necessary, or a State may choose to replace a facility rather than repairing it. The extent of ER participation varies depending on the circumstances involved. Various scenarios are discussed below.

          In a first replacement scenario, a highway facility was seriously damaged; however, inspection verified that repair and restoration of the existing facility was possible. However, the State preferred to replace the existing facility with a new or alternative facility. In this case, ER funding limited to the ER program share of the estimated cost to repair the existing facility can be applied to a new or alternative replacement facility. Regular apportioned Federal-aid highway funds may be used to fund project costs above the amount eligible for ER funding.

          In a second replacement scenario, a highway facility was seriously damaged, and inspection confirmed that it was not repairable. The State decided to replace the existing facility with an in-kind replacement facility (of comparable function and character to the damaged facility) on the existing location. In this case, ER funding may participate in the total cost of the replacement facility.

          In a third replacement scenario, inspections confirmed that a seriously damaged highway was not repairable. Although building a replacement facility at the location of the existing facility was found to be feasible, the State chose to replace the existing facility with a new facility, of comparable function and character, on a new location. In this case, ER funding for the new facility is limited (capped) to the ER program share of the estimated cost to replace the facility in-kind at its existing location. In this scenario, it may be possible to utilize regular apportioned Federal-aid highway funds to fund project costs above the amount eligible for ER funding.

          In a fourth replacement scenario, inspection has again confirmed that a seriously damaged highway is not repairable. Additionally, because of the unique circumstances involved, in-kind replacement at the existing location was determined neither practical nor feasible. Consequently, an alternative replacement facility on a new location was developed through the NEPA process. Provided this alternative is of comparable function and character to the destroyed facility, it is eligible for ER funding. This outcome rarely arises under the ER program. In almost all cases, it is practical or feasible to replace a damaged facility in-kind on its existing location. Casual or offhand application of the practicability and feasibility criteria to support any determination to replace on a new location is not acceptable; rather they must be applied as very rigorous tests.

          For the first and third replacement scenarios discussed above, it is possible that the replacement facility proposed by the State could also be viewed as an added protective feature betterment eligible under the ER program. Replacement on a new location to reduce the potential for future disaster damage to the facility is an example. Of course, to be eligible for ER funding, the additional cost of the relocated facility must satisfy the economic justification criteria applied to added protective features. If the relocated replacement facility meets the economic justification criteria, then ER funding is not capped as discussed above but may participate in the cost of the replacement facility. This is illustrated by the following example:

          Replacement at New Location Where Repair or Replacement In-Kind is Possible (ER Funding of Betterment)

          A three-mile section of a non-Interstate highway in a low-lying coastal area was heavily damaged by high surf and wave action from a storm, the third time in the last 15 years that the highway has been damaged. The latest damage would cost $2 million to repair. Instead of repairing this section of highway, the State proposed to replace it on a new location further inland at a cost of $5.5 million, substantially reducing the opportunity for future surf and wave damage. Relocation of the facility is viewed as an added protective feature that needs to be economically justified in terms of the investment of ER funds. For this example, considering the frequency that events have occurred at this location, the added feature (relocation) was considered economically justified under the ER program, and ER funding may participate in 80 percent of the incurred costs of the replacement facility, or $4.4 million.

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Updated: 06/21/2013
 

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