The document was superseded by the Emergency Relief Manual May 31, 2013 (.pdf, 1 .mb)
Emergency Relief Manual
Chapter VI - Project Procedures and Requirements
Once the FHWA Division Administrator has made a finding that emergency or catastrophic conditions justify ER funding, the State should submit promptly a program of projects for repair of damage to the Federal-aid highways. Projects should be individually justified. If sufficient information is available when the Damage Survey Summary Report is submitted, the first program of ER projects may be incorporated into the Damage Survey Summary Report itself, or it may accompany that report, even though a finding has not yet been made. In any case, the program of projects should be submitted within three months after the disaster finding by the FHWA Division Administrator.
A program of projects is to be submitted to the FHWA Division Office regardless of the Division Office's role in project oversight on Federal-aid projects.
- Fund Management
FHWA's Office of Program Administration will maintain a current table of nationwide ER requests. This table will be updated as requests for ER funds are received. This table will consist of "formal requests" and "pending requests" (described below) based on the stage of the application process. A "pending request" should be developed shortly after an ER-eligible event has occurred. The FHWA Division Office should work with the State to develop an initial "best estimate" of ER needs for the event. Such an initial request should be provided to the Office of Program Administration as soon as practicable for inclusion on the current ER request table. Pending requests should be updated as better estimates are developed. Such pending requests are subject to change and will not result in an actual allocation of ER funds. However, it is important that the Division Offices keep the Office of Program Administration apprised of the most current needs for any known ER eligible events. At times, Congress may choose to provide a supplemental ER appropriation if current available funding falls short of total outstanding ER needs. Maintaining the most current ER request data allows Congress to accurately address all outstanding ER needs if a supplemental appropriation is considered.
After the FHWA Division Administrator makes an affirmative finding on a State's request for ER, the Division requests an allocation of ER funds from the FHWA Office of Program Administration (see Chapter III, Emergency Relief Application Process). This request represents the "formal request" for an actual allocation and will be included on the current ER request table. This allocation request is based on the State's anticipated ER obligations for the current FY and may be less than the total ER needs for that event. The actual allocation amount may be less than the amount requested, depending on the availability of ER funds. FHWA's Office of Program Administration will allocate additional ER funds based on outstanding nationwide ER needs, provided additional funds are available.
The FHWA Division Office should work closely with their State to accurately determine ER obligation needs for the current fiscal year. It is recognized that funding requests may occur at any time during the FY. A funding request near the beginning of the FY will allow for better estimating of current FY obligation needs. However, for funding requests occurring late in the FY, it may be more difficult to estimate obligation needs for the remainder of the FY. Divisions are encouraged to work with the State to prepare an annual finance plan, as appropriate, that will facilitate an accurate estimate of ER obligation needs during the FY.
In addition to pending and formal requests submitted as described above, the Office of Program Administration will request from all Division Offices a list of ER needs (both pending and formal). This request will usually be made near the end of each FY, but may be made at other times as well. The identified needs will be added to the nationwide ER request table in preparation for an allocation of funds.
Near the end of each FY, the Office of Program Administration will also coordinate with Division Offices to identify any balances of previously allocated ER funds that will not be obligated through the remainder of the FY. Those funds will be withdrawn to be used for other nationwide ER funding needs during the next allocation. This process is intended to avoid accumulating large balances of unobligated ER funds and helps manage available funds nationwide as effectively as possible.
- Federal Share
The Federal share for the repair of Federal-aid highways is established by law. It varies depending on the nature of repairs, when the work is accomplished, and the Federal-aid route being repaired.
For the costs associated with restoring essential traffic, minimizing the extent of damage, or protecting the remaining facility which are incurred in the first 180 days after the occurrence of the disaster, the Federal share is 100 percent.
For the costs of permanent restoration work, and the costs of all repairs incurred after the first 180 days, the Federal share is based on the type of Federal-aid highway that is 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 can be increased based on the "Sliding Scale" rates in States with high percentage of Federally owned public lands. The Federal share is 100 percent for all work done on roads on Federal lands.
- Preparation and Submission of Programs
A program of ER projects should be prepared by the State. The program of projects should:
- Indicate the natural disaster or catastrophic failure and the time of its occurrence.
- Relate the damage to that described in the damage assessment reports prepared and/or detailed damage inspections.
- Describe proposed permanent repairs or replacements on a site-by-site basis (although sites may be lumped by route and county for program purposes).
- Include supporting material indicating the suitability and economy of upgrades or betterments including relocation proposed for participation with ER funds. For some projects it will be necessary to complete additional design work in order to develop justification for added protective features. When betterments are contemplated, the State or local agency should contact the Division Administrator so that further project development is accomplished with FHWA involvement.
- Identify emergency repairs.
- Approval of Programs and Project Authorizations
The Division Administrators have authority to approve programs of projects that are located on Federal-aid highways.
Temporary operations including emergency repairs, and preliminary engineering, including consultant work, may proceed without prior authorization. This work need not be authorized retroactively; however, the need for such work must subsequently be approved by the FHWA as part of a program of projects. Permanent restoration work shall not be performed prior to FHWA authorization unless performed as part of emergency repairs.
- Advancing Projects During ER Program Funding Shortages
When ER funds are not available for allocation to the States to cover either additional funding needs on previously approved ER events or funding needs for new disaster requests awaiting action by the Division Administrator, ER funding requests received in Headquarters are recorded and held by the Office of Program Administration pending action by Congress to replenish the ER accounts through a supplemental appropriation.
Recognizing that quick congressional action is not always possible, the following options could be used to fund or advance ER projects on an interim basis.
- Previously Approved ER Events
For an event that the Division Administrator has previously found eligible for ER funding, requests to fund additional work for that event could be handled under one, or some combination, of the following two options:
- Option 1 - Use of Regular Federal-aid Highway Funds
Regular Federal-aid highway funds, appropriate for the type of Federal-aid highway (National Highway System or Surface Transportation Program), can be used. Regular Federal-aid funds must comply with the obligation limitation in effect for the class of funds used. The Federal share would be that appropriate for the ER work being authorized. Under this option, the letter of authorization should indicate that the project will be converted to ER funding when ER funding becomes available, at which time the regular Federal-aid funding, and the accompanying obligation limitation, will be released from the project.
This option can be used for both emergency repairs to restore essential traffic as well as permanent repairs. This option has the advantage of allowing immediate Federal reimbursement for costs that are being incurred. Further, it provides a means of securing FHWA authorization of the permanent repair activities so that they may proceed. A disadvantage is that use of regular Federal-aid funding sources will likely require the use of obligation limitation until the project can be converted to ER funding.
- Option 2 - Use of Advance Construction (AC)
Although 23 U.S.C. 115 does not contain authority to advance construct ER funds, it does designate several other Federal-aid funding sources that can be used for advance construction. Thus, a project advance constructed under any of the funding sources designated in Section 115 could later be converted using ER funds. For example, an ER type project can be authorized as an advance construction STP project and later converted to an ER project as ER funds become available. An authorization under this option should be made following the general guidance for advance construction of Federal-aid. The letter of authorization should confirm the State's intention to convert the project to ER funds.
This option can be used in those instances needing prior FHWA authorization of permanent repair work. This option has the advantage of providing a means of securing FHWA authorization of the permanent repair activities so that they may proceed. Further, it does not use obligation limitation. However, a State must have adequate funding resources of its own to proceed with the project until it can be converted to ER funding.
- ER Events Awaiting a Division Administrator Finding
When a potential ER event has occurred, the State is empowered to undertake immediate emergency repairs to restore essential traffic service and to prevent further damage to Federal-aid highway facilities. Properly documented costs will later be reimbursed once the Division Administrator makes a formal finding that the event qualifies for funding under the ER program.
However, if a delay in the Division Administrator's formal finding will likely delay the orderly progression of both emergency and permanent repairs, it might be preferable to proceed with ER activities using Options 1 or 2 above, subject to the following requirements:
- The State's formal request for ER funding, along with an acceptable Damage Survey Summary Report has been submitted to the FHWA Division Office. Various methods for developing State requests are discussed in Chapter III.
- Division staff managing the ER program has reviewed the ER request and recommends that it be approved, excepting any questionable or ineligible ER activities.
- FHWA letter of authorization under Options 1 or 2 will stipulate that any use of ER funding on the project is subject to the Division Administrator's formal finding that the event qualifies for funding under the ER program.
Options 1 or 2 should be limited to specific events where the delay in securing a formal finding is lengthy and is delaying repair efforts. Any Division Office authorization of work prior to the Division Administrator's formal finding should be coordinated with the Office of Program Administration.
- General Comments
Prior to FHWA authorization of permanent ER repairs using regular Federal-aid funds or the advance construction process, it is strongly recommended that the Division Office review the activities and project features to be funded to assure their eligibility before starting construction.
- Project Oversight
ER projects for permanent repairs should be processed following regular Federal-aid procedures. ER projects the same as or sufficiently similar to regular Federal-aid projects subject to the 23 U.S.C. 106 oversight exceptions can also be administered under these exceptions, subject to the following two conditions:
- Any betterments to be incorporated into the project and for which ER funding is requested must receive prior FHWA approval.
- The FHWA reserves the right to conduct final inspections on all ER projects. The Division Administrator has the discretion to undertake final inspections on ER projects as deemed appropriate.
- Combined Federal-Aid and Emergency Relief
When the State or applicant decides not to replace a damaged facility in-kind and proposes work in excess of the work eligible for ER funds, a combined project may be programmed using ER funds to the extent eligible. Other Federal-aid funds may be used for the additional work. Separate programming is required for each class of funds with appropriate cross-referencing.
- Construction Start Deadline (Time Extensions)
ER funds are allocated to assist the States and other agencies or organizations in conditions of emergency. Consequently, after approval of programs and allocation of funds, all projects should be completed promptly. Failure to advance an approved ER project to completion within a reasonable period of time could result in withholding of funding for that project. Emergency opening work should be accomplished within one month of accessibility to the site under normal circumstances.
Unless there is satisfactory justification for project delay to warrant its retention, projects for permanent repairs that have not advanced to construction obligation by the end of the second FY following the year in which the disaster occurred cannot be authorized. Justification for such delay and request for time extension must be submitted to the FHWA Division Administrator for approval. Time extensions are granted in one-year increments. Such delays may be caused by the need for extensive environmental evaluation, litigation, or complex right-of-way acquisition.
In certain situations the delay of permanent work may be as much as two to three years. Permanent restoration work, for example, could be deferred to permit study of a serious slide condition, thereby allowing sufficient time to adequately design a permanent correction.
- FHWA as the Construction Agency
State or local agencies may request the FHWA to accomplish repairs, reconstruction, or relocation of sections that are on the Federal-aid highways. The emergency operations to restore essential traffic should be handled by the State or local agency. In any event, where such situations are anticipated, a letter of request should be prepared by the State or local agency through the State to the Division Administrator expressing the desire to have the FHWA perform the work. The Division Administrator should promptly forward any such request to the Federal Lands Highway Division Engineer along with his/her recommendations, and arrange for a joint field inspection by the two offices, the local agency, and/or the State.
- Project Designations and Numbering
All ER-funded projects on a Federal-aid highway (not on a Federal road) shall be designated with the prefix "ER". ER projects located on Federal Roads use the prefix "ERFO" (Emergency Relief Federally Owned). Combination projects designated "ER-ERFO" may be used where portions of a project on a Federal-aid highway are also located on a Federal road.
The State may designate the project numbering system to be used for each project resulting from a natural disaster or catastrophic failure. Where an existing "ER" series has been established, the State may continue the sequence of the established series of project numbers for several individual improvements, with separate agreement numbers for individual improvements.
Projects may be numbered to conform to the system established for other Federal-aid projects. For the project number, enter seven digits (four digits for Route number and three digits for agreement number) preceded by the prefix ER.
- Disaster Code
Division Offices should be prepared to readily identify obligations by appropriation and by disaster. The Fiscal Management Information System (FMIS) provides a disaster number entry, which should be carefully entered to ensure that legislated limits on obligations for a particular disaster are not exceeded.
The disaster number is assigned by the Division Office at the time of the finding. This number should be shown as part of the disaster identification on the program. It consists of the two-letter State or Territory code, the FY of the initial damage, and the sequence number (based on the number of disasters submitted by a State) of the disaster. Thus, the first disaster submitted by Alabama for FY 2009 (i.e., the event began on or after October 1, 2008), would be shown as "AL09-1," with any subsequent eligible disasters submitted during FY 2009 following in sequence as "AL09-2," etc.
Item number 42 in the FMIS should be completed as follows: The Disaster Code (five digits) should be used. The first four digits represent the FY assigned to the event, e.g., 2009 or 2010, etc. Enter as the fifth digit the sequence number assigned to the disaster. For example, the first disaster approved in a State for FY 2009 would be coded 20091.
- Construction Contracts/Force Account
Emergency repairs are temporary traffic operations undertaken during or immediately following the disaster occurrence for the purpose of: 1) minimizing the extent of the damage, 2) protecting remaining facilities, or 3) restoring essential traffic. All other repair or restoration work is considered to be a permanent repair.
Under 23 CFR 668.105(i), emergency repair work may be accomplished by the contract, negotiated contract, or transportation agency force account method as determined by the transportation agency as best suited to protect the public health and safety. Permanent repair and reconstruction work must be done by a competitive bid contract method unless the State demonstrates some other method is cost effective as described in 23 CFR 635.204.
- Emergency Repairs
States shall advertise the work for emergency repairs where feasible. The FHWA may approve a waiver of the advertising requirement if State or local law authorizes such procedures and the contract method chosen is suitable for the proposed corrective work. Where time and conditions warrant, States are strongly encouraged to first consider using the competitive bidding method of contracting for emergency repairs.
Often, emergency repair work, such as debris removal, can be performed efficiently through the deployment of pre-established emergency repair contracts. Such contracts should be competitively bid and must comply with all applicable Federal-aid contracting requirements at the time of the disaster. States are encouraged to work with their FHWA Division Office to develop and periodically update pre-established emergency repair contracts prior to the occurrence of a disaster. For States that have pre-established emergency repair contracts, FHWA Division Offices should work with their respective States to ensure that these contracts are up-to-date.
- Force Account
The term force account means the direct performance of highway construction work by a State transportation agency, a county, a railroad, or a public utility company by use of labor, equipment, materials, and supplies furnished by them and used under their direct control. Public agencies may perform emergency repairs under the force account method, but are not permitted to compete for solicited or negotiated contracts. Since the National Guard does not fall under any of the above-mentioned categories, ER funds cannot be used to pay for National Guard services on a force account basis.
Due to the emergency character of the work, State and local forces and/or negotiated equipment rental contracts may be used to perform a considerable portion of the emergency repairs. In accordance with 23 CFR 635.204(b), a formal finding for force account work for emergency repairs is not required.
- Solicited Contract
A solicited contract may be warranted due to the emergency character of the work. The State may contact a reasonable minimum number of contractors by telephone to solicit quotes for a specific scope of work. A summary showing how the solicitation was conducted, who was contacted, and the responses by the contractors must be prepared.
- Negotiated Contract
Under certain emergency circumstances where it is critical to restore essential travel in an expedited manner, it may be appropriate to enter into a negotiated contract with one firm. The contracting agency must document the process it used for selecting and negotiating a reasonable price with a single firm. States are encouraged to use negotiated contracts only when the State determines that the circumstances are such that competitive bidding is not effective or feasible. Lump sum contracting should be used only when unusual or rare circumstances are present making it virtually impossible to estimate quantities of work for a competitively bid unit-price contract or a cost reimbursable negotiated contract.
The Division Administrator shall determine whether the price of a negotiated contract is reasonable under the circumstances of the situation. Where feasible, the State should conduct a cost analysis prior to the award of any negotiated contract to assure that prices are fair and reasonable to aid in this determination. Pursuant to 23 U.S.C. 106, which requires the Secretary's approval of all plans, specifications, and estimates, the FHWA reserves the right to withhold funding or to reduce its participation when prices are not deemed to be reasonable.
A State should adopt appropriate industry rate guides, such as the Rental Rate Blue Book for computing equipment usage rates for negotiated contracts, or develop its own guide. The State must make the determination that the equipment rental rates developed or adopted fairly estimate a contractor's actual cost to own and operate the equipment, and the Division Administrator must concur in that determination. In situations where the rate of a particular item of equipment is not provided in the adopted guide, the State must determine that the rate is a reasonable representation of the contractor's actual cost to own and operate the equipment in light of the particular circumstances. If feasible, the State may compare the rates charged for using the piece of equipment in other projects for other entities, but taking into account the particular circumstances of the situation in which the State needs to use the piece of equipment.
- Permanent Repairs
Permanent repair and reconstruction work, not accomplished as emergency repairs, must be done by contract awarded by competitive bidding unless the State demonstrates some other method is cost effective as described in 23 CFR 635.204. The contracting agency must assure an opportunity for free, open, and competitive bidding, including adequate publicity of the advertisements or call for bids. However, in certain cases, ER construction projects can be accelerated using other contracting techniques described below.
- Techniques to Accelerate Projects
Innovative contracting procedures available to accelerate ER construction projects include cost-plus-time bidding, lane rental, construction manager at risk and design-build contracting. Other methods such as abbreviated plans, shortened advertisement period for bids, and incentive/disincentive clauses are commonly used to accelerate ER construction projects.
- Cost-Plus-Time Bidding
Cost-plus-time bidding, more commonly referred to as the A+B bidding method, involves time, with an associated cost, in the low bid determination. Under the A+B bidding method, each bid submitted consists of two components:
The "A" component is the traditional bid for the contract items and is the dollar amount for all work to be performed under the contract.
The "B" component is a "bid" of the total number of calendar days required to complete the project, as estimated by the bidder (calendar days are used to avoid potential mis-interpretations which may arise if work days were used).
The "B" component is multiplied by a factor "x" which is generally equal to or less than the estimated road user cost per day.
The bid for award consideration is based on a combination of the bid for the contract items and the associated cost of the time, according to the formula:
(A) + (B) x (x)
This formula is only used to determine the lowest bid for award and is not used to determine payment to the contractor.
The contract incorporates an incentive / disincentive provision based on the "x" factor that assesses a disincentive to discourage the contractor from overrunning the time "bid" for the project and provides an incentive for early completion.
For critical projects that have high road user delay impacts, the A+B bidding method can be an effective technique to significantly reduce these impacts.
The design-build concept allows the contractor maximum flexibility for innovation in the selection of design, materials and construction methods. With design-build procurement, the contracting agency identifies the end result parameters and establishes the design criteria. The prospective bidders then develop design proposals that optimize their construction abilities. The submitted proposals may be rated by the contracting agency on such criteria as design quality, timeliness, management capability and cost, and these criteria may be used to adjust the bids for the purpose of awarding the contract.
By allowing the contractor to optimize its work force, equipment, and scheduling, the design-build concept offers greater opportunities for innovation. However, along with the increased flexibility, the contractor must also assume greater responsibility. Extended liability insurance or warranty clauses may be used to ensure that the finished product will perform as required.
From the contracting agency's perspective, the potential time savings are a significant benefit. Since the design and construction are performed through one procurement, construction can begin before all design details are finalized. For example, pile driving could begin while bridge lighting is still being designed. Because both design and construction are performed under the same contract, claims for design errors or construction delays due to design errors are not allowed, and the potential for other types of claims is greatly reduced. Additionally, design-build contracts may be awarded prior to the completion of the NEPA process, which will enable the State to have the contract in place once authorized to proceed with construction.
The design-build method of contracting provides an alternative to the traditional design-bid-build contracting method, but it should only be used for projects that fit the design-build process. The contracting agency must adequately define the scope of work prior to the request for proposals. A design-build project should have sufficient scope and complexity to allow for a strong creative design component. Relatively small or simple projects such as roadway resurfacing or minor roadway widening projects do not provide significant design components, and are not ideal projects for design-build. The design-build method assists in expediting project delivery. It is not intended to provide a means for quick obligation of funds or to compensate for insufficient State personnel resources.
Federal-aid funds may participate in design-build contracts when approved and awarded using the procedures in 23 CFR Part 636.
- Abbreviated Plans and Shortened Advertisement Period for Bids
Pursuant to 23 CFR 635.113(b), the FHWA Division Administrator may approve abbreviated plans, provided all essential information necessary to describe the work to be accomplished and to determine the reasonableness of unit prices for contract or force account work have been provided. Also, the time period for advertisement of bids may be shortened; however, a State may also need to suspend its own rules and regulations covering advertisement periods.
- Short List of Qualified Contractors
Another technique that has been used successfully to accelerate contract bidding and award involves using a short list of qualified contractors to bid on a project. For example, a minimum of three bidders may be selected based on the following: early willingness to respond, type of work, prior demonstrated ability to move swiftly, availability, staff and equipment, and having previously worked in the area. Generally, a contractor awarded a contract as low bidder on one project is not included in the short list of qualified contractors for the next project; however, the unsuccessful bidders are.
- Contract Requirements
Contracts for both permanent repair work and emergency repairs must incorporate all applicable federal requirements. As such, FHWA Form 1273 must be included in all contracts pursuant to 23 CFR 633.102. FHWA Form 1273 includes, but is not limited to, the following requirements:
- Davis-Bacon Act
Generally, 23 U.S.C. 113 requires that all laborers and mechanics employed for construction work on Federal-aid highways shall be paid wages at rates not less than those prevailing wages as determined by the Secretary of Labor under the Davis-Bacon Act. This provision cannot be waived by the FHWA. Davis-Bacon Act requirements may be waived only by executive order of the President, ref. 40 U.S.C. 276a-5, which states, "In the event of national emergency the president is authorized to suspend the provisions of 276a to 276a-5 of this title."
Contract work for emergency repairs: All contract work for emergency repairs performed by contractors or subcontractors within the right-of-way of a Federal-aid highway is covered by 23 U.S.C. 113 requirements. While contracting agencies are empowered to begin emergency repairs immediately, they must comply with 23 U.S.C. 113 requirements so that properly documented costs will be eligible for reimbursement once the FHWA Division Administrator makes a finding that the disaster is eligible for emergency relief funding.
Contract work for debris removal only: 23 U.S.C. 113 requirements do not apply where emergency contract work is only for the removal of debris and related clean up, which is not considered to be a "construction" activity for the purposes of 23 U.S.C. 113. However, debris removal performed in conjunction with construction, alteration, and repair work (such as highway resurfacing, re-grading, significant earthmoving, bridge repairs, etc.) is covered by 23 U.S.C. 113.
Work by public agency forces: 23 U.S.C. 113 requirements do not apply to State or local government agency employees who perform emergency repairs or construction work on a force account basis because government agencies (such as States or their subdivisions) are not considered contractors or subcontractors. See 29 CFR 5.2 (h). However, 23 U.S.C. 113 requirements do apply to contracts let by State or local government agencies using an alternative procurement procedure that has been approved through the force account approval process.
- Buy America
The FHWA's "Buy America" regulations (23 CFR Part 635.410) apply to all Federal-aid highway construction projects that permanently incorporate either iron or steel. A State may request that these provisions be waived if "the application of those provisions would be inconsistent with the public interest" [23 CFR 635.4109(c)(1)(i)].
- Disadvantaged Business Enterprises (DBE)
The normal DBE requirements are applicable to all ER funded projects.
- Americans With Disability Act (ADA)
The FHWA operates under the ADA regulations issued by the Department of Justice (DOJ). According to DOJ, no waivers from these regulations are possible. The governing statute and DOJ regulations make no provision or exception for emergency relief situations. The ADA accessibility guidelines issued by DOJ, however, do provide guidance concerning temporary structures.
- Equal Employment Opportunity (EEO)
EEO requirements prohibit discrimination and requires contractors to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract.
- Convict Labor
The convict labor prohibition in 23 U.S.C. 114 applies to ER projects. Convict labor cannot be used in ER construction projects.
- Use of Suspended or Debarred Contractors
Recipients of Federal funds are prohibited from doing business with contractors who have been suspended or debarred. This prohibition includes contractors with principals who have been suspended or debarred. Recipients are responsible for determining whether any contractor or its principals are suspended or debarred. In addition to certifications provided in FHWA Form 1273, recipients should check the Excluded Parties List System that is maintained by General Services Administration at: https://www.epls.gov/.
- Environmental Considerations:
Repair projects under the ER program must comply with the requirements of the National Environmental Policy Act (NEPA) of 1969. Emergency repairs to restore essential travel, minimize the extent of damage, or protect remaining facilities are normally classified as categorical exclusions under 23 CFR 771.117(c)(9), as are ER projects to restore permanently the existing facility in-kind at the existing location, ref. 23 CFR Part 771.117(d). However, if impacts to protected or otherwise sensitive or high-value resources are possible, advance coordination with the appropriate local, State, and Federal resource agencies should be closely considered to avoid or minimize project delays or shutdowns.
On occasion, an ER project that includes a betterment, whether or not eligible for ER funding, may require further NEPA review. Although on the surface a project may appear to qualify for a categorical exclusion, certain betterments may need either an environmental assessment (EA) to determine whether or not the project will cause significant environmental impacts, or an environmental impact statement (EIS) if significant impacts are predicted. This is illustrated by the following example:
Project Betterment Requiring Environmental Evaluation
When repairing a section of roadway inundated and seriously damaged by floodwaters, it was determined that a grade raise could be economically justified for ER funding. Raising the grade of the roadway will require small amounts of additional right-of-way from adjacent wetland areas. In addition, in future flood events, the higher roadway grade could impound additional water and flood other upstream areas. As a result of the project's potential impact on wetlands and future flooding patterns, further evaluation was necessary to determine the appropriate level of NEPA documentation.
The NEPA project development process provides the final Federal-aid highway project decision, occasionally including a facility on new location. As noted above, ER projects to construct replacement facilities may require environmental assessments or environmental impact statements, depending on the potential level of impacts to resources, the value of the resources, and what, if any, legal protections apply to the resources. However, even replacement facilities constructed at the existing location of the damaged facility may require extra environmental evaluation beyond that needed for a routine categorical exclusion. These situations are illustrated by the following examples:
Replacement at New Location
A roadway was permanently submerged by water backing up behind a naturally created dam, and it has been determined replacement of the inundated highway facility at its existing location is neither practical nor feasible, and various alternate locations may be available to relocate this section of highway. The NEPA process documents consideration of appropriate project alternatives and their potential impacts and determines that the preferred alternative is replacement of the old facility on a specific new location or site. Although a categorical exclusion can be used if circumstances merit, early environmental coordination may determine that an EA or an EIS is necessary to do this.
Replacement at Existing Location
An existing bridge over a river has been damaged beyond repair but can be replaced with a bridge of comparable width and length at the same location. However, this section of river contains critical habitat for a federally listed endangered species, which would be seriously impacted during the scheduled construction period. As a result of this potential impact, the project decision could not be categorically excluded, and additional NEPA evaluation and documentation was necessary.
- Design Standards
Reconstruction of damaged roadway and bridge facilities must meet adequate standards, including appropriate safety features. Reconstruction of extensively damaged facilities, including betterment projects when adequately justified, should meet the current applicable design standards. Replacement of roadway facilities other than bridges is limited to the existing number of lanes and surface type. Bridges may be replaced with a facility that meets current geometric and construction standards required for the type and volumes of traffic that such a facility will carry over its design life.
- State Emergency Manual
An important element of emergency procedures is the State's emergency operation plan. Since Federal-aid funds are not available for maintenance and State maintenance personnel will handle much of the emergency operations, the State's instructions should be carefully reviewed. It may be appropriate to supplement the State's instructions with portions of this manual, for example, Chapter V,Disaster Assessment and Damage Survey Summary Report and Chapter II, Eligibility of Damage Repair Work.
Office of Program Administration