Repairing and Reconstructing Disaster-Damaged Roads and Bridges: The Role of Federal-Aid Highway Assistance

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

The major highways and bridges damaged during June 2008 Midwest flooding and the 2005 Gulf
of Mexico hurricanes, as well as the I-35W bridge, which collapsed in Minneapolis, MN, on
August 1, 2007, are part of the federal-aid highway system and are therefore eligible for
assistance under the Federal Highway Administration’s (FHWA) Emergency Relief Program
(ER). Following a natural disaster or catastrophic failure (such as the I-35W bridge), ER funds
are made available for both emergency repairs and restoration of federal-aid highway facilities to
pre-disaster conditions.

Backgr ound ..................................................................................................................................... 1
The FHWA’s Emergency Relief (ER) Program.........................................................................1
Funding ........................................................................................................................ ....... 2
Eligibility and Program Operation......................................................................................2
ER Funding Sustainability........................................................................................................4
2008 Midwest Flooding ER Funding........................................................................................5
2005 Gulf Coast Hurricane ER Funding...................................................................................5
I-35W Minneapolis Bridge ER Funding...................................................................................6
Table 1. ER Fund Allocations (2005 Hurricanes as of 3/31/08)......................................................5
Table 2. ER Funding for the I-35W Bridge Collapse......................................................................6
Author Contact Information............................................................................................................6

he major highways and bridges damaged during June 2008 Midwest flooding and the 2005
Gulf of Mexico hurricanes, as well as the I-35W bridge, which collapsed in Minneapolis,
MN, on August 1, 2007, are part of the federal-aid highway system and are therefore T

eligible for assistance from the Department of Transportation (DOT) through the Emergency
Relief Program (ER) of the Federal Highway Administration (FHWA). For disaster-damaged
roads that are not federal-aid highways, states may request reimbursement for emergency road
repairs and debris removal from the Federal Emergency Management Agency (FEMA).
This report describes FHWA assistance for the repair and reconstruction of disaster damaged
highways and bridges or catastrophic failures (such as a bridge collapse). It begins with a brief
discussion of the legislative origins of federal assistance and describes the ER program in its
current form. The report then discusses eligibility issues and program operation. Finally, the
report briefly describes the major findings of a recent Government Accountability Office report
on ER.

For more than 70 years, federal aid for the emergency repair and restoration of disaster damaged
roads has been available. The first legislation authorizing such use of federal funds was the
Hayden-Cartwright Act of 1934 (P.L. 73-393). This act, however provided no separate funds and
states subject to disasters had to divert their regularly apportioned federal highway funds from
other uses to disaster repairs. The Federal-Aid Highway and Highway Revenue Act of 1956 (70
Stat 374 and 70 Stat 387) was the first act that authorized separate funds for the ER program (the
program is codified 23 U.S.C. 125). From the passage of the 1956 Act through 1978, funding for
the program was drawn 40% from the Treasury’s general fund revenues and 60% from the
highway trust fund (HTF). The HTF is supported by taxes paid by highway users. Starting in
1979 the program was funded 100% from the HTF. The ER program was reauthorized, on August
10, 2005, through 2009 by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a
Legacy for Users (SAFETEA-LU) (P.L. 109-59; 119 Stat 1144). SAFETEA-LU provided that
allocations above the annual $100 million authorization could be funded from the general fund.
The ER program provides funds for the repair and reconstruction of roads on the federal-aid
highway system that have suffered serious damage as a result of either 1) a natural disaster over a
wide area, such as a flood, hurricane, tidal wave, earthquake, tornado, severe storm, or landslide;
or 2) a catastrophic failure from any external cause (for example, the collapse of a bridge that is ¹
struck by a barge). Historically, however, the vast majority of ER funds have gone for natural
disaster repair and reconstruction.
As is true with other FHWA programs, the ER program is administered through the state
departments of transportation in close coordination with FHWA’s division offices (there is one in
every state). Most observers see this as a strength of the program in that FHWA staff at the state

¹^Se^e^U^.^{S. Fe}^de^r^a^{l H}ⁱ^g^h^w^a^y^A^d^mⁱ^nis^t^r^a^tio^n,^Em^e^r^ge^nc^y^Re^lie^{f M}^aⁿ^ual⁽^W^a^s^hing^to^{n, FH}^W^A^,²⁰⁰³⁾^,^{75. Se}^e^a^l^s^o
^FH^WA^,^{A G}^u^ide^t^o^Fe^de^r^a^l-^Aid^Pr^ogr^am^s^an^{d Pr}^o^j^e^c^t^s^,¹⁹⁹⁹^{, 8}⁶^-^88.

level have established and ongoing relationships with their state counterparts and this facilitates a
quick coordinated response to disasters.
The ER program has an annual authorization of $100 million in contract authority to be derived
from the Highway Trust fund. These funds are not subject to the obligation limitation, which
means the entire $100 million is available each year. Because the costs of road repair and
reconstruction in many disasters exceed the $100 million annual authorization, SAFETEA-LU
authorizes the appropriation of additional funds on a “such sums as may be necessary” basis, ²
generally accomplished in emergency supplemental appropriations legislation.
The ER program limits the amount that FHWA may provide under the ER program to each state
for each natural disaster or catastrophic failure to $100 million. For large disasters whose costs
exceed the $100 million per state cap, Congress may lift the cap legislatively. For the I-35W
bridge collapse, this limitation was waived in P.L. 110-56.
Emergency repairs to restore essential travel, minimize the extent of damage, or protect remaining
facilities, if accomplished within the first 180 days after the disaster, may be reimbursed with a
100% federal share. Permanent repair projects are reimbursed at the same federal share that
would normally apply to the federal-aid highway facility. For Interstate System highways the
federal share would be 90% and for most other highways the share would be 80%. Permanent
repairs done during the first 180 days are also reimbursed at the pro rata share that would
normally apply to the facility. The share for disaster relief for roads on federal lands is 100%. In
P.L. 109-148, Congress broadened the scope of the 100% federal share to encompass all ER
program expenses for repair and reconstruction projects related to the Gulf Coast hurricanes. The
I-35W repair and reconstruction, authorized in P.L. 110-56, would also be 100% share.
As is true with other FHWA programs, the ER is a reimbursable program. This means that a state
can incur obligations, begin repairs and then submit vouchers to FHWA for reimbursement for the
federal share of the project.
The ER program divides all repair work into two categories: emergency repairs and permanent
repairs. Only repairs to roads and bridges on the federal-aid highway system that have suffered ³
damage during a declared disaster or catastrophic failure are eligible for ER assistance. The

²^Hⁱ^s^t^or^ic^a^lly^{, em}^e^r^g^e^ncy^s^upple^m^eⁿ^ta^{l ER}^a^p^pr^o^p^rⁱ^a^tio^ns^ha^v^e^be^eⁿ^dr^a^w^{n f}^r^om^the^hig^h^w^a^y^a^c^c^{ount of}^the^hig^h^w^a^y
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^c^ould^f^{und a}^la^rg^e^K^a^trina^re^la^te^d^s^u^p^p^le^m^e^nta^l^a^ppropria^ti^ons^w^{ithout c}^ons^traⁱⁿⁱ^ng^t^h^e^a^b^ility^of^the^H^T^{F to f}^u^lly^f^und
^SA^FET^E^A^-^L^U^.
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⁽^c^onti^nue^d.^..)

intent of ER assistance is to repair and restore highway facilities to pre-disaster conditions, not to
fund new construction for increased capacity or improve highway facilities or fix non-disaster
deficiencies. In general, work is confined to the federal-aid highway right-of-way.
These are repairs made immediately following a disaster to meet the program goals to “restore ⁴
essential traffic, to minimize the extent of damage, or to protect the remaining facilities.” State
and local transportation agencies can begin these repairs immediately and prior approval from
FHWA is not required. Once the FHWA Division Administrator finds that the disaster work is
eligible, properly documented costs can be reimbursed retrospectively. Emergency repair work is
to be accomplished within the first 180 days after the disaster and, as mentioned earlier, is
reimbursed at a 100% federal share. Examples of emergency repairs are: debris removal,
regrading, removal of landslides, construction of temporary road detours, erection of temporary
detour bridges, and use of ferries as an interim substitute for highway or bridge service.
Emergency repairs are meant to permit work to start immediately to restore essential traffic in the
disaster area that cannot wait for a finding of eligibility and programming of a project. This part
of the program is especially designed for speed. In the case of some disasters, state DOTs have
been able to let ER funded debris removal and demolition contracts the same day of the disaster ⁵
event.
These repairs go beyond the restoration of essential traffic and are intended to restore the
damaged bridges and roads to pre-disaster conditions and capabilities. Where the damaged parts
of the road can be repaired to pre-disaster conditions, without replacement or reconstruction, this
is done. Where a road needs to be replaced, ER funding is limited to the costs of building a
roadway designed to current standards and of comparable capacity. ER funds may be used for
temporary or permanent repair of a repairable bridge but permanent repairs may not be funded if
the bridge is scheduled for replacement. If a bridge is destroyed or repair is not feasible then ER
funds may participate in building a new comparable bridge to current design standards and to
accommodate traffic volume projected over its design life. In some cases “betterments” (added
protective features, added lanes, added access control, etc.) may be eligible, but they must be
shown to be economically justified based on a cost/benefit analysis of the future savings in
recurring repair costs.
Permanent repair and reconstruction contracts, not done as emergency repairs, must meet
competitive bidding requirements. A number of techniques are available to accelerate projects,
including design-build contracting, abbreviated plans, shortened advertisement period for bids, ⁶
and the cost-plus-time (A+B) bidding that includes monetary incentive/disincentive clauses

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⁴^FH^WA^.^Em^e^r^ge^nc^y^Re^lie^{f M}^anu^al^.
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⁶^C^o^s^t^-^p^l^u^s^-^tim^e^biddi^ng⁽^A⁺^B^m^e^tho^d⁾ⁱⁿ^c^l^ude^s^tw^{o c}^o^m^pone^nts^.^T^h^e^A^c^o^m^pone^nt^is^the^tr^a^d^iti^ona^l^{bid f}^o^r^a^{ll w}^o^r^k
^{to be}^pe^r^f^or^m^e^{d. T}^h^e^B^c^o^m^pone^{nt is}^a^bid^of^the^t^o^ta^{l n}^u^m^b^e^r^of^ca^le^nda^r^da^y^s^r^e^quir^e^{d to}^c^o^m^p^le^te^the^pr^oje^c^t^{. T}^h^e
⁽^c^onti^nue^d.^..)

designed to encourage contractors to complete projects ahead of time. For example, the repair
contract for repair of the I-10 Twin Spans Bridge between Slidell and New Orleans, Louisiana,
that was awarded Friday September 9, 2005, included incentives for early completion. Two-way
traffic on two lanes opened on October 14, 2005, 16 days ahead of schedule and four-lane traffic
opened January 6, 2006, nine days ahead of schedule.
Contracts supported by ER funding must meet all contract provisions as required by 23 CFR Part ⁷
633A. Davis-Bacon wage rate requirements apply to all ER contracts. ER funded contracts must
abide by Disadvantaged Business Enterprises (DBE) requirements, American With Disability Act
(ADA) requirements, “buy America” regulations, and prohibitions against the use of convict labor ⁸
(23 U.S.C. 114).
Repair projects funded under the ER program are subject to the requirement of the National
Environmental Policy Act (NEPA) of 1969. The impact, however, is generally limited since
emergency repairs are normally classified as categorical exclusions under 23 CFR771.117 (c)(9)
as are projects to permanently restore an existing facility “in-kind” to its pre-disaster condition. ⁹
Betterments may, in some cases, require NEPA review.
In February 2007, the Government Accountability Office (GAO) released a report on the ER ¹⁰
program that expressed concerns on the growing budgetary implications of ER spending. The
report points out that because of the constrained outlook for the highway trust fund, the ER
program is now mostly funded with general fund revenues at a time when the
ⁿ^a^tion^f^aces^{a pen}^d^ing^fⁱ^s^{cal cris}^is^{, rais}ⁱⁿ^g^con^cerⁿ^s^abou^{t fu}^t^u^{re u}^s^{e of}^t^h^{e g}^eⁿ^e^{ral fu}ⁿ^d^aⁿ^d
^th^e^fⁱⁿ^aⁿ^c^ial^sustaiⁿ^a^bilit^y^{of t}^h^{e E}^R^prog^ra^m^{... ER}^fun^d^{s ar}^{e n}^o^{t i}ⁿ^teⁿ^d^{ed to replace oth}^e^r
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^o^r^m^a^k^e^o^t^h^e^rⁱ^m^p^r^o^v^e^m^en^ts^{. Ho}^w^e^v^e^r^,^coⁿ^t^rⁱ^b^u^tiⁿ^g^to^f^u^tu^r^e^fⁱⁿ^aⁿ^c^ial^su^staiⁿ^a^b^ilit^y
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^ch^an^g^e^{s i}ⁿ^d^e^fⁱⁿ^itioⁿ^s^.^A^s^{a r}^e^su^{lt, so}^m^e^p^r^o^j^{ects h}^a^v^e^b^een^f^uⁿ^d^ed^th^{at g}^o^b^e^y^oⁿ^d^r^e^p^a^irⁱⁿ^g
^{or res}^t^orin^{g h}ⁱ^ghw^a^y^s^{to pre-}^di^s^a^s^t^{er con}^d^it^ion^s^{... [s}^u^c^{h as}^{] p}^r^oj^ects^th^at^g^r^e^wⁱⁿ^s^c^{ope an}^d
^cos^t^{to add}^r^es^s^en^vⁱ^ronm^eⁿ^tal^an^{d com}^m^unit^y^coⁿ^cern^s^{.... Con}^g^r^es^s^h^a^s^al^s^o^direct^e^d^t^h^a^tⁱⁿ
^s^o^m^e^cas^e^s^th^{e prog}^ra^m^fu^ll^y^f^uⁿ^d^proj^ects^rath^{er th}^an^requⁱ^rⁱⁿ^g^{a s}^t^a^t^e^m^a^tc^h^.
The report also noted that the $100 million annual authorization is so low, that since 1990, 86%
of ER program funds have been made available though supplemental appropriations. This
situation has led to project backlogs that force states to delay reconstruction or use other highway
dollars as they await the funds provided through the supplemental appropriations process.

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^coⁿ^t^ractⁱⁿ^cl^u^d^e^{s a di}^siⁿ^cen^tⁱ^v^{e f}^o^{r o}^v^errunⁿⁱⁿ^g^t^h^{e t}ⁱ^m^{e b}ⁱ^d^aⁿ^d^aⁿⁱⁿ^cen^tⁱ^{ve f}^o^{r earl}ⁱ^e^{r co}^m^p^l^e^tⁱ^oⁿ^.
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^and^L^oⁿ^g^-Te^r^{m Sust}^aⁱⁿ^a^b^ility^,^G^A^O^-^07-^245,⁶^0p.

Federal-aid highways damaged by the June 2008 Midwest flooding are eligible for ER funding.
On June 25, 2008, Secretary Mary Peters announced that $1 million of “quick release” funding
was being made available for to help pay for urgent road and bridge repairs in Iowa. These urgent
repairs are those needed to help restore essential traffic in eastern Iowa. FHWA expects Illinois,
Indiana, Iowa, and Wisconsin to submit further requests for ER funding once FHWA and state
DOT staff can get to the damage sites and develop preliminary damage estimates.
As of March 31, 2008, FHWA had received a total of $2.829 billion in ER program funding
requests and had allocated an equal amount for the repair and reconstruction of the damage to
federal-aid highways caused by hurricanes Katrina, Rita, and Wilma. Table 1 presents the
allocations of ER funding.
Table 1. ER Fund Allocations (2005 Hurricanes as of 3/31/08)
^{Item Date}^Amou^{nt Allocated ($)}
^{Mississippi - Katrina}^September¹^{3, 20}⁰⁵^5,00^0,00⁰
^{Louisiana - Katrina}^September¹^{4, 20}⁰⁵^5,00^0,00⁰
^{Mississippi - Katrina}^November^30,²⁰⁰⁵^20,0^00,0⁰⁰
^{Louisiana - Katrina}^November^30,²⁰⁰⁵^20,0^00,0⁰⁰
^{Louisiana - Katrina}^Janua^{ry 1}^{9, 2}⁰⁰⁶^75,0^00,0⁰⁰
^{Florida -}^Katrina^Janua^{ry 2}^{0, 2}⁰⁰⁶^42,8^43,7⁹⁷
^{Mississippi - Katrina}^Janua^{ry 2}^{0, 2}⁰⁰⁶^740,⁰⁰^0,00⁰
^{Texas - Rita}^Janua^{ry 2}^{0, 2}⁰⁰⁶^11,0^00,0⁰⁰
^{Louisiana - Katrina and Rita}^Februar^{y 1, 2}⁰⁰⁶^863,⁰⁰^1,48⁸
^{Mississippi - Katrina}^March^{6, 2}⁰⁰⁶^248,⁰⁰^0,00⁰
^{Alabama - Katrina}^March²^{8, 20}⁰⁶^17,5^77,7²⁰
^{Florida -}^Rita^March²^{8, 20}⁰⁶^2,33^1,24⁵
^{Florida - W}^ilma^March²^{8, 20}⁰⁶^478,⁰⁰^0,00⁰
^{Louisiana - Katrina and Rita}^{April 21, 2}⁰⁰⁶^52,5^52,1⁵⁹
^{Louisiana - Katrina}^{July 1}^{3, 20}⁰⁶^174,⁰⁰^0,00⁰
^{Texas - Rita}^October^{23, 2}⁰⁰⁶^25,9^94,6⁰⁷
^{Alabama - Katrina}^{July 2}^{4, 20}⁰⁷^9,80^0,00⁰
^{Mississippi - Katrina}^September^{4, 2}⁰⁰⁷^19,6^98,9⁸⁴
^{Mississippi - Katrina}^September^{4, 2}⁰⁰⁷^301,⁰¹⁶
^{Louisiana - Katrina}^November^{5, 2}⁰⁰⁷^18,5^32,3⁴⁹
^Total^2,82^8,63^3,36⁵
^Source:^FHWA.

Table 2, below, sets forth the allocation of ER funds for the reconstruction of the I-35W bridge, ¹¹
as of March 31, 2008. As of this writing, the amount provided (allocated) equals the amount
requested by the state of Minnesota.
Table 2. ER Funding for the I-35W Bridge Collapse
^{Funding Requests and}^Alloca^tions^Amou^nt
^{Total Formal Request fo}^{r ER}^Funds^$371,⁷⁰⁰^,00⁰
^{“Quick Release” Allocati}^{on of Au}^{gust 2,}²⁰⁰⁷^$5,00^0,00⁰
^{“Quick Release” Allocati}^{on of Au}^{gust 9,}²⁰⁰⁷^$50,0^00,0⁰⁰
^Allocat^{ion of FY2008}^{ER fu}^{nds o}ⁿ^Novem^ber^{5, 20}⁰⁷^$12^3,48^2,83³
^Allocat^{ion of (P.L. 110-161) a}^p^p^r^{opriation on March}^{5, 2}⁰⁰⁸^$19^5,00^0,00⁰
^{Total ER Fundin}^{g f}^{or I-35W}^Bridge^$371,⁷⁰⁰^,00⁰
^Source:^DOT/FHWA.
^Note:^S^{imultaneously with the al}^{location of the March}^{5, 2}⁰⁰^{8, th}^{ere was a withdrawal of $}^1,78^2,8^{33 of}
^{previously allocated ER funds dra}^{wn from t}^{he an}^nual^{ER aut}^{horization (i.e}^{., which were not s}^pecifically
^approp^{riated for the}^I-35W^{bridge, as was the}^Marc^{h 5 allocation, which was allocated in full).}
^R^obert^S^.^Ki^rk
^Sp^{ecialist i}ⁿ^T^r^an^sp^o^r^tatioⁿ^Po^lic^y
^rkⁱ^r^k@^crs^.^l^o^c.g^o^v^,⁷^-⁷⁷⁶⁹

¹¹^{See also}^{CRS Rep}^o^{rt RL}³⁴¹²⁷^,^Hⁱ^ghw^ay^Br^id^ge^s^:^C^oⁿ^d^iti^ons^an^d^the^Fe^de^r^a^l/^State^Role^,^by^R^obe^r^t^{S. K}ⁱ^r^k^aⁿ^d
^W^illia^m^{J. Ma}^lle^tt.