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Reauthorization Issues and the Future of Tribal Transportation. Presented by Michael Willis 2010 Self-Governance Annual Conference May 6, 2010. Topics. Reauthorization OIG Report on Interior Roads Programs IRR Funding Formula Controversy Direct Contracting with FHWA.

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reauthorization issues and the future of tribal transportation

Reauthorization Issues and the Future of Tribal Transportation

Presented by Michael Willis

2010 Self-Governance

Annual Conference

May 6, 2010




OIG Report on Interior Roads Programs

IRR Funding Formula Controversy

Direct Contracting with FHWA

safetea lu extension

SAFETEA-LU Extension

SAFETEA-LU expired September 30, 2009

HIRE Act (March 18, 2010) extends SAFETEA-LU through December 31, 2010

safetea lu extension4

SAFETEA-LU Extension

Maintains FY 2009 funding level through FY 2010: $450 million

Continues FY 2009 funding level through 1st quarter of FY 2011: $112.5 million

Appropriates $19.5 billion to Highway Trust Fund

reauthorization or consolidation
Reauthorization or Consolidation?
  • Tribal Reauthorization of Indian Programs (TRIP) Act (Senate Draft)
  • Surface Transportation Authorization Act (STAA) (House Draft)
    • Consolidate programs and funding categories
    • Emphasis on safety and “livability”
    • Intermodalism
  • How to fund?
development of a united tribal position
Development of a United Tribal Position
  • NCAI/ITA Joint Task Force
  • Regional and Statewide Organizations
    • ATNI, USET, OTTC, ITCA, ATTWG, others
  • “White Paper” Outlines Tribal Priorities
    • October 2008
    • Unified Position: Coordinated Advocacy
white paper tribal proposals
White Paper: Tribal Proposals
  • Increase Funding: Roads, Bridges, Transit
  • Create Tribal Transportation Safety Program
  • Road Maintenance
  • Extend ISDEAA to US DOT
  • Make Existing DOT Programs More Accessible to Tribal Governments
tribal reauthorization of indian programs trip act
Tribal Reauthorization of Indian Programs (TRIP) Act
  • Senate Draft (March 2009)
    • Discussion draft for circulation and comment 
    • Tracks White Paper recommendations, with some important exceptions
      • Application of ISDEAA
      • Emergency relief and ROW language
funding irr program
Funding: IRR Program
  • $800,000,000 in FY 2010
  • Step-ups of $50,000,000 each year
  • $1,050,000,000 in FY 2015
  • Obligation limitation exception restored
  • $50,000 “floor” per Tribe
funding irr bridge program
Funding: IRR Bridge Program
  • $75,000,000 in FY 2010
  • Step-ups of $12,500,000 in FY 2011 and FY 2012
  • $100,000,000 in FY 2012-2015
  • Construction of new bridges authorized
  • Obligation limitation exemption
funding tribal transit
Funding: Tribal Transit
  • $35,000,000 in FY 2010
  • Step-ups of $10,000,000 each year
  • $85,000,000 in FY 2015
  • Planning grants up to $50,000 per Tribe
tribal safety programs
Tribal Safety Programs
  • Tribal Transportation Safety Program
    • New 23 U.S.C. 202(d)(6); administered by FHWA
    • $50,000,000 for infrastructure projects
  • Tribal Safety Program
    • New 23 U.S.C. 413; administered by NHTSA
    • $50,000,000 for behavior modification
road maintenance
Road Maintenance
  • Tribes may use up to 25% of IRR funds, OR up to $500,000, whichever is greater
irr inventory
IRR Inventory
  • Within 2 years, Secretaries must ensure IRR inventory attains “95% degree of accuracy”
  • $10,000,000 appropriated to DOT for this purpose
  • Funding formula issue not addressed
indian preference
Indian Preference
  • For projects on or near reservation, States must employ Indian/Native preference
    • Training and employment
    • Subcontracts and subgrants
  • Supersedes State law
advance construction
Advance Construction
  • Tribes with ISDEAA agreement with Interior or DOT may carry out advanced construction projects
    • Explicit authorization for “flexible financing”
application of isdeaa
Application of ISDEAA
  • White Paper: Extend ISDEAA to DOT and its Modal Administrations to enhance accessibility of existing programs
    • Provide uniform terms and conditions
    • Reduce transaction costs
  • Senate Draft: Title VII: Tribal Transportation Self-Governance Program
    • Secretary “shall offer to enter into” an agreement
    • Inconsistent with mandatory language of other Titles of ISDEAA
    • Gives too much discretion to Secretary
right of way
Right of Way
  • White Paper: BIA must provide Tribes documentation of ROW for “all IRR routes”
  • Senate Draft: BIA must provide ROW documentation only for routes “owned by the [BIA] or a tribal government”
emergency relief
Emergency Relief
  • Limits availability of funding to facilities “owned or maintained by the tribal government or [BIA]”
status of reauthorization process
Status of Reauthorization Process
  • House Transportation & Infrastructure (T&I) (Oberstar, MN)
  • Senate Environment & Public Works (EPW) (Boxer, CA)
  • Senate Draft (TRIP Act)
    • 85 Tribes submitted comments; SCIA still accepting comments
    • Listening session held
    • Draft is still on the table
status of reauthorization process22
Status of Reauthorization Process
  • House Transportation & Infrastructure (T&I) (Oberstar, MN)
  • STAA of 2009
    • Funding levels undecided
    • Lacks extension of ISDEAA to DOT
    • “Livability”
    • Senate EPW has yet to commit to STAA approach
    • Uncertain how TRIP or White Paper priorities could meld with STAA approach
reauthorization recent activity
Reauthorization: Recent Activity
  • March 24, 2010: Senate EPW holds full committee hearing to examine opportunities to improve energy security and the environment through transportation policy
  • April 14, 2010: EPW holds hearing to examine opportunities to reduce injuries and fatalities associated with the nation’s highways; no tribal testimony
  • April 14, 2010: House T & I Committee Subcommittee on Highways and Transit holds hearing to receive testimony on innovative financing practices in surface transportation project delivery
  • Senate Committee on Indian Affairs has no plans to hold hearing on tribal transportation legislation until summer or possibly fall
  • Momentum building now that health care legislation passed and ARRA winding down
  • SAFETEA-LU extension buys time
  • DOT has promised significant outreach, opportunity for tribal input
oig report on interior roads programs
OIG Report on Interior Roads Programs
  • Department of the Interior Roads Programs: The Dangers of Decentralization
  • Issued by DOI Inspector General’s Office February 2010
  • Question: Does DOI systematically identify roads needs and priorities, implement project plans, and account for funds expended?
oig report findings
OIG Report: Findings
  • Inventories: Significant inaccuracies skew funding levels
  • Prioritization and Implementation: Inadequate in some bureaus, including BIA
  • Accountability: BIA cannot adequately detect misuse and mismanagement of funds
oig report findings27
OIG Report: Findings

Inventories Skewed:

  • NPS and FWS have accurate, up-to-date inventory and condition databases, but BIA and BLM do not.
  • BIA inventory “skewed” because:
    • 40,000 mile “unexplained increase” in IRR inventory between FY 2005 (62,000 miles) and FY 2007 (102,000 miles)
    • Tribes “self-report” road miles with “little to no on-site, independent verification performed”
    • IRR funding formula creates incentive to overstate miles
oig report findings28
OIG Report: Findings

Prioritization Problematic:

  • BIA prioritization “decentralized”—driven by tribal input
  • 5-Year TTIPs may be revised as often as tribes wish, defeating purpose of long-range planning
  • TTIPs subject to turnover in tribal leadership and consequent shifting priorities
oig report findings29
OIG Report: Findings

Accountability Lax:

  • BIA lacks control of accounting and use of funds, as illustrated in “Flash Report” on Alaska
  • Funding formula “allows tribes to misrepresent road mileage and conditions under their domains”
  • Neither BIA nor FLH has resources to monitor expenditure of funds
  • Risk of waste and fraud is “unacceptably high”
oig report recommendation
OIG Report: Recommendation

Establish a DOI-level office or group able to provide centralized, consistent, systematic oversight of the different FLH-supported roads programs and to serve as a focal point for interaction with DOT.

oig report misconceptions as to irr program
OIG Report: Misconceptions as to IRR Program
  • Inventory: Neglects to consider steps taken by tribes and FHWA to improve accuracy of inventory
  • Prioritization & Implementation: Suggests that DOI, not tribal governments, should prioritize tribes’ transportation needs—a suggestion at odds with SAFETEA-LU and the ISDEAA
  • Accountability: Fails to recognize that regulations govern inventory and funding formula
oig report procedural concerns
OIG Report: Procedural Concerns
  • OIG failed to consult with Tribes in producing report
  • To our knowledge, BIA has yet to consult with Tribes, or the IRRPCC, in formulating a response
  • Tribal response is critical as Congress considers reauthorization
administrative push to resolve funding formula controversy

Administrative Push to Resolve Funding Formula Controversy

BIA and FHWA leadership to meet this month to address “Question 10.”

BIA has indicated resolution of the issue may involve rulemaking, not just policy clarification

No indication that BIA will convene a negotiated rulemaking committee as required by Title 23 of the United States Code

trend toward direct contracting with fhwa
Trend Toward Direct Contracting with FHWA
  • Agreements “in accordance with the ISDEAA”
  • Model Agreement
  • DOJ letter represents that FTCA applies to FHWA agreements
  • Chronic problems with BIA and OSG
  • 51 Tribes now work directly with FHWA; 25 more are “in process”
  • Future of contracting/compacting with BIA/OSG?
questions comments
  • Michael Willis or Geoff Strommer
  • Hobbs, Straus, Dean & Walker, LLP
  • 202-822-8282 or 503-242-1745