The Awful Truth About the Transpo Bill’s Bike/Ped Loophole

In the immediate, panicked moments after the MAP-21 conference report was released, I missed some of the nuances of just how bad a deal this bill is for bike policy.

Three things stand out:

• States can use their Transportation Alternatives (TA) money on anything they want.
• Bike/ped programs are facing anywhere from a 33 percent cut in funding to a 66 percent cut, depending how each state reacts.
• The mandatory sidepath law was included.

Let’s start with Number Three. The law states that if there’s a paved bike path within 100 yards of a federally owned road, cyclists have to use it -- given the speed limit on the road is at least 30 miles per hour. When this was first included in the Senate bill last fall, bike advocates called it “paternalistic” and said it ignores cyclists’ fundamental right to the road.

“If the path is any good, you shouldn’t have to force anyone to use it; they will use it voluntarily because it works,” wrote Andy Clarke, president of the League of American Bicyclists. Unfortunately, he said, many paths are “dangerous, slow, and out of the way” – and cyclists would still be forced to use them under this law.

The concerns were partially addressed between this provision's appearance in the Senate bill and the final conference report. It now states explicitly that cyclists are prohibited from using the road unless “the bicycle level of service on that roadway is rated B or higher.” So, if the road is more bikeable than the sidepath, in some instances, the cyclist can choose the road.

However, there’s no uniform way of measuring how bike-friendly a roadway is. The FHWA has developed a measurement for “bicycle level of service” but it’s not universally utilized. Besides, I wouldn’t count on every cyclist knowing the rating of every roadway they ride on.

Advocates’ concern about being forced off of streets and onto shoddy paths remains.

Three Ways States Can Filch Bike/Ped Money

On to the funding “transferability” in the Transportation Alternatives section, which now includes bike and pedestrian funding. If you'll recall, half of TA money gets distributed, proportionally to population, to metropolitan planning agencies or local governments. The other half is supposed to capitalize a grant program in each state, to be overseen by their DOTs, allowing municipalities to apply for the funds.

Initially, I wrote that states could “opt out” of using their TA money for this grant program and instead dump the money back into CMAQ – the Congestion Mitigation and Air Quality program – meaning they could use it for a broader variety of projects intended to reduce traffic jams and pollution. States would only be able to do that if they’d already accrued at least a year’s worth of funds in their coffers without spending it. Then, they could spend whatever comes in afterwards on other projects – but only if they keep a full year’s worth just sitting around, unspent.

The trouble is, there are actually three different provisions in the bill that allow states to squander their bike/ped money. And this one has been rendered moot by more sweeping “opt-out” measures.

In addition to the original opt-out provision I mentioned, there’s one that allows states to "flex" their TA money in case of a state of emergency, so that states can use all the money at their disposal to repair infrastructure damaged in a natural disaster. That’s understandable enough, and once the federal government reimburses states for the repairs, states are supposed to reimburse the cities and towns.

But the real blank check for states comes in the form of the transferability clause, which governs the whole bill. State DOTs have always been allowed to “flex” up to 50 percent of their federal funding to the needs they deemed most important, with a few exceptions. Former Rep. James Oberstar had carved out a firmer policy for CMAQ and Transportation Enhancements (the program that has now morphed into Transportation Alternatives), which allowed only 10-15 percent of those programs to be flexed.

That meant states could take about 15 percent of TE, which was 10 percent of the Surface Transportation Program, which was less than a quarter of total transportation spending. That left such a small amount available for “flexing” that states rarely bothered.

The Senate bill protected the 10-15 percent flexibility for the pot of money dedicated to bike/ped projects. But the final conference report upped it to 50 percent, just like any other highway program. That means the full half of TA money that states receive can be “flexed” away instead of used for the grant program. And, unlike the first opt-out provision – the one that’s actually in the TA section of the bill – the transferability clause allows those flexed funds to be used for anything the state desires. The money doesn't have to be spent on another project to improve air quality. It can just go to build another road to nowhere.

This provision allowing states to squander active transportation money on other projects – any other project – is what led America Bikes to say the new law could mean a 66 percent cut in bike/ped funding.

On its face, it looks like a 33 percent cut. Transportation Enhancements, Safe Routes to School, and the Recreation Trails Program got $1.2 billion all together in 2012, and next year they’ll only get $808 million (and then $820 million in 2014). But if all states fully exercise their transfer power, 66 percent of dedicated bike/ped funds will go up in smoke.

The bill does have some modest good news for bike/ped. Projects will probably be faster and easier to build, as the bill makes it clearer that bike/ped projects don’t need to undergo environmental reviews. Bike/ped projects get an exemption, but so do projects using less than $5 million of federal funds and projects in the existing right-of-way, as most bike/ped projects are, making these triply exempt. That’s one good thing that came out of an otherwise devastating blow to environmental oversight and local participation.