Guest post by Professor Robert Dean
Klineline Bridge, Vancouver, WA, circa 1955
Has the CRC tripped over the HCT Act?
I once asked the Columbia River Crossing Project Director, Don Wagner, what would cause the project to fail. He looked pensive for a moment and then blurted out, “failure of funding.”
I sensed that he seemed somewhat melancholy. Republican Representative Jaime Herrera Beutler had just been elected to Congress and the Columbian newspaper had endorsed the opponent of Democrat State Representative, and CRC booster, Jim Moeller. Various citizen movements were ascending to public prominence and the Vancouver City Council was still reeling over an infamous “meltdown” incident. There was, at the time, January 2011, a palpable disenchantment for the project brewing in the community.
However, Mr. Wagner kept up a brave front and explained that funding for the project was a three-legged stool – if one leg fails the whole stool falls. He explained the stool analogy further by pointing out that there were to be three sources of funding, each contributing one third of the total needed for final construction: federal, the two states, and the local contribution (tolls).
Two of the legs were clearly in jeopardy. Oregon had not budgeted their $half billion plus at all. Washington was already $2 billion in the red. And both states were approaching their constitutional caps on bonding capacity and with other projects pressing. The feds? The feds were borrowing from the Social Security Trust Fund and raising their debt ceilings to accommodate record and unheard of levels of borrowing trying to jump start an ailing economy.
But what about that third leg – the local contribution? In January of the previous year, Clark County Commissioner, Steve Stuart, and Metro Commissioner, David Bragdon, had approached Wagner and asked for a scientific survey to gauge the willingness of the local community to pay that third leg; the local contribution, tolls. He did not do it – no need to ask.
If he had asked if we were willing to pay the local contribution, estimated at the time to be about $1.2 billion capital costs (or $8 billion counting toll costs, interest, and cost overruns according to the Impreza study by Joe Cortright), we would have said, “No!” Best not to ask.
Apparently, though, no one thought to consult the law. By Washington State law, RCW 81.104, the HCT Act, they must ask.
By law, they must ask C-Tran voters to approve two essential elements of any high capacity transit (HCT) system:
1) The system plan itself (Locally Preferred Alternative);
2) Funding for operations and maintenance.
RCW 81.104.030 (1)
“Transit agencies … shall seek voter approval within their own service boundaries of a high capacity transportation system plan and financing plan.”
At the time, citizens were hammering the City of Vancouver Council, Clark County Commissioners, and the boards of C-Tran and RTC, demanding a vote on the Locally Preferred Alternative light rail plan. They knew instinctively that in the US we get to vote on increased taxes.
No wonder Mr. Wagner seemed melancholy. Wagner is a registered professional engineer. Every professional knows the laws that govern his profession. He not only knows the statutes, he knows the intent behind the statutes and he knows how the courts have ruled interpreting those statutes. As a professional engineer he is bound, by law and ethics, to alert his employer whenever, and as soon as, he thinks the project might fail.
Why then, would he circumvent so explicit a statute as the HCT Act? That story is as yet untold. What we do know is that Wagner was replaced as Director of the CRC about 5 months later by Nancy Boyd.
Ms. Boyd worked wonders. The project was already a year behind schedule when she took over the reins. In the six months following her arrival on the scene, she rushed through approval of the Final Environmental Impact Statement (FEIS) without much public opposition (or review for that matter) and had secured the Record of Decision (ROD) from the FTA before the year was out. Whoa!!
Too bad there was no public review of the FEIS. The FEIS was approved by all 4 participating agencies several weeks before it was published and available for review by the public at large. Each agency board, C-Tran and RTC here in Washington, received an advance copy of the voluminous report and politely listened to and watched a PowerPoint presentation on its contents given by high ranking CRC staff members.
If the public at large had been given a chance to peruse the volumes of reports and exhibits, so confounding to councilors, individuals may have noticed certain details of particular interest to themselves.
For instance, the owners of Thompson Metal Fab may have noticed that the bridge was too low. C-Tran critics may have noticed that the CRC was contemplating taking diversions from the budget for maintenance and operations of buses and using the money saved to fund operations and maintenance of light rail – an illegal move. Downtown Vancouver residents and businesses may have noticed that they would have to endure 6.3 years of construction with no compensation and little mitigation beyond signs and publication of construction schedules to warn away their customers. Certain critics of the financial plan may have noticed that the two states were planning to fund their leg of the stool by taking out TIFIA loans. TIFIA loans are federal loans at 3% interest over 30 years that get paid back, principal and interest, with tolls. In other words, by the local community; we would pay for two legs of the stool, not one. And, horror of horrors, tolling critics might have pointed out that the CRC FEIS did not fill the gaping $half billion hole in expected revenues to pay the local contribution – there was no investment grade tolling study as recommended by the first Independent Review Panel and by the Oregon Treasurer.
The 170’ high Crescent City Connection Bridge blocks passage of a Carnival cruise ship on the Mississippi River at New Orleans
Other than that, the FEIS was a pretty impressive document for having been rushed through as it was.
One other small item might also have been noticed by anyone with an eye for detail if they were picking through Chapter 4, the financial chapter, of the FEIS. On page 31 the CRC acknowledges the following: “Under the HCT Act, a transit agency must receive voter approval of a “high-capacity transportation system plan and financing plan.”
Notice that little conjunction, “and.” In Boolean algebra “and” indicates separate discrete sets – same in law. According to the CRC the HCT Act requires C-Tran voter approval of two separate and discrete elements of the CRC light rail plan:
1) The system plan
2) The financing plan
Two votes: one for the plan AND one for the financing. Sorry guys, that’s what it says! No, I am not an attorney.
If I were an attorney, I might have noticed several other interesting provisions of the HCT Act:
1) Every funding source for high capacity transit is subject to approval by the voters (RCW 81.104.140 (4));
2) WSDOT cannot by law pay more than 80% of the costs “for high capacity transportation planning efforts” – the local community has to pay the other 20% (RCW 81.104.090(1));
3) C-Tran must study the impact of light rail on adjacent and nearby properties – direct and indirect effects (RCW 81.104.100 (3)).
4) Light rail or bus rapid transit must be a “reasonable alternative” to regular buses – cheaper per passenger mile to build and operate (RCW 81.104.120(1)).
If I were an attorney, I might have noticed several other interesting allusions to the HCT Act:
1) Both C-Tran and RTC approved the Locally Preferred Alternative with conditions consistent with the HCT Act – C-Tran voters must approve funding of the operations and maintenance of light rail whatever the source of that funding (RCW 81.104.140 (4));
2) The C-Tran board delayed the sales tax vote one year at an estimated cost to the project of $100 million (assuming 3% inflation) to comply with the HCT Act requirements for an expert review of the light rail proposal (RCW 81.104.110);
3) The Oregon Treasurer’s report says the C-Tran vote is on the “critical path” for FTA to release construction funds. In other words, no construction can commence on the entire CRC project until C-Tran voters approve Proposition 1 this November 6 (RCW 81.104.120 (2));
4) The FTA Record of Decision is contingent on the agencies, C-Tran and RTC, following through on their conditions of approval of the Locally Preferred Alternative. Both agencies made it a condition of approval that C-Tran voters must approve funding of the operations and maintenance of HCT whatever the source of that funding.
Then comes the weekend of September 8 and 9, 2012 – the three principal boosters (no jokes please) of the CRC light rail project publicly announce their simultaneous epiphanies of the futility of asking the voters to pay the local contribution, or even operations and maintenance costs, for light rail. The third leg of the stool is shattered. Chapter 4 of the FEIS, the financial chapter, is shredded. The very thing that commissioners Steve Stuart and David Bragdon foresaw two years prior has come to fruition. The people don’t want light rail; no need to ask.
Now what? 15 years and $160 million down the drain? No! If they learned anything from this debacle they will have learned that there is a capacity problem for transportation crossing the Columbia River. That capacity problem must be solved but light rail is not part of the solution. My advice to the FTA and FHWA is to disband the CRC but salvage what you can. Conduct a Supplemental Environmental Impact Statement and revisit the Purpose and Needs Statement. Take out all references to light rail and look for solutions that solve the capacity problem foremost.
Most importantly, thank the local community for their contributions to gas taxes through the decades and assure us that you will put those taxes to good use right here on this the most important international corridor for commerce on the West Coast. Tell us you won’t need any more local contribution from us than that.
Robert Dean
Durham, NC 27713
