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States need more federal flexibility and consistency to be able to deliver the transportation projects promised in the new infrastructure law, state transportation officials told the Senate Wednesday.

“State DOTs are going to be delivering the largest capital programs we’ve ever done and so listening to the states and giving the states the flexibility to deliver programs is going to be key,” said Delaware Transportation Secretary Nicole Majeski during a Senate Environment and Public Works Committee hearing titled “Putting the Bipartisan Infrastructure Law to Work: The State, City and County Perspectives.”

Congress needs to help ensure states “have FHWA division offices that are partners and helping us get to yes, as opposed to always putting up roadblocks,” Majeski said.

Jim Tymon, executive director of the American Association of State Highway and Transportation Officials, told lawmakers that federal guidance on certain programs has been inconsistent.

American Association of State Highway and Transportation Officials.

The competitive grants pose more of a problem than the formula funding, said West Virginia Secretary of Transportation Jimmy Wriston.

“I can firmly and confidently predict that today, a year from now, we will be talking about great successes with the formula portion of this law,” Wriston told lawmakers. “I can just as firmly predict the absolute and nearly abject failure on the discretionary side,” he said. “We depend on these federal agencies as not only partners but advocates, and I think they’ve lost their way.”

The FHWA has been inconsistent, for example, on whether states can move federal funds from one bucket to another, and whether states will be responsible for reducing transportation-related greenhouse gas emissions, panelists said.

“The FHWA division offices have run the gamut with guidance across the country with the 52 DOTs,” Wriston said.

Jim Tymon, executive director of the American Association of State Highway and Transportation Officials, which represents state DOTs, agreed that federal feedback on some programs has been uneven.

“We do seem to get different guidance from state to state on different issues, for example the transferability of funds to different programs,” Tymon said. “It really came to light this summer,” he said. “Some [states] were told yes, some were told no, some were told yes and then three months later were sent a stern letter.”

Delaware’s Majeski said it’s often only through AASHTO peer meetings that officials realize that federal guidance differs among the states.  

The $1.2 trillion IIJA marks one of the largest federal investments in infrastructure to date. The law features hundreds of new discretionary programs on top of traditional formula funding. The rollout of the law hit turbulence almost immediately when the FHWA’s deputy administrator penned a memo last December suggesting federal funds should not be used for highway expansion projects.

That memo coupled with subsequent guidance on highway formula funds “created confusion among the states and the FHWA division offices, and [is] leading to inconsistent implementation,” said Sen. Shelley Moore Capito, R-W. Va., the committee’s ranking Republican.

While the U.S. Department of Transportation has combined a few grant programs into one application process, the sheer size and number of funding opportunities spells a complex application process, Tymon said.

“I think it’s going to be a challenge for this administration moving forward, given the size of the discretionary grants and the number of them,” he said. “How can they do that in an efficient manner to process those applications and get the dollars out on the street? I think that’s going to be very tough over the next four and a half years.”

The hearing comes a week after the committee heard from Shailen Bhatt, who President Biden has nominated to oversee the Federal Highway Administration. Committee chair Sen. Tom Carper, D-Del., said finally getting someone in to head up the FHWA will help iron out implementation confusion and that Bhatt, a former state transportation official, would likely understand many of their concerns.

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