Reps Pickett, Isett not deterred by fed letter questioning House TxDOT sunset bill

House Transportation Chair Joe Pickett, D-El Paso, said Wednesday he was not worried by a letter the Federal Highway Administration (FHWA) sent to
the Texas Department of Transportation.

The letter, sent Tuesday, raised concerns over “potential conflicts” between the House version of the TxDOT sunset bill, HB 300, and federal law and regulations.

“I’m not concerned at all,” responded Pickett." It was TxDOT asking them to draft a letter based on their spin, their interpretation of the bill instead of actually what is in it."

The letter said that, "the proposed legislation causes FHWA great concern as it appears to be inconsistent with core concepts of our program.”

But according to Pickett, the letter is a tactic he has seen from TxDOT before.

“It is just one of those things they try to do,” said Pickett, referring specifically to a 2007 moratorium bill on Comprehensive Development Agreements, which was eventually vetoed by the governor.

“TxDOT got the FHWA to write a letter saying they (the legislature) couldn't do that," Pickett recalled. "Then (U.S.) Sen. (Kay Bailey) Hutchison came in and admonished the FHWA for sending something that wasn't accurate.”

Pickett said he was not planning to ask Hutchison to get involved again. Instead he and others were “crafting a response” themselves.

“We’re clearly not going to do anything that violates federal law or puts our funds in jeopardy,” said state Rep. Carl Isett, R-Lubbock, who authors the House version of the bill. “We continue to push forward to have the commission adopt rules that meet the federal requirements but still give local communities the ability to chart their own destinies.”

Those tensions between local destinies and federal rules seem to be what has got the feds worried. The letter says that HB 300 causes the FHWA “great concern,” partly because it appears to “not provide for the necessary authority of the state Department of Transportation."

However many of the issues raised by the letter seem minor, easily rectified by tweaking and clarifying the language.

For example, the letter brings up Sec 201.655 of HB 300. Put simply, the section obliges the Texas Transportation Commission to allocate two years
worth of an MPO's cash into a “sub account” which, if not spent, rolls over, “forward from year to year for the benefit of the region.”

The FHWA letter says that section is “vague, unclear and could well conflict” with federal regulations.

Their argument: the feds don’t dole out money to states that can be deposited into sub accounts for MPOs -- it is a reimbursement program where states spend the money and the feds cut the checks later or (if the spending complies with federal regulations).

But Pickett said that the letter’s interpretation of that section is flawed. The sub accounts are only virtual -- “sub accounts for each region in the state highway fund,” to quote the bill -- and as such, simply a way of illuminating how much money an MPO has (in theory) at its disposal.

So TxDOT retains the checkbook –- MPOs merely have a better idea of how much pocket money they will receive.

The letter arrived late Tuesday, after a testy exchange between TxDOT officials and members of the House Transportation committee. Pickett said
the response to the letter would cover the same ground the committee hearing did.

If so, the House response might be a belter. TxDOT officials received a mauling on Tuesday because of their recent criticism of HB300.

"Myself and the committee had originally not intended to have any discussions like that," said Pickett. But "the misinformation that went over to the Senate and the fact that TxDOT trashed our version" led to
the fireworks on Tuesday morning.

"Basically not one word that TxDOT said about the House version was true. We were able to get them on the record," Pickett said.

TxDOT officials had told the Senate Transportation committee last week that if enacted as-is, HB 300 could jeopardize federal funding -– something
the FHWA letter hinted at too.

“I think that’s a red herring…they’ve (TxDOT) thrown that red herring up on issues before," said House Transportation Committee member state Rep. Linda Harper-Brown, R-Irving, after the Tuesday hearing.

Pickett believed the exchange clarified that federal funds were not at risk and therefore the FHWA letter was moot.

"The federal government doesn't give us grant money to go spend," Pickett reasoned. "They give us the money after we've spent it." According to Pickett, that gives the federal government power over TxDOT and TxDOT ultimate authority over Texas transportation dollars.

"The bottom line is: would TxDOT spend state dollars if that would jeopardize federal allocations? The answer (during the hearing) was no. Would the FHWA reimburse us (Texas) for something that didn't meet their criteria? The answer was no. So it’s pretty simple."

The feistiness of Tuesday’s debate was due in part to ongoing disputes between House and Senate members over the sunset bill. The House and Senate versions of the bill are very different, partly because different bills have been rolled into them as they have made their way through their respective chambers.

As things stand, the House version would create a position of Inspector General, enlarge the TTC membership from five to fourteen, rolls in Pickett's HB 2859 (which directs the money from TxDOT to MPOs) and took on board 177 amendments on the House floor. The Senate version has none of those changes, but rolls in other Senate bills and took on 33 amendments before it left committee.

But also, there are fundamental differences in their approach to TxDOT, according to House and Senate members, and time is running short.

"I think the observation of tension is correct," said state Sen. John Carona, R-Dallas, Tuesday. “The House takes a radically different approach than the Senate."

Carona, who chairs the Senate Transportation and Homeland Security committee, said that the House version would "largely dismantle TxDOT" as a state agency and "send transportation decisions as well as funding down to the level of MPOs."

Carona believes the Senate approach is more “thoughtful” than the House’s, making TxDOT more transparent and accountable without gutting it.

“Rep. Pickett is Chair of his own MPO and has a natural and understandable allegiances to MPOs. The Senate's approach on the other hand leaves the ultimate authority to the TxDOT ... and to the extent appropriate, respects the local RMAs," Carona said. (An interesting comment in light of the local brouhaha over the El Paso RMA and a last-minute Pickett amendment to HB 300. [href="http://www.newspapertree.com/politics/3806-pickett-s-transportation-amendment-drives-crrma-issue-toward-future-elections" target="_blank">link] Pickett later said that he would be willing to delete his amendment. [link])

He added that the FHWA letter “makes it very clear we have reason to be concerned under the House’s proposals" and was “another reason why senators should get behind the Senate version."

Pickett, speaking Wednesday, said that he wants to “make sure TxDOT quits threatening communities with funding if they don't do exactly what they
want them to do."

"We want reform. They (the Senate) want the status quo plus giving more authority to TxDOT. That’s the difference," Pickett said of the House and Senate approaches.

Harper Brown had made a similar point Tuesday.

“I think the Senate merely want to tweak what already exists," she said. "With all due respect to the Senate I don't think they have spent the time we have spent with this bill…Clearly what the (Sunset) commission and the (Sunset) advisory committee, this committee and the members of the House feel is that this agency needs a complete overhaul.”

Responding to Harper Brown’s comments later that day, state Sen. Glenn Hegar, R-Katy, and author of the Senate version, said that the idea that the upper
chamber only wanted to tweak TxDoT was “amazing.”

“I’ve been critical of (TTC) Chair (Dierdre) Delisi, Commissioner (Ted) Houghton and very critical of their actions … It seems maybe that was just posturing more than anything else,” Hegar said adding that he had “been on TxDOT’s back for years.”

"When you look at the (Senate) bill there are fundamental reforms in there."

Hegar also said that he thought the differences between the bills were overrated and that the idea that the House version would jeopardize Federal funding was "questionable."

“I don't really think that the two are that far apart. Really the question is only whether there is line items of formula funding, for each regions…is it a specific allocation or is there some other way?” he said.

For Hegar, "transparency is the key," not the apportionment of funds. “Following the money is very critical...as long as we know where the money’s at we can make this work."

With less than two weeks left in the session, and the Senate bill not yet on the House floor, much remains to be hashed out between the two chambers in conference before sine die.

Pickett said after the hearing on Tuesday that while there were many differences, the two bills had over 40 points of agreement. Issett, likewise expressed a profound desire to pass a substantial Sunset bill,
rather than wait two more years.

“We'll get all this worked out," was Hegar’s optimistic assessment.