Order Code RS22268
Updated March 31, 2008
Repairing and Reconstructing
Disaster-Damaged Roads and Bridges:
The Role of Federal-Aid Highway Assistance
Robert S. Kirk
Specialist in Transportation Policy
Resources, Science, and Industry Division
Summary
Most of the major highways and bridges damaged during the 2005 Gulf of Mexico
Hurricanes as well as the I-35W bridge in Minneapolis, MN, which collapsed suddenly
on August 1, 2007, are part of the federal-aid highway system and are therefore eligible
for assistance under the Emergency Relief Program (ER) of the Federal Highway
Administration (FHWA). Following a natural disaster or catastrophic failure (such as
the I-35W bridge), ER funds are made available for both emergency repairs and
restoring the federal-aid highway facility to pre-disaster conditions.

The I-35W bridge in Minneapolis, MN, which collapsed on August 1, 2007, as well
as, most of the major highways in the 2005 Gulf of Mexico hurricanes disaster area, are
part of the federal-aid highway system and are therefore eligible for assistance from the
Department of Transportation (DOT) through the Emergency Relief Program (ER) of the
Federal Highway Administration (FHWA). For disaster-damaged roads that are not
federal-aid highways, states may request reimbursement for emergency road repairs and
debris removal from the Federal Emergency Management Agency (FEMA).
This report describes FHWA assistance for the repair and reconstruction of disaster
damaged highways and bridges or catastrophic failures (such as a bridge collapse). It
begins with a brief discussion of the legislative origins of federal assistance and describes
the ER program in its current form. The report then discusses eligibility issues and
program operation. Finally, the report briefly describes the major findings of a recent
Government Accountability Office report on ER.
Background
For more than 70 years, federal aid for the emergency repair and restoration of
disaster damaged roads has been available. The first legislation authorizing such use of
federal funds was the Hayden-Cartwright Act of 1934 (P.L. 73-393). This act, however
provided no separate funds and states subject to disasters had to divert their regularly

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apportioned federal highway funds from other uses to disaster repairs. The Federal-Aid
Highway and Highway Revenue Act of 1956 (70 Stat 374 and 70 Stat 387) was the first
act that authorized separate funds for the ER program (the program is codified 23 U.S.C.
125). From the passage of the 1956 Act through 1978, funding for the program was
drawn 40% from the Treasury’s general fund revenues and 60% from the highway trust
fund (HTF). The HTF is supported by taxes paid by highway users. Starting in 1979 the
program was funded 100% from the HTF. The ER program was reauthorized, on August
10, 2005, through 2009 by the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: a Legacy for Users (SAFETEA-LU) (P.L. 109-59; 119 Stat 1144).
SAFETEA-LU provided that allocations above the annual $100 million authorization
could be funded from the general fund.
The FHWA’s Emergency Relief (ER) Program
The ER program provides funds for the repair and reconstruction of roads on the
federal-aid highway system that have suffered serious damage as a result of either 1) a
natural disaster over a wide area, such as a flood, hurricane, tidal wave, earthquake,
tornado, severe storm, or landslide; or 2) a catastrophic failure from any external cause
(for example, the collapse of a bridge that is struck by a barge).1 Historically, however,
the vast majority of ER funds have gone for natural disaster repair and reconstruction.
As is true with other FHWA programs, the ER program is administered through the
state departments of transportation in close coordination with FHWA’s division offices
(there is one in every state). Most observers see this as a strength of the program in that
FHWA staff at the state level have established and ongoing relationships with their state
counterparts and this facilitates a quick coordinated response to disasters.
Funding. The ER program has an annual authorization of $100 million in contract
authority to be derived from the Highway Trust fund. These funds are not subject to the
obligation limitation, which means the entire $100 million is available each year.
Because the costs of road repair and reconstruction in many disasters exceed the $100
million annual authorization, SAFETEA-LU authorizes the appropriation of additional
funds on a “such sums as may be necessary” basis, generally accomplished in emergency
supplemental appropriations legislation.2
The $100 Million Per State Cap. The ER program limits the amount that
FHWA may provide under the ER program to each state for each natural disaster or
catastrophic failure to $100 million. For large disasters whose costs exceed the $100
million per state cap, Congress may lift the cap legislatively. For the I-35W bridge
collapse, this limitation was waived in P.L. 110-56.
1 See U.S. Federal Highway Administration, Emergency Relief Manual (Washington, FHWA,
2003), 75. See also FHWA, A Guide to Federal-Aid Programs and Projects, 1999, 86-88.
2 Historically, emergency supplemental ER appropriations have been drawn from the highway
account of the highway trust fund (HTF). The balance in the highway account has fallen in
recent years and it was unclear whether the HTF could fund a large Katrina related supplemental
appropriations without constraining the ability of the HTF to fully fund SAFETEA-LU.

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The Federal Share. Emergency repairs to restore essential travel, minimize the
extent of damage, or protect remaining facilities, if accomplished within the first 180 days
after the disaster, may be reimbursed with a 100% federal share. Permanent repair
projects are reimbursed at the same federal share that would normally apply to the federal-
aid highway facility. For Interstate System highways the federal share would be 90% and
for most other highways the share would be 80%. Permanent repairs done during the first
180 days are also reimbursed at the pro rata share that would normally apply to the
facility. The share for disaster relief for roads on federal lands is 100%. In P.L. 109-148,
Congress broadened the scope of the 100% federal share to encompass all ER program
expenses for repair and reconstruction projects related to the Gulf Coast hurricanes. The
I-35W repair and reconstruction, authorized in P.L. 110-56, would also be 100% share.
As is true with other FHWA programs, the ER is a reimbursable program. This
means that a state can incur obligations, begin repairs and then submit vouchers to FHWA
for reimbursement for the federal share of the project.
Eligibility and Program Operation. The ER program divides all repair work
into two categories: emergency repairs and permanent repairs. Only repairs to roads and
bridges on the federal-aid highway system that have suffered damage during a declared
disaster or catastrophic failure are eligible for ER assistance.3 The intent of ER assistance
is to repair and restore highway facilities to pre-disaster conditions, not to fund new
construction for increased capacity or improve highway facilities or fix non-disaster
deficiencies. In general, work is confined to the federal-aid highway right-of-way.
Emergency Repairs. These are repairs made immediately following a disaster
to meet the program goals to “restore essential traffic, to minimize the extent of damage,
or to protect the remaining facilities.”4 State and local transportation agencies can begin
these repairs immediately and prior approval from FHWA is not required. Once the
FHWA Division Administrator finds that the disaster work is eligible, properly
documented costs can be reimbursed retrospectively. Emergency repair work is to be
accomplished within the first 180 days after the disaster and, as mentioned earlier, is
reimbursed at a 100% federal share. Examples of emergency repairs are: debris removal,
regrading, removal of landslides, construction of temporary road detours, erection of
temporary detour bridges, and use of ferries as an interim substitute for highway or bridge
service. Emergency repairs are meant to permit work to start immediately to restore
essential traffic in the disaster area that cannot wait for a finding of eligibility and
programming of a project. This part of the program is especially designed for speed. In
the case of some disasters, state DOTs have been able to let ER funded debris removal
and demolition contracts the same day of the disaster event.5
3 A Governor may declare an emergency proclamation and the FHWA Division Administrator
may then concur that a disaster occurred and substantial damage has occurred to the federal-aid
highway system roads over a wide area or that the criteria for a catastrophic failure were met and
that the damage is eligible under 23 U.S.C. 125. When the President has issued a major disaster
declaration the Division Administrator’s concurrence is not necessary.
4 FHWA. Emergency Relief Manual.
5 A good example of this is the Northridge Earthquake. See Effects of Catastrophic Events on
Transportation System Management and Operations, Washington, FHWA, 2004, 37-45.

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Permanent Repairs. These repairs go beyond the restoration of essential traffic
and are intended to restore the damaged bridges and roads to pre-disaster conditions and
capabilities. Where the damaged parts of the road can be repaired to pre-disaster
conditions, without replacement or reconstruction, this is done. Where a road needs to
be replaced, ER funding is limited to the costs of building a roadway designed to current
standards and of comparable capacity. ER funds may be used for temporary or permanent
repair of a repairable bridge but permanent repairs may not be funded if the bridge is
scheduled for replacement. If a bridge is destroyed or repair is not feasible then ER funds
may participate in building a new comparable bridge to current design standards and to
accommodate traffic volume projected over its design life. In some cases “betterments”
(added protective features, added lanes, added access control, etc.) may be eligible, but
they must be shown to be economically justified based on a cost/benefit analysis of the
future savings in recurring repair costs.
Permanent repair and reconstruction contracts, not done as emergency repairs, must
meet competitive bidding requirements. A number of techniques are available to
accelerate projects, including design-build contracting, abbreviated plans, shortened
advertisement period for bids, and the cost-plus-time (A+B) bidding6 that includes
monetary incentive/disincentive clauses designed to encourage contractors to complete
projects ahead of time. For example, the repair contract for repair of the I-10 Twin Spans
Bridge between Slidell and New Orleans, Louisiana, that was awarded Friday September
9, 2005, included incentives for early completion. Two-way traffic on two lanes opened
on October 14, 2005, 16 days ahead of schedule and four-lane traffic opened January 6,
2006, nine days ahead of schedule.
Contracts supported by ER funding must meet all contract provisions as required by
23 CFR Part 633A. Davis-Bacon wage rate requirements apply to all ER contracts.7 ER
funded contracts must abide by Disadvantaged Business Enterprises (DBE) requirements,
American With Disability Act (ADA) requirements, “buy America” regulations, and
prohibitions against the use of convict labor (23 U.S.C. 114).8
Repair projects funded under the ER program are subject to the requirement of the
National Environmental Policy Act (NEPA) of 1969. The impact, however, is generally
limited since emergency repairs are normally classified as categorical exclusions under
23 CFR771.117 (c)(9) as are projects to permanently restore an existing facility “in-kind”
to its pre-disaster condition. Betterments may, in some cases, require NEPA review.9
6 Cost-plus-time bidding (A+B method) includes two components. The A component is the
traditional bid for all work to be performed. The B component is a bid of the total number of
calendar days required to complete the project. The contract includes a disincentive for
overrunning the time bid and an incentive for earlier completion.
7 The Davis-Bacon requirements can be suspended by executive order (ref. 40 U.S.C. 276a-5).
President Bush did this in response to Katrina. He reimposed the requirements November 8,
2005.
8 A state may request a waiver of the buy America requirements from FHWA based on a public
interest rationale under 23 CFR 635.4109(c)(1)(i).
9 See CRS Report RL33104. NEPA and Hurricane Response, Recovery, and Rebuilding Efforts,
by Linda Luther.

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ER Funding Sustainability
In February 2007, the Government Accountability Office (GAO) released a report
on the ER program that expressed concerns on the growing budgetary implications of ER
spending.10 The report points out that because of the constrained outlook for the highway
trust fund, the ER program is now mostly funded with general fund revenues at a time
when the
nation faces a pending fiscal crisis, raising concerns about future use of the general
fund and the financial sustainability of the ER program.... ER funds are not intended
to replace other federal-aid, state, or local funds to increase capacity, correct
nondisaster-related deficiencies, or make other improvements. However, contributing
to future financial sustainability concerns is the fact that the scope of eligible
activities funded by the ER program has expanded in recent years with congressional
or FHWA waivers of eligibility criteria or changes in definitions. As a result, some
projects have been funded that go beyond repairing or restoring highways to pre-
disaster conditions ... [such as] projects that grew in scope and cost to address
environmental and community concerns.... Congress has also directed that in some
cases the program fully fund projects rather than requiring a state match.
The report also noted that the $100 million annual authorization is so low, that since
1990, 86% of ER program funds have been made available though supplemental
appropriations. This situation has led to project backlogs that force states to delay
reconstruction or use other highway dollars as they await the funds provided through the
supplemental appropriations process.
2005 Gulf Coast Hurricane ER Funding
As of March 31, 2008, FHWA had received a total of $2.829 billion in ER program
funding requests and had allocated an equal amount for the repair and reconstruction of
the damage to federal-aid highways caused by hurricanes Katrina, Rita, and Wilma.
Table 1 presents the allocations of ER funding.
10 Government Accountability Office, Highway Emergency Relief: Reexamination Needed to
Address Fiscal Imbalance and Long-Term Sustainability, GAO-07-245, 60p.

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Table 1. ER Fund Allocations (2005 Hurricanes as of 3/31/08)
Item
Date
Amount Allocated ($)
Mississippi - Katrina
September 13, 2005
5,000,000
Louisiana - Katrina
September 14, 2005
5,000,000
Mississippi - Katrina
November 30, 2005
20,000,000
Louisiana - Katrina
November 30, 2005
20,000,000
Louisiana - Katrina
January 19, 2006
75,000,000
Florida - Katrina
January 20, 2006
42,843,797
Mississippi - Katrina
January 20, 2006
740,000,000
Texas - Rita
January 20, 2006
11,000,000
Louisiana - Katrina and Rita
February 1, 2006
863,001,488
Mississippi - Katrina
March 6, 2006
248,000,000
Alabama - Katrina
March 28, 2006
17,577,720
Florida - Rita
March 28, 2006
2,331,245
Florida - Wilma
March 28, 2006
478,000,000
Louisiana - Katrina and Rita
April 21, 2006
52,552,159
Louisiana - Katrina
July 13, 2006
174,000,000
Texas - Rita
October 23, 2006
25,994,607
Alabama - Katrina
July 24, 2007
9,800,000
Mississippi - Katrina
September 4, 2007
19,698,984
Mississippi - Katrina
September 4, 2007
301,016
Louisiana - Katrina
November 5, 2007
18,532,349
Total
2,828,633,365
Source: FHWA.
I-35W Minneapolis Bridge ER Funding
Table 2, below, sets forth the allocation of ER funds for the reconstruction of the I-
35W bridge, as of March 31, 2008.11 As of this writing, the amount provided (allocated)
equals the amount requested by the state of Minnesota.
Table 2. ER Funding for the I-35W Bridge Collapse
Funding Requests and Allocations
Amount
Total Formal Request for ER Funds
$371,700,000
“Quick Release” Allocation of August 2, 2007
$5,000,000
“Quick Release” Allocation of August 9, 2007
$50,000,000
Allocation of FY2008 ER funds on November 5, 2007
$123,482,833
Allocation of (P.L. 110-161) appropriation on March 5, 2008
$195,000,000
Total ER Funding for I-35W Bridge
$371,700,000
Source: DOT/FHWA.
Note: Simultaneously with the allocation of the March 5, 2008, there was a withdrawal of $1,782,833 of
previously allocated ER funds drawn from the annual ER authorization (i.e., which were not specifically
appropriated for the I-35W bridge, as was the March 5 allocation, which was allocated in full).
11 See also CRS Report RL34127, Highway Bridges: Conditions and the Federal/State Role, by
Robert S. Kirk and William J. Mallett.

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