The American Association of State Highway and Transportation Officials outlined in a letter to the Federal Highway Administration some of its concerns with an “updated template” being crafted for Stewardship and Oversight or S&O Agreements – an effort mandated by Congress as part of the Infrastructure Investment and Jobs Act or IIJA enacted in November 2021.
[Above image by AASHTO]
S&O Agreements formalize the delegation of federal-aid highway program responsibilities – such as for safety, systems operations and preservation, design and construction, and many other issues – from the FHWA to state departments of transportation.
“AASHTO and state DOTs welcome proposed modifications to the S&O Agreement template that move the oversight of project responsibilities toward more risk-based approaches, as it will lessen the administrative burden on both states and FHWA,” the organization said in its letter.
However, AASHTO stressed it “wants to ensure” that any new template enables FHWA to meet its oversight responsibilities, consistent with Congressional intent, while preserving the ability of states to address their own needs and state requirements.
“AASHTO supports the opportunity to adjust review schedules to align with other programs, processes, or requirements, such as in an individual state’s laws,” the group noted. “Regulations and processes change at different times, so opportunities to modify the template to address each state’s practices are needed. Where review schedules are already documented in state guidance documents, manuals, or standard operating procedures, these schedules could be referenced to ensure alignment of the S&O Agreement with state practice.”
AASHTO emphasized that several states “expressed concern” with the introduction of the proposed “stewardship and oversight plan,” which would allow the FHWA Division Office – at its sole discretion – to supersede the delegation of responsibilities to the state for specific projects or even entire programs.
“In addition to not clearly defining this new plan, the template does not provide any limits on the scope, content, or frequency with which these plans might be used,” the organization added. “The frequent use of individual plans for projects or programs will lead to confusion over roles and responsibilities, and the potential for project delays and increased costs due to this confusion. More definition needs to be provided on this situation, including why and how often it might be used – ideally in rare instances – and the state DOT should have input into the development of this plan.”
AASHTO said it recommends that FHWA revise the template language while still giving state DOTs the flexibility to address state-specific needs, such as through attachments to the agreement.
“In general, states desire flexibility when it comes to developing S&O Agreements with their FHWA Division Offices,” the group pointed out. “However, there are concerns among several states that amending the template itself would violate the requirement for public notice and comment that is mandated by IIJA.”
AASHTO also noted its disagreement regarding “setting an arbitrary term limit on S&O Agreements, such as the proposed maximum of six years noted.”
In addition, the letter noted “the proposed template allows FHWA too much authority to take such actions as requiring an S&O Agreement to be replaced in its entirety at the request of the Office of Infrastructure or terminating an agreement “at any time” (or immediately in an “extraordinary circumstance”) if the FHWA Division Office deems it no longer “in the public interest” without providing an “indication as to what situation might give rise to such terminations, and actions such as these could be catastrophic to the delivery of federal-aid projects and programs in a given state, as the Federal government would not likely be in a position to quickly take over these responsibilities.”