Image: BART

As part of the complicated funding swaps BART staff arranged with regional and state transportation planners to proceed with the Oakland Airport Connector following the loss of $70 million in federal stimulus dollars due to civil rights deficiencies, the transit operator was hoping to get a federal loan with a low interest rate and a favorable interest payment schedule.

Unfortunately for OAC proponents, as reported recently in Project Finance Magazine (subscription needed), the US DOT announced its Transportation Infrastructure Finance and Innovation Act (TIFIA) loans for FY 2010-11 and the OAC was not among the projects selected. BART had applied for $105 million from the feds for the $484 million project.

Because BART has enough cash on hand to proceed with preparations for construction and actual groundbreaking in early 2011 (versus the ceremonial event held last month) and because TIFIA loans can be applied for continuously, the agency was not particularly concerned with the news.

“Quite frankly we don’t need the money right now,” said BART spokesperson Linton Johnson, who explained that in BART’s experience TIFIA loans are prioritized for projects that urgently need them. He also pointed to Federal Transit Administrator (FTA) Peter Rogoff’s assurances that BART would get a $25 million New Starts grant when the feds accept its revised civil rights compliance . “This shouldn’t be an indication that we’re not eligible for it or that something is wrong.”

Image: BART

OAC opponents offered a different analysis of the federal action and said this narrowed BART’s options for financing and ultimately would raise the debt obligation for the project by millions of dollars. Referring to BART’s own analysis, TransForm’s John Knox White indicated that if BART cannot secure a TIFIA loan, in the best case scenario with Build America Bonds they would have to subsidize the OAC with $46.3 million from the core system (versus $24 million) and would have to pay $115 million in debt financing (versus $106 million).

“The TIFIA decision is yet one more example of how BART’s likely financial scenario in its presentation was overly rosy,” said Knox White, who also noted the possibility that Build America Bonds will not be re-authorized and BART could have to go out and find loans with even worse interest and debt scenarios. “That’s tens of millions of dollars in debt the core system will have to cover.”

Because the BART board removed any preconditions that would have compelled staff to bring a revised funding plan before them should they not secure TIFIA, BABs or other funding (such as the Port of Oakland’s passenger surcharge approval from the Federal Aviation Administration), there will not likely be further debate about the financial scenario.

Johnson expressed optimism, saying he believed BART would be well-positioned for TIFIA loans in FY 2011. “There is a pool of money and it gets replenished. We’d love to have it in hand to make us feel good,” he said, but noted, “we’re not at the urgent stage yet.”

The officials who supported the Oakland Airport Connector, in some cases for decades. Photos: Matthew Roth

After decades of political wrangling, BART is on the verge of building the Oakland Airport Connector (OAC), a $484 million, 3.2 mile automated people mover that will connect the Coliseum BART Station with the Oakland international Airport. BART held a ceremonial groundbreaking yesterday with most of the significant East Bay political establishment, two weeks before the agency gives the Parsons/Flatiron/Doppelmayr team the order to proceed with design and construction.

“There’ve been many pitfalls throughout this process,” said U.S. Representative Barbara Lee, a champion of the OAC and part of the California delegation that helped get further assurances in the eleventh hour from Federal Transit Administrator Peter Rogoff that the project was still going to get nearly $25 million in federal New Starts funding. “I just want you to know that countless Bay Area residents, all of you have come together to make sure this day happened.”

Lee led off a round of speeches that went for more than one hour, as each speaker thanked the others on the dais and congratulated everyone for their perseverance. A throng of workers representing the trade unions that hope to work on the project circled the large tent BART erected for the event, roaring with applause every time a speaker mentioned jobs and the project labor agreement with local hiring and zip-code priority guarantees.

The exact number of jobs the project will create has long been a controversy, one that project opponents highlighted to cast aspersions on BART. Even at the groundbreaking, the number was in flux, from several speakers that referenced the 2,500-5,000 direct and indirect jobs over the course of the four years of construction (numbers derived from state and federal jobs creation metrics), to the “several hundred direct jobs” referred to by Oakland Mayor Ron Dellums.

With the recession and unemployment weighing on everyone’s mind, Dellums argued the OAC was exactly the kind of project the public should be funding. “One can debate where and how one uses public money,” but one can’t debate that that public sector spending can have “an enormous impact on the economy,” he said.

A large crowd attended the ceremony, including many from the building trades hoping to build the project.

Dellums had made several entreaties on behalf of BART to the FTA and the California delegation when it seemed the OAC might not get the funding to proceed. “This project today is a shining and magnificent example that the expenditure of public [money] can generate employment, can generate opportunity, can generate business and can strike a mighty blow at the greening of our cities and the greening of our region,” he said. “I’m very proud to have played one minor role in making sure that this moment came forward.”

The OAC has been one of the most contentious BART extensions in the transit agency’s history. Particularly in the past two years, advocates and community groups have used the OAC backdrop as they challenged its funding strategy and the overall civil rights policies of the agency, challenges that led the FTA to declare BART deficient in several areas. Those deficiencies have since been addressed to the FTA’s satisfaction, though the resolution of the federal investigation into the agency has not been formally closed.

At the groundbreaking, project proponents were notably relieved, and somewhat bombastic, given that the long debate over the connector appears to be over. BART Board President James Fang milled about before the event started, talking with politicians and reporters. At one point, he mused, “Where’s TransForm now?”

Fang was referring to the most visible opponent of the OAC, a transit non-profit that challenged BART’s decision to build the people mover and tried unsuccessfully to get the BART Board to consider a bus rapid transit option or other, cheaper alternative. Standing on a curb, Fang exclaimed, “Bring it on!”

Asked to elaborate on the boast, Fang said simply that he wished TransForm were present to “see how happy people are for this project.”

BART General Manager Dorothy Dugger expressed relief that the OAC was nearly underway and defended the project against its detractors. “This was a real partnership effort, a coming together of community, of leaders, and the result is a project that will be an investment for generations to come, that will improve the quality of life, improve mobility and help our region continue to grow,” she said.

Dugger said the only thing the delay in the project over civil rights and funding had accomplished was to increase construction costs. “I think one of the sad realities is that these kinds of major infrastructure projects take a long time to get to the starting block. It’s a truth that goes along with any large project: delay is generally not helpful. Delay only adds cost to the taxpayer.”

BART had two cakes baked in celebration of the event.

Dugger was asked by the Contra Costa Times why the event was happening two weeks before the November elections, when the actual groundbreaking and construction of the project won’t begin until early next year. James Fang and Carole Ward Allen, the only two BART Board members present at the event, are both facing challengers in their re-election bids in November. “Typically we have a groundbreaking when we start a project and we are starting this project,” said Dugger, denying it was related to politics.

“I think this has been such a long process to get to go, such energy and involvement by so many people throughout the community that we didn’t want to delay a moment in celebrating the accomplishment,” added Dugger.

On November 1st, BART will give the Parsons/Flatiron/Doppelmayr team the notice to proceed, at which point they will have 30 days to deliver their plans for moving forward with construction, according to OAC project manager Tom Dunscombe. Utility relocation will begin shortly thereafter, with construction set to begin in early 2011.

Though BART has yet to secure the full funding for the project, it has enough cash on hand to proceed and Dugger expected to put together the remainder of the financing over the course of the next year or 18 months. BART has applied for a TIFIA loan in excess of $100 million, though it will proceed even if that loan is not awarded. Very few other loan funds have the rates TIFIA does, but Dugger said she was optimistic. She also indicated BART could look to apply for grants or loans from the proposed national infrastructure bank President Barack Obama discussed in a speech delivered over Labor Day.

“We’ll look for the most cost effective, most affordable, most flexible loan we can find,” she said.

Construction hard hats with the names of elected officials were placed on the ceremonial shovels.

BART needed to send strong signals to the contracting team of Parsons/Flatiron that the agency intended to move forward with the construction bid, which is set to expire on September 21st, one year after it was initially awarded. BART has been scrambling to fill a funding gap created when the Federal Transit Administration denied the agency $70 million in federal stimulus funds because it hadn’t done a proper civil rights review.

In a previous motion from the July BART board meeting, Vice President Bob Franklin placed a provision on the contract that required staff to return for permission to proceed if various funding streams didn’t come through as expected, including $25 million in federal New Starts money, a $20 million state funding swap from two highway projects and $39 million from the Port of Oakland, which is seeking permission from the Federal Aviation Administration to increase the Oakland Airport passenger surcharge.

At today’s meeting, the board voted 7-1 to amend the previous motion and give Dugger permission to proceed with the contract regardless of when the $25 million New Starts money or the $20 million state swap come through, thereby assuring the contractors won’t walk away from their bid.

Franklin and other board members who were concerned that the FTA hadn’t indicated its position on the New Starts money felt vindicated after BART received a letter from FTA Administrator Peter Rogoff yesterday confirming FTA would grant the money when BART fully remedied its civil rights deficiencies.

“With that hail mary caught by Administrator Rogoff, my funding concerns were resolved,” said Franklin.

Board President James Fang confirmed that several elected officials had been lobbying US DOT Secretary Ray LaHood on BART’s behalf, noting with pride that Senator Diane Feinstein and Governor Arnold Schwarzenegger had been instrumental in moving the OAC forward.

“When no one really would help us, they stepped up to keep this project alive,” said Fang, who added, “Let the dirt fly!”

Director Tom Radulovich, the lone dissenting vote on the board, initially declined to comment and seemed resigned to watch a project he had repeatedly voted against move forward. In the general public comment period of the meeting, however, he reconsidered and criticized the board for approving a project that could add more than $100 million to BART’s debt load.

“A huge component of this is debt funding and that directly competes with BART’s other capital funding needs,” said Radulovich, who noted the Metropolitan Transportation Commission, the regional planning body, had identified over $7 billion in unfunded capital needs. “It is distressing to see all of these funds being diverted from those needs.”

Project opponents, rather than belabor the same critiques of the project they had leveled over the previous year and half, struck a somewhat conciliatory tone and asked the board to work with them as diligently as they had with the OAC on core capacity funding, improving maintenance of facilities and retaining BART jobs.

“As we’re seeing continued cuts in the other areas, I hope we can work in areas we agree on,” said Bob Allen of Urban Habitat, one of the non-profits that brought the original civil rights complaint to the FTA.

“There have been a lot of promises on jobs, we will hold everyone accountable,” he added, referring to BART’s estimates the OAC will provide 2,500 to 5,000 direct, indirect and induced jobs. Urban Habitat has repeatedly pointed to the 689 direct jobs over four years of construction BART estimated it will create and said the other numbers are inflated. BART has defended its numbers, saying they are based on well-established national transit construction estimates.

Countering criticism that Urban Habitat only advocates for bus riders on Muni and AC Transit, Allen said he supports other BART capital projects, particularly those that improve core capacity. Allen vowed Urban Habitat will continue to “fight just as hard for BART [as Muni and AC Transit] and we will continue to do so.”

BART staff had been scrambling to replace the $70 million denied to the agency for failure to adequately analyze the federal Title VI civil rights impacts of the OAC. Without the $25 million, BART would have had to proceed by borrowing more and increasing its already significant debt load on the airport connector.

In the letter [pdf], Rogoff reaffirmed to BART General Manager Dorothy Dugger that the FTA had set aside $24.9 million and would “process a grant after determining that BART has adequately addressed all of the Title VI deficiencies for the OAC Project. The grant will include conditions that allow BART to draw down the funds upon BART’s demonstration of completion of the Title VI Corrective Action Plan that was approved by the FTA on April 16, 2010.”

BART called a special meeting of its Board of Directors for today to address the looming contractual deadline with the Parsons/Flatiron team, who won’t delay the bid beyond September 21st, two days before the next regularly scheduled board meeting.

Board action is required before proceeding because Vice President Bob Franklin in July added conditions to a motion to proceed that required any change in funding to come back before the board of directors. Specifically, Franklin was concerned about the $25 million in New Starts money, $39 million from an airport passenger surcharge to be levied by the Port of Oakland, which runs the Oakland International Airport, and a $20 million state funding swap still to be authorized by the California Transportation Commission. The CTC has agendized the swap and plans to vote on the matter at its September 22nd meeting, the day after the Parsons/Flatiron deadline.

Franklin told Streetsblog, given the lopsided votes in favor of the project in the past, he believed the directors would vote to move forward with the project despite the funding gaps today. He said he would act to put in as many safeguards as possible and noted that if directors voted to proceed and the contractors started hiring, it will be that much more expensive to terminate the contract in the future should BART not secure federal loans or should the Port money not come through.

“I will see what I can do. I obviously don’t want to put the public money at risk. I will see if we can somehow add more protections,” he said.

Funding scenarios with federal loans, from the BART board presentation for today's meeting.

Rumors had been circulating late Wednesday among project supporters and opponents that members of California’s congressional delegation, notably Senator Dianne Feinstein, had urged US DOT Secretary Ray LaHood to encourage the FTA to show support for the project to keep it moving forward along the established timeline.

BART spokesperson Linton Johnson responded to the rumors by saying, “the highest levels of government have been involved making sure there are jobs being created for the high unemployment rate in Oakland. That’s one of the certain initial benefits of the project.”

When asked whether Senator Feinstein had pressured LaHood, Johnson only acknowledged that both senators and representatives had been in contact with the US DOT expressing their support for the project.

At the meeting today, directors will be asked to support a motion [pdf] granting Dugger the authority to move forward “immediately in anticipation of pending commitment of $25 million in Federal New Starts funds by the Federal Transit Administration and favorable action by the California Transportation Commission for $20 million in State Funding.”

Project opponents argued the action to proceed with the OAC contradicted the spirit of President Barak Obama’s pledge on Labor Day to reform “the haphazard and patchwork way we fund and maintain our infrastructure to focus less on wasteful earmarks and outdated formulas, and more on competition and innovation that gives us the best bang for the buck.”

“This project is just an absolute dog,” said John Knox White of the transit advocacy non-profit TransForm, an opponent of the OAC.  “Here we are a week and a half out [from Obama's speech] with a wasteful earmark on one of the least smart projects probably in the nation.”

TransForm and other OAC opponents have advocated for a more affordable bus rapid transit project to connect the airport with BART. Knox White argued that BART and the Metropolitan Transportation Commission, the region’s transportation planning body, were doing everything they could to move a long-standing project off a to-do list despite the increased cost and reduced ridership projections versus the OAC project approved by voters nearly a decade ago.

“I really just don’t understand how that is responsible regional transportation planning,” he said.

Image: Parsons/Flatiron

The fatigue is palpable, but the battle over BART”s Oakland Airport Connector (OAC) is nowhere near its conclusion. That’s the message coming out of yet another marathon hearing today at the Metropolitan Transportation Commission (MTC), the region’s transportation planning body, over the merits of the airport connector, which I would argue has now become the second most controversial regional transit proposal behind the California High Speed Rail Peninsula alignment.

Despite a long history of protests by a coalition of transit advocates, the MTC’s Programs and Allocations Committee voted to endorse a $20 million swap of money from two freeway projects to the airport connector, a shifting of highway money to transit those same advocates would probably support if it were being geared toward other projects, instead of a $500 million, elevated tramway.

In a scene that has repeated itself many times, scores of people testified for more than an hour at the MTC hearing, offering nearly verbatim testimony to what has been said over the past year at numerous BART, MTC, Oakland City Council and Alameda County Congestion Management Agency hearings. On one side were the construction and trade unions desirous of jobs BART has promised will be created by the OAC, on the other transit advocates who think the $500 million for the OAC could be used on a more economical bus rapid transit option and for core capacity investments at BART and AC Transit.

BART likens the struggle over the OAC to other cornerstone transportation projects like the Bay Bridge, the Golden Gate Bridge, or even the creation of BART itself.

“This is the same argument of the opponents of BART in the 1960s who didn’t want BART being built at all,” said BART spokesperson Linton Johnson. “It’s really difficult for us and frustrating for us, trying to do what you know is right, building for the future, but ten years from now we’re going to be vindicated, twenty years from now we’re going to be vindicated. We’ve got to think generations ahead.”

“The people of yesteryear had to fight like hell to get BART and today we have something that is priceless,” he added.

According to the project opponents, spending that kind of money should leave a legacy project the region can be proud of, not a glorified chair lift (one of the contractors on the OAC, Doppelmayr, also makes lifts for ski areas).

“There’s a difference between building expensive important projects and building expensive, really terrible projects,” said TransForm’s Executive Director Stuart Cohen. “This one fails the laugh test. It’s a skeleton of what was once promised to us.”

At the MTC meeting, Cohen and other advocates argued that a full BRT proposal like theirs for the Hegenberger corridor could deliver the same results as the elevated tram at a fraction of the cost and pointed to a new study by Kittelson & Associates to back their claim. TransForm argued their study filled the gap in analyzing BRT that they said BART failed to do during full environmental review.

MTC’s Executive Director Steve Heminger said the TranForm study was merely conceptual and didn’t adequately stack up against the data and detail that has been put into analyzing the tram. “It’s a difficult thing to try to compare what is essentially a concept, the notion of some kind of bus rapid transit system on the corridor, against a project that has received a construction bid. They are vastly different in their stage of development,” he said.

“It’s entirely plausible to me that if you were to try to build a BRT project in the corridor, it could cost less than the Oakland Airport Connector, but that’s really not the question,” added Heminger. “The Oakland Airport Connector was designed with a very special class of transit rider in mind, which is air passengers. Air passengers pride reliability. You pay a premium to get that reliability.”

Betting on the Feds

In the end, figuring out how to pay that premium will be the rub. BART is cobbling together the funds to pay for the contract and the advocates have vowed to fight to the end.

Here’s the scenario BART hopes to see materialize: now that the MTC has signaled its consent for the $20 million swap, the California Transportation Commission will take up that issue at its September 22nd meeting and will presumably give it the okay (Public Advocates has shared numerous emails with the press obtained through Public Records Act requests detailing the discussion among BART, MTC, and CTC staff where all three are endeavoring to make the swap happen). Theoretically at some point soon, the FTA will release the $25 million in New Starts money it has withheld from BART while the agency has undergone its civil rights compliance review. The US DOT still has to approve the $105 million Transportation Infrastructure Financing and Innovation Act (TIFIA) loan BART has requested for the project, a loan with relatively low interest rates. And the Federal Administration Aviation Administration must approve the passenger fee increase requested by the Port of Oakland (with runs Oakland International Airport) so the Port can give BART the $30 million it has pledged.

That’s the $39 million wager (or the amount BART has already spent acquiring rights of way, moving utilities, paying consultants, etc.).

Now here’s how the advocates are going to fight it: In its letter to BART, MTC and CTC, Public Advocates argued the CTC cannot amend the state transportation improvement fund (STIP) to authorize the $20 million swap until next fiscal year, which starts July 1st, 2011 [pdf]. If the advocates are correct and can stall the state money on procedural grounds, the project could still move forward, but the whole thing will have to go back to BART’s board for further approval (in July, BART’s board, led by Vice President Bob Franklin, added a condition to the contract that any change in funding required further action by the directors).

The Parsons/Flatiron team isn’t going to wait around forever and the bid will have to be renewed at a rate no one believes will be as low as it is currently, possibly jeopardizing the whole project.

At the same time, the advocates argue the $140 million in federal grants and loans are anything but a sure thing. Although BART has taken action to correct the complaints about its civil rights analysis on the OAC, the agency still hasn’t heard anything about when the $25 million New Starts grant will be released. BART’s Johnson said he is confident the money will come through eventually. Withholding it, he said, would contradict FTA’s own policies.

“They really can’t not give it to us,” he said. “If we voluntarily cure that deficiency, then they have to move forward with the commitments they’ve made.”

Of course, the advocates say, BART was equally confident it had completed the necessary equity analysis on the OAC to get the $70 million in stimulus funds it lost. Cohen said BART is one of 39 applicants for TIFIA money, and only one loan was given out last year.

If the TIFIA loan doesn’t come through, BART’s only option to proceed would be Build America Bonds, which have a much worse interest rate and no deferred payments like TIFIA. According to Cohen, TransForm sent its report to the FTA and hoped further action by the agency would compel the region to reconsider the OAC tram.

Referring to a controversial speech FTA Administrator Peter Rogoff gave in May, Cohen said, “We’ve seen some pretty strong language from [Rogoff] about speaking truth to power and not investing money where it doesn’t make sense, especially in rail projects where there’s a BRT alternative.”

MTC's Executive Director Steve Heminger, foreground, listens to public testimony against MTC's plan to use federal stimulus funds for the Oakland Airport Connector last year. Photo: Matthew Roth

The federal inquiries started after Public Advocates, a civil rights law firm in San Francisco, filed a formal complaint with the FTA over BART's failure to conduct an equity analysis for its fare policy related to the construction of the controversial Oakland Airport Connector, an elevated tramway that would connect the Oakland Coliseum BART station to the Oakland Airport. As a result of the complaint, the FTA investigated BART and found it didn't conduct the necessary fare analysis as required by federal Title VI civil rights law and denied $70 million in federal stimulus funds for the project. The FTA subsequently initiated a full investigation of the transit agency across all its applicable practices.

Because the MTC has given substantial funding to BART over the years and specifically for the OAC, the FTA in February requested the MTC provide justification of its Title VI compliance [PDF].

MTC Executive Director Steve Heminger argued in a March letter [PDF] that transit agencies such as BART, as subrecipients of federal funding, are responsible for ensuring they have done their due diligence and that they are not using the money on projects that discriminate against people of color or low-income communities. Heminger essentially took a narrow view of several FTA rules, saying because MTC is "not a State DOT or State administering agency," it was not responsible for mandating Title VI compliance for that funding.

In FTA's most recent letter, Director of the Office of Civil Rights Cheryl Hershey pointed to several other broad requirements, including an FTA Master Agreement the MTC signs each year, that mandate the MTC monitor Title VI requirements, even of its subrecipients.

Wynn Hausser, a spokesperson for Public Advocates, said the FTA letter and the possibility of a full formal investigation into MTC should be a wake-up call for a commission they have sued for discrimination in its funding formulas. The 2007 Darensburg v. Metropolitan Transportation Commission lawsuit alleged MTC was subsidizing trips for wealthier white people at transit agencies like BART and Caltrain at a higher rate than they do at agencies like AC Transit, where 80 percent of riders are people of color.

"We've been after the MTC for years with our lawsuits," said Hausser. "We've had to turn to Washington and fortunately we have a very brave FTA administrator who's willing to stand up against tremendous political pressure and do the right thing."

A chart created by Public Advocates that shows how much MTC subsidizes riders on various transit systems, as well as the racial make-up of that ridership.

The MTC's spokesperson, John Goodwin, was particularly abrupt in his response. "We can confirm receipt of the letter," he said. "Our legal guys are scrutinizing it and we will work with the FTA to meet their deadlines."

To remedy their concerns, the FTA has demanded the MTC produce numerous documents, including:

• MTC's documented process for investigating Title VI complaints
• A description of actions MTC took to investigate the Title VI complaint filed by Public Advocates against BART and alleging BART was not in compliance with Title VI
• A description of the penalty MTC assesses against a subrecipient for being in breach of contract as a result of failure to comply with Title VI, as well as a description of how MTC determines a subrecipient is in breach of contract….
• Provide copies of the subrecipient compliance reports as required by FTA….
  

Goodwin insisted the MTC would work to meet the requirements from the FTA, but Hausser didn't believe they will be able to comply because they don't have the requested documents.

"We have filed Freedom of Information Act requests of these documents and we have not received anything that looks like what they're being asked for," said Hausser, who noted Public Advocates had received tens of thousands of pages of documents through the Darensburg case. "That's not to say they don't exist, but if they do, we should have them."

Despite numerous requests for clarification, Goodwin would not comment further, except to say he was not aware of any other metropolitan planning organization (MPO) like the MTC in other areas of the country undergoing a similar review by the FTA.

Hausser said the FTA's letter should be alarming to other MPOs in California and beyond and that the FTA action signaled a change in Washington under the Obama administration to seriously consider the civil rights implications of transportation funding.

"If I were an MPO in another city, I would be sitting up and taking notice," he said.

Both Hausser and John Knox White, the OAC project manager for TransForm who has advocated BART and the MTC support a more affordable bus rapid transit airport connector, argued the FTA letter repudiated the MTC's contention that the matter was a mere technicality.

"It definitely shows a systemic issue with the way these major transportation projects are planned and implemented," said Knox White. He and other advocates have repeatedly argued the MTC and BART are merely paying lip service to civil rights, and are failing to do the necessary analysis to meet the FTA's criteria. Both Knox White and Hausser point to the recent actions by the federal government as vindication of their position.

Knox White, however, doubted the agencies would change overnight and pointed to what he characterized as BART's vilification of the advocates who objected to the OAC as proposed.

"Is the Bay Area going to step up and be the gold standard on civil rights they want to be, that they feel they are, or is this just going to be another time where we cut people out of the public participation process," said Knox White, who echoed Hausser's assertion that the FTA under former President George Bush didn't enforce civil rights laws with the same vigor the current FTA does.

"Is the Bay Area worse than everywhere else?" he asked. "I'm not sure I'm ready to make that determination, but there are significant problems. It's clear we're not setting the gold standard on this."

Image: BART.

The FTA had denied BART $70 million in stimulus funding earlier this year because the agency failed to conduct the required fare analysis to determine the impacts of the OAC on low-income riders.

In a letter addressed to Board of Directors Chair James Fang, Anthony said by proceeding with a funding plan before the project was deemed compliant, BART would fail to meet the "gold standard" of civil rights, its purported goal.

From the letter:

In February, BART achieved the dubious distinction of becoming the only stimulus applicant to be denied funding on civil rights grounds. At the time, BART's staff and Board declared their commitment to becoming the "gold standard" for civil rights, and recommitted the agency to completing not only the necessary analysis of the Oakland Airport Connector project, but the entire corrective action plan that FTA found necessary as a result of agency-wide civil rights non-compliance.

By asking the BART Board to approve a funding plan for a project that has not yet completed an approved fare equity analysis, staff is signaling that this project will be pursued without regard to its civil rights impacts and compliance. Your approval of a project funding plan before the Title VI impacts are known would be a declaration that BART does not care about results of the pending analysis.

I respectfully ask that the BART Board hold true to its promise of rising to the "gold standard" on civil rights by holding off on any decisions about this project until FTA has approved the required civil rights analysis for the project.

BART spokesperson Linton Johnson said the advocates don't understand the process. "BART has kept the FTA in the loop on our efforts to secure more funding and the FTA does not have a problem with us doing this work," said Johnson.

"The FTA was only requiring us to get its approval on our action plan to cure the Title VI deficiencies," he added. "The FTA isn't going to be issuing another round of approvals. The process simply requires that we continue according to our plan. Once we completed the steps in the approved FTA plan, we have completed the FTA's requirements."

Image: BART.

Internal documents obtained by Streetsblog (and The Bay Citizen, which reported on the matter this morning) revealed an internal scramble by BART staff and an array of local and state transportation agencies to come up with money to replace the $70 million in stimulus funding the FTA denied BART because of its failure to demonstrate a suitable fare analysis for the OAC project.

While BART staff acknowledged they were working to replace the funding at a board meeting on May 28th, General Manager Dorothy Dugger said there was nothing specific to report to the public or the board, despite a request by TransForm and BART Director Tom Radulovich to reveal in greater detail where staff was seeking funding.

When asked why BART wouldn't release more information about the possible sources, Dugger told Streetsblog, "It is a work in progress. When a full funding plan is developed we'll bring that back to the board for their review and consideration. We're working with funding partners in the region and the state to see if we can identify funding to replace the stimulus funds that were lost."

But according to internal documents dated May 18th, BART worked out an extensive funding plan for the OAC, now with a price tag of $484,136,000, and with numerous scenarios for filling the gap left by the FTA deficit.

Line items in the funding plan include: $10 million from an Alameda County Congestion Management Agency funding swap, $12,801,000 from The Public Transportation Modernization, Improvement, and Service Enhancement Account Program (PTMISEA) created by Proposition 1B, $10 million from the Alameda County Transportation Improvement Authority (ACTIA) in another funding swap, $10 million from BART's Capital Bond Reserves and between $10 and $20 million in a funding swap from the Corridor Mobility Improvement Account (CMIA), a regional fund for improvements to the carpool lane network, among other projects.

As for how BART would secure the funding, the documents show BART is looking to take advantage of low construction costs and working with the Metropolitan Transportation Commission (MTC) to free up money from various projects, theoretically banking on the assumption that those costs would remain low enough in the future to make up for the swaps, or convincing other agencies to be liable for cost overruns.

In one email, MTC staffer Kenneth Kao provided very specific language suggestions to help BART convince Caltrans' District 4 boss Bijan Sartipi to approve a $10 million funding swap related to the Mission/I-880 interchange in Fremont as part of the CMIA. Although Kao acknowledged the move would leave a funding gap for the interchange project, he expected the CMIA savings could be used to fill it when needed.

The ACCMA funding swap was based on $15 million CMIA savings from the I-580 carpool lanes, though ACCMA would be responsible for any cost overruns if they should occur in the future. Another potential source of funds was BART's Earthquake Safety Program, from which OAC staff hoped to draw up to $14 million.

Compliance with Title VI

OAC opponents are crying foul over this latest development, arguing it undermines the public process and shows BART is going forward with the project come hell or high water.

"That's the value of public participation," said BART Director Radulovich. "You make your public process transparent, but BART doesn't know how to do that."

"They're presenting something that has a contract already, there is no impacting the project," said TransForm's John Knox White.

According to BART spokesperson Linton Johnson, there is nothing unusual about the funding process, "nothing under the table."

"There are always discussions of the process, but in any funding package, staff does the initial legwork before they present it to the public," he said. "When the opponents say this isn't above board, I'd say this is representative democracy at its best."

OAC opponents also contended that BART hadn't learned anything from the Title VI review. In response to the FTA's concerns, BART has held numerous public meetings in the BART district counties over the past few months, presumably to get public input on BART's civil rights deficiencies.

"Has Title VI changed the way BART does business? As far as we can tell the answer is no," said Radulovich. "It means we have more meetings, meetings where we don't listen to people. Nothing about this process is likely to change thanks to Title VI."

Radulovich also claimed that a growing divide has developed internally among BART staff, with a number of people upset the project is moving forward at the potential expense of improvements such as seismic safety.

Radulovich contended that the public meetings should be about showing the feds that BART is open to public feedback, but they fail because they aren't taking public input back and significantly altering the project to reflect the public's concerns.

Johnson countered by saying the FTA had only told BART to address its fare analysis on OAC and that the agency was doing as much. There was no requirement for BART to alter the project.

"These public meetings aren't designed for OAC, they are designed to fulfill an FTA requirement on any future project," added Johnson.

BART staff could take the funding plan to its board as early as next week, when the directors meet in a special session.

The Clipper Card readers at the Lake Merritt BART Station. Photos: Matthew Roth.

In the February 3rd letter, FTA Office of Civil Rights Director Cheryl Hershey argued that MTC relied on BART's assurances that it had conducted proper equity and fare analysis for the OAC, but there wasn't evidence the MTC had a mechanism in place to check the veracity of BART's claims. Given that the FTA subsequently found BART's civil rights policies inadequate, the federal agency wanted MTC to produce documentation to explain its policy on civil rights adherence by fiscal subrecipients like BART.

Hershey noted that despite public testimony by Bob Allen of Urban Habitat at an MTC meeting on July 8, 2009 and a subsequent letter warning of BART's "failure to produce the required equity analysis for this project," the MTC proceeded with support for the OAC.

In the letter, Hershey wrote:

As you are aware, BART is a subrecipient of the MTC, and, therefore, MTC is responsible for ensuring its subrecipients comply with Title VI, the DOT Title VI regulations, and FTA Circular 4702.1A. Your agency is responsible for documenting a process that ensures that all MTC subrecipients are in compliance with the reporting requirements of FTA C 4702.1A

The fact that BART has not conducted the necessary service equity analysis for the OAC project or fare equity analysis raises concerns that your agency does not have procedures in place to monitor its suprecipients.

MTC responded to the FTA's investigation a month later [PDF] with a long list of subrecipients for FTA grants and made the crucial argument that many categories of FTA funds that go through the MTC, including the $70 million of stimulus funds in question for the OAC, go to recipient agencies (as opposed to "subrecipient") that have to assume responsibility for complying with FTA civil rights guidelines on their own.

At the MTC Commission monthly meeting today, MTC Executive Director Steve Heminger told Streetsblog he stood by his interpretation of the FTA guidelines for the OAC money and a number of other categories, though he said the FTA has yet to respond to the MTC's letter and the review is still open.

"We haven't heard back from them," said Heminger. "So I think the ball is in their court."

Click to enlarge. Map of transit headway, where blue is an increase in dealy between routes and red is a decrease. Image: MTC.

Transit Sustainability Project and the Clipper Card

Heminger also updated his commissioners at the meeting on the launch of the Transit Sustainability Project, a regional study to determine how the MTC could promote the consolidation of transit service among the 26 Bay Area transit operators and make existing service more cost-efficient.

Heminger called the project a "big deal" and noted that the transit agencies he'd met with were not exactly thrilled with the study.

"I think it's fair to say there is a fair amount of nervousness among the transit operators and a fair amount of defensiveness," Heminger told his commissioners.

Heminger also pointed to a new map the MTC compiled that shows transit headways from 2006-2009, where service to customers had declined particularly acutely in the East Bay. The data didn't reflect the last year, as agencies like the San Francisco Municipal Transportation Agency (SFMTA), which runs Muni, recently instituted 10 percent cuts.

"What we have found collectively is that we're on an unsustainable path and the purpose is to put these agencies on a stable footing," said Heminger, comparing transit service to an accordion, with increases during good economic times, decreases during bad. "That doesn't do the agencies or their customers much good."

MTC spokesperson Randy Rentschler told Streetsblog the rationale for re-branding the cards had to do with how "technological" the word "TransLink" sounds.

"Many of these cards around the world are kind of whimsically named," said Rentschler, noting the analogous card in London is called the Oyster, in Hong Kong the Octopus and in Seattle the Orca. "Clipper kind of emerged because it has an association with the Bay Area, not just because of the Clipper ships but because of the Clipper planes," said Rentschler.

The overall transition to a replicable smart card across the agencies cost $1.8 million, according to Rentschler, of which the late transition to "Clipper" was $500,000. The cards will be activated on June 16th and some operators, such as BART, had already adopted the new branding in some stations.

The only concern Rentschler had with the new logo was that there are only eight triangles and there are nine counties in the Bay Area. Rentschler wouldn't speculate which county had been left out.

Now, in a speech delivered this week in Boston, Rogoff set off another heated debate among transit advocates and operators about the federal government's role in funding expansion projects when the agencies building them don't have enough operating money to run their existing systems.

Rogoff asked how wise it is of the FTA to put money into new transit capacity, particularly expensive rail capacity, when virtually every operator across the nation has raised fares and cuts service because of lower sales tax receipts and ubiquitous cutbacks in city and state transit funding levels.

"At times like these, it's more important than ever to have the courage to ask a hard question: If you can't afford to operate the system you have, why does it make sense for us to partner in your expansion?" asked Rogoff.

He went on to question some rail expansion projects when a bus rapid transit system would be far cheaper and could achieve similar ridership benefits.

"Paint is cheap, rails systems are extremely expensive," said Rogoff.

Buses already account for 21 percent more transit trips nationally than rail and Rogoff said riders can be happy with buses if they meet their expectations for service and cleanliness. "It turns out you can entice even diehard rail riders onto a bus, if you call it a 'special' bus and just paint it a different color than the rest of the fleet."

"Take that paint can and paint a designated bus lane on the street system," he added. "Throw in signal preemption, and you can move a lot of people at very little cost compared to rail."

Yonah Freemark at The Transport Politic wrote one of the more impassioned critiques of Rogoff's speech, calling his view naive and suggesting that Rogoff doesn't account for the failure in Congress to commit serious money to transit operations and expansion:

The unfortunate reality for Mr. Rogoff is that the federal government’s steadfast unwillingness to help cover operations spending is the primary reason agencies haven’t been able to maintain service levels during the economic downturn. Meanwhile, while he may be right that transit organizations aren’t doing enough to keep their systems in good shape, he neglects to mention that that problem is a reflection of the federal government’s inability to increase spending levels on maintenance in line with needs.

In the Bay Area, the ramifications of Rogoff's speech could be significant for several key expansion projects, including the San Francisco Municipal Transportation Agency's (SFMTA) Central Subway and BART to San Jose.

SFMTA Chief Nat Ford told Streetsblog that he's not worried the FTA will change its position on funding for the Central Subway, even with the recent 10 percent service cuts at Muni.

"Last year we went through a very vigorous financial audit administered by the FTA to make sure that we had enough financing to run our existing system properly, keep it in a good state of repair, in advance of approving our full funding grant agreement for Central Subway," said Ford. "They gave us a green light to move into final design. That's why we're proposing that the system we operate, we can properly operate from a financial situation."

Unlike the Twin Cities Central Corridor project, which has fully lined up its local funding match, the SFMTA still has to secure $164 million in local funding by the end of 2011 to satisfy the FTA. Rogoff wrote in a January 7 letter that he was concerned about the SFMTA's ability to maintain a state of good repair to the existing system without degrading existing service.

Presumably, if the SFMTA restores some or all of the service it cut this year, which Mayor Newsom and the Board of Supervisors are debating, it will go a long way toward placating the federal administration.

At BART, spokesperson Linton Johnson said his agency doesn't disagree with Rogoff, but argued the FTA was "taking a too simplistic look at the overall picture."

"If an expansion does bring a transit system enough new riders that it both enhances the existing system and gets people out of their cars, resulting in cleaner air, then we can't afford not to do both," said Johnson. "The bottom line is it's not always an either or. Sometimes you have to spend money to make a lot more money."  

BART Board Director Tom Radulovich agreed with Johnson that expansion must be sound and attend to the needs of the core system.

"Sustainable expansion must be built on a sound foundation of reinvestment in existing systems and services, and maintaining service quality while expanding to new markets," said Radulovich. "Expanding service in this new environment of capacity constraints and fiscal constraints calls for planning that is less about delivering trophy projects, and more about delivering value for money."

"BART extensions which make new demands on overstretched operating budgets, compete with maintenance needs for scarce capital dollars and don't address core system impacts are unsustainable," he added.

Image: BART

After losing $70 million in stimulus funds last week because the agency failed to satisfy the Federal Transit Administration's (FTA) minority and equity standards for federal funding, BART lost another $25 million it was expecting from TIGER, money that was important for the agency to secure further federal loans to build the nearly $500 million OAC.

"Basically, it's just devastating," BART spokesperson Luna Salaver said about the OAC developments over the last week. "We had a triple-one project, a shovel ready project, and then it ran into this opposition that was using the Civil Rights Act make the region lose thousands of jobs."

To pay for the OAC project, BART had applied for a federal infrastructure (TIFIA) loan of $150 million, which required them to create a risk fund in case the agency later defaulted. BART anticipated using the $25 million TIGER grant for that risk fund, according to Salaver. The loss now has BART staff  scrambling to find more money or risk losing the loan.

"We're looking at different funding sources, but that is not set in stone," said Salaver. "There have been too many years of planning to just give up now."

Opponents of the OAC had consistently warned BART through letters and in public testimony at board meetings over the last year that the agency was not in compliance with FTA standards, but BART staff remained convinced the project would get federal funds.

"This goes to show you when people look at this project objectively, it doesn't pass muster," said John Knox White of TransForm, one of the organizations that filed the complaint with the FTA over BART's Civil Rights Act Title VI non-compliance.

"BART's lack of compliance with Federal Title VI means that all Federal funding is in jeopardy," said BART Board Director Tom Radulovich, who for years had requested that BART staff develop a thorough equity analysis, only to be rebuffed. "The stimulus funding has the most immediate deadline, but BART won't be eligible for either the Small Starts funding or the TIFIA loan without complying with Title VI."

Another concern weighing on BART staff is that the OAC contract bid will expire on March 22nd if funding is not secured, at which point the project would effectively be dead. What's more, FTA's civil rights review of the agency is not finished, as all of BART's policies and practices continue to be under close scrutiny.

"We're confused why this decision was made on BART," said Salaver. "The rejection of funds is usually a last-resort action, not a first-resort action. It seems that it's a different playing field."

Image: BART

"Given the fact that the initial Title VI complaint against BART was well founded, I am not in a position to award the ARRA funds to BART while the agency remains out of compliance," wrote Rogoff.

In his letter, Rogoff said he was sure the project opponents that filed the original complaint with the FTA would proceed with further lawsuits, jeopardizing the tight timeline on stimulus funds. He advised BART and MTC to reallocate the money or the region would risk losing the funds altogether.

"The likelihood of protracted litigation with the parties that made the initial complaint is extremely high," wrote Rogoff. "Given this situation, and the fact that we are now only 3 weeks away from the March 5 deadline, I must bring these discussions to a close so that we can work together to ensure that the ARRA funds can create and preserve jobs in the Bay Area."

As a contingency plan, the Metropolitan Transportation Commission (MTC), which oversees transportation planning in the Bay Area, had planned to meet on February 17th to decide whether to reprogram the $70 million if BART did not meet its obligations. The MTC will likely move the $70 million to the region's transit agencies by pre-established funding formulas, rather than risk losing the money outright.

OAC opponents were delighted with the news.

"We think this is a victory for BART riders, transit workers and the community of East Oakland," said Wynn Hauser, spokesperson for Public Advocates, the legal team that filed the FTA complaint. "These are serious civil rights violations and we applaud FTA for following through on not only the letter but the spirit of Title IV. They are not saying you have to pay lip service, but you have to do this work."

"Now low income people and communities of color will be able to shape the project that they were originally denied so they can share in the benefits," he added.

John Knox White of TransForm, a transit and smart growth advocacy organization, said the decision vindicates the position TransForm and its allies have taken for more than a year. "Through this, BART has repeatedly tried to keep the public out of this process," he said.

White also pointed to the benefit the $70 million will have to maintain service and avoid fare increases at transit agencies across the Bay Area, including Muni, BART, and AC Transit, which all have budget deficits.

"FTA's decision allows MTC to put this money to transit agencies, including BART, who desperately needs it now," said White. "It's a win for everybody."

As for how this affects Muni's budget concerns, spokesperson Judson True said: "It's too early to say exactly what impact this will have on our operating budget." But, he noted, "We've done the work required to be ready to receive any funding that MTC directs our way. Since the stimulus bill first passed, we've been prepared for this eventuality."

According to True, of the $17.5 million Muni would receive, $4.3 million will go to preventive maintenance, which is essentially operating expenses. The remainder would be programmed toward light rail vehicle rehab.

Neither BART nor MTC were immediately available for comment.

More from FTA Administrator Rogoff's letter:

Since my letter of January 15, FTA staff and BART have worked diligently but unsuccessfully on the development of a corrective action plan that might be acceptable. I am required to now inform you that your plan is rejected. I ask that you immediately get in contact with Region IX Administrator Leslie Rogers for the purpose of pursuing alternative projects for the Bay area that can be obligated prior to the March 5 deadline.

I am required to reject your plan for the following reasons. Based on the timelines submitted by BART, there is no way the agency can come into full compliance with Title VI by September 30, 2010. The requirements of ARRA dictate that any funds not disbursed by September 30, 2010, must be lapsed back to the Treasury. And since I cannot allow BART to draw any funds for the OAC project prior to coming into full compliance, it is clear that pursuit of the OAC project would result in the funds either being reallocated out of the Bay area or lapsed. Both scenarios are unacceptable to me as I am sure they are to you. Let me say that, based on FTA's experience in other cities, BART is being realistic in admitting that the process of coming into full compliance will take considerably longer than the 8+ months that remain before the September 30 deadline. I appreciate and respect your honesty in this regard.

Given the fact that the initial Title VI complaint against BART was well founded, I am not in a position to award the ARRA funds to BART while the agency remains out of compliance. Moreover, it is clear that, if FTA were to pursue such a course, the likelihood of protracted litigation with the parties that made the initial complaint is extremely high. Given this situation, and the fact that we are now only 3 weeks away from the March 5 deadline, I must bring these discussions to a close so that we can work together to ensure that the ARRA funds can create and preserve jobs in the Bay area.

The efforts of the last few weeks have not been wasted. Wholly separate from the fate of the OAC project, it is imperative that BART, as a recipient of FTA funds, come fully into compliance with Title VI as soon as possible. The plans developed between our staffs over the last few weeks lay the groundwork for BART to achieve that important goal.

Photo: Matthew Roth

Democracy in action, I suppose. Long-time bicycle advocates from the East Bay and San Francisco converged on this meeting, hoping to convince the Bay Area Toll Authority (BATA) to support using some of the new tolls ($5 on all bridges as of July 1, with $6 congestion pricing on the Bay Bridge during rush hour, and for the first time, a half-price toll for carpoolers) to fund a new west-span bicycle/pedestrian/maintenance/safety lane to make the bridge safer, and to finish the transbay route for bicyclists and pedestrians too, not just motorized vehicles. But that effort was bureaucratically sidetracked before this meeting even started.

Surrounding the MTC hearing room were bicycle advocates from around the region. Photo: Chris Carlsson.

The BATA's legal advice from a prior meeting was that they have no authority to allocate toll monies toward this new path, in spite of language in the law that allows for maintenance and safety improvements, which the new path unambiguously represents.

Berkeley Mayor Tom Bates has asked for a second legal opinion from the State Legislative Counsel, which he said will take 2-3 months to get. Moreover, he followed the Metropolitan Transportation Commission (MTC) chair's admonition to the assembled cycling advocates to save their comments for another time (since the question of funding and building a new west-span side path would not be addressed in this meeting), by stressing that the fight was no longer at BATA or the MTC but had moved to the state Legislature in Sacramento.

It's hardly a surprise that the MTC wanted to duck this issue and pass the buck to Sacramento. The 15-member MTC is a lopsided status-quo minded entity. That was revealed again today when San Francisco Supervisor Chris Daly, responding to several public commenters who were casual carpoolers and feared the new toll would wipe out the phenomenon, proposed the $2.50 carpool toll be reduced to $2.00. A roll-call vote went 13-3 against the proposal, only Daly, Tom Bates, and Bay Conservation and Development Commissioner Ann Halstedt voting for it.

One comment from an employee of the Bay Area Air Quality Control District pointed out that casual carpooling reduces congestion, saves money for those who do it, AND builds community, but the majority of the commissioners were not inclined to tinker with their staff's proposed new toll schedule. Nor did any of them choose to question the formula by which truckers have new tolls phased in over 3 years, denying the bridge budget $60 million according to their own calculations (recreational vehicle owners also showed up to challenge their being classified as trucks for purposes of bridge tolls, which will raise their bridge-crossing costs by 150%).

There is a long and charming local history of bicycle advocates who have pushed BART, Caltrain, the Golden Gate Bridge, and local bus systems for greater accommodation for bicycles and cyclists. It's a thankless, Sisyphean task, and we can all be thankful for those folks who have stuck with it.

That said, I've always been astonished at the eager sincerity a lot of people bring to these governmental processes. As far as I can tell the system is deeply broken. The inordinate emphasis, even at this very late date, on automobiles, freeways, "level of service," etc., seems to always trump common sense efforts to promote the incredibly modest beginnings of a new infrastructure. After all, there are state laws mandating major reductions in greenhouse gas emissions. How is that going to be achieved without an alternative as obvious as a Bay Bridge bike path?

It was Jason Meggs and some stalwart friends a decade ago who rode bikes across the Bay Bridge to dramatize the absurdity of denying access to a central transportation artery. But most of the energy these days goes into attending these hearings with homemade signs, with earnest behind-the-scenes message making so as not to offend the commissioners, or become unseemly or too aggressive.

The urgency of altering how we live day to day gets quite lost in these processes. The moods of commissioners, the technical language in obscure appropriations bills, the muscle-bound lobbying strength of corporate behemoths, together become the focus of political action, rather than the terrain of our daily lives. I like the slogan "Bridge the Gap" just fine, but I couldn't help but feel that the real gap needing bridging at today's hearing was between the building trades workers out front clamoring for "jobs" and the bicycling advocates inside who were firmly but cautiously seeking support for a maintenance lane to be added to the west span.

I wondered if anyone had spoken with the building trades folks about supporting the bike/ped/etc. lane? Or has thought to propose a much broader alliance on local projects? (And what is it with union workers and their leaders that they always abdicate control over deciding what work is worth doing to those with the purse strings? Shouldn't workers be central deciders in how their work is employed in our communities?) What about a massive overhaul of local roads and bridges, adding Copenhagen-style bike lanes on every street and span? Think how much work that would be! Oh but we can't pay for it is the immediate rejoinder.

And if you accept the narrow constraints of institutional political reality as it is, then the argument is lost. But what about repealing Prop 13, at least as it applies to major corporations in California? What about ending the U.S. empire's military bases in over 100 countries around the world? Why is the U.S. spending as much on guns and bombs and death and mayhem as the rest of the world combined? Why did the federal government give away $1.5 trillion to the wealthiest owners of businesses instead of embarking on the much-promoted "Green New Deal" that if done honestly, might have provided resources for just this kind of drastic and dramatic reorganization and rebuilding of our urban physical infrastructure?

Common sense is trivialized and marginalized in the public process.

The west-span bike lane is a pipe dream for now. But by making it contingent on a massively expensive new lane being added to the existing bridge (and done under the design and control of the brazenly anti-bicycle Department of Highways, oops, I mean Caltrans), aren't we shooting ourselves in the foot?

A bike/ped/safety/maintenance lane could be put on the top deck of the Bay Bridge in two weeks if we had the political vision to do it. Here's how: Admit that traffic on the inbound west span rarely exceeds 30 mph and make that the new speed limit during rush hour. It's a pretty drive anyway, who cares if you have to go slower? And most of the time you can't get near 30 mph anyway, given the congested traffic. Narrow the five lanes from 12 feet to 10 feet, take the new 10 feet of space and barricade it with a cement railing. Voila! You have a bike/ped/safety/maintenance lane. The other five lanes are open during rush hour, but only 4 lanes are open the rest of the time, leaving a buffer lane next to the bike/etc. lane for additional safety. When traffic is light and only four lanes are open, the existing 50 mph speed limit can prevail... If we wanted to do it, we don't have to wait 3 months for a new legal opinion, and then another 2-plus years for another toll increase, and then 5-7 years for design and building of this new lane.

We could do it by March 1. Why not?

Union workers hoping to be employed in the construction of the OAC stand on the opposite side of the street. The union presence was at least twice as big as the opponents of the project.

Claudia Hudson, President of Amalgamated Transit Union 192 at AC Transit, lamented the divisiveness of the proceedings and wished the unions were on the same side of the issue.

"Sorry, if BART did the right thing from the beginning, following FTA, we wouldn't be here today," said Hudson. "It doesn't make any sense for carpenters, iron workers, bus operators and mechanics to stand up here and pit against each other."

Perhaps knowing the MTC would vote in support of BART for the February 16th deadline, the few dissenting commissioners used their time on a soapbox to decry the entire transit funding situation from the regional up to the state level.

MTC Commissioner and San Francisco Supervisor Chris Daly said that transit operators needed the money and the risk of hoping BART would fulfill its obligations to the FTA was too great.

"Perhaps it's surprising that one of the biggest political risk-takers in the region in terms of elected officials is going to argue the safe, prudent fiscal path," joked Daly. "We have the responsibility to as prudently and as safely as possible administer the people's money."

"There is no help from Sacramento any time in the future, we are on our own," added Daly. "Each and every one of these agencies is looking at increasing fares and decreasing service."

In the end, the commission voted to support Executive Director Steve Heminger's proposal that the MTC wait until February 16th to see if the FTA would approve BART's action plan. If BART fails to pass muster, the money will go to transit operators.  MTC will hold a special meeting sometime shortly after the mid-February deadline to pick up the issue again.

Oakland Mayor Ron Dellums spoke in favor of the OAC, but also acknowledged that BART had a long way to go to meet its civil rights obligations.

Transit advocates in favor of redirecting stimulus funds for the Oakland Airport Connector to financially struggling transit agencies are out in force at this morning's MTC Commission meeting in Oakland, along with dozens of union construction workers. Streetsblog's Matthew Roth reports the main meeting room and overflow rooms are filled beyond capacity. Roth and Streetsblog contributor Chris Carlsson are covering the meeting and will have full write-ups later today. In the meantime, follow our Twitter feed for updates, and see more photos below the break.

Transit advocates rally outside the meeting.

Construction workers were also out in force.

Bicycle advocates want the MTC via the Bay Area Toll Authority to commit funds to expanding a complete bike path across the Bay Bridge.

In the letter, Heminger says it is not "MTC's role to conduct or pre-judge the Title VI analyses that BART must undertake to satisfy the proposed FTA conditional award." But, he writes, "MTC must have some understanding of the scope of the issues involved so that we can assess the likelihood that BART can comply" with its obligation under the federal Civil Rights Act.

Heminger concludes that BART satisfactorily met the Title VI demands for construction related impacts in its environmental review from 2002 and he thinks BART will be able to meet the Title VI ridership analysis demands as stipulated by the FTA.

Thus, MTC commissioners are given two options by Heminger, the first to provisionally support the OAC and "accept the risk that the funds could be lost to the region if BART fails to remedy any Title VI deficiencies to FTA's satisfaction." If commissioners choose this option, Heminger recommends mandating that BART submit its "action plan" to the FTA by February 16, 2010. If FTA should find deficiencies in BART's action plan at that time, then Heminger recommends his commissioners program the money to transit operators for their operating budgets.

The second option would be to immediately redistribute the money to transit operators and MTC staff have prepared Resolution No. 3855 for the commission, should it decide on the immediate re-distribution of the federal funds.

Should make for a very interesting meeting in the morning, which Streetsblog will be covering with occasional updates via our Twitter account.

A proposed alternative to the Oakland Airport Connector. Image: TransForm

The potential relief from this scenario is in the form of $70 million in federal stimulus that the Metropolitan Transportation Commission, at its meeting tomorrow, could direct to the region's transit agencies instead of to construction of the Oakland Airport Connector (OAC), which faces a large hurdle for failing to comply with federal social equity rules.

As reported here yesterday, the complaint filed by several Bay Area groups specified that BART had not conducted the required social equity analysis to determine how the service would impact low income groups, and that if it did, it would find that the project benefits relatively affluent airport passengers at the expense of airport workers and everyday transit riders.

"We see it as Robin Hood in reverse," said Rev. Scott Denman of Genesis, which coordinates a social justice transit collaboration with faith-based organizations. Denman added that the money being proposed will go to BART customers with means who can afford an airline ticket, while general transit service continues to be cut and fares continue to rise.

"I feel like lunch money is being stolen to pay for dessert for people with full stomachs," said Denman.

Advocates also said the OAC was a boondoggle to large contractors when the region needs to maintain current critical transit service jobs. With that calculation clear in Muni riders' minds, the pressure on MTC to direct stimulus dollars to the region's transit agencies instead of to the unpopular airport connector is growing. Rescue Muni today joined the chorus of organizations opposing the OAC.

Despite the fact that Muni passengers have a great deal to lose from this decision by the MTC, the MTA Board of Directors did not mention the possibility of this stimulus funding at their meeting last week with the lengthy discussion over Muni's budget deficit. Let's hope they are pressuring the MTC behind the scenes.

East Bay advocates have been organizing in earnest and have planned a rally before the MTC Commission meeting at 9 am at MTC headquarters, 101 8th Street, Oakland.

"This is not a 'turn people out, even though we are going to lose' moment, this is a 'Grab the brass ring and win' moment," said John Knox-White of TransForm.

UPDATE 8:03 pm: The Mayor's Office released this letter from Nathaniel Ford, executive director of the MTA, indicating the agency's eagerness to spend the stimulus money if the MTC "opts to release its $70 million ARRA commitment to the OAC."

The Mayor's spokesperson, Tony Winnicker, and Ford in his letter, were very careful not to impugn the Oakland Airport Connector. "It's not in San Francisco's interest -- or any city's interest, for that matter -- to [attack a project approved by the regional governing body]." But Winnicker went on to write, "we absolutely need the funding, will put it to good use benefitting Bay Area transit riders immediately and have respectfully requested the money from the MTC."

The proposed Oakland Airport Connector train. (Photo: BART via Streetsblog SF)

Several Bay Area advocacy groups briefed the media on the civil-rights complaint they filed against the OAC project, which the Federal Transit Administration (FTA) investigated late last year. In a letter [PDF] that threatened to yank $70 million in stimulus money from the project, the FTA warned BART that it has until early March to develop a plan to comply with federal equity rules.

Stuart Cohen, executive director of TransForm, said advocates' victorious bid to push Bay Area's transit planners to examine more cost-effective and equitable alternatives to the OAC would "have a ripple effect" as other cities re-examine how their transit plans would affect lower-income and minority riders.

The FTA's decision on the OAC, described as the first of its kind, "represents government at its best," PolicyLink president Angela Glover Blackwell told reporters, adding that by "us[ing] the power of purse to make transportation agencies accountable, government shows it can be consistent with its values."

So where else are civil rights complaints playing a role in local transportation decision-making?

In the Twin Cities of Minnesota, several community groups filed suit against planners of the Central Corridor light rail line to protest the choice of route, prompting local and federal officials to announce the addition of three new stops.

The move appears to be motivated as much by low-income residents' concerns about changing development in the area as it is by their fear of losing transit access. A corresponding lawsuit filed by the Minnesota groups charges that the Central Corridor “project is designed to result in the displacement of the existing population along the Central Corridor through gentrification," according to the Finance & Commerce newspaper.

Meanwhile, the town of Navassa, North Carolina, has filed a civil right complaint of its own with the Federal Highway Administration seeking to expedite construction of a highway bypass through their town, alleging that the road project would bring needed jobs and economic benefits to local residents.

Back in the Bay Area, BART and the Metropolitan Transportation Commission have a limited amount of time to respond to the FTA's letter before the $70 million must be reprogrammed to other projects. At tomorrow's MTC Commission general meeting, large numbers of advocates are expected to turn out to demand the MTC rededicate the stimulus funds to transit operators according to established funding formulas to avoid any risk that might be associated with BART's failure to comply with FTA obligations.

Public Advocates staff attorney Guillermo Mayer, who helped work on the OAC complaint, said the money could be used to help close the operating budget gap for San Francisco's transit systems despite legal limits on the use of stimulus funding for transit operations.

Image: TransForm

The gravity of the situation has not been lost on the MTC. In a letter from MTC Executive Director Steve Heminger to his Commissioners about BART and the FTA [PDF], Heminger quoted the stern warning from FTA Administrator Peter Rogoff:

If BART were to fail in any respect to make progress or to meet its deadline as established in the action plan, FTA would have to de-obligate the ARRA funds for the Project and would be prohibited by law from re-obligating those funds to alternative projects in the San Francisco Bay Area [emphasis original].

As a result, Heminger noted in the letter, the Commission has several options, including a reaffirmation of its commitment to the OAC, with the attendant risk of losing the money if BART doesn't meet it's obligations to the FTA, or redistribution of the funds to operators according to MTC funding formulas. MTC staff will present its recommendation to Commissioners by this Wednesday's regular MTC meeting.

Bob Allen, Transportation Director of Urban Habitat, said he found BART Board Director James Fang's surprise with the FTA ruling to be disingenous at best. According to Allen, he stood before BART Directors at meetings starting in early 2009 and repeated the same refrain, "If you don't do this analysis, you own the outcomes. You are responsible for any civil rights outcomes that could come from this."

Given the risk that BART won't satisfactorily comply with equity analysis, advocates are organizing a rally before the Wednesday MTC meeting, where they will call on the Commissioners to revisit a plan to redistribute the $70 million to transit operators.

"Wednesday’s vote will decide once and for all whether these stimulus funds are about creating the maximum number of jobs and serving people in a down economy, or are gambled on a disastrously expensive and slow pet-project," said TransForm's John Knox White in a statement. "The Bay Area could lose that $70 million altogether later this spring if and when it is found there is a better alternative to the airport that doesn’t harm low-income commuters. This is not Las Vegas; the Bay Area simply can’t accept a gamble with such bad odds."

If the $70 million were redistributed for transit operations, Muni, for instance, would get enough revenue to cover the agency's current deficit. "With MUNI fare increases and across-the-board service cuts having just gone into effect," said Sarah Karlinsky, Deptuty Director of SPUR, in a statement, "We hope that the MTC makes the most of this opportunity to ensure that more service cuts and higher increases won't have to take place in a couple of months.”

The MTC originally had the option of allocating the $70 million in stimulus funds to transit operators last spring, but decided on the OAC as its first priority. At the time, MTC's Heminger explained to Commissioners that the money could go to transit operators according to established funding formulas should the OAC run into problems. Though transit advocates like TransForm, Urban Habitat, Public Advocates, and Genesis at the time had warned that BART hadn't done proper equity analysis of the OAC, neither the MTC Commission nor the BART Board believed their argument. Public Advocates later filed an administrative complaint with the FTA over BART's minority policies and compelled the FTA compliance review of December 2009 that led to this point.

"The MTC commissioners who voted for the OAC project are the ones that put things at risk and now they have the chance to make sure the funds stay in the region for transit service and jobs, said Allen.

The $70 million could be split among all Bay Area operators accordingly (courtesy, TransForm):

• $17 million to BART, which faces a $25 million budget shortfall and will be voting on January 28 on whether or not to cut 74 positions layoffs and whether to institute another round of fare increases.
• $17.5 million to MUNI, which currently faces a $16.9 million operating deficit and will be voting on March 2 on a proposal to cut 230 jobs and implement service cuts.
• $6.7 million to AC Transit, which plans to cut its service by 8.4% in March and is looking at a possible further 7% cut later this year.
• $12.2 million to VTA, which has depleted their financial reserves and faces a $50 million operating deficit next fiscal year despite recently cutting service by 8 percent and raising fares.
• Another $17 million that would be divided among Caltrain ($2.7 million), Golden Gate ($2.4 million), SamTrans ($2 million), Vallejo ($2 million) and other Bay Area transit systems.

Proposed Coliseum Station OAC connections. Photo: BART

"Our organization always has been and will continue to be committed to providing non-discriminatory, equitable, accessible and safe public transportation to the communities and residents of the San Francisco-Oakland Bay Area," reads the letter. "BART takes strong exception to the assertion in your January 15 letter suggesting otherwise and the alleged admission by BART during the compliance review conducted in December 2009."

At the same time, the letter says that BART will do everything required of it by the FTA to guarantee that the $70 million in federal stimulus funds in question will not be de-obligated and sent elswhere, a move that could imperil the OAC.

BART spokesperson Linton Johnson struck an even more conciliatory tone, saying that conversations with the FTA throughout the day yesterday had changed dramatically and that BART was confident it would meet all its obligations to establish an action plan by the March 5th deadline imposed by the FTA for the federal stimulus money.

"We believe that all the Title VI work that we’ve done over the years is legally sound and meets legal muster," said Johnson.

At the same time, Johnson acknowledged that BART needed to establish clearer standards. "The guidelines under which a policy is set that defines a major service change I don’t think has been met by BART." Explaining why BART didn't do a more thorough equity analysis on the fares for the OAC prior to this point, Johnson said, "Our reasoning has been that we didn’t conduct a fare equity study because we don’t know what the fare is going to be."

"We have a clear path forward to resolve these issues and receive the federal money," vowed Johnson, adding that there were benchmarks along the way before March that would help them reach their obligations.

John Knox White of TransForm, a consistent critic of the OAC project, said TransForm and its allies would continue to push for BART to complete more rigorous analysis of the project's equity impacts. He also said BART's response demonstrates an inability to understand the issue at hand.

"Nobody is arguing that there weren't public meetings on the OAC, the issue is that these meetings did not present accurate or credible information," said White. "BART's staff refused to present information requested by MTC Commissioners, the ACTIA Board, Port of Oakland Commissioners, the Oakland City Council, and members of their own Board, as well as Bay Area residents and community organizations."

"BART has already attempted a slapdash analysis of this project and it has been rejected by the FTA. It is not be credible to have BART staff rehire the same OAC consultants who were paid thousands of dollars to 'debunk' TransForm’s RapidBART proposal and the community," said White, referring to a May 2009 email from Tom Dunscombe, OAC Project Manager at BART, to several consultants on the project. 

In the email, Dunscombe asked the consultants to debase TransForm's RapidBART proposal. "Any information you can provide to put holes in this would be appreciated - we have some worried Board members and I need to easily discredit this 'paper,'" he wrote.

Notably absent from the BART letter to the FTA was Board Director Tom Radulovich, who yesterday told Streetsblog that BART staff has repeatedly "stonewalled" his requests for the agency to develop equity and social justice policies.

Johnson confirmed that Radulovich had asked for those policies, among many other requests. "He has asked staff to do a lot of work that in legal’s opinion wasn’t legally required," said Johnson.

"We believe we’ve been legally compliant in what we were supposed to do."

The Metropolitan Transportation Commission had no comment for this story, though spokesperson Randy Rentschler told Streetsblog they would have more later today.