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20 the need to acquire rights-of-way from property owners, to Planning study agreements, in which the railroad agrees to mitigate their environmental impacts, and the difficulties in provide personnel, operating data, and planning assump- paying for what are often expensive undertakings. Typical tions so the highway agency can conduct long-term plan- types of expansion projects that involve railroads include the ning about how railroad facilities may interact with local following: highway and transit operations; Preliminary engineering study agreements for highway agen- Highwayrailroad grade separation projects that fre- cies to evaluate project concepts or weigh environmental quently increase highway capacity by reducing a major options for multiple alternatives for a potential project; impediment to the flow of traffic. The frequent highway Project review agreements, which address the review of blockages that mainline Class I railroads can cause in an detailed plans; urban area are significant. Major Class I railroads can move Construction agreements, in which the contractor's means more than 80 trains per day. Eliminating these bottlenecks and methods are limited to ensure safe train operations by grade separating major highwayrailroad intersections during construction; is often a major congestion strategy in cities and on major Long-term maintenance agreements for the finished suburban highways. projects; Highway widening projects often involve railroad inter- Routine maintenance agreements to resurface or repair exist- action. Interstates, freeways, and arterials all cross rail- ing at-grade crossings or existing overhead or under-grade roads and require the widening of bridges to carry the new, crossing structures; widened lanes over or under railways. Safety project agreements to install lights, gates, signals, signage, or other safety appurtenances at crossings; Highway Agency Processes Agreements to close crossings or to develop new ones; to Address Railroad Needs Agreements to grade separate at-grade crossings; Various right-of-entry agreements so that crews can access Most state highway agencies are approximately 100 years old. railroad properties in order to study geological, environmen- As they were organized in the early 20th century and began their tal, or hydrological aspects of adjacent highway properties; efforts to improve highways, they immediately encountered the Various utility agreements allowing highway agencies to large and powerful railroads, which at that time were the improve pipes, drainage features, or even utility pipes and nation's largest employers. Decades of statutes and case law rec- wires that cross or run parallel to the railroads; ognized the railroads' rights to control rights-of-way. As high- Lateral encroachment agreements where improvements to way agencies improved the nation's roadway network, they an adjacent roadway may infringe, even temporarily dur- developed decades of experience not only in how to safely cross ing construction, on the railroad; and railroads but also in how to interact with railroad officials to get Agreements concerning rehabilitation of at-grade crossings. the railroad approvals they needed to cross or interact with rail- road rights-of-way. In most aspects, the highway agencies' processes are the mir- Many projects include several of these aspects, which there- ror images of the railroads' processes. The highway agencies fore may be consolidated into one larger, complex agreement. attempt to anticipate the railroads' requirements and to incor- In contrast, other agreements may be simple letters that incor- porate them into standard agreements, construction specifica- porate by reference long-standing provisions or specifications tions, and internal project-development processes. All states that have been programmatically adopted by both the railroad examined have rail-coordination offices whose job it is to secure and the highway agency. railroad approvals. These offices nearly universally serve as a Agreements also vary because of the different governance central point of coordination between the highway agencies and requirements of the highway agencies. In some states, the state the railroads. transportation agency has statewide jurisdiction over nearly all Most state and local statutes require highway agencies to roads, so that the highway agency manages most of the railroad develop agreements or contracts before they can spend money negotiations. Other states are "home rule" states, in which local or enter into commitments. Therefore, the development of an governments manage local roads. In these states, the local gov- agreement is a major focus of the project-development process ernments may frequently be the project sponsor and may if that project involves highway agencies compensating the require direct engagement on agreements. Some state highway railroads or making commitments to them. As a result, there agencies share authority for railroad interaction with utility are many kinds of project agreements. Agreements, like proj- commissions or commerce commissions. In these states, both ects, generally fall into the following categories, each of which the highway agency and the commission may be parties to the may involve a type of agreement or a major area within a negotiations. Within cities, the municipal government may larger agreement: be a project sponsor. In large cities such as Chicago, New

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21 York, and Los Angeles, the municipal government may have Emergency service providers, if crossings are to be closed dozens or hundreds of crossings and have full-time staff ded- or traffic patterns changed; icated to railroad agreements. As a result, the cities may be School officials concerned about bus routes; direct negotiators with the railroads and bring their unique State historic preservation officers, if any actual or poten- local ordinances and requirements to the agreement process. tially historic structures or historic districts are involved; As a result of these variations, the project agreement process State and federal hazardous materials officials, because rail- can be diverse. road rights-of-way are assumed to have transported many decades worth of hazardous materials that may have con- taminated rights-of-way or groundwater; The Project Development Process The U.S. Army Corps of Engineers, the U.S. Environmen- Every project that uses federal funds must be developed from tal Protection Agency (EPA), and probably the state envi- an official, formal Project Development Process (PDP) estab- ronmental protection agency, if any streams are affected or lished by the state highway agency. The PDP requires an alter- runoff into public waters is created; natives analysis to be conducted for most projects that involve State and federal EPA officials, to review the air-quality any significant complexity or impacts. Minor maintenance impacts or benefits of the project; projects, such as a resurfacing, would require only nominal The U.S. Fish and Wildlife Service, which generally must analysis that creates little time delay or analytic cost. Other receive routine notification in case any threatened or endan- projects, however, create multiple and iterative analyses that gered species are in the vicinity of a complex railroad can involve extensive public hearings and comment periods. highway project; This public involvement process brings multiple stakeholders Utility companies, to be consulted to ensure that the proj- into the process, whom the highway agency must attempt to ect does not require extraordinary and expensive relocation reasonably accommodate. of utilities, such as power substations or sewer lift stations; An informed and complete alternatives analysis includes FHWA and its attorneys, who need to approve the project substantial comparative studies of various project alternatives (if federal funds are used, FHWA would be responsible for as to cost, feasibility, impacts, and constructability. Each alter- defending the project against any legal challenges resulting native must be evaluated to determine which has the least from environmental or neighborhood impacts); and detrimental environmental or community impacts. To con- FRA, which may be involved in some cases. duct multiple analyses requires substantial information and comment from the railroads. As noted earlier, the railroad These entities would only be the external stakeholders. Inter- considerations are diverse. Informed comment about a proj- nally, a variety of highway agency divisions would be reviewing, ect alternative involves reviews from several disciplines and commenting on, or suggesting changes to the project concept: divisions within the railroads. The railroads also want to charge for these reviews, many of which are subcontracted to engi- The planning division would ensure that the project agrees neering firms. As a result, lengthy and expensive alternatives with local short- and long-term plans, that it is fiscally bal- analyses can result in multiple iterations. Each iteration can anced, and that it has been approved by the metropolitan take several months of analysis by the highway agency before planning organization. it submits the new iteration to the railroad for its multiple The environmental division would coordinate approvals divisions to review again. As a result, several years of alterna- from environmental agencies that have jurisdiction over tives analysis, public comment, railroad review, and envi- issues of air and water quality, hazardous materials, terres- ronmental analysis can precede the identification of the final trial or aquatic species impacts, and historic or potentially project concept. historic structures or districts. From the railroad's perspective, the impact of the project The geotechnical unit reviews soil boring data, which can alternatives on its operations is of paramount importance. To have a major impact on structure type and foundation the highway agency, the railroad is only one of multiple stake- design. holders that it needs to satisfy in a complex project. Among its The traffic division reviews the project for its effect on adja- external stakeholders for a complex urban grade-separation cent signal systems and traffic patterns. project are the following: The design division would scope, hire, and review consul- tants who develop the plans. City or county elected officials where the project is located; A structures division would review issues of structure cost, The affected residents within the neighborhood; constructability, and long-term maintenance. City or county engineering officials concerned about traffic A construction division wants to ensure that plans consider impacts; all construction complications.

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22 An estimating division needs to provide accurate costs. ing the utility companies to relocate affected utilities before the The utilities division requires long lead times to coordinate project commences. Also, the "permit" process for wetlands or with utility companies that may have to relocate utilities to stream impacts cannot begin until precise impacts, such as enable contractors to build the project. cubic yards of fill or lineal feet of drainage ditches, are known. The right-of-way unit must hire appraisers, conduct title The water resources permit processes of the U.S. Army Corps searches, and review easements to ensure that all property of Engineers and EPA require another round of public notice owners have full and fair compensation for their property. and comment before the project can proceed. A contracting and scheduling division needs to review final These multiple stages consume considerable cost, time, plans, distribute plans to potential bidders, and actually engineering analysis, and staff resources by the highway agency schedule a bid letting. attempting to complete a complex highwayrailroad project. Generally, such large undertakings are pursued when there is At least three successively complex stages of engineering a great transportation need. Such need generally produces generally occur, with each circulating for review. Generally, substantial community and political pressure on the high- preliminary plans are produced at the 30% plan stage, which way agency to complete the project. Also, such projects often include the following: involve multiple funding partners. State highway agencies often pool funds with the affected community or use a con- An exact alignment; gressional earmark on such high-profile projects. The mul- Dimensions of horizontal and vertical limits; tiple funding partners, therefore, experience pressure to control A structure type selection; and costs. General "typical sections" that illustrate the general design When such large, complex, expensive, and often con- of the project along its length. tentious projects then face delays and changes caused by rail- road requests, it can lead to confrontation and backlash from After comments on the 30% plans are reviewed, the next sub- the state and local project partners. As mentioned, at each sub- mittal advances to a 60% stage, where more details are devel- mittal, the plans matriculate through several different railroad oped on the following: divisions to examine the proposal from its impact on the vari- ous disciplines within the railroad. Divisions such as structures, The structure design; construction, maintenance, signals, operations, industrial General project right-of-way limits; development, and mechanical would be responsible for con- Consideration of utility impacts; sideration of how the project would affect the railroad during General quantities of materials; and construction, and also in perpetuity after its completion. Rail- Greater design detail. roads typically warn of 30-, 60-, and even 90-day comment periods at each review, depending on the complexity of the Then, depending on the agency, final plans are presented at impacts. If the railroad finds the plans to be unacceptable, this the 90% or 100% stage. These would include another succes- can lead to another series of revisions and another round of sive iteration of detail about the following: submittals and reviews for each project stage. Highway agencies frequently report that it can take a decade Precise designs on where and how drainage structures will to plan, design, and construct a complex project. function; The temporary work limits that may extend outside the final Financial Impacts on Highway Agencies rights-of-way as equipment maneuvers and excavations occur during construction; Earlier, the financial pressures on the railroads were described Precise delineation of right-of-way takings in sufficient detail in general. The railroads have faced substantial downsizing in for filing deed descriptions, appraisals, and right-of-way the face of traffic volume increases just to remain profitable negotiations; and competitive. The railroads generally refuse to contribute Precise plan sheets for every stage and aspect of the project; to projects or to provide engineering comments without com- Precise cost estimates by project item and stage; pensation because of the financial pressures they face to cover Maintenance of traffic plans; and all their costs and not to pass those costs on to shareholders Plans for landscaping or restoring the site after construction. or shippers. The railroads note they are private, publicly traded companies that are obligated to maximize shareholder value. Once all these details are approved, the highway agency They note that engineering time is expensive, that rights-of- begins the often complex, expensive, and sometimes con- way are finite, and that their daily train operations are their tentious processes of acquiring the rights-of-way and convinc- financial lifeblood.