As of August, Chicago's claims unit had received 168 claims regarding vehicle damage from potholes.
As of August, Chicago's claims unit had received 168 claims regarding vehicle damage from potholes.

The American Recovery and Reinvestment Act of 2009 has infused $680 million into roads since it was enacted. Despite critics who charge that it provides little more than a loose patchwork of quick fixes, it is working: More than 2,000 projects are under way in 47 states.

But it's not enough for infrastructure “consumers” bombarded daily with news about stimulus-funded improvements when they don't see anything significant taking place in their particular community.

In California — which received $160 million for water treatment but needs $39 billion over the next two decades to remove pesticides, nitrates, industrial chemicals, and arsenic from groundwater — residents are asking the state legislature to declare clean water to be a human right (for more information, see the “Web extra” box on page 34).

In New York, legislators representing the western part of the state are arguing that funding formulas result in a disproportionately small — 6.7% of the state's total $1.12 billion allocation — amount of support compared to the number of roads and bridges there.

And in Chicago, disgruntled constituents made national news in April when they took street repair into their own hands. Many of the city's 3,800 miles of streets had been pock-marked with potholes — more than 500,000 according to the city's DOT — after record snowfall and icy temperatures last winter pummeled the nation's third-largest city. Sixty city crews patched up to 8,000 potholes daily last winter, repairing virtually all of them within five months.

Despite this monumental effort, members of the South Austin Coalition applied 15 bags of Quikrete Asphalt Cold Patch into more than a dozen potholes using a 50-pound roller owned by one resident and surrounded by neighbors who warned them of oncoming cars.

Many public works operations were short-funded and short-staffed long before the stimulus package was being considered. Now, projects that didn't receive funding are being held up because resources are still tightening, forcing managers to continue to make tough choices regarding resource allocation.

“Part of the misconception is that the legislation was designed to create jobs, but a lot of people still think it's an infrastructure bill,” says Jeanette Brown, executive director of the water pollution control authority in Stamford, Conn., a city of 120,000. “The amount invested in infrastructure is infinitesimal compared to what our needs are.”

Indeed, the EPA estimates that the nation's wastewater infrastructure requires $390 billion in repairs and replacements over the next two decades. Connecticut's alone needs $1 billion. “The average property owner pays about .005 cents/gallon for wastewater conveyance, treatment, and disposal but thinks nothing about buying a bottle of water that costs $8/gallon,” Brown says.

She's still waiting to hear if the authority's request for $25 million in Clean Water revolving loans for several projects, including a waste-to-energy initiative that would use gasification to power the 24-mgd treatment plant, has been approved.

“Although the stimulus is a good step, it's merely a down payment,” says Joan Buhrman, spokesperson for the American Society of Civil Engineers, which has “graded” various infrastructure categories — streets, road, and bridges, for example, and water — six times since 1988. This year, the nation's infrastructure as a whole received a D. “The expectations were that this would create big iconic projects resembling the New Deal era, but big projects take a long time.”

In the meantime, cash-strapped states are using the legislation to shore up major shortfalls.

According to the National Conference of State Legislatures, 25 of 33 states narrowed the gap between revenues and expenditures by at least 20% with the legislation's $53.6 billion contribution to the State Fiscal Stabilization Fund. The onetime boost the stimulus provided was designed to give states some flexibility in making 2010 budget decisions.

“The intention was to help them temper their anticipated budget cuts,” says Federal Affairs Counsel Michael Bird, warning that while some states' infrastructure programs avoided cuts, they may not be so lucky when the funding runs out in 2011.

At the local level, 62% of respondents to a National League of Cities survey have delayed or canceled nonstimulus projects as a result of the economic downturn even though 80% reported that infrastructure needs have increased. This is the third time in four years finance directors in cities with more than 50,000 residents have reported lower revenues.

“Cities are getting ready for a bigger decline in property tax receipts,” says City Fiscal Conditions 2009 co-author Michael Pagano, dean of the College of Urban Planning and Public Affairs at the University of Illinois at Chicago. “They're now starting to worry about their 2010 budgets. There's been a reduction in capital spending this year as a result of declining tax revenues and smaller operating budgets. We won't see this thing bottom out for several years until property values and tax receipts pick up again around 2011 or 2012.”

Chicago, for example, laid off 400 employees in June and forced nonunion employees to take 15 days of unpaid leave to help alleviate a $300 million budget shortfall. The city's DOT is using $86 million in economic stimulus money through the Illinois DOT's State Transportation Plan to resurface significantly deteriorated arterial streets with heavy traffic volumes, but the street that was the focus of the South Austin Coalition isn't on the list because it's a collector street with lower traffic volumes.

Like many street departments, Chicago's plans repairs based on the number of calls to the city's 311 system, developing routes by integrating call data into a GIS streets layer. With just one call from that particular block within the previous two months, city crews had higher-priority streets to attend.

Elce Redmond, an organizer of the South Austin Coalition, says he and his neighbors had complained for months about potholes, even lobbying their alderman — unsuccessfully — for help (see “Integrated intervention” on page 32).

“We understand everybody's frustration,” says Chicago DOT Spokesperson Brian Steele. “But when you have people doing work on their own, they're putting themselves in danger and they're not doing it to city standards.” The 50-pound roller, for example, doesn't compact the material properly; and residents didn't square-cut the sides of the potholes before applying the patch (see “Takin' it to the streets” on page 30).

“The stimulus money is coming slowly, but the average person thinks things happen instantaneously,” Stamford's Brown says. “I don't think we do a good enough job at educating the public about the process of getting a project started.”

Takin' it to the streets

Who's on the line when residents start handling repairs? Who

As state and local governments struggle and to balance the cost of services against declining revenues, no program is immune from cuts. Potholes, cracked sidewalks, overgrown tree limbs, clogged catch basins — all public assets within the public right of way — are targets for frustrated residents who rarely have the experience or materials to perform maintenance that meet city, county, or state standards.

This poses two liability issues for public works operations: the safety of the residents performing the work, and the potential damage to vehicles or property owners harmed during the repair or as a result of the repair failing. In general, local governments can't be held responsible in either case unless they fail to repair an asset that employees had deemed a hazard.

In the former scenario, a resident is encroaching on public property.

“First of all, the material and equipment aren't owned by the city,” says John Ehrlich, deputy corporation counsel in Chicago's law department. “They're also not considered an intended and permitted user. Unless you're crossing at a crosswalk or are within immediate distance of a legally parked vehicle, you're not an intended and permitted user of the street according to state law. Even if the city had notice ahead of time that this work was being performed, the city would issue a cease-and-desist order.”

Creative litigants could argue that their services are a gift, but gifts must first be approved by the city council.

If a resident who decides to trim a tree located on a parkway drops a limb onto a parked car, damaging the windshield, an insurance claims investigator and Chicago DOT employee investigate the claim. “I would deny that claim,” says Chicago Claims Manager Don Morris, adding that the victim could seek restitution from the resident who performed the work.

States typically base traffic laws on the Federal Highway Administration's Manual on Uniform Traffic Control Devices, which gives the owner exclusive operational and jurisdictional control over a road. “Because the community members who made repairs are not public employees, they fall outside state immunity statutes,” says Dave Parker, risk manager for the Pima County Sheriff's Office in Tucson, Ariz., and former risk manager for the Arizona DOT.

“However, volunteer protection laws could apply in some jurisdictions, potentially making the entity liable,” adds Parker, who also serves on the board of the Public Risk Management Association.

The Federal Volunteer Protection Act of 1997 defines a volunteer as “an individual performing services for a nonprofit organization or governmental entity who does not receive compensation (other than reasonable reimbursement for expenses) or any other thing of value in lieu of compensation in excess of $500/year.”

Each state defines “volunteer” differently, so each state has its own standard for immunity. The law does, however, state that the resident must be certified or authorized, and must have established responsibilities to receive qualified immunity in the event of injury to others as a result of work performed as a volunteer.

Like Parker, Chicago's Morris is unfamiliar with any claims in which a resident has argued volunteer status. The city issues short-term insurance policies for volunteers, such as interns and seasonal employees, who've been contracted by the city.

“Still, if a resident is construed to be a volunteer under federal law or under a stricter state law, it is possible that the resident could be protected from a lawsuit when performing the work,” Parker adds. “And the entity could ultimately be liable as the result of problems arising from that resident's actions.”

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