Infra Insight Blog : written by Nossaman LLP Infrastructure attorneys, covers infrastructure project delivery, including Public-Private Partnerships, Operations & Management Agreements, policy, and news.

Arizona has passed comprehensive P3 legislation on the heels of the passage of similar legislation in California.  Last month, Governor Jan Brewer signed House Bill 2396 which both updates Arizona’s existing toll road development and operations laws and gives the Arizona Department of Transportation (ADOT) broad authority to develop and operate a range of transportation projects through a variety of delivery methods. 

Under House Bill 2396  ADOT is authorized to use virtually  any innovative delivery method, including P3s.  Facilities eligible in the bill include: new or upgraded highways, rail, bus rapid transit, ferries, and intermodal systems.  ADOT may also grant P3 authority to other governmental agencies for specific projects.  The new law provides for both solicited and unsolicited procurements of P3 projects and authorizes  private parties to collect user fees or tolls.  Check out Toll Road News’ initial analysis of potential P3 projects in Arizona.

Arizona’s P3 law, generally considered very P3-friendly, includes several restrictions.  Toll increases allowed under a P3 agreement must either be based on a formula or subject to contract provisions regulating the private partner’s return on investment.  Additionally, concession or other P3 agreement terms are limited to 50 years, subject to extensions.  Finally, a novel provision in the law allows drivers paying tolls to apply for a refund or credit of motor fuel taxes paid by that driver while operating a vehicle on the tolled facility, stay tuned to see how ADOT works out the details for implementing such a credit or refund. 

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Arlington County is seeking to delay (or possibly derail) a project designed to ease congestion and add new lanes to Northern Virginia’s clogged 95/395 corridor.  Arlington has challenged the Categorical Exclusion (CE) granted by the Federal Highway Administration (FHWA), which allowed the project to move forward without a full environmental analysis.

Arlington is concerned that the new lanes will “increase congestion throughout the corridor, and lengthen travel times, especially for transit.”  Buses, carpools (HOV-3), motorcycles and emergency vehicles will have free access to HOT lanes.

Drivers with fewer than three occupants will be required to pay to access the lanes.  Fully electronic tolling on the HOT lanes will allow customers to pay tolls with E-ZPass - eliminating the need for toll booths.

Tolls will rise with congestion, following a strategy known as “congestion pricing” that has been embraced with great success in San Diego and Orange County.  As the price goes up more people exit the lanes, maintaining free flow of traffic.

Fluor-Transurban, Virginia’s private sector partner charged with building and managing the new lanes, is no stranger to set-backs. Fluor has been doggedly pursuing HOT Lanes in Virginia since 2002.

Northern Virginia’s congestion woes are a serious concern - only Los Angelinos lose more time in traffic each year, according to the Texas Transportation Institute’s 2009 Urban Mobility Report. This lawsuit will likely focus pressure on the I-495 HOT Lanes project to prove the viability of the congestion pricing model for the Washington Metro Area. 

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New subway safety standards may be coming soon to a city near you.  The Federal Transit Administration (FTA) has assembled a team of transportation safety experts to explore rail transit (subway, light rail, and commuter rail) safety reforms, which may extend to bus operations.   

FTA is currently prohibited by law from establishing national safety standards, requiring Federal inspections, or requiring specific operating practices, but that may soon change.  In testimony before the Senate Banking Committee, FTA Administrator Peter Rogoff condemned several recent transit collisions as “unacceptable” and announced the Obama Administration’s intent to pursue reform. 

Most rail transit is free from federal safety oversight. There are exceptions - certain commuter rail systems are funded by FTA but regulated by the Federal Railroad Administration safety regulations.  But the majority of urban rail transit systems are overseen by the State safety oversight agencies. 

Any new safety oversight requirements will probably be tied to FTA’s traditional role as a grant-making agency. Administrator Rogoff highlighted the need for new transit funding, citing a National Transportation Safety Board  preliminary report indicating that the “condition of equipment and age of the rolling stock may have resulted” in the Washington D.C. crash earlier this year, which killed 9 and injured more than 70 passengers.

Aging equipment is a serious concern nationwide.  FTA’s recent rail modernization study surveyed the seven largest transit operators, which carry more than 80% of the nation’s transit passengers.  More than 33% of the assets held in these systems were in marginal condition or had already exceeded their useful life.  Servicing this system’s backlog of unmet needs would cost a staggering $50 billion, by the study’s estimates.

As the new surface transportation authorization process gets underway the Administration’s plans will no doubt provide fodder for vigorous debate.  Administrator Rogoff’s testimony seems to hint that new safety measures may be linked to FTA’s discretionary New Starts program.  In the meantime, look forward to a follow-on FTA study identifying safety critical infrastructure and industry wide “state of good repair” needs.  

Video of the hearing "Rail Modernization: Getting Transit Funding Back on Track," along with written statements from the heads of the Chicago Transit Authority, the Washington Metropolitan Transit Authority, New Jersey Transit, and the Metropolitan Atlanta Rapid Transit Authority are available from the Senate Banking Committee's website.

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California is serious about using its new legislative authority to deliver some of the state’s much-needed transportation projects through public-private partnerships (P3s). On August 12, 2009, the California Transportation Commission issued draft guidelines addressing the Commission’s role in approving the P3 delivery method for specific projects.

The draft guidelines follow the California legislature’s momentous enactment of Senate Bill 4, referred to as SBX2 4.  That bill authorizes Caltrans and regional transportation agencies to enter into P3s for transportation projects.  Prior to commencing the procurement of a proposed P3 project, Caltrans or a regional transportation agency must first nominate the project and receive Commission approval.  The draft policy guidance issued by the Commission discusses the process for obtaining the requisite project approvals from the Commission. 

The guidelines are still in draft form and will be considered by the Commission at a meeting this fall. While the guidelines may be revised prior to becoming final, interested agencies and P3 industry participants will want to keep an eye on the provisions related to the scope of the Commission’s approval, timing and mandated components of the reports required to be submitted to the Commission as well as the impact these policies will have on the timing and structure of a P3 procurement.

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A recent survey conducted by KPMG International confirms what many in the infrastructure industry already knew: current infrastructure investment is insufficient to support economic growth and politics frequently influences infrastructure development in the United States.  In this global survey, KPMG surveyed 455 infrastructure executives, including 118 from the United States.

While much of the recent industry press has focused on the lack of available financing as the primary challenge to delivering infrastructure, a vast majority of the respondents indicated that governmental effectiveness and current economic conditions are bigger hurdles than available financing.  The respondents expressed specific concerns over what they viewed as an overly politicized process, changing public policy, and excessive government bureaucracy.  When asked how governmental agencies could enhance their effectiveness in delivering infrastructure, respondents suggested making infrastructure delivery less influenced by political considerations, increasing transparency in infrastructure spending, and expanding the use of public-private partnerships (PPPs). 

Recent examples of PPP projects played out in the political arena include the SH 121 project in Texas and the proposed long-term leases of the Pennsylvania Turnpike and Alligator Alley.  California, which had pioneered PPPs in the early 1990s, only recently overcame objections from various political stakeholders in the intervening years.  We are hopeful that California’s new legislation authorizing design-build and PPPs for Caltrans and regional transportation authorities is a step toward improved transportation infrastructure delivery.  Given the current administration’s focus on infrastructure, Congress and the administration may now act to address the long-term needs for a stable means of funding infrastructure development and maintenance, without the political roadblocks.

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At the June 2009 meeting of the Texas Transportation Commission, TxDOT Assistant Director Phil Russell provided a first look at a proposed Rail Division for TxDOT, focusing on both passenger and freight rail planning for the future.  If created, the new  Rail Division would have a Rail Division Director, with  four departments under that to-be-named person's purview including Operations, Railroad Crossings, Safety and Project Development.

Commissioners indicated that it would be a wise move to create a Rail Division.  Commissioner Bill Meadows voiced that "the Commission needs to take a leadership position on rail", citing that other states are far ahead of Texas on rail planning and development.

In July 2009, Texas Department of Transportation (TxDOT) officials submitted seventeen preapplications to the Federal Railroad Administration for a variety of rail projects across the state.  The competitive grant program is a part of the American Recovery and Reinvestment Act (ARRA) and advances the Obama Administration’s vision for high-speed intercity passenger rail throughout the nation. In all, $8 billion in ARRA funds, in addition to a little over $90 million in FY 2008 and 2009 federal appropriations are available through this program.  To find out more, you can view a list of TxDOT’s proposed projects.

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Dallas Area Rapid Transit (DART) and the Fort Worth Transportation Authority (The T) are in the early phases of procuring a firm to enter into a Public Private Partnership to design, construct, operate, maintain and finance a cross regional passenger rail service known as the Cotton Belt Rail Line starting on or about 2013.   

The Cotton Belt Rail Line PPP project is intended to provide regional rail connectivity for communities along the project corridor to Fort Worth, Dallas-Fort Worth (DFW) Airport, the DART transit network, and major activity centers along the corridor.  This project connects passengers with the Trinity Railway Express service in downtown Fort Worth, and the DART Light Rail System via the Orange Line at DFW Airport, the Green Line in downtown Carrollton, and the Red Line in the Richardson/Plano area.  It also connects with the Addison Transit Center which provides extensive bus connectivity in the north central part of the DART Service Area.  A future connection in downtown Carrollton to the planned Denton County Transportation Authority passenger rail service between Denton and Carrollton, TX is also a possibility.  One of the objectives of the Cotton Belt Rail Line project is to provide a system that interacts seamlessly and efficiently with other transportation systems in the region.

On May 21, 2009 DART and The T issued a Request for Information to identify individuals and firms interested in a PPP for the Cotton Belt Commuter Rail Line and expect to issue a Request for Qualifications (RFQ) by September 2009.  The deadline for filing a Statement of Interest was July 24, 2009. Visit DART's website or check back here for more info.

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