Infra Insight Blog

On January 10, 2023, the Biden-Harris administration released the U.S. National Blueprint for Transportation Decarbonization ("Blueprint"), representing a major step in advancing the president’s clean transportation agenda and addressing the growing climate crisis caused by greenhouse gas (GHG) emissions. The Blueprint arrives as preliminary U.S. carbon-emissions data for 2022 show yet another year of increased emissions, indicating that the country is not on course to meet its commitment under the Paris Agreement to halve economy-wide emissions by 2030.

The Blueprint, jointly developed by the ... 

On December 1, 2022, Nossaman partner Simon Santiago moderated a panel at the 2022 P3 Government Conference held in Arlington, Virginia, titled, “Best Practices for Successful P3 Procurements: Identify the Appropriate P3 Process for Your P3 Approach.” The panelists, comprised of Jack Callahan (Partner and Construction Industry Practice Leader, CohnReznick); Michael Kerrigan (Principal, Delgany Advisory); and Brandey McDonald (Project Director, Infrastructure Asset Management, Fengate), offered a variety of perspectives from the lens of legal, technical and ...

The Infrastructure Investment and Jobs Act (P.L. 117-58; IIJA) expanded the scope of the Buy America preference by requiring that all construction materials, iron and steel, and manufactured products used in federally supported infrastructure projects be produced in the United States. Prior to the IIJA, Buy America requirements did not apply to construction materials.

The federal government began implementing the new requirements earlier this year, beginning with the Office of Management and Budget’s implementation guidance, followed by the U.S. Department of ...

As anticipated by project sponsors and industry participants, the U.S. Department of Transportation (USDOT) issued a temporary waiver of Buy America requirements for construction materials on May 19, 2022.

The Infrastructure Investment and Jobs Act (IIJA) expanded the applicability of Buy America and required the Office of Management and Budget (OMB) to promulgate guidance extending the current Buy America requirements regarding iron and steel and manufactured products to include construction materials, as well. OMB issued initial IIJA-implementing guidance effective ...

The Office of Management and Budget (“OMB”) recently issued initial Buy America implementation guidance required by Sections 70901-52 of the Infrastructure Investment and Jobs Act (P.L. 117-58; “IIJA”).

The Buy America preference applies to federally supported public infrastructure projects, including the structures, facilities and equipment for highway, transit, water and energy projects in the United States ...

Transit authorities across the nation rely on the Capital Investments Grants (“CIG”) program administered by the Federal Transit Administration (“FTA”) to fund major capital expenses for expansion and core capacity projects. The CIG program is codified at 49 U.S.C. § 5309, and FTA currently administers the program in accordance with its “Final Interim Policy Guidance” published in June 2016.

The recently enacted Infrastructure Investment and Job Act (P.L. 117-58; “IIJA”) amended the CIG program statute. Consequently, FTA has prepared initial guidance on ...

On February 4, 2022, President Joe Biden signed an Executive Order on Use of Project Labor Agreements for Federal Construction Projects (the “Executive Order”)¹, which will require the use of project labor agreements (“PLAs”) on large-scale federal construction projects with a total estimated cost to the federal government of $35 million or more.

A PLA is a collective bargaining agreement that applies to a specific construction project and lasts only for the duration of the project. PLAs are primarily designed to reduce jurisdictional disputes among unions and between ...

The Infrastructure Investment and Jobs Act or “IIJA” (P.L. 117-58) passed on a bipartisan basis in both the House and Senate and was signed by the President one month ago today, on November 15, 2021. One could have assumed that federal agencies would begin allocating the new funding and commence implementation of the IIJA as soon as it became effective. Unfortunately, that is not the case, but for reasons that may not be readily apparent.

The federal government is actually constrained in its ability to implement the IIJA because it is currently funded and operating under a ...

Late last Friday on November 5^th, the U.S. House of Representatives passed the $1.2 trillion bipartisan infrastructure bill, the Infrastructure Investment and Jobs Act or IIJA, which President Biden intends to sign on Monday, November 15^th. Much of the focus of the bill has been on the unprecedented increase in federal spending to rebuild the nation's roads, bridges, airports, seaports and transit systems. However, there are several provisions of the infrastructure bill that expand, and hopefully will make more transparent, the TIFIA credit assistance program. A low-cost ...

The $1.2 trillion infrastructure bill that passed the Senate this week includes $65 billion to improve broadband infrastructure, middle mile infrastructure and broadband access by unserved and underserved communities.

Division F (Broadband) of the bill lays out four key aspects of the program. 

Broadband Grants for States 

$42.45 billion will be allocated to eligible states under the Broadband Equity, Access, and Deployment Program. Subgrantees under this program will construct and deploy infrastructure for the provision of broadband services. 

There is a minimum allocation ...

Yesterday, the Senate released legislative text for its highly anticipated bipartisan infrastructure package, titled the ­­­­­­­­Infrastructure Investment and Jobs Act. Negotiations have been ongoing for months, and while several political and policy hurdles remain before this proposal can arrive on the President’s desk for his signature, agreement on this bipartisan package is a hugely positive development. Project sponsors and practitioners have closely tracked the development of this package not only with respect to overall funding levels and policies but ...

On May 14, Gov. Newsom unveiled his record-breaking $267 billion budget proposal to tackle some of the greatest challenges facing the state of California, kicking off what’s been described as the most ambitious era of government spending in the state since the mid-20th century. The new proposed budget comes exactly one year to the day after the governor announced spending cuts to schools, homeless services and health care in light of the state’s $54 billion budget shortfall and the worsening COVID-19 pandemic. Thanks to a booming stock market and greater than expected tax ...

The President unveiled details of his historic infrastructure plan this morning, proposing the largest infrastructure investment in U.S. history.

The President’s proposal, titled the American Jobs Plan, requests roughly $2 trillion in total federal funding and financing tools over the next eight years:

• $621 billion for transportation infrastructure and resilience, including:
  • $115 billion for bridges, highways, roads and main streets
  • $20 billion for road safety
  • $85 billion for transit
  • $80 billion for Amtrak
  • $174 billion for electrifying vehicles
  • $25 billion for airports ...

The U.S. Department of Transportation (“DOT”) has announced it is making $889 million available through its latest round of Infrastructure For Rebuilding America (INFRA) grants. In its February 17 announcement, the DOT noted that the INFRA grants “will fund transportation projects of national and regional significance that are in line with the Biden Administration’s priorities, including creating good-paying jobs, improving safety, and applying transformative technology, and explicitly addressing climate change and racial equity.”

For the selection ...

State departments of transportation across the country currently find themselves at a cross-roads where traditional sources of infrastructure funding may not generate sufficient revenues for addressing aging transportation infrastructure. States generally rely on “user fee” revenues generated from fuel taxes, vehicle sales taxes and registration fees to support transportation infrastructure spending. The user fee funding model has come under scrutiny in light of recent trends, such as urbanization, electric vehicles, micro mobility and ride-sharing services. In ...

Los Angeles County aims to integrate infrastructure planning with social and environmental needs in its recently released draft of the updated L.A. River Master Plan.

The plan is the first to cover the entire L.A. River and proposes a 51-mile connected open space to manage floodwaters while improving natural ecosystems and public wellbeing. Calculations based on information from the US Census Bureau indicate that 25% of Californians live within a 30-minute drive of the LA River and over one million people live within one mile.

The plan represents a combined effort by L.A. County ...

The COVID-19 pandemic and resulting lockdowns and economic disruptions have severely affected the usual revenue sources that local governments have used to fund public improvements and transportation services – e.g., distributions of state and federal gas tax revenue, local sales taxes and property taxes. Local governments might consider creating parking benefit districts (“PBDs”), which can provide modest amounts of revenue. PBDs, along with other creative ways to raise revenue, can help fill in funding gaps for local improvements and services.

A PBD is a geographic ...

In light of the major cybersecurity breach of the SolarWinds Orion software by malicious actors, the Water Information Sharing and Analysis Center (WaterISAC) recently issued a series of advisories providing guidance for water providers across the country on how to respond and react to this unprecedented cyberattack.

As highlighted in the WaterISAC advisory issued on December 16, 2020, the Environmental Protection Agency has recommended that all water and wastewater utilities review the Cybersecurity and Infrastructure Security Agency's (CISA's) Emergency Directive ...

On November 3rd, Austin voters approved a property tax increase to help fund the $7.1 billion Project Connect mass transit project. The initial investment, which is a portion of the “Project Connect System Plan,” includes 27 miles of rail service, 31 stations and a transit tunnel. Specific elements of the plan include:

• Blue Line: An approximately 15-mile light rail line running from Austin-Bergstrom International Airport (AUS), connecting through the downtown station and running north to Lamar Boulevard at Highway 183
• Orange Line: A 21-mile light rail line running from North ...

Governor Newsom recently signed into law Senate Bill 288 (the “Sustainable Transportation COVID-19 Recovery Act”), which will temporarily add new exemptions to the California Environmental Quality Act (CEQA) statute. The purpose of SB 288 is to fast track transit and sustainable transportation projects, provide a boost to public transit agencies affected by COVID-19, aid economic recovery by producing jobs, and reduce driving and GHG emissions. 

These statutory exemptions may help expedite environmental review of transportation projects that are specifically ...

On August 29, 2020, Governor Newsom signed into law AB 2731, which is intended to support the potential redevelopment of the 70-acre Navy Old Town Campus in downtown San Diego. The site would include a LEED Gold certified transit hub, a public transit connection to the San Diego International Airport and adjacent transit-oriented development, including up to 10,000 new residential units. The bill was authored by California State Assemblymember Todd Gloria and Senate President pro Tempore Toni G. Atkins. It authorizes the San Diego Association of Governments (SANDAG) to acquire a ...

Universities have utilized public-private partnerships (P3s) in recent years to facilitate various types of campus construction projects, including campus housing, specialized facilities, utility systems and even overall campus expansions. Utilizing P3s for campus improvements has allowed universities to deliver important projects and leverage private industry expertise while shifting capital cost investments to the private sector.

Despite the growing trend of using P3s to deliver projects, the COVID-19 pandemic may impact universities’ interest in utilizing P3 ...

Pursuant to Senate Bill 743 (passed in 2013), the metric for analyzing transportation impacts under the California Environmental Quality Act (CEQA) officially changed over on July 1, 2020 from level of service to vehicle miles traveled (VMT). Now, VMT is the standard for such analyses in nearly all CEQA documents, requiring agencies to implement sweeping changes in their approach to analyzing transportation impacts from major infrastructure and development projects. The following video excerpt from a recent Nossaman webinar on this topic provides a brief overview of these new CEQA guidelines relating to VMT.

For further details on this topic ...

On September 3, 2020, San Luis Obispo Regional Transportation Authority (SLO RTA) closed the first TIFIA loan under the U.S. Department of Transportation’s (Department’s) Transportation Infrastructure Finance and Innovation Act (TIFIA) Rural Project Initiative (RPI).  The SLO RTA manages several local and express fixed-route transit lines, as well as several paratransit and dial-a-ride services throughout San Luis Obispo County located in the Central Coast region of California.  The SLO RTA’s current administration, operations, and bus maintenance facility has ...

5G provides reliable communications, enables near real-time interactions and has much faster data speed. 5G also provides the platform for the Internet of Things which can be utilized in improving public safety, autonomous driving, healthcare, education, smart cities, smart farming, home automation and many more.

On August 12, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld most of the Federal Communications Commission (FCC)’s initiatives to expedite 5G deployments on existing local infrastructure. Specifically, the court upheld the following orders issued ...

On July 23, 2020, the California Transportation Foundation convened a panel of transportation professionals for the webinar “Transportation Outlook: Moving Beyond COVID-19.”  The panelists discussed the impacts of the coronavirus and what the future holds for California’s transportation sector in the wake of the pandemic.

Below are key takeaways from the panel:

Adjusting to a “New Normal”

• COVID-19 has significantly altered the way some Californians commute to work; remote work could become a permanent feature of the post-pandemic economy.
• Transit agencies are ...

The full House will consider the FY21 Transportation, Housing and Urban Development (THUD) bill that the House Appropriations Committee approved with a final vote of 30-22 on July 14, 2020.  For FY2021, the THUD bill provides a total of $107.2 billion in total budgetary resources for the U.S. Department of Transportation, including:

• $1 billion for National Infrastructure Investments (TIGER/BUILD);
• $3 million to support the Highly Automated Systems Safety Center for Excellence;
• $10 million for competitive Transportation Planning Grants to assist areas of persistent poverty; ...

There can be little argument that many of the more than 90,000 dams in this country are in need of immediate attention. The catastrophic failure of two dams in Michigan last month following an extraordinary amount of rain in a relatively short period, highlights a number of issues:

• More than 60% of dams in the United States are more than 60 years old. That means they were largely constructed using construction standards and techniques that are no longer consistent with modern requirements and standards, exposing these dams to  the potential for failure.
• While many dams have been ...

Nossaman attorneys Brandon Davis, Liz Klebaner, Brad Kuhn and David Miller hosted a virtual panel discussion on June 3, 2020 covering strategies for successful infrastructure projects in the wake of the global COVID-19 pandemic.  The panel covered procurement and contracting strategies; real estate and construction considerations; NEPA, CEQA and environmental compliance; and an outlook of environmental litigation under California and federal law. Below are key takeaways from the panel:

Procurement & Contracting Strategies

• Now is the ideal time for agencies to take steps ...

Like many other state agencies, Texas stay-at-home orders issued in response to COVID-19 have shuttered many TxDOT offices since mid-March. These orders have prevented TxDOT staff from attending meetings in person with colleagues, proposers and consultants, however, despite these obstacles, TxDOT has managed to advance several design-build procurements. Among other things, TxDOT has developed strategies to help the agency adapt to the current reality, including advancing processes that allow for electronic submission and evaluation of procurement documents and ...

For those of you involved in the transportation sector, we invite you to join us on Wednesday, June 3^rd for a discussion on planning, procurement and financing strategies that can be implemented now to support timely project delivery in the wake of the COVID-19 pandemic.  We are planning a very interactive webinar where ample time will be set aside to answer questions received from attendees both prior to and during the event.

Topics that will be covered include:

• How to prepare now to efficiently and effectively move projects forward
• Procurement and contracting strategies that enable ...

Last week, the Senate Committee on Environment and Public Works passed America’s Water Infrastructure Act of 2020 (AWIA) and Drinking Water Infrastructure Act of 2020 by a vote of 21 to 0. AWIA would authorize approximately $17 billion in new federal spending to invest in water infrastructure over the course of the next three years.

Two sections included in the AWIA confirmed the federal government’s continued support for the Water Infrastructure Finance and Innovation Act (WIFIA). If approved by the full Senate and the President, AWIA Title II Section 2014 reauthorizes WIFIA ...

As we continue to navigate the far-reaching impacts of the global coronavirus pandemic, our work and commitment to assisting marginalized and underserved communities with critical infrastructure is more important than ever.

The Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO) have been recommending handwashing as one of the easiest and most effective ways to prevent the spread of COVID-19 for months.  However, according to the U.S. Water Alliance’s Closing the Water Access Gap in the United States report, approximately two million ...

In his Infra Insight Blog post on April 15, Fred Kessler reported on how the budgets for state departments of transportation, which rely heavily on federal and state fuel tax revenues, are suffering due to reduced traffic volume caused by the COVID-19 “stay at home” directives issued by state and local governments.  Nevertheless, with limited exceptions, transportation agencies and the construction industry are allowed to perform road work and some transportation agencies have expedited the delivery of highway projects. 

Most stay-at-home directives allow for ...

As the COVID-19 pandemic continues, both the public and private sectors have been working to understand the market’s response and search for solutions addressing the pandemic’s unprecedented impacts. On April 2, 2020, Young Professionals in Infrastructure hosted a webinar, “P3s and the Current Pandemic: Industry Perspectives on COVID-19 Impacts.” The panel provided perspectives from a lawyer, an insurance broker, a developer, and a rating agency on dealing with COVID-19. Here are the key takeaways from the webinar ...

The enormous deficit in public transportation funding, coupled with appetite from  capital markets, have increasingly triggered the use of public-private partnerships (P3s) to design, build, finance, operate, and maintain the largest and most expensive transportation projects. The use of P3 delivery methods brings with it new challenges for navigating complex federal environmental requirements that govern infrastructure project development.  Nossaman partners Robert Thornton and David Miller discuss innovative solutions to these challenges in a new paper published in ...

In his Infra Insight Blog post on April 9, Frank Liu reported on the uncertain status of the long awaited federal infrastructure bill.  As the federal deficit balloons and election season intensifies, the likelihood of prompt Congressional action on a major infrastructure bill is diminishing.  All indications are that it will be sidelined as Congress works on a “Phase 4” coronavirus relief bill to ameliorate the unprecedented loss of jobs throughout the nation and provide further direct assistance to the business community.  The Phase 4 bill also should include ample stop gap ...

Last Tuesday, President Donald Trump tweeted his support for a “very big and bold” $2 trillion infrastructure package to be included in Congress’ next response to the COVID-19 pandemic.  To date, Congress has passed three bills to combat the effects of the coronavirus outbreak, which has ravaged the global economy and caused more than 297 million Americans to be placed under some form of lockdown.  The latest bill, known as the Coronavirus Aid, Relief, and Economic Security (CARES) Act, was signed into law on March 27, 2020 and directs more than $2 trillion in spending to ...

As the number of those impacted by the coronavirus (“COVID-19”) pandemic continues to grow, affected parties across all industries look for guidance on how to deal with this novel situation.  Governments and private parties are analyzing project contracts as they take precautionary actions to prevent the spread of COVID-19.  In this midst of all of this confusion, two questions arise:  What does the COVID-19 pandemic and the steps being taken in response mean for your project contracts? And, will an excusable delay/force majeure clause provide any protection for the impacts of ...

Like several state and local transportation agencies around the nation, the Jacksonville Transportation Authority (JTA) is looking to roll out a fleet of autonomous vehicles. However, unlike other entities, the JTA is hoping to meld this new technology with an aging monorail system that needs updating.

Through its Ultimate Urban Circulator Program (U²C), the JTA is looking for a private partner to help it roll out an autonomous vehicle fleet through multiple phases. The JTA will first deploy autonomous vehicles at-grade along Bay Street in downtown Jacksonville, then convert the ...

The Los Angeles County Metropolitan Transportation Authority (Metro) has authorized a three-year $27.5 million environmental and engineering study to investigate the replacement of existing High-Occupancy Vehicle (HOV) lanes on the 405 freeway with toll lanes between the 101 and 10 freeways.

According to Metro, the 405 is one of the nation’s most traveled urban highways, with more than 400,000 people commuting through this corridor each day. The proposed toll lanes are aimed at creating a faster way for some drivers to navigate the Sepulveda Pass from the 101 freeway in the San ...

Ever since both 2016 presidential candidates made infrastructure investment a core component of each of their platforms, we have been waiting for a significant infusion of federal funds to modernize our aging bridges, highways, and transit systems. One of the few remaining bipartisan issues, members of both political parties had high hopes that a large infrastructure bill would be possible. While this has yet to materialize, the Senate, House, and Administration have all taken steps to advance the ball. But with the current transportation law—the Fixing America’s Surface ...

The Federal Transit Administration (FTA) has announced (as of last month) the Accelerating Innovative Mobility (AIM) initiative to encourage and advance innovation in the transit sector.  AIM will provide a total of $11 million in challenge grants to transit agencies experimenting with innovative ways of doing business, such as exploring new service delivery models, creative financing, novel partnerships and integrated payment.  As part of the AIM initiative, FTA’s Fiscal Year 2020 competitive grant programs, totaling $615 million, will highlight innovation as part of ...

Rhode Island is trying to put the brakes on a federal lawsuit brought by the trucking industry that could steer the state’s truck toll system into a ditch.  The outcome could create speed bumps for transportation agencies considering deployment of innovative congestion management tools.

In 2016 the Rhode Island General Assembly passed the Rhode Island Bridge Replacement, Reconstruction, and Maintenance Fund Act of 2016 (“RhodeWorks Act”) to fill a funding gap between revenue needed to maintain the state’s bridges in sound condition and the state’s revenue sources.  The ...

Last week I attended the Transportation Research Board Annual Meeting in Washington, D.C.  During my Revenue and Finance Committee meeting we heard a presentation from Roger Bohnert, Director of Outreach and Development, for the Build America Bureau.  Among several priorities for the TIFIA Program, the low cost federal credit program for transportation projects, Mr. Bohnert described the Rural Projects Initiative, or “RPI,” which is designed to encourage more utilization of the TIFIA Program for projects in communities with a population of less than 150,000 (based on the ...

The University of Iowa has entered into a 50-year utility public-private partnership (P3), engaging a private partner to operate, maintain, optimize, and improve the University’s existing utility system and help the University transition to coal-free energy production by 2024. ENGIE North America and Meridiam will serve as the University’s private partner. According to the University, the deal represents one of the first utility P3s entered into by any university in the country.  

Under this 50-year P3 agreement, the University’s private partner will provide steam ...

Watch out Silicon Valley, Sacramento is gearing up to launch a research center and prototype lab focused on developing electric and autonomous vehicle technologies.  The California Mobility Center is largely funded by the Sacramento Municipal Utility District and supported by a band of public and private partners, including the City of Sacramento, Greater Sacramento Economic Council, Los Rios Community College District, University of California Davis, California State University Sacramento, PEM Motion, and Valley Vision Inc.  EnerTech of Toronto will be managing the ...

A few weeks ago, I had the privilege of again attending CoMotion LA.  Spearheaded by John Rossant, CoMotion LA brings together leaders and innovators of new solutions to solve the mobility issues of our modern world.  One of the central themes was adopting new mobility solutions to relieve congestion, an increasingly prevalent reality as populations in cities continue to grow.

During the panel on “Financing the Future:  Public-Private Partnering for New Mobility Solutions,” a panel comprised of representatives from the Canadian electric school bus manufacturer Lion Electric ...

Nossaman attorneys Yuliya Oryol, Peter Mixon and Allan Ickowitz provided feedback and comments on drafts of Bridging Public Pension Funds and Infrastructure Investing, a white paper co-authored by Clive Lipshitz and Ingo Walter (NYU Stern School of Business).

The paper is a thoughtful evaluation of the sustainability of the largest public pension systems in the United States and the role of infrastructure investing in their portfolios. Lipshitz and Walter argue that infrastructure should become more central to pension portfolios despite the existing challenges for ...

Last December we told you about favorable IRS guidance letting P3 contractors and investors keep full tax deductions for interest on debt.[1] The IRS kept a P3-friendly approach in last week’s proposed regulations on qualified opportunity zones – which, like the interest limitations in our December post, come from the 2017 Tax Cuts and Jobs Act (TCJA).[2]  The qualified opportunity zone legislation promotes a broad range of real estate and business development in distressed areas, and these proposed regulations are particularly helpful to private parties contracting for and ...